BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 143
Senator Cedillo
As Amended April 23, 2009
Hearing Date: April 28, 2009
Health & Safety Code
BCP:jd
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, bona fide
purchaser, or 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 The CLRRA will be repealed on January 1, 2010,
unless that date is deleted or extended.
This bill would extend the date of repeal to January 1, 2017,
and make a corresponding change to a provision that provides for
continued immunity after the repeal of the Act.
BACKGROUND
Brownfields remain a continuing problem in California and
nationwide. Those properties represent abandoned, idled, or
under-used sites formerly utilized for industrial or commercial
purposes, resulting in perceived, or actual contamination that
deters redevelopment of the site. As clean up costs can be
expensive, especially when uncovering unexpected hazardous
materials during the cleaning of the site, many of the sites
remain vacant for many years. Specifically in California, the
California Environmental Protection Agency (Cal/EPA) states:
Cal/EPA's regulatory boards and departments play an
essential role in cleaning up contaminated sites to protect
(more)
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public health and the environment. However, with an
estimated 90,000 properties in California that remain idle
or underutilized because of real or perceived environmental
contamination, it is clear that sufficient public resources
could never be allocated to accomplish this goal.
California's brownfields will not be restored to productive
use without significant participation by the private sector.
Discovering mutually beneficial ways to involve investors
in the future of these polluted properties is crucial.
Traditionally, the federal Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) and various state laws,
including the Carpenter-Presley-Tanner Hazardous Substance
Account Act, generally provided that current and previous owners
of contaminated property are jointly and severally liable for
the cost of clean up of hazardous materials released on a site.
(Joint and several liability means that all parties are
potentially liable for the entire amount. If one party finds
itself paying more than its fair share of the total liability,
that party may seek to collect against other responsible
parties, but may still be held liable for the total amount.)
In 2002, the federal CERCLA was modified 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. Subsequently, in
2004, California enacted the CLRRA, providing innocent
landowners, bona fide purchasers, and contiguous property
owners, who did not cause or contribute to a release, with a
qualified immunity. To take advantage of the provided immunity,
qualifying individuals must enter into an agreement with an
oversight agency that would require the individual to undertake
various tasks relating to cleanup of the hazardous materials on
the property.
Pursuant to its provisions, the CLRRA will sunset on January 1,
2010, but any individual who qualifies for immunity as of
December 31, 2009, would retain their immunity, as specified.
This bill would extend that sunset date, by seven years, to
January 1, 2017, and make a conforming change to the provision
that provides for continued immunity.
This bill was approved by the Senate Committee on Environmental
Quality on April 20, 2009.
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CHANGES TO EXISTING LAW
Existing law generally provides for joint and several liability
for current and previous owners of property for the "response
costs" (cost of clean up) incurred by the government or any
other party associated with the contamination of a site by
hazardous materials. (Federal CERCLA, 42 USC 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, 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 at this site; or (2) agency action to
require the individual to take a response action, other than the
response action required in an approved 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
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
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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 will repeal the CLRRA on January 1, 2010, unless a
subsequent law repeals that requirement. Existing law,
operative January 1, 2010, provides that any individual who
qualifies for immunity as of December 31, 2009, retains their
immunity, provided that they remain in compliance with the
requirements of the CLRRA. (Gov. Code Secs. 25395.109,
25395.110.)
This bill would extend the repeal date to January 1, 2017. This
bill would additionally extend the operative date of the
provision that provides for qualified immunity to January 1,
2017.
COMMENT
1. Stated need for the bill
According to the author,
Senator Cedillo was the principal co-author of the CLRRA and
was instrumental in its development because he believed that
the existing liability scheme deterred sale and
redevelopment of contaminated properties that could be
returned to a purpose useful to the community. Although
parties responsible for polluting should always be held
responsible for clean-up, innocent buyers should not bear
the same level of responsibility for clean-up as long as
human health is protected.
The author further notes that the five-year sunset was included
so that the Legislature could review the program and its
effectiveness. The California Major Builders Council (CMBC), in
support, contends that the CLRRA "is a statute which has a
proven track record that the legislature should be proud to
extend."
2. Effectiveness of the CLRRA
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Pursuant to the California Land Reuse and Revitalization Act of
2004, innocent landowners, bona fide purchasers, and contiguous
property owners are eligible for immunity from liability for
certain hazardous materials response costs and other damages, if
certain criteria are met. To receive that immunity, qualifying
individuals must, among other things, enter into an agreement
with an oversight agency. That agreement must "include[] 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.) Those required actions, generating a site assessment
plan, implementing and reporting on the plan, and possible
response actions, result in the cleanup of the property, in
exchange for that qualified immunity. Thus, by providing that
immunity, the CLRRA was intended to encourage the redevelopment
of certain brownfield sites.
As noted above, the author maintains that a five-year sunset was
included in AB 389 (Montanez, 2004) to ensure that the
Legislature could review the program and determine whether it
has been an effective tool for revitalizing polluted sites. It
should be noted that AB 389 was a gut-and-amend on August 27,
2004 - the prior contents of AB 389 were stricken and replaced
with SB 493 (Cedillo, 2004) (which was held on the suspense file
in the Assembly Appropriations Committee). While the committee
analyses for AB 389 and SB 493 (Cedillo, 2004) do not
specifically state the rationale for including the sunset,
generally sunsets are included as a tool to provide the
Legislature with evidence of a program's effectiveness.
In support of this bill, the author notes that 20 sites have
been approved under the CLRRA - sixteen are in the process of
clean up and four have been cleaned up and revitalized. The
four sites that have been cleaned up are: (1) the Walker Landing
Affordable Housing Project in Hayward (site of a former food
processing plant); (2) a 1.8 acre site purchased by Habitat for
Humanity in Oakland; (3) a 5.4 acre site in downtown San Diego;
and (4) a 5.8 acre property in the City of Los Angeles. The
author also maintains that:
Compared to all other Brownfield programs administered by
the Department of Toxic Substances Control (DTSC), CLRRA is
only surpassed by the Voluntary Clean-Up Program in terms of
its use. CLRRA is one of a number of programs that serve as
important tools to achieve clean-up of contaminated sites.
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Its continued use is important to encourage non-polluting
buyers to seek out infill sites in which they would not
pursue without the liability protection offered through
CLRRA.
3. No opposition to extending the sunset
The Committee received no opposition to the extension of the
sunset. Committee staff further notes that no information has
been submitted that would indicate that the qualified immunity
granted by the CLRRA has resulted in any issues or injustice.
The California Major Builders Council (CMBC), in support,
further contend:
With the enactment of AB 32 (Nunez) and SB 375 (Steinberg),
there will be increasing need for redeveloping previously
contaminated infill sites to provide housing. SB 143
ensures that CLRRA will remain a vital tool available for
putting underutilized contaminated properties to productive
use to serve future housing needs.
Support : California Major Builders Council
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 2144 (Montanez, Chapter 562, Statutes of 2006), revised the
public participation procedures required in the response plan,
under the CLRRA, for different agencies with oversite over the
clean up of certain brownfield sites.
AB 389 (Montanez, Chapter 705, Statutes of 2004), created the
California Land Reuse and Revitalization Act of 2004.
SB 493 (Cedillo, 2004), as amended June 16, 2004, would have
enacted the California Land Reuse and Revitalization Act. That
bill died in the Assembly Appropriations Committee.
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Prior Vote : Senate Committee on Environmental Quality (Ayes 7,
Noes 0)
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