BILL NUMBER: AB 2436 CHAPTERED
BILL TEXT
CHAPTER 592
FILED WITH SECRETARY OF STATE SEPTEMBER 16, 2002
APPROVED BY GOVERNOR SEPTEMBER 15, 2002
PASSED THE ASSEMBLY AUGUST 29, 2002
PASSED THE SENATE AUGUST 27, 2002
AMENDED IN SENATE AUGUST 21, 2002
AMENDED IN SENATE AUGUST 7, 2002
AMENDED IN SENATE AUGUST 5, 2002
AMENDED IN SENATE JUNE 20, 2002
AMENDED IN SENATE JUNE 11, 2002
AMENDED IN ASSEMBLY MAY 7, 2002
AMENDED IN ASSEMBLY APRIL 18, 2002
AMENDED IN ASSEMBLY APRIL 1, 2002
INTRODUCED BY Assembly Member Frommer
(Coauthors: Assembly Members Alquist and Cohn)
FEBRUARY 21, 2002
An act to amend Section 1471 of the Civil Code, to add Section
57012 to the Health and Safety Code, and to amend Section 13307.1 of
the Water Code, relating to the environment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2436, Frommer. Land use restrictions: cleanup and abatement.
(1) Existing law requires the Department of Toxic Substances
Control to notify the planning and building department of each city,
county, or regional council of governments of certain land use
restrictions imposed upon property designated as hazardous waste
property or border zone property, sites listed for remedial or
removal action, and remedial action land use controls. Existing law
requires the planning department of those local agencies to file
those restrictions and take specified actions and authorizes the
city, county, or regional council to assess a fee to cover the costs
of taking those actions. Existing law requires the department to
maintain this list of land use restrictions in a specified manner and
to make the list available electronically, as specified.
This bill would require the California Environmental Protection
Agency (Cal-EPA), the California Integrated Waste Management Board,
the State Water Resources Control Board, each California regional
water quality control board, and the department to maintain a list of
all instruments and agreements restricting land uses imposed by
those agencies and would require the list to provide specified
information. The bill would require each agency to update its list,
as specified. The bill would require each agency to display the list
on the agency's Web site and to make the list available to the
public upon request.
The bill would require Cal-EPA to oversee the implementation of
these requirements, including maintaining hyperlinks on its Web site
to the individual lists, providing a search function to search and
retrieve information from each of the individual lists, and creating
and posting a list of all instruments and agreements restricting land
uses that would be imposed by the bill with regard to Environmental
Restriction covenants, as specified in (3) below.
(2) The Porter-Cologne Water Quality Control Act prohibits the
state and the regional boards from considering cleanup or site
closure proposals from the primary or active responsible discharger,
issuing a closure letter, or making a determination that no further
action is required, with respect to a site subject to a cleanup or
abatement order, unless all current record owners of fee title to the
site of the proposed action have been notified, as specified.
This bill would additionally, if the state board or regional board
finds the property is not suitable for unrestricted use and that a
land use restriction is necessary for the protection of public health
or safety or the environment, prohibit the state board or regional
board from taking those actions with regard to a site that is not an
underground storage tank site, unless a land use restriction is
recorded or required to be recorded.
(3) Existing law provides for the recording of an instrument
containing an Environmental Restriction covenant made by an owner of
land or by the grantee of land to do or refrain from doing an act
that is reasonably necessary to protect present or future human
health or safety or the environment as a result of the presence on
the land of hazardous materials.
This bill would authorize the office of the county recorder, if an
instrument containing an Environmental Restriction covenant is
recorded, to send a certified copy of the instrument to the Cal-EPA
for posting on its Web site, for informational purposes only,
pursuant to the requirements imposed by the bill, except as
specified. The bill would provide the office of the county recorder
and any of its employees immunity from any liability under any state
law or in any action for damages if the office of the recorder does
not send a certified copy of the instrument pursuant to the
requirements of the bill.
The bill would authorize the office of the recorder to assess a
reasonable fee, as determined by resolution of its governing body, to
cover the costs of taking the action authorized by the bill.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1471 of the Civil Code is amended to read:
1471. (a) Notwithstanding Section 1468 or any other provision of
law, a covenant made by an owner of land or by the grantee of land to
do or refrain from doing some act on his or her own land, which
doing or refraining is expressed to be for the benefit of the
covenantee, regardless of whether or not it is for the benefit of
land owned by the covenantee, shall run with the land owned by or
granted to the covenantor if all the following requirements are met:
(1) The land of the covenantor that is to be affected by the
covenant is particularly described in the instrument containing the
covenant.
(2) The successive owners of the land are expressed to be bound
thereby for the benefit of the covenantee in the instrument
containing the covenant.
(3) Each act that the owner or grantee will do or refrain from
doing relates to the use of land and each act is reasonably necessary
to protect present or future human health or safety or the
environment as a result of the presence on the land of hazardous
materials, as defined in Section 25260 of the Health and Safety Code.
(4) The instrument containing the covenant is recorded in the
office of the recorder of each county in which the land or some
portion thereof is situated and the instrument includes in its title
the words: "Environmental Restriction."
(b) Except as provided by Section 1466 or as specifically provided
in the instrument creating a covenant made pursuant to this section,
the covenant shall be binding upon each successive owner, during his
or her ownership, of any portion of the land affected thereby and
upon each person having any interest therein derived through any
owner thereof.
(c) If several persons are subject to the burden of a covenant
recorded pursuant to this section, it shall be apportioned among them
pursuant to Section 1467, except if only a portion of the land is so
affected thereby, the apportionment shall be only among the several
owners of that portion.
(d) This section shall apply to the mortgagee, trustee, or
beneficiary of a mortgage or deed of trust upon the land or any part
thereof while, but only while, he or she, in that capacity, is in
possession thereof.
(e) (1) If an instrument containing a covenant is recorded
pursuant to paragraph (4) of subdivision (a) as an "Environmental
Restriction," in accordance with this section, the office of the
recorder of the county may send a certified copy of the instrument to
the California Environmental Protection Agency, for posting on its
Web site, for informational purposes only, pursuant to Section 57012
of the Health and Safety Code, unless the instrument indicates that
it is required by a board or department specified in paragraphs (1)
to (3), inclusive, of subdivision (d) of Section 57012 of the Health
and Safety Code.
(2) Notwithstanding any provision of law, the office of the
recorder of the county and any of its employees shall not be subject
to any liability under any state law or in any action for damages if
the office of the recorder does not send a certified copy of the
instrument pursuant to paragraph (1).
(f) The office of the recorder of the county may assess a
reasonable fee, as determined by resolution of its governing body, to
cover the costs of taking the action authorized by subdivision (e).
SEC. 2. Section 57012 is added to the Health and Safety Code, to
read:
57012. (a) Each agency listed in subdivision (d) shall maintain a
list of all instruments and agreements restricting land uses imposed
by that agency under Section 1471 of the Civil Code or any provision
of law that is administered by that agency, in accordance with all
of the following requirements:
(1) The list shall provide a description of location for each
property that, at a minimum, provides the street address and the
assessor's parcel number. If a street address or assessor's parcel
number is not available, or if a street address or assessor's parcel
number does not adequately describe the property affected by the
instrument or agreement restricting land use, the list shall include
a description of location or the location's geographic coordinates.
(2) The list shall provide a description of any restricted uses of
the property, contaminants known to be present, and any remediation
of the property, if known, that would be required to allow for its
unrestricted use. The recorded instrument or agreement restricting
land uses may be provided in lieu of the description required by this
paragraph.
(3) Each agency shall update its list as new instruments and
agreements restricting land uses are recorded and as instruments and
agreements restricting land uses on properties are changed.
(b) Each agency listed in subdivision (d) shall display the list
required under subdivision (a) on that agency's Web site, and shall
make the list available to the public upon request.
(c) The California Environmental Protection Agency shall oversee
the implementation of this section. In overseeing the implementation
of this section, the California Environmental Protection Agency
shall do all of the following:
(1) Maintain on its Web site hyperlinks to the individual lists
posted pursuant to this section.
(2) Provide a search function that is able to search and retrieve
information from each of the individual lists posted pursuant to this
section.
(3) Create and post a list of all instruments and agreements
restricting land uses that have been sent pursuant to subdivision (e)
of Section 1471 of the Civil Code. The list created and posted
pursuant to this paragraph shall meet all of the following
requirements:
(A) The list shall identify the entity or jurisdiction that
imposed the instrument or agreement restricting land uses.
(B) The list shall include the information required by paragraphs
(1) and (2) of subdivision (a).
(C) The list shall be maintained for informational purposes only.
(D) The list shall contain a notation that information regarding
the listed properties has been provided voluntarily, that the list is
not all-inclusive, and that there may be additional sites where
instruments or agreements restricting land uses have been imposed by
other entities that have not been included on the list.
(d) This section applies to the California Environmental
Protection Agency and to all of the following entities within the
agency:
(1) The California Integrated Waste Management Board.
(2) The State Water Resources Control Board, and each California
regional water quality control board.
(3) The Department of Toxic Substances Control.
SEC. 3. Section 13307.1 of the Water Code is amended to read:
13307.1. (a) The state board and the regional boards shall not
consider cleanup or site closure proposals from the primary or active
responsible discharger, issue a closure letter, or make a
determination that no further action is required with respect to a
site subject to a cleanup or abatement order pursuant to Section
13304, unless all current record owners of fee title to the site of
the proposed action have been notified of the proposed action by the
state board or regional board.
(b) The state board and regional boards shall take all reasonable
steps necessary to accommodate responsible landowner participation in
the cleanup or site closure process and shall consider all input and
recommendations from any responsible landowner wishing to
participate.
(c) In addition to the requirements of subdivision (a), if the
state board or the regional board finds that the property is not
suitable for unrestricted use and that a land use restriction is
necessary for the protection of public health, safety or the
environment, then the state board and the regional boards may not
issue a closure letter, or make a determination that no further
action is required, with respect to a site that is subject to a
cleanup or abatement order pursuant to Section 13304 and that is not
an underground storage tank site, unless a land restriction is
recorded or required to be recorded pursuant to Section 1471 of the
Civil Code.