AB 440 Gives Local Authorities the Tools to Tackle Brownfields After the Dissolution of Redevelopment Agencies
By Marc Shapp
Financing the redevelopment of a brownfield property is typically what stalls a project. Hunsucker Goodstein assists clients with the redevelopment of brownfield properties by maximizing funding sources to return property to a valuable community asset. New legislation, AB 440 has made it easier for local agencies to take control of “blighted property” within their boundaries and move forward with their re-use.
On January 1, 2014, AB 440 became law in California. Previously known as the Polanco Redevelopment Act, the law empowered redevelopment agencies to investigate and clean up a release of hazardous materials within the redevelopment agency’s boundaries in a manner consistent with state and federal laws. The agencies received immunity for environmental liability and enabled to seek reimbursement for the investigation and cleanup. With the dissolution of redevelopment agencies in 2012, AB 440 sets out procedures to allow “local agencies” (i.e., a city, county, or housing authority assuming the housing functions of a former redevelopment agency) to engage in similar activities.
Local agencies are empowered to require the investigation and cleanup of contaminated sites within their borders, or perform the investigation and cleanup of such sights. Completing the investigation and cleanup in accordance with AB 440 confers immunity for environmental liability associated with the release of hazardous materials, and provides for the extension of that immunity to third-party purchasers or developers of the property. Furthermore, local agencies that incur costs pursuant to the law can seek reimbursement from parties responsible for releases of hazardous materials. However, AB 440 imposes various limitation and requirements on the investigation and cleanup activities it describes in order for local agencies to qualify for immunity and reimbursement.
First, AB 440 applies to “blighted properties” within “blighted areas.” “Blighted area” means an area in which the local agency determines there are vacancies, abandonment of property, or a reduction or lack of proper utilization of property, and the presence or perceived presence of a release of hazardous material contributes to the vacancies, abandonment of property, or reduction or lack of proper utilization of property. “Blighted property” means property with the presence or perceived presence of a release or releases of hazardous material that contributes to the vacancies, abandonment of property, or reduction or lack of proper utilization of property.
Second, the blight determination depends on the findings of a Phase I or Phase II environmental assessment, as defined by the American Society for Testing and Materials (ASTM). Local agencies have several options for obtaining the results of environmental assessments: (1) the owner of a site within the local agency’s boundaries is required to provide the results of an assessment (Phase I, Phase II, or any other type of assessment), if available; (2) a local agency may require the owner of a site to conduct an assessment at the owner’s expense; or, (3) a local agency may conduct the assessment itself. If a local agency conducts its own environmental assessment, AB 440 grants local agencies right of entry to the property, upon reasonable notice, to conduct the assessment. Additionally, the costs associated with performing the assessment are subject to reimbursement.
Third, investigation and cleanup activities must follow specific procedures. For example, local agencies must coordinate their investigation and cleanup activities with the Department of Toxic Substances Control (DTSC) or the appropriate Regional Water Quality Control Board (Regional Board). Investigation and cleanup plans must be prepared by an independent qualified contractor, and then approved by DTSC or the Regional Board. In addition, local agencies may only conduct investigation and cleanup activities when either (1) a responsible party cannot be found; or, (2) the responsible party fails to either propose or agree to an investigation or cleanup plan within allotted time periods (60 days to propose a plan or an additional 60 days to implement an agreed-upon plan); or, (3) a responsible party fails to perform an agreed-upon plan. Importantly, the limitation preventing local agencies from acting without first attempting to reach agreement with a responsible party does not apply to a local agency performing a Phase I or Phase II assessment in accordance with standard real estate practices,  or in the case of an imminent threat to human health or the environment.
Finally, if a local agency completes a cleanup to the satisfaction of DTSC or the Regional Board (or the other designated agency, if applicable), then the local agency will receive immunity for environmental liability associated with the release. Furthermore, a local agency’s immunity extends to the following additional persons: (1) employees and agents of the local agency; (2) a person that enters into an agreement with the local agency for the development of the property, if the agreement requires that person to acquire the blighted property or to clean up the hazardous material release; and, (3) a person that acquires the property subsequent to the person that agreed to develop it. That is, when a local agency successfully performs or causes to be performed the investigation and cleanup of a blighted property, environmental liability for that property is cut off for future owners with respect to the hazardous material release that caused the property to become blighted in the first place.
 Local Agencies can designate an agency other than DTSC or the Regional Board to supervise the cleanup site if the designated agency a Certified Unified Program Agency and the site is an underground storage tank site.
 The term “standard real estate practices” is not defined in the statute.
Stacey Myers presented as part of a CLE webinar concerning the scope of preemption of state law claims for the American Law Institute on February 18. Common law nuisance claims have historically been an essential tool of environmental law, modern environmental laws notwithstanding. This is a hot topic in the wake of the Third Circuit’s decision in Bell v. Cheswick Generating Station, 734. F.3d 188 (3d Cir. 2013) which held that the Clean Air Act does not preempt common law tort claims, even where the facility is in compliance with a permit. There is a very long history of common law claims of nuisance and trespass for pollution in this country. “The deepest doctrinal roots of modern environmental law are found in principles of nuisance. Nuisance actions have involved pollution of all physical media - air, water, land - by a wide variety of means....Nuisance theory and case law is the common law backbone of modern environmental and energy law.” William H. Rodgers, Jr., Handbook on Environmental Law § 2.1, at 100 (2d ed.1977). The Clean Air Act and Clean Water Act are modern tools of environmental law, and expressly preserve the long-used common law causes of action. It has always been the case that compliance with a permit does not mean a regulated entity has free reign to cause a nuisance to its neighbor. Environmental laws like the Clean Air Act do not address all areas of air pollution, and common law nuisance fills gaps such as air pollution at the local neighborhood level or sources of air pollution that are exempt from Clean Air Act regulations. In addition, the Supreme Court has ruled that where a suit is brought in the state that is the source of the alleged pollution, the Clean Water Act does not preempt common law nuisance claims. International Paper v. Ouellette, 479 U.S. 481 (1987). This holding was extended to the Clean Air Act, and followed by the Third Circuit in Bell, which held that “the Clean Air Act does not preempt state common law claims based on the law of the state where the source of the pollution is located.” Bell v. Cheswick Generating Station, 734 F.3d. at 197. State common law claims have always been and will continue to be a vital piece of the environmental law equation, one that the regulated community must continue to stay cognizant of.
Recyclers Say NCR Should Cover Full $1B For River Cleanup
Los Angeles (November 19, 2013, 8:28 PM ET) -- Recycling mills on Monday asked
the Seventh Circuit not to hold them liable for any of the $1 billion in cleanup costs for pollution at a Wisconsin river, alleging they didn't know NCR Corp. was using a toxic chemical in its
Georgia-Pacific LLC and other mills and municipal wastewater facilities argued there was no genuine issue of material fact precluding a Wisconsin federal court from issuing a summary judgment that ordered NCR to cover all the response costs.
The paper manufacturer and Appvion Inc., f/k/a Appleton Papers Inc., claimed the district judge should have required the allocation of costs to be proportional to the amount of polychlorinated biphenyl, or PCBs, each party discharged into Wisconsin's Lower Fox River.
But NCR's affiliates — which also include U.S. Paper Mills Corp., CBC Coating Inc., Fort James Corp. and Menasha Corp. — contend they didn't know of any environmental risks associated with the chemical until after NCR stopped using it at the Superfund site.
"NCR uniquely knew of the environmental risks of the PCBs in its paper but concealed that risk from defendants, government officials and the public while accelerating production," Monday's brief said. "Defendants, in contrast, knew nothing about any potential risks until after NCR stopped using PCBs."
The plaintiffs and defendants allegedly contaminated sediment in the Fox River and Green Bay by making and recycling a particular type of carbonless copy paper that contained PCBs from 1954 until 1971. The U.S. Department of Justice sued 10 companies and two municipalities over the alleged pollution in October 2010.
NCR argued that its share of liability for the cleanup was relatively small because its experts demonstrated that only 9 percent and 6 percent of the PCB pollution in the sections of the Little Fox River at issue came from its paper production facilities.
A Wisconsin district judge decided that though the defendants may have may have been responsible for up to half of the PCBs discharged into the polluted sites, they weren't liable for the cleanup because they didn't know the chemicals could cause lasting damage to health and the environment, according to court papers.
But extensive discovery in the litigation revealed that NCR knew about the PCB risks since at least the late 1960s and hid that information, according to the defendants.
The plaintiffs also said on appeal that the district court hadn't considered other PCB sources besides NCR, but the defendants countered Monday that the judge found that the overwhelming majority of PCBs in the river originated from NCR's paper.
Georgia-Pacific and others further claimed that NCR allegedly cooperating more with the federal government's order to clean up the Superfund site didn't mean it should be excused from any of the cleanup costs.
Besides, according to the defendants, NCR hasn't acknowledged its own sluggishness in responding to the risks associated with PCBs after discovering them. Instead, the paper manufacturer covered up the risks in order to avoid a public relations crisis and avoid a potential drop in sales, according to the defendants.
Attorneys for both parties didn't immediately respond to requests for comment on Tuesday.
NCR is represented by Evan Chesler and Darin McAtee of Cravath Swaine & Moore LLP.
Georgia-Pacific and Fort James Corp. are represented by Mary Rose Alexander of Latham & Watkins LLP and Kathleen M. Sullivan, William B. Adams and David S. Mader of Quinn
Emanuel Urquhart & Sullivan LLP.
U.S. Paper Mills is represented by Scott W. Hansen and Steven P. Bogart of Reinhart Boerner Van Deuren SC, and Thomas R. Gottshall of Haynsworth Sinkler Boyd PA.
CBC Coating is represented by Susan E. Lovern and Michael P. Carlton of Von Briesen & Roper SC.
Menasha is represented by Philip C. Hunsucker, Allison E. McAdam, Marc A. Shapp, and Anne E. Lynch of Hunsucker Goodstein PC.
The consolidates cases are NCR Corp. et al. v. George A. Whiting Paper Co. et
al., case numbers 13-2447 in the U.S. Court of Appeals for the Seventh Circuit.
--Additional reporting by Lana Birbrair. Editing by Stephen Berg.
Hunsucker Goodstein is pleased to announce that Andrew Cooper has
joined the firm in its Washington DC office.
Drew has practiced in the area of environmental law for over 22 years focusing on transactions, compliance counseling, and litigation, advising clients as purchasers, sellers, lenders, and borrowers. His extensive background in environmental litigation includes CERCLA contribution claims, diminution of property value claims, penalty proceedings under environmental
statutes and insurance recovery litigation for environmental damage. He has successfully identified, addressed, and negotiated environmental concerns in literally hundreds of transactions.
Drew earned a Bachelor of Arts degree from Yale University and a Juris Doctor degree from the University of Pennsylvania Law School. Drew’s depth of experience will strengthen Hunsucker Goodstein’s comprehensive environmental practice.
Hunsucker Goodstein PC serves clients nationwide in the environmental, insurance coverage, and securities arbitration practice areas.
Michael Goodstein and Stacey Myers authored a chapter in the 2013 International Comparative Legal Guide to Environment and Climate Change Law. Their submittal is entitled "Funding Remediaiton of Environmentally Impaired Properties: Strategies That Maximize Resources
Anne Lynch Named Shareholder of Hunsucker Goodstein PC
Washington, DC – Hunsucker Goodstein PC is pleased to announce that Anne Lynch has been named a Shareholder of the firm. Ms. Lynch represents both private and public clients, including major corporations and small businesses, Indian Tribes and States on a variety of environmental litigation and transactional issues. Her recent work has included:
- Summary judgment granted in favor of policyholders recognizing their insurance company had a duty to defend for environmental claims at the Breslube Penn Superfund Site in Pennsylvania.
- Discovery, motion practice and presentation of evidence at trial on behalf of defending parties and third-party plaintiffs in remedy, cost recovery and natural resources damages litigation regarding the Fox River Superfund Site in Wisconsin.
- Landmark appellate litigation under Arizona public nuisance law on behalf of the Hopi Tribe.
- Discovery, motion practice and presentation of evidence at trial on behalf of the State of North Carolina in air pollution litigation against the Tennessee Valley Authority.
Ms. Lynch holds a Bachelor of Science degree from Notre Dame University and a Juris Doctor degree from Georgetown Law School. Hunsucker Goodstein PC continues to serve clients nation-wide in the environmental, insurance coverage, and securities arbitration practice areas from offices in California, Colorado, and Washington, DC.
International Municipal Lawyers Association’s President, Sheryl King Benford, has
named Philip Hunsucker, Chairman of the organization’s Health and Environmental Section.
Phil Hunsucker of Hunsucker Goodstein PC is pleased to lead this section.
Hunsucker Goodstein has worked with municipalities on environmental and
regulatory issues throughout the United States. The International Municipal
Lawyers Association is a non-profit, non-partisan organization that has been an
advocate and valuable legal resource for local government attorneys since
1935. President Benford added “Active sections are vital to the continued
success of IMLA as a relevant and valuable resource for local government
attorneys throughout the United States and Canada.”
SAND CREEK MASSACRE DESCENDANTS FILE SUIT FOR PROMISED REPARATIONS
“It’s time for the United States to make good on its promises under the Treaty,” said David Askman, attorney for the descendants. “It is unconscionable that the government has waited so long.”
Denver, CO - Around sunrise on November 29, 1864, Colonel John Chivington ordered United States cavalry troops to attack peaceful bands of the Cheyenne and Arapaho Tribes camped on the banks of Sand Creek, near Fort Lyon, Colorado. Though flying the American flag and a white flag of truce, hundreds of Native Americans, mostly the elderly, women, and children, were killed and mutilated.
Descendants of persons massacred by the United States Cavalry near Sand Creek, Colorado, filed suit today against the United States in the U.S. District Court in Denver. The plaintiffs are each descendants of victims of the November 29, 1864 massacre. Through the suit, the descendants are seeking an accounting of monies the United States agreed to pay to survivors.
Both the United States Congress and the military initiated investigations of the massacre. In the 1865 Treaty of Little Arkansas, the United States recognized “the gross and wanton out-rages perpetrated” by the cavalry, and agreed to pay reparations to the surviving families of those “who suffered at Sand Creek.” The descendants have never been paid.
“It’s time for the United States to make good on its promises under the Treaty,” said David Askman, attorney for the descendants. “It is unconscionable that the government has waited so long.”
Homer Flute, a Sand Creek massacre descendant and Trustee of the Sand Creek Massacre Descendants Trust, welcomed the filing. “It has been nearly 150 years since our ancestors were deceived by a promise of peace and safety by flying the American flag and a white flag of truce in their camp at Sand Creek. Colonel Chivington, commanded the U.S. troops in the murder and mutilation of our ancestor. Most of those slaughtered were old men, women, and children who believed the promises of the government of the United States—a promise broken. Colorado territorial governor John Evans also served as ex officio superintendent of Indian affairs in Colorado, used his position to send special messengers to our ancestors, directing them to report to the nearest military fort with the promise of safety and protection. Another promise was made in the 1865 Treaty, and, like the first, has been broken. It is now time for the government to keep its word to the descendants. There are more than 15,000 descendants who have been identified at this time. They deserve the fulfillment of the broken promises.”
Mr. Askman is representing the descendants with Larry Derryberry of Derryberry & Naifeh in Oklahoma City, and Jason Aamodt of the Environmental Trust Law Firm in Tulsa.
April 25, 2013
Contact Person: Michael D. Goodstein, (202) 895-5380
HOPI TRIBE WINS APPEAL REVERSING ARIZONA SUPERIOR COURT’S DECISION ON ITS PUBLIC NUISANCE CLAIM AGAINST THE CITY OF FLAGSTAFF
FOR IMMEDIATE RELEASE
WASHINGTON, DC --- The Arizona Court of Appeals has reversed a prior decision by the Arizona Superior Court dismissing the complaint filed by the Hopi Tribe against the City of Flagstaff claiming that the City’s contract to sell reclaimed wastewater to the Arizona Snowbowl will cause a public nuisance. The Arizona Court of Appeals unanimously held that the Hopi Tribe’s nuisance claim states a claim for public nuisance under Arizona law, is timely, and is not barred by its prior litigation against the U.S. Forest Service concerning the Forest Service’s issuance of a permit to the Arizona Snowbowl for certain upgrades including the use of reclaimed wastewater for snowmaking.
The Arizona Court of Appeals summarized the Hopi Tribe’s allegation that “treated sewage effluent that has been processed through the City’s wastewater treatment plants . . . retains certain recalcitrant chemical components that are not degraded or removed in the wastewater treatment process, some of which are harmful to animals,” and that the sale of reclaimed wastewater for snowmaking at the Snowbowl will “interfere with the public use and enjoyment of the surrounding land.”
The Court recognized that, under Arizona common law, public nuisance claims are assessed by balancing the reasonableness of the use against the harm, considering the nature of the area. The Court found that the allegations in the Hopi Tribe’s complaint were sufficient to allege a nuisance under this standard. The City had also argued that the Hopi Tribe had not complied with Arizona law requiring it to file a notice of its claim with the City, that the Hopi Tribe’s claim was barred by the statute of limitations, and that the nuisance claim was precluded because the Tribe had previously participated in litigation against the U.S. Forest Service concerning the permit it issued to the Arizona Snowbowl. Each of these arguments was rejected, and the Court remanded the case to the Arizona Superior Court.
The decision remands the case to the Arizona Superior Court for proceedings on the Hopi Tribe’s public nuisance claim. Robert Lyttle, General Counsel for the Hopi Tribe stated that “the use of reclaimed wastewater for snowmaking by Arizona Snowbowl violates of Arizona common law, and the Arizona Court of Appeals correctly recognized that the Hopi Tribe must be allowed to present its case.” Hopi Tribe Chairman Leroy Shingoitewa confirmed: “Snowmaking with reclaimed wastewater on Nuvatukyaovi is wrong. The use of reclaimed wastewater by the Snowbowl has impeded and infringed on the use and enjoyment of these areas by the Hopi Tribe and others who value the pristine nature of the Kachina Peaks Wilderness Area. We look forward to the opportunity to present our environmental and public health evidence. ”
The Arizona Snowbowl used reclaimed wastewater from the City of Flagstaff for snowmaking on a portion of the ski resort this past winter. The San Francicso Peaks, where the Snowbowl is located, is ecologically unique and contains rare types of habitat and species. The area around the Arizona Snowbowl had been used by the Hopi Tribe since time immemorial and is of cultural and religious significance to the Hopi Tribe.