BILL ANALYSIS
SB 143
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: SB 143
AUTHOR: Cedillo
AMENDED: As Introduced
FISCAL: Yes HEARING DATE: April 20, 2009
URGENCY: No CONSULTANT: Bruce Jennings
SUBJECT : HAZARDOUS MATERIALS: CALIFORNIA LAND
REUSE AND REVITALIZATION ACT OF 2004
SUMMARY :
Existing law :
1) Pursuant to both federal and state law, establishes an
extensive and complex series of programs authorizing public
agencies to order owners of contaminated property,
including "brownfields" to conduct cleanups of these
properties, including the following:
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;
b) The Carpenter-Presley-Tanner Hazardous Substance
Account Act (commencing with Section 25300 of the Health
and Safety Code), commonly referred to as the State
Superfund Program;
c) Division 7 of the Water Code (commencing with Section
13000), commonly referred to as the Porter-Cologne Water
Quality Control Act);
d) Article 12.5 of the Health and Safety Code
(commencing with Section 33459), commonly referred to as
the Polanco Redevelopment Act;
e) Chapter 6.10 of the Health and Safety Code
(commencing with Section 25401), commonly referred to as
the Escutia Law;
SB 143
Page 2
f) Chapter 6.65 of the Health and Safety Code
(commencing with Section 25260), commonly referred to as
the Unified Agency Review of Hazardous Substance Release
Site law or the "AB 2061" process;
g) Article 8.5 of the Health and Safety Code (commencing
with Section 25395.10), commonly referred to the CLEAN
Program (Clean Loans and Environmental Assistance to
Neighborhoods; and,
h) Article 8.7 of Chapter 6.8 of the Health and Safety
Code (commencing with Section 25395.40), commonly
referred to as the FAIR Program (Financial Assurance and
Insurance for Redevelopment).
2) Pursuant to the California Land Reuse and Revitalization
Act of 2004 (CLRRA), provides qualified innocent
landowners, bona fide purchasers or contiguous property
owners with immunity from liability for certain hazardous
materials response costs or other damages based on meeting
stipulated conditions, including the following:
a) Participants agree to assess and cleanup the property
as necessary;
b) Participants seeking to qualify for immunity must
enter into an agreement with an oversight agency;
c) Response actions must be as protective of public
health and the environment as actions required by
relevant cleanup standards contained in the Health and
Safety and Water Codes.
The Act is repealed as of January 1, 2010, unless another
enacted statute deletes or extends that date.
This bill deletes the repeal date of CLRRA, thereby continuing
the Act indefinitely. The bill also would repeal the
provisions providing for continued immunity after repealing
the Act.
COMMENTS :
SB 143
Page 3
1) Purpose of Bill . SB 143 would eliminate the sunset on the
California Land Reuse and Revitalization Act and expedite
cleanup and provide liability protection to purchasers of
property that did not cause contamination, and to encourage
the acquisition and reuse of environmentally impaired
properties.
2) Background . The original purpose of CLRRA (the statute for
which this measure seeks to eliminate the sunset) was
stated as follows "The underutilization of brownfields in
the state results in environmental, social, and economic
detriments to the state and citizens?.The estimated 120,000
brownfields in California represents an opportunity for the
development of housing, parks and mixed use developments.
3) An Incomplete Scientific Basis for Health-based
Protections ? In recent decades, the contamination of
industrial sites has principally involved a very small
universe of toxic substances, such as lead and petroleum.
With the advent of newer scientific findings, which have
fueled initiatives such as the Governor's Green Chemistry
programs, there is a widening recognition that modern
contaminants include a much broader array of substances
which can affect health at levels previously considered de
minimus.
This broader array of contaminants frequently lack even the
basics for their proper regulation: agreed upon methods for
detection and analysis in the environment, standards for
remediation and cleanup; or an understanding of how
combinations of contaminants interact and may pose hazards
greater than the individual chemical constituents. Since
much headway is being achieved with advances in the
knowledge regarding chemicals in humans and the
environment, would it not be prudent to extend the sunset
on this program until greater knowledge can be brought to
the fore regarding the proper cleanup of potential hazards?
4) The Economic Value and Consequences of CLRRA? During the
legislative hearings surrounding the enactment of this
legislation, the proponents touted the extensive interest
and support among both developers and communities that
SB 143
Page 4
would seemingly lead to a large number of such projects
around the state. The result has been something less than
monolithic with only a handful of sites having been
completed or initiated under this law. The reasons, of
course, are various and there is recognition that growing
such projects takes time. Nevertheless, the limited number
of projects completed pursuant to this Act (4 projects -
according to the Department of Toxic Substances Control
(DTSC)) indicates that it may be prudent to extend, rather
than eliminate, the sunset on this program to determine
whether there is, in fact, a demonstrated need and value
for continuing this program.
5) Toxic Assets: The State's Liability for CLRRA Sites? What
is the State's liability for sites that have been certified
by DTSC and subsequently found to have contaminants that
were not recognized at the time of the original agreement
to provide immunity for liability for the developer? The
immunities that attach when a person enters into a CLRRA
agreement apply only to the releases subsequently
identified in the site assessment or response plan. And
immunities can be withdrawn if a release poses an
unreasonable risk. But if the owner did not cause or
contribute to the release, the resulting liability is much
less clear and in at least certain circumstances would
appear to rest with the state. The financial risk to the
state at this early stage, however, is difficult to assess.
6) Extending the Sunset? There are many virtues to sunset
legislatively mandated programs, including the opportunity
for the Legislature to revisit the performance and value of
such programs. To date, there is only a limited basis for
evaluating the performance of CLRRA. The economic
consequences of this CLRRA, especially with regard to the
state's potential liability for chemical contamination,
suggests that there are substantial unknown features. If
the Committee believes that it is prudent to subject this
program to fuller review, the bill should be amended to
replace the existing law with a later sunset (e.g., March
1, 2014).
7) Support Rationale . The CLRRA program has been utilized in
the last several years in at least 16 different instances.
SB 143
Page 5
Four of these properties have already completed the
remediation process and now are shining examples of the
importance of this program. All of these examples
transformed underutilized contaminated infill property into
much needed housing. CLRRA provides those willing to
develop Brownfield infill sites the promise of prompt
decision making by the agency overseeing the cleanup, while
ensuring full cleanup to existing standards and a robust
public outreach process. Except in limited circumstances,
a purchaser that complies with the program's requirements
no longer has liability for future cleanup obligations
should there be any - that liability remains with the
original polluter.
8) Double Referral to Senate Judiciary Committee . If this
measure is approved by this committee, the do pass motion
must include the action to re-refer the bill to the Senate
Judiciary Committee.
SOURCE : Senator Cedillo
SUPPORT : American Federation of State, County and
Municipal Employees (AFSCME), AFL-CIO,
California Major Builders Council, California
Redevelopment Association
OPPOSITION : None on file