BILL NUMBER: AB 1188 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Ruskin
FEBRUARY 27, 2009
An act to amend Sections 25173.6, 25187, 25390, 25390.1, 25390.3,
and 25390.4 of, and to add Section 25244.25 to, the Health and Safety
Code, relating to hazardous materials.
LEGISLATIVE COUNSEL'S DIGEST
AB 1188, as introduced, Ruskin. Hazardous materials: penalties:
allocation.
(1) Existing law establishes the Toxic Substances Control Account
in the General Fund and requires the Director of Toxic Substances
Control to administer the account. Existing law authorizes the moneys
in the account to be appropriated to the Department of Toxic
Substances Control for various purposes, including for the
administration of the Human and Ecological Risk Division, Hazardous
Materials Laboratory, and Office of Pollution Prevention and
Technology Development in the department.
This bill would additionally authorize the funds in the account to
be appropriated to the department for the administration of the
successor organizations of those units of the department, the
implementation of programs administered by those units, and
activities in the department related to pollution prevention and
technology development.
(2) Existing law authorizes the department or a unified program
agency to issue an administrative enforcement order requiring that a
violation be corrected and imposing an administrative penalty for a
violation of specified statutory provisions or a permit, rule,
regulation, standard, or requirement issued or adopted pursuant to
those provisions. Existing law imposes requirements regarding the
payment of administrative penalties collected from enforcement
actions and requires the administrative penalties to be placed in a
separate subaccount in the Toxic Substances Control Account for
transfer to the Site Remediation Account or the Expedited Site
Remediation Trust Fund and for expenditure by the department upon
appropriation by the Legislature.
This bill would delete the requirement that the administrative
penalties be placed in a separate subaccount in the account. If a
specified requirement is met, the bill would additionally authorize,
upon appropriation by the Legislature, (a) the transfer of those
moneys to the Orphan Share Reimbursement Trust Fund, only for
purposes of paying claims for reimbursement filed by project
proponents, as defined, and to the Pollution Prevention Technology
Assistance Grant Fund, which would be established by this bill, and
(b) the expenditure by the department of those moneys for activities
in the department related to pollution prevention and technology
development.
(3) Existing law requires the department to establish a technical
and research assistance program to assist generators of hazardous
waste in identifying and applying methods of source reduction and
other hazardous waste management approaches. Under existing law, that
program is required to emphasize assistance to smaller businesses
that have inadequate technical and financial resources for obtaining
information, assessing source reduction methods, and developing and
applying source reduction techniques. Existing law also requires the
department to conduct an inventory and analysis of low-cost voluntary
programs to reduce hazardous waste generation and other
environmental releases of toxic chemicals and to develop
recommendations for new programs, as specified.
This bill would establish the Pollution Prevention Technology
Assistance Grant Fund in the State Treasury. The bill would authorize
the department to expend the moneys in the fund, upon appropriation
by the Legislature, to be used to pay for grants to assist small
businesses in purchasing pollution prevention equipment and to pay
the department's administrative costs in implementing the fund. The
bill would authorize the department to adopt emergency regulations to
implement the provisions relating to the fund.
(4) Existing law establishes the Orphan Share Reimbursement Trust
Fund to, among other things, encourage responsible parties to quickly
and efficiently remediate contamination by hazardous substances and
authorizes the administrator of the fund to expend the moneys in the
fund, upon appropriation by the Legislature, to, among other things,
pay a responsible party for a claim for reimbursement of the orphan
share of a site, which is the share of liability for the costs of
response action at the site that is attributable to the activities of
persons who are defunct or insolvent.
Existing law defines various terms for purposes of administering
the Orphan Share Reimbursement Trust Fund.
This bill would additionally define "project proponent" and
"responsible party" for purposes of the fund and would authorize a
project proponent to file a claim for reimbursement from that fund.
The bill would also authorize the administrator of the fund to expend
money in the fund to pay a project proponent for a claim for
reimbursement of an orphan share at a site paid by that project
proponent.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25173.6 of the Health and Safety Code is
amended to read:
25173.6. (a) There is in the General Fund the Toxic Substances
Control Account, which shall be administered by the director. In
addition to any other money that may be appropriated by the
Legislature to the Toxic Substances Control Account, all of the
following shall be deposited in the account:
(1) The fees collected pursuant to Section 25205.6.
(2) The fees collected pursuant to Section 25187.2, to the extent
that those fees are for oversight of a removal or remedial action
taken under Chapter 6.8 (commencing with Section 25300) or Chapter
6.85 (commencing with Section 25396).
(3) Fines or penalties collected pursuant to this chapter, Chapter
6.8 (commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396), except as directed otherwise by Section 25192.
(4) Interest earned upon money deposited in the Toxic Substances
Control Account.
(5) All money recovered pursuant to Section 25360, except any
amount recovered on or before June 30, 2006, that was paid from the
Hazardous Substance Cleanup Fund.
(6) All money recovered pursuant to Section 25380.
(7) Reimbursements for funds expended from the Toxic Substances
Control Account for services provided by the department, including,
but not limited to, reimbursements required pursuant to Sections
25201.9 and 25343.
(8) Money received from the federal government pursuant to the
federal Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).
(9) Money received from responsible parties for remedial action or
removal at a specific site, except as otherwise provided by law.
(b) The funds deposited in the Toxic Substances Control Account
may be appropriated to the department for the following purposes:
(1) The administration and implementation of the following:
(A) Chapter 6.8 (commencing with Section 25300), except that funds
shall not be expended from the Toxic Substances Control Account for
purposes of Section 25354.5.
(B) Chapter 6.85 (commencing with Section 25396).
(C) Chapter 6.11 (commencing with Section 25404), on and before
June 30, 1999.
(C)
(D) Article 10 (commencing with Section
7710) of Chapter 1 of Division 4 of the Public Utilities Code, to the
extent the department has been delegated responsibilities by the
secretary for implementing that article.
(E) Activities in the department related to pollution prevention
and technology development.
(2) The administration of , and implementation of programs
administered by, the following units , and successor
organizations of those units, within the department:
(A) The Human and Ecological Risk Division.
(B) The Hazardous Materials Environmental
Chemistry Laboratory.
(C) The Office of Pollution Prevention and Technology Development.
(3) For allocation to the Office of Environmental Health Hazard
Assessment, pursuant to an interagency agreement, to assist the
department as needed in administering the programs described in
subparagraphs (A) and (B) of paragraph (1).
(4) For allocation to the State Board of Equalization to pay
refunds of fees collected pursuant to Section 43054 of the Revenue
and Taxation Code.
(5) For the state share mandated pursuant to paragraph (3) of
subsection (c) of Section 104 of the federal Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended (42 U.S.C. Sec. 9604(c)(3)).
(6) For the purchase by the state, or by a local agency with the
prior approval of the director, of hazardous substance response
equipment and other preparations for response to a release of
hazardous substances. However, all equipment shall be purchased in a
cost-effective manner after consideration of the adequacy of existing
equipment owned by the state or the local agency, and the
availability of equipment owned by private contractors.
(7) For payment of all costs of removal and remedial action
incurred by the state, or by any local agency with the approval of
the director, in response to a release or threatened release of a
hazardous substance, to the extent the costs are not reimbursed by
the federal Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).
(8) For payment of all costs of actions taken pursuant to
subdivision (b) of Section 25358.3, to the extent that these costs
are not paid by the federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec.
9601 et seq.).
(9) For all costs incurred by the department in cooperation with
the Agency for Toxic Substances and Disease Registry established
pursuant to subsection (i) of Section 104 of the federal
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9604(i)) and all costs of health
effects studies undertaken regarding specific sites or specific
substances at specific sites. Funds appropriated for this purpose
shall not exceed five hundred thousand dollars ($500,000) in any
single fiscal year. However, these actions shall not duplicate
reasonably available federal actions and studies.
(10) For repayment of the principal of, and interest on, bonds
sold pursuant to Article 7.5 (commencing with Section 25385) of
Chapter 6.8.
(11) For the reasonable and necessary administrative costs and
expenses of the Hazardous Substance Cleanup Arbitration Panel created
pursuant to Section 25356.2.
(12) Direct site remediation costs.
(13) For the department's expenses for staff to perform oversight
of investigations, characterizations, removals, remediations, or
long-term operation and maintenance.
(14) For the administration and collection of the fees imposed
pursuant to Section 25205.6.
(15) For allocation to the office of the Attorney General,
pursuant to an interagency agreement or similar mechanism, for the
support of the Toxic Substance Enforcement Program in the office of
the Attorney General, in carrying out the purposes of Chapter 6.8
(commencing with Section 25300) and Chapter 6.85 (commencing with
Section 25396).
(16) For funding the California Environmental Contaminant
Biomonitoring Program established pursuant to Chapter 8 (commencing
with Section 105440) of Part 5 of Division 103.
(c) The funds deposited in the Toxic Substances Control Account
may be appropriated by the Legislature to the Office of Environmental
Health Hazard Assessment and the State Department of Public Health
for the purposes of carrying out their duties pursuant to the
California Environmental Contaminant Biomonitoring Program (Chapter 8
(commencing with Section 105440) of Part 5 of Division 103).
(d) The director shall expend federal funds in the Toxic
Substances Control Account consistent with the requirements specified
in Section 114 of the federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec.
9614), upon appropriation by the Legislature, for the purposes for
which they were provided to the state.
(e) Money in the Toxic Substances Control Account shall not be
expended to conduct removal or remedial actions if any significant
portion of the hazardous substances to be removed or remedied
originated from a source outside the state.
(f) The Director of Finance, upon request of the director, may
make a loan from the General Fund to the Toxic Substances Control
Account to meet cash needs. The loan shall be subject to the
repayment provisions of Section 16351 of the Government Code and the
interest provisions of Section 16314 of the Government Code.
(g) The Toxic Substances Control Account established pursuant to
subdivision (a) is the successor fund of all of the following:
(1) The Hazardous Substance Account established pursuant to
Section 25330, as that section read on June 30, 2006.
(2) The Hazardous Substance Clearing Account established pursuant
to Section 25334, as that section read on June 30, 2006.
(3) The Hazardous Substance Cleanup Fund established pursuant to
Section 25385.3, as that section read on June 30, 2006.
(4) The Superfund Bond Trust Fund established pursuant to Section
25385.8, as that section read on June 30, 2006.
(h) On and after July 1, 2006, all assets, liabilities, and
surplus of the accounts and funds listed in subdivision (g), shall be
transferred to, and become a part of, the Toxic Substances Control
Account, as provided by Section 16346 of the Government Code. All
existing appropriations from these accounts, to the extent
encumbered, shall continue to be available for the same purposes and
periods from the Toxic Substances Control Account.
(i) The department, on or before February 1 of each year, shall
report to the Governor and the Legislature on the prior fiscal year's
expenditure of funds within the Toxic Substances Control Account for
the purposes specified in subdivision (b).
SEC. 2. Section 25187 of the Health and Safety Code is amended to
read:
25187. (a) (1) The department or a unified program agency, in
accordance with subdivision ( )
(l) , may issue an order requiring that the violation be
corrected and imposing an administrative penalty, for any
a violation of this chapter or any
a permit, rule, regulation, standard, or
requirement issued or adopted pursuant to this chapter, whenever the
department or Unified Program Agency determines that a person has
violated, is in violation of, or threatens, as defined in subdivision
(e) of Section 13304 of the Water Code, to violate, this chapter or
Chapter 6.8 (commencing with Section 25300), or any
a permit, rule, regulation, standard, or
requirement issued or adopted pursuant to this chapter or Chapter 6.8
(commencing with Section 25300).
(2) In an order proposing a penalty pursuant to this section, the
department or Unified Program Agency shall take into consideration
the nature, circumstances, extent, and gravity of the violation, the
violator's past and present efforts to prevent, abate, or clean up
conditions posing a threat to the public health or safety or the
environment, the violator's ability to pay the proposed penalty, and
the prophylactic effect that the imposition of the proposed penalty
would have on both the violator and the regulated community as a
whole.
(b) The department or a unified program agency, in accordance with
subdivision ( ) (l)
, may issue an order requiring corrective action whenever the
department or Unified Program Agency determines that there is or has
been a release, as defined in Chapter 6.8 (commencing with Section
25300), of hazardous waste or constituents into the environment from
a hazardous waste facility.
(1) In the case of a release of hazardous waste or constituents
into the environment from a hazardous waste facility that is required
to obtain a permit pursuant to Article 9 (commencing with Section
25200), the department shall pursue the remedies available under this
chapter, including the issuance of an order for corrective action
pursuant to this section, before using the legal remedies available
pursuant to Chapter 6.8 (commencing with Section 25300), except in
any of the following circumstances:
(A) Where the person who is responsible for the release
voluntarily requests in writing that the department issue an order to
that person to take corrective action pursuant to Chapter 6.8
(commencing with Section 25300).
(B) Where the person who is responsible for the release is unable
to pay for the cost of corrective action to address the release. For
purposes of this subparagraph, the inability of a person to pay for
the cost of corrective action shall be determined in accordance with
the policies of the Environmental Protection Agency for the
implementation of Section 9605 of Title 42 of the United States Code.
(C) Where the person responsible for the release is unwilling to
perform corrective action to address the release. For purposes of
this subparagraph, the unwillingness of a person to take corrective
action shall be determined in accordance with the policies of the
Environmental Protection Agency for the implementation of Section
9605 of Title 42 of the United States Code.
(D) Where the release is part of a regional or multisite
groundwater contamination problem that cannot, in its entirety, be
addressed using the legal remedies available pursuant to this chapter
and for which other releases that are part of the regional or
multisite groundwater contamination problem are being addressed using
the legal remedies available pursuant to Chapter 6.8 (commencing
with Section 25300).
(E) Where an order for corrective action has already
been issued against the person responsible for the release,
or the department and the person responsible for the release have,
prior to January 1, 1996, entered into an agreement to address the
required cleanup of the release pursuant to Chapter 6.8 (commencing
with Section 25300).
(F) Where the hazardous waste facility is owned or operated by the
federal government.
(2) The order shall include a requirement that the person take
corrective action with respect to the release of hazardous waste or
constituents, abate the effects thereof, of
the release, and take any other necessary remedial action.
(3) If the order requires corrective action at a hazardous waste
facility, the order shall require that corrective action be taken
beyond the facility boundary, where necessary to protect human health
or the environment.
(4) The order shall incorporate, as a condition of the order, any
applicable waste discharge requirements issued by the State Water
Resources Control Board or a California regional water quality
control board, and shall be consistent with all applicable water
quality control plans adopted pursuant to Section 13170 of the Water
Code and Article 3 (commencing with Section 13240) of Chapter 4 of
Division 7 of the Water Code and state policies for water quality
control adopted pursuant to Article 3 (commencing with Section 13140)
of Chapter 3 of Division 7 of the Water Code existing at the time of
the issuance of the order, to the extent that the department or
Unified Program Agency determines that those plans and policies are
not less stringent than this chapter and regulations adopted pursuant
to this chapter. The order may include any a
more stringent requirement that the department or Unified
Program Agency determines is necessary or appropriate to protect
water quality.
(5) Persons who are subject to an order pursuant to this
subdivision include present and prior owners, lessees, or operators
of the property where the hazardous waste is located, present or past
generators, storers, treaters, transporters, disposers, and handlers
of hazardous waste, and persons who arrange, or have arranged, by
contract or other agreement, to store, treat, transport, dispose of,
or otherwise handle hazardous waste.
(6) For purposes of this subdivision, "hazardous waste facility"
includes the entire site that is under the control of an owner or
operator engaged in the management of hazardous waste.
(c) Any An order issued pursuant to
this section shall be served by personal service or certified mail
and shall inform the person so served of the right to a hearing. If
the Unified Program Agency issues the order pursuant to this section,
the order shall state whether the hearing procedure specified in
paragraph (2) of subdivision (f) may be requested by the person
receiving the order.
(d) Any A person served with an
order pursuant to this section who has been unable to resolve any
violation or deficiency on an informal basis with the department or
Unified Program Agency may, within 15 days after service of the
order, request a hearing pursuant to subdivision (e) or (f) by filing
with the department or Unified Program Agency a notice of defense.
The notice shall be filed with the office that issued the order. A
notice of defense shall be deemed filed within the 15-day period
provided by this subdivision if it is postmarked within that 15-day
period. If no a notice of defense is
not filed within the time limits provided by this
subdivision, the order shall become final.
(e) Any A hearing requested on an
order issued by the department shall be conducted within 90 days
after receipt of the notice of defense by an administrative law judge
of the Office of Administrative Hearings of the Department of
General Services in accordance with Chapter 4.5 (commencing with
Section 11400) of Part 1 of Division 3 of Title 2 of the Government
Code, and the department shall have all the authority granted to an
agency by those provisions.
(f) Except as provided in subparagraph (B) of paragraph (2), a
person requesting a hearing on an order issued by a unified program
agency may select the hearing process specified in either paragraph
(1) or (2) in the notice of defense filed with the Unified Program
Agency pursuant to subdivision (d). Within 90 days of receipt of the
notice of defense by the Unified Program Agency, the hearing shall be
conducted using one of the following procedures:
(1) An administrative law judge of the Office of Administrative
Hearings of the Department of General Services shall conduct the
hearing in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code.
(2) (A) A hearing officer designated by the Unified Program Agency
shall conduct the hearing in accordance with Chapter 4.5 (commencing
with Section 11400) of Part 1 of Division 3 of Title 2 of the
Government Code, and the Unified Program Agency shall have all the
authority granted to an agency by those provisions. When a hearing is
conducted by a unified program agency pursuant to this paragraph,
the Unified Program Agency shall, within 60 days of the hearing,
issue a decision.
(B) A person requesting a hearing on an order issued by a unified
program agency may select the hearing process specified in this
paragraph in a notice of defense filed pursuant to subdivision (d)
only if the Unified Program Agency has, as of the date the order is
issued pursuant to subdivision (c), selected a designated hearing
officer and established a program for conducting a hearing in
accordance with this paragraph.
(g) The hearing decision issued pursuant to subdivision (f) shall
be effective and final upon issuance. Copies of the decision shall be
served by personal service or by certified mail upon the party
served with the order and upon other persons who appeared at the
hearing and requested a copy.
(h) Any A provision of an order
issued under this section, except the imposition of an administrative
penalty, shall take effect upon issuance by the department or
Unified Program Agency if the department or Unified Program Agency
finds that the violation or violations of law associated with that
provision may pose an imminent and substantial endangerment to the
public health or safety or the environment, and a request for a
hearing shall not stay the effect of that provision of the order
pending a hearing decision. However, if the department or Unified
Program Agency determines that any or all provisions of the order are
so related that the public health or safety or the environment can
be protected only by immediate compliance with the order as a whole,
then the order as a whole, except the imposition of an administrative
penalty, shall take effect upon issuance by the department or
Unified Program Agency. A request for a hearing shall not stay the
effect of the order as a whole pending a hearing decision.
(i) A decision issued pursuant to this section may be reviewed by
the court pursuant to Section 11523 of the Government Code. In all
proceedings pursuant to this section, the court shall uphold the
decision of the department or Unified Program Agency if the decision
is based upon substantial evidence in the whole record. The filing of
a petition for writ of mandate shall not stay any action required
pursuant to this chapter or the accrual of any penalties assessed
pursuant to this chapter. This subdivision does not prohibit the
court from granting any appropriate relief within its jurisdiction.
(j) (1) All administrative penalties
collected from actions brought by the department pursuant to this
section shall be placed in a separate subaccount in
the Toxic Substances Control Account and shall be available
only for transfer to the Site Remediation Account or the
Expedited Site Remediation Trust Fund and for expenditure by the
department upon appropriation by the Legislature for
the following purposes: .
(A) For transfer to the Site Remediation Account.
(B) For transfer to the Expedited Site Remediation Trust Fund.
(C) For transfer to the Orphan Share Reimbursement Trust Fund,
only for purposes of paying off claims for reimbursement filed by
project proponents, as defined in Section 25390.
(D) For transfer to the Pollution Prevention Technology Assistance
Grant Fund created pursuant to Section 25244.25.
(E) For the purposes of subparagraph (E) of paragraph (1) of
subdivision (b) of Section 25173.6.
(2) Moneys may only be appropriated for the purposes specified in
subparagraphs (C) to (E), inclusive, of paragraph (1) if the moneys
transferred pursuant to subparagraphs (A) and (B) of paragraph (1) in
any year are in excess of the amounts specified in Section 25173.7.
(k) All administrative penalties collected from an action brought
by a unified program agency pursuant to this section shall be paid to
the Unified Program Agency that imposed the penalty, and shall be
deposited into a special account that shall be expended to fund the
activities of the Unified Program Agency in enforcing this chapter
pursuant to Section 25180.
( )
(l) The authority granted under this section
to a unified program agency is limited to both of the following:
(1) The issuance of orders to impose penalties and to correct
violations of the requirements of this chapter and its implementing
regulations, only when the violations are violations of requirements
applicable to hazardous waste generators and persons operating
pursuant to a permit-by-rule, conditional authorization, or
conditional exemption, when the violations occur at a unified program
facility within the jurisdiction of the CUPA.
(2) The issuance of orders to require corrective action when there
has been a release of hazardous waste or constituents only when the
Unified Program Agency is authorized to do so pursuant to Section
25404.1.
(m) The CUPA shall annually submit a summary report to the
department on the status of orders issued by the unified program
agencies under this section and Section 25187.1.
(n) The CUPA shall consult with the district attorney for the
county on the development of policies to be followed in exercising
the authority delegated pursuant to this section and Section 25187.1,
as they relate to the authority of unified program agencies to issue
orders.
(o) The CUPA shall arrange to have appropriate legal
representation in administrative hearings that are conducted by an
administrative law judge of the Office of Administrative Hearings of
the Department of General Services, and when a decision issued
pursuant to this section is appealed to the superior court.
(p) The department may adopt regulations to implement this section
and paragraph (2) of subdivision (a) of Section 25187.1 as they
relate to the authority of unified program agencies to issue orders.
The regulations shall include, but not be limited to, all of the
following requirements:
(1) Provisions to ensure coordinated and consistent application of
this section and Section 25187.1 when both the department and the
Unified Program Agency have or will be issuing orders under one or
both of these sections at the same facility.
(2) Provisions to ensure that the enforcement authority granted to
the unified program agencies will be exercised consistently
throughout the state.
(3) Minimum training requirements for staff of the Unified Program
Agency relative to this section and Section 25187.1.
(4) Procedures to be followed by the department to rescind the
authority granted to a unified program agency under this section and
Section 25187.1, if the department finds that the Unified Program
Agency is not exercising that authority in a manner consistent with
this chapter and Chapter 6.11 (commencing with Section 25404) and the
regulations adopted pursuant thereto.
(q) Except for an enforcement action taken pursuant to this
chapter or Chapter 6.8 (commencing with Section 25300), this section
does not otherwise affect the authority of a local agency to take any
action under any other provision of law.
SEC. 3. Section 25244.25 is added to the Health and Safety Code,
to read:
25244.25. (a) The Pollution Prevention Technology Assistance
Grant Fund is hereby established in the State Treasury and shall be
administered by the director.
(b) In addition to other moneys that may be appropriated by the
Legislature to the fund, all of the following shall be deposited into
the fund:
(1) Administrative penalties transferred pursuant to subparagraph
(D) of paragraph (1) of subdivision (j) of Section 25187.
(2) Interest earned upon the moneys deposited in the fund.
(c) (1) Upon appropriation by the Legislature, moneys in the fund
may be used by the department to pay for grants to assist small
businesses in purchasing pollution prevention equipment and to pay
for the department's administrative costs in implementing this
section.
(2) A small business receiving a grant issued pursuant to
paragraph (1) shall not expend the grant money to purchase equipment
to comply with an existing local, state, or federal law, rule,
regulation, or memorandum of agreement or understanding, or with any
other legally binding document.
(d) (1) The department may adopt regulations that the department
determines are necessary to implement this section.
(2) Regulations adopted by the department pursuant to this section
shall be adopted as emergency regulations in accordance with Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code. The initial adoption, amendment, or repeal
of a regulation authorized by this section is deemed to be necessary
for the immediate
preservation of the public peace, health, and safety, or general
welfare, for the purposes of Sections 11346.1 and 11349.6 of the
Government Code, and the department is hereby exempted from the
requirement that it describe specific facts showing the need for
immediate action.
(e) For the purposes of this section, the following terms mean the
following:
(1) "Fund" means the Pollution Prevention Technology Assistance
Grant Fund.
(2) "Small business" means an independently owned and operated
business, that is not dominant in its field of operation, that,
together with affiliates, has 100 or fewer employees, and that has
average annual gross receipts of ten million dollars ($10,000,000) or
less over the previous three years, or a business that is a
manufacturer, as defined in Section 14837 of the Government Code,
with 100 or fewer employees.
SEC. 4. Section 25390 of the Health and Safety Code is amended to
read:
25390. For purposes of this article, the following definitions
shall apply:
(a) "Fund" means the Orphan Share Reimbursement Trust Fund
established pursuant to Section 25390.3.
(b) "Orphan share" means the share of liability for the costs of
response action that is attributable to the activities of persons who
are defunct or insolvent, as determined pursuant to Section 25390.5.
(c) "Project proponent" means a person who applies to the
department for approval to conduct the response to a release or
threatened release of hazardous substances. "Project proponent" does
not include a responsible party.
(d) "Responsible party" has the same meaning as set forth in
Section 25323.5.
SEC. 5. Section 25390.1 of the Health and Safety Code is amended
to read:
25390.1. The Legislature finds and declares all of the following:
(a) This article, which establishes an Orphan Share Reimbursement
Trust Fund, operates in conjunction with the federal liability scheme
under the federal act as in effect on July 1, 1998, for the recovery
of response costs expended by government agencies.
(b) Under federal liability, at sites where there are insolvent or
defunct parties that cannot contribute to the cost of cleanup,
viable responsible parties pay the share of liability for that
cleanup that may be attributable to insolvent and defunct parties.
(c) The Orphan Share Reimbursement Trust Fund is created to
mitigate the payment of an insolvent or defunct party's liability
share by viable responsible parties or project proponents ,
to the extent money in the fund is available, and to encourage
responsible parties or project proponents to quickly and
efficiently remediate contamination.
SEC. 6. Section 25390.3 of the Health and Safety Code is amended
to read:
25390.3. (a) The Orphan Share Reimbursement Trust Fund is hereby
created in the State Treasury.
(b) The administrator of the fund may expend the money deposited
in the fund as provided in this article, upon appropriation by the
Legislature. The administrator of the fund shall act in a fiduciary
capacity, shall prudently administer the fund, and shall protect the
fund from any unreasonable or unjustified claims, including any
unreasonable or unjustified determinations of the orphan share
percentage.
(c) Except as provided in subdivision (d)
subdivisions (d) and (e) of this section, and subdivision (b)
of Section 25358.7.2, the administrator of the fund may expend the
money in the fund for all of the following purposes:
(1) To pay claims for reimbursement of all, or any part of, the
orphan share at a site paid by the responsible party or a
project proponent filed pursuant to Section 25390.4.
(2) For the costs of implementing this article.
(3) To pay the reasonable costs of the department and the regional
board for performance of its duties under this article, including,
but not limited to, its participation in the orphan share
determination process set forth in Section 25390.5, unless those
costs are paid by a potentially responsible party or a project
proponent under an agreement specified in paragraph (3) of
subdivision (a) of Section 25390.4. The expenditures from the fund
for purposes of this paragraph shall not exceed 5 percent of the
total amount appropriated from the fund in the annual Budget Act for
purposes of this subdivision for that fiscal year.
(4) To pay the portion of costs attributable to the orphan share
incurred by the department and the regional boards to oversee actions
of potentially responsible parties or project proponents
, unless those costs are paid by a potentially responsible party
or a project proponent under an agreement specified in
paragraph (3) of subdivision (a) of Section 25390.4.
(d) If an appropriation from the General Fund is made to the fund
in any fiscal year and an amount greater than five million dollars
($5,000,000) in unexpended funds, beyond any amount approved by the
administrator of the fund to pay claims pursuant to this article from
that General Fund appropriation, remain in the fund at the end of
that fiscal year, and if the department determines that additional
funding for orphan sites beyond that appropriated from the Toxic
Substances Control Account is required for the next fiscal year, the
administrator may expend the amount in excess of five million dollars
($5,000,000) from the General Fund appropriation to pay for response
costs incurred by the department or the regional boards under this
chapter at sites listed pursuant to Section 25356 where no viable
responsible parties exist.
(e) If a transfer is made pursuant to subparagraph (C) of
paragraph (1) of subdivision (j) of Section 25187, the administrator
of the fund may expend the moneys transferred only for the purposes
of paying claims for reimbursement pursuant to paragraph (1) of
subdivision (c) filed by project proponents.
SEC. 7. Section 25390.4 of the Health and Safety Code is amended
to read:
25390.4. (a) A potentially responsible party or a project
proponent may file a claim pursuant to paragraph (1) of
subdivision (c) of Section 25390.3 only if all of the following
apply:
(1) The site is listed pursuant to Section 25356.
(2) The department or the regional board has approved a final
remedy for the site under Section 25356.1.
(3) The department and the potentially responsible party or
the project proponent have entered into either a
written, enforceable cleanup agreement or an order
embodied in a consent order issued pursuant to Section 25355.5 or
25358.3, or the regional board and the potentially responsible party
or the project proponent have entered into either
a written, enforceable cleanup agreement or a n
order that provides for the completion of all response actions
necessary at the site, conducted pursuant to this chapter and under
the oversight and at the direction of the department or the regional
board. The agreement shall provide for the payment by the potentially
responsible party or the project proponent of the
department's or the regional board's response costs.
(4) The potentially responsible party or project proponent
demonstrates, and the department or the regional board finds,
that the potentially responsible party or project proponent
has and will have sufficient financial resources to complete
all required response actions.
(5) The potentially responsible party or the project
proponent is in compliance with the agreement provided in
paragraph (3), and with any other applicable order or agreement
pertaining to the potentially responsible party's or the project
proponent's obligations with respect to the site.
(6) The potentially responsible party or project proponent
has prepared and provided the information required under
subdivision (b) of Section 25390.5.
(7) The claim for reimbursement is for the costs incurred for
response actions that were subject to the oversight and approval of
the department or the regional board.
(b) The administrator of the fund shall prescribe appropriate
application forms and procedures for claims filed pursuant to
paragraph (1) of subdivision (c) of Section 25390.3 that shall
include all of the following:
(1) Requirements that the claimant provide, at a minimum, all of
the following documentation:
(A) A sworn verification of the claim to the best of the
information known to the claimant or within the claimant's possession
or control.
(B) All records and information pertaining to the site and
relevant to the ownership, operation, or control of the site, or to
the ownership, possession, generation, treatment, transportation,
storage or disposal of a hazardous substance, pollutant, or
contaminant at or in connection with the site, within the possession
or control of the claimant, including, but not limited to, the
information specified in subdivision (b) of Section 25358.1.
(C) Certification of all response costs that have been, or will
be, incurred at the site by the potentially responsible party or
the project proponent , and an estimate of the total cost of
completion of the approved final remedy at the site.
(2) Procedures specifying that claims shall be filed only at the
two following specific time periods during the performance of a
response action:
(A) After the final remedy is selected under Section 25356.1.
(B) After the department or the regional board determines that the
response action is complete. The department or the regional board
shall not include operation and maintenance activities in determining
whether the response action is complete under this subparagraph.
(c) The administrator of the fund shall annually, on a fiscal year
basis, pay claims for reimbursement from the fund filed by
potentially responsible parties and project proponents
under paragraph (1) of subdivision (c) of Section 25390.3, in
accordance with the following procedures:
(1) Claims for funds available during each fiscal year shall be
filed with the administrator by July 30 of that fiscal year.
(2) For sites with multiple responsible parties or projec
t proponents , all potentially responsible parties
and project proponents that have entered into the cleanup
agreement specified in paragraph (3) of subdivision (a) of Section
25390.4 shall file a single claim.
(3) (A) The administrator shall allocate the money available in
the fund for the fiscal year among the claims filed by the July 30
deadline. The allocation shall be based on the determination of the
orphan share percentage at the facility under the process set forth
in Section 25390.5, the long-term financial stability and short-term
resources available in the fund, and the administrator's fiduciary
duty with respect to the fund. Except as provided in subparagraph
(B), the administrator shall pay claims for funds in the order in
which they are received.
(B) Notwithstanding subparagraph (A), if an appropriation from the
General Fund is made to the fund in any fiscal year, the
administrator may alter the order of payment of claims required by
subparagraph (A) by using funds appropriated from the General Fund to
pay claims based on the threat to public health or the environment
posed by a site or the need to improve economic and environmental
conditions in redeveloping communities.
(4) The total amount allocated to any one site shall not exceed 10
percent of the total amount available each fiscal year in the fund.
If, due to this limit or to the unavailability of funds, a claimant
receives only partial or no reimbursement of the orphan share paid by
that claimant, the claim shall be paid in the following fiscal year
and shall be given priority over all claims filed after the claim was
initially received, subject to the discretion of the administrator
set forth in paragraph (3).
(5) The administrator's proposed allocation shall be subject to
public review and comment for 30 days.
(d) The state and the fund have no obligation to provide full
reimbursement to a claimant. The fund shall be allocated at the
discretion of the administrator, subject to the requirements of this
article. In enacting this article, the Legislature intends that
claimants be reimbursed only to the extent that money is available in
the fund and is allocated to the claimant by the administrator.