California Legislature—2013–14 Regular Session

Assembly Bill No. 440

Introduced by Assembly Member Gatto

February 15, 2013

An act to add Chapter 6.10 (commencing with Section 25403) to Division 20 of the Health and Safety Code, relating to hazardous substances.

LEGISLATIVE COUNSEL’S DIGEST

AB 440, as introduced, Gatto. Hazardous substances: releases: local agency cleanup or remedy.

Existing law dissolved redevelopment agencies and community development agencies, as of February 1, 2012, and provides for the designation of successor agencies, as defined. Existing law requires successor agencies to wind down the affairs of the dissolved redevelopment agencies and to, among other things, perform obligations required pursuant to any enforceable obligation, including, but not limited to, any obligations under the Polanco Redevelopment Act to remedy or remove the release of hazardous substances within a project area consistent with state and federal laws, as specified.

Existing law, the Carpenter-Presley-Tanner Hazardous Substance Account Act, imposes liability for hazardous substance removal or remedial actions and requires the Department of Toxic Substances Control to adopt, by regulation, criteria for the selection and for the priority ranking of hazardous substance release sites for removal or remedial action under the act.

This bill would authorize a local agency to take any action similar to that under the Polanco Redevelopment Act that the local agency determines is necessary, consistent with other state and federal laws, to remedy or remove a release of hazardous substances within the boundaries of the local agency, pursuant to the procedures specified in the bill.

The bill would require the Department of Toxic Substances Control and the California regional water quality control board to adopt and post cleanup guidelines for the taking of a remedial and removal action. A local agency would be required to submit for approval a cleanup plan to the regional board or a remedial action plan to the department before taking action. The bill would allow the local agency to take those remedial or removal actions only under specified conditions with regard to the responsible party for the release, unless the local agency is taking action to investigate or conduct feasibility studies concerning a release or determines that conditions require immediate action.

The bill would allow the local agency to designate another agency, in lieu of the department or the regional board, to review and approve a cleanup plan or remedial action plan and to oversee the remediation or removal of hazardous substances from a hazardous substance release site, under certain conditions. The bill would immunize a local agency that remedies or removes a hazardous substance release, pursuant to those provisions, from liability under specified state laws, if the action is in accordance with a cleanup plan or remedial action plan prepared by a qualified independent contractor, as defined, and approved by the department, a regional board, or the designated agency, and the remedial or removal action is undertaken and properly completed. The bill would authorize the recovery by a local agency of cleanup and remedial costs from the liable party.

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.  

Chapter 6.10 (commencing with Section 25403)
is added to Division 20 of the Health and Safety Code, to read:

 

Chapter  6.10. Hazardous Substance Release Cleanup

 

25403.  

For purposes of this article, the following terms shall
have the following meanings:

(a) “CUPA” means the Certified Unified Program Agency
certified to implement the unified program pursuant to Chapter
6.11 (commencing with Section 25404).

(b) “Department” means the Department of Toxic Substances
Control.

(c) “Designated agency” means an agency designated by the
local agency pursuant to paragraph (1) or (2) of subdivision (d) of
Section 25403.1.

(d) “Director” means the Director of Toxic Substances Control.

(e) “Hazardous substance” means a hazardous substance as
defined in subdivision (h) of Section 25281, and any reference to
hazardous substance in the definitions referenced in this section
shall be deemed to refer to hazardous substance, as defined in this
subdivision.

(f) “Local agency” means a county, a city, or a housing
authority, as provided in Section 34240.

(g) “Person” means an individual, trust, firm, joint stock
company, business concern, partnership, limited liability company,
association, and corporation, including, but not limited to, a
government corporation. “Person” also includes any local agency,
county, district, commission, the state or any department, agency,
or political subdivision thereof, any interstate body, and the federal
government or any department or agency thereof to the extent
permitted by law.

(h) “Phase I environmental assessment” has the same meaning
as defined in Section 25200.14, except with respect to a hazardous
substance.

(i) “Qualified independent contractor” means an independent
contractor who is any of the following:

(1) An engineering geologist who is certified pursuant to Section
7842 of the Business and Professions Code.

(2) A geologist who is registered pursuant to Section 7850 of
the Business and Professions Code.

(3) A civil engineer who is registered pursuant to Section 6762
of the Business and Professions Code.

(j) “Regional board” means a California regional water quality
control board.

(k) “Release” means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment.

(l) (1) “Remedy” or “remove” means an action to assess,
evaluate, investigate, monitor, remove, correct, clean up, or abate
a release of a hazardous substance or to develop plans for those
actions.

(2) “Remedy” includes all of the following:

(A) Those actions that are consistent with a permanent remedy,
that are taken instead of, or in addition to, removal actions in the
event of a release or threatened release of a hazardous substance
into the environment. “Remedy” also includes those actions
specified in Section 9601 of Title 42 of the United States Code,
except that any reference in Section 9601 of Title 42 of the United
States Code to the President, relating to determinations regarding
the relocation of residents, businesses, and community facilities
shall, for the purposes of this chapter, be deemed to be a reference
to the Governor, and any other reference in that section to the
President shall, for the purposes of this chapter, be deemed a
reference to the Governor, or the director, if designated by the
Governor.

(B) Those actions that are necessary to monitor, assess, and
evaluate a release or a threatened release of a hazardous substance.

(C) Site operation and maintenance.

(3) “Remove” includes the cleanup or removal of released
hazardous substances from the environment or the taking of other
actions as may be necessary to prevent, minimize, or mitigate
damage that may otherwise result from a release or threatened
release. “Remove” includes those actions specified in Section 9601
of Title 42 of the United States Code.

(m) “Responsible party” means a person described in subdivision
(a) of Section 25323.5 of this code or subdivision (a) of Section
13304 of the Water Code.

(n) “State board” means the State Water Resources Control
Board.

25403.1.  

(a) (1) A local agency may take any action that the
local agency determines is necessary and that is consistent with
other state and federal laws to remedy or remove a release of
hazardous substances on, under, or from property within a local
agency’s boundaries, whether the local agency owns that property
or not, in accordance with the requirements of this chapter. When
taking action pursuant to this chapter, if the local agency does not
own property that is the subject of the removal or remedial action,
the local agency has the right of entry upon that property, if, upon
providing notice to the owner of that property, the owner of the
property does not respond to the notice.

(2)  The department and regional board shall adopt and post on
that agency’s Internet Web site general cleanup guidelines with
regard to taking action to remedy or remove a release pursuant to
this chapter.

(3)  The adoption and posting of general cleanup guidelines
pursuant to this section shall not be deemed the adoption of a
regulation for purposes of Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code
and shall be exempt from those provisions.

(4)  A local agency shall, before taking action to remedy or
remove the release, do both of the following:

(A) Have a remedial action plan or cleanup plan prepared,
pursuant to those guidelines, by an independent qualified
contractor.

(B) Submit a cleanup plan to the regional board or a remedial
action plan to the department for approval.

(5) The regional board or the department shall respond to the
local agency’s request for approval of a cleanup plan or remedial
action plan within 60 days of the receipt of the plan.

(6) Within 60 days after approval of the cleanup plan or remedial
action plan, pursuant to applicable statutes and regulations, the
director, or the regional board, as appropriate, shall acknowledge,
in writing, that upon proper completion of the remedial or removal
action in accordance with the plan, the immunity provided by
Section 25403.2 shall apply to the local agency.

(7) The local agency shall notify the department and local health
and building departments and the regional board, of any cleanup
activity pursuant to this section at least 30 days before the
commencement of the activity.

(8) If an action taken by a local agency or a responsible party
to remedy or remove a release of a hazardous substance does not
meet, or is not consistent with, a cleanup plan approved by the
regional board or a remedial action plan approved by the
department, the department or the regional board that approved
the cleanup plan or remedial action plan may require the local
agency to take, or cause the taking of, additional action to remedy
or remove the release, as provided by applicable law.

(9) If an administering agency for the site has been designated
pursuant to Section 25262, the department or the regional board
may impose any requirements for additional action pursuant to
paragraph (8) only as provided in Sections 26263 and 25265.

(10) If methane or landfill gas is present, the local agency shall
obtain written approval from the Department of Resources
Recycling and Recovery prior to taking action authorized under
this subdivision.

(b) Except as provided in subdivision (c), a local agency may
take the actions specified in subdivision (a) only under one of the
following conditions:

(1) There is no responsible party for the release identified by
the local agency.

(2) Both of the following apply:

(A) A party determined by the local agency to be a responsible
party for the release has been notified by the local agency, or has
received adequate notice from the department, a regional board,
the California Environmental Protection Agency, or other
governmental agency with relevant authority, and has been given
60 days to respond and to propose a remedial action plan and
schedule.

(B) The responsible party specified in subparagraph (A) has not
agreed within an additional 60 days to implement a plan and
schedule to remedy or remove the release that meets both of the
following requirements:

(i) The plan and schedule are acceptable to the local agency.

(ii) The local agency makes a finding that the plan and schedule
are consistent with the intended use of the property.

(3) (A) The party determined by the local agency to be the
responsible party for the hazardous substance release entered into
an agreement with the local agency to prepare a remedial action
plan or cleanup plan for approval by the department, the regional
board, or the appropriate local agency, and to implement the
remedial action plan or cleanup plan in accordance with an agreed
schedule, but failed to do any of the following:

(i) Prepare the remedial action plan or cleanup plan.

(ii) Implement the remedial action plan or cleanup plan in
accordance with the agreed schedule.

(iii) Otherwise failed to carry out the remedial action in an
appropriate and timely manner.

(B) An action taken by the local agency pursuant to this
paragraph shall be consistent with any agreement between the local
agency and the responsible party and with the requirements of the
state agency or the local agency that approved or will approve the
remedial action plan or cleanup plan and is overseeing or will
oversee the preparation and implementation of the remedial action
plan.

(c) Subdivision (b) does not apply to either of the following:

(1) A local agency taking actions to investigate or conduct
feasibility studies concerning a release.

(2) A local agency taking the actions specified in subdivision
(a) if the local agency determines that conditions require immediate
action.

(d) (1) A local agency may designate another agency, in lieu
of the department or the regional board, to review and approve a
cleanup plan or a remedial action plan and to oversee the
remediation or removal of hazardous substances from a specific
hazardous substance release site if the agency is designated as the
administering agency under Section 25262. In that event, the
designated agency shall conduct the oversight of the remedial
action in accordance with Chapter 6.65 (commencing with Section
25260), and all provisions of that chapter shall apply to the
remedial action.

(2) A local agency may designate another agency to review and
approve a cleanup plan or a remedial action plan for a site and
oversee the remediation and removal action at the site if all of the
following conditions exist:

(A) The designated agency is certified as a CUPA.

(B) The site is an underground storage tank site subject to
Chapter 6.7 (commencing with Section 25280).

(C) The designated agency is certified pursuant to Section
25297.01 and the state board has entered into an agreement with
that agency pursuant to Section 25297.1.

(D) The designated agency determines that the site is within the
guidelines and protocols established in, and pursuant to, the
agreement specified in subparagraph (C).

(E) The designated agency consents to the designation.

(3) Within 60 days after approving a cleanup plan or a remedial
action plan pursuant to paragraph (1) or (2), the designated agency
shall issue a notice that, upon proper completion of the remedial
or removal action plan, the immunity specified in Section 25403.2
shall apply to the local agency. If the designated agency was
formed by the local agency, the cleanup plan or remedial action
plan shall also be subject to the approval of the department or
regional board.

(4) (A) An agency may not consent to the designation pursuant
to paragraph (1) or (2) unless the designated agency determines
that it has adequate staff resources and the requisite technical
expertise and capabilities available to adequately supervise the
remedial action.

(B) If an agency has been designated pursuant to paragraph (2),
the department or a regional board may require the designated
agency withdraw from the designation or stop taking that action,
after providing the designated agency with adequate notice, if both
of the following conditions are met:

(i) The department or a regional board determines that the
agency’s designation was not consistent with paragraph (2), or
makes one of the findings specified in subdivision (d) of Section
101480.

(ii) The department or a regional board determines that it has
adequate staff resources and capabilities available to adequately
supervise the remedial action, and assumes that responsibility.

(C) This paragraph does not prevent a regional board from taking
an action pursuant to Division 7 (commencing with Section 13000)
of the Water Code.

(5) If an agency has been designated pursuant to paragraph (1)
or (2), the designated agency may, after providing the local agency
with adequate notice, withdraw from its designation or stop taking
action after making one of the findings specified in subdivision
(d) of Section 101480.

(e) (1) To facilitate remedial planning, the local agency may
require the owner or operator of a site within the local agency’s
jurisdictional boundaries to provide the local agency with all
existing environmental information pertaining to the site, including
the results of any phase I or subsequent environmental assessment,
any assessment conducted pursuant to an order from, or agreement
with, any federal, state, or local agency, and any other
environmental assessment information, except that which is
determined to be privileged.

(2) A person requested to furnish the information pursuant to
paragraph (1) shall be required only to furnish that information
that may be within that person’s possession or control, including
actual knowledge of information within the possession or control
of any other party. If environmental assessment information is not
available, the local agency may require the owner of the property
to conduct, and to pay the expenses of conducting, an assessment
in accordance with standard real estate practices for conducting
phase I or phase II environmental assessments.

25403.2.   

(a) (1) Notwithstanding any other law, except as
otherwise provided in this chapter, a local agency that undertakes
and completes an action, or causes another person to undertake
and complete an action pursuant to Section 25403.1 for which a
finding of completion is made pursuant to subdivision (b), to
remedy or remove a hazardous substance release on, under, or
from property the local agency’s boundaries, in accordance with
a cleanup plan or remedial action plan prepared by a qualified
independent contractor and approved by the department, a regional
board, or the designated agency, in accordance with Section
25403.1 is not liable, with respect to that release only, pursuant to
any of the following:

(A) Division 7 (commencing with Section 13000) of the Water
Code.

(B) Chapter 6.5 (commencing with Section 25100), Chapter 6.7
(commencing with Section 25280), Chapter 6.75 (commencing
with Section 25299.10), or Chapter 6.8 (commencing with Section
25300), of Division 20.

(C) Any other state or local law imposing liability for remedial
or removal actions to releases of hazardous substances.

(2) If the remedial action was also performed pursuant to
Chapter 6.65 (commencing with Section 25260) of Division 20,
and a certificate of completion is issued pursuant to subdivision
(b) of Section 25264, the immunity from local agency action
provided by the certificate of completion, as specified in
subdivision (c) of Section 25264, shall apply to the local agency,
in addition to the immunity conferred by this section.

(3) In the case of a remedial action performed pursuant to
Chapter 6.65 (commencing with Section 25260) of Division 20,
and for which the administering agency is a local agency, the
limitations on the certificate of completion set forth in paragraphs
(1) to (6), inclusive, of subdivision (c) of Section 25264 are limits
on any immunity provided for by this section and subdivision (c)
of Section 25264.

(b) Notwithstanding any provision of law or policy providing
for certification by a person conducting a remedial or removal
action that the action has been properly completed, a determination
that a remedial or removal action has been properly completed
pursuant to this section shall be made only upon the affirmative
approval of the director, the regional board, or the designated
agency, as appropriate. The department or regional board, as
appropriate, shall, within 60 days of the date it finds that a remedial
or removal action has been completed, notify the local agency in
writing that the immunity provided by this section is in effect. If
another agency is designated to oversee the remedial or removal
action pursuant to paragraph (1) or (2) of subdivision (d) of Section
25403.1, the designated agency shall issue a notice within 60 days
of the date it finds that a remedial or removal action has been
completed.

(c) Upon proper completion of a remedial or removal action,
as specified in subdivision (b), the immunity from action provided
by the certificate of completion provided pursuant to subdivision
(c) of Section 25264 and the immunity provided by this section
extends to all of the following, but only for the release or releases
specifically identified in the approved cleanup or remedial action
plan and not for any subsequent release or any release not
specifically identified in the approved cleanup plan or remedial
action plan:

(1) An employee or agent of the local agency, including an
instrumentality of the local agency authorized to exercise some,
or all, of the powers of a local agency within, or for the benefit of,
a local agency and an employee or agent of the instrumentality.

(2) A person that enters into an agreement with a local agency
for the development of property, if the agreement requires the
person to acquire property affected by a hazardous substance
release or to remove or remedy a hazardous substance release with
respect to that property.

(3) A person that acquires the property after a person has entered
into an agreement with a local agency for development of the
property, as described in paragraph (2).

(4) A person that provides financing to a person specified in
paragraph (2) or (3).

(d) Notwithstanding any other law, the immunity provided by
this section does not extend to any of the following:

(1) A person that was a responsible party for the release before
entering into an agreement, acquiring property, or providing
financing, as specified in subdivision (c).

(2) A person specified in subdivision (a) or (c) for any
subsequent release of a hazardous substance or any release of a
hazardous substance not specifically identified in the approved
cleanup plan or remedial action plan.

(3) A contractor who prepares the cleanup plan or remedial
action plan, or conducts the removal or remedial action.

(4) A person that obtains an approval of a cleanup plan or
remedial action plan pursuant to Section 25403.1, or a finding, as
specified in subdivision (b), by fraud, negligent or intentional
nondisclosure, or misrepresentation, and a person that knows before
the approval or determination is obtained or before the person
enters into an agreement, acquires the property or provides
financing, as specified in subdivision (c), that the approval or
determination was obtained by these means.

(e) The immunity provided by this section is in addition to any
other immunity provided by law to a local agency.

(f) This section does not impair any cause of action by a local
agency or any other party against the person responsible for the
hazardous substance release that is the subject of the removal or
remedial action taken by the local agency or other person immune
from liability pursuant to this section.

(g) This section does not apply to, or limit, alter, or restrict, an
action for personal injury or wrongful death.

(h) This section does not limit liability of a person described in
paragraph (3) or (4) of subdivision (d) for damages under the
federal Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et
seq.).

(i) This section does not establish, limit, or affect the liability
of a local agency for a release of a hazardous substance that is not
investigated or remediated pursuant to this section or Chapter 6.65
(commencing with Section 25260).

25403.3.   

The immunity provided for by Section 25403.2 is
only conferred if both of the following apply:

(a) The action is in accordance with a cleanup plan or remedial
action plan prepared by a qualified independent contractor and
approved by the department, a regional board, or the designated
agency, as appropriate, pursuant to Section 25403.1.

(b) The remedial or removal action is found to have been
undertaken and properly completed, as specified in subdivision
(b) of Section 25403.2.

25403.4.  

The local agency shall reimburse the department or
the regional board for costs incurred in reviewing or approving
cleanup or remedial action plans pursuant to this chapter.

25403.5.   

(a) Except as otherwise provided in this chapter, if
a local agency undertakes action to remedy or remove, or to require
others to remedy or remove, including compelling a responsible
party through a civil action, to remedy or remove a release of
hazardous substance, the responsible party shall be liable to the
local agency for the costs incurred in the action. A local agency
may not recover the costs of goods and services that were not
procured in accordance with procurement procedures, where
applicable. The amount of the costs shall include the interest on
the costs accrued from the date of expenditure and reasonable
attorney’s fees and shall be recoverable in a civil action. Interest
shall be calculated based on the average annual rate of return on
a local agency’s investment of surplus funds for the fiscal year in
which costs were incurred.

(b) The only defenses available to a responsible party shall be
the defenses specified in subdivision (b) of Section 25323.5.

(c) A local agency may recover any costs incurred to develop
and to implement a cleanup plan or remedial action plan approved
pursuant to this chapter, to the same extent the department is
authorized to recover those costs. The scope and standard of
liability for cost recovery pursuant to this section shall be the scope
and standard of liability under the federal Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. Sec. 9601 et seq.) as that act would
apply to the department. However, any reference to hazardous
substance in that act shall be deemed to refer to hazardous
substance as defined in Section 25403.

(d) An action for recovery of the costs of a remedy or removal
undertaken by a local agency under this section shall be
commenced within three years after completion of the remedy or
removal.

(e) The action to recover costs provided by this section is in
addition to, and is not to be construed as restricting, any other
cause of action available to a local agency.

25403.6.   

(a) Except as provided in Section 25403.4,
notwithstanding any other state law or policy, a local agency that
undertakes and completes a remedial action, or otherwise causes
a remedial action to be undertaken and completed pursuant to this
chapter shall not be liable based on its ownership of property after
a release occurred, for any costs that any responsible party for that
release incurs to investigate or remediate the release or to
compensate others for the effects of that release.

(b) Except as provided in Section 25403. 2, this article does not
limit the powers of the state board or a regional board to enforce
Division 7 (commencing with Section 13000) of the Water Code.

24303.7.  

The Legislature finds and declares that this chapter
is the policy successor to the Polanco Redevelopment Act (Article
12.5 (commencing with Section 33459) of Part 1 of Chapter 4 of
Division 24) and shall be interpreted and implemented consistent
with that act.