The Planning Department and the Department of Public Health (“DPH”) have joined together to propose amendments to the 1986 Maher Ordinance (SF Health Code Article 22A) in order to expand the scope of required soils testing and remediation for hazardous substances at all properties that DPH determines may cause a public health risk, as a condition of issuing a building permit. The Maher Amendments were introduced to the Land Use Committee of the Board of Supervisors on April 16, 2013.
Benefits for Developers
A significant benefit of the Maher Ordinance amendments will be their effect of authorizing the City to issue Community Plan Exemptions from CEQA, as well as categorical CEQA exemptions, as envisioned by the Eastern Neighborhoods Plan, adapted in 2008. The Eastern Neighborhoods Community Plan EIR has already performed CEQA review for properties within the Eastern Neighborhoods, in order to avoid repeating an additional CEQA review for every project. Despite the City’s certification of the Eastern Neighborhoods EIR, a conflicting view of the law by Planning Department staff caused it to require Mitigated Negative Declarations for all projects located at former gas stations and industrial properties, due solely to the need to excavate soil from the property. While excavation and testing of soil for disposal in a landfill is a routine, common-place event for nearly all development projects, the Planning staff made a determination that CEQA exemptions could not be granted where DPH had not issued a “No Further Action” letter, or case closure, for a former gas station or industrial property. CEQA Exemptions were not granted even when 95% of a property had already been excavated and the soil disposed at a landfill.
The Maher Amendments have the effect of authorizing the City to issue CEQA exemptions in cases where soil or groundwater testing or remediation is required by DPH. The Planning Department has concurred with this analysis.
In essence, the requirements of the Maher Amendments will replace the Planning Department’s current practice of requiring mitigation measures, attached to mitigated Negative Declarations, to ensure soil and groundwater investigation and remediation where indicated by prior uses of the property. This should save everyone a lot of time and energy without in any way compromising environmental safety procedures when it comes to soils issues.
Existing Law
Under existing law, in order to obtain a building permit for any project that includes excavation of at least 50 cubic yards of soil, all properties located along the City’s Eastern Shoreline must be tested by the applicant for the presence of hazardous substances. The applicant must prepare and submit to DPH a soils testing report disclosing and quantifying the presence of any hazardous substances at the property. DPH will review the report and determine the appropriate remediation for the property, if any. The Applicant is also required to submit remediation work plans to DPH for approval. The applicant is responsible for the excavation and removal of any underground storage tank and contaminated soil at the property, under DPH oversight, and for such other steps as DPH may require, including testing and remediation of groundwater contamination where appropriate.
Proposed Amendments
For nearly three decades, the Maher Ordinance has applied only to properties located along San Francisco’s Eastern Shoreline. The proposed amendments would expand the geographic scope of the Maher Ordinance to cover all properties throughout the City that (1) have the potential to contain hazardous substances, based on site histories that indicate prior use for industrial uses, gas stations, or any other uses associated with underground storage tanks or located within 100 ft. of any properties containing underground storage tanks, and (2) properties located within 150 feet of freeways. The owner must prepare a use history for all such properties, and submit the findings to the DPH for review. DPH will require soil testing and/or groundwater investigation where appropriate. DPH will also require remediation where the investigation indicates the presence or absence of any one of the materials designated by DPH as hazardous.
Property owners are required by the Maher Ordinance, as well as by State and Federal law, to notify DPH whenever hazardous substances are encountered in significant concentrations at their property. Upon notification, DPH will take jurisdiction and oversight over the investigation and remediation of the property, including both soil and groundwater. Self-help without DPH oversight would be a violation of the Maher Ordinance and should not be attempted.
Remediation of the property, once commenced, must continue until completion of a final closure report prepared by the property owner’s environmental consultant, approval of the report by DPH, and issuance by DPH of a “No Further Action” letter addressed to the owner and to the Department of Building Inspection (“DBI”). In most cases, remediation is required prior to DBI issuance of a permit to commence building the project. However, DBI retains jurisdiction to issue site permits and site permit addenda to undertake soil sampling or remediation at any time.
Notification to Buyers of Real Property
A seller or a seller’s agent involved in the sale or exchange of any real property located on any parcel of land that is subject to the Maher Ordinance (identified as such on a list to be prepared by the Director of DPH) shall provide a copy of a summary of the Maher Ordinance, prepared by DPH, to the buyer or buyers, and shall obtain a written receipt from the buyer or buyers acknowledging receipt of the DPH summary. Until the Director’s list of properties subject to the Maher Ordinance and the summary are available, sellers should provide a copy of the Maher Ordinance (SF Health Code Article 22A) to buyers for any property that may have once been used for a gas station, an auto repair shop, any type of industrial use, or that is known or suspected to have contained or released hazardous material.
The proposed Maher amendments are a welcome expansion of the City’s efforts to ensure mandatory testing and remediation of properties with a history of uses having indicators of the potential presence of hazardous materials. The proposed regulations will provide more certainty for project applicants as to their obligations with respect to investigation and cleanup of hazardous substances at their property, as well as for buyers and sellers of real property. And it will finally coordinate local CEQA and DPH processes when it comes to soils issues.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.
