BILL NUMBER: SB 493 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 7, 2004
AMENDED IN SENATE JANUARY 26, 2004
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
(Coauthors: Assembly Members Calderon and Firebaugh)
FEBRUARY 20, 2003
An act to add and repeal Chapter 6.82 (commencing with
Section 25395.60) 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. An act to add Chapter
6.83 (commencing with Section 25395.91) and Chapter 6.84 (commencing
with Section 25395.92) to, and to add and repeal Chapter 6.82
(commencing with Section 25395.60) of, 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 an innocent landowner, a bona
fide prospective purchaser, or a contiguous
property owner, as defined, is not liable
qualifies for immunity from liability for response cost or
damage claims under specified state statutory and common
laws that impose liability upon an owner or occupant of property, for
pollution conditions caused by a release or threatened release
of a hazardous material on, under, or adjacent to that
property, if the innocent purchaser, bona fide prospective purchaser,
or contiguous property owner meets specified conditions. The bill
would prohibit an agency, as defined, from requiring an innocent
landowner, bona fide prospective purchaser, or
contiguous property owner to take certain a
response action actions under
those state laws, except as specified other
than a response action, required in an approved response plan .
The bill would, if there are unrecovered response costs incurred by
an agency, at a site for which an owner of the site is not liable
as a bona fide prospective purchaser, require the
agency to have a lien on the site, or authorize the 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 incurred at a site, to award
reasonable attorneys' fees and experts' fees to an
innocent landowner, bona fide prospective
purchaser, or contiguous landowner, as specified.
The bill would require an innocent landowner, bona fide
prospective purchaser, or contiguous landowner to reimburse an agency
for its reasonable oversight costs incurred while reviewing a
response plan or overseeing the implementation of a response plan.
The bill would require the California Environmental Protection
Agency, by January 1, 2005, to develop a form containing specified
information that a bona 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 actions 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.
The bill would require a bona fide purchaser, innocent landowner
or contiguous property owner who seeks to qualify for the immunity
provided by the act to enter into an agreement with an agency that
includes the performance of a site assessment, and if the agency
determines that a response plan is necessary, the preparation and
implementation of a response plan. The bill would require a person
who enters into an agreement to reimburse the agency that enters into
the agreement for all agency costs.
The bill would require a person who enters into an agreement with
an agency for oversight of a site assessment to submit a site
assessment plan to the agency. The bill would require the agency to
evaluate the adequacy of the site assessment plan to ensure that it
contains all necessary information and, after evaluating the site
assessment plan, if the agency finds that the plan is adequate, the
agency would be required to approve the plan and provide notification
to appropriate persons.
The bill would require a person, after implementing the site
assessment plan, to submit a report of its findings to the agency.
The bill would require the agency, based upon a review of this
information, to determine whether a response action is necessary to
address any unreasonable risk from hazardous materials at the site.
If the agency determines that a response action is necessary to
prevent, control, or eliminate an unreasonable risk, the bill would
require the bona fide purchaser, innocent landowner, or contiguous
property owner to submit a response plan to the agency to conduct a
response action at the site. The bill would require the agency to
evaluate the adequacy of the response plan and to approve the plan if
the agency makes specified findings.
The bill would authorize a response plan to require the use of a
land use control that imposes appropriate conditions, restrictions,
and obligations on land use or activities if, after completion of the
removal and remedial actions specified in the response plan,
hazardous substances materials remain at the site at a level that is
not suitable for the unrestricted use of the site, pursuant to a
specified procedure. The bill would authorize the Department of
Toxic Substances Control to exclude any portion of a response action
conducted entirely onsite from certain hazardous waste facilities
permit requirements.
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
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 hindered 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 fewer complications and lower risk of 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 safety and the environment as a
priority of the state.
(b) Relieve innocent 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 that
cleanups are protective of public health and safety and the
environment.
(d) Encourage the development and redevelopment of unused or
underused properties in urban areas.
(e) Establish a voluntary process for bona fide purchasers,
innocent landowners and contiguous property owners to make certain
the extent of their liability, if any, under state law for hazardous
materials contamination caused by other persons, without otherwise
altering existing state law regarding liability for hazardous
materials releases.
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. 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 the department, the board, or a regional
board.
25395.65. "All appropriate inquiries" has the following meanings:
(a) Except as provided in subdivision (c), until the date when 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:
(1) For property acquired before December 1, 2000, compliance with
American Society for Testing and Materials Standard El 527-97
entitled "Standard Practice for Environmental Site Assessment":
Phase 1 Environmental Site Assessment Process.
(2) For property acquired after December 1, 2000, compliance with
American Society for Testing and Materials Standard E1527-00.
(b) Except as provided in subdivision (c), on and after the date
when 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, except that any portion of the
inquiry that includes the practice of engineering shall be carried
out in conformance with applicable state law.
(c) If the property is used solely for residential use and has
four or fewer units at the time of acquisition 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 law" means all of the provisions of the
following state statutory and common laws that impose liability on an
owner or occupant of property for pollution conditions caused by a
release or threatened 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 2 (commencing with Section 731) of Title 10 of Part 2
of the Code of Civil Procedure, but not including Section 736 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), and Chapter 6.8 (commencing with
Section 25300), of this division.
(e) Chapter 1 (commencing with Section 13000) to Chapter 5
(commencing with Section 13300), inclusive, of Division 7 of the
Water Code.
(f) State common law regarding contribution, nuisance, trespass
and equitable indemnity.
25395.67. "Appropriate care" means either of the following:
(a) The performance of a response action, with respect to
hazardous materials found at a site, for which the agency makes the
determination specified in paragraph (1) of subdivision (c) of
Section 25395.98 and that meets all of the following conditions:
(1) The response action is determined by 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 response
plan approved by the agency pursuant to Chapter 6.84 (commencing
with Section 25295.92).
(3) The approved response plan includes a provision for oversight
and verification of the response action by the agency pursuant to
Chapter 6.84 (commencing with Section 25295.92).
(b) A determination that no further action is required pursuant to
Section 25395.97.
25395.68. "Board" means the State Water Resources Control Board.
25395.69. (a) "Bona fide 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:
(1) All releases of the hazardous materials at issue at the site
occurred before the person acquired the site, except as described in
paragraph (2).
(2) A person shall remain eligible to qualify as a bona fide
purchaser, notwithstanding a release of hazardous materials at the
site following acquisition of the site by that person, if the release
is either of the following:
(A) Of a type, nature or amount that does not require reporting
pursuant to applicable statutory and regulatory reporting
requirements.
(B) Has been appropriately resolved to the satisfaction of the
agency.
(3) All of the conditions of Section 25395.79.1 to qualify as a
bona fide purchaser have been met.
(4) The person is not potentially liable, or affiliated with any
other person who is potentially liable, for the release or threatened
release at the site 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 release or threatened release of hazardous
materials at the site.
(b) For purposes of this section, "release" does not include
passive migration.
25395.69.5. (a) "Contiguous property owner" means a person who
owns a site that is adjacent to or otherwise similarly situated with
respect 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:
(1) The person did not cause, contribute, or consent to the
release or threatened release.
(2) At the time the person acquired the property, the person made
all appropriate inquiries and did not know and had no reason to know
of the release or threatened release at the site.
(3) All of the conditions of Section 25395.79.1 to qualify as a
contiguous property owner have been met.
(4) A person shall remain eligible to qualify as a contiguous
landowner notwithstanding a release of hazardous materials at the
site following acquisition by that person, if the release is either
of the following:
(A) Of a type, nature or amount that does not require reporting
pursuant to applicable statutory and regulatory reporting
requirements.
(B) Has been appropriately resolved to the satisfaction of the
agency.
(5) 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.
(b) For purposes of this section, "release" does not include
passive migration.
25395.70. "Department means" the Department of Toxic Substances
Control.
25395.71. "Endangerment" means a condition that poses an actual
and unreasonable risk to human health and safety arising from actual
or threatened exposure to hazardous materials.
25395.72. "Fair market value" means the price a seller is willing
to accept and a buyer willing to pay on the open market and in an
arm's length transaction.
25395.73. "Hazardous material" has the same meaning as defined in
subdivision (d) of Section 25260.
25395.74. (a) "Innocent landowner" means a person who owns a
site, did not cause or contribute to a release or threatened release
at the site, meets the conditions to qualify as an "innocent
landowner" specified in Section 25395.79.1, and is any one of the
following:
(1) A person who, at the time the person acquired the property
made all appropriate inquiries and did not know and had no reason to
know of the release or threatened release at the site.
(2) A government entity that acquired property by escheat, or
through any another involuntary transfer acquisition, or through the
exercise of eminent domain authority by purchase or condemnation.
(3) A person who acquired the property by inheritance or bequest.
(4) A person who qualifies for the defense from liability under
Section 107(b) of the federal act (42 U.S.C. Sec. 9607(b)).
(b) A person shall remain eligible to qualify as an innocent
landowner notwithstanding a release of hazardous materials at the
site following acquisition by that person if the release is either of
the following:
(1) Of a type, nature or amount that does not require reporting
pursuant to applicable statutory and regulatory reporting
requirements.
(2) Has been appropriately resolved to the satisfaction of the
agency.
(c) For purposes of this section, "release" does not include
passive migration.
25395.75. "Land use control" means a recorded instrument executed
pursuant to Section 1471 of the Civil Code that restricts or imposes
obligations on the present or future uses or activities on a site,
including but not limited to, recorded easements, covenants,
restrictions or servitudes, or any combination thereof.
25395.76. "Passive migration" means the leaking, leaching or
movement of a hazardous material into or through the environment, for
which no human activity by the bona fide purchaser, innocent
landowner, or contiguous property owner preceeded the initial entry
of that substance into the environment.
25395.77. "Regional board" means a California regional water
quality control board.
25395.78. "Release" has the same meaning as defined in Section
25320.
25395.78.1. "Response plan" means a written plan submitted to an
agency pursuant to Section 25395.98.
25395.79. (a) "Site" means real property located in an urban
infill area for which the expansion, redevelopment, or reuse may be
complicated by the presence or perceived presence of hazardous
materials.
(b) "Site" does not include any 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.
(3) A site that is solely impacted by a petroleum release from an
underground storage tank eligible for reimbursement from the
California Underground Storage Tank Cleanup Fund.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Infill area" means a vacant or underutilized lot of land
within an urban area served by existing physical installations,
including, but not limited to, roads, power lines, and other
infrastructure that is zoned for commercial, industrial, or mixed use
and has not been zoned exclusively for open space agricultural use,
or residential use within the five years prior to the date an
agreement is entered into pursuant to Chapter 6.84 (commencing with
Section 25395.60).
(2) "Urban area" means either of the following:
(A) An incorporated city.
(B) An unincorporated area that is completely surrounded by one or
more incorporated cities that meets both of the following criteria:
(i) The population of the unincorporated area and the population
of the surrounding incorporated cities is equal to a population of
100,000 or more.
(ii) The population density of the unincorporated area is equal
to, or greater than, the population density of the surrounding
cities.
Article 3. Liability
25395.79.1. For purposes of this chapter, to qualify as a bona
fide purchaser, innocent landowner, or contiguous property owner a
person shall establish, by a preponderance of the evidence, all of
the following conditions:
(a) On or before the date on which the person acquired the site,
the person made all appropriate inquiries into the previous ownership
and uses of the site.
(b) The person exercises appropriate care with respect to the
release or threatened release of hazardous materials at the site.
(c) The person 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.
(d) The person 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.
(e) The person complies with all requests for information or
administrative subpoena concerning the release or threatened release
of hazardous substances by any agency with jurisdiction under an
applicable statute.
(f) The person provides all notices and satisfies reporting
requirements required by state or federal law with respect to the
discovery or release of hazardous substances at the site.
25395.80. (a) Except as provided in Section 25395.84, and except
as otherwise provided under this section, a bona fide purchaser,
innocent landowner, or contiguous property owner who did not cause or
contribute to the release at the site, qualifies for the following
immunities:
(1) The bona fide purchaser, innocent landowner, or contiguous
property owner is not liable under any applicable statute for a claim
made by any person, other than an agency, for response costs or
other damages associated with a release or threatened release of a
hazardous material at the site characterized in the site assessment
conducted pursuant to, or a response plan approved pursuant to,
Chapter 6.84 (commencing with Section 25395.92).
(2) An agency shall not take an action under an applicable statute
to require a bona fide purchaser, innocent landowner, or contiguous
property owner to take a response action, other than a response
action required in an approved response plan, with respect to a
hazardous material release at a site that is characterized in the
site assessment conducted pursuant to, or a response plan approved
pursuant to Chapter 6.84 (commencing with Section 25395.92), unless
both of the following conditions apply:
(A) The conditions on the property pose an endangerment.
(B) The agency does one of the following:
(i) Makes all reasonable efforts, including taking appropriate
administrative enforcement actions, to compel any necessary response
action from other potentially responsible parties, and those efforts
have been unsuccessful.
(ii) Reasonably determines, after the exercise of reasonable
inquiry, that no potentially responsible party exists with sufficient
financial resources to perform the required response action at the
site.
(b) A person shall remain eligible to qualify as an innocent
landowner, contiguous landowner, or bona fide purchaser,
notwithstanding a release of hazardous materials at the site
following acquisition by that person, if the release is either of the
following:
(1) Of a type, nature, or amount that does not require reporting
pursuant to applicable statutory and regulatory reporting
requirements.
(2) Has been appropriately resolved to the satisfaction of the
agency.
(c) 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.
(d) The immunities described in this section shall attach when the
bona fide purchaser, innocent landowner or contiguous property owner
enters into an agreement with an agency pursuant to Section 25395.94
and shall remain in effect unless one of the following occur:
(1) The bona fide purchaser, innocent landowner, or contiguous
property owner receives a written notice of an unapproved, material
deviation from the agreement from the agency.
(2) The bona fide purchaser, innocent landowner, or contiguous
property owner terminates the agreement before obtaining a no further
action determination pursuant to Section 25395.97 or a certificate
of completion pursuant to Section 25395.99.
(e) A person who otherwise qualifies for immunity under this
chapter and who commits fraud, intentional nondisclosure, or
misrepresentation to an agency with respect to disclosures required
under this chapter does not qualify as a bona fide purchaser,
innocent landowner, or contiguous property owner.
(f) For purposes of this section, "release" does not include
passive migration.
25395.81. (a) If there are unrecovered costs incurred by an
agency at a site for which an owner of the site is not liable as an
innocent landowner, bona fide purchaser or contiguous property owner,
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:
(1) A response action for which there are unrecovered costs of the
agency is carried out at the site.
(2) The response action increased the fair market value of the
site above the fair market value of the site that existed before the
response action was initiated.
(b) The lien shall arise at the time at which costs are first
incurred by the agency with respect to a response action at the site.
(c) The lien amount shall 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, and shall not exceed
the unrecovered response costs actually incurred by the agency.
(d) 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.
(e) (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) For purposes of paragraph (1), "purchaser" and "security
interest" have the same meaning as defined in subsection (h) of
Section 6323 of Title 26 of the United States Code.
(f) 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.
(g) A lien imposed under this section shall have the force and
effect of, and the priority of, a judgment lien upon its recordation
in the county in which the property subject to the lien is located.
25395.82. (a) A court of competent jurisdiction may award
reasonable attorneys' fees and experts' fees to a person who
initiates a claim 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:
(1) The person is a bona fide purchaser, an innocent landowner, or
a contiguous property owner and qualifies for immunity pursuant to
this chapter.
(2) The person is a prevailing party.
(3) On or before 20 calendar days prior to the date of the trial
on issues relating to the response costs at issue, the person serves
on the defendant both of the following:
(A) If a response plan has been approved for that site pursuant to
Chapter 6.84 (commencing with Section 25395.92), a copy of the
approved response plan.
(B) A written demand for compensation setting forth the specific
sum demanded from the defendant, including a statement of the
reasoning supporting the
demand. The amount of written demand shall include all response
costs sought from the defendant at issue, including all interest, but
shall not include litigation expenses, attorneys' fees, and experts'
fees. The amount of the demand may include any alleged
consequential damages.
(b) ln determining whether to award reasonable attorneys' fees and
experts' fees pursuant to this section, a court shall consider the
relationship of the amount of the written demand described in
subparagraph (B) of paragraph (3) of subdivision (a) to the total sum
of the response costs and, if appropriate and included in the
demand, the consequential damages in the written demand, to the final
determination of the costs and damages by the trier of fact.
(c) A court may award reasonable attorneys' fees and experts' fees
to an agency that is the prevailing party in an action arising out
this chapter.
25395.83. An innocent landowner, bona fide purchaser, or
contiguous landowner may seek contribution from any person who is
responsible for a discharge or release of hazardous materials for
which the innocent landowner, bona fide purchaser, or contiguous
landowner incurs agency oversight costs for the review of a response
plan or oversight of the implementation of a response plan subject to
this chapter.
25395.84. (a) This chapter does not provide immunity from any of
the following:
(1) Liability for bodily injury or wrongful death.
(2) Any requirement imposed under Chapter 6.5 (commencing with
Section 25100), including, but not limited to, corrective action and
closure and post closure requirements.
(3) Criminal acts.
(4) Permit violations.
(5) Contractual indemnity agreements between purchasers and
sellers of real property.
(b) This chapter shall not apply as a defense or immunity to any
action taken by a redevelopment agency pursuant to Article 12.5
(commencing with Section 33459) of Chapter 4 of Part 1 of Division
24.
(c) This chapter does not limit the authority of an agency to
conduct a response action it determines is necessary to protect
public health and safety or the environment pursuant to an applicable
statute.
(d) This chapter does not preclude a state or local agency that is
taking property by eminent domain, negotiating to acquire property
in lieu of taking it by eminent domain, or considering the taking of
property through the exercise of eminent domain authority, from
evaluating the impact on the value of the property resulting from a
release or threatened release of any hazardous material, from
incorporating that evaluation into any offer of compensation for that
property, or from presenting that evaluation at a trial or other
proceeding to establish the value of the property.
(e) This chapter does not do either of the following:
(1) Limit a defense to liability that may be available to a person
under any other provision of law.
(2) Impose any new obligation on an owner of real property other
than those specifically assumed by the owner under an agreement
entered into pursuant to Chapter 6.84 (commencing with Section
25395.92).
25395.85. (a) On or before January 1, 2005, the California
Environmental Protection Agency shall develop a form that, upon
approval of a response plan, shall be completed and submitted to the
agency by a bona fide purchaser or innocent landowner who qualifies
for immunity pursuant to this chapter. The form shall include, but
is not required to 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
releases and threatened releases identified for response at the site
pursuant to a response plan.
(3) An estimate of the cost of the response action to be
undertaken pursuant to a response plan.
(4) A description of the present and proposed use of the site,
including current and potential future zoning and land use
designations.
(5) A description of any land use restrictions, covenants, deed
restrictions or other conditions imposed on the site owned by a party
who qualifies for immunity pursuant to this chapter.
(6) A description and the concentrations of those hazardous
materials or discharges specified in paragraph (2) that will not be
remediated pursuant to the response plan.
(b) On or before January 1, 2006, and annually thereafter, the
California Environmental Protection Agency shall, to the extent that
resources are available, compile the information submitted pursuant
to this section and post a report of its findings on its web site.
The posted report shall compare the data collected pursuant to this
section with information collected prior to January 1, 2005, to the
extent that this information is available.
(c) The report posted pursuant to subdivision (b) shall, to the
extent practicable, compare the number and quality of response
actions completed pursuant to this chapter with similar response
actions completed prior to its enactment, and shall evaluate the
impact of the benefit of this chapter's immunities on the acquisition
and development of properties.
25395.86. 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, qualifies for
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 all response plans approved pursuant to
Chapter 6.84 (commencing with Section 25395.92), and compliance with
all other applicable laws.
(b) This chapter shall become operative January 1, 2010.
SEC. 3. Chapter 6.84 (commencing with Section 25395.92) is added
to Division 20 of the Health and Safety Code, to read:
CHAPTER 6.84. STREAMLINED SITE INVESTIGATION AND PROCESS
Article 1. Definitions
25395.92. (a) Except as otherwise provided in this chapter, the
definitions in Chapter 6.82 (commencing with Section 25395.60) apply
to the terms used in this chapter.
(b) "Action level" has the same meaning as defined in paragraph
(1) of subdivision (c) of Section 116455.
(c) "Host jurisdiction" means the city or county in which the site
is located and which has the authority to take action regarding the
site pursuant to Title 7 (commencing with Section 65000) of the
Government Code.
(d) (1) "Significant threat to the environment" means that an
existing source of hazardous materials at a site is causing any of
the following:
(A) A significant release of hazardous materials to a hydrologic
unit or groundwater basin that has been designated by a regional
board as having a beneficial use of municipal or domestic use.
(B) Imminent harm to exposed, biologic, nonhuman receptors.
(C) A discharge into surface water that is above the applicable
action level.
(2) The existance of a significant threat to human health shall be
determined pursuant to the methods specified in subdivisions (b),
(c), and (d) of Section 25356.1.5.
(e) "Unreasonable risk" at a site means that a condition at a site
poses a significant threat to human health or a significant threat
to the environment.
Article 2. Site Assessment and Response Plan Agreements
25395.93. (a) Only a bona fide purchaser, innocent landowner, or
contiguous property owner who meets the requirements specified in
Section 25395.79.1 is eligible to enter into an agreement pursuant to
this chapter.
(b) An agreement entered under this chapter is not subject to
Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of
the Public Contract Code, including, but not limited to, Section
10295 of the Public Contract Code.
25395.94. (a) A bona fide purchaser, innocent landowner, or
contiguous property owner who seeks to qualify for the immunity
provided by Chapter 6.82 (commencing with Section 25395.60) shall
enter into an agreement with an agency pursuant to this chapter that
includes the performance of a site assessment, and, if the agency
determines that a response plan is necessary pursuant to Section
25395.98, the preparation and implementation of a response plan.
(b) Before finalizing the agreement, the requested agency shall
notify other appropriate agencies, including the host jurisdiction.
(c) A person who enters into an agreement with an agency pursuant
to this section shall submit sufficient information to the agency for
the agency to determine whether the site is an eligible site,
whether the person meets the conditions to qualify as a bona fide
purchaser, innocent landowner or contiguous property owner pursuant
to Chapter 6.82 (commencing with Section 25395.60), and to prepare an
agreement pursuant to this section.
(d) (1) A person who enters into an agreement pursuant to this
section shall agree to take all actions that are necessary to prevent
or eliminate an unreasonable risk at the site. These actions may
include actions necessary to prevent an unreasonable risk before the
approval of a response plan.
(2) In determining whether there is unreasonable risk at a site
for purposes of this subdivision, the agency shall take into account
the intended use of the property, in accordance with any changed use
of the property, as specified in subdivision (d) of Section 25395.98.
25395.95. (a) A person may withdraw from an agreement entered
into pursuant to this chapter by providing a 30-day written notice to
the agency and doing both of the following:
(1) Reimbursing the agency for all costs incurred by the agency
pursuant to the agreement.
(2) Demonstrating to the satisfaction of the agency, that
conditions at the site to which the agreement applies do not pose an
endangerment to public health and safety or the environment. If the
agency determines that conditions at the site pose an endangerment to
public health, safety or the environment, this chapter does not
prevent the agency from exercising its authority to take appropriate
response actions or to cause the person or persons responsible for
the endangerment to take appropriate response actions.
(b) A person who enters into an agreement with an agency pursuant
to this chapter shall reimburse the agency for all agency costs,
including, but not limited to, costs incurred while reviewing a site
assessment plan or a response plan or overseeing the implementation
of a site assessment or response plan by the person pursuant to this
chapter, except that the department's costs shall be reimbursed
pursuant to Chapter 6.66 (commencing with Section 25269) and shall be
recoverable pursuant to Section 25360.
(c) The entry into an agreement pursuant to this chapter shall not
constitute an admission of fact or liability or conclusion of law
for any purpose or proceeding and no person who enters into an
agreement under this chapter shall be deemed liable under any other
provision of law solely by reason of entering into that agreement.
25395.96. (a) (1) A person who enters into an agreement pursuant
to this chapter with an agency for the oversight of a site assessment
shall submit a site assessment plan to the agency to conduct a site
assessment of the site in accordance with the requirements of this
section.
(2) If the agency requires a health risk assessment as part of
that agreement, the health assessment shall be prepared in accordance
with subdivisions (b), (c), and (d) of Section 25356.1.5.
(b) The site assessment plan shall provide for the evaluation of
all of the following:
(1) Whether a release of hazardous materials has occurred at the
site, a threat of a release of hazardous materials exists at the
site, or there is a threat of a release of hazardous materials from
the site.
(2) If a release or threatened release of hazardous materials
exists at the site or there is a release or a threatened release from
the site, whether the release or threatened release poses an
unreasonable risk to public health and safety or the environment.
(c) The site assessment plan shall also include all of the
following:
(1) Adequate characterization of the hazardous materials released
or threatened to be released at, or from, the site and documentation
of the findings.
(2) Reasonably available information about the site, including,
where appropriate, a risk assessment that evaluates the risk posed by
any hazardous materials released or threatened to be released at, or
from, the site, and information regarding reasonably anticipated
foreseeable uses of the site based on current and projected land use
and zoning designations.
(3) If the release has impacted groundwater, reasonable
characterization of underlying groundwater, including present and
anticipated beneficial uses of that water.
(d) A person shall submit the site assessment plan to the agency
for review and approval.
(e) The agency shall evaluate the adequacy of the site assessment
plan to ensure that it contains all necessary information.
(f) After evaluating the site assessment plan, if the agency finds
that the site assessment plan is adequate, the agency shall approve
the site assessment plan and provide notification to appropriate
persons.
25395.97. (a) After implementation of the site assessment plan,
the person shall submit a report of the findings made pursuant to the
plan to the agency. Based upon a review of this information, the
agency shall determine whether a response action is necessary to
address any unreasonable risk from hazardous materials at the site.
(b) If the agency determines, that there is no unreasonable risk
at the site and that there are no hazardous materials at the site at
levels that are not suitable for unrestricted use of the site, the
agency shall make a finding that no further action is necessary at
the site. On or before 15 days after the date when the agency
determines that no further action is necessary, the agency shall
state in writing that this determination constitutes "appropriate
care" for purposes of Section 25395.67. The agency shall provide the
host jurisdiction with this determination.
(c) If the agency determines that there are hazardous materials at
the site at levels that are not suitable for unrestricted use, but
that are suitable for the reasonably anticipated foreseeable use of
the site based on current and projected land use and zoning
designations, the agency shall find that no further action is
necessary at the site except, that a land use control that imposes
appropriate restrictions pursuant to Section 25395.100 shall be
executed and recorded. On or before 15 days after the date when the
agency determines that no further action is necessary, the agency
shall state in writing that this determination constitutes
"appropriate care" for purposes of Section 25395.67. The agency
shall provide the host jurisdiction with this determination.
25395.98. (a) If, upon review of the site assessment prepared
pursuant to this chapter, the agency determines that a response
action is necessary to prevent, control, or eliminate an unreasonable
risk, the bona fide purchaser, innocent landowner, or contiguous
property owner shall submit a response plan to the agency to conduct
a response action at the site, in conformance with the agreement
entered into pursuant to Section 25395.94. The response plan shall
include all of the following:
(1) (A) An opportunity for the public, other agencies, and the
host jurisdiction to participate in decisions regarding the response
action, taking into consideration of the nature of the community
interest.
(B) The methods for public participation proposed in the response
plan may include, but are not limited to, the use of factsheets,
public notices, direct notification of interested parties, public
meetings, and an opportunity to comment on the proposed response plan
prior to agency approval.
(C) To the extent possible, the agency shall coordinate its public
participation activities with those undertaken by the host
jurisdiction and other agencies associated with the development of
the property, to avoid duplication to the extent feasible.
(2) Identification of the release or threatened release that is
the subject of the response plan and documentation that the plan is
based on an adequate characterization of the site.
(3) An identification of the response plan objectives and the
proposed remedy, and an identification of the reasonably anticipated
future land uses of the site and of the current and projected land
use and zoning designations. This identification shall include
confirmation by the host jurisdiction that the anticipated future
land uses and current and projected land uses and zoning designations
are accurate.
(4) A description of activities that will be implemented to
control any endangerment that may occur during the response action at
the site.
(5) A description of any land use control that is part of the
response action.
(6) A description of wastes other than hazardous materials at the
site and how they will be managed in conjunction with the response
action.
(7) Provisions for the removal of containment or storage vessels
and other sources of contamination, including soils and free product,
that cause an unreasonable risk.
(8) Any other information that the agency determines is necessary.
(b) The agency shall evaluate the adequacy of the plan submitted
pursuant to subdivision (a) and shall approve the plan if the agency
makes all of the following findings:
(1) The plan contains the information required by subdivision (a).
(2) When implemented, the plan will place the site in condition
that allows it to be used for its reasonably anticipated future land
use without unreasonable risk to human health and safety and the
environment.
(3) The plan addresses any public comments.
(4) If applicable, the plan provides for long-term operation and
maintenance, including land use and engineering controls, that are
part of the remedy contained in the response plan.
(c) (1) On or before 60 days after the date an agency receives a
response plan, the agency shall make a written determination that
proper completion of the response plan constitutes "appropriate care"
for purposes of subdivision (a) of Section 25395.67.
(2) Upon approval of the response plan by the agency, the agency
shall notify all appropriate persons, including the host
jurisdiction.
(d) If the use of the property changes, after a response plan is
approved, to a use that requires a higher level of protection, the
agency may require the preparation and implementation of a new
response plan pursuant to this chapter.
(e) Before the owner of a site makes any change in use of a site
inconsistent with any land use control recorded for the site, the
owner shall notify the agency in accordance with the land use
control.
25395.99. (a) Except as provided in Section 25395.100, the agency
shall issue a certificate of completion upon determining that all
response actions have been satisfactorily completed in accordance
with an approved response plan.
(b) Notwithstanding subdivision (a), the agency shall issue a
certificate of completion when a response action plan includes
long-term obligations that have not been completed, including
operation and maintenance requirements or monitoring, only if the
agency makes all of the following determinations:
(1) All response actions, other than long-term operation and
maintenance at the site, have been completed.
(2) The person has submitted an adequate long-term operation and
maintenance plan and has demonstrated initial compliance.
(c) If the agency determines that long-term operation and
maintenance is required at a site, the agency may, as a condition of
issuing a certificate of completion, enter into an operation and
maintenance agreement with the person that governs the long-term
operation and maintenance activities and that provides for adequate
financial assurance.
25395.99.1. A person who acquires a property from an innocent
landowner, bona fide purchaser, or contiguous property owner, and the
property was previously issued a certificate of completion or no
further action determination, may qualify as a bona fide prospective
purchaser or contiguous property owner by demonstrating to the agency
that the person meets all of the qualifying conditions of Section
25395.79.1.
25395.100. (a) A response plan may require the use of a land use
control that imposes appropriate conditions, restrictions, and
obligations on land use or activities, if, after completion of the
removal and remedial actions specified in the response plan,
hazardous materials remain at the site at a level that is not
suitable for the unrestricted use of the site.
(b) Except as provided in subdivision (c), if the agency approves
a response plan that requires the use of a land use control, the land
use control shall be executed by the land owner and recorded by the
land owner in the office of the county recorder in each county in
which all, or a portion of, the land is located within 10 days of the
date of execution.
(c) An agency shall not issue a certificate of completion to a
person who submits a response plan that is approved by the agency and
that requires the use of a land use control, until the agency
receives a certified copy of the recorded land use control. If the
site that requires the land use control does not have an owner, or
the agency determines the owner is incapable of executing a land use
control in accordance with this section, the agency may record in the
county records a "Notice of Land Use Restriction" that has the same
effect as any other land use control executed pursuant to this
section, and that is subject to the variance and termination
procedures specified in subdivision (f).
(d) Notwithstanding any other provision of law, a land use control
that is executed pursuant to this section and that is recorded so as
to provide constructive notice shall run with the land from the date
of recordation, is binding upon all of the owners of the land, and
their heirs, successors and assignees and the agents, employees, or
lessees of the owners, heirs, successors and assignees, and is
enforceable pursuant to to Article 8 (commencing with Section 25180)
of Chapter 6.5.
(e) Notwithstanding an other provision of law, a land use control
executed pursuant to this section is subject to Section 57012.
(f) A land use control imposed pursuant to this section is subject
to the variance and removal procedures specified in Sections 25233
and 25234.
25395.101. (a) To the extent consistent with the Resource
Conservation and Recovery Act of 1976, as amended, (42 U.S.C. Sec.
6901 et seq.), the department may exclude any portion of a response
action conducted entirely onsite from the hazardous waste facilities
permit requirements of Sections 25200.3, 25201, and 25201.6, if both
of the following apply:
(1) The response action is carried out pursuant to an approved
response plan.
(2) The response plan specifies that the response action will be
conducted in compliance with the standards, requirements, criteria,
or limitations applicable to the construction, operation, and closure
of the type of facility at the site and with any other condition
imposed by the department, as necessary to prevent an unreasonable
risk to public health and safety or the environment.
25395.102. (a) Except as expressly provided in this chapter, this
chapter does not affect the authority of an agency to issue an order
or take any other action under any provision of law to protect
public health and safety or the environment.
(b) Except as otherwise expressly provided in this chapter, this
chapter does not affect the authority of the agency or any other
public agency to pursue any existing legal, equitable, or
administrative remedies pursuant to state or federal law.
(c) Except as otherwise expressly provided in this chapter,
Chapter 6.8 (commencing with Section 25300) does not apply to this
chapter. 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 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. 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 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" 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 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 agency.
(3) The approved plan includes a provision for oversight and
verification of the response action by the agency.
(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.
25395.74. "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 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 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. (a) "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.
(b) "Response plan" means the written plan described in paragraph
(2) of subdivision (a) of Section 25395.67.
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 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.
(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) (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 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 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) 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.
(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 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 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 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, 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
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.
25395.84. If there are unrecovered costs incurred by an agency at
a site for which an owner of the site is not liable as a bona fide
prospective purchaser, 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 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 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.
25395.89. An innocent landowner, bona fide prospective purchaser,
or contiguous landowner shall reimburse an agency for its reasonable
oversight costs incurred while reviewing a response plan or
overseeing the implementation of a response plan by the innocent
landowner, bona fide prospective purchaser, or contiguous landowner
pursuant to this chapter.
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 with any other applicable law.
(b) This chapter shall become operative January 1, 2010.