BILL NUMBER: SB 493 AMENDED
BILL TEXT
AMENDED IN SENATE JANUARY 22, 2004
AMENDED IN SENATE JANUARY 5, 2004
AMENDED IN SENATE MAY 15, 2003
AMENDED IN SENATE MAY 6, 2003
AMENDED IN SENATE MARCH 24, 2003
INTRODUCED BY Senator Cedillo
FEBRUARY 20, 2003
An act to add and repeal Chapter 6.82 (commencing with
Section 25395.60) to of, and to add Chapter
6.83 (commencing with Section 25395.91) to, Division 20 of the
Health and Safety Code, relating to hazardous materials.
LEGISLATIVE COUNSEL'S DIGEST
SB 493, as amended, Cedillo. Hazardous materials: liability.
Existing law, the Carpenter-Presley-Tanner Hazardous Substance
Account Act, imposes liability for hazardous substances removal or
remedial actions.
Existing law, including the Porter-Cologne Water Quality Control
Act and the provisions regulating hazardous waste and releases from
underground storage tanks, impose various requirements with regard to
corrective action and cleanup and abatement, upon persons subject to
those acts.
This bill would enact the California Land Reuse and Revitalization
Act of 2004, which would provide that for the transfer of
property concluded on or after January 1, 2005, an innocent
landowner or , a bona fide prospective
purchaser, or a contiguous property owner, as defined, is
not liable for response cost or damage claims under specified state
laws that impose liability upon an owner or occupant of property, for
pollution conditions caused by a release of a hazardous material on,
under, or adjacent to that property , if the innocent
purchaser or , bona fide prospective
purchaser or contiguous property owner meets specified
conditions. The bill would prohibit an agency, as defined, from
requiring an innocent landowner or ,
bona fide prospective purchaser , or contiguous property owner
to take certain response actions under those state laws, except
as specified. The bill would also prohibit an agency from
requiring an owner of contiguous property, who also owns a site, from
requiring additional response action, except under specified
conditions. The bill would provide that a person is not liable under
those specified state laws for response costs or other damages
associated with a release or threatened release if the person owns
real property that is contaminated by a release from real property
not owned by that person and the person's real property is contiguous
to, or otherwise similarly situated with respect to, that other
property and the person complies with additional specified
requirements. The bill would, if there are unrecovered
response costs incurred by a lead an
agency, as defined, at a site for which an owner
of the site is not liable as a bona fide prospective purchaser,
require the lead agency to have a lien on the
site, or authorize the lead agency to obtain from
the owner a lien on other property or other assurance of payment for
the unrecovered response costs, as specified.
This bill would authorize a court in an action for
contribution or recovery of response costs at a site to
require a nongovernment entity to pay award
reasonable attorneys' and experts' fees to
any party that establishes that it is an innocent
landowner, bona fide prospective purchaser, or contiguous landowner,
as defined in the act or a specified federal act, in an
action in which a claim is made that the party is liable for response
costs or other damages as specified .
The bill would require the California Environmental Protection
Agency, by January 1, 2005, to develop a form containing specified
information that a bone fide prospective purchaser, innocent
landowner, or contiguous property owner who is subject to immunity
would be required to complete and submit to the agency. The bill
would require the agency, by July 1, 2005, and annually thereafter,
to submit a report to the Legislature compiling this data and
comparing brownfield response action completed by agencies under the
act with other similar response actions.
The bill would repeal the act on January 1, 2010, but would
provide that a person who is subject to immunity pursuant to the act
before January 1, 2010, would continue after that date to have that
immunity, if the person continues to be in compliance with the
requirements of the act.
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 6.82 (commencing with Section 25395.60) is
added to Division 20 of the Health and Safety Code, to read:
CHAPTER 6.82. CALIFORNIA LAND REUSE AND REVITALIZATION ACT OF
2004
Article 1. Legislative Findings and Intent
25395.60. The Legislature finds and declares all of the
following:
(a) There are thousands of properties in the state where
redevelopment has been stymied due to real or perceived hazardous
materials contamination. Cleaning up these sites and returning them
to productive use will benefit the communities in which they are
located and the state as a whole.
(b) Contamination of property in the state has hampered
redevelopment, which in turn has limited job creation, economic
revitalization, and the full and productive use of the land.
(c) Private developers, local governments, and schools are
reluctant to acquire or redevelop these properties due, at least in
part, to concerns regarding liability associated with historic
contamination. Instead, they focus new development on clean areas
that present less complications and liability.
(d) 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, lack
of development at former manufacturing sites and rural areas in need
of economic investment, and reduced tax bases.
25395.61. It is the intent of the Legislature, in enacting this
chapter, to do all of the following:
(a) Establish the cleanup and reuse of these sites in a
manner protective of public health and the environment as a
priority of the state.
(b) Relieve innocent purchasers owners
, bona fide prospective purchasers, and owners of property
adjacent to contaminated sites of liabilities and responsibilities
that should be borne by those who caused or contributed to the
contamination.
(c) Encourage process efficiencies that continue to ensure
cleanups are protective of public health.
(d) Encourage the development and redevelopment of unused or
underused properties.
25395.62. This chapter shall be known, and may be cited as, the
"California Land Reuse and Revitalization Act of 2004."
Article 2. Definitions
25395.63. The definitions set forth in this article shall govern
the interpretation of this chapter. Unless the context
requires otherwise and except as provided in this article, the
definitions contained in Article 2 (commencing with Section 25310) of
Chapter 6.8 shall apply to the terms used in this chapter.
If a term is not otherwise defined in this chapter, the
definition contained in Chapter 6.8 (commencing with Section 25300)
shall apply to that term.
25395.64. "Agency" means any city, county, district,
commission, the state, or any department, agency, or political
subdivision thereof, that has jurisdiction under an applicable
statute to require, oversee, or approve a response action at a
hazardous materials release site. the department, a
regional board, or a state or local agency that has been delegated
authority to oversee a response action by the department or the
board.
25395.65. "All appropriate inquiries" means reasonable efforts,
in accordance with generally accepted good commercial and customary
standards and practices, to determine, through investigations into
the previous ownership and uses of the facility, whether a release of
a hazardous material or discharge of a waste has occurred. One or
more of the following activities shall be deemed to meet the standard
of "all appropriate inquiries":
(a) Compliance with the procedures of the American Society for
Testing and Materials, including the document known as "Standard
E1527-001," entitled "Standard Practice for Environmental Site
Assessment: Phase I Environmental Site Assessment Process," in the
form of the document current at the time of the inquiry.
(b) Compliance with the standards and practices established by the
Administrator of the United States Environmental Protection Agency
pursuant to Section 101(35)(B)(ii) of the federal act (42 U.S.C. Sec.
9601(35)(B)(ii)).
(c) For property in residential use or other similar use at the
25395.65. "All appropriate inquiries" has the following meanings:
(a) Except as provided in subdivision (c), until the standards and
practices established by the Administrator of the United States
Environmental Protection Agency pursuant to Section 101(35)(B)(ii) of
the federal act (42 U.S.C. Sec. 9601(35)(B)(ii)) are adopted and
take effect, "all appropriate inquiries" means compliance with the
procedures of the American Society for Testing and Materials,
including the document known as "Standard E1527-001," entitled
"Standard Practice for Environmental Site Assessment: Phase I
Environmental Site Assessment Process," as that document existed on
January 1, 2004.
(b) Except as provided in subdivision (c), after the standards and
practices established by the Administrator of the United States
Environmental Protection Agency pursuant to Section 101(35)(B)(ii) of
the federal act (42 U.S.C. Sec. 9601(35)(B)(ii)) are adopted and
take effect, "all appropriate inquiries" means compliance with those
standards.
(c) If the property is in residential use at the time of
purchase by a nongovernmental or noncommercial entity, "all
appropriate inquiries" means that a site inspection and title
search does not reveal a basis for further investigation.
25395.66. "Applicable statute" means all of the following state
laws, but includes only those provisions in each state law that
impose liability on an owner or occupant of property for pollution
conditions caused by a release of hazardous material on, under, or
adjacent to the property:
(a) Title 1 (commencing with Section 3479) of, Title 2 (commencing
with Section 3490) of, and Title 3 (commencing with Section 3501)
of, Part 3 of Division 4 of the Civil Code.
(b) Chapter 3 (commencing with Section 731) of Title 10 of Part 2
of the Code of Civil Procedure.
(c) Section 5650 of the Fish and Game Code.
(d) Chapter 6.7 (commencing with Section 25280), Chapter 6.75
(commencing with Section 25299.10), Chapter 6.8 (commencing with
Section 25300), and Chapter 6.10 (commencing with Section 25401) of
this division.
(e) Division 7 (commencing with Section 13000) of the Water Code.
25395.67. (a) "Appropriate care" means the performance of a
response action, with respect to hazardous materials found at a site,
that meets all of the following conditions:
(1) The response action is determined by the department
or regional board, or a local health agency or certified unified
program agency with authority delegated by the state to oversee
investigation and remediation of hazardous materials, to be necessary
to address an endangerment to human health or the environment.
an agency to be necessary to prevent an unreasonable
risk to human health or the environment.
(2) The response action is performed in accordance with a written
plan approved by the department, regional board, local
health agency, or certified unified program agency.
agency.
(3) The approved plan includes a provision for oversight and
verification of the response action by the department,
regional board, local health agency, or certified unified program
agency. agency.
(4) The response action is required to prevent an endangerment to
human health or the environment.
(b) "Appropriate care" does not include or require the same type
or extent of response action that would be required of a responsible
party.
(c) Upon the request of any party, the department, regional board,
local health agency, or certified unified program agency shall
acknowledge, in writing and within 60 days of the date of the
request, that proper completion of the approved plan specified in
(b) On or before 60 days after the date an agency receives a
written request by a bona fide prospective purchaser, innocent
landowner, or contiguous landowner, the agency shall determine in
writing whether proper completion of the approved plan specified in
paragraph (2) of subdivision (a) constitutes "appropriate care"
within the meaning of this chapter.
25395.68. "Board" means the State Water Resources Control Board.
25395.69. "Bona fide prospective purchaser" means a person, or a
tenant of a person, who acquires ownership of a site on or after
January 1, 2005, and who establishes all of the following by a
preponderance of the evidence:
(a) All discharges or releases of the hazardous
materials at issue at the site occurred before the person acquired
the site.
(b) The person made all appropriate inquiries into the previous
ownership and uses of the site.
(c) The person provides all legally required notices with respect
to the discovery or release of hazardous materials at the site.
(d) The person exercises appropriate care with respect to the
release of the hazardous materials at the site.
(e) The person provides full cooperation, assistance, and access
to persons who are authorized to conduct response actions or natural
resource restoration at the site, including the cooperation, and any
access necessary for the installation, integrity, operation, and
maintenance of complete or partial response actions or natural
resource restoration at the site.
(f) The person is in compliance with land use controls established
or relied on in connection with an approved response action at the
site and does not impede the effectiveness or integrity of any aspect
of any remedy employed at the site in connection with a response
action.
(g) The person complies with all requests for information or
administrative subpoena concerning the release of hazardous materials
by any agency with jurisdiction under any applicable statute.
(h) The person is not potentially liable, or affiliated with any
other person who is potentially liable, for the release at issue
through any of the following circumstances:
(1) Any direct or indirect familial relationship.
(2) Any contractual, corporate, or financial relationship, unless
the contractual, corporate, or financial relationship is created by
the instrument by which title or possession to the site is conveyed
or financed or a contract for the sale of goods or services.
(3) The result of a reorganization of a business entity that was
potentially liable for the hazardous materials at issue.
25395.71. (a) "Site" means real property for which the expansion,
redevelopment, or reuse may be complicated by the presence or
perceived presence of hazardous materials.
(b) "Site" does not include either of the following:
(1) A facility that is listed or proposed for listing on the
National Priorities List established under Section 105 of the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9605).
(2) A site on the list maintained by the department pursuant to
Section 25356.
25395.72. "Contiguous property owner" means a person who
owns a site that is contiguous to another site that is, or may be,
contaminated by a release or threatened release of a hazardous
material and that is not owned by that person, and who demonstrates,
by a preponderance of the evidence, all of the following:
(a) The person did not cause, contribute, or consent to the
release or threatened release.
(b) The person is not potentially liable, or affiliated with any
other person who is potentially liable, for the release at issue
through any of the following circumstances:
(1) Any direct or indirect familial relationship.
(2) Any contractual, corporate, or financial relationship, unless
the contractual, corporate, or financial relationship is created by
the instruments by which title or possession to the site is conveyed
or financed or a contract for the sale of goods or services.
(3) The result of a reorganization of a business entity that was
potentially liable for the hazardous materials at issue.
(c) Except as provided in subdivision (i), the person exercises
appropriate care with respect to the release of any hazardous
materials at the site.
(d) The person provides full cooperation, assistance, and access
to persons who are authorized to conduct response actions or natural
resource restoration at the site from which there has been a release
or threatened release, including the cooperation and access necessary
for the installation, integrity, operation, and maintenance of a
complete or partial response action or natural resource restoration
at the site.
(e) The person complies with any land use controls established or
relied on in connection with the response action at the site, and
does not impede the effectiveness or integrity of any aspect of any
remedy employed in connection with a response action at the site.
(f) The person complies with any request for information or
administrative subpoena issued by an agency with jurisdiction under
an applicable statute.
(g) The person provides all legally required notices with respect
to the discovery or release of hazardous materials at the site.
(h) The person has conducted all appropriate inquiry into the
previous uses and ownership of the site and, at the time of
acquisition not know or have reason to know that the site was or
could be contaminated by the release of hazardous materials from
other real property not owned or operated by the person.
(i) Subdivision (c) does not require a contiguous property owner
to conduct groundwater investigations or to install groundwater
remediation systems with respect to hazardous materials from a source
that is not on the property of the contiguous property owner and
that enters groundwater beneath the property of the contiguous
property owner solely as a result of subsurface migration.
25395.73. "Department" means the Department of Toxic
Substances Control.
25395.73. "Endangerment" means conditions at a site that do
either of the following:
(a) Pose an existing and significant risk to human health.
(b) Require an immediate response action to prevent serious
environmental damage.
25395.74. "Hazardous material" has the same meaning as defined in
subdivision (d) of Section 25260.
25395.75. (a) "Innocent landowner" means a person who owns a
site, who did not cause or contribute to a release at the site,
takes the actions specified in subdivision (b) and
, and who meets both of the following
conditions:
(1) The person is any one of the following:
(A) A person who made all appropriate inquiries into the previous
ownership and uses of the site and, at the time the person acquired
the property did not know and had no reason to know of the release at
issue.
(B) A government entity that acquired property by escheat, or
through any other involuntary transfer acquisition, or through the
exercise of eminent domain authority by purchase or condemnation.
(C) A person who acquired the property by inheritance or bequest.
(2) The person is not potentially liable, or affiliated with any
other person who is potentially liable, for the release at issue
through any of the following circumstances:
(A) Any direct or indirect familial relationship.
(B) Any contractual, corporate, or financial relationship, unless
the contractual, corporate, or financial relationship is created by
the instrument by which title or possession to the site is conveyed
or financed or a contract for the sale of goods or services.
(C) The result of a reorganization of a business entity that was
potentially liable for the hazardous materials at issue.
(b) The person takes all of the following actions:
(1) Exercises appropriate care with respect to the release of the
hazardous materials at the site.
(2) Provides full cooperation, assistance, and access to a person
who is authorized to conduct response actions or natural resource
restoration at the site, including the cooperation and any access
necessary for the installation, integrity, operation, and maintenance
of complete or partial response actions or natural resource
restoration at the site.
(3) Complies with land use controls established or relied on, in
connection with an approved response action at the site, and does not
impede the effectiveness or integrity of any aspect of any remedy
employed at the site in connection with a response action.
(4) Complies with all requests for information or administrative
subpoena concerning the release of hazardous materials by any agency
with jurisdiction under an applicable statute.
(5) Provides all notices required by state or federal law with
respect to the discovery or release of hazardous materials at the
site.
25395.76. "Land use control" means a recorded instrument
that restricts or imposes obligations on the present and future uses
or activities on a site, including, but not limited to, a recorded
easement, covenant, restriction, or servitude, or any combination
thereof, as appropriate. executed pursuant to Section
1471 of the Civil Code that restricts or imposes obligations on the
present and future uses or activities on a site, including but not
limited to, recorded easements, covenants, restrictions or
servitudes, or any combination thereof.
25395.77. "Regional board" means a California regional water
quality control board.
25395.78. "Release" has the same meaning as defined in Section
25320.
25395.79. "Response," "respond," or "response action" have the
same meaning as defined in Section 25323.3, except that "response,"
"respond," and "response action" under this chapter apply to
hazardous material, as defined in Section 25395.74.
25395.79.1. (a) "Unreasonable risk" means conditions at a site
pose a significant risk to human health or the environment.
(b) When adequate land use controls exist to prevent other uses of
a site without any further reviews or determinations by the agency
that approved the response action, an agency may determine if there
is unreasonable risk at the site based on the intended land use.
Article 3. Liability
25395.80. (a) Except as provided in Section 25395.85, and
except as otherwise provided under this section, an innocent
landowner who did not cause or contribute to the release at issue, is
subject to the following immunities:
(1) The innocent landowner is not liable under any applicable
statute for a claim made by any party that is not a government agency
for response costs or other damages associated with a release or
threatened release of a hazardous material at the site.
(2) Except as provided in subdivision (b), an agency may not take
any action under any applicable statute to require the innocent
landowner to conduct any response action with respect to a hazardous
materials release at a the site owned
by the innocent landowner unless both of the following conditions
apply:
(A) The agency does either of the following:
(i) Makes all reasonable attempts to compel any necessary response
action from all other potentially responsible parties, and those
efforts have been unsuccessful.
(ii) Reasonably determines that no viable potentially responsible
party exists to perform the required response action at the site.
(B) The conditions on the property pose an endangerment
to human health .
(b) This section does not modify or limit the existing authority
of a state or local agency to impose a condition on the issuance of a
discretionary permit relating to the development, use, or occupancy
of any site.
(c) The immunities described in this section shall attach upon
approval of the written plan described in paragraph (2) of
subdivision (a) of Section 25395.67 and shall continue as long as the
innocent landowner substantially complies with the provisions of the
approved plan. An innocent landowner shall be deemed to be out of
substantial compliance with the approved plan only when it has
received written notice from the appropriate agency of an unexcused
and material failure to comply with the approved plan. Written
confirmation from the appropriate agency that the innocent landowner
has satisfactorily implemented the approved plan conclusively
presumes substantial compliance.
(c) (1) The immunities described in this section shall attach upon
approval of the written plan described in paragraph (2) of
subdivision (a) of Section 25395.67 and shall remain in effect unless
the innocent landowner receives a written notice of noncompliance
from the agency.
(2) An agency may issue a written notice of noncompliance upon
making both of the following findings:
(A) There is an unapproved failure to comply with the approved
written plan or any response action undertaken pursuant to a response
plan.
(B) The unapproved failure is a material deviation from the
response plan or any response action undertaken pursuant to a
response plan.
(d) Any potentially responsible party
person that is found to have committed fraud, intentional
nondisclosure, or misrepresentation to any state or local agency with
authority over cleanup or remediation at a site, is not an innocent
landowner and is not entitled to immunity against costs of response
imposed by the department, board, regional board, local
health agency, or certified unified program agency.
agency or for any claim brought by a party other than the agency
under an applicable statute.
25395.81. (a) Except as provided in Section 25395.85, and
except as otherwise provided under this section, a bona fide
prospective purchaser who did not cause or contribute to the release
at issue is subject to the following immunities:
(1) The bona fide prospective purchaser is not liable under any
applicable statute for a claim made by any party that is not a
government agency for response costs or other damages associated with
a release or threatened release of a hazardous material at the site.
(2) Notwithstanding any other provision of law or authority under
which a bona fide prospective purchaser has exercised appropriate
care with respect to a hazardous materials release, and except
(2) Except as provided in subdivision (b), an agency may not
take any action under any applicable statute to require the bona fide
prospective purchaser or a subsequent property owner to conduct any
additional response action with respect to a hazardous materials
release at a site unless both of the following conditions are met:
(A) The agency does one of the following:
(i) Makes all reasonable attempts to compel any necessary response
action from all other potentially responsible parties, and those
efforts have been unsuccessful.
(ii) Reasonably determines that no viable potentially responsible
party exists to perform the required response action at the site.
(B) The conditions on the property pose an endangerment
to human health .
(b) (1) The immunities described in this section shall
attach upon approval of the written plan described in
paragraph (2) of subdivision (a) of Section 25395.67 and shall
continue as long as the bona fide prospective purchaser substantially
complies with the provisions of the approved plan. A bona fide
prospective purchaser shall be deemed to be out of substantial
compliance with the approved plan only when it has received written
notice from the appropriate agency of an unexcused and material
failure to comply with the approved plan. Written confirmation from
the appropriate agency that the bona fide prospective purchaser has
satisfactorily implemented the approved plan conclusively presumes
substantial compliance. approval of the written plan
described in paragraph (2) of subdivision (a) of Section 25395.67 and
shall remain in effect unless the bona fide prospective purchaser
receives a written notice of noncompliance from the agency.
(2) An agency may issue a written notice of noncompliance upon
making both of the following findings:
(A) There is an unapproved failure to comply with the response
plan or any response action undertaken pursuant to a response plan.
(B) The unapproved failure is a material deviation from the
response plan or any response action undertaken pursuant to a
response plan.
(c) Any potentially responsible party
person that is found to have committed fraud, intentional
nondisclosure, or misrepresentation to any state or local agency with
authority over cleanup or remediation at a site, is not a bona fide
prospective purchaser and is not entitled to immunity against costs
of response imposed by the department, board, regional
board, local health agency, or certified unified program agency.
agency or for any claim brought by a party other than
the agency under an applicable statute.
(d) This section does not modify or limit
the existing authority of a state or local agency to impose a
condition on the issuance of a discretionary permit relating to the
development, use, or occupancy of any site.
25395.82. (a) Except as provided in Section 25395.85, an agency
may not take any action under any applicable statute to compel an
owner of contiguous property to conduct additional response action,
with respect to a hazardous materials release at a site owned by the
owner of the contiguous property, unless the owner meets all of the
requirements of subdivision (c) and both of the following conditions
are met:
(1) The agency does one of the following:
(A) Makes all reasonable attempts to compel any necessary response
action from all other potentially responsible parties, and those
efforts have been unsuccessful.
(B) Reasonably determines that no viable potentially responsible
party exists to perform the required response action at the site.
(2) The conditions on the property pose an endangerment to human
health.
(b) A person who owns real property that is contiguous to, or
otherwise similarly situated with respect to, and that is or may be,
contaminated by a release or threatened release of a hazardous
material from real property that is not owned by that person, is not
liable under any applicable statute for response costs or other
damages associated with the release or threatened release if the
person demonstrates, by a preponderance of the evidence, all of the
following:
(1) The person did not cause, contribute, or consent to the
release or threatened release.
(2) The person is not potentially liable, or affiliated with any
other person who is potentially liable, for the release at issue
through any of the following circumstances:
(A) Any direct or indirect familial relationship.
(B) Any contractual, corporate, or financial relationship, unless
the contractual, corporate, or financial relationship is created by
the instruments by which title or possession to the site is conveyed
or financed or a contract for the sale of goods or services.
(C) The result of a reorganization of a business entity that was
potentially liable for the hazardous materials at issue.
(c) To qualify for the release from liability described in
subdivisions (a) and (b), the owner of the contiguous property shall
do all of the following:
(1) Except as provided in subdivision (d), exercise appropriate
care with respect to the release of any hazardous materials at the
site.
(2) Provide full cooperation, assistance, and access to persons
who are authorized to conduct response actions or natural resource
restoration at the site from which there has been a release or
threatened release, including the cooperation and access necessary
for the installation, integrity, operation, and maintenance of a
complete or partial response action or natural resource restoration
at the site.
(3) Comply with any land use control established or relied on in
connection with the response action at the site, and does not impede
the effectiveness or integrity of any aspect of any remedy employed
in connection with a response action at the site.
(4) Comply with any request for information or administrative
subpoena issued by an agency with jurisdiction under an applicable
statute.
(5) Provide all legally required notices with respect to the
discovery or release of hazardous materials at the site.
(6) Have conducted all appropriate inquiry into the previous uses
and ownership of the site and, at the time of acquisition not know or
have reason to know that the site was or could be contaminated by
the release of hazardous materials from other real property not owned
or operated by the person.
(d) Paragraph (1) of subdivision (c) does not require a person to
conduct groundwater investigations or to install groundwater
remediation systems with respect to hazardous materials from a source
that is not on the property of the person who is a contiguous
property owner and that enters groundwater beneath the property of
the person solely as a result of subsurface migration.
(e) The immunities described in this section shall attach upon
approval of the written plan described in paragraph (2) of
subdivision (a) of Section 25395.67 and shall continue as long as the
owner of contiguous property substantially complies with the
provisions of the approved plan. An owner of contiguous property
shall be deemed to be out of substantial compliance with the approved
plan only when it has received written notice from the appropriate
agency of an unexcused and material failure to comply with the
approved plan. Written confirmation from the appropriate agency that
the owner of contiguous property has satisfactorily implemented the
approved plan conclusively presumes substantial compliance.
(f) Any potentially responsible party that is found to have
25395.82. (a) Except as provided in Section 25395.85, and except
as otherwise provided in this section, a contiguous property owner
who did not cause or contribute to a release at a site is subject to
the following immunities:
(1) The contiguous property owner is not liable under any
applicable statute for a claim made by a party that is not a
government agency for response costs or other damages associated with
a release or threatened release of a hazardous material at the site.
(2) Except as provided in subdivision (b), an agency may not take
an action under any applicable statute to require a contiguous
landowner to conduct a response action with respect to a hazardous
materials release at a site owned by that contiguous landowner unless
both of the following conditions apply:
(A) The agency does either of the following:
(i) Makes all reasonable attempts to compel any necessary response
action from all other potentially responsible parties and those
efforts has been unsuccessful.
(ii) Reasonably determines that no viable potentially responsible
party exists to perform the required response action at the site.
(B) The conditions on the property pose an endangerment.
(b) (1) The immunities described in this section shall attach upon
approval of the written plan described in paragraph (2) of
subdivision (a) of Section 25395.67 and shall remain in effect unless
the person receives written notice of noncompliance from the agency.
(2) The agency may issue a written notice for noncompliance upon
making both of the following findings:
(A) There is an unapproved failure to comply with the response
plan or any response action undertaken pursuant to a response plan.
(B) The unapproved failure is a material deviation from the
response plan or any response action undertaken pursuant to a
response plan.
(c) An owner of contiguous property who is found to have
committed fraud, intentional nondisclosure, or misrepresentation to
any state or local agency with authority over cleanup or remediation
at a site, is not entitled to immunity against costs of
response imposed by the department, board, regional board, local
health agency, or certified unified program agency.
(g) This section does not limit a defense to liability that may be
available to the person under any other provision of state law, and
this section does not impose liability on the person that is not
otherwise imposed by an applicable statute.
(h) response imposed by the agency or for any claim
brought by a party other than the agency under an applicable
statute.
(d) This section does not modify or limit the existing
authority of a state or local agency to impose a condition on the
issuance of a discretionary permit relating to the development, use,
or occupancy of a site.
25395.83. (a) The immunities and prohibitions imposed by Sections
25395.80, 25395.81, and 25395.82 shall become operative on January
1, 2005, and do not apply to any transfer of property concluded
before January 1, 2005.
(b) The immunities and prohibitions imposed by Sections 25395.80,
25395.81, and 25395.82 are in addition to, and do not otherwise
affect, any other protection provided under state law.
25395.84. If there are unrecovered costs incurred by a
lead an agency at a site for which an owner of
the site is not liable as a bona fide prospective purchaser,
the lead an agency shall have a lien on the
site, or may, by agreement with the owner, obtain from the owner a
lien on other property or other assurance of payment for the
unrecovered response costs, subject to all of the following
requirements:
(a) A response action for which there are unrecovered costs of the
agency is carried out at the site.
(b) The response action increases the fair market value of the
site above the fair market value of the site that existed before the
response action was initiated.
(c) The lien arises at the time at which costs are first incurred
by the agency with respect to a response action at the site.
(d) The lien amount may not exceed the increase in fair market
value of the property attributable to the response action at the time
of a sale or other disposition of the property.
(e) The lien shall continue until the earlier of satisfaction of
the lien by sale or other means, or recovery of all response costs
incurred by the agency at the site.
(f) (1) The lien shall be subject to the rights of a purchaser,
holder of a security interest, or judgment lien creditor whose
interest is perfected under applicable state law before notice of the
lien has been filed in the appropriate office within the state or
county or other governmental subdivision, as designated by state law.
(2) The purchaser, holder of a security interest, or judgment lien
creditor has the same protections against the lien as the protection
provided by state law against a judgment lien that arises out of an
unsecured obligation and that arises as of the time of the filing of
the notice of the lien.
(3) The notice of the lien shall be recorded in the official
records of the county recorder's office for the county in which the
real property is located.
(4) For purposes of this subdivision, the "purchaser" and
"security interest" have the same meaning as defined in subsection
(h) of Section 6323 of Title 26 of the United States Code.
25395.85. This chapter does not exempt any of the following:
(a) A person from liability for bodily injury or wrongful death.
(b) A person from any requirement imposed under Chapter 6.5
(commencing with Section 25100), including, but not limited to,
corrective action and closure and postclosure requirements.
25395.86. A court of competent jurisdiction may require any
nongovernment entity to pay reasonable attorneys' fees and experts'
fees to any party that establishes that it is an innocent landowner,
bona fide prospective purchaser, or contiguous landowner, as those
terms are defined in this chapter or used in the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C.
Sec. 9601 et seq.). A court may award such fees in any action in
which a claim is made that the innocent landowner, bona fide
prospective purchaser, or contiguous landowner is liable for response
costs or other damages associated with a release or threatened
release of the hazardous materials at issue at the site. The award
of fees shall be made upon notice and motion by the innocent
purchaser, bona fide prospective purchaser, or contiguous landowner
and shall be an element of the costs of suit.
25395.87. (a) This chapter does not limit any defense to
liability that may be available to a person under any other provision
of law or impose liability on a person that is not otherwise imposed
by this chapter or an applicable statute.
(b)
25395.86. A court of competent jurisdiction may award reasonable
attorneys' fees to a person who initiates an action under an
applicable statute for contribution for, or recovery of, response
costs incurred for a response action, or for any other response costs
incurred at a site, if the person meets all of the following
criteria:
(a) The person is a bona fide prospective purchaser, an innocent
landowner, or a contiguous property owner and is subject to immunity
pursuant to this chapter.
(b) The person has completed a response plan for a site, or is in
compliance with an approved response plan and any approved response
actions undertaken pursuant to a response plan for a site.
(c) The person is the prevailing party.
25395.87. This chapter does not limit the authority of an
agency to conduct any response action it determines is necessary to
contain or eliminate an endangerment
unreasonable risk that requires action to protect public health
and safety or the environment pursuant to an applicable statute.
25395.88. (a) On or before January 1, 2005, the California
Environmental Protection Agency shall develop a form that shall be
completed and submitted to the agency by a bona fide prospective
purchaser, innocent landowner, or contiguous property owner who is
subject to immunity pursuant to this chapter. The form shall
include, but not be limited to, all of the following information:
(1) A description of the site, including its address and location.
(2) A description of the type and extent of hazardous materials
contaminants and discharges identified for response action plan at
the site pursuant to a response action plan.
(3) An estimate of the cost of the response action to be
undertaken pursuant to a response action.
(4) A description of the present and proposed use of the site.
(5) A description of any land use restrictions, covenants, deed
restrictions or other conditions imposed on the site owned by a party
who is subject to immunity pursuant to this chapter.
(6) A description and the amounts of those contaminants or
discharges specified in paragraph (2) that will not be remediated
pursuant to the response action.
(b) On or before July 1, 2005, and annually thereafter, the
California Environmental Protection Agency shall submit to the
Legislature a report compiling the data collected pursuant to
subdivision (a) and compare that data, where feasible, to similar
data collected from January 1, 2001, to January 1, 2005.
(c) The report submitted pursuant to subdivision (b) shall compare
the number and quality of brownfield response actions completed by
agencies pursuant to this chapter with similar response actions
completed prior to its enactment, and shall evaluate the impact of
granting this chapter's immunities to developers of brownfield
properties.
25395.90. (a) This chapter shall remain in effect only until
January 1, 2010, and as of that date is repealed, unless a later
enacted statute, that is enacted before January 1, 2010, deletes or
extends that date.
SEC. 2. Chapter 6.83 (commencing with Section 25395.91) is added
to Division 20 of the Health and Safety Code, to read:
CHAPTER 6.83. IMMUNITY CONTINUATION
25395.91. (a) A person who, before January 1, 2010, is subject to
an immunity pursuant to Chapter 6.82 (commencing with Section
25395.60), as that chapter read on December 31, 2009, shall continue
to have that immunity on and after January 1, 2010, if the person
continues to be in compliance with the requirements of former
Chapter, 6.82 (commencing with Section 25395.60) including, but not
limited to, compliance with any approved response action subject to
that chapter, and of any other applicable law.
(b) This chapter shall become operative January 1, 2010.