BILL NUMBER: AB 389 CHAPTERED
BILL TEXT
CHAPTER 705
FILED WITH SECRETARY OF STATE SEPTEMBER 23, 2004
APPROVED BY GOVERNOR SEPTEMBER 23, 2004
PASSED THE ASSEMBLY AUGUST 28, 2004
PASSED THE SENATE AUGUST 27, 2004
AMENDED IN SENATE AUGUST 27, 2004
AMENDED IN SENATE AUGUST 23, 2004
AMENDED IN SENATE AUGUST 17, 2004
AMENDED IN SENATE JUNE 15, 2004
AMENDED IN SENATE JUNE 1, 2004
AMENDED IN ASSEMBLY JANUARY 15, 2004
AMENDED IN ASSEMBLY JANUARY 5, 2004
AMENDED IN ASSEMBLY APRIL 10, 2003
INTRODUCED BY Assembly Member Montanez
(Principal coauthor: Senator Cedillo)
(Coauthor: Senator Sher)
FEBRUARY 14, 2003
An act to add Chapter 6.83 (commencing with Section 25395.110) to,
and to add and repeal Chapter 6.82 (commencing with Section
25395.60) of, Division 20 of, the Health and Safety Code, relating to
hazardous materials.
LEGISLATIVE COUNSEL'S DIGEST
AB 389, Montanez. Hazardous materials: brownfields.
Existing law, the Carpenter-Presley-Tanner Hazardous Substance
Account Act, imposes liability for hazardous substances removal or
remedial actions.
Existing law, including the Porter-Cologne Water Quality Control
Act and the provisions regulating hazardous waste and releases from
underground storage tanks, imposes various requirements with regard
to corrective action and cleanup and abatement, upon persons subject
to those acts.
This bill would enact the California Land Reuse and Revitalization
Act of 2004, which would provide that an innocent landowner, a bona
fide purchaser, or a contiguous property owner, as defined, qualifies
for immunity from liability for response cost or damage claims under
specified state statutory and common laws that impose liability upon
an owner or occupant of property, for pollution conditions caused by
a release or threatened release of a hazardous material on, under,
or adjacent to that property, if the innocent purchaser, bona fide
purchaser, or contiguous property owner meets specified conditions.
The bill would prohibit an agency, as defined, from requiring an
innocent landowner, bona fide purchaser, or contiguous property owner
to take a response action under those state laws, other than a
response action required in an approved response plan. The bill
would, if there are unrecovered response costs incurred by an agency,
at a site for which an owner of the site is not liable as a bona
fide purchaser, require the agency to have a lien on the site, or
authorize the agency to obtain from the owner a lien on other
property or other assurance of payment for the unrecovered response
costs, as specified.
This bill would authorize a court, in an action for contribution
or recovery of response costs incurred at a site, to award reasonable
attorneys' fees and experts' fees to an innocent landowner, bona
fide purchaser, or contiguous landowner, as specified.
This bill would require the California Environmental Protection
Agency, by March 31, 2005, to develop a form containing specified
information that a bona fide purchaser, innocent landowner, or
contiguous property owner who is subject to immunity would be
required to complete and submit to the agency. The bill would
require the agency, by July 1, 2005, and annually thereafter, to
submit a report to the Legislature compiling this data and comparing
brownfield response actions completed by agencies under the act with
other similar response actions.
The bill would require a bona fide purchaser, innocent landowner,
or contiguous property owner who seeks to qualify for the immunity
provided by the act to enter into an agreement with an agency that
includes the performance of a site assessment, and if the agency
determines that a response plan is necessary, the preparation and
implementation of a response plan. The bill would require a person
who enters into an agreement to reimburse the agency that enters into
the agreement for all agency costs.
The bill would require a person who enters into an agreement with
an agency for oversight of a site assessment to submit a site
assessment plan to the agency. The bill would require the agency to
evaluate the adequacy of the site assessment plan to ensure that it
contains all necessary information and, after evaluating the site
assessment plan, if the agency finds that the plan is adequate, the
agency would be required to approve the plan and provide notification
to appropriate persons.
The bill would require a person, after implementing the site
assessment plan, to submit a report of its findings to the agency.
The bill would require the agency, based upon a review of this
information, to determine whether a response action is necessary to
address any unreasonable risk from hazardous materials at the site.
If the agency determines that a response action is necessary to
prevent or eliminate an unreasonable risk, the bill would require the
bona fide purchaser, innocent landowner, or contiguous property
owner to submit a response plan to the agency to conduct a response
action at the site. The bill would require the agency to evaluate
the adequacy of the response plan and to approve the plan if the
agency makes specified findings.
The bill would authorize a response plan to require the use of a
land use control that imposes appropriate conditions, restrictions,
and obligations on land use or activities if, after completion of the
removal and remedial actions specified in the response plan,
hazardous substance materials remain at the site at a level that is
not suitable for the unrestricted use of the site, pursuant to a
specified procedure. The bill would authorize the Department of
Toxic Substances Control to exclude any portion of a response action
conducted entirely onsite from certain hazardous waste facilities
permit requirements.
The bill would repeal the act on January 1, 2010, but would
provide that a person who is subject to immunity pursuant to the act
before January 1, 2010, would continue after that date to have that
immunity, if the person continues to be in compliance with the
requirements of the act.
The bill would require the Department of Toxic Substances Control
to revise and upgrade the department's database systems to enable
compatibility with the existing databases of the State Water
Resources Control Board, as specified, by January 1, 2006, and would
require the California Environmental Protection Agency, the
department, the California regional water quality control boards, and
the State Water Resources Control Board, to expand their respective
Web sites, by January 1, 2006.
The bill would authorize the Department of Toxic Substances
Control to expend any grant received pursuant to certain provisions
of the federal Small Business Liability Relief and Brownfield
Revitalization Act for state response programs, to implement the
database provisions, to the extent the activities are in accordance
with the terms and conditions of the grant.
The bill would require the Secretary for Environmental Protection
to designate a brownfields ombudsperson, with specified duties.
The bill would authorize a bonafide purchaser to enter into a
consultative services agreement, with the Department of Toxic
Substances Control, as specified.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 6.82 (commencing with Section 25395.60) is
added to Division 20 of the Health and Safety Code, to read:
CHAPTER 6.82. CALIFORNIA LAND REUSE AND REVITALIZATION ACT OF
2004
Article 1. Legislative Findings and Intent
25395.60. The Legislature finds and declares all of the
following:
(a) There are thousands of properties in the state where
redevelopment has been hindered due to real or perceived hazardous
materials contamination. Cleaning up these sites and returning them
to productive use will benefit the communities in which they are
located and the state as a whole.
(b) Contamination of property in the state has hampered
redevelopment, which in turn has limited job creation, economic
revitalization, and the full and productive use of the land.
(c) Private developers, local governments, and schools are
reluctant to acquire or redevelop these properties due, at least in
part, to concerns regarding liability associated with historic
contamination. Instead, they focus new development on clean areas
that present fewer complications and lower risk of liability.
(d) This has resulted in a multitude of problems, including urban
sprawl, decaying inner-city neighborhoods and schools, public health
and environmental risks stemming from contaminated properties, lack
of development at former manufacturing sites and rural areas in need
of economic investment, and reduced tax bases.
25395.61. It is the intent of the Legislature, in enacting this
chapter, to do all of the following:
(a) Establish the cleanup and reuse of these sites in a manner
protective of public health and safety and the environment as a
priority of the state.
(b) Relieve innocent owners, bona fide prospective purchasers, and
owners of property adjacent to contaminated sites of liabilities and
responsibilities that should be borne by those who caused or
contributed to the contamination.
(c) Encourage process efficiencies that continue to ensure that
cleanups are protective of public health and safety and the
environment.
(d) Encourage the development and redevelopment of unused or
underused properties in urban areas.
(e) Establish a voluntary process for bona fide purchasers,
innocent landowners, and contiguous property owners to make certain
the extent of their liability, if any, under state law for hazardous
materials contamination caused by other persons, without otherwise
altering existing state law regarding liability for hazardous
materials releases.
25395.62. This chapter shall be known, and may be cited, as the
"California Land Reuse and Revitalization Act of 2004."
Article 2. Definitions
25395.63. The definitions set forth in this article and in
Article 6 (commencing with Section 25395.90) shall govern the
interpretation of this chapter. If a term is not otherwise defined
in this chapter, the definition contained in Chapter 6.8 (commencing
with Section 25300) shall apply to that term.
25395.64. "Agency" means the department, the board, or a regional
board.
25395.65. "All appropriate inquiries" has the following meanings:
(a) Except as provided in subdivision (c), until the date when the
standards and practices established by the Administrator of the
United States Environmental Protection Agency pursuant to Section 101
(35)(B)(ii) of the federal act (42 U.S.C. Sec. 9601(35)(B)(ii)) are
adopted and take effect, "all appropriate inquiries" means:
(1) For property acquired on or before December 1, 2000,
compliance with American Society for Testing and Materials Standard
El 527-97 entitled "Standard Practice for Environmental Site
Assessment": Phase 1 Environmental Site Assessment Process.
(2) For property acquired after December 1, 2000, compliance with
American Society for Testing and Materials Standard El 527-00.
(b) Except as provided in subdivision (c), on and after the date
when the standards and practices established by the Administrator of
the United States Environmental Protection Agency pursuant to Section
101(35)(B)(ii) of the federal act (42 U.S.C. Sec. 9601(35)(B)(ii))
are adopted and take effect, "all appropriate inquiries" means
compliance with those standards, except that any portion of the
inquiry that includes the practice of engineering or the practice of
geology shall be carried out in conformance with applicable state
statute.
(c) If the property is used solely for residential use and has
four or fewer units at the time of acquisition by a nongovernmental
or noncommercial entity, "all appropriate inquiries" means that a
site inspection and title search does not reveal a basis for further
investigation.
25395.66. "Applicable law" means all of the provisions of the
following state statutory and common laws that impose liability on an
owner or occupant of property for pollution conditions caused by a
release or threatened release of hazardous material on, under, or
adjacent to the property:
(a) Title 1 (commencing with Section 3479) of, Title 2 (commencing
with Section 3490) of, and Title 3 (commencing with Section 3501)
of, Part 3 of Division 4 of the Civil Code.
(b) Chapter 2 (commencing with Section 731) of Title 10 of Part 2
of the Code of Civil Procedure, but not including Section 736 of the
Code of Civil Procedure.
(c) Section 5650 of the Fish and Game Code.
(d) Chapter 6.7 (commencing with Section 25280), Chapter 6.75
(commencing with Section 25299.10), and Chapter 6.8 (commencing with
Section 25300), of this division.
(e) Chapter 1 (commencing with Section 13000) to Chapter 5
(commencing with Section 13300), inclusive, of Division 7 of the
Water Code.
(f) State common law regarding contribution, nuisance, trespass,
and equitable indemnity.
25395.67. "Appropriate care" means either of the following:
(a) The performance of a response action, with respect to
hazardous materials found at a site, for which the agency makes the
determination specified in paragraph (1) of subdivision (c) of
Section 25395.96 and that meets all of the following conditions:
(1) The response action is determined by an agency to be necessary
to prevent an unreasonable risk to human health and safety or the
environment, as defined in Section 25395.90.
(2) The response action is performed in accordance with a response
plan approved by the agency pursuant to Article 6 (commencing with
Section 25295.90).
(3) The approved response plan includes a provision for oversight
and approval of the completed response action by the agency pursuant
to Article 6 (commencing with Section 25295.90).
(b) A determination that no further action is required pursuant to
Section 25395.95.
25395.68. "Board" means the State Water Resources Control Board.
25395.69. (a) "Bona fide purchaser" means a person, or a tenant
of a person, who acquires ownership of a site on or after January 1,
2005, and who establishes all of the following by a preponderance of
the evidence:
(1) All releases of the hazardous materials at issue at the site
occurred before the person acquired the site, except as described in
paragraph (2).
(2) All of the conditions of Section 25395.80 to qualify as a bona
fide purchaser have been met.
(3) The person is not potentially liable, or affiliated with any
other person who is potentially liable, for the release or threatened
release at the site through any of the following circumstances:
(A) Any direct or indirect familial relationship.
(B) Any contractual, corporate, or financial relationship, unless
the contractual, corporate, or financial relationship is created by
the instrument by which title or possession to the site is conveyed
or financed or a contract for the sale of goods or services.
(C) The result of a reorganization of a business entity that was
potentially liable for the release or threatened release of hazardous
materials at the site.
(b) For purposes of this section, "release" does not include
passive migration.
25395.70. (a) "Contiguous property owner" means a person who owns
a site that is adjacent to or otherwise similarly situated with
respect to another site that is, or may be, contaminated by a release
or threatened release of a hazardous material and that is not owned
by that person, and who demonstrates, by a preponderance of the
evidence, all of the following:
(1) The person did not cause, contribute, or consent to the
release or threatened release.
(2) At the time the person acquired the property, the person made
all appropriate inquiries and did not know and had no reason to know
of the release or threatened release at the site.
(3) All of the conditions of Section 25395.80 to qualify as a
contiguous property owner have been met.
(4) The person is not potentially liable, or affiliated with any
other person who is potentially liable, for the release at issue
through any of the following circumstances:
(A) Any direct or indirect familial relationship.
(B) Any contractual, corporate, or financial relationship, unless
the contractual, corporate, or financial relationship is created by
the instruments by which title or possession to the site is conveyed
or financed or a contract for the sale of goods or services.
(C) The result of a reorganization of a business entity that was
potentially liable for the hazardous materials.
(b) For purposes of this section, "release" does not include
passive migration.
25395.71. "Department" means the Department of Toxic Substances
Control.
25395.72. "Endangerment" means a condition that poses an actual
and unreasonable risk to human health and safety arising from actual
or threatened exposure to hazardous materials.
25395.73. "Fair market value" means the price a seller is willing
to accept and a buyer willing to pay on the open market and in an
arm's length transaction.
25395.74. "Hazardous material" has the same meaning as defined in
subdivision (d) of Section 25260.
25395.75. (a) "Innocent landowner" means a person who owns a
site, did not cause or contribute to a release or threatened release
at the site, meets the conditions to qualify as an "innocent
landowner" specified in Section 25395.80, and is any one of the
following:
(1) A person who, at the time the person acquired the property,
made all appropriate inquiries and did not know and had no reason to
know of the release or threatened release at the site.
(2) A government entity that acquired property by escheat, or
through any another involuntary transfer acquisition, or through the
exercise of eminent domain authority by purchase or condemnation, or
by means of a lien arising from delinquent taxes, assessments, or
charges.
(3) A person who acquired the property by inheritance or bequest.
(4) A person who qualifies for the defense from liability under
Section 107(b) of the federal act (42 U.S.C. Sec. 9607(b)).
(b) For purposes of this section, "release" does not include
passive migration.
25395.76. "Land use control" means a recorded instrument executed
pursuant to Section 1471 of the Civil Code that restricts or imposes
obligations on the present or future uses or activities on a site,
including, but not limited to, recorded easements, covenants,
restrictions or servitudes, or any combination thereof.
25395.77. "Passive migration" means the leaking, leaching or
movement of a hazardous material into or through the environment, for
which no human activity by the bona fide purchaser, innocent
landowner, or contiguous property owner preceded the initial entry of
that substance into the environment.
25395.78. "Regional board" means a California regional water
quality control board.
25395.79. "Release" has the same meaning as defined in Section
25320.
25395.79.1. "Response plan" means a written plan submitted to an
agency pursuant to Section 25395.96.
25395.79.2. (a) "Site" means real property located in an urban
infill area for which the expansion, redevelopment, or reuse may be
complicated by the presence or perceived presence of hazardous
materials.
(b) "Site" does not include any of the following:
(1) A facility that is listed or proposed for listing on the
National Priorities List established under Section 105 of the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9605).
(2) A site on the list maintained by the department pursuant to
Section 25356.
(3) A site that is solely impacted by a petroleum release from an
underground storage tank eligible for reimbursement from the
California Underground Storage Tank Cleanup Fund.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Infill area" means a vacant or underutilized lot of land
within an urban area that has been previously developed or that is
surrounded by parcels that are or have been previously developed.
(2) "Urban area" means either of the following:
(A) An incorporated city.
(B) An unincorporated area that is completely surrounded by one or
more incorporated cities that meets both of the following criteria:
(i) The population of the unincorporated area and the population
of the surrounding incorporated cities is equal to a population of
100,000 or more.
(ii) The population density of the unincorporated area is equal
to, or greater than, the population density of the surrounding
cities.
Article 3. Liability
25395.80. For purposes of this chapter, to qualify as a bona fide
purchaser, innocent landowner, or contiguous property owner a person
shall establish, by a preponderance of the evidence, all of the
following conditions:
(a) On or before the date on which the person acquired the site,
the person made all appropriate inquiries into the previous ownership
and uses of the site.
(b) The person exercises appropriate care with respect to the
release or threatened release of hazardous materials at the site.
(c) The person provides full cooperation, assistance, and access
to a person who is authorized to conduct response actions or natural
resource restoration at the site, including the cooperation and any
access necessary for the installation, integrity, operation, and
maintenance of complete or partial response actions or natural
resource restoration at the site.
(d) The person complies with land use controls established or
relied on, in connection with an approved response action at the
site, and does not impede the effectiveness or integrity of any
aspect of any remedy employed at the site in connection with a
response action.
(e) The person complies with all requests for information or an
administrative subpoena concerning the release or threatened release
of hazardous substances by any agency with jurisdiction under an
applicable statute.
(f) The person provides all notices and satisfies reporting
requirements required by state or federal law with respect to the
discovery or release of hazardous substances at the site.
25395.81. (a) Except as provided in Section 25395.85, and except
as otherwise provided under this section, a bona fide purchaser,
innocent landowner, or contiguous property owner who did not cause or
contribute to the release at the site, qualifies for the following
immunities:
(1) The bona fide purchaser, innocent landowner, or contiguous
property owner is not liable under any applicable statute for a claim
made by any person, other than an agency, for response costs or
other damages associated with a release or threatened release of a
hazardous material at the site characterized in the site assessment
conducted pursuant to, or a response plan approved pursuant to,
Article 6 (commencing with Section 25395.90).
(2) An agency shall not take an action under an applicable statute
to require a bona fide purchaser, innocent landowner, or contiguous
property owner to take a response action, other than a response
action required in an approved response plan, with respect to the
hazardous material release at a site that is characterized in the
site assessment conducted pursuant to, or a response plan approved
pursuant to Article 6 (commencing with Section 25395.90), unless both
of the following conditions apply:
(A) The conditions on the property pose an endangerment.
(B) The agency does one of the following:
(i) Makes all reasonable efforts, including taking appropriate
administrative enforcement actions, to compel any necessary response
action from other potentially responsible parties, and those efforts
have been unsuccessful.
(ii) Reasonably determines, after the exercise of reasonable
inquiry, that no potentially responsible party exists with sufficient
financial resources to perform the required response action at the
site.
(b) This section does not modify or limit the existing authority
of a state or local agency to impose a condition on the issuance of a
discretionary permit relating to the development, use, or occupancy
of any site.
(c) The immunities described in this section shall attach when the
bona fide purchaser, innocent landowner, or contiguous property
owner enters into an agreement with an agency pursuant to Section
25395.92 and shall remain in effect unless one of the following
occurs:
(1) The bona fide purchaser, innocent landowner, or contiguous
property owner receives a written notice of an unapproved, material
deviation from the agreement from the agency.
(2) The bona fide purchaser, innocent landowner, or contiguous
property owner or an agency terminates the agreement before a finding
of no further action is made pursuant to subdivision (b) of Section
25395.95 or a certificate of completion is issued pursuant to Section
25395.97.
(d) A person who otherwise qualifies for immunity under this
chapter and who commits fraud, intentional nondisclosure, or
misrepresentation to an agency with respect to any requirement of
this chapter, does not qualify as a bona fide purchaser, innocent
landowner, or contiguous property owner.
(e) This section does not relieve a bona fide purchaser, innocent
landowner or contiguous property owner from reporting, disclosure and
notification requirements under any applicable statute.
25395.82. (a) Notwithstanding Sections 25395.69, 25395.70, and
25395.75, on and after the date when the immunity specified in
subdivision (c) of Section 25395.81 attaches, the person shall remain
eligible for immunity if a release of hazardous materials at the
site during a response action is de minimis and the agency determines
that all necessary response actions to address the release have been
taken.
(b) Notwithstanding Sections 25395.69, 25395.70, and 25395.75, on
and after the date when the immunity specified in subdivision (c) of
Section 25395.81 attaches, the person shall remain eligible for
immunity if either of the following occur:
(1) Both of the following conditions are met:
(A) A release of hazardous materials that poses an unreasonable
risk is discovered before the agency makes a finding of no further
action pursuant to Section 25395.95 or issues a certificate of
completion pursuant to Section 25395.97.
(B) The release specified in subparagraph (A) is appropriately
resolved to the satisfaction of the agency pursuant to paragraph (8)
of subdivision (a) of Section 25395.96.
(2) All of the following conditions are met:
(A) A release of hazardous materials that poses an unreasonable
risk is discovered after the agency makes a finding of no further
action pursuant to Section 25395.95, or issues a certificate of
completion pursuant to Section 25395.97.
(B) The innocent landowner, bona fide purchaser, or contiguous
property owner did not cause or contribute to the release.
(C) The release specified in subparagraph (A) is appropriately
resolved to the satisfaction of the agency pursuant to paragraph (8)
of subdivision (a) of Section 25395.96.
(c) Notwithstanding Sections 25395.69, 25395.70, and 25395.75, on
and after the date when the immunity specified in subdivision (c) of
Section 25395.81 attaches, the person shall remain eligible for
immunity obtained pursuant to this chapter with regard to a release
that is the subject of a finding of no further action made pursuant
to Section 25395.95 or a certificate of completion issued pursuant to
Section 25395.97. If the person causes or contributes to a release
of a hazardous material, that person shall be responsible for
responding to that release in accordance with all applicable
statutes.
(d) Notwithstanding Sections 25395.69, 25395.70, and 25395.75, on
and after the date when the immunity specified in subdivision (c) of
Section 25395.81 attaches to a site and a release of hazardous
materials is discovered on or under the site, a response action shall
be conducted at the site in accordance with the following:
(1) If the response action is for petroleum related contamination
caused predominately by a release from an underground storage tank,
the funds in the Underground Storage Tank Cleanup Fund shall, to the
extent permissible by law, be used in accordance with Section
25299.51.
(2) If the response action is for a hazardous materials release
not otherwise subject to paragraph (1), and the agency determines the
hazardous material release endangers public health or safety, the
person who entered into the agreement with the agency shall pay for,
or undertake, the response action. If the agency determines the
hazardous materials release does not endanger public health or
safety, the person who entered into the agreement shall not be
required to pay for, or undertake, the response action.
25395.83. (a) If there are unrecovered costs incurred by an
agency at a site for which an owner of the site is not liable as an
innocent landowner, bona fide purchaser, or contiguous property
owner, an agency shall have a lien on the site, or may, by agreement
with the owner, obtain from the owner a lien on other property or
other assurance of payment for the unrecovered response costs,
subject to all of the following requirements:
(1) A response action for which there are unrecovered costs of the
agency is carried out at the site.
(2) The response action increased the fair market value of the
site above the fair market value of the site that existed before the
response action was initiated.
(b) The lien may include costs that are first incurred by the
agency with respect to a response action at the site.
(c) The lien amount shall not exceed the increase in fair market
value of the property attributable to the response action at the time
of a sale or other disposition of the property, and shall not exceed
the unrecovered response costs actually incurred by the agency.
(d) The lien shall continue until the earlier of satisfaction of
the lien by sale or other means, or recovery of all response costs
incurred by the agency at the site. Once the amount of the lien is
satisfied in full, the agency shall record satisfaction on lien on
the real property.
(e) The notice of the lien shall be recorded in the official
records of the county recorder's office for the county in which the
real property is located.
(f) A lien imposed under this section shall have the force and
effect of, and the priority of, a judgment lien upon its recordation
in the county in which the property subject to the lien is located.
25395.84. (a) A court of competent jurisdiction may award
reasonable attorneys' fees and experts' fees to a person who
initiates a claim under an applicable statute for contribution for,
or recovery of, response costs incurred for a response action, or for
any other response costs incurred at a site, if the person meets all
of the following criteria:
(1) The person is a bona fide purchaser, an innocent landowner, or
a contiguous property owner and qualifies for immunity pursuant to
this chapter.
(2) The person is a prevailing party.
(3) On or before 20 calendar days prior to the date of the trial
on issues relating to the response costs at issue, the person serves
on the defendant both of the following:
(A) If a response plan has been approved for that site pursuant to
Article 6 (commencing with Section 25395.90), a copy of the approved
response plan.
(B) A written demand for compensation setting forth the specific
sum demanded from the defendant, including a statement of the
reasoning supporting the demand. The amount of written demand shall
include all response costs sought from the defendant at issue,
including all interest, but shall not include litigation expenses,
attorneys' fees, and experts' fees. The amount of the demand may
include any alleged consequential damages.
(b) ln determining whether to award reasonable attorneys' fees and
experts' fees pursuant to this section, a court shall consider the
relationship of the amount of the written demand described in
subparagraph (B) of paragraph (3) of subdivision (a) to the total sum
of the response costs and, if appropriate and included in the
demand, the consequential damages in the written demand, to the final
determination of the costs and damages by the trier of fact.
(c) A court may award reasonable attorneys' fees and experts' fees
to an agency that is the prevailing party in an action arising out
of this chapter.
25395.85. An innocent landowner, bona fide purchaser, or
contiguous landowner may seek contribution from any person who is
responsible for a discharge or release of hazardous materials for
which the innocent landowner, bona fide purchaser, or contiguous
landowner incurs agency oversight costs for the review of a response
plan or oversight of the implementation of a response plan subject to
this chapter.
25395.86. (a) This chapter does not provide immunity from any of
the following:
(1) Liability for bodily injury or wrongful death.
(2) Any requirement imposed under Chapter 6.5 (commencing with
Section 25100), including, but not limited to, corrective action and
closure and postclosure requirements.
(3) Criminal acts.
(4) Permit violations.
(5) Contractual indemnity agreements between purchasers and
sellers of real property.
(6) New releases of hazardous materials that are caused or
contributed to by an innocent landowner, bona fide purchaser, or
contiguous property owner.
(b) This chapter shall not apply as a defense or immunity to any
action taken by a redevelopment agency pursuant to Article 12.5
(commencing with Section 33459) of Chapter 4 of Part 1 of Division
24.
(c) This chapter does not limit the authority of an
agency to conduct a response action it determines is necessary to
protect public health and safety or the environment pursuant to an
applicable statute.
(d) This chapter does not preclude a state or local agency that is
taking property by eminent domain, negotiating to acquire property
in lieu of taking it by eminent domain, or considering the taking of
property through the exercise of eminent domain authority, from
evaluating the impact on the value of the property resulting from a
release or threatened release of any hazardous material, from
incorporating that evaluation into any offer of compensation for that
property, or from presenting that evaluation at a trial or other
proceeding to establish the value of the property.
(e) This chapter does not do either of the following:
(1) Limit a defense to liability that may be available to a person
under any other provision of law.
(2) Impose any new obligation on an owner of real property other
than those specifically assumed by the owner under an agreement
entered into pursuant to Article 6 (commencing with Section
25395.90).
Article 5. Information and Reports
25395.87. (a) On or before March 31, 2005, the California
Environmental Protection Agency shall develop a form that, upon
approval of a response plan, shall be completed and submitted to the
agency by a bona fide purchaser or innocent landowner who qualifies
for immunity pursuant to this chapter. The form shall include, but
is not required to be limited to, all of the following information:
(1) A description of the site, including its address and location.
(2) A description of the type and extent of hazardous materials
releases and threatened releases identified for response at the site
pursuant to a response plan.
(3) An estimate of the cost of the response action to be
undertaken pursuant to a response plan.
(4) A description of the present and proposed use of the site,
including current and potential future zoning and land use
designations.
(5) A description of any land use restrictions, covenants, deed
restrictions or other conditions imposed on the site owned by a party
who qualifies for immunity pursuant to this chapter.
(6) A description and the concentrations of the release and
threatened releases specified in paragraph (2) that will not be
remediated pursuant to the response plan.
(b) On or before January 1, 2006, and annually thereafter, the
California Environmental Protection Agency shall, to the extent that
resources are available, compile the information submitted pursuant
to this section and post a report of its findings on its Web site.
The posted report shall compare the data collected pursuant to this
section with information collected prior to January 1, 2005, to the
extent that this information is available.
(c) The report posted pursuant to subdivision (b) shall, to the
extent practicable, compare the number and quality of response
actions completed pursuant to this chapter with similar response
actions completed prior to its enactment, and shall evaluate the
impact of the benefit of this chapter's immunities on the acquisition
and development of properties.
Article 6. Streamlined Site Investigation And Response Plan
Agreements
25395.90. (a) Except as otherwise expressly provided in this
article, the definitions in Article 2 (commencing with Section
25395.63) apply to the terms used in this article.
(b) "Action level" has the same meaning as defined in paragraph
(1) of subdivision (c) of Section 116455.
(c) "Host jurisdiction" means the city or county in which the site
is located and which has the authority to take action regarding the
site pursuant to Title 7 (commencing with Section 65000) of the
Government Code.
(d) "Unreasonable risk" at a site means that a condition at a site
requires a response action pursuant to Chapter 6.8 (commencing with
Section 25300) of this code or Division 7 (commencing with Section
13000) of the Water Code.
25395.91. (a) Only a bona fide purchaser, innocent landowner, or
contiguous property owner who meets the requirements specified in
Section 25395.80 is eligible to enter into an agreement pursuant to
this article.
(b) An agreement entered under this article is not subject to
Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of
the Public Contract Code, including, but not limited to, Section
10295 of the Public Contract Code.
25395.92. (a) A bona fide purchaser, innocent landowner, or
contiguous property owner who seeks to qualify for the immunity
provided by this chapter shall enter into an agreement with an agency
pursuant to this article that includes the performance of a site
assessment, and, if the agency determines that a response plan is
necessary pursuant to Section 25395.96, the preparation and
implementation of a response plan.
(b) Before finalizing the agreement, the requested agency shall
notify other appropriate agencies, including the host jurisdiction.
(c) A person who enters into an agreement with an agency pursuant
to this section shall submit sufficient information to the agency for
the agency to determine whether the site is an eligible site,
whether the person meets the conditions to qualify as a bona fide
purchaser, innocent landowner, or contiguous property owner pursuant
to this chapter, and to prepare an agreement pursuant to this
section.
(d) (1) A person who enters into an agreement pursuant to this
section shall agree to take all actions required for a response
action pursuant to Chapter 6.8 (commencing with Section 25300) and
Division 7 (commencing with Section 13000) of the Water Code. These
actions may include actions necessary to prevent an unreasonable risk
before the approval of a response plan.
(2) In determining whether there is unreasonable risk at a site
for purposes of this subdivision, the agency shall take into account
the intended use of the property, in accordance with any changed use
of the property, as specified in subdivision (d) of Section 25395.96.
25395.93. (a) A person may withdraw from an agreement entered
into pursuant to this article by providing a 30-day written notice to
the agency and doing both of the following:
(1) Reimbursing the agency for all costs incurred by the agency
pursuant to the agreement.
(2) Demonstrating to the satisfaction of the agency, that
conditions at the site to which the agreement applies do not pose an
endangerment to public health and safety or the environment. If the
agency determines that conditions at the site pose an endangerment to
public health, safety, or the environment, this article does not
prevent the agency from exercising its authority to take appropriate
response actions or to cause the person or persons responsible for
the endangerment to take appropriate response actions.
(b) A person who enters into an agreement with an agency pursuant
to this article shall reimburse the agency for all agency costs,
including, but not limited to, costs incurred while reviewing a site
assessment plan or a response plan or overseeing the implementation
of a site assessment or response plan by the person pursuant to this
article, except that the department's costs shall be reimbursed
pursuant to Chapter 6.66 (commencing with Section 25269) and shall be
recoverable pursuant to Section 25360.
(c) The entry into an agreement pursuant to this article shall not
constitute an admission of fact or liability or conclusion of law
for any purpose or proceeding and no person who enters into an
agreement under this article shall not be deemed liable under any
other provision of law solely by reason of entering into that
agreement.
(d) If the conditions described in paragraph (1) of subdivision
(c) of Section 25395.81 or in subdivision (d) of Section 25395.81
occur, an agency may withdraw from an agreement entered into pursuant
to this chapter by providing a 30-day written notice to the other
party.
25395.94. (a) (1) A person who enters into an agreement pursuant
to this article with an agency for the oversight of a site assessment
shall submit a site assessment plan to the agency to conduct a site
assessment of the site in accordance with the requirements of this
section.
(2) If the agency requires a health risk assessment as part of
that agreement, the health assessment shall be prepared in accordance
with subdivisions (b), (c), and (d) of Section 25356.1.5.
(b) The site assessment plan shall provide for the evaluation of
all of the following:
(1) Whether a release of hazardous materials has occurred at the
site, a threat of a release of hazardous materials exists at the
site, or there is a threat of a release of hazardous materials from
the site.
(2) If a release or threatened release of hazardous materials
exists at the site or there is a release or a threatened release from
the site, whether the release or threatened release poses an
unreasonable risk to public health and safety or the environment.
(c) The site assessment plan shall also include all of the
following:
(1) Adequate characterization of the hazardous materials released
or threatened to be released at, or from, the site and documentation
of the findings.
(2) Reasonably available information about the site, including,
where appropriate, a risk assessment that evaluates the risk posed by
any hazardous materials released or threatened to be released at, or
from, the site, and information regarding reasonably anticipated
foreseeable uses of the site based on current and projected land use
and zoning designations.
(3) If the release has impacted groundwater, reasonable
characterization of underlying groundwater, including present and
anticipated beneficial uses of that water.
(d) A person shall submit the site assessment plan to the agency
for review and approval.
(e) The agency shall evaluate the adequacy of the site assessment
plan to ensure that it contains all necessary information.
(f) After evaluating the site assessment plan, if the agency finds
that the site assessment plan is adequate, the agency shall approve
the site assessment plan and provide notification to appropriate
persons, including notification of any public water system that
relies on impacted groundwater for public drinking water purposes.
25395.95. (a) After implementation of the site assessment plan,
the person shall submit a report of the findings made pursuant to the
plan to the agency. Based upon a review of this information, the
agency shall determine whether a response action is necessary to
address any unreasonable risk from hazardous materials at the site.
(b) If the agency determines, that there is no unreasonable risk
at the site and that there are no hazardous materials at the site at
levels that are not suitable for unrestricted use of the site, the
agency shall make a finding that no further action is necessary at
the site.
(c) If the agency determines that there are hazardous materials at
the site at levels that are not suitable for unrestricted use, but
that are suitable for the reasonably anticipated foreseeable use of
the site based on current and projected land use and zoning
designations, the agency shall find that no further action is
necessary at the site except that a land use control that imposes
appropriate restrictions pursuant to Section 25395.99 shall be
executed and recorded and the public comment and participation
requirements of Section 25395.96 shall be met before the execution
and recording of any land use control. On or before 15 days after
the date when the land use control is recorded pursuant to Section
25395.99, the agency shall state in writing that this act constitutes
"appropriate care" for the purposes of Section 25395.67.
25395.96. (a) If, upon review of the site assessment prepared
pursuant to this article, the agency determines that a response
action is necessary to prevent or eliminate an unreasonable risk, the
bona fide purchaser, innocent landowner, or contiguous property
owner shall submit a response plan to the agency to conduct a
response action at the site, in conformance with the agreement
entered into pursuant to Section 25395.92. The response plan shall
include all of the following:
(1) (A) An opportunity for the public, other agencies, and the
host jurisdiction to participate in decisions regarding the response
action, taking into consideration of the nature of the community
interest.
(B) If a regional board is the agency, the regional board shall
provide access to the proposed response plan and site assessment at
the regional board for public review, conduct a public hearing with
30 days prior notice, provide notice on the agenda of the public
hearing, and take action on the response plan in a regularly
scheduled regional board meeting.
(C) If the department is the agency, the methods for public
participation proposed in the response plan shall include reasonable
public notice in English and other languages commonly spoken in the
area, access to the proposed response plan and site assessment at the
agency and local repositories and reasonable opportunity to comment.
The department shall hold a public meeting in the area to receive
comments if a public meeting is requested. The department shall
consider any comments received prior to acting on the response plan.
Methods for public participation may also include, but are not
limited to, the use of factsheets, public notices, direct
notification of interested parties, public meetings, and an
opportunity to comment on the proposed response plan prior to
approval.
(D) To the extent possible, the agency shall coordinate its public
participation activities with those undertaken by the host
jurisdiction and other agencies associated with the development of
the property, to avoid duplication to the extent feasible.
(E) It is the intent of the Legislature that the public
participation process established pursuant to this subdivision
ensures full and robust participation of a community affected by this
chapter.
(2) Identification of the release or threatened release that is
the subject of the response plan and documentation that the plan is
based on an adequate characterization of the site.
(3) An identification of the response plan objectives and the
proposed remedy, and an identification of the reasonably anticipated
future land uses of the site and of the current and projected land
use and zoning designations. This identification shall include
confirmation by the host jurisdiction that the anticipated future
land uses and current and projected land uses and zoning designations
are accurate.
(4) A description of activities that will be implemented to
control any endangerment that may occur during the response action at
the site.
(5) A description of any land use control that is part of the
response action.
(6) A description of wastes other than hazardous materials at the
site and how they will be managed in conjunction with the response
action.
(7) Provisions for the removal of containment or storage vessels
and other sources of contamination, including soils and free product,
that cause an unreasonable risk.
(8) Provisions for the agency to require further response actions
based on the discovery of hazardous materials that pose an
unreasonable risk to human health and safety or the environment that
are discovered during the course of the response action or subsequent
development of the site.
(9) Any other information that the agency determines is necessary.
(b) The agency shall evaluate the adequacy of the plan submitted
pursuant to subdivision (a) and shall approve the plan if the agency
makes all of the following findings:
(1) The plan contains the information required by subdivision (a).
(2) When implemented, the plan will place the site in condition
that allows it to be used for its reasonably anticipated future land
use without unreasonable risk to human health and safety and the
environment.
(3) The plan addresses any public comments.
(4) If applicable, the plan provides for long-term operation and
maintenance, including land use and engineering controls, that are
part of the remedy contained in the response plan.
(c) (1) On or before 60 days after the date an agency receives a
response plan, the agency shall make a written determination that
proper completion of the response plan constitutes "appropriate care"
for purposes of subdivision (a) of Section 25395.67.
(2) Upon approval of the response plan by the agency, the agency
shall notify all appropriate persons, including the host
jurisdiction.
(d) If the use of the property changes, after a response plan is
approved, to a use that requires a higher level of protection, the
agency may require the preparation and implementation of a new
response plan pursuant to this article.
(e) The owner of a site shall not make any change in use of a site
inconsistent with any land use control recorded for the site, unless
the change is approved by the agency in accordance with subdivision
(f) of Section 25395.99.
25395.97. (a) Except as provided in Section 25395.99, the agency
shall issue a certificate of completion upon determining that all
response actions have been satisfactorily completed in accordance
with an approved response plan.
(b) Notwithstanding subdivision (a), the agency shall issue a
certificate of completion when a response action plan includes
long-term obligations that have not been completed, including
operation and maintenance requirements or monitoring, only if the
agency makes all of the following determinations:
(1) All response actions, other than long-term operation and
maintenance at the site, have been completed.
(2) The person has submitted an adequate long-term operation and
maintenance plan and has demonstrated initial compliance.
(c) If the agency determines that long-term operation and
maintenance is required at a site, the agency may, as a condition of
issuing a certificate of completion, enter into an operation and
maintenance agreement with the person that governs the long-term
operation and maintenance activities and that provides for adequate
financial assurance.
25395.98. A person who acquires a property from an innocent
landowner, bona fide purchaser, or contiguous property owner, and the
property was previously issued a certificate of completion or no
further action determination, may qualify as a bona fide prospective
purchaser or contiguous property owner by demonstrating to the agency
that the person meets all of the qualifying conditions of Section
25395.80 and either Section 25395.69 or 25395.70, as applicable.
25395.99. (a) A response plan may require the use of a land use
control that imposes appropriate conditions, restrictions, and
obligations on land use or activities, if, after completion of the
removal and remedial actions specified in the response plan,
hazardous materials remain at the site at a level that is not
suitable for the unrestricted use of the site.
(b) Except as provided in subdivision (c), if the agency approves
a response plan that requires the use of a land use control, the land
use control shall be executed by the landowner and recorded by the
landowner in the office of the county recorder in each county in
which all, or a portion of, the land is located within 10 days of the
date of execution.
(c) An agency shall not issue a certificate of completion to a
person who submits a response plan that is approved by the agency and
that requires the use of a land use control, until the agency
receives a certified copy of the recorded land use control. If the
site that requires the land use control does not have an owner, or
the agency determines the owner is incapable of executing a land use
control in accordance with this section, the agency may record in the
county records a "Notice of Land Use Restriction" that has the same
effect as any other land use control executed pursuant to this
section, and that is subject to the variance and termination
procedures specified in subdivision (f).
(d) Notwithstanding any other provision of law, a land use control
that is executed pursuant to this section and that is recorded so as
to provide constructive notice shall run with the land from the date
of recordation, is binding upon all of the owners of the land, and
their heirs, successors and assignees, and the agents, employees, or
lessees of the owners, heirs, successors and assignees, and is
enforceable pursuant to Article 8 (commencing with Section 25180) of
Chapter 6.5.
(e) Notwithstanding any other provision of law, a land use control
executed pursuant to this section is subject to Section 57012.
(f) A land use control imposed pursuant to this section is subject
to the variance and removal procedures specified in Sections 25233
and 25234.
25395.100. To the extent consistent with the Resource
Conservation and Recovery Act of 1976, as amended, (42 U.S.C. Sec.
6901 et seq.), the department may exclude any portion of a response
action conducted entirely onsite from the hazardous waste facilities
permit requirements of Sections 25200.3, 25201, and 25201.6, if both
of the following apply:
(a) The response action is carried out pursuant to an approved
response plan.
(b) The response plan specifies that the response action will be
conducted in compliance with the standards, requirements, criteria,
or limitations applicable to the construction, operation, and closure
of the type of facility at the site, as necessary to prevent an
unreasonable risk to public health and safety or the environment and
any other condition imposed by the agency.
25395.101. (a) Except as expressly provided in this article, this
article does not affect the authority of an agency to issue an order
or take any other action under any provision of law to protect
public health and safety or the environment.
(b) Except as otherwise expressly provided in this article, this
article does not affect the authority of the agency or any other
public agency to pursue any existing legal, equitable, or
administrative remedies pursuant to state or federal law.
(c) Except as otherwise expressly provided in this article,
Chapter 6.8 (commencing with Section 25300) does not apply to this
article.
(d) If a local agency determines that, due to an emergency, it is
necessary to gain access to a site that is the subject of a finding
of no further action or a certificate of completion, the person who
has obtained immunity pursuant to this chapter with regard to that
site shall allow the local agency access to the site to take any
action necessary to mitigate that emergency, or take any other
necessary response action. However, that person shall not be
required to pay for, or undertake, any of those actions taken by or
required by the local agency, unless the person caused or contributed
to the release at the site that constituted the emergency.
Article 7. Repeal
25395.105. This chapter shall remain in effect only until January
1, 2010, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2010, deletes or extends
that date.
SEC. 2. Chapter 6.83 (commencing with Section 25395.110) is added
to Division 20 of the Health and Safety Code, to read:
CHAPTER 6.83. LAND USE AND REVITALIZATION
Article 1. Immunity Continuation
25395.110. (a) A person who, before January 1, 2010, qualifies
for immunity pursuant to Chapter 6.82 (commencing with Section
25395.60), as that chapter read on December 31, 2009, shall continue
to have that immunity on and after January 1, 2010, if the person
continues to be in compliance with the requirements of former Chapter
6.82 (commencing with Section 25395.60) including, but not limited
to, compliance with all response plans approved pursuant to Article 6
(commencing with Section 25395.90 of Chapter 6.82), and compliance
with all other applicable laws.
(b) This article shall become operative January 1, 2010.
Article 2. Public Information
25395.115. The definitions set forth in this section govern the
interpretation of this article.
(a) "Agency" means the department, the board, or a regional board.
(b) "Board" means the State Water Resources Control Board.
(c) (1) "Bona fide purchaser" means a person, or a tenant of a
person, who acquires ownership of a site on or after January 1, 2005,
and who establishes all of the following by a preponderance of the
evidence:
(A) All releases of the hazardous materials at issue at the site
occurred before the person acquired the site, except as described in
subparagraph (B).
(B) All of the conditions of Section 25395.80 to qualify as a bona
fide purchaser have been met.
(C) The person is not potentially liable, or affiliated with any
other person who is potentially liable, for the release or threatened
release at the site through any of the following circumstances:
(i) Any direct or indirect familial relationship.
(ii) Any contractual, corporate, or financial relationship, unless
the contractual, corporate, or financial relationship is created by
the instrument by which title or possession to the site is conveyed
or financed or a contract for the sale of goods or services.
(iii) The result of a reorganization of a business entity that was
potentially liable for the release or threatened release of
hazardous materials at the site.
(2) For purposes of this section, "release" does not include
passive migration.
(d) "Department" means the Department of Toxic Substances Control.
(e) "Regional board" means a California regional water quality
control board.
25395.116. (a) To facilitate the decision of a bona fide
purchaser to apply for a bona fide purchaser agreement, the bona fide
purchaser may first enter into a consultative services agreement
with the department pursuant to Section 25201.9 or with an agency.
(b) Under the terms of a consultative services agreement entered
into in accordance with this section, an agency may review any
environmental data and development plans that may be submitted by a
bona fide purchaser.
(c) The consultative services agreement shall include all of the
following:
(1) Require the bona fide purchaser to pay for the agency's
services.
(2) Not commit the bona fide purchaser to purchase, remediate, or
otherwise act with regard to the site.
(3) Provide for a review and meeting to discuss the
environmental data and development plans within 30 days of
submission.
(d) Upon review of the data and plans specified in paragraph (3)
of subdivision (c), the agency shall provide comments to the bona
fide purchaser of what further information might be needed to
ascertain what response action, if any, will be necessary. The
agency shall also provide comments to the bona fide purchaser on any
proposed response actions that may be necessary and an estimate of
the time it may take to negotiate and approve a bona fide purchaser
agreement.
(e) An agency shall enter into a consultative services agreement,
in accordance with this section, subject to available staff and
resources, as determined by the agency. If the agency declines to
enter into a consultative services agreement, the agency shall
provide specific reasons for its decision to the bona fide purchaser
requesting the agreement.
25395.117. (a) On or before January 1, 2006, the agency and the
California Environmental Protection Agency shall implement the
requirements imposed by this section.
(b) The department shall revise and upgrade the department's
database systems, including the list of hazardous substances release
sites adopted pursuant to Section 25356 and the information sent to
the agency pursuant to Section 65962.5 of the Government Code, to
enable compatibility with existing databases of the board, including
the GIS mapping system established pursuant to Section 25299.97. The
department shall also install improvements to the database systems
to maintain and display information that includes the number of
brownfield sites, each brownfield site's location, acreage, response
action, site assessments, and the number of orphan sites where the
department is overseeing the response action.
(c) The California Environmental Protection Agency, the
department, the regional boards, and the board shall expand their
respective Web sites to allow access to information about brownfield
sites and other response action sites through a single Web site
portal.
25395.118. The department may expend any grant received pursuant
to Section 128 of the Small Business Liability Relief and Brownfield
Revitalization Act (42 U.S.C. Sec. 9628), for state response
programs, to implement Section 25395.117 to the extent the activities
are in accordance with the terms and conditions of the grant.
25395.119. (a) Using existing resources or when funds become
available, the Secretary for Environmental Protection shall designate
a brownfields ombudsperson whose responsibilities shall include, but
are not limited to, all of the following:
(1) Assisting in the coordination of the brownfields activities of
each office, board, and department within the California
Environmental Protection Agency.
(2) Advocating and expanding the relationship between the
California Environmental Protection Agency and local, state, and
federal governmental entities' efforts pertaining to brownfields.
(3) Serving as the California Environmental Protection Agency's
representative on committees, working groups, and other organizations
pertaining to brownfields.
(4) Providing assistance in investigating complaints from the
public, and helping to resolve and coordinate the resolution of those
complaints relating to the brownfields activities of each office,
board, and department within the California Environmental Protection
Agency.
(5) Facilitating and advocating that the issue of environmental
justice for communities most impacted, including low-income and
racial minority populations, is considered in brownfields activities
of each office, board, and department within the California
Environmental Protection Agency.
(6) Assisting the California Environmental Protection Agency in
implementing the guidelines established under Section 25401.2.
(b) The brownfield ombudsperson is not authorized to make or
reverse a decision of an office, board, or department within the
California Environmental Protection Agency.