Amended in Senate September 6, 2013

Amended in Assembly May 24, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 440

Introduced by Assembly Member Gatto

(Principal coauthor: Assembly Member Mullin)

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 amended, Gatto. Hazardous begin delete substances: end delete begin insert materials: end insert releases: local agency begin delete cleanup or remedy. end delete begin insert cleanup. end insert

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 begin delete remedy or remove end delete begin insert investigate and clean up end insert a release of hazardous begin delete substances end delete begin insert materials in a blighted area, as determined by the local agency, end insert 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 begin delete removal or remedial end delete begin insert cleanup end insert action. A local agency would be required to submit for approval a cleanup plan to the regional board or begin delete a removal or remedial action plan end delete to the department before taking action. The bill would require a local agency to take specified actions with regard to providing an opportunity for the public and other public agencies to participate in decisions regarding the proposed begin delete removal or remedial action plan or end delete cleanup plan. The bill would allow the local agency to take those begin delete removal or remedial actions end delete begin insert cleanup activities end insert 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 begin delete or removal or remedial action plan end delete and to oversee the begin delete remediation or removal end delete begin insert cleanup end insert of hazardous begin delete substances end delete begin insert material end insert from a hazardous begin delete substance end delete begin insert material end insert release site, under certain conditions. The bill would immunize a local agency that begin delete remedies or removes end delete begin insert cleans up end insert a hazardous begin delete substance end delete begin insert material end insert release, pursuant to those provisions, from liability under specified state laws, if the action is in accordance with a cleanup plan begin delete or removal or remedial action plan end delete prepared by a qualified independent contractor, as defined, and approved by the department, a regional board, or the designated agency, and the begin delete removal or remedial action end delete begin insert cleanup end insert is undertaken and properly completed. The bill would authorize the recovery by a local agency of cleanup begin delete and remedial end delete costs from the responsible 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 begin delete Substance end delete begin insert Material end insert Release
Cleanup

 

25403.  

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

begin insert

(a) “Blighted area” means an area in which the local agency
determines there are vacancies, abandonment of property, or a
reduction or lack of proper utilization of property, and the presence
or perceived presence of a release or releases of hazardous
material contributes to the vacancies, abandonment, or reduction
or lack of proper utilization of property.

end insert begin insert

(b) “Clean up” or “cleanup” means an action taken to remove,
as defined in Section 25323, remediate, as described in subdivision
(a) or (b) of Section 25322, or otherwise abate the effects of a
release of hazardous material.

end insert begin insert

(c) “Cleanup plan” means a document that details the actions
to be taken to clean up a release of a hazardous material.

end insert begin delete

(a)

end delete

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

begin delete

(b)

end delete

begin insert (e) end insert  “Department” means the Department of Toxic Substances
Control.

begin delete

(c)

end delete

begin insert (f) end insert  “Designated agency” means an agency designated by the
local agency pursuant to paragraph (1) or (2) of subdivision begin delete (d) end delete
begin insert (e) end insert of Section 25403.1.

begin delete

(d)

end delete

begin insert (g) end insert  “Director” means the Director of Toxic Substances Control.

begin delete

(e)

end delete

begin insert (h) end insert  “Hazardous begin delete 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. end delete begin insert material” has the same meaning as defined in
subdivision (d) of Section 25260. end insert

begin insert

(i) “Investigation” means an action taken to determine the
source, nature, and extent of a release of hazardous material with
sufficient detail to provide a reasonable basis for decisions
regarding the cleanup of the hazardous material. An investigation
may take place in one or more phases and may include a Phase I
environmental site assessment.

end insert begin insert

(j) “Investigation plan” means a document that specifies actions
to be taken to investigate a suspected release of hazardous
material. An investigation plan may provide for an investigation
to take place in one or more phases.

end insert begin delete

(f)

end delete

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

begin delete

(g)

end delete

begin insert (l) end insert  “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.

begin delete

(h)

end delete

begin insert (m) end insert  “Phase I environmental assessment” has the same meaning
as defined in Section 25200.14, except with respect to a hazardous
begin delete substance. end delete begin insert material. end insert

begin delete

(i)

end delete

begin insert (n) end insert  “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.

begin delete

(j)

end delete

begin insert (o) end insert  “Regional board” means a California regional water quality
control board.

begin delete

(k)

end delete

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

begin delete

(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)

end delete

begin insert (q) end insert  “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.

begin delete

(n)

end delete

begin insert (r) end insert  “State board” means the State Water Resources Control
Board.

25403.1.  

(a) (1)  begin insert (A) end insert begin insert   end insert A local agency may begin insert , in accordance with
this chapter, end insert take any action that the local agency determines is
necessary and that is consistent with other state and federal laws
to begin delete remedy or remove end delete begin insert investigate or clean up end insert a release begin delete of hazardous
substances end delete on, under, or from property within a local agency’s
begin delete boundaries, end delete begin insert boundaries and that the local agency has found to be
within a blighted area, end insert whether the local agency owns that property
or begin delete not, in accordance with the requirements of this chapter. end delete begin insert not. end insert
When taking action pursuant to this chapter, if the local agency
does not own property that is the subject of the begin delete removal or remedial
action, end delete begin insert investigation and cleanup activities, end insert the local agency has
the right begin delete of entry upon end delete begin insert to enter end insert that property, if, upon providing
notice to the owner of that property in accordance with
subparagraph (A) of paragraph begin delete (1) end delete begin insert (2) end insert of subdivision (b), the owner
of the property does not respond to the notice or the local agency
begin insert reasonably end insert deems the response inadequate.

begin insert

(B) The local agency shall contact the department or the
appropriate regional board prior to issuing a notice pursuant to
paragraph (2) of subdivision (b) in connection with a property on
the National Priority List or a property or release subject to any
of the following:

end insert begin insert

(i) Chapter 6.5 (commencing with Section 25100).

end insert begin insert

(ii) A Cease and Desist Order issued under Section 13301 of
the Water Code.

end insert begin insert

(iii) A Cleanup and Abatement Order issued under Section
13304 of the Water Code.

end insert begin insert

(iv) An existing voluntary cleanup agreement between the
regional board or the department and a responsible party that
requires a cleanup by a specified date.

end insert begin insert

(C) (i) If the department or the regional board objects within
10 days to the local agency issuing the notice, the local agency
and the department or regional board shall promptly meet and
confer to resolve the department’s or regional board’s concerns.
If the local agency and the department or the regional board
cannot reach a mutually acceptable resolution, the matter shall
be submitted to the site designation committee created pursuant
to Section 25261.

end insert begin insert

(ii) Notwithstanding subdivision (a) of Section 25261, the
director and the chairperson of the state board shall not participate
in the review of a dispute involving the department or a regional
board, respectively. The decision of the site designation committee
shall resolve the matter impartially, by majority vote, and within
20 days of the date on which the matter is presented. Either party
to the dispute may present the matter to the site designation
committee, and each party shall be given a reasonable opportunity
to be heard.

end insert

(2) (A) 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 begin delete remedy or remove end delete begin insert clean up end insert a release
pursuant to this chapter.

(B) Paragraph (A) does not prohibit the department or the
regional board from approving site-specific cleanup guidelines,
with regard to taking an action to begin delete remedy or remove end delete begin insert clean up end insert a
release pursuant to this chapter, as appropriate.

(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 begin delete remedy or
remove end delete begin insert clean up end insert the release, do all of the following:

begin delete

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

end delete begin insert

(A) If the investigation has not been completed or additional
investigation is necessary, have an investigation plan prepared by
an independent qualified contractor.

end insert begin insert

(B) Submit an investigation plan and cost recovery agreement
to the regional board or the department for review.

end insert begin insert

(C) After completion of the investigation plan, have a cleanup
plan prepared, pursuant to the regional board or the department
guidelines, by an independent qualified contractor.

end insert begin delete

(B)

end delete

begin insert (D) end insert  Submit a cleanup plan begin insert and existing applicable documents
required pursuant to the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public
Resources Code) end insert to the regional board or begin delete a removal or remedial
action plan end delete to the department for approval.

begin delete

(C)

end delete

begin insert (E) end insert  Comply with the public participation requirements specified
in Section 25403.7.

begin insert

(5) If the regional board or the department has comments on
the investigation plan, the regional board or the director shall
provide the comments to the local agency within 30 days of receipt
of the investigation plan.

end insert begin delete

(5)

end delete

begin insert (6) end insert  The regional board or the department shall respond to the
local agency’s request for approval of a cleanup plan begin delete or removal
or remedial action plan end delete within 60 days of the receipt of the plan.

begin delete

(6)

end delete

begin insert (7) end insert  Within 60 days after approval of the cleanup begin delete plan or removal
or remedial action end delete plan, pursuant to applicable statutes and
regulations, the begin delete director, end delete begin insert director end insert or the regional board, as
appropriate, shall acknowledge, in writing, that upon proper
completion of the begin delete removal or remedial action end delete begin insert cleanup end insert in accordance
with the begin insert cleanup end insert plan, the immunity provided by Section 25403.2
shall begin delete apply. end delete begin insert apply. end insert

begin delete

(7)

end delete

begin insert (8) end insert  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.

begin delete

(8)

end delete

begin insert (9) end insert  If an action taken by a local agency or a responsible party
to begin delete remedy or remove end delete begin insert clean up end insert a release of a hazardous begin delete substance end delete
begin insert material end insert does not meet, or is not consistent with, a cleanup plan
approved by the regional board or begin delete a removal or remedial action
plan approved by end delete the department, the department or the regional
board that approved the cleanup plan begin delete or removal or remedial action
plan end delete may require the responsible party or local agency to take, or
cause the taking of, additional action to begin delete remedy or remove end delete begin insert clean
up end insert the release, as provided by applicable law.

begin delete

(9)

end delete

begin insert (10) end insert  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 begin delete (8) end delete begin insert (9) end insert only as provided in Sections 26263 and 25265.

begin delete

(10)

end delete

begin insert (11) end insert  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 begin delete a removal or remedial action
plan or cleanup plan and schedule. end delete begin insert an investigation plan and
schedule if in the opinion of the responsible party’s qualified
independent contractor there is not enough site-specific data to
prepare a cleanup plan, and 60 days to propose a cleanup plan
and schedule following completion of the investigation plan in
accordance with the investigation plan schedule approved by the
local agency. end insert

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

(i) The begin insert investigation end insert plan begin insert and schedule and the cleanup plan end insert
and schedule are acceptable to the local agency.

(ii) The local agency makes a finding that the begin insert investigation end insert plan
and begin insert schedule and the cleanup plan and end insert schedule are consistent
with the intended begin insert development schedule and end insert use of the property.

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

(i) Prepare the begin delete removal or remedial action end delete begin insert investigation end insert plan or
cleanup plan.

(ii) Implement the begin delete removal or remedial action end delete begin insert investigation end insert plan
or cleanup plan in accordance with the agreed schedule.

(iii) Otherwise failed to carry out the begin delete removal or remedial action end delete
begin insert investigation end insert 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 begin delete local end delete begin insert designated end insert agency that approved or will
approve the begin delete removal or remedial action plan or end delete cleanup plan and
is overseeing or will oversee the preparation and implementation
of the begin delete removal or remedial action end delete begin insert cleanup end insert plan.

begin insert

(c) The responsible party specified in subparagraph (A) of
paragraph (2) of subdivision (b) may appeal a 60-day notice issued
pursuant to this section to the local agency’s governing body by
filing a written request to appeal the notice with the clerk of the
local agency within 10 days of receipt of the notice. Filing an
appeal to the local agency’s governing body tolls the 60-day notice
period until the appeal is heard and decided by the local agency’s
governing body. Any challenge to the decision reached by the local
agency’s governing body shall be presented only as part of a cost
recovery or injunctive proceeding initiated by the local agency
under Section 25403.5. The local agency’s decision shall be upheld
if supported by substantial evidence presented in the action
commenced under Section 25403.5, and shall not be invalidated
on the grounds that the local agency failed to include all
responsible parties in a 60-day notice issued pursuant to this
section. A claim of failure to include all responsible parties in a
60-day notice issued pursuant to this section shall not be a defense
to the liability provided for in Section 25403.5.

end insert begin delete

(c)

end delete

begin insert (d) end insert  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.

begin delete

(d)

end delete

begin insert (e) end insert  (1) A local agency may designate another agency, in lieu
of the department or the regional board, to review and approve a
cleanup plan begin delete or a removal or remedial action plan end delete and to oversee
the begin delete remediation or removal end delete begin insert cleanup end insert of hazardous begin delete substances end delete
begin insert materials end insert from a specific hazardous begin delete substance end delete begin insert material end insert 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 begin delete removal or remedial action end delete begin insert cleanup end insert in
accordance with Chapter 6.65 (commencing with Section 25260),
and all provisions of that chapter shall apply to the begin delete removal or
remedial action. end delete begin insert cleanup. end insert

(2) A local agency may designate another agency to review and
approve a cleanup plan begin delete or a removal or remedial action plan end delete for a
site and oversee the begin delete remediation and removal action end delete begin insert cleanup end insert 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
begin delete that end delete begin insert the designated end insert 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 begin delete or a removal
or remedial action plan end delete pursuant to paragraph (1) or (2), the
designated agency shall issue a notice that, upon proper completion
of the begin delete removal or remedial action end delete begin insert cleanup end insert plan, the immunity
specified in Section 25403.2 shall apply. If the designated agency
was formed by the local agency, the cleanup plan begin delete or removal or
remedial action plan end delete 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 begin delete removal or remedial action. end delete begin insert cleanup. end insert

(B) If an agency has been designated pursuant to paragraph (2),
the department or a regional board may require the designated
agency to withdraw from the designation or stop taking action
pursuant to that designation, 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 begin delete removal or remedial action, end delete begin insert cleanup, end insert 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 pursuant to that designation after making one of the findings
specified in subdivision (d) of Section 101480.

begin delete

(e)

end delete

begin insert (f) end insert  (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. If the local agency
conducts the phase I or phase II environmental assessment because
the owner or operator failed to provide this information, the local
agency shall have a right of entry, upon reasonable notice, to enter
the property and conduct the phase I or phase II environmental
assessment. The local agency may recover the costs of the phase
I or phase II environmental assessment in accordance with Section
25403.5.

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
begin delete remedy or remove end delete begin insert clean up end insert a hazardous begin delete substance end delete begin insert material end insert release
on, under, or from property within the local agency’s boundaries,
in accordance with a cleanup plan begin delete or removal or remedial action
plan end delete 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 begin delete removal
or remedial actions to end delete begin insert cleanup of end insert releases of hazardous begin delete substances. end delete
begin insert materials. end insert

(2) If the begin delete removal or remedial action end delete begin insert cleanup end insert 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 begin delete removal or remedial action end delete begin insert cleanup end insert
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 begin delete removal or remedial
action end delete begin insert cleanup end insert that the action has been properly completed, a
determination that a begin delete removal or remedial action end delete begin insert cleanup end insert 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 begin delete removal or remedial action end delete begin insert cleanup end insert 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 begin delete removal or remedial action end delete begin insert cleanup end insert 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 begin delete removal or remedial action end delete begin insert cleanup end insert has been
completed.

(c) Upon proper completion of a begin delete removal or remedial action, end delete
begin insert cleanup, end insert 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 begin delete or
removal or remedial action end delete plan and not for any subsequent release
or any release not specifically identified in the approved cleanup
begin delete plan or removal or remedial action end delete 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 begin delete substance end delete
begin insert material end insert release or to begin delete remove or remedy end delete begin insert clean up end insert a hazardous
begin delete substance end delete begin insert material end insert 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 begin delete substance end delete begin insert material end insert or any release
of a hazardous begin delete substance end delete begin insert material end insert not specifically identified in the
approved cleanup begin delete plan or removal or remedial action end delete plan.

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

(4) A person that obtains an approval of a cleanup plan begin delete or
removal or remedial action plan end delete pursuant to Section 25403.1, or
begin insert pursuant to end insert 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 begin delete property end delete begin insert property, end insert 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 begin delete substance end delete begin insert material end insert release that is the subject of the
begin delete removal or remedial action end delete begin insert cleanup end insert 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 begin delete substance end delete begin insert material end insert
that is not investigated or begin delete remediated end delete begin insert cleaned up end insert 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 begin delete or removal
or remedial action plan end delete 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 begin delete removal or remedial action end delete begin insert cleanup end insert is found to have
been undertaken and properly completed, as specified in
subdivision (b) of Section 25403.2.

begin delete

25403.4.  

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

end delete begin insert

begin insert 25403.4. end insert   

Within 60 days of being presented with appropriate
documentation, the local agency shall reimburse the department
or the regional board for costs incurred in reviewing or approving
investigation plans and cleanup plans pursuant to this chapter.
The department or regional board may develop a payment plan
with the local agency to repay costs over a longer period of time.
In the event of any dispute over the costs, the local agency shall
pay any undisputed costs and meet and confer with the department
or regional board to resolve the disputed items. In connection with
any disputes not resolved through meet and confer efforts, the
local agency may utilize any review processes maintained by the
department or the regional board.

end insert

25403.5.  

(a) Except as otherwise provided in this chapter, if
a local agency undertakes action to investigate begin delete or characterize
property, or to remedy or remove, end delete begin insert property or clean up, end insert or to
require others to begin delete remedy or remove, end delete begin insert investigate or clean up, end insert
including compelling a responsible party through a civil injunctive
action, begin delete to remedy or remove end delete a release of hazardous begin delete substance, end delete
begin insert material, end insert 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 begin delete or removal or remedial action
plan end delete 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 begin delete substance end delete begin insert material end insert as defined in Section 25403. begin insert It is
the intent of the Legislature that local agencies diligently pursue
reimbursement for investigation and cleanup costs incurred
pursuant to this chapter, but each local agency is authorized to
assess whether and to what extent cost recovery is practicable. end insert

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

(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 begin delete removal or remedial action, end delete begin insert cleanup, end insert
or otherwise causes a begin delete removal or remedial action end delete begin insert cleanup end insert 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 begin delete remediate end delete begin insert clean up end insert 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.

25403.7.  

A local agency shall comply with all the following
requirements with regard to providing public participation when
taking action pursuant to this chapter:

(a) The local agency shall provide an opportunity, when
preparing the begin delete removal or remedial action plan or end delete cleanup plan, for
the public and for other public agencies to participate in decisions
regarding the begin delete removal or remedial action, end delete begin insert cleanup plan, end insert taking
into consideration the nature of the community interest.

(b) Thirty days before submitting the begin delete removal or remedial action
plan or end delete cleanup plan for approval, the local agency shall take all
of the following actions:

(1) Notify all other appropriate public agencies, including, but
not limited to, the department or the regional board, if not required
to approve the plan, regarding the proposed begin delete removal or remedial
action plan or end delete cleanup plan.

(2) Place a notice in a newspaper of general circulation in the
area of the property, including, but not limited to, a
community-based newspaper, as appropriate.

(3) Post notice of the proposed begin delete removal or remedial action plan
or end delete cleanup plan on the property.

(c) All of the following methods for public participation shall
be used to notify the public of the proposed begin delete removal or remedial
action plan or end delete cleanup plan:

(1) Thirty days’ prior public notice in a factsheet format of the
proposed begin delete removal or remedial action plan or end delete cleanup plan, in
English and in any other language commonly spoken in the area
of the property.

(2) Access, at both the local agency and at local repositories, to
the proposed begin delete removal or remedial action plan or end delete cleanup plan,
property assessment, addenda, and any other supporting
documentation, including materials listed as references in the
begin delete removal or remedial action plan or end delete cleanup plan and property
assessment.

(3) Procedures for providing a reasonable opportunity to
comment on the plan and related documents specified in paragraph
(2).

(d) If a public meeting is requested, the local agency shall hold
a public meeting in the area of the property to receive comments.

(e) The local agency shall consider any comments received
before submitting the proposed begin delete removal or remedial action plan
or end delete cleanup plan for approval.

(f) The local agency may also provide for, but is not limited to,
the use of other methods for public participation, including public
notices, direct notification of interested parties, distribution of
electronic copies of the begin delete removal or remedial action plan or end delete cleanup
plan, property assessment addenda, and other supporting
documentation, including materials listed as references in the
begin delete removal or remedial action plan or end delete cleanup plan and property
assessment, electronic comment forms, and forming advisory
groups, as appropriate, to disseminate information and assist the
local agency in gathering public input, holding additional public
meetings or public hearings, and providing an opportunity to
comment on the proposed begin delete removal or remedial action plan or end delete
cleanup plan prior to approval.

(g) The local agency, as part of its communications with affected
communities, shall provide information regarding the process by
which decisions about the property are made and the recourse that
is available for those who may disagree with an agency decision.

(h) The local agency shall consider the issue of environmental
justice, as defined in subdivision (e) of Section 65040.12 of the
Government Code, for communities most impacted, including
low-income and racial minority populations, before submitting the
begin delete removal or remedial action plan or end delete cleanup plan for approval.

(i) To the extent possible, the local agency shall coordinate its
public participation activities with those undertaken by other
jurisdictions and agencies associated with the property, to avoid
duplication.

(j) It is the intent of the Legislature that the public participation
process established pursuant to this section ensures full and robust
participation of a community affected by this chapter.

25403.8.  

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. It is further the intent of the Legislature that any
judicial construction or interpretation of the Polanco
Redevelopment Act also apply to this chapter.