BILL NUMBER: SB 667 CHAPTERED
BILL TEXT
CHAPTER 912
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2000
APPROVED BY GOVERNOR SEPTEMBER 29, 2000
PASSED THE SENATE AUGUST 30, 2000
PASSED THE ASSEMBLY AUGUST 28, 2000
AMENDED IN ASSEMBLY AUGUST 25, 2000
AMENDED IN ASSEMBLY AUGUST 18, 2000
AMENDED IN ASSEMBLY AUGUST 7, 2000
AMENDED IN ASSEMBLY JUNE 15, 2000
AMENDED IN ASSEMBLY SEPTEMBER 10, 1999
AMENDED IN ASSEMBLY JULY 7, 1999
AMENDED IN SENATE MAY 3, 1999
INTRODUCED BY Senator Sher
(Principal coauthor: Assembly Member Firebaugh)
(Coauthors: Assembly Members Bock, Jackson, Maddox, and
Washington)
FEBRUARY 24, 1999
An act to amend Sections 25263, 25264, 25265, 25268, 25318.5,
25323.3, 25324, 25355.2, 25358.4, 25358.5, 25358.7, 25390.3, and
25390.9 of, to add Sections 25310.5, 25319.1, and 25326.3 to, to
repeal and add Sections 25319.5 and 25356 of, and to repeal and add
Article 8.5 (commencing with Section 25395.20) of Chapter 6.8 of
Division 20 of, the Health and Safety Code, relating to hazardous
substances, making an appropriation therefor, and declaring the
urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 667, Sher. Hazardous substances: response actions: orphan
sites: brownfield loans.
(1) Under existing law, the Site Designation Committee in the
California Environmental Protection Agency is authorized to designate
an administering agency for oversight of a remedial action to a
hazardous substance release. Any agency, including the administering
agency, is authorized to request the committee to convene an
advisory team to provide the administering agency with guidance in
overseeing the site investigation and remedial action. Existing law
requires the administering agency to supervise the site investigation
and remedial action conducted by the responsible party and, upon
determining that the site investigation and remedial action has been
satisfactorily completed, to issue a certificate of completion to the
responsible party. Existing law prohibits an agency that has
jurisdiction over hazardous materials releases from taking action
against the responsible party for the site for which a certificate of
completion is issued, except if specified conditions apply to the
site.
This bill would specify the procedures for requesting the
convening of an advisory committee, and would prescribe the functions
and duties of the advisory committee. The bill would provide that
the administering agency is the sole agency responsible for
determining if any of those conditions apply to a hazardous materials
release site for which a certificate of completion has been issued,
and would specify related matters.
(2) The Carpenter-Presley-Tanner Hazardous Substance Account Act,
which was repealed on January 1, 1999, with certain exceptions, and
subsequently reenacted on May 26, 1999, with certain revisions,
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. The act authorizes the department to expend the funds
in the Toxic Substances Control Account in the General Fund, upon
appropriation by the Legislature, to pay for, among other things,
removal and remedial actions related to the release of hazardous
substances.
This bill would revise the definitions of the terms "operation and
maintenance," "preliminary endangerment assessment," "response
action," and "state account," and would define the terms "agency,"
"phase I environmental assessment," and "secretary" for purposes of
the act.
(3) The act requires the department or the appropriate California
regional water quality control board to direct a responsible party
who is required to comply with operation and maintenance requirements
to demonstrate and maintain financial assurance, in a specified
manner, except as specified.
This bill would exclude from the financial assurance requirement a
responsible party that is a federal, state, or local government
entity.
(4) The act requires the department to publicly revise, at least
annually, a listing of sites subject to the act and to categorize and
place the sites on one of 3 lists.
This bill would instead require the department to assign each site
to one of 2 tiers, based upon specified criteria and the extent that
the deferral of a response action would result in specified costs or
risks. The department would be required to expend any funds
appropriated to the department for a response action, and to take a
response action, in conformance with the assignment of sites to those
priority tiers, except as specified. The bill would provide that
the department or, if appropriate, the regional board, is the state
agency with the sole responsibility for ensuring that required action
to a release at a listed site is carried out in compliance with the
act.
(5) The act requires the department and the regional board to
provide specified information to the affected community and to
develop a public participation work plan. The act requires the
department and the State Water Resources Control Board to create 2
community service offices, by July 1, 2000, to perform specified
duties.
This bill would require the department or the regional board to
inform the public of the existence of a listed site and its intention
to conduct a response action at the site. The bill would require
the department or regional board to develop a public participation
plan and would make conforming changes.
(6) The act exempts, from various contracting requirements, a
removal or remedial action taken or contracted by the department
under specified emergency conditions or when there is an imminent or
substantial endangerment to the public health or welfare of the
environment.
This bill would additionally exempt such a removal action from the
requirement that the Department of General Services approve
contracts for the hiring or purchase of equipment, supplies,
materials, or services, the construction, alteration, improvement,
repair or maintenance of property, and the performance of work or
services in cooperation with any person or public body.
(7) Under existing law, the administrator of the Orphan Share
Reimbursement Trust Fund in the State Treasury is authorized to
expend the money in that fund, upon appropriation by the Legislature,
for specified purposes, including the reimbursement of the orphan
share of a site, as defined. Under existing law, these provisions
establishing the fund and the related provisions do not become
operative until the operative date of a statute that becomes
operative on or after January 1, 2000, creates a position in state
government known as the Administrator of the Orphan Share
Reimbursement Trust Fund to be appointed by the Governor and subject
to confirmation by the Senate, and either appropriates funds to
implement those provisions or establishes a revenue source for the
fund, or both.
This bill would revise the conditions for the operation of the
orphan fund act. The bill would make other technical changes to the
orphan fund act.
(8) Existing law transferred $85,000,000 from a prescribed item of
the Budget Act of 2000 to the Cleanup Loans and Environmental
Assistance to Neighborhoods Account, which is established in the
General Fund, and appropriated $500,000 from that account to the
department for program development related to the redevelopment of
contaminated properties known as brownfields for the 2000-01 fiscal
year.
This bill would require the department, with the approval of the
Secretary for Environmental Protection, to establish the
Investigating Site Contamination Program to provide loans to conduct
preliminary endangerment assessments of brownfields and underutilized
property, as defined, and the Cleanup Loans and Environmental
Assistance to Neighborhoods Program (CLEAN), to provide loans to
finance the performance of actions necessary to respond to the
release or threatened release of hazardous material on an eligible
property. The bill would specify procedures for the approval of, and
repayment of, a loan under these programs.
The bill would repeal and reenact the Cleanup Loans and
Environmental Assistance to Neighborhoods Account in the General Fund
and would continuously appropriate the money in the account to the
department to provide loans under those programs, except that the
bill would provide that the department and the agency may expend
funds in the account for administration only upon the appropriation
of funds for that purpose.
The bill would transfer the $85,000,000 in the existing account to
the account established by this bill. This bill would appropriate
$2,000,000 from that account to the Department of Toxic Substances
Control to implement the loan programs.
The bill would require the secretary to submit a report to the
Joint Legislative Budget Committee and specified policy committees,
and to post the report on the agency's Internet web site, once every
2 years regarding the loan programs.
(9) The bill would declare that it is to take effect immediately
as an urgency statute.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) (1) There are thousands of brownfields and underutilized
properties in California where redevelopment has been stymied due to
real or perceived hazardous materials contamination.
(2) Because of the reluctance of private developers, local
governments, and schools to redevelop these urban properties, the
location of new development tends to be at the edges of urban areas,
because those areas are generally perceived to entail lesser
potential for contamination and liability for cleanup costs.
(3) This has resulted in a multitude of problems, including urban
sprawl, decaying inner-city neighborhoods and schools, public health
and environmental risks stemming from contaminated properties,
reduced inner-city tax bases, and an increased need for major
infrastructure improvements, such as streets, highways, and sewer
systems to service the urban fringe areas while the inner-city
infrastructure deteriorates.
(4) One of the primary reasons that these urban properties are not
redeveloped for beneficial use is that potential redevelopers are
hesitant to expend funds to determine whether a property is
contaminated, and if so, how much it would cost to remediate the
site. Some potential redevelopers are also not able to secure
conventional financing to remediate contaminated properties.
(b) The Legislature hereby recognizes that it is in the best
interests of the people of California that state funds be made
available to stimulate the redevelopment of brownfields and
underutilized properties, if this redevelopment will result in the
overall improvement of the community where the property is located
and there is a reasonable economic or social return on these
investments, by providing low-interest loans to qualified applicants
for the purpose of funding site investigations, and other response
actions at brownfields and underutilized properties.
SEC. 2. Section 25263 of the Health and Safety Code is amended to
read:
25263. (a) Any agency, including the administering agency, may
request the committee at any time to convene an advisory team for the
purpose of providing the administering agency with guidance in
overseeing the site investigation and remedial action at a hazardous
materials release site. If the request is made by an agency other
than the administering agency, the request shall be in writing, and
shall specify any issue that is of concern to the requesting agency,
the requirements of the laws, ordinances, regulations, or standards
that are related to the issue, and the manner in which the
administration or implementation of those requirements by the
administering agency has raised the issue concerning the site
investigation or remedial action at the hazardous materials release
site. The committee shall create such an advisory team within 30
calendar days of the date of receipt of the request and shall
designate the members of the advisory team after consulting with
interested agencies. The advisory team shall be chaired by the
representative of the agency that requested the advisory team to be
convened and shall meet within five working days of the date that any
agency requests a meeting. A representative of the administering
agency shall attend all advisory team meetings.
(b) The advisory team may only take action to ensure that the
administering agency has adequate information concerning the
requirements of applicable laws, ordinances, regulations, or
standards to address, in an appropriate and correct manner, any issue
that led to the request for, and the convening of, the advisory
team. To carry out this function, the advisory team shall do all of
the following:
(1) Define, in a specific manner, any issue related to the site
investigation and remedial action that led to the request to convene
the advisory team.
(2) Determine the application of the laws, ordinances,
regulations, and standards related to that issue that are applicable
to, and govern, the site investigation and remedial action.
(3) Make recommendations to the administering agency concerning
the manner in which the applicable laws, ordinances, regulations, and
standards should be administratively applied to appropriately and
correctly resolve the issue.
(c) An agency, other than the administering agency, that is a
member of the advisory team shall be eligible for reimbursement of
oversight costs related to its participation on the advisory team
from the responsible party for the hazardous materials release site
only if all of the following apply:
(1) The issue that led to the request to convene the advisory
team, or the issue that is considered by the advisory committee
following its formation, is directly and materially related to the
administration of a law, ordinance, regulation, or standard for which
the agency has actual statutory or administrative responsibility.
(2) The administering agency certifies that the agency is not able
to address the issue without a significant expenditure of personnel
time or other resources, or certifies that the issue is related to
potential risks to human health or safety or the environment of
sufficient significance to warrant reimbursement of the agency's
oversight expenditures.
(3) Either of the following applies:
(A) The responsible party agrees to reimburse the agency's
oversight expenditures.
(B) The committee directs the responsible party or responsible
parties to reimburse the agency's oversight expenditures.
(d) Subdivision (c) does not affect the authority of the
administering agency to recover oversight costs in accordance with
applicable law.
SEC. 3. Section 25264 of the Health and Safety Code is amended to
read:
25264. (a) The administering agency for a hazardous materials
release site shall supervise all aspects of a site investigation and
remedial action conducted by the responsible party and, for that
purpose, the administering agency shall, notwithstanding any other
provision of law, including, but not limited to, this division and
Division 7 (commencing with Section 13000) of the Water Code, have
sole jurisdiction over all activities that may be required to carry
out a site investigation and remedial action necessary to respond to
the hazardous materials release at the site. For purposes of this
chapter, the administering agency shall do all of the following:
(1) Administer all state and local laws, ordinances, regulations,
and standards that are applicable to, and govern, the activities
involved with the site investigation and remedial action at the site.
(2) Determine the adequacy of site investigation and remedial
action activities at the site and the extent to which the activities
comply, or fail to comply, with applicable state and local laws,
ordinances, regulations, and standards. In making these
determinations, the administering agency shall consult with the
advisory team if one has been convened pursuant to Section 25263.
(3) Issue permits or other forms of authorization that may be
required by state and local laws, ordinances, and regulations and
that are necessary to undertake activities related to the site
investigation and remedial action at the site. Before issuing a
permit or other authorization pursuant to this paragraph, the
administering agency shall consult with the appropriate agency and
ensure that required procedures are followed and adequate permit
requirements and conditions are imposed.
(b) Upon determining that a site investigation and remedial action
at a hazardous materials release site has been satisfactorily
completed and that a permanent remedy to the release has been
accomplished, the administering agency shall issue the responsible
party a certificate of completion. The certificate shall describe
the release of hazardous materials that was the subject of the
remedial action and the remedial action that was taken and shall
certify that applicable remedial action standards and objectives were
achieved.
(c) Except as otherwise provided in Section 25265 and this
subdivision, the issuance of a certificate of completion by the
administering agency shall constitute a determination that the
responsible party has complied with the requirements of all state and
local laws, ordinances, regulations, and standards that are
applicable to the site investigation and remedial action for which
the certificate is issued. No agency that has jurisdiction over
hazardous materials releases pursuant to those state and local laws,
ordinances, or regulations may take action against the responsible
party with respect to the hazardous materials release that was the
subject of the site investigation and remedial action for which a
certificate of completion is issued. The administering agency may not
take action against the responsible party with respect to the
hazardous materials release that was the subject of the site
investigation and remedial action for which a certificate of
completion is issued unless one of the following applies:
(1) Monitoring, testing, or analysis of the hazardous materials
release site subsequent to the issuance of the certificate of
completion indicates that the remedial action standards and
objectives were not achieved or are not being maintained.
(2) One or more of the conditions, restrictions, or limitations
imposed on the site as part of the remedial action or certificate of
completion are violated.
(3) Site monitoring or operation and maintenance activities that
are required as part of the remedial action or certificate of
completion for the site are not adequately funded or are not properly
carried out.
(4) A hazardous materials release is discovered at the site that
was not the subject of the site investigation and remedial action for
which the certificate of completion was issued.
(5) A material change in the facts known to the administering
agency at the time the certificate of completion was issued, or new
facts, causes the administering agency to find that further site
investigation and remedial action are required in order to prevent a
significant risk to human health and safety or to the environment.
(6) The responsible party induced the administering agency to
issue the certificate of completion by fraud, negligent or
intentional nondisclosure of information, or misrepresentation.
(d) (1) Except as provided in Section 25265, the administering
agency shall be the sole agency responsible for determining if any of
the conditions described in paragraphs (1) through (6), inclusive,
of subdivision (c) are applicable to a hazardous materials release
site for which a certificate of completion has been issued pursuant
to subdivision (b), and for taking any action that is deemed
necessary if that determination is made. Any agency, other than the
administering agency, that has information that any of those
conditions applies to the hazardous materials site shall provide the
administering agency with that information and the administering
agency shall, within 45 calendar days of receipt of the request, do
all of the following:
(A) Determine whether the condition is applicable.
(B) If it is applicable, determine if further action at the site
is warranted.
(C) If further action is warranted, take further action at the
site as may be necessary.
(2) If the administering agency fails, or refuses, to act properly
or in a timely manner, as required by this subdivision, the agency
that provided the information to the administering agency may
petition the committee for review in accordance with Section 25265.
The decision of the committee shall be final, and shall not be
subject to judicial review.
SEC. 4. Section 25265 of the Health and Safety Code is amended to
read:
25265. (a) Any agency may petition the chairperson of the
committee at any time to review any of the following:
(1) The manner in which the administering agency is implementing
state and local laws, ordinances, regulations, and standards
applicable to the site investigation and remedial action that is
being carried out by the responsible party at a hazardous materials
release site.
(2) The decision to issue a certificate of completion for the
site.
(3) The failure, or refusal, of the administering agency to act
properly or in a timely manner pursuant to subdivision (d) of Section
25264.
(b) The petition specified in subdivision (a) shall state the
reasons why the review is warranted, the basis for believing that
applicable state and local laws, ordinances, regulations, and
standards are not being implemented properly, or the grounds for
objecting to the issuance of a certificate of completion.
(c) (1) The committee shall review the petition submitted pursuant
to subdivision (a), consult with the petitioning and administering
agencies, and make a decision regarding the validity of the petition
within 30 calendar days of the date the petition is received.
(2) If the committee finds that the petition is not valid, it
shall deny the petition. If it finds that the administering agency
is not properly implementing a state or local law, ordinance,
regulation, or standard, the administering agency shall be divested
of exclusive jurisdiction over the implementation of that law,
ordinance, regulation, or standard and the jurisdiction shall revert
to the appropriate agency.
(3) If the committee finds that there are valid grounds for
objecting to the issuance of a certificate of completion, the
committee shall specify the actions that the responsible party and
the administering agency shall be required to take before the
certificate may be issued.
(4) If the committee determines that the administering agency has
not acted properly or in a timely manner pursuant to subdivision (d)
of Section 25264, the committee shall determine whether one or more
of the conditions described in paragraphs (1) through (6), inclusive,
of subdivision (c) of Section 25264 applies to the hazardous
materials release site for which a certificate of completion has been
issued pursuant to subdivision (b) of Section 25264. If the
committee makes a determination pursuant to this paragraph, the
committee shall require the administering agency to take any further
action at the site that is necessary to address the condition or
designate another administering agency to take the necessary action.
(d) Nothing in this section shall be construed to affect or limit
the jurisdiction of the administering agency in connection with the
administration of any state or local law, ordinance, regulation, or
standard that has not been challenged under this section.
SEC. 5. Section 25268 of the Health and Safety Code is amended to
read:
25268. Nothing in this chapter shall be construed as infringing
on the right of any agency to obtain from the administering agency
for a site the information that may be necessary for the agency to
carry out its responsibilities under this chapter, including, but not
limited to, its responsibilities under Section 25263, subdivisions
(a), (c) and (d) of Section 25264, and Section 25265.
SEC. 6. Section 25310.5 is added to the Health and Safety Code, to
read:
25310.5. "Agency" means the California Environmental Protection
Agency.
SEC. 7. Section 25318.5 of the Health and Safety Code is amended
to read:
25318.5. "Operation and maintenance" means those activities
initiated or continued at a hazardous substance release site
following completion of a response action that are deemed necessary
by the department or regional board in order to protect public health
or safety or the environment, to maintain the effectiveness of the
response action at the site, or to achieve or maintain the response
action standards and objectives established by the final remedial
action plan or final removal action work plan applicable to the site.
SEC. 8. Section 25319.1 is added to the Health and Safety Code, to
read:
25319.1. "Phase I environmental assessment" means a preliminary
assessment of a property to determine whether there has been, or may
have been, a release of a hazardous substance based on reasonably
available information about the property and general vicinity. A
phase I environmental assessment may include, but is not limited to,
a review of public and private records, current and historical land
uses, prior releases of a hazardous material, data base searches,
reviews of relevant files of federal, state, and local agencies,
visual and other surveys of the property and general vicinity,
interviews with current and previous owners and operators, and review
of regulatory correspondence and environmental reports. Sampling or
testing is not required as part of a phase I environmental
assessment.
SEC. 9. Section 25319.5 of the Health and Safety Code is repealed.
SEC. 10. Section 25319.5 is added to the Health and Safety Code,
to read:
25319.5. "Preliminary endangerment assessment" means an activity
that is performed to determine whether current or past hazardous
substance management practices have resulted in a release or
threatened release of a hazardous substance that poses a threat to
the public health or the environment and is conducted in a manner
that complies with the guidelines published by the department
entitled "Preliminary Endangerment Assessment: Guidance Manual," or
as those guidelines may be amended by the department. A preliminary
endangerment assessment includes all of the following activities:
(a) Sampling and analysis of a site.
(b) A preliminary determination of the type and extent of
hazardous material contamination of a site.
(c) A preliminary evaluation of the risks the hazardous materials
contamination of a site may pose to public health or the environment.
SEC. 11. Section 25323.3 of the Health and Safety Code is amended
to read:
25323.3. "Response," "respond," or "response action" have the
same meanings as defined in Section 9601(25) of the federal act (42
U.S.C. Sec. 9601(25)). The enforcement and oversight activities of
the department and regional board are included within the meaning of
"response," "respond," or "response action."
SEC. 12. Section 25324 of the Health and Safety Code is amended to
read:
25324. (a) "State account" means the Toxic Substances Control
Account established pursuant to Section 25173.6, except as follows:
(1) For purposes of Section 25334 and Article 7.5 (commencing with
Section 25385), "state account" means the Hazardous Substance
Account established pursuant to Section 25330.
(2) For purposes of Section 25330.2, "state account" means the
Site Remediation Account established pursuant to Section 25337.
(b) Notwithstanding any other provision of this section, any costs
incurred and payable from the Hazardous Substance Account, the
Hazardous Waste Control Account, or the Site Remediation Account
prior to July 1, 1998, to implement this chapter, as it read prior to
January 1, 1999, or Chapter 6.85 (commencing with Section 25396),
shall be recoverable from the liable person or persons pursuant to
Section 25360 as if the costs were incurred and payable from the
state account.
SEC. 13. Section 25326.3 is added to the Health and Safety Code,
to read:
25326.3. "Secretary" means the Secretary for Environmental
Protection.
SEC. 14. Section 25355.2 of the Health and Safety Code is amended
to read:
25355.2. (a) Except as provided in subdivision (c), the
department or the regional board shall require any responsible party
who is required to comply with operation and maintenance requirements
as part of a response action, to demonstrate and to maintain
financial assurance in accordance with this section. The responsible
party shall demonstrate financial assurance prior to the time that
operation and maintenance activities are initiated and shall maintain
it throughout the period of time necessary to complete all required
operation and maintenance activities.
(b) (1) For purposes of subdivision (a), the responsible party
shall demonstrate and maintain one or more of the financial assurance
mechanisms set forth in subdivisions (a) to (e), inclusive, of
Section 66265.143 of Title 22 of the California Code of Regulations.
(2) As an alternative to the requirement of paragraph (1), a
responsible party may demonstrate and maintain financial assurance by
means of a financial assurance mechanism other than those listed in
paragraph (1), if the alternative financial assurance mechanism has
been submitted to, and approved by, the department or the regional
board as being at least equivalent to the financial assurance
mechanisms specified in paragraph (1). The department or the
regional board shall evaluate the equivalency of the proposed
alternative financial assurance mechanism principally in terms of the
certainty of the availability of funds for required operation and
maintenance activities and the amount of funds that will be made
available. The department or the regional board shall require the
responsible party to submit any information necessary to make a
determination as to the equivalency of the proposed alternative
financial assurance mechanism.
(c) The department or the regional board shall waive the financial
assurance required by subdivision (a) if the department or the
regional board makes one of the following determinations:
(1) The responsible party is a small business and has demonstrated
all of the following:
(A) The responsible party cannot qualify for any of the financial
assurance mechanisms set forth in subdivisions (b), (c), and (d) of
Section 66265.143 of Title 22 of the California Code of Regulations.
(B) The responsible party financially cannot meet the requirements
of subdivision (a) of Section 66265.143 of Title 22 of the
California Code of Regulations.
(C) The responsible party is not capable of meeting the
eligibility requirements set forth in subdivision (e) of Section
66265.143 of Title 22 of the California Code of Regulations.
(2) The responsible party is a small business and has demonstrated
that the responsible party financially is not capable of
establishing one of the financial assurance mechanisms set forth in
subdivisions (a) to (e), inclusive, of Section 66265.143 of Title 22
of the California Code of Regulations while at the same time
financing the operation and maintenance requirements applicable to
the site.
(3) The responsible party is not separately required to
demonstrate and maintain a financial assurance mechanism for
operation and maintenance activities at a site because of all of the
following conditions:
(A) The site is a multiple responsible party site.
(B) Financial assurance that operation and maintenance activities
at the site will be carried out is demonstrated and maintained by a
financial assurance mechanism established jointly by all, or some, of
the responsible parties.
(C) The financial assurance mechanism specified in subparagraph
(B) meets the requirements of subdivisions (a) and (b).
(4) The responsible party is a federal, state, or local government
entity.
(d) The department or the regional board shall withdraw a waiver
granted pursuant to paragraph (1) or (2) of subdivision (c) if the
department or the regional board determines that the responsible
party that obtained the waiver no longer meets the eligibility
requirements for the waiver.
(e) Notwithstanding Section 7550.5 of the Government Code, on or
before January 15, 2001, the department shall report to the
Legislature all of the following:
(1) The number of requests the department and the regional boards
have received for waivers from the financial assurance requirements
of this section during the period between May 26, 1999, and January
1, 2001.
(2) The disposition of the requests that were received and the
reasons for granting the waivers that were allowed and rejecting the
waivers that were disallowed.
(3) The total number of businesses or other entities that were
required by this section to demonstrate and maintain financial
assurance, the number of businesses or other entities that were able
to comply with the requirement, the number that were unable to comply
and the reasons why they could not or did not comply, and the
history of compliance with this chapter and Chapter 6.5 (commencing
with Section 25100) by responsible parties that requested waivers.
(4) Financial assurance mechanisms other than the financial
assurance mechanisms referenced in paragraph (1) of subdivision (b)
that may be available to responsible parties.
(f) For purposes of this section, "small business" is a business
that meets the requirements set forth in subdivision (d) of Section
14837 of the Government Code.
SEC. 15. Section 25356 of the Health and Safety Code is repealed.
SEC. 16. Section 25356 is added to the Health and Safety Code, to
read:
25356. (a) (1) The department shall adopt, by regulation,
criteria for the selection of hazardous substance release sites for a
response action under this chapter. The criteria shall take into
account pertinent factors relating to public health, safety and the
environment, which shall include, but are not necessarily limited to,
potential hazards to public health, safety or the environment, the
risk of fire or explosion, and toxic hazards, and shall also include
the criteria established pursuant to Section 105(8) of the federal
act (42 U.S.C. Sec. 9605(8)).
(2) The criteria adopted pursuant to paragraph (1) may include a
minimum hazard threshold, below which sites shall not be listed
pursuant to this section, if the sites are subject to the authority
of the department to order a response action, or similar action,
pursuant to Chapter 6.5 (commencing with Section 25100).
(b) (1) The department shall publish and revise, at least
annually, a listing of the hazardous substance release sites selected
for, and subject to, a response action under this chapter. The
department shall list the sites based upon the criteria adopted
pursuant to subdivision (a) and the extent to which deferral of a
response action at a site will result, or is likely to result, in a
rapid increase in response costs at the site or in a significant
increase in risk to human health or safety or the environment.
(2) The list of sites established pursuant to this subdivision
shall be published by the department and made available to the public
or any interested person upon request and without cost. The
department shall list sites alphabetically within each priority tier,
as specified in subdivision (c), and shall update the list of sites
at least annually to
reflect new information regarding previously listed sites or the
addition of new sites requiring response actions.
(c) The department shall assign each site listed pursuant to
subdivision (b) to one of the following priority tiers for the
purpose of informing the public of the relative hazard of listed
sites:
(1) "Priority tier one" shall include any site that the department
determines, using the criteria described in subdivision (b), meets
any of the following conditions:
(A) The site may pose a known or probable threat to public health
or safety through direct human contact.
(B) The site may pose a substantial probability of explosion or a
fire or a significant risk due to hazardous air emissions.
(C) The site has a high potential to contaminate or to continue to
contaminate groundwater resources that are present or possible
future sources of drinking water.
(D) There is a risk that the costs of a response action will
increase rapidly or risks to human health or safety or the
environment will increase significantly if response action is
deferred.
(2) "Priority tier two" shall include any site that poses a
substantial but less immediate threat to public health or safety or
the environment and any site that will require a response action, but
presents only a limited and defined threat to human health or safety
or the environment. Priority tier two may contain sites previously
listed in priority tier one if the department determines that direct
threats to human health or safety have been removed and if physical
deterioration of the site has been stabilized so that threats to the
environment are not significantly increasing.
(d) Hazardous substance release sites listed by the department
pursuant to subdivision (b) are subject to this chapter and all
actions carried out in response to hazardous substance releases or
threatened releases at listed sites shall comply with the procedures,
standards, and other requirements set forth in this chapter or
established pursuant to the requirements of this chapter.
(e) (1) The adoption of the minimum hazard threshold pursuant to
paragraph (2) of subdivision (a), the department's development and
publication of the list of sites pursuant to subdivision (b), and the
assignment of sites to a tier pursuant to subdivision (c), including
the classification of a site as within a minimum threshold pursuant
to subdivision (c), are not subject to Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
(2) The adoption of the criteria used by the department pursuant
to subdivision (b) to determine the extent to which deferral of a
response action at a site will result, or is likely to result, in a
rapid increase in response costs at a site or in a significant
increase in risk to human health or safety or the environment is
subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code.
(f) (1) Except as provided in paragraph (2), the department shall
expend all funds appropriated to the department for any response
action pursuant to this chapter, and shall take all response action
pursuant to this chapter, in conformance with the assignment of sites
to priority tiers pursuant to subdivision (c).
(2) The department may expend funds appropriated for a response
action and take a response action, without conforming to the listing
of sites by tier pursuant to subdivision (c), or at a site that has
not been listed pursuant to subdivision (b), if any of the following
apply:
(A) The department is monitoring a response action conducted by a
responsible party at a site listed pursuant to subdivision (b) or at
a site that is not listed but is being voluntarily remediated by a
responsible party or another person.
(B) The expenditure of funds is necessary to pay for the state
share of a response action pursuant to Section 104(c)(3) of the
federal act (42 U.S.C. Sec. 9604(c)(3)).
(C) The department is assessing, evaluating, and characterizing
the nature and extent of a hazardous substance release at a site for
which the department has not been able to identify a responsible
party, the responsible party is defunct or insolvent, or the
responsible party is not in compliance with an order issued, or an
enforceable agreement entered into, pursuant to subdivision (a) of
Section 25355.5.
(D) The department is carrying out activities pursuant to
paragraph (2) or (3) of subdivision (b) of, or subdivision (c) or (d)
of, Section 25355.5.
(3) The department may, at any one time, expend funds and take a
response action at more than one site on the list established
pursuant to subdivision (b). In addition, the department may, at any
one time, oversee the performance of any activities conducted by a
responsible party on more than one site on the list established
pursuant to subdivision (b).
(g) This section does not require the department to characterize
every site listed pursuant to subdivision (b) before the department
begins response actions at those sites.
(h) The department, or, if appropriate, the California regional
water quality board, is the state agency with sole responsibility for
ensuring that required action in response to a hazardous substance
release or threatened release at a listed site is carried out in
compliance with the procedures, standards, and other requirements set
forth in this chapter, and shall, as appropriate, coordinate the
involvement of interested or affected agencies in the response
action.
SEC. 17. Section 25358.4 of the Health and Safety Code is amended
to read:
25358.4. The analysis of any material that is required to
demonstrate compliance with this chapter shall be performed by a
laboratory accredited by the State Department of Health Services
pursuant to Article 3 (commencing with Section 100825) of Chapter 4
of Part 1 of Division 101.
SEC. 18. Section 25358.5 of the Health and Safety Code is amended
to read:
25358.5. Any removal or remedial action taken or contracted by
the department pursuant to Section 25354 or subdivision (a) of
Section 25358.3 shall be exempt from all of the following provisions:
(a) State Contract Act (Chapter 1 (commencing with Section 10100)
of Part 2 of Division 2 of the Public Contract Code).
(b) Chapter 10 (commencing with Section 4525) of Division 5 of
Title 1 of the Government Code.
(c) Section 10295 of, and Article 4 (commencing with Section
10335) of, and Article 5 (commencing with Section 10355) of, Chapter
2 of Part 2 of Division 2 of the Public Contract Code.
SEC. 19. Section 25358.7 of the Health and Safety Code is amended
to read:
25358.7. (a) The department or the regional board, as
appropriate, shall take the actions specified in this section to
provide an opportunity for meaningful public participation in
response actions undertaken for sites listed pursuant to Section
25356.
(b) The department, or the regional board, as appropriate, shall
inform the public, and in particular, persons living in close
proximity to a hazardous substance release site listed pursuant to
Section 25356, of the existence of the site and the department's or
regional board's intention to conduct a response action at the site,
and shall conduct a baseline community survey to determine the level
of public interest and desire for involvement in the department's or
regional board's activities, and to solicit concerns and information
regarding the site from the affected community. Based on the results
of the baseline survey, the department or regional board shall
develop a public participation plan that shall establish appropriate
communication and outreach measures commensurate with the level of
interest expressed by survey respondents. The public participation
plan shall be updated as necessary to reflect any significant changes
in the degree of public interest as the site investigation and
cleanup process moves toward completion.
(c) The department or regional board shall provide any person
affected by a response action undertaken for sites listed pursuant to
Section 25356 with the opportunity to participate in the department'
s or regional board's decisionmaking process regarding that action by
taking all of the following actions:
(1) Provide access to information which the department or regional
board is required to release pursuant to the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code), relating to the action, except
for the following:
(A) Trade secrets, as defined in subdivision (a) of Section
25358.2.
(B) Business financial data and information, as specified in
subdivision (c) of Section 25358.6.
(C) Information which the department or regional board is
prohibited from releasing pursuant to any state or federal law.
(2) Provide factsheets, based on the expressed level of public
interest, regarding plans to conduct the major elements of the site
investigation and response actions. The factsheets shall present the
relevant information in nontechnical language and shall be detailed
enough to provide interested persons with a good understanding of the
planned activities. The factsheets shall be made available in
languages other than English if appropriate.
(3) Provide notification, upon request, of any public meetings
held by the department or regional board concerning the action.
(4) Provide the opportunity to attend and to participate at those
public meetings.
(5) Based on the results of the baseline community survey, provide
opportunities for public involvement at key stages of the response
action process, including the health risk assessment, the preliminary
assessment, the site inspection, the remedial investigation, and the
feasibility study stages of the process. If the department or
regional board determines that public meetings or other opportunities
for public comment are not appropriate at any of the stages listed
in this section, the department or regional board shall provide
notice of that decision to the affected community.
(d) The department or regional board shall develop and make
available to the public a schedule of activities for each site for
which remedial action is expected to be taken by the department or
regional board pursuant to this chapter and shall make available to
the public any plan provided to the department or regional board by
any responsible party, unless the department is prohibited from
releasing the information pursuant to any state or federal law.
(e) In making decisions regarding the methods to be used for
removal or remedial actions taken pursuant to this chapter, the
department or regional board shall incorporate or respond in writing
to the advice of persons affected by the actions.
(f) This section does not apply to emergency actions taken
pursuant to Section 25354.
SEC. 20. Section 25390.3 of the Health and Safety Code is amended
to read:
25390.3. (a) The Orphan Share Reimbursement Trust Fund is hereby
created in the State Treasury.
(b) The administrator of the fund may expend the money deposited
in the fund as provided in this article, upon appropriation by the
Legislature. The administrator of the fund shall act in a fiduciary
capacity, shall prudently administer the fund, and shall protect the
fund from any unreasonable or unjustified claims, including any
unreasonable or unjustified determinations of the orphan share
percentage.
(c) Except as provided in subdivision (d) and subdivision (b) of
Section 25358.7.2, the administrator of the fund may expend the money
in the fund for all of the following purposes:
(1) To pay claims for reimbursement of all, or any part of, the
orphan share at a site paid by the responsible party filed pursuant
to Section 25390.4.
(2) For the costs of implementing this article.
(3) To pay the reasonable costs of the department and the regional
board for performance of its duties under this article, including,
but not limited to, its participation in the orphan share
determination process set forth in Section 25390.5, unless those
costs are paid by a potentially responsible party under an agreement
specified in paragraph (3) of subdivision (a) of Section 25390.4.
The expenditures from the fund for purposes of this paragraph shall
not exceed 5 percent of the total amount appropriated from the fund
in the annual Budget Act for purposes of this subdivision for that
fiscal year.
(4) To pay the portion of costs attributable to the orphan share
incurred by the department and the regional boards to oversee actions
of potentially responsible parties, unless those costs are paid by a
potentially responsible party under an agreement specified in
paragraph (3) of subdivision (a) of Section 25390.4.
(d) If an appropriation from the General Fund is made to the fund
in any fiscal year and an amount greater than five million dollars
($5,000,000) in unexpended funds, beyond any amount approved by the
administrator of the fund to pay claims pursuant to this article from
that General Fund appropriation, remain in the fund at the end of
that fiscal year, and if the department determines that additional
funding for orphan sites beyond that appropriated from the Toxic
Substances Control Account is required for the next fiscal year, the
administrator may expend the amount in excess of five million dollars
($5,000,000) from the General Fund appropriation to pay for response
costs incurred by the department or the regional boards under this
chapter at sites listed pursuant to Section 25356 where no viable
responsible parties exist.
SEC. 21. Section 25390.9 of the Health and Safety Code is amended
to read:
25390.9. (a) This article shall become operative on the operative
date of the statute that does either, or both, of the following:
(1) Appropriates funds to the fund to implement this article.
(2) Establishes a revenue source for the fund.
(b) Notwithstanding subdivision (a), the operation of this article
shall be suspended during any fiscal year in which both no funds are
appropriated to the fund to implement this article and no revenue
source for the fund is operative.
SEC. 22. Article 8.5 (commencing with Section 25395.20) of Chapter
6.8 of Division 20 of the Health and Safety Code, as added by
Chapter 144 of the Statutes of 2000, is repealed.
SEC. 23. Article 8.5 (commencing with Section 25395.20) is added
to Chapter 6.8 of Division 20 of the Health and Safety Code, to read:
Article 8.5. Cleanup Loans and Environmental Assistance to
Neighborhoods
25395.20. (a) For purposes of this article, the following
definitions shall apply:
(1) "Account" means the Cleanup Loans and Environmental Assistance
to Neighborhoods Account established pursuant to subdivision (b).
(2) (A) "Brownfield" means property that meets all of the
following conditions:
(i) It is located in an urbanized area.
(ii) It was previously the site of an economic activity that is no
longer in operation at that location.
(iii) It has been vacant or has had no occupant engaged in
year-round economically productive activities for a period of not
less than the 12 months previous to the date of application for a
loan pursuant to this article.
(B) "Brownfield" does not include any of the following:
(i) Property listed, or proposed for listing, on the National
Priorities List pursuant to the federal act (42 U.S.C. Sec. 9605 (a)
(8)(B)).
(ii) Property that is, or was, owned or operated by a department,
agency, or instrumentality of the United States.
(iii) Property that will be the site of a contiguous expansion or
improvement of an operating industrial or commercial facility.
(3) "Cleanup Loans and Environmental Assistance to Neighborhoods
Program" or "CLEAN" means the loan program established by the
department pursuant to Section 25395.22, to finance the performance
of actions necessary to respond to the release or threatened release
of hazardous material on an eligible property.
(4) "Economic activity" means a governmental activity, a
commercial, agricultural, industrial, or not-for-profit enterprise,
or other economic or business concern.
(5) "Eligible property" means a site that is either of the
following:
(A) A brownfield.
(B) An underutilized property that is any of the following:
(i) A property described in clause (v) of subparagraph (D) of
paragraph (11).
(ii) A property located in an enterprise zone established pursuant
to the Enterprise Zone Act (Chapter 12.8 (commencing with Section
7070) of Division 7 of Title 1 of the Government Code), in a project
area for which a redevelopment plan has been approved pursuant to
Article 4 (commencing with Section 33300) of Chapter 4 of Part 1 of
Division 24, or in an eligible area, as determined by the Trade and
Commerce Agency pursuant to paragraph (2) of subdivision (c) of
Section 7072 of the Government Code.
(iii) A property, the redevelopment of which will result in any of
the following:
(I) An increase in the number of full-time jobs that is at least
100 percent greater than the number of jobs provided by the economic
activity located on the property before redevelopment occurred.
(II) An increase in property taxes paid to the local government
that is at least 100 percent greater than the property taxes paid by
the property owner before redevelopment occurred.
(III) Sales tax revenues to the local government that are
sufficient to defray the costs of providing municipal services to the
property after the redevelopment occurs.
(IV) Housing that is affordable to very low, low-, or
moderate-income households, as defined in paragraph (2) of
subdivision (h) of Section 65589.5 of the Government Code.
(V) The construction of new or expanded school facilities, public
day care centers, parks, or community recreational facilities.
(C) "Eligible property" does not include any of the following:
(i) Property listed or proposed for listing on the National
Priorities List pursuant to the federal act (42 U.S.C. Sec. 9605 (a)
(8)(B)).
(ii) Property that is, or was, owned or operated by a department,
agency, or instrumentality of the United States.
(iii) Property that will be the site of a contiguous expansion or
improvement of an operating industrial or commercial facility.
(6) (A) "Hazardous material" means a substance or waste that,
because of its physical, chemical, or other characteristics, may pose
a risk of endangering human health or safety or of degrading the
environment. "Hazardous material" includes, but is not limited to,
all of the following:
(i) A hazardous substance, as defined in Section 25281 or 25316,
including the substances specified in Section 25317.
(ii) A hazardous waste, as defined in Section 25117.
(iii) A waste, as defined in Section 101075, or as defined in
Section 13050 of the Water Code.
(B) "Hazardous material" does not include undisturbed naturally
occurring hazardous material unless it will adversely affect the
reasonable use of a property after response action is completed.
(7) "Investigating site contamination program" means the loan
program established by the department pursuant to Section 25395.21 to
conduct a preliminary endangerment assessment of an underutilized
urban property.
(8) "No longer in operation" means an economic activity that is,
or previously was, located on a property that is not conducting
operations on the property of the type usually associated with the
economic activity.
(9) "Project" means any response action, and the planned future
development, included in an application for a loan pursuant to
Section 25395.22.
(10) "Property" means real property, as defined in Section 658 of
the Civil Code.
(11) "Underutilized property" means property that meets all of the
following conditions:
(A) It is located in an urbanized area.
(B) An economic activity is conducted on the property.
(C) It is the subject of a proposal for development pursuant to
this article.
(D) One of the following applies:
(i) The economic activity on the property is irregular or
intermittent in nature and uses the property for productive purposes
less than four months in any calendar year.
(ii) The economic activity on the property employs less than 25
percent of the property for productive purposes.
(iii) The structures, infrastructure, and other facilities on the
property are antiquated, obsolete, or in such poor repair that they
cannot be used for the purposes for which they were originally
constructed and require replacement in order to implement the
redevelopment proposal.
(iv) The economic activity conducted on the property is a parking
facility or an activity that offers a similar marginal economic
service and the facility or activity will be replaced when the
property is redeveloped.
(v) The property is adjacent to one or more brownfields that are
the subject of a project under this article and its inclusion in the
project is necessary in order to ensure that the redevelopment of the
brownfield or brownfields occurs.
(E) An underutilized property does not include any of the
following:
(i) Property listed or proposed for listing on the National
Priorities List pursuant to the federal act (42 U.S.C. Sec. 9605 (a)
(8)(B)).
(ii) Property that is, or was, owned or operated by a department,
agency, or instrumentality of the United States.
(iii) Property that will be the site of a contiguous expansion or
improvement of an operating industrial or commercial facility.
(12) "Urbanized area" has the same meaning as set forth in
paragraph (2) of subdivision (b) of Section 21080.7 of the Public
Resources Code.
(b) The Cleanup Loans and Environmental Assistance to
Neighborhoods Account is hereby established in the General Fund to
provide low-interest loans to qualified applicants for the purpose of
funding preliminary endangerment assessments and response actions
at brownfields and underutilized properties located in the state
pursuant to this article. All of the following moneys shall be
deposited in the account:
(1) Funds appropriated by the Legislature for the purposes of this
article.
(2) Notwithstanding Section 16475 of the Government Code, any
interest earned upon money deposited into the account.
(3) Proceeds from loan repayments.
(4) Proceeds from the sale of property pursuant to this article
that is the subject of foreclosure or its equivalent, as defined in
subdivision (f) of Section 25548.1, and proceeds from the enforcement
of any other security interest.
(c) (1) Except as provided in paragraph (2), notwithstanding
Section 13340 of the Government Code, the money in the account is
continuously appropriated without regard to fiscal years to the
department for the purpose of providing loans pursuant to Sections
25395.21 and 25395.22.
(2) The money in the account may be expended by the department and
the agency for the administration of this article only upon
appropriation by the Legislature in the annual Budget Act or in
another measure.
25395.21. (a) The department, with the approval of the secretary,
shall establish an Investigating Site Contamination Program to
provide loans to eligible persons to conduct preliminary endangerment
assessments of brownfields and underutilized properties. A loan
provided pursuant to this section shall not be used for the cost of a
phase I environmental assessment or the department's oversight of
the preparation and approval of the preliminary endangerment
assessment.
(b) The department shall develop a loan application form for an
investigating site contamination program loan and shall include, in
the form, any provisions that the department considers to be
appropriate. The application form shall be signed by the loan
applicant and shall be submitted to the department with all of the
following documentation:
(1) The phase I environmental assessment for the property that is
the subject of the loan application.
(2) Information that demonstrates that the property is a
brownfield or an underutilized property.
(3) If the owner of the property that is the subject of the loan
application is not the loan applicant, documentation that
demonstrates that the owner consents to the performance of the
preliminary endangerment assessment of the property.
(4) If the owner of the property that is the subject of the loan
application is not the loan applicant, a copy of an agreement between
the property owner and the loan applicant that gives the loan
applicant an option to purchase the property.
(5) Any other information the department deems necessary.
(c) The department shall determine whether to approve a loan
application pursuant to this section based upon the information
submitted pursuant to subdivision (b). In making a decision
regarding whether to approve a loan application, the department shall
approve a loan pursuant to this section for a property only if the
department determines the property is a brownfield or an
underutilized property.
(d) The maximum amount of a loan granted pursuant to this section
shall not exceed one hundred thousand dollars ($100,000).
(e) Except as provided in subdivision (f), upon approval of the
loan application by the department, the loan recipient shall execute
an agreement with the department to repay the loan over a period not
to exceed two years. The agreement shall require that if the loan
recipient recovers from a responsible party any costs incurred in
taking a response action at the site that is the subject of the loan
application, any money so recovered shall be used first to repay the
loan or repay the grant.
(f) If a loan recipient who is not the owner of the property and
the department determine, after the completion of the preliminary
endangerment assessment, that the sum of the cost of remediation and
the property purchase price makes the redevelopment of the property
not economically feasible, the department may waive the repayment of
up to 75 percent of the loan, and the amount waived shall be deemed a
grant to the loan recipient. If the department waives the repayment
of part of the loan, the recipient shall repay the remaining portion
of the loan within one year of that waiver.
(g) Upon approval of a loan, the recipient shall enter into an
agreement with the department for the department to provide
regulatory oversight of the preparation and approval of the
preliminary endangerment assessment.
25395.22. (a) The department, with the
approval of the secretary, shall establish a Cleanup Loans and
Environmental Assistance to Neighborhoods Program to provide loans to
finance the performance of any action necessary to respond to the
release or threatened release of hazardous material at an eligible
property. The department shall take those necessary actions to
promote the use of loans under the CLEAN program by local
governments. A loan provided pursuant to this section shall not be
used to pay for a phase I environmental assessment, a preliminary
endangerment assessment, the department's oversight of actions
necessary to respond to the release or threatened release of
hazardous material at an eligible property, or any operation and
maintenance activity at a site.
(b) The department shall develop an application form for a loan
under the CLEAN program and shall include, in the form, any
provisions that the department determines to be appropriate to carry
out the CLEAN program. The application shall be signed by the loan
applicant and shall be accompanied by all of the following:
(1) A preliminary endangerment assessment that has been approved
by the department, or an environmental assessment with equivalent
information, that discloses the presence of a release or threatened
release of a hazardous material at the property at concentrations
that may pose a risk to public health and safety and the environment.
(2) The name and address of the project coordinator for the site
and the resume of the coordinator that demonstrates that the
coordinator possesses the requisite qualifications to manage the
response action at the site.
(3) Documentation that the property is an eligible property and,
if the department has implemented the priority scoring system set
forth in Section 25395.23, sufficient information to enable the
department to determine the priority score for the property.
(4) Documentation that the planned future development of the site
is consistent with the current and reasonably foreseeable future land
uses of the property.
(5) If the owner of the eligible property that is the subject of
the loan application is not the loan applicant, documentation that
demonstrates that the owner agrees to use the property as a security
interest for the loan to finance necessary response action at the
property.
(6) If the owner of the eligible property that is the subject of
the loan application is not the loan applicant, a copy of an
agreement between the property owner and the loan applicant that
gives the loan applicant an option to purchase the property.
(7) Any other information the department deems necessary.
25395.23. (a) The department, after consultation with the
secretary, the Secretary of the Trade and Commerce Agency, the
Secretary of the Business, Transportation and Housing Agency, and the
Director of the Office of Planning and Research, may approve loan
applications submitted pursuant to Section 25395.22. The department
may approve a loan only for those response actions necessary to
address a release or threatened release of a hazardous material at an
eligible property.
(b) If the department determines, based on estimates of the number
of loan requests that will be submitted in any fiscal year and the
amount of loan funds that will be available during that fiscal year,
that sufficient funding to meet the demand for loans will not be
available, the department shall establish a system for ranking loan
applications based on priority scores. Priority scores shall be
calculated for each loan application by scoring the project that is
the subject of the loan application using scales that measure the
factors listed in subdivision (c). The department shall approve
loans for a project based on its priority scores.
(c) The system for ranking loan applications pursuant to
subdivision (b) shall establish priority scores for projects that are
the subjects of the loan applications using scales that measure all
of the following factors:
(1) The degree of community support expressed for the project,
including, but not limited to, letters of support from local
governmental entities, state or local elected officials, community
leaders, and the general public.
(2) Financial support for the project provided at the local level,
including grants or other subsidies, and funding provided by the
issuance of bonds pursuant to the Mello-Roos Community Facilities Act
of 1982 (Chapter 2.5 (commencing with Section 53311) of Division 2
of Part 1 of Title 5 of the Government Code) or financing under the
Community Redevelopment Law (Part 1 (commencing with Section 33000)
of Division 24).
(3) The potential for the project to provide additional protection
of the public health and safety.
(4) The potential for the project to enhance strategic community
development, including, but not limited to, all of the following:
(A) The creation of new jobs.
(B) Generation of additional tax revenue.
(C) The likelihood that the project will stimulate additional
redevelopment in adjacent areas.
(D) The degree to which implementation of the project will improve
local property values.
(E) The degree to which implementation of the project will result
in the development of new parks.
(F) The extent to which the project may have a beneficial effect
on the construction of new schools.
(G) The extent to which the project will result in the
construction of affordable inner-city housing.
(H) The potential for the project to have a beneficial impact on
existing local and regional infrastructure or projected
infrastructure needs, or otherwise promote infill development.
(5) The economic viability of the project, including, but not
limited to, an analysis of the current value of the property as
compared to its projected value after all necessary response actions
have been completed.
(6) The ability of the loan applicant to successfully perform the
response action at the site and repay the loan if funding is
provided.
(7) The geographic location of the project, taking into
consideration the number and amounts of loans approved for projects
located in that area, as compared to those approved for other needy
areas throughout the state.
(8) The degree of likelihood that the response action would not be
completed if a loan pursuant to Section 25395.22 is not made,
including whether any necessary response action is already being paid
for by a responsible party pursuant to an administrative order, an
agreement issued or entered into with a federal, state, or local
agency, a judicial order, or a consent decree.
(9) The ability to obtain conventional financing absent a loan
under this program.
25395.24. (a) The department may approve all, or part of, a loan
request pursuant to Section 25395.23, except the maximum amount of a
loan approved pursuant to Section 25395.23 shall not exceed two
million five hundred thousand dollars ($2,500,000).
(b) The department shall not approve a loan pursuant to Section
25395.23 if the total debt against the eligible property subject to
the release or threatened release of a hazardous material on which
the response action will be taken exceeds 80 percent of the estimated
value of the property after all necessary response actions are
complete.
25395.25. Upon the approval of a loan pursuant to Section
25395.23, the loan recipient shall do both of the following:
(a) Enter into an agreement with the department to repay the loan
over a period of not more than five years.
(1) The agreement shall include those terms and conditions that
the department deems appropriate.
(2) The agreement shall require that if the loan recipient
recovers from a responsible party any costs incurred in taking a
response action at the site that is the subject of the response
action pursuant to the agreement, the loan recipient shall use the
recovered money first to satisfy the loan.
(3) The agreement shall require that if the loan recipient is not
the owner of the property, but intends to purchase the property
before the loan is satisfied, the purchase price of the property
shall not exceed its estimated current fair market value, not taking
into consideration any necessary response action that may be
conducted on the property.
(b) Enter into an agreement with the department for the oversight
and approval of the response action at the site. This agreement
shall be provided to the department before the department may release
any loan funds to the loan recipient.
25395.26. (a) A loan approved pursuant to Section 25395.23 shall
be secured by the property subject to the release or threatened
release of the hazardous material on which the response action will
be taken. The department shall obtain an appropriate security
interest in the property and this security interest shall have first
lien priority. The department shall not subordinate this lien. The
department may foreclose on property that is subject to a security
interest pursuant to this section. Any funds received through a
foreclosure or through the enforcement of any other security interest
pursuant to this article shall be deposited in the account.
(b) The state, the secretary, the department, and the account are
not liable under any state or local statute, regulation, or ordinance
because the department holds the security interest identified in
subdivision (a) or because the department acquired property through
foreclosure or its equivalent in satisfaction of a loan issued
pursuant to this article.
(c) Chapter 6.96 (commencing with Section 25548) does not apply to
the state, the secretary, the department, the agency, or the account
with regard to a loan secured pursuant to subdivision (a).
(d) (1) Notwithstanding any other provision of law, no approval or
review shall be required from the Department of General Services to
obtain any security interest or exercise any rights, including, but
not limited to, foreclosure, under any security interest or other
agreement made pursuant to this article.
(2) The acquisition of a property pursuant to this article through
foreclosure or its equivalent is not subject to Article 2
(commencing with Section 14660) of Chapter 2 of Part 5.5 of Division
3 of Title 2 of the Government Code.
(3) The department shall promptly dispose of any property acquired
through the exercise of any security interest pursuant to this
article at the property's current market value and the disposal of
this property is exempt from Section 11011.1 of the Government Code
and Article 8 (commencing with Section 54220) of Chapter 5 of Part 1
of Division 2 of Title 5 of the Government Code.
(e) This article shall not be construed to limit, extend, or
affect local land use and zoning authority.
25395.27. (a) Any response action carried out under this article
shall be conducted in accordance with the requirements of this
chapter and Chapter 6.65 (commencing with Section 25260). However,
for purposes of Section 25262, the department shall be the
administering agency for any site that is the subject of a loan under
this article and no person may request that a different agency be
designated as an administering agency for the site under Chapter 6.65
(commencing with Section 25260).
(b) For sites that are the subject of a loan under this article,
all references in this chapter to a hazardous substance shall be
deemed to be a reference to a hazardous material.
(c) This chapter shall apply to a site that is the subject of a
loan under this article, regardless of whether the site is on the
list created pursuant to Section 25356.
(d) Except as provided in Section 25264, this article shall not be
construed to limit the authority of the department to take any
action otherwise authorized under any other provision of law.
(e) The department shall post, and update at least monthly, a list
of loan applications received pursuant to this article on the
department's Internet web site. The list shall include the name of
the applicant, the location of the property that is the subject of
the loan application, and a contact at the department for further
information.
25395.29. The department may adopt regulations to implement this
article as emergency regulations. The Office of Administrative Law
shall consider those regulations to be necessary for the immediate
preservation of the public peace, health and safety, and general
welfare for purposes of Section 11349.6 of the Government Code.
Notwithstanding subdivision (e) of Section 11346.1 of the Government
Code, the emergency regulations adopted or amended pursuant to this
section shall be repealed 180 days after the effective date of the
regulations, unless the secretary or the department readopts those
regulations, in whole or in part, in compliance with Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code.
25395.30. The following persons are not eligible to apply for a
loan under this article:
(a) A person who has been convicted of a felony or misdemeanor
involving the regulation of hazardous materials, including, but not
limited to, a conviction of a felony or misdemeanor under Section
25395.13.
(b) A person who has been convicted of a felony or misdemeanor
involving moral turpitude, including, but not limited to, the crimes
of fraud, bribery, the falsification of records, perjury, forgery,
conspiracy, profiteering, or money laundering.
(c) A person who is in violation of an administrative order or
agreement issued by or entered into with any federal, state, or local
agency that requires response action at a site or a judicial order
or consent decree that requires response action at a site.
(d) A person who knowingly made a false statement regarding a
material fact or knowingly failed to disclose a material fact in
connection with an application submitted to the secretary under this
article.
25395.31. The rate of interest to be applied to loans made
pursuant to this article shall be the same rate earned on investments
in the Surplus Money Investment Fund during the loan repayment
period. If a loan recipient defaults on a loan, the rate of interest
to be applied to the loan shall be 10 percent from the date of
default, or whatever greater rate is reflected in the agreement
entered into pursuant to subdivision (a) of Section 25395.25.
25395.32. On or before January 10 of each year, the secretary
shall report to the Joint Legislative Budget Committee and to the
chairs of the appropriate policy committees of the Senate and the
Assembly, and shall post on the Internet web site of the agency, all
of the following:
(a) The number and dollar amount of loans approved pursuant to
Section 25395.21, the number and dollar amount of those loans that
have been repaid, and, the number and dollar amount of those loans
that are in default.
(b) The number and dollar amount of loans waived pursuant to
subdivision (f) of Section 25395.21.
(c) The number and dollar amount of loans approved pursuant to
Section 25395.23, the number and dollar amount of those loans that
have been repaid, and the number and dollar amount of those loans
that are in default.
(d) The number of preliminary endangerment assessments completed
pursuant to agreements entered into under this article.
(e) The number of sites where necessary response actions have been
completed pursuant to agreements entered into under this article.
SEC. 24. (a) The sum of eighty-five million dollars ($85,000,000)
that was transferred pursuant to Section 13 of Chapter 144 of the
Statutes of 2000 to the Cleanup Loans and Environmental Assistance to
Neighborhoods Account, which was established pursuant to Section
25395.20 of the Health and Safety Code, as added by Chapter 144 of
the Statutes of 2000, is hereby transferred to the Cleanup Loans and
Environmental Assistance to Neighborhoods Account established
pursuant to Section 25395.20 of the Health and Safety Code, as added
by this act, for expenditure to implement Article 8.5 (commencing
with Section 25395.20) of Chapter 6.8 of Division 20 of the Health
and Safety Code, as added by this act and to provide administrative
support to the Secretary for Environmental Protection and the
Department of Toxic Substances Control to implement that article.
(b) Of the amount transferred to the Cleanup Loans and
Environmental Assistance to Neighborhoods Account pursuant to
subdivision (a), two million dollars ($2,000,000) is hereby
appropriated from that account to the Department of Toxic Substances
Control for the implementation of Article 8.5 (commencing with
Section 25395.20 of Chapter 6.8 of Division 20 of the Health and
Safety Code in the 2000-01 fiscal year.
SEC. 25. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order to protect the public health and safety, and the
environment by expeditiously cleaning up property contaminated with
hazardous substances, it is necessary that this act take effect
immediately.