BILL ANALYSIS
SB 493
Page 1
Date of Hearing: June 24, 2004
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
John Laird, Chair
SB 493 (Cedillo) - As Amended: June 16, 2004
As Proposed to be Amended
SENATE VOTE : 37-0
SUBJECT : Hazardous materials: liability.
SUMMARY : Enacts the California Land Reuse and Revitalization
Act of 2004 (the act), which would provide that an innocent
landowner, a bona fide purchaser, or a contiguous property owner
qualifies for immunity from liability for response cost or
damage claims under most 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 ("qualifying property
owner"). Specifically, this bill :
Architecture
1)Prohibits an agency from requiring a qualifying property owner
(QPO), which include certain innocent landowners, bona fide
purchasers, or contiguous property owners to take response
actions under those state laws, other than a response action
required in an approved agreement for site assessment or for a
response plan based on information provided by the QPO to the
agency pursuant to that site assessment.
2)Authorizes 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 a QPO.
3)Requires the California Environmental Protection Agency
(CalEPA), by January 1, 2005, to develop a form containing
specified information that a QPO who is subject to immunity
would be required to complete and submit to the agency.
4)Requires CalEPA, 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.
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5)Requires a QPO 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.
6)Requires person who enters into an agreement to reimburse the
agency that enters into the agreement for all agency costs.
7)Specifies that 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 agency must 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.
8)Requires a person, after implementing the site assessment
plan, to submit a report of its findings to the agency. The
agency, based upon a review of this information , must
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 QPO to submit a response plan to the
agency to conduct a response action at the site.
9)Requires the agency to evaluate the adequacy of the response
plan and to approve the plan if the agency makes specified
findings.
10) Authorizes 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 theremoval 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.
11) Authorizes the Department of Toxic Substances Control
(DTSC) to exclude any portion of a response action conducted
entirely onsite from certain hazardous waste facilities permit
requirements.
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12) Makes findings related to the presence of thousands of
properties in the state and how the real or perceived
contamination by hazardous materials can hamper development
which can revitalize neighborhoods.
13) Sunsets a portion of 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.
14) Defines various terms for purposes of this act, including:
a) "Agency" means DTSC, the State Water Resources Control
Board (SWRCB) or a regional water quality control board
(RWQCB).
b) "All appropriate inquiries" will be defined by the
United States Environmental Protection Agency (USEPA) when
those standards and practices are finalized. While the
bill makes the federal standard, upon adoption, the
exclusive criteria, it does allow state law to govern any
practice of engineering necessary to complete the inquiry.
Until then, properties acquired before December 1, 2000
must have undergone review according to the American
Society for Testing and Materials Standard El 527-97
entitled "Standard Practice for Environmental Site
Assessment": Phase 1 Environmental Site Assessment Process.
If the property was acquired after December 1, 2000,
compliance with American Society for Testing and Materials
Standard E1527-00. Exempts from these inquiry standards
any properties that are used solely for residential use
and have four or fewer units at the time of acquisition by
a nongovernmental or noncommercial entity. In such case
"all appropriate inquiries" only needs to include a site
inspection and title search if they do not reveal a basis
for further investigation.
c) "Applicable law," for purposes of the scope of the
immunities, essentially bars all of the provisions of state
statutory and common laws that could impose liability on an
owner or occupant of property for pollution conditions
caused by a release or threatened release of hazardous
material on, under, or adjacent to the property. This
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would include laws relating to contribution, nuisance,
trespass and equitable indemnity.
d) "Appropriate care" establishes, for purposes of this
act, what actions must have been completed by the QPO in
order to obtain the immunities. This would include
initiation and completion (unless ongoing treatment is
required) of a response plan approved under this act. The
immunities may also attach without any response action if,
the agency, after review of the site assessment, issues a
no further action (NFA) finding pursuant to this act.
e) QPO Definitions: " Bona fide purchaser " means a person,
or a tenant of a person, who acquires ownership of a site
on or after January 1, 2005. A " Contiguous property owner "
means a person who owns a site that is adjacent to or
otherwise similarly situated with respect to another site
that is, or may be, contaminated by a release or threatened
release of a hazardous material and that is not owned by
that person. An " Innocent landowner " means a person who
currently owns a site, did not cause or contribute to a
release or threatened release at the site. In addition the
innocent landowner must have made all appropriate inquiries
(as determined by the commonly accepted practices of the
time) and did not know, and had no reason to know, of the
release or threatened release at the site. A QPO can
maintain its immunity even if there is a new release at the
site under certain conditions.
15) "Endangerment" means a condition that poses an actual and
unreasonable risk to human health and safety arising from
actual or threatened exposure to hazardous materials. Note
that this does not include risk to the environment .
16) "Significant threat to the environment" means that an
existing source of hazardous materials at a site is causing
any of the following:
a) A significant release of hazardous materials to a
hydrologic unit or groundwater basin that has been
designated by a regional board as having a beneficial use
of municipal or domestic use.
b) Imminent harm to exposed, biologic, nonhuman receptors.
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c) Discharge into surface water that is above the
applicable public health goal, maximum contaminant level,
or action level.
17) "Unreasonable risk" at a site means that a condition at a
site poses a significant threat to human health or a
significant threat to the environment.
18) "Passive migration" means the leaking, leaching or
movement of a hazardous material into or through the
environment, for which no human activity by QPO preceeded the
initial entry of that substance into the environment.
19) "Release" has the same meaning as defined in the state's
primary hazardous waste law, state Superfund (Chapter 6.8).
20) "Site" means real property located in an urban infill area
for which the expansion, redevelopment, or reuse may be
complicated by the presence or perceived presence of hazardous
materials. This measure would not be applicable to federal
superfund sites, state Superfund sites, sites solely
contaminated by petroleum leaks from an underground storage
tank if they are eligible for reimbursement from the
California Underground Storage Tank Cleanup Fund.
21) "Infill area" means a vacant or underutilized lot of land
within an urban area that has been previously developed or
that is surrounded by parcels that are or have been previously
developed.
22) "Urban area" includes any incorporated city or an
unincorporated area that is completely surrounded by one or
more incorporated cities that meets both of the following
criteria: if the population of the unincorporated area and the
population of the surrounding incorporated cities is equal to
a population of 100,000 or more, and the population density of
the unincorporated area is equal to, or greater than, the
population density of the surrounding cities.
Immunities to Liability
23) Requires a QPO to meet certain conditions in order to
obtain, and maintain, the immunities afforded by this act.
The QPO must show, by a preponderance of the evidence, that it
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has made all appropriate inquiries into the previous ownership
and uses of the site. The person must exercise appropriate
care with respect to the release or threatened release of
hazardous materials at the site, and provide full cooperation,
assistance, and access to a person who is authorized to
conduct response actions or natural resource restoration at
the site, including the cooperation and any access necessary
for the installation, integrity, operation, and maintenance of
complete or partial response actions or natural resource
restoration at the site. The QPO must also be in compliance
with land use controls established or relied on, in connection
with an approved response action at the site, and does not
impede the effectiveness or integrity of any aspect of any
remedy employed at the site in connection with a response
action. Lastly, the QPO shall provide all notices and
satisfies reporting requirements required by state or federal
law with respect to the discovery or release of hazardous
substances at the site.
24) Grants a QPO, who did not cause or contribute to the
release at the site, very broad immunities:
a) from any claim made by any person, other than an agency,
under any applicable statute for response costs or other
damages associated with a release of a hazardous material
at the site characterized in the site assessment conducted
pursuant to, or a response plan approved pursuant to this
act.
b) from any agency action under any applicable statute to
compel a response action, other than a response action
required in an approved response plan, with respect to a
hazardous material release at a site that is characterized
in the site assessment conducted pursuant to, or a response
plan approved pursuant to this act , unless both of the
following conditions apply:
i) The conditions on the property pose an endangerment ,
and
ii) The agency first makes all reasonable efforts to
compel any necessary response action from other
potentially responsible parties, or reasonably
determines, after the exercise of reasonable inquiry,
that no potentially responsible party exists with
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sufficient financial resources to perform the required
response action at the site.
25) Provides that the act is not intended to modify or limit
the existing authority of a state or local agency to impose a
condition on the issuance of a discretionary permit relating
to the development, use, or occupancy of any site.
26) Attaches the immunities when the QPO enters into an
agreement with an agency and shall remain in effect unless one
of the following occurs: (a) the QPO receives a written notice
of an unapproved, material deviation from the agreement from
the agency, or (b) the QPO, or the agency, terminates the
agreement before obtaining a NFA or a certificate of
completion (COC) after performance of a response plan under
this act.
27) Disqualifies, for purposes of the act, QPO, who otherwise
qualifies for immunity under this act if he commits fraud,
intentional nondisclosure, or misrepresentation to an agency
with respect to disclosures required under this act.
28) Exempts from immunity protection pursuant to this chapter
does not cover: (a) bodily injury or wrongful death, (b) any
requirement imposed for proper handling and disposal of
hazardous material under the respnse action, including, but
not limited to, corrective action and closure and post closure
requirements, (c) criminal acts; (d) permit violations; (e)
contractual indemnity agreements between purchasers and
sellers of real property; (f) any action taken by a
redevelopment agency (g) or new releases that are caused or
contributed to the QPO.
"Windfall Profit"
29) Provides that, if there are unrecovered response costs
incurred by an agency at a site for which an owner of the site
is not liable as QPO, 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 . The lien amount shall not exceed
the increase in fair market value of the property attributable
to the response action at the time of a sale or other
disposition of the property, and shall not exceed the
unrecovered response costs actually incurred by the agency .
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Litigation Tools for QPO and Agency
30) Authorizes a QPO to seek contribution from any person who
is responsible for a discharge or release of hazardous
materials for which the QPO incurs agency oversight costs for
the review of a response plan or oversight of the
implementation of a response plan subject to the act.
31) Authorizes a court to award reasonable attorneys' fees and
experts' fees to a prevailing QPO who initiates a claim under
an applicable statute for contribution for, or recovery of,
response costs incurred for a response action, or for any
other response costs incurred at a site. The QPO must serve
notice on the defendant 20 days prior to the trial with
information on the amount sought and the reasoning for the
claim for contribution.
32) Authorizes an agency to recover reasonable attorneys' fees
and experts' fees if it is the prevailing party in an action
arising out of this act.
Reopeners
33) Specifies that an agency itself may conduct a response
action it determines is necessary to protect public health and
safety or the environment pursuant to an applicable statute.
34) Allows a state or local agency that is acquiring property
or taking it by eminent domain from evaluating and including
the impact on the value of the property resulting from a
release or threatened release of any hazardous material at a
proceeding to establish the value of the property.
35) Explicitly states that the only obligations of the QOP are
limited to those obligations specifically assumed by the owner
under the agreement to which he has entered pursuant to this
act. In addition, the chapter does not limit any defenses to
liability available to a person under another section of law.
Preservation of Immunity Even After New Releases
36) Provides a mechanism which preserves QPO's immunity in
certain situations where there is a new release at the site,
including:
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a) De minimis: If, during a response action under this
act, there is a new releases that is deemed by the agency
to be de minimis, and the agency determines that all
necessary response actions have been taken, there is no
loss of immunity.
b) Newly discovered release prior to issuance of a NFA or
COC: If, during a response action , a release of hazardous
materials that poses an unreasonable risk is discovered
prior to the issuance of a NFA or a COC, is appropriately
resolved to the satisfaction of the agency under the
response plan, there is no loss of immunity.
c) Newly discovered after issuance of a NFA or COC: If, a
release of hazardous materials that poses an unreasonable
risk is discovered after the issuance of a NFA or a COC, is
appropriately resolved to the satisfaction of the agency
pursuant to a response plan, there is no loss of immunity.
d) New releases with QPO involvement: If, a QPO causes or
contributes to a new release of hazardous materials not
addressed pursuant to the findings of NFA or issuance of
COC, there is no loss of immunity for the previous
releases. The QPO need only respond to the new release
according to other applicable statutes.
Agency Review
37) Directs CalEPA to develop a form that, upon approval of a
response plan, shall be completed and submitted to the agency
by a bona fide purchaser or innocent landowner who qualifies
for immunity pursuant to this chapter. The form shall
include, but is not required to be limited to a description
of: (a) the site location, (b) the type and extent of
hazardous materials releases and threatened releases
identified for response at the site pursuant to a response
plan, (c) the estimate of the response action cost, (d) the
present and proposed use of the site and its zoning, (e) the
land use restrictions, covenants, deed restrictions or other
conditions imposed on the site owned by the QPO, (f) the
concentrations of those hazardous materials or discharges that
will not be remediated pursuant to the response plan.
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38) Directs CalEPA, contingent on resources being available,
to compile the information submitted on the form and post a
report of its findings on its web site. The report shall to
the extent practicable, compare the number and quality of
response actions completed pursuant to this chapter with
similar response actions completed prior to its enactment, and
shall evaluate the impact of the benefit of this chapter's
immunities on the acquisition and development of properties.
There is no instruction that site specific information be
posted on any web site.
Public Participation
39) Directs the agency to provide for public participation
prior to recording NFA with land use controls, or prior to the
agency acting on a response plan. The response plan shall
include all of the following: (a) an opportunity for the
public, other agencies, and the host jurisdiction to
participate in decisions regarding the response action, taking
into consideration the nature of the community interest; (b)
the methods for public participation (through the use of fact
sheets, public notices, direct notification of interested
parties, public meetings); (c) access to the response plan;
and (d) local repository. The agency shall hold a public
meeting in the area of the project if one is requested.
EXISTING LAW , under, 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.
Establishes an extensive series of programs meant to encourage
reuse of brownfield properties including:
a) The Comprehensive Environmental Cleanup, Response and
Liability Act [CERCLA 42 U.S.C. 9601 et. seq.] commonly
referred to as the federal Superfund Law). This law
imposes strict joint and several liability on "responsible
parties" (i.e. current and previous owners and operators of
contaminated properties, as well as parties who caused or
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contributed to contamination on the property) for the cost
of clean up of hazardous materials released on a site.
b) Under the Small Business Liability Relief and
Brownfields Revitalization Act (Pub. L. No. 107-118,
enacted January 2002, which amended CERCLA) establishes an
affirmative defense from cleanup liability under CERCLA
only for so-called "innocent purchasers" (IP's) under
specified conditions. This was not given as an immunity
but as an affirmative defense. When implementing this QPO
"protection" the federal government also appropriated $1
billion for cleanup of contaminated "Brownfields"
properties.
c) Chapter 6.8 (Commencing with Section 25300) of the
Health and Safety Code, the Carpenter-Presley-Tanner
Hazardous Substance Account Act (commonly referred to as
the State Superfund program) which is administered by DTSC.
This act "responsible party" in the same manner as those
terms are defined under the federal CERCLA statutes and
authorizes DTSC to bring actions for the cleanup of
contaminated properties pursuant to the federal CERCLA.
The state Superfund law provides an affirmative defense for
innocent purchasers of property identical to that provided
under CERCLA by cross-referencing the applicable provision
of federal law.
d) In addition to bringing actions under the CERCLA scheme,
authorizes DTSC to bring cleanup actions pursuant to state
law and establishes requirements for the DTSC to apportion
liability for cleanup costs among responsible parties for
each party's share of cleanup costs.
e) Authorizes DTSC to enter into prospective purchaser
agreements and "covenants not to sue" under which, in
exchange for the cleanup of a property, the department
agrees not to sue the purchaser or owner of the property
for additional cleanup and associated costs.
f) The Porter-Cologne Water Quality Control Act which
authorizes the State Water Resources Control Board (SWRCB)
and regional water quality control boards (RWQCB's) to
issue orders to cleanup or abate "waste" (i.e. pollutant)
discharges from persons discharging those wastes that
cause, or threaten to cause, water pollution, nuisance, or
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contamination.
g) The Polanco Redevelopment Act which authorizes
redevelopment agencies to order the investigation and
cleanup of property in redevelopment zones and provides
that if a property owner refuses to comply with such an
order, the redevelopment agency, or a person who has an
agreement with the redevelopment agency to redevelop the
property, may carry out the investigation and cleanup of
any release of contamination on the property. In such
case, the Redevelopment Agency may recover its costs.
h) The California Land Environmental Restoration and Reuse
Act (commonly referred to as the Escutia Law) which
establishes a process by which local government agencies
may determine whether properties that are within their
jurisdictions are impaired by hazardous material
contamination and, if they are contaminated, to compel
property owners to assess and cleanup the conditions of
their property, or to assess and cleanup the property
themselves.
i) The AB 2061 process which establishes the Unified Agency
Review of Hazardous Substance Release Sites law which
authorizes a responsible party to request a single state
oversight agency for a hazardous substances cleanup. Upon
completion of the cleanup, no agency other than the
designated agency may take any further action for cleanup
of the release that was the subject of the cleanup action.
j) The Cleanup Loans and Environmental Assistance to
Neighborhoods (CLEAN) Program, which provides low-interest
loans and grants of up to $100,000 to conduct preliminary
endangerment assessments for eligible contaminated
properties. Loans can also be provided for site cleanup.
The funding for this program (which started at $85 million)
was severely cut in past years due to the state budget
situation.
aa) The Financial Assurance and Insurance for Redevelopment
(FAIR) Program, which is designed to lower property
cleanup, sale, and redevelopment costs through the
provision of pre-negotiated and standardized environmental
insurance policies to stimulate the cleanup and
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redevelopment of brownfields and other environmentally
impaired properties throughout the state. This program is
administered by CalEPA.
For detailed description of the existing programs please see
Senate Environmental Quality Analysis of January 14, 2004.
FISCAL EFFECT : Unknown. Most costs for implementation of the
program are covered by the QPO. However, further response
costs, except in limited situations, for further cleanup must be
covered by the agencies or past responsible parties.
COMMENTS : The author states that it is his intent to relieve
QPOs of liabilities and responsibilities that should be borne by
those who caused or, contributed to the contamination. By
establishing another site assessment and response plan process
which can be elected by QPOs to make certain the extent of their
liability, if any, under state law for hazardous materials
contamination caused by other persons, the author hopes to
encourage the development of unused or underused properties in
urban areas. He contends that SB 493 will address process
uncertainties and limit developer liabilities while continuing
to ensure that cleanups are protective of public health and
safety and the environment.
1)This measure is sponsored by the California Building Industry
Association and the Home Ownership Advancement Foundation
(HOAF). They note that across California, communities today
face the difficult challenges of attracting jobs and
employment, providing housing at prices affordable to an
expanding workforce, maintaining sufficient local revenue
sources to finance necessary infrastructure, services and
amenities, and ensuring a high quality of life and
environmental protection.
2)The sponsors contend SB 493 would help solve these challenges
by encouraging private investors to take dormant tracts of
land, often called "brownfields," and put them back into
productive use for new businesses, housing, parks and other
job-generating and community-enhancing projects. The bill
accomplishes this by addressing one of the biggest impediments
to brownfield redevelopment - "uncertain" liability issues.
3)The sponsors feel that SB 493 brings fairness to the existing
state liability scheme and provides the tools necessary to
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turn environmental challenges into economic and social
triumphs in communities across the state. In particular, the
bill reforms specific state laws to fairly assign liability
for clean-up costs to responsible parties. They contend that
the bill imposes a clear and up-front clean-up obligation for
brownfield investors - known as "prospective purchasers. As
an incentive for satisfactorily performing an approved
clean-up, these new purchasers and developers of the land
would be free from hidden or surprise costs, so long as they
have had nothing to do with any health-endangering incidents.
4)Opponents to this measure argue that it is much too broad. By
taking property owners out of the responsible party category
and by giving such sweeping immunities, SB 493 would end up
saddling the state with cleanup costs it cannot afford.
Because the state has no funds to act on its own, people,
drinking water basins and the environment will be exposed to
ongoing pollution and risk.
5)Negotiations between the author, the sponsors, agencies and
the opposition are ongoing and further language is being
developed.
The current status of key issues in discussion can be summarized
as follows :
6)Definition of Site: SB 493 is meant to encourage
revitalization of brownfield properties in urban infill areas .
It was quite broadly written, especially in comparison with
recently passed brownfield measures from previous sessions.
As proposed to be amended the definition of site has been
resolved. "Infill area" now means a vacant or underutilized
lot of land within an urban area that has been previously
developed or that is surrounded by parcels that are or have
been previously developed." This definition makes sure that
priority for the overstrapped agency staff and funds and
reduce the tendency to promote sprawl by reducing
environmental compliance costs for projects at the periphery
of the urban areas.
7)Public Participation : The sponsors and the opponents have
also come to agreement over some terms that further define a
public participation process. The proposed language
establishes minimum floors for the public's access to
documents, notice of proposed decisions, the ability to
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request a public hearing, and a provision for translation of
notices, fact sheets, and other documents into relevant
languages in the community. It shouldbe noted, however, that
public participation is not part of the agreement phase nor
the NFA process if no response action or land use restriction
is required.
8)New Releases and Preserving the QPO Immunities : Another
significant proposed amendment to the measure are some
provisions which would allow an agency to compel further
cleanup if certain circumstances arose relating to
contamination present at the site that may not have been
discovered or even caused or contributed to by the QPO without
the QPO losing his immunities if that contamination is cleaned
up. (For detailed description please see Item 36 on Page 6 of
the bill). By preserving the immunities, the supporters
permit the agency to require more action, but no third parties
or other agencies can sue a QPO.
9)Cleanup Standards : This issue is perhaps the most significant
point of debate between the supporters and the opposition
because of the potential threat to groundwater supplies if
contamination sources are not removed. Some of the central
points of debate are:
a) The opposition feels that the cleanup standards should
be required not just for conditions that actually cause
groundwater contamination, but also for conditions that
threaten to cause contamination. Requiring that any
response action must wait until there is actual
contamination drastically raises the cleanup costs. The
sponsors argue that moving away from requiring responses
only to "actual contamination" starts to introduce
uncertainties that would limit the effectiveness of the
measure. There were extensive discussions on that issue,
but no essentially no progress was made on this matter.
b) Interpreting Porter- Cologne : This act incorporates
some of the language of California's primary water quality
law, but leaves out some words. Another example is the
definition of "significant threat to the environment" (page
18, lines 28). Recent amendments added specific discharge
standards which help, but it does create a whole new
definition in a new Chapter of the Code.. But opponents
contend, by not tracking closely, or referencing specific
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sections of the code, the common interpretation of
unreasonable risk including a situation that threatens such
as Porter-Cologne and track that as closely as possible to
preserve past legal interpretations.
c) What is a source of contamination? Much of the
discussion focused on what constitutes a source. Is it
just the leaking barrel? Is it also the fluid coming out
of the barrel? Is it fluid coming out of the barrel but
still migrating through the soil? Is it no longer a source
as soon as it hits the groundwater (above or below the
vadose zone)? Should it include the chemicals which
migrated into the groundwater and pooled beneath it (called
Dense Nonaqueous Phase Liquids (DNAPLs)) which then leach
back into the groundwater causing a continuing source of
groundwater contamination? The opponents point out that
DNAPLs are common groundwater contaminants and could pose a
tremendous health threat to the public if they contaminate
drinking water supply. The supporters of the measure feel
that "source" should be narrowly defined to provide
certainty of expenses.
10)Reopener Standard : Another key point of contention is on the
reopeners : The opposition contends that the agencies should
be able to require further response action from the QPO if
subsequent conditions would pose an unreasonable risk to the
environment. Currently the way in which "endangerment" is
defined, the bill only allows a "reopener" if there is a risk
to human health. This narrowing of the definition of the word
" endangerment " to apply only to public health was first
introduced in the Assembly so SB 493 may now be in conflict
with a specific amendment added in the Senate by committee
actions. The supporters assert that the policy committees of
the Senate had not meant to specifically have the conventional
interpretation apply (i.e. to both human health and the
environment), but rather left it open for further
qualification in the Assembly.
11)Immunity : Two of the most sweeping and fundamental changes
to current approaches relate to the immunity provisions. SB
493 takes property owners out of the chain of responsible
parties as a way of encouraging them to invest in brownfield
sites. This measure provides immunities (in contrast with the
"affirmative defenses" model) which must be challenged by the
agencies (rather than asserted by the QPO) if there is a
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question relating to contamination at the site.
a) Indeed, based solely on a site assessment that did not
detect contamination (and hence received an NFA), a QPO
would be entitled to the full protection of immunities that
a QPO that conducted a response action gets. These
immunities also protect the QPO against challenges, not
just under the provisions of this act, but challenges that
might be brought under all other state pollution control
laws and common law actions from agencies or third parties.
The sponsors argue that this is necessary to protect
against nuisance suits or actions by other agencies for
pollution harm not originated by them.
b) However, the opponents contend that these immunities are
much too broad because the reopeners are too narrow. Harm
to the environment is not included as mentioned above, and
statutory provisions such as Fish and Game Code Section
5650, which have been used in the past to protect fish, are
specifically blocked under this act. It places too much of
a burden on the state to act as "guarantor" for cleanups of
later "newly" discovered hazardous material which was
missed by the assessment or which is discovered while a
response action is being carried out by the QPO under this
act.
12)A word about ground lease tenants : As part of earlier
discussions, opposition had suggested using a ground lease
tenant approach as a way of meeting the same goals of SB 493
without requiring so many structural changes to California's
hazardous waste cleanup laws. Under the ground lease model, a
developer leases (instead of purchasing) a property from the
party that holds title to the property (the "owner"),
typically under a ground lease of 50 years, or longer. The
developer is able to obtain financing for the project by using
the value of the ground lease as collateral for the financing.
The "Ground Tenant" (initially the developer) pays ground
lease payments to the owner for the full term of the lease,
but otherwise retains control over the use and profit-making
potential of the property during the life of the lease. Two
of the advantages of this model is that the value of the
property will remain as a resource to pay for cleanup, and the
ground lease payments create funding sources for site
cleanups. The sponsors argued that this concept was not
practical and would not be useful for promoting brownfield
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redevelopment. However, the opposition to this bill feel that
the concept is broadly used in many types of development
projects. It may be productive to add them, at a minimum, to
the potential list of QPOs if the bill were to move forward in
this format.
Technical and Procedural matters : The language is still in
flux, and CalEPA, has written a support if amended letter, with
amendments to follow. We do not yet have all that language.
Some technical concerns have been remedied. But there are some
questions that may still need to be resolved if the measure were
to move forward.
13)For instance: Much of the process contained in this act keys
off of the agreement between the agency and the QPO that then
serves as the basis for further authority to act or to define
on what information the agency shall rely in making a
decision. This is made more significant because the public
has no role in the process until some decision is made
requiring a response action or filing of a land use
restriction with the NFA. (See page 21, lines 15-20
restricting information on which the agency acts.)
14)Although the bill says it would not be applicable in a case
where there was a petroleum release from an underground
storage tank eligible for reimbursement from the California
Underground Storage Tank Fund, that qualification seems to
allow immunity for suits regarding petroleum releases if there
is also other types of contamination as well. (Page 10,
line32-34.)
REGISTERED SUPPORT / OPPOSITION :
Support
Apartment Association of Greater Los Angeles
Bay Area Council
Building Industry Association
Building Industry Association of Southern California
CA Apartment Association
CA Association of Realtors
CA Black Chamber of Commerce
CA Building Industry Association
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Page 19
CA Business Properties Association
CA Chamber of Commerce
CA Environmental Protection Agency
CA Housing Council, Inc.
CA Manufacturers & Technology Association
CA Redevelopment Association
CA State Controller Steve Westly
California Environmental Protection Agency (if amended)
Central City Association of Los Angeles
City of East Palo Alto Redevelopment Agency
City of Duarte
Civil Justice Association of CA
Consulting Engineers & Land Surveyors of CA
Greater Riverside Chambers of Commerce
Greater Sacramento Urban League
Home Builders Association of the Central Coast
Home Ownership Advancement Foundation
Job-Center Housing Coalition
Law Offices of Reetz, Fox, & Bartlett
League of California Cities
Little Hoover Commission
Los Angeles Area Chamber of Commerce
National Coalition of Hispanic Organizations
Nisel Farmers League
People's Self-Help Housing Corporation
Ralphs/Food4Less
San Gabriel Valley Council of Government
Southern California Association of Non-Profit
Opposition
Breast Cancer Fund
Breast Cancer Action
Butte Environmental Council
Californians for Alternatives to Toxics
CA Communities Against Toxics
CA Environmental Rights Alliance
CA Partnership for Children's Health and the Environment
CA League of Conservation Voters
CA Safe Schools
Center of Environmental Health
Center for Race, Poverty and the Environment
Community Coalition for Change
Concerned Residents Initiative
Consumer Attorneys of CA
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Page 20
Del Amo Action Committee
Desert Citizens Against Pollution
Ecological Rights Foundation
Environmental Working Group
Friends of Midway Village
Heal the Bay
Marin-Goldengate Learning Disability Coalition
National Environmental Trust
Physicians For Social Responsibility
Planning and Conservation League
Sierra Club CA
South Bay CARES
Southern California Watershed Alliance
Tri-County Watchdogs
Public Trust Alliance
Philippine Action Group
Residents for a Better Alhambra
Willits Citizens for Environment Justice
Analysis Prepared by : Michael Endicott / E.S. & T.M. / (916)
319-3965