BILL ANALYSIS
SB 143
Page 1
Date of Hearing: June 23, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 143 (Cedillo) - As Amended: April 23, 2009
PROPOSED CONSENT
SENATE VOTE : 39-0
SUBJECT : HAZARDOUS MATERIALS: CALIFORNIA LAND REUSE AND
REVITALIZATION ACT OF 2004
KEY ISSUE : SHOULD THE SUNSET DATE FOR THE CALIFORNIA LAND REUSE
AND REVITALIZATION ACT BE EXTENDED UNTIL JANUARY 1, 2017?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
This non-controversial bill seeks to extend the sunset date for
the California Land Reuse and Revitalization Act ("the Act")
until January 1, 2017, and makes a corresponding change to make
the provisions authorizing continued immunity after repeal of
the Act operative on January 1, 2017. The sponsor of the bill
is the principal co-author of the Act and was instrumental in
its development and facilitating its passage into law in 2004.
Citing the robust, ongoing use and demonstrated success of the
program in cleaning up and redeveloping contaminated sites,
supporters contend that a seven year extension of the sunset
date is warranted. This bill ensures that qualified immunity
earned through participation in the program will be continuous
and unaffected by potential repeal or renewal of the program
itself upon arrival of the prescribed sunset date. This bill
has no known opposition and did not receive any "no" votes in
the Senate or in the Assembly Environmental Safety & Toxics
Committee.
SUMMARY : Seeks to extend the sunset date for the California
Land Reuse and Revitalization Act ("the Act") until January 1,
2017, and makes a corresponding change to make the provisions
authorizing continued immunity after repeal of the Act operative
on January 1, 2017.
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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
and Safety Code Section 25300 et seq.; Hazardous Waste Control
Law, Health and Safety Code Section 25100 et seq.; Keene
Underground Storage Tank Cleanup Trust Fund Act; Health and
Safety Code Section 25299 et seq.)
Existing law, the California Land Reuse and Revitalization Act,
Chapter 6.82 of Division 20 of the Health & Safety Code
(commencing with Section 25395.60):
1)Requires individuals seeking to qualify as bona fide
purchasers, innocent landowners, or contiguous property owners
for the purpose of seeking immunity from liability to:
a) Make all appropriate inquiries into the previous
ownership and uses of the site.
b) Exercise appropriate care with respect to the release or
threatened release of hazardous materials at the site.
c) Provide full cooperation, assistance, and access to a
person authorized to conduct response actions or natural
resource restoration at the site.
d) Comply with land use controls established or relied on
in connection with an approved response action at the site.
e) Not impede the effectiveness or integrity of any aspect
of any remedy employed at the site in connection with a
response action.
f) Comply with all requests for information or
administrative subpoenas by an agency with jurisdiction.
g) Provide all notices, and satisfy reporting requirements
under state and federal law with respect to the hazardous
materials at the site. (Health & Safety Code Section
25395.80.)
2)Requires individuals seeking to qualify as bona fide
purchasers, innocent landowners, or contiguous property owners
for the purpose of seeking immunity from liability to enter
into an agreement with an agency (defined as the Department of
Toxic Substances Control (DTSC), the State Water Resources
Control Board (SWB), or a California regional water quality
control board.) Further requires that agreement to include
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performance of a site assessment, and, if the agency
determines that a response plan is necessary, the preparation
and implementation of the response plan. (Health & Safety
Code Section 25395.92.)
3)Provides qualified innocent landowners, bona fide purchasers,
and contiguous property owners who did not cause or contribute
to the release of hazardous materials at a contaminated site
with specified immunity from:
a) Claims for response costs or other damages associated
with a release or threatened release of a hazardous
material at the contaminated site; and
b) 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 & Safety Code Section 25395.81.)
4)Shall remain in effect only until January 1, 2010, and as of
that date is repealed, unless a later enacted statute, that is
enacted before January 1, 2010, deletes or extends that date.
(Health & Safety Code Section 25395.109.)
COMMENTS : This bill seeks to extend the sunset date for the
California Land Reuse and Revitalization Act (CRRLA, "the Act")
until January 1, 2017, and makes a corresponding change to make
the provisions authorizing continued immunity after repeal of
the Act operative on January 1, 2017. The author, Senator
Cedillo, was also the principal co-author of the Act and was
instrumental in its development and facilitating its passage
into law in 2004.
The Act promotes the cleanup and redevelopment of contaminated
"brownfield" sites.
Brownfields remain a continuing problem in California and
nationwide. These properties are abandoned, idled, or
under-used sites formerly utilized for industrial or commercial
purposes, with varying degrees of 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
years.
According to the California Environmental Protection Agency
(CalEPA):
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CalEPA's regulatory boards and departments plan an
essential role in cleaning up contaminated sites to
protect public health and the environment. However,
with an estimated 90,000 [brownfield] properties in
California . . . 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 property 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 not
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.
Author's Statement : According to the author, the Act deserves
to be extended past the upcoming repeal date because it is a
useful tool that serves a vital purpose. The author writes in
support:
The CLRRA serves as a tool to encourage landowners and
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potential buyers of contaminated property, who did not
know or contribute to the pollution, to clean-up the
human health risks caused by the pollution and
redevelop the property. 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.
Since 2005, twenty sites have been approved under
CLRRA. Sixteen are in the process of clean-up and
four have been cleaned-up and revitalized. Compared
to all other Brownfield programs administered by the
Department of Toxic Substance Control (DTSC), CLRRA is
only surpassed by the Voluntary Clean-up Program in
terms of its use. Its continued use is important to
encourage non-polluting buyers to seek out properties
which they would not pursue without the liability
protection offered through CLRRA.
Examples of completed projects : According to information
provided by the author, there are at least four examples under
CLRRA in which a formerly contaminated brownfield site was
cleaned up and restored to current environmental standards that
protect human health and safety. These include sites in the
following cities:
1) Hayward: Constructed on a 3.5 acre site of a former
food processing plant, the Walker Landing Affordable
Housing Project provides 78 affordable housing units.
2) Oakland: Habitat for Humanity-East Bay purchased a 1.8
acre site that was a former plant nursery and constructed
28 homes for very low and low-income families in Oakland.
3) San Diego: Studio 15 Housing Partners constructed a
275-unit affordable housing complex on a 5.4 acre site in
downtown San Diego. Over the past 50 years, the site had
been used for a chemical warehouse, automotive shop and
manufacturing site for stained glass lighting.
4) Los Angeles: A 298 unit, multi-family apartment building
was constructed on 5.8 acre property formerly used for
vehicle repair and other commercial uses.
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Qualified immunity under this bill is continuous and does not
suddenly expire should the bill expire on the sunset date .
Pursuant to its sunset date clause, the CLRRA will be repealed
on January 1, 2010 (unless it is extended before that date), but
any individual who qualifies for immunity as of December 31,
2009, will retain their immunity, as specified. This bill
extends the sunset date of the Act by seven years, until January
1, 2017, and makes a conforming change to the provision that
provides for continued immunity to qualified participants.
ARGUMENTS IN SUPPORT : The California Major Builders Council,
citing the positive track record of the program, writes in
support of the bill:
The CLRRA program has been utilized in the last
several years in at least 16 different instances.
Four of these properties have already completed the
remediation process and are now shining examples of
the importance of this program. All of these examples
transformed underutilized contaminated infill property
into much needed housing. This is a statute which has
a proven track record that the Legislature should be
proud to extend.
REGISTERED SUPPORT / OPPOSITION :
Support
California Major Home Builders
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334