Cal. HSC § 25403.1 — California Code / Code hsc / Division 20 / Chapter 6.10 / Section 25403.1
Section 25403.1
Status: in_force

(a) (1) (A) A local agency may, in accordance with this chapter, take any action that the local agency determines is necessary and that is consistent with other state and federal laws to investigate or clean up a release on, under, or from blighted property that the local agency has found to be within a blighted area within the local agency’s boundaries due to the presence of hazardous materials following a Phase I or Phase II environmental assessment pursuant to subdivision (f), whether the local agency owns that property or not. When taking action pursuant to this chapter, if the local agency does not own property that is the subject of the investigation and cleanup activities, the local agency has the right to enter that property, if, upon providing notice to the owner of that property in accordance with subparagraph (A) of paragraph (2) of subdivision (b), the owner of the property does not respond to the notice or the local agency reasonably deems the response inadequate.

(B) The local agency shall contact the department or the appropriate regional board prior to issuing a notice pursuant to paragraph (2) of subdivision (b) in connection with a property on the National Priority List or a property or release subject to any of the following:

(i) Chapter 6.5 (commencing with Section 25100).

(ii) A Cease and Desist Order issued under Section 13301 of the Water Code.

(iii) A Cleanup and Abatement Order issued under Section 13304 of the Water Code.

(iv) An existing voluntary cleanup agreement between the regional board or the department and a responsible party that requires a cleanup by a specified date.

(v) An order issued by a regional board pursuant to Section 13267 of the Water Code, or an agreement entered into by the department pursuant to Article 1 (commencing with Section 78650) of Chapter 4 of Part 2 of Division 45 or Section 25187, 78870, or 79055, for the investigation or cleanup at a site.

(vi) A remedial action order, an imminent or substantial endangerment order or agreement, a prospective purchase agreement, or an order on consent issued pursuant to Section 78660, 78870, 79020, or 79055, as applicable.

(vii) An expedited remediation order issued pursuant to the Chapter 6.86 (commencing with Section 25396).

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

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

(C) (i) If the department or the regional board objects within 30 days to the local agency issuing the notice, the local agency and the department or regional board shall promptly meet and confer to resolve the department’s or regional board’s concerns. If the local agency and the department or the regional board cannot reach a mutually acceptable resolution on sites identified in clause (iv) of subparagraph (B) of paragraph (1), the matter shall be submitted to the site designation committee created pursuant to Section 25261.

(ii) Notwithstanding subdivision (a) of Section 25261, the designee of the department or the regional board on the site designation committee shall not participate in the review of a dispute involving the department or a regional board, respectively. The decision of the site designation committee shall resolve the matter impartially, by majority vote, and within 45 days of the date on which the matter is presented. Either party to the dispute may present the matter to the site designation committee, and each party shall be given a reasonable opportunity to be heard.

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

(A) If the investigation has not been completed or additional investigation is necessary, have an investigation plan prepared by an independent qualified contractor.

(B) Submit an investigation plan and cost recovery agreement to the regional board or the department for review and approval.

(C) After completion of the investigation plan, have a cleanup plan prepared by an independent qualified contractor.

(D) Submit a cleanup plan and existing applicable documents required pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) to the regional board or to the department for approval.

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

(3) The regional board or the department shall act on the investigation plan within 30 days of receipt of the investigation plan.

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

(5) Within 60 days after approval of the cleanup plan, pursuant to applicable statutes and regulations, the director or the regional board, as appropriate, shall acknowledge, in writing, that upon proper completion of the cleanup in accordance with the cleanup plan, the immunity provided by Section 25403.2 shall apply.

(6) The local agency shall notify the department and local health and building departments and the regional board of any cleanup activity pursuant to this section at least 30 days before the commencement of the activity.

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

(8) If an administering agency for the site has been designated pursuant to Section 25262, the department or the regional board may impose any requirements for additional action pursuant to paragraph (7) only as provided in Sections 26263 and 25265.

(9) If methane or landfill gas is present, the local agency shall obtain written approval from the Department of Resources Recycling and Recovery prior to taking action authorized under this subdivision.

(b) Except as provided in subdivision (c), a local agency may take the actions specified in subdivision (a) only under one of the following conditions:

(1) There is no responsible party for the release identified by the local agency.

(2) Both of the following apply:

(A) A party determined by the local agency to be a responsible party for the release has been notified by the local agency, or has received adequate notice from the department, a regional board, the California Environmental Protection Agency, or other governmental agency with relevant authority, and has been given 60 days to respond and to propose an investigation plan and schedule if in the opinion of the responsible party’s qualified independent contractor there is not enough site-specific data to prepare a cleanup plan, and 60 days to propose a cleanup plan and schedule following completion of the investigation plan in accordance with the investigation plan schedule approved by the local agency.

(B) The responsible party specified in subparagraph (A) has not agreed within an additional 60 days to implement an investigation plan and schedule to investigate or clean up the release that meets both of the following requirements:

(i) The investigation plan and schedule and the cleanup plan and schedule are acceptable to the local agency.

(ii) The local agency makes a finding that the investigation plan and schedule and the cleanup plan and schedule are consistent with the intended development schedule and use of the property.

(3) (A) The party determined by the local agency to be the responsible party for the hazardous material release entered into an agreement with the local agency to prepare an investigation plan or cleanup plan for approval by the department, the regional board, or the appropriate local agency, and to implement the investigation plan or cleanup plan in accordance with an agreed schedule, but failed to do any of the following:

(i) Prepare the investigation plan or cleanup plan.

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

(iii) Otherwise failed to carry out the investigation in an appropriate and timely manner.

(B) An action taken by the local agency pursuant to this paragraph shall be consistent with any agreement between the local agency and the responsible party and with the requirements of the state agency or the designated agency that approved or will approve the cleanup plan and is overseeing or will oversee the preparation and implementation of the cleanup plan.

(c) The responsible party specified in subparagraph (A) of paragraph (2) of subdivision (b) may appeal a 60-day notice issued pursuant to this section to the local agency’s governing body by filing a written request to appeal the notice with the clerk of the local agency within 30 days of receipt of the notice. Filing an appeal to the local agency’s governing body tolls the 60-day notice period until the appeal is heard and decided by the local agency’s governing body. Any challenge to the decision reached by the local agency’s governing body shall be presented only as part of a cost recovery or injunctive proceeding initiated by the local agency under Section 25403.5. The local agency’s decision shall be upheld if supported by substantial evidence presented in the action commenced under Section 25403.5, and shall not be invalidated on the grounds that the local agency failed to include all responsible parties in a 60-day notice issued pursuant to this section. A claim of failure to include all responsible parties in a 60-day notice issued pursuant to this section shall not be a defense to the liability provided for in Section 25403.5.

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

(1) A local agency taking actions to conduct a Phase I or Phase II environmental assessment in accordance with standard real estate practices.

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

(e) (1) A local agency may designate another agency, in lieu of the department or the regional board, to review and approve a cleanup plan and to oversee the cleanup of hazardous materials from a specific hazardous material release site if the agency is designated as the administering agency under Section 25262. In that event, the designated agency shall conduct the oversight of the cleanup in accordance with Chapter 6.65 (commencing with Section 25260), and all provisions of that chapter shall apply to the cleanup.

(2) A local agency may designate another agency to review and approve a cleanup plan for a site and oversee the cleanup at the site if all of the following conditions exist:

(A) The designated agency is certified as a CUPA.

(B) The site is an underground storage tank site subject to Chapter 6.7 (commencing with Section 25280).

(C) The designated agency is certified pursuant to Section 25297.01 and the state board has entered into an agreement with the designated agency pursuant to Section 25297.1.

(D) The designated agency determines that the site is within the guidelines and protocols established in, and pursuant to, the agreement specified in subparagraph (C).

(E) The designated agency consents to the designation.

(3) Within 60 days after approving a cleanup plan pursuant to paragraph (1) or (2), the designated agency shall issue a notice that, upon proper completion of the cleanup plan, the immunity specified in Section 25403.2 shall apply. If the designated agency was formed by the local agency, the cleanup plan shall also be subject to the approval of the department or regional board.

(4) (A) An agency may not consent to the designation pursuant to paragraph (1) or (2) unless the designated agency determines that it has adequate staff resources and the requisite technical expertise and capabilities available to adequately supervise the cleanup.

(B) If an agency has been designated pursuant to paragraph (2), the department or a regional board may require the designated agency to withdraw from the designation or stop taking action pursuant to that designation, after providing the designated agency with adequate notice, if both of the following conditions are met:

(i) The department or a regional board determines that the agency’s designation was not consistent with paragraph (2), or makes one of the findings specified in subdivision (d) of Section 101480.

(ii) The department or a regional board determines that it has adequate staff resources and capabilities available to adequately supervise the cleanup, and assumes that responsibility.

(C) This paragraph does not prevent a regional board from taking an action pursuant to Division 7 (commencing with Section 13000) of the Water Code.

(5) If an agency has been designated pursuant to paragraph (1) or (2), the designated agency may, after providing the local agency with adequate notice, withdraw from its designation or stop taking action pursuant to that designation after making one of the findings specified in subdivision (d) of Section 101480.

(f) (1) To facilitate remedial planning, the local agency may require the owner or operator of a site within the local agency’s jurisdictional boundaries to provide the local agency with all existing environmental information pertaining to the site, including the results of any phase I or subsequent environmental assessment, any assessment conducted pursuant to an order from, or agreement with, any federal, state, or local agency, and any other environmental assessment information, except that which is determined to be privileged.

(2) A person requested to furnish the information pursuant to paragraph (1) shall be required only to furnish that information that may be within that person’s possession or control, including actual knowledge of information within the possession or control of any other party. If environmental assessment information is not available, the local agency may require the owner of the property to conduct, and to pay the expenses of conducting, an assessment in accordance with standard real estate practices for conducting phase I or phase II environmental assessments. If the local agency conducts the phase I or phase II environmental assessment because the owner or operator failed to provide this information, the local agency shall have a right of entry, upon reasonable notice, to enter the property and conduct the phase I or phase II environmental assessment. The local agency may recover the costs of the phase I or phase II environmental assessment in accordance with Section 25403.5.