BILL NUMBER: AB 440 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 6, 2013
AMENDED IN ASSEMBLY MAY 24, 2013
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 substances:
materials: releases: local agency
cleanup or remedy. cleanup.
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 investigate
and clean up a release of hazardous substances
materials in a blighted area, as determined by the
local agency, 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 removal or
remedial cleanup action. A local agency would be
required to submit for approval a cleanup plan to the regional board
or a removal or remedial action plan 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 removal or remedial
action plan or cleanup plan. The bill would allow the local
agency to take those removal or remedial actions
cleanup activities 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 removal or remedial action plan
and to oversee the remediation or removal
cleanup of hazardous substances
material from a hazardous substance
material release site, under certain conditions.
The bill would immunize a local agency that remedies or
removes cleans up a hazardous substance
material release, pursuant to those provisions,
from liability under specified state laws, if the action is in
accordance with a cleanup plan or removal 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 removal or remedial action
cleanup is undertaken and properly completed.
The bill would authorize the recovery by a local agency of cleanup
and remedial 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 SUBSTANCE
MATERIAL RELEASE CLEANUP
25403. For purposes of this article, the following terms shall
have the following meanings:
(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.
(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.
(c) "Cleanup plan" means a document that details the actions to be
taken to clean up a release of a hazardous material.
(a)
(d) "CUPA" means the Certified Unified Program Agency
certified to implement the unified program pursuant to Chapter 6.11
(commencing with Section 25404).
(b)
(e) "Department" means the Department of Toxic
Substances Control.
(c)
(f) "Designated agency" means an agency designated by
the local agency pursuant to paragraph (1) or (2) of subdivision
(d) (e) of Section 25403.1.
(d)
(g) "Director" means the Director of Toxic Substances
Control.
(e)
(h) "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. material" has the same
meaning as defined in subdivision (d) of Section 25260.
(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.
(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.
(f)
(k) "Local agency" means a county, a city, or a housing
authority, as provided in Section 34240.
(g)
(l) "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)
(m) "Phase I environmental assessment" has the same
meaning as defined in Section 25200.14, except with respect to a
hazardous substance. material.
(i)
(n) "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)
(o) "Regional board" means a California regional water
quality control board.
(k)
(p) "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)
(q) "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)
(r) "State board" means the State Water Resources
Control Board.
25403.1. (a) (1) (A) A local agency may
, in accordance with this chapter, take any action that
the local agency determines is necessary and that is consistent with
other state and federal laws to remedy or remove
investigate or clean up a release of hazardous
substances on, under, or from property within a local
agency's boundaries, boundaries and that the
local agency has found to be within a blighted area, whether
the local agency owns that property or not, in accordance
with the requirements of this chapter. not. 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, investigation and cleanup activities,
the local agency has the right of entry upon
to enter that property, if, upon providing notice to the owner
of that property in accordance with subparagraph (A) of paragraph
(1) (2) of subdivision (b), the owner
of the property does not respond to the notice or the local agency
reasonably deems the response inadequate.
(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:
(i) Chapter 6.5 (commencing with Section 25100).
(ii) A Cease and Desist Order issued under Section 13301 of the
Water Code.
(iii) A Cleanup and Abatement Order issued under Section 13304 of
the Water Code.
(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.
(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.
(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.
(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 remedy or remove
clean up 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 remedy or remove clean
up 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 remedy
or remove clean up the release, do all of the
following:
(A) Have a removal or remedial action plan or cleanup plan
prepared, pursuant to those guidelines, by an independent qualified
contractor.
(A) If the investigation has not been completed or additional
investigation is necessary, have an investigation plan prepared by an
independent qualified contractor.
(B) Submit an investigation plan and cost recovery agreement to
the regional board or the department for review.
(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.
(B)
(D) Submit a cleanup plan and existing applicable
documents required pursuant to the California Environmental Quality
Act (Division 13 (commencing with Section 21000) of the Public
Resources Code) to the regional board or a removal or
remedial action plan to the department for approval.
(C)
(E) Comply with the public participation requirements
specified in Section 25403.7.
(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.
(5)
(6) The regional board or the department shall respond
to the local agency's request for approval of a cleanup plan
or removal or remedial action plan within 60 days of the
receipt of the plan.
(6)
(7) Within 60 days after approval of the cleanup
plan or removal or remedial action plan, pursuant
to applicable statutes and regulations, the director,
director or the regional board, as appropriate,
shall acknowledge, in writing, that upon proper completion of the
removal or remedial action cleanup in
accordance with the cleanup plan, the immunity provided by
Section 25403.2 shall apply. apply.
(7)
(8) 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)
(9) If an action taken by a local agency or a
responsible party to remedy or remove clean
up a release of a hazardous substance
material does not meet, or is not consistent with, a cleanup
plan approved by the regional board or a removal or remedial
action plan approved by the department, the department or
the regional board that approved the cleanup plan or removal
or remedial action plan may require the responsible party
or local agency to take, or cause the taking of, additional action to
remedy or remove clean up the release,
as provided by applicable law.
(9)
(10) 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) (9) only as provided in
Sections 26263 and 25265.
(10)
(11) 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 removal or remedial action plan or cleanup
plan and schedule. 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.
(B) The responsible party specified in subparagraph (A) has not
agreed within an additional 60 days to implement a
an investigation plan and schedule to remedy or
remove investigate or clean up the release that
meets both of the following requirements:
(i) The investigation plan and schedule and the
cleanup plan and schedule are acceptable to the local agency.
(ii) The local agency makes a finding that the investigation
plan and schedule and the cleanup plan and schedule
are consistent with the intended development schedule and
use of the property.
(3) (A) The party determined by the local agency to be the
responsible party for the hazardous substance
material release entered into an agreement with the local
agency to prepare a removal or remedial action
an investigation plan or cleanup plan for approval by the
department, the regional board, or the appropriate local agency, and
to implement the removal or remedial action
investigation plan or cleanup plan in accordance with an agreed
schedule, but failed to do any of the following:
(i) Prepare the removal or remedial action
investigation plan or cleanup plan.
(ii) Implement the removal or remedial action
investigation plan or cleanup plan in accordance with the
agreed schedule.
(iii) Otherwise failed to carry out the removal or
remedial action investigation 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 designated agency that
approved or will approve the removal or remedial action plan
or cleanup plan and is overseeing or will oversee the
preparation and implementation of the removal or remedial
action cleanup plan.
(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.
(c)
(d) 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)
(e) (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 removal or remedial action plan
and to oversee the remediation or removal
cleanup of hazardous substances
materials from a specific hazardous
substance material 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
removal or remedial action cleanup in
accordance with Chapter 6.65 (commencing with Section 25260), and all
provisions of that chapter shall apply to the removal or
remedial action. cleanup.
(2) A local agency may designate another agency to review and
approve a cleanup plan or a removal or remedial action plan
for a site and oversee the remediation and removal
action cleanup 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 the designated 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
removal or remedial action plan pursuant to paragraph (1)
or (2), the designated agency shall issue a notice that, upon proper
completion of the removal or remedial action
cleanup plan, the immunity specified in Section 25403.2 shall
apply. If the designated agency was formed by the local agency, the
cleanup plan or removal 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
removal or remedial action. cleanup.
(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 removal or remedial action,
cleanup, 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.
(e)
(f) (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 remedy
or remove clean up a hazardous
substance material release on, under, or from
property within the local agency's boundaries, in accordance with a
cleanup plan or removal 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
removal or remedial actions to cleanup of
releases of hazardous substances. materials.
(2) If the removal or remedial action
cleanup 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 removal or remedial action
cleanup 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 removal or remedial
action cleanup that the action has been properly
completed, a determination that a removal or remedial
action cleanup 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
removal or remedial action cleanup 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 removal or remedial action
cleanup 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 removal
or remedial action cleanup has been completed.
(c) Upon proper completion of a removal or remedial
action, cleanup, 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
removal or remedial action plan and not for any subsequent
release or any release not specifically identified in the approved
cleanup plan or removal 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
material release or to remove or remedy
clean up a hazardous substance
material 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
material or any release of a hazardous substance
material not specifically identified in the
approved cleanup plan or removal or remedial action
plan.
(3) A contractor who prepares the cleanup plan or removal
or remedial action plan, plan or conducts the
removal or remedial action. cleanup.
(4) A person that obtains an approval of a cleanup plan
or removal or remedial action plan pursuant to Section
25403.1, or pursuant to 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 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 material release
that is the subject of the removal or remedial action
cleanup 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 material that is not investigated or
remediated cleaned up 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
removal 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 removal or remedial action cleanup
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 approvingcleanup or
removal or remedial action plans pursuant to this chapter.
25403.4. 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.
25403.5. (a) Except as otherwise provided in this chapter, if a
local agency undertakes action to investigate or
characterize property, or to remedy or remove,
property or clean up, or to require others to remedy
or remove, investigate or clean up, including
compelling a responsible party through a civil injunctive action,
to remedy or remove a release of hazardous
substance, material, 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 removal 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 material as defined in Section 25403.
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.
(d) An action for recovery of the costs of a remedy or
removal cleanup undertaken by a local agency
under this section shall be commenced within three years after
completion of the remedy or removal. cleanup.
(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 removal or remedial action,
cleanup, or otherwise causes a removal
or remedial action cleanup 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 clean up 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 removal or remedial action plan or cleanup
plan, for the public and for other public agencies to participate in
decisions regarding the removal or remedial action,
cleanup plan, taking into consideration the
nature of the community interest.
(b) Thirty days before submitting the removal or remedial
action plan or 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 removal or
remedial action plan or 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 removal or remedial
action plan or cleanup plan on the property.
(c) All of the following methods for public participation shall be
used to notify the public of the proposed removal or
remedial action plan or cleanup plan:
(1) Thirty days' prior public notice in a factsheet format of the
proposed removal or remedial action plan or
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 removal or remedial action plan or
cleanup plan, property assessment, addenda, and any other supporting
documentation, including materials listed as references in the
removal or remedial action plan or 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 removal or remedial action plan or
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 removal or remedial action plan or
cleanup plan, property assessment addenda, and other
supporting documentation, including materials listed as references in
the removal or remedial action plan or 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 removal or remedial action plan or
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
removal or remedial action plan or 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.