BILL NUMBER: SB 493 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 29, 2004
AMENDED IN ASSEMBLY JUNE 16, 2004
AMENDED IN ASSEMBLY JUNE 7, 2004
AMENDED IN SENATE JANUARY 26, 2004
AMENDED IN SENATE JANUARY 22, 2004
AMENDED IN SENATE JANUARY 5, 2004
AMENDED IN SENATE MAY 15, 2003
AMENDED IN SENATE MAY 6, 2003
AMENDED IN SENATE MARCH 24, 2003
INTRODUCED BY Senator Cedillo
(Coauthors: Senators Alpert and Ducheny)
(Coauthors: Assembly Members Bermudez, Calderon, Diaz, Dutra, and
Firebaugh)
FEBRUARY 20, 2003
An act to add Chapter 6.83 (commencing with Section
25395.91) and Chapter 6.84 (commencing with Section 25395.92) to, and
to add and repeal Chapter 6.82 (commencing with Section 25395.60)
of, Division 20 of the Health and Safety Code, relating to hazardous
materials. An act to amend Sections 25173.6 and
25205.6 of the Health and Safety Code, relating to hazardous
materials, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 493, as amended, Cedillo. Hazardous materials:
liability substances: cleanup loans .
(1) The existing Carpenter-Presley-Tanner Hazardous Substance
Account Act imposes liability for hazardous substance removal or
remedial actions. The act requires the Department of Toxic
Substances Control to establish a loan program for loans to eligible
persons to conduct preliminary endangerment assessments of
brownfields, as defined, and underutilized properties. The act also
requires the department to establish a loan program to provide loans
to finance the performance of any action necessary to respond to the
release or threatened release of hazardous material at an eligible
property. Under existing law, the Cleanup Loans and Environmental
Assistance to Neighborhoods Account in the General Fund is
continuously appropriated to the department to provide loans under
those programs.
Existing law requires corporations that use, generate, store, or
conduct activities in this state related to hazardous materials to
pay an annual charge, based upon a schedule of standard Industrial
Classification Codes provided by the department to the State Board of
Equalization. Existing law specifies a schedule for the charge,
based upon the number of employees employed by a corporation. Under
existing law, specified funds, including this charge imposed on
corporations handling hazardous materials, are deposited in the Toxic
Substances Control Account in the General Fund and the funds
deposited in the Toxic Substances Control Account authorized to be
appropriated to the Department of Toxic Substances Control for
specified purposes relating to the cleanup of hazardous substance
release sites.
This bill would transfer $25,000,000 from the funds deposited in
the Toxic Cleanup Substance Control Account from that charge and
would deposit that amount in the Cleanup Loans and Environmental
Assistance to Neighborhoods Account in the General Fund, thereby
making an appropriation.
Existing law, the Carpenter-Presley-Tanner Hazardous Substance
Account Act, imposes liability for hazardous substances removal or
remedial actions.
Existing law, including the Porter-Cologne Water Quality Control
Act and the provisions regulating hazardous waste and releases from
underground storage tanks, impose various requirements with regard to
corrective action and cleanup and abatement, upon persons subject to
those acts.
This bill would enact the California Land Reuse and Revitalization
Act of 2004, which would provide that an innocent landowner, a bona
fide purchaser, or a contiguous property owner, as defined, qualifies
for immunity from liability for response cost or damage claims under
specified state statutory and common laws that impose liability upon
an owner or occupant of property, for pollution conditions caused by
a release or threatened release of a hazardous material on, under,
or adjacent to that property, if the innocent purchaser, bona fide
purchaser, or contiguous property owner meets specified conditions.
The bill would prohibit an agency, as defined, from requiring an
innocent landowner, bona fide purchaser, or contiguous property owner
to take response actions under those state laws, other than a
response action required in an approved response plan. The bill
would, if there are unrecovered response costs incurred by an agency,
at a site for which an owner of the site is not liable as a bona
fide purchaser, require the agency to have a lien on the site, or
authorize the agency to obtain from the owner a lien on other
property or other assurance of payment for the unrecovered response
costs, as specified.
This bill would authorize a court, in an action for contribution
or recovery of response costs incurred at a site, to award reasonable
attorneys' fees and experts' fees to an innocent landowner, bona
fide purchaser, or contiguous landowner, as specified.
The bill would require the California Environmental Protection
Agency, by January 1, 2005, to develop a form containing specified
information that a bona fide purchaser, innocent landowner, or
contiguous property owner who is subject to immunity would be
required to complete and submit to the agency. The bill would
require the agency, by July 1, 2005, and annually thereafter, to
submit a report to the Legislature compiling this data and comparing
brownfield response actions completed by agencies under the act with
other similar response actions.
The bill would repeal the act on January 1, 2010, but would
provide that a person who is subject to immunity pursuant to the act
before January 1, 2010, would continue after that date to have that
immunity, if the person continues to be in compliance with the
requirements of the act.
The bill would require a bona fide purchaser, innocent landowner,
or contiguous property owner who seeks to qualify for the immunity
provided by the act to enter into an agreement with an agency that
includes the performance of a site assessment, and if the agency
determines that a response plan is necessary, the preparation and
implementation of a response plan. The bill would require a person
who enters into an agreement to reimburse the agency that enters into
the agreement for all agency costs.
The bill would require a person who enters into an agreement with
an agency for oversight of a site assessment to submit a site
assessment plan to the agency. The bill would require the agency to
evaluate the adequacy of the site assessment plan to ensure that it
contains all necessary information and, after evaluating the site
assessment plan, if the agency finds that the plan is adequate, the
agency would be required to approve the plan and provide notification
to appropriate persons.
The bill would require a person, after implementing the site
assessment plan, to submit a report of its findings to the agency.
The bill would require the agency, based upon a review of this
information, to determine whether a response action is necessary to
address any unreasonable risk from hazardous materials at the site.
If the agency determines that a response action is necessary to
prevent, control, or eliminate an unreasonable risk, the bill would
require the bona fide purchaser, innocent landowner, or contiguous
property owner to submit a response plan to the agency to conduct a
response action at the site. The bill would require the agency to
evaluate the adequacy of the response plan and to approve the plan if
the agency makes specified findings.
The bill would authorize a response plan to require the use of a
land use control that imposes appropriate conditions, restrictions,
and obligations on land use or activities if, after completion of the
removal and remedial actions specified in the response plan,
hazardous substances materials remain at the site at a level that is
not suitable for the unrestricted use of the site, pursuant to a
specified procedure. The bill would authorize the Department of
Toxic Substances Control to exclude any portion of a response action
conducted entirely onsite from certain hazardous waste facilities
permit requirements.
Vote: majority 2/3 . Appropriation:
no yes . Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 6.82 (commencing with Section
SECTION 1. The Legislature finds and declares all of the
following:
(a) There are thousands of properties in the state where
redevelopment has been hindered due to real or perceived hazardous
materials contamination. Cleaning up these sites and returning them
to productive use will benefit the communities in which they are
located and the state as a whole.
(b) Contamination of property in the state has hampered
redevelopment, which in turn has limited job creation, economic
revitalization, and the full and productive use of the land.
(c) Private developers, local governments, and schools are
reluctant to acquire or redevelop these properties due, at least in
part, to concerns regarding liability associated with historic
contamination. Instead, they focus new development on clean areas
that present fewer complications and lower risk of liability.
(d) This has resulted in a multitude of problems, including urban
sprawl, decaying inner-city neighborhoods and schools, public health
and environmental risks stemming from contaminated properties, lack
of development at former manufacturing sites and rural areas in need
of economic investment, and reduced tax bases.
SEC. 2. Section 25173.6 of the Health and Safety Code is amended
to read:
25173.6. (a) There is in the General Fund the Toxic Substances
Control Account, which shall be administered by the director. In
addition to any other money that may be appropriated by the
Legislature to the Toxic Substances Control Account, all of the
following shall be deposited in the account:
(1) The fees collected pursuant to Section 25205.6 , which
are subject to transfer under subdivision (c) of Section 25205.6
.
(2) The fees collected pursuant to Section 25187.2, to the extent
that those fees are for oversight of a removal or remedial action
taken under Chapter 6.8 (commencing with Section 25300) or Chapter
6.85 (commencing with Section 25396).
(3) Any fines or penalties collected pursuant to this chapter,
Chapter 6.8 (commencing with Section 25300) or Chapter 6.85
(commencing with Section 25396), except as directed otherwise by
Section 25192.
(4) Any interest earned upon money deposited in the Toxic
Substances Control Account.
(5) All money recovered pursuant to Section 25360, except
recoveries of amounts paid from the Hazardous Substance Cleanup Fund.
(6) All money recovered pursuant to Section 25380.
(7) Any reimbursements for funds expended from the Toxic
Substances Control Account for services provided by the department,
including, but not limited to, reimbursements required pursuant to
Sections 25201.9 and 25343.
(8) Any money received from the federal government pursuant to the
federal Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 ,
et seq.).
(9) Any money received from responsible parties for remedial
action or removal at a specific site, except as otherwise provided by
law.
(b) The funds deposited in the Toxic Substances Control Account
may be appropriated to the department for the following purposes:
(1) The administration and implementation of the following:
(A) Chapter 6.8 (commencing with Section 25300), except that no
funds may be expended from the Toxic Substances Control Account for
purposes of Section 25354.5.
(B) Chapter 6.85 (commencing with Section 25396).
(C) Chapter 6.11 (commencing with Section 25404), on and
before June 30, 1999.
(D) Article 10 (commencing with Section 7710) of Chapter
1 of Division 4 of the Public Utilities Code, to the extent the
department has been delegated responsibilities by the secretary for
implementing that article.
(2) The administration of the following units within the
department:
(A) The Human and Ecological Risk Division.
(B) The Hazardous Materials Laboratory.
(C) The Office of Pollution Prevention and Technology Development.
(3) For allocation to the Office of Environmental Health Hazard
Assessment, pursuant to an interagency agreement, to assist the
department as needed in administering the programs described in
subparagraphs (A) and (B) of paragraph (1).
(4) For allocation to the State Board of Equalization to pay
refunds of fees collected pursuant to Section 43054 of the Revenue
and Taxation Code.
(5) For the state share mandated pursuant to paragraph (3) of
subsection (c) of Section 104 of the federal Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended (42 U.S.C. Sec. 9404(c)(3)) 9604(c)
(3) .
(6) For the purchase by the state, or by any local agency with the
prior approval of the director, of hazardous substance response
equipment and other preparations for response to a release of
hazardous substances. However, all equipment shall be purchased in a
cost-effective manner after consideration of the adequacy of
existing equipment owned by the state or the local agency, and the
availability of equipment owned by private contractors.
(7) For payment of all costs of removal and remedial action
incurred by the state, or by any local agency with the approval of
the director, in response to a release or threatened release of a
hazardous substance, to the extent the costs are not reimbursed by
the federal Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 ,
et seq.).
(8) For payment of all costs of actions taken pursuant to
subdivision (b) of Section 25358.3, to the extent that these costs
are not paid by the federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec.
9601 , et seq.).
(9) For all costs incurred by the department in cooperation with
the Agency for Toxic Substances and Disease Registry established
pursuant to subsection (i) of Section 104 of the federal
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9604(i)) and all costs of
health effects studies undertaken regarding specific sites or
specific substances at specific sites. Funds appropriated for this
purpose shall not exceed five hundred thousand dollars ($500,000) in
any single fiscal year. However, these actions shall not duplicate
reasonably available federal actions and studies.
(10) For repayment of the principal of, and interest on, bonds
sold pursuant to Article 7.5 (commencing with Section 25385) of
Chapter 6.8 .
(11) For the reasonable and necessary administrative costs and
expenses of the Hazardous Substance Cleanup Arbitration Panel created
pursuant to Section 25356.2.
(12) Direct site remediation costs.
(13) For the department's expenses for staff to perform oversight
of investigations, characterizations, removals, remediations, or
long-term operation and maintenance.
(14) For the administration and collection of the fees imposed
pursuant to Section 25205.6.
(c) The funds deposited in the Toxic Substances Control Account
may be appropriated by the Legislature to the office of the Attorney
General for the support of the Toxic Substance Enforcement Program in
the office of the Attorney General, in carrying out the purposes of
Chapter 6.8 (commencing with Section 25300) and Chapter 6.85
(commencing with Section 25396). Expenditures for the purposes of
this subdivision are not subject to an interagency or
interdepartmental agreement.
(d) The director shall expend federal funds in the Toxic
Substances Control Account consistent with the requirements specified
in Section 114 of the federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec.
9601 9614 ), upon appropriation by the
Legislature, for the purposes for which they were provided to the
state.
(e) Money in the Toxic Substances Control Account shall not be
expended to conduct removal or remedial actions if any significant
portion of the hazardous substances to be removed or remedied
originated from a source outside the state.
(f) The Director of Finance, upon request of the director, may
make a loan from the General Fund to the Toxic Substances Control
Account to meet cash needs. The loan shall be subject to the
repayment provisions of Section 16351 of the Government Code and the
interest provisions of Section 16314 of the Government Code.
SEC. 3. Section 25205.6 of the Health and Safety Code is amended
to read:
25205.6. (a) On or before November 1 of each year, the department
shall provide the board with a schedule of codes, that consists of
the types of corporations that use, generate, store, or conduct
activities in this state related to hazardous materials, as defined
in Section 25501, including, but not limited to, hazardous waste.
The schedule shall consist of identification codes from one of the
following classification systems, as deemed suitable by the
department:
(1) The Standard Industrial Classification (SIC) system
established by the United States Department of Commerce.
(2) The North American Industry Classification System (NAICS)
adopted by the United States Census Bureau.
(b) Each corporation of a type identified in the schedule adopted
pursuant to subdivision (a) shall pay an annual fee, which shall be
set at two hundred dollars ($200) for those corporations with 50 or
more employees, but less than 75 employees, three hundred fifty
dollars ($350) for those corporations with 75 or more employees, but
less than 100 employees, seven hundred dollars ($700) for those
corporations with 100 or more employees, but less than 250 employees,
one thousand five hundred dollars ($1,500) for those corporations
with 250 or more employees, but less than 500 employees, two thousand
eight hundred dollars ($2,800) for those corporations with 500 or
more employees, but less than 1,000 employees, and nine thousand five
hundred dollars ($9,500) for those corporations with 1,000 or more
employees.
(c) The fee imposed pursuant to this section shall be paid by each
corporation that is identified in the schedule adopted pursuant to
subdivision (a) in accordance with Part 22 (commencing with Section
43001) of Division 2 of the Revenue and Taxation Code and shall be
deposited in the Toxic Substances Control Account or transferred
to the Cleanup Loans and Environmental Assistance to Neighborhoods
Account established pursuant to Section 25395.20 .
The Except for revenues transferred to the Cleanup
Loans and Environmental Assistance to Neighborhoods Account, the
revenues shall be available, upon appropriation by the
Legislature, for the purposes specified in subdivision (b) of Section
25173.6.
(d) For purposes of this section, the number of employees employed
by a corporation is the number of persons employed in this state for
more than 500 hours during the calendar year preceding the calendar
year in which the fee is due.
(e) The fee rates specified in subdivision (b) are the rates for
the 1998 calendar year. Beginning with the 1999 calendar year, and
for each calendar year thereafter, the State Board of Equalization
shall adjust the rates annually to reflect increases or decreases in
the cost of living during the prior fiscal year, as measured by the
Consumer Price Index issued by the Department of Industrial Relations
or by a successor agency.
(f) Pursuant to paragraph (3) of subsection (c) of Section 104 of
the federal Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Sec. 9604(c)(3)), the
state is obligated to pay specified costs of removal and remedial
actions carried out pursuant to the federal Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended (42 U.S.C. Sec. 9601 , et seq.). The fee
rates specified in subdivision (b) are intended to provide sufficient
revenues to fund the purposes of subdivision (b) of Section 25173.6,
including appropriations in any given fiscal year of three million
three hundred thousand dollars ($3,300,000) to fund the state's
obligation pursuant to paragraph (3) of subsection (c) of Section 104
of the federal Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. Sec. 9604(c)(3)).
If the department determines that the state's obligation under
paragraph (3) of subsection (c) of Section 104 of the federal
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9604(c)(3)) will exceed three
million three hundred thousand dollars ($3,300,000) in any fiscal
year, the department shall report that determination to the
Legislature in the Governor's Budget. If, as part of the Budget Act
deliberations, the Legislature concurs with the department's
determination, the Legislature shall specify in the annual Budget Act
those pro rata changes to the fee rates specified in subdivision (b)
that will increase revenues in the next calendar year as necessary
to fund the state's increased obligations. However, the Legislature
shall not specify fee rates in the annual Budget Act that increase
revenues in an amount greater than eight million two hundred thousand
dollars ($8,200,000) above the revenues provided by the fee rates
specified in subdivision (b). Any changes in the fee rates approved
by the Legislature in the annual Budget Act pursuant to this
subdivision shall have effect only on the fee payment that is due and
payable by the end of February in the fiscal year for which that
annual Budget Act is enacted.
(g) This section does not apply to a nonprofit corporation
primarily engaged in the provision of residential social and personal
care for children, the aged, and special categories of persons with
some limits on their ability for self-care, as described in SIC Code
8361 of the Standard Industrial Classification (SIC) Manual published
by the United States Office of Management and Budget, 1987 edition.
SEC. 4. The sum of twenty-five million dollars ($25,000,000) is
hereby transferred from the funds deposited in the Toxic Substances
Control Account pursuant to paragraph (1) of subdivision (a) of
Section 25173.6 of the Health and Safety Code. This amount shall be
deposited in the Cleanup Loans And Environmental Assistance to
Neighborhoods Account in the General Fund for expenditure for the
purposes specified in subdivision (b) of Section 25395.20 of the
Health and Safety Code. _____________________________________
All matter omitted in this version of the bill appears in the
bill as amended in the Assembly, June 16, 2004 (JR 11)
____________________________________