California Department of Resources Recycling and Recovery (CalRecycle) 

Landfill Postclosure Land Use Symposium

Polanco Act Non-Applicability to Actions Taken by LEA/CalRecycle at Solid Waste Disposal Sites

November 2006

This paper responds to questions and concerns raised by local enforcement agencies (LEA) regarding the applicability of the Polanco Redevelopment Act to solid waste disposal sites. The paper is in two parts. The first part is an analysis of the extent, if any, of interplay between the Polanco Act (Act) and the Integrated Waste Management Act (IWMA). The second part addresses specific issues raised by LEAs.

Caveat: This is a preliminary analysis for limited guidance purposes only, as it is restricted to a review of the statutory language of the Polanco Act (Health and Safety [H&S] Code Section 33459 et seq.) only and does not include an examination of case law interpreting the Act, if any, or case studies of implementation of the Act, if any.

Analysis

The California Environmental Protection Agency’s (CalEPA) Brownfields and Toxic Substances Programs provide the following summary of the Act:

The Polanco Redevelopment Act (AB 3193, Chapter 1113, Statutes of 1990, Polanco), part of the Community Redevelopment Act, was enacted to assist redevelopment agencies in responding to brownfields properties in their redevelopment areas. It prescribes processes for redevelopment agencies to follow when cleaning up a hazardous substance release in a redevelopment project area. It also provides immunity from liability for redevelopment agencies and subsequent property purchasers for sites cleaned up under a cleanup plan approved by the DTSC or a Regional Board. The Polanco Redevelopment Act has become a widely used tool by redevelopment agencies to guide and pursue redevelopment of brownfields. Redevelopment agencies requesting approval of their cleanup plans under the provisions of the Polanco Act are required to reimburse DTSC’s and the Regional Boards’ oversight costs.

CalEPA’s view that the applicability of the Act is limited to “cleaning up a hazardous substance release… under a cleanup plan approved by the Department of Toxic Substances Control (DTSC) or a Regional Water Quality Control Board (RWQCB) is in accord with the language of the Act. H&S Code 33459.1(a) preliminarily states that the Act concerns “actions … to remedy or remove a release of hazardous substances on, under, or from property, under a “cleanup plan approved by the department [of toxic substances control] or the California regional water quality control board.

Moreover, as recently noted by the legislature in the context of “burn dump legislation, that while the Board (now CalRecyle) and LEAs have “general authority and responsibility over “solid waste disposal sites, the Board is not one of the State agencies which have “general jurisdiction, authority, and responsibility over “hazardous substance release sites. Consistent with the Polanco Act, such jurisdiction, authority and responsibility is limited to DTSC and the State Water Resources Control Board and Regional Water Quality Control Boards. (Public Resources Code 48022.)

Based on the foregoing, there appears to be little interplay between the Polanco Act and the IWMA. Pursuant to the terms of the Polanco Act and consistent with long-standing law, the Board/LEAs do not appear to have any jurisdiction, authority, or responsibility to regulate and/or oversee the remediation of hazardous substance releases (with the limited exception of burn ash at solid waste disposal sites, with DTSC and Water Board consent, and other possible limited exceptions), and similarly have no jurisdiction, authority, or responsibility to approve any cleanup plan for such releases, or provide any immunity (limited or otherwise) relating to such a cleanup.

With respect to a property which is a candidate for remediation under the Polanco Act and which is also a solid waste disposal site, any remediation of the solid waste would still need to be performed consistent with the IWMA. Moreover, there are no immunity provisions in the IWMA commensurate with the Polanco Act. Nevertheless, a landowner may remediate the solid waste at his site in such a manner that the site is no longer deemed a disposal site and thus no longer within the Board/LEA’s jurisdiction. For example, in cases where a site is deemed to have been “clean closed by a landowner, upon approval of the remediation the site is no longer listed as a solid waste disposal site in the Board’s Solid Waste Information System (SWIS) Database and is no longer subject to postclosure maintenance standards or inspections by the LEA (with the exception of sites which are subsequently determined to have not been properly clean closed). This is consistent with the Polanco Act, as hazardous substance release cleanups generally involve the removal of the hazardous substances (or the substantial reduction of such substances to target levels which are deemed to no longer pose a threat). Thus in cases where the landowner elects to remove the hazardous substance and “clean close the solid waste site, he could receive Polanco Act immunity from DTSC and the Water Board, as well as be removed from the Board’s list of solid waste disposal sites, freeing him from postclosure maintenance obligations and further LEA inspections.

If, however, the landowner elects an alternative remediation to clean closure (such as a “consolidate and cap option which is sometimes available), then the IWMA’s requirements of continued compliance with postclosure maintenance standards and inspections by the LEA with respect to the solid waste remain, notwithstanding any grant of Polanco Act immunity by DTSC and/or the Water Board with respect to the hazardous substances. These postclosure maintenance standards include, but are not limited to, the control of explosive methane gas (which is not deemed a hazardous substance under the Polanco Act–see section 33459(c) of the Act which references H&S Code 25281). The Board’s authority in this regard is referenced in the Polanco Act, which requires that a redevelopment agency obtain written approval from the CIWMB prior to taking or causing to take a remedial or removal action at a project site if methane or landfill gas is present (H&S Code 33459.1[a][2]). Board approval appears to be limited to ensuring that the remedial or removal action(s) would not exacerbate the migration of methane gas so that concentrations would exceed the regulatory limits or result in an adverse impact to public health and safety or the environment.

The Board’s regulation of methane gas generally relates to the build-up of the potentially explosive gas in structures within the site and control of the gas at the boundaries of the site (as adjacent landowners may erect structures at the boundary, where the build-up of the gases may pose an explosive threat). Since the production of methane will continue for long periods of time, the Board/LEA would not consider any remedial or removal action to be complete, with respect to landfill gas, until the landowner could demonstrate that the waste would no longer pose a threat by establishing that landfill gas could no longer be produced in the landfill or that any gas that could be produced would be inconsequential and could not impact public health and safety or the environment.

Specific Issues

Classification of Methane Gas as a Hazardous Substance: The definition of a hazardous substance for the purposes of the Act is contained in section 33459(c) which references H&S Code 25281. Based on a preliminary review of the provisions of the Act and the referenced H&S Code, these provisions do not appear to identify methane (or landfill gas) as a hazardous substance subject to remediation under that Act. CIWMB staff makes no ascertainment as to whether methane (or landfill gas) may be considered a hazardous substance under other statutes and/or regulations for purposes other than compliance with the Act.

Issuance of Immunity Letter: Under the Act the issuance of immunity applies only to the DTSC, a RWQCB, and, under specified circumstances, a local agency. Therefore, neither the CIWMB nor the LEA need issue any immunity letter or similar documentation. The Act specifically references the California Water Code and the H&S Code as State laws from which immunity would be granted. Although the Act also refers generally to freedom from liability from “other state or local law providing liability for remedial or removal actions for releases of hazardous substances, since methane (and landfill gas) is not considered a hazardous substance subject to remediation under the Act, immunity would not apply to the long-term control of landfill gas.

Furthermore, immunity only applies upon proper completion of the remedial or removal action for a hazardous substance in accordance with an approved remedial action plan. Again, since methane (and landfill gas) is not considered a hazardous substance subject to remediation under the Act, immunity would not apply to the long-term control of landfill gas. Moreover, since the production of methane will continue for long periods of time, CIWMB staff would not consider the remedial or removal action to be complete, with respect to landfill gas, until the responsible party (owner and/or operator) could demonstrate that the waste would no longer pose a threat to public health and safety or the environment by proving that landfill gas could no longer be produced in the landfill or that any gas that could be produced would be inconsequential and could not impact public health and safety or the environment.

Approval of the Remedial Action Plan (RAP) by Regulatory Agencies: The only reference to the CIWMB in the Act is the last sentence of 33459.1(a)(2) which requires that a redevelopment agency obtain written approval from the CIWMB prior to taking or causing to take a remedial or removal action at a project site if methane or landfill gas is present. It is CIWMB staff opinion that written approval does not apply to approval of the entire RAP. Approval of the CIWMB is limited to ensuring that the remedial or removal action(s) would not exacerbate the migration of methane gas so that concentrations would exceed the regulatory limits or result in an adverse impact to public health and safety or the environment.

We hope this provides some clarity and direction regarding the non-applicability of the Polanco Act to actions taken by the LEA/Board at solid waste disposal sites.

Last updated: December 5, 2006
LEA Training, http://www.calrecycle.ca.gov/LEA/Training/
Martin Perez: Martin.Perez@calrecycle.ca.gov (916) 323-0834