Amended in Senate September 12, 2013

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 materials: releases: local agency 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 investigate and clean up a release of hazardous 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 begin delete 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 cleanup action. A end delete begin insert a end insert local agency begin delete would be required end delete to submit for approval a cleanup plan to the begin insert California end insert regional begin insert water control end insert board or to the begin delete department end delete begin insert Department of Toxic Substances Control end insert 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 cleanup plan. The bill would allow the local agency to take those 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 and to oversee the cleanup of hazardous material from a hazardous material release site, under certain conditions. The bill would immunize a local agency that cleans up a hazardous material release, pursuant to those provisions, from liability under specified state laws, if the action is in accordance with a cleanup plan prepared by a qualified independent contractor, as defined, and approved by the department, a regional board, or the designated agency, and the cleanup is undertaken and properly completed. The bill would authorize the recovery by a local agency of cleanup 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 Material Release Cleanup

 

25403.  

For purposes of this begin delete article, end delete begin insert chapter, end insert 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 begin insert of property end insert , or reduction
or lack of proper utilization of property.

begin insert

(b) “Blighted property” means property with the presence or
perceived presence of a release or releases of hazardous material
that contributes to the vacancies, abandonment of property, or
reduction or lack of proper utilization of property.

end insert begin delete

(b)

end delete

begin insert (c) end insert  “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.

begin delete

(c)

end delete

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

begin delete

(d)

end delete

begin insert (e) 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

(e)

end delete

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

begin delete

(f)

end delete

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

begin delete

(g)

end delete

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

begin delete

(h)

end delete

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

begin delete

(i)

end delete

begin insert (j) end insert  “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
begin delete may take place in one or more phases and may end delete begin insert does not end insert include a
Phase I begin insert or Phase II end insert environmental site assessment.

begin delete

(j)

end delete

begin insert (k) end insert  “Investigation plan” means a document that specifies actions
to be taken to investigate a suspected release of hazardous material.
An investigation plan begin delete may provide for an investigation to take
place in one or more phases. end delete begin insert does not include a Phase I or Phase
II environmental site assessment. end insert

begin delete

(k)

end delete

begin insert (l) end insert  “Local agency” means begin delete a end delete begin insert both of the following: end insert

begin insert (1) end insert begin insert   end insert begin insert A end insert county, a city, or a begin delete housing authority, as provided in
Section 34240. end delete begin insert city and county. end insert

begin insert

(2) A “housing authority,” as provided in Section 34240, if the
housing authority is an entity assuming the housing functions of
a former redevelopment agency pursuant to paragraph (2) of
subdivision (a) of Section 34176 and the property subject to this
chapter was transferred from that successor agency to the housing
authority.

end insert begin delete

(l)

end delete

begin insert (m) 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

(m)

end delete

begin insert (n) end insert  “Phase I environmental assessment” begin delete has the same meaning
as defined in Section 25200.14, except with respect to a hazardous
material. end delete begin insert means a preliminary assessment of a property to
determine whether there has been, or may have been, a release of
hazardous material based on reasonable available information
about the property and general vicinity. A Phase I environmental
assessment shall meet the most current requirements adopted by
the American Society for Testing and Materials (ASTM) for
Standard Practice for Environmental Site Assessment: Phase I
Environmental Site Assessment Process or meet the requirements
of Part 312 (commencing with Section 312.1) of Title 40 of the
Code of Federal Regulations. end insert

begin insert

(o) “Phase II environmental assessment” means an intrusive
study where actual physical environmental samples are collected
and analyzed to characterize the type and distribution of hazardous
material in the environment. A phase II environmental assessment
shall meet the most current requirements adopted by the American
Society for Testing and Materials (ASTM) for Standard Practice
for Environmental Site Assessments: Phase II Environmental Site
Assessment Process.

end insert begin delete

(n)

end delete

begin insert (p) 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

(o)

end delete

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

begin delete

(p)

end delete

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

begin delete

(q)

end delete

begin insert (s) 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

(r) “State

end delete begin insert

(t) “Site designation committee” means the committee
established pursuant to Section 25261.

end insert

begin insert (u) end insert begin insert   end insert begin insert “State end insert 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 investigate or clean up a release on, under, or from begin insert blighted end insert
property begin insert that the local agency has found to be within a blighted
area end insert within begin delete a end delete begin insert the end insert local agency’s boundaries begin delete and that the local
agency has found to be within a blighted area, end delete begin insert due to the presence
of hazardous materials following a Phase I or Phase II
environmental assessment pursuant to subdivision (f), end insert whether the
local agency owns that property or not. When taking action
pursuant to this chapter, if the local agency does not own property
that is the subject of the investigation and cleanup activities, the
local agency has the right to enter that property, if, upon providing
notice to the owner of that property in accordance with
subparagraph (A) of paragraph (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.

begin insert

(v) An order issued by a regional board pursuant to Section
13267 of the Water Code, or an agreement entered into by the
department pursuant to Section 25187, 25355.5, or 25358.3, for
the investigation or cleanup at a site.

end insert begin insert

(vi) A remedial action order, an imminent or substantial
endangerment order or agreement, a prospective purchase
agreement, or an order on consent issued pursuant to Section
25355.5, 25356.1.3, or 25358.3, as applicable.

end insert begin insert

(vii) An expedited remediation order issued pursuant to the
former Chapter 6.86 (commencing with Section 25396), as that
chapter read on January 1, 2012.

end insert begin insert

(viii) An agreement entered into pursuant to the California Land
Reuse and Revitalization Act (Chapter 6.82 (commencing with
Section 25395.60)), as specified in Section 25395.92.

end insert begin insert

(ix) An agreement for the environmental oversight of schools
entered into pursuant to Section 17213.1 of the Education Code
and in accordance with Sections 17201 and 17210.1 of the
Education Code.

end insert

(C) (i) If the department or the regional board objects within
begin delete 10 end delete begin insert 30 end insert 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 begin delete resolution, end delete begin insert resolution on sites identified
in clause (iv) of subparagraph (B) of paragraph (1), end insert the matter
shall be submitted to the site designation committee created
pursuant to Section 25261.

(ii) Notwithstanding subdivision (a) of Section 25261, the
begin delete director and the chairperson of the state board end delete begin insert designee of the
department or the regional board on the site designation committee end insert
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 begin delete 20 end delete begin insert 45 end insert 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.

begin delete

(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 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 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)

end delete

begin insert ( end insert begin insert 2) end insert   A local agency shall, before taking action to clean up the
release, do all of the following:

(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 begin delete review. end delete begin insert review and
approval. end insert

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

(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 to the department for
approval.

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

begin delete

(5) If the

end delete

begin insert ( end insert begin insert 3) end insert begin insert   end insert begin insert The end insert regional board or the department begin delete has comments on the
investigation plan, the regional board or the director end delete shall begin delete provide
the comments to the local agency end delete begin insert act on the investigation plan end insert
within 30 days of receipt of the investigation plan.

begin delete

(6)

end delete

begin insert ( end insert begin insert 4) end insert  The regional board or the department shall respond to the
local agency’s request for approval of a cleanup plan within 60
days of the receipt of the plan.

begin delete

(7)

end delete

begin insert ( end insert begin insert 5) end insert  Within 60 days after approval of the cleanup 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 cleanup in accordance with the cleanup
plan, the immunity provided by Section 25403.2 shall apply.

begin delete

(8)

end delete

begin insert ( end insert begin insert 6) 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

(9)

end delete

begin insert ( end insert begin insert 7) end insert  If an action taken by a local agency or a responsible party
to clean up a release of a hazardous material does not meet, or is
not consistent with, a cleanup plan approved by the regional board
or the department, the department or the regional board that
approved the cleanup plan may require the responsible party or
local agency to take, or cause the taking of, additional action to
clean up the release, as provided by applicable law.

begin delete

(10)

end delete

begin insert ( end insert begin insert 8) 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 (9) end delete begin insert (7) end insert only as provided in Sections 26263 and 25265.

begin delete

(11)

end delete

begin insert ( end insert begin insert 9) 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 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 an investigation
plan and schedule to 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 material release entered into
an agreement with the local agency to prepare an investigation
plan or cleanup plan for approval by the department, the regional
board, or the appropriate local agency, and to implement the
investigation plan or cleanup plan in accordance with an agreed
schedule, but failed to do any of the following:

(i) Prepare the investigation plan or cleanup plan.

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

(iii) Otherwise failed to carry out the 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 designated agency that approved or will approve
the cleanup plan and is overseeing or will oversee the preparation
and implementation of the 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 begin delete 10 end delete begin insert 30 end insert 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.

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

(1) A local agency taking actions to begin delete investigate or end delete conduct begin delete feasibility studies concerning a release. end delete begin insert a Phase I or Phase II
environmental assessment in accordance with standard real estate
practices. end insert

(2) A local agency taking the actions specified in subdivision
(a) if the local agency determines that conditions require immediate
begin delete action. end delete begin insert action due to an imminent threat to human health or the
environment. end insert

(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 and to oversee the cleanup of hazardous materials
from a specific hazardous 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 cleanup in accordance with Chapter 6.65 (commencing with
Section 25260), and all provisions of that chapter shall apply to
the cleanup.

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

(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 clean
up a hazardous material release on, under, or from property within
the local agency’s boundaries, in accordance with a cleanup 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 cleanup
of releases of hazardous materials.

(2) If the 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 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 cleanup that the action
has been properly completed, a determination that a 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 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 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 cleanup has been completed.

(c) Upon proper completion of a 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 plan and not for
any subsequent release or any release not specifically identified
in the approved cleanup 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 material release
or to clean up a hazardous 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 material or any release of a
hazardous material not specifically identified in the approved
cleanup plan.

(3) A contractor who prepares the cleanup plan or conducts the
cleanup.

(4) A person that obtains an approval of a cleanup 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, 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 material release that is the subject of the 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 material that is not
investigated or 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 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 cleanup is found to have been undertaken and properly
completed, as specified in subdivision (b) of Section 25403.2.

25403.4.  

Within 60 days of being presented with begin delete appropriate
documentation, end delete begin insert a bill from the department or regional board, end insert 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 begin delete plan end delete begin insert plan, consistent with
Section 25269, end insert 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 property or clean
up, or to require others to investigate or clean up, including
compelling a responsible party through a civil injunctive action,
a release of hazardous 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 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 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 cleanup undertaken
by a local agency under this section shall be commenced within
three years after completion of the 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 cleanup, or otherwise causes a 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 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 cleanup plan, for the public and for other public
agencies to participate in decisions regarding the cleanup plan,
taking into consideration the nature of the community interest.

(b) Thirty days before submitting the 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 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 cleanup plan on the property.

(c) All of the following methods for public participation shall
be used to notify the public of the proposed cleanup plan:

(1) Thirty days’ prior public notice in a factsheet format of the
proposed 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 cleanup plan, property assessment, addenda, and any
other supporting documentation, including materials listed as
references in the 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 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 cleanup plan, property assessment addenda,
and other supporting documentation, including materials listed as
references in the 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 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
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.