By: Norman A. Dupont, Esq. Ring Bender LLLP Environmental contamination and the City Attorney: How to unlock your city’s hidden gold By: Norman A. Dupont, Esq. Ring Bender LLLP

The problem—the contaminated dragon guarding the real property gold

Three legal tools for the City Attorney to consider

Tool no. 1—CLRRA CLRRA—the California Land Reuse and Revitalization Act of 2004 (Health & Safety Code Secs. 25395.60-25395.109). CLRRA purposes include: “encourage the development and redevelopment of unused or underused properties in urban areas.” (Sec. 25395.61(d)). *CLRRA definition of “urban area” includes “an incorporated city.” (Sec. 25395.79.2(c)(2)).

What urban areas are covered?

CLRRA’s process—an overview An eligible prospective landowner (“innocent” purchaser) enters into an agreement with an “agency” (DTSC/Regional Water Board) to investigate and remediate as necessary. (Sec. 25359.92) Before finalizing an agreement, the agency shall notify others, including the “host jurisdiction”, i.e., the city or county in which the site is located. If response plan is submitted, then agencies, including “host jurisdiction” shall be asked for comments on proposed plan.

CLRRA’s end product—Certificate of completion Agency shall issue “certificate of completion” when work plan is completed. Agency can issue certificate if all response actions, “other than long-term operation and maintenance at the site” have been completed. (Sec. 25395.97(2)). What’s a certificate: Not defined in CLRRA, but Health & Safety Code Sec. 25264(c) provides that: “the issuance of a certification of completion by the administering agency shall constitute a determination that the responsible party has complied with the requirements of all state and local laws, ordinances, regulations and standards that are applicable to the site investigation. . .”

Tool No. 2-Gatto Act Health & Safety Code Ch. 6.10, Secs. 25403-25403.8 Replaces Polanco Act provisions limited to redevelopment agencies with new provisions allowing a “local agency” including a city to “take any action that the local agency determines is necessary. . .to investigate or clean up a release from a “blighted area”. “Blighted property” is property where presence of . . . hazardous material” “contributes to vacancies, abandonment of property or reduction or lack of proper utilization of property.” Sec. 25403(b).

Gatto Act—notice letters and cost recovery suits City may give 60-day clean up notice to party determined to be responsible. If no response responsible party, then city may act to remediate. (25403.1 (b)(2). City may seek clean up costs including reasonable atty’s fees and interest on costs incurred. (25403.5(a)).

Gatto Act—immunities for completed remediation If local agency (or DTSC/Regional Board) determine cleanup is complete, then may provide a “certificate of completion” which explicitly incorporates the broad definition of that term in Sec. 25264 of Health & Safety Code. Sec. 25264 provides that cleanup stands up against any other state or local law, ordinance standard.

Gatto Act immunity—the gold standard

NEW. From the Court of Appeals— Tool no NEW! From the Court of Appeals— Tool no. 3-- “duty to properly remediate” OCWD v. SABIC Innovative Plastics US, ___Cal. App. 5th___2017 WL 3326959.

Slip op. at p. 71—negligence based on “improper remediation”

Will these 3 tools lead the City Attorney to the pot of gold without the contamination dragon?