BILL NUMBER: AB 440	INTRODUCED
	BILL TEXT


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.