Local Agencies Empowered to Order the Cleanup of Contaminated Properties - Assembly Bill 440 Provides Agencies Immunity from Liability For Cleanup Efforts

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Gov. Brown recently signed Assembly Bill 440 into law, providing an important tool for local agencies to force the cleanup of contaminated properties within their borders. AB 440 builds upon the Polanco Redevelopment Act (Act), which allowed a redevelopment agency to clean contaminated property within its jurisdiction itself or by bringing a legal action to require the responsible parties to clean the property. The new law will go into effect January 1, 2014.

AB 440 effectively revives the Act, which was made ineffective by the California legislature-ordered disbandment of redevelopment agencies in 2012. The bill allows local agencies -- including cities, counties and some housing authorities -- to take actions similar to those provided in the Act. Specifically, the bill gives a local agency the authority to identify contaminated or “blighted” properties, require property owners to turn over all environmental information concerning the property (including any environmental assessments), and order property owners to prepare phase I environmental assessments and phase II investigations. The law also allows local agencies to develop a site cleanup plan in conjunction with the Department of Toxic Substances Control (DTSC) and/or a Regional Water Quality Control Board (RWQCB). As an alternative, the property owner may be required to develop the cleanup plan and conduct the cleanup.

Additionally, AB 440 grants local agencies that clean up a contaminated property with immunity from potential liability resulting from release of hazardous materials specifically identified in an approved cleanup plan. Finally, if a local agency decides to perform the cleanup of the contaminated property itself, it may recover the cleanup costs, including attorneys’ fees, from the property owner.