BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SB 820 (Hertzberg)
          Version:  April 12, 2016
          Hearing Date:  April 19, 2016
          Fiscal: Yes
          Urgency: No
          TH   


                                        SUBJECT
                                           
            Hazardous Materials: California Land Reuse and Revitalization  
                                     Act of 2004

                                      DESCRIPTION  

          Existing law, the California Land Reuse and Revitalization Act  
          of 2004 (CLRRA), provides an innocent landowner, a bona fide  
          purchaser, or a contiguous property owner, with a qualified  
          immunity from liability for pollution conditions caused by a  
          release or threatened release of a hazardous material, as  
          specified.  The CLRRA will be repealed on January 1, 2017,  
          unless that date is extended or the CLRRA's sunset provision is  
          removed.  

          This bill would extend the date of repeal to January 1, 2027,  
          and make corresponding changes to a provision that provides for  
          continued immunity after the repeal of the Act.

                                      BACKGROUND  

          According to the United States Environmental Protection Agency  
          (USEPA), a brownfield is "a property, the expansion,  
          redevelopment, or reuse of which may be complicated by the  
          presence or potential presence of a hazardous substance,  
          pollutant, or contaminant."  (See  
          https://www.epa.gov/brownfields/brownfield-overview-and-definitio 
          n [as of Apr. 7, 2016].)  Brownfields are typically abandoned,  
          idled, or underutilized sites, formerly used for industrial or  
          commercial purposes, where perceived or actual contamination  
          deters redevelopment.  Costs associated with brownfield site  








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          cleanup can be prohibitively expensive for parties who purchase  
          these properties, particularly when unexpected hazardous  
          materials are encountered during site remediation.   
          Consequently, many of these sites remain vacant for years.

          Brownfield cleanup and redevelopment is a problem in California  
          and across the United States.  USEPA estimates that there are  
          more than 450,000 brownfields in the U.S., approximately 90,000  
          of which are in California.  These properties include former  
          industrial sites, school sites, military bases, small businesses  
          and landfills, and their idle or underused status contributes to  
          both urban blight and urban sprawl.  According to the California  
          Department of Toxic Substances Control, "cleaning brownfield  
          properties frees previously unavailable land for productive  
          reuse, while taking development pressures off undeveloped open  
          land, thereby improving and protecting the environment."  (See  
          http://www.dtsc.ca.gov/SiteCleanup/Brownfields/index.cfm [as of  
          Apr. 7, 2016].)  The large number of brownfield sites and the  
          unavailability of sufficient public resources to remediate these  
          sites mean that California's brownfields will not be restored to  
          productive use without significant participation by the private  
          sector.

          The California Land Reuse and Revitalization Act of 2004 (CLRRA)  
          provides qualified immunities to certain owners and purchasers  
          of brownfields in order to drive investment toward these  
          polluted properties.  Historically, the federal Comprehensive  
          Environmental Response, Compensation, and Liability Act (CERCLA)  
          and various state laws, including the Carpenter-Presley-Tanner  
          Hazardous Substance Account Act, rendered current and previous  
          owners of contaminated property jointly and severally liable for  
          the cost of cleaning up hazardous materials released on a site.   
          In 2002, Congress amended CERCLA to grant immunity to innocent  
          and prospective purchasers, and innocent contiguous property  
          owners, for previously occurring contamination for which the  
          innocent or prospective purchaser had no responsibility, subject  
          to certain conditions.  Following suit, in 2004, California  
          enacted the CLRRA, which provides innocent landowners, bona fide  
          purchasers, and contiguous property owners, who did not cause or  
          contribute to a release, with qualified immunity from liability  
          under certain state laws.  To take advantage of this immunity,  
          qualifying individuals must enter into an agreement with an  
          oversight agency that requires the individual to undertake  
          various tasks relating to cleanup of hazardous materials on the  
          property.







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          Under current law, CLRRA will sunset on January 1, 2017, but any  
          individual who qualifies for immunity as of December 31, 2016,  
          would retain their immunity, as specified.  This bill would  
          extend that sunset date by 10 years, to January 1, 2027, and  
          make conforming changes to the provisions that provide for  
          continued immunity after that date.

          This bill was approved by the Senate Committee on Environmental  
          Quality on April 6, 2016, by a vote of 6-0.

                                CHANGES TO EXISTING LAW
           
           Existing law  generally imposes joint and several liability upon  
          current and previous owners of property for "response costs"  
          (cost of clean-up) incurred by the government or any other party  
          associated with the remediation of a site contaminated by  
          hazardous materials.  (Comprehensive Environmental Response,  
          Compensation, and Liability Act (CERCLA), 42 U.S.C. Sec. 9601 et  
          seq.; Carpenter-Presley-Tanner Hazardous Substance Account Act,  
          Health & Saf. Code Sec. 25300 et seq.; Hazardous Waste Control  
          Law, Health & Saf. Code Sec. 25100 et seq.; Keene Underground  
          Storage Tank Cleanup Trust Fund Act, Health and Saf. Code Sec.  
          25299.10 et seq.)  
           
           Existing law  , the California Land Reuse and Revitalization Act  
          of 2004 (CLRRA), provides innocent landowners, bona fide  
          purchasers, and contiguous property owners who did not cause or  
          contribute to a release with immunities from: (1) claims for  
          response costs or other damages associated with a release or  
          threatened release of a hazardous material from the site; or (2)  
          agency action to require the individual to take a response  
          action, other than the response action required in an approved  
          CLRRA response plan, except under certain conditions.  (Health &  
          Saf. Code Sec. 25395.60 et seq.)
          
           Existing law  requires a bona fide purchaser, innocent landowner,  
          or contiguous property owner who seeks to qualify for the above  
          immunity to enter into an agreement with an agency.  Existing  
          law requires that agreement to include the performance of a site  
          assessment, and, if the agency determines that a response plan  
          is necessary, to prepare and implement the response plan.   
          (Health & Saf. Code Sec. 25395.92.) 

           Existing law  further requires individuals seeking to qualify as  







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          bona fide purchasers, innocent landowners, or contiguous  
          property owners to:
           make all appropriate inquiries into the previous ownership and  
            uses of the site;
           exercise appropriate care with respect to the release or  
            threatened release of hazardous materials at the site;
           provide full cooperation, assistance, and access to a person  
            authorized to conduct response actions or natural resource  
            restoration at the site;
           comply with land use controls established or relied on in  
            connection with an approved response action at the site;
           not impede the effectiveness or integrity of any aspect of any  
            remedy employed at the site in connection with a response  
            action;
           comply with all requests for information or administrative  
            subpoenas by an agency with jurisdiction; and
           provide all notices and satisfy reporting requirements under  
            state and federal law with respect to the hazardous materials  
            at the site.  (Health & Saf. Code Sec. 25395.80.)
          
           Existing law  provides that if there are unrecovered costs  
          incurred by an agency at a site for which an owner of the site  
          is not liable as an innocent landowner, bona fide purchaser, or  
          contiguous property owner, an agency shall have a lien on the  
          site, or may, by agreement with the owner, obtain from the owner  
          a lien on other property or other assurance of payment for the  
          unrecovered response costs, subject to certain conditions.   
          (Health & Saf. Code Sec. 25395.83.)

           Existing law  provides that an innocent landowner, bona fide  
          purchaser, contiguous landowner, or bona fide ground tenant, may  
          seek contribution from any person who is responsible for a  
          discharge or release of hazardous materials for which the  
          innocent landowner, bona fide purchaser, contiguous landowner,  
          or bona fide ground tenant incurs agency oversight costs for the  
          review of a response plan or oversight of the implementation of  
          a response plan.  (Health & Saf. Code Sec. 25395.85.)

           Existing law  states that the CLRRA will not provide immunity  
          from, among other things:
           liability for bodily injury or wrongful death;
           criminal acts;
           permit violations; or
           new releases of hazardous materials that are caused or  
            contributed to by an innocent landowner, bona fide purchaser,  







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            or contiguous property owner.  (Health & Saf. Code Sec.  
            25395.86.)

           Existing law  will repeal the CLRRA on January 1, 2017, unless a  
          subsequent law repeals that requirement.  Existing law,  
          operative January 1, 2017, provides that any individual who  
          qualifies for immunity as of December 31, 2016, retains their  
          immunity, provided that they remain in compliance with the  
          requirements of the CLRRA.  (Health & Saf. Code Secs. 25395.109,  
          25395.110.)

           This bill  extends the above repeal date to January 1, 2027.   
          This bill additionally extends the operative date of the  
          provision that provides for continuing qualified immunity to  
          January 1, 2027.
          
                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author,

            Brownfields, or contaminated land, remain a significant  
            problem nationwide.  These properties contain potentially  
            hazardous substances, where clean-up costs can be expensive.   
            Additionally, buyers of brownfield sites may be liable for  
            contamination they had no role in.  The cost and risk tied to  
            these sites deter redevelopment and contribute to urban  
            blight.  In California, the Department of Toxic Substances  
            Control (DTSC) states that there are "an estimated 90,000  
            properties throughout the State - including former industrial  
            properties, school sites, military bases, small businesses and  
            landfills."

            To solve this dilemma, California enacted the Land Reuse &  
            Revitalization Act of 2004.  The act provides immunity from  
            liability to innocent landowners, purchasers and the owners of  
            adjacent properties.  To take advantage of this benefit,  
            qualifying individuals must enter into an agreement with the  
            state to conduct a site assessment and clean-up the property  
            safely.

            The CLRRA will become inoperative, or "sunset," on January 1,  
            2017.  After 11 years, the program has shown its usefulness -  
            it provides incentive to clean-up contaminated sites  







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            responsibly, it reduces environmental and health risks, while  
            adding economic value to polluted vacant properties.  For  
            example, in 2008 a former pickle processing plant in Hayward  
            was converted into Eden Housing, a complex of 78 affordable  
            housing units.  Continuation of the CLRRA is of utmost  
            importance to encourage non-polluting buyers to seek out  
            infill sites which they would not pursue without this  
            protection.

           2.Effectiveness of the CLRRA
           
          The California Land Reuse and Revitalization Act of 2004 (CLRRA)  
          provides eligible innocent landowners, bona fide purchasers, and  
          contiguous property owners with immunity from liability for  
          hazardous materials response costs and other damages, if certain  
          qualifying criteria are met.  To receive that immunity, CLRRA  
          participants must, among other things, enter into an agreement  
          with an oversight agency that includes "the performance of a  
          site assessment, and, if the agency determines that a response  
          plan is necessary [to prevent or eliminate an unreasonable  
          risk], the preparation and implementation of a response plan."   
          (Health & Saf. Code Secs. 25395.92(a), 25395.96.)  In exchange  
          for qualified immunity, these required actions -- generating a  
          site assessment plan, implementing and reporting on the plan,  
          and undertaking response actions -- result in at least a partial  
          cleanup of the property, resulting in the redevelopment and  
          reuse of otherwise idle brownfield sites.

          When the CLRRA was enacted in 2004, it contained a five-year  
          sunset provision to allow the Legislature to review the program  
          and determine whether it has been an effective tool for  
          revitalizing polluted sites.  SB 143 (Cedillo, Ch. 167, Stats.  
          2009) extended that sunset provision a further seven years and  
          added a post-repeal provision that allowed program participants  
          to retain their immunity if they continue to comply with all  
          program requirements, including any response plans entered into  
          with an oversight agency.  (See Health & Saf. Code Sec.  
          25395.110.)  While it does not appear that any comprehensive  
          evaluation of CLRRA's effectiveness has been undertaken, several  
          stakeholders in support of this bill describe redevelopment  
          projects that would not have been possible without the act.  For  
          example, the City of Chula Vista writes:

            A local developer working in the City of Chula Vista was the  
            first in San Diego County to effectively use CLRRA to take  







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            ownership of a former aerospace manufacturing facility. . . .  
            Without CLRRA this development would not have been possible  
            and the land would have remained a vacant blighted parcel  
            within the City of Chula Vista.  Upon build-out the entire  
            development is estimated to contribute [$] 1.3 [billion] in  
            revenue to the San Diego region.
          Similarly, the City of Carson writes:

            Brownfields remain a significant problem nationwide, and  
            especially in the City of Carson.  Carson has a long history  
            of dealing with contaminated soil of all types.  Currently the  
            City's Reclamation Authority is working on developing a  
            157-acre former landfill site, which it now owns, into a  
            regional shopping destination.  The remediation itself is over  
            $150 million, much of which was funded by the City's former  
            Redevelopment Agency (RDA); however, the liability issues  
            associated with the contamination have historically made it  
            difficult to attract quality developers to the site, which is  
            crucial for the economic vitality of the City.  CLRRA will  
            make it more likely a quality developer will sign up for the  
            vertical development of the site.

          This bill would extend CLRRA's sunset date 10 additional years  
          to January 1, 2027, thereby providing the Legislature additional  
          time to evaluate the act's efficacy.


           Support  :  Bay Area Council; Brown & Winters; California  
          Association for Local Economic Development; California Business  
          Properties Association; California Council for Environmental and  
          Economic Balance; California Infill Builders; California Main  
          Street Alliance; Center for Creative Land Recycling; City of  
          Carson; City of Chula Vista; City of Redding; Civil Justice  
          Association of California; League of California Cities; Los  
          Angeles Neighborhood Land Trust

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  California Association for Local Economic Development

           Related Pending Legislation  :  None Known

           Prior Legislation  :







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          SB 143 (Cedillo, Ch. 167, Stats. 2009) extended the sunset date  
          for the California Land Reuse and Revitalization Act of 2004  
          (CLRRA) from January 1, 2010, to January 1, 2017, and made  
          corresponding changes to a provision that provides for continued  
          immunity after the repeal of the Act.  This bill also authorized  
          a prospective purchaser who qualifies as a bona fide purchaser  
          to enter into a contract to acquire a site, but prohibited the  
          prospective purchaser from receiving immunity under the act  
          until the prospective purchaser acquired the site.

          SB 989 (Committee on Environmental Quality, Ch. 510, Stats.  
          2006) created a program for bona fide ground tenants, as  
          defined, to purchase contaminated property subject to certain  
          immunities from suit for damages related to prior contamination  
          of the property, similar to the program made available to bona  
          fide purchasers under CLRRA.

          AB 2144 (Montanez, Ch. 562, Stats. 2006), among other things,  
          revised the public participation procedures required in a  
          response plan, under the CLRRA, for agencies with oversight over  
          the clean-up of certain brownfield sites.

          AB 389 (Montanez, Ch. 705, Stats. 2004), created the California  
          Land Reuse and Revitalization Act of 2004 (CLRRA).

          SB 493 (Cedillo, 2004) would have enacted the California Land  
          Reuse and Revitalization Act.  This bill died in the Assembly  
          Appropriations Committee.

           Prior Vote  :  Senate Environmental Quality Committee (Ayes 6,  
          Noes 0)

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