25220. (a) For purposes of this article, unless the context clearly
requires a different meaning:
(1) "Determination" means a decision by the department as to
whether land should be designated as hazardous waste property or
border zone property and which is reached after an analysis and an
evaluation of the information obtained by the department.
(2) "Designation" means imposition of the requirements specified
in Section 25230 after a determination, a public hearing, and a
decision by the director has occurred pursuant to Section 25229.
(b) Whenever there is reasonable cause for the department to
believe that any land may be a hazardous waste property or border
zone property, the department may, by certified mail, request any
person who owns, leases, or occupies the land, or any other person
who has information relating to the land, to provide any or all of
the following information:
(1) A description of the present use of the land.
(2) The types and volumes of hazardous waste or extremely
hazardous waste contained therein or thereon.
(3) The date or dates the hazardous waste or extremely hazardous
waste was deposited into or onto the land.
(4) A map or maps of the property which they own and which
contains or overlies hazardous waste or extremely hazardous waste,
drawn to a scale of not more than 200 feet to the inch, which shows
the area or areas where the hazardous waste or extremely hazardous
waste is contained or was deposited. The provision of a map pursuant
to this subdivision shall not be required if the respondent to the
request asserts in writing that the respondent has no knowledge or
insufficient knowledge of the existence or location of the wastes to
comply with this subdivision.
(5) Any other information which relates to the disposal of
hazardous waste on or within 2,000 feet of the property or the
potential for the migration of those wastes.
(c) Any person who is requested to provide information pursuant to
subdivision (b) shall submit the information to the department
within 90 calendar days of receipt of the request.
(d) The department shall notify the planning and building
department of each city, county, or regional council of governments
of any recorded land use restriction imposed pursuant to Section
25202.5, 25222.1, 25229, 25230, 25355.5, or 25398.7 within the
jurisdiction of the local agency. Upon receiving this notification,
the planning and building department shall do both of the following:
(1) File all recorded land use restrictions in the property files
of the city, county, or regional council of government.
(2) Require that any person requesting a land use which differs
from those filed land use restrictions on the property apply to the
department for a variance or a removal of the land use restrictions
pursuant to Section 25233 or 25234.
(e) A planning and building department of a city, county, or
regional council of governments may assess a property owner a
reasonable fee to cover the costs of taking the actions required by
subdivision (d). For purposes of this subdivision, "property owner"
does not include a person who holds evidence of ownership solely to
protect a security interest in the property, unless the person
participates, or has a legal right to participate, in the management
of the property.
(f) The department shall maintain a list of all recorded land use
restrictions, including deed restrictions, recorded pursuant to
Sections 25200, 25200.10, 25202.5, 25222.1, 25229, 25230, 25355.5,
and 25398.7. The list shall, at a minimum, provide the street
address, or, if a street address is not available, an equivalent
description of location for a rural location or the latitude and
longitude, of each property. The department shall update the list as
new deed restrictions are recorded. The department shall make the
list available to the public, upon request, and shall make the list
available on the department's Internet website. The list shall also
be incorporated into the list of sites compiled pursuant to Section
65962.5 of the Government Code.
25221. (a) Any person as owner, lessor, or lessee who (1) knows, or
has probable cause to believe, that a significant disposal of
hazardous waste has occurred on, under, or into the land which he or
she owns or leases or that the land is within 2,000 feet of a
significant disposal of hazardous waste, and (2) intends to construct
or allow the construction on that land of a building or structure to
be used for a purpose which is described in subdivision (b) of
Section 25232 within one year, shall apply to the department prior to
construction for a determination as to whether the land should be
designated a hazardous waste property or a border zone property
pursuant to Section 25229.
The addition of rooms or living space to an existing single-family
dwelling or other minor repairs or improvements to residential
property which do not change the use of the property or increase the
population density does not constitute the construction of a building
or structure for purposes of this subdivision.
(b) Any person who, as owner, lessor, or lessee, knows or has
probable cause to believe that land which he or she owns or leases is
a hazardous waste property or a border zone property, may apply to
the department for a determination as to whether the land should be
designated a hazardous waste property or a border zone property
pursuant to Section 25229.
(c) If a city or county knows or has probable cause to believe
that any land within its jurisdiction is a hazardous waste property
or a border zone property, the city or county may apply to the
department for a determination as to whether that land should be
designated a hazardous waste property or a border zone property
pursuant to Section 25229.
(d) Subdivisions (a), (b), and (c) do not apply to any land on
which a determination has previously been made pursuant to Section
25222.1 or 25229, unless either of the following has occurred since
that determination:
(1) A significant new disposal of hazardous waste has occurred on,
under, or into the land.
(2) Significant new information about past disposal of hazardous
waste on, or within 2,000 feet of, the land becomes known to the
owner, lessor, or lessee of the land or to the city or county.
25221.1. Whenever the department receives an application pursuant
to Section 25221, it may request information pursuant to Section
25220 to determine whether the land should be designated as hazardous
waste property or border zone property. Upon evaluating all
pertinent available information, the department may do any one or
more of the following:
(a) Issue a statement that, based on existing documents and other
information available to the department, there is no currently known
hazard.
(b) Recommend to local land use authorities that they place a
moratorium on any new land uses specified in paragraph (1) of
subdivision (a) of Section 25232, if the department suspects that the
land is hazardous waste property, or a moratorium on the
construction or placement of any building or structure which is
intended to be used for any of the purposes specified in paragraph
(1) of subdivision (b) of Section 25232, if the department suspects
that the land is border zone property.
(c) Collect additional information, including sampling,
monitoring, and analytical data for the purpose of making a
determination as to whether the land should be designated as
hazardous waste property or border zone property pursuant to Section
25229.
(d) Make a determination as to whether the land should be
designated as hazardous waste property or border zone property
pursuant to Section 25229.
(e) Enter into an agreement pursuant to Section 25222.1.
25222. (a) In any case where the department has obtained
information which shows that a significant disposal of hazardous
wastes has occurred on, under, or in land and that the disposal
creates a significant existing or potential hazard to present or
future public health or safety, the department may consider
designating the affected land as hazardous waste property or border
zone property.
Whenever the department considers designating land as a hazardous
waste property or a border zone property, it shall issue and cause to
be served upon the owner of the land, and the legislative body of
the city or county in whose jurisdiction the land is located, a
notice of a hearing. The notice shall contain (1) a statement that
the land is under consideration for designation as a hazardous waste
property or a border zone property; (2) a summary of the reasons for
that designation and what significant existing or potential health
hazards are believed to exist; (3) notice of the time, date, and
place of the hearing, and any policy regarding continuance of the
hearing; and (4) a form to acknowledge receipt of the notice.
(b) Service of the notice of hearing may be made in any manner
permitted for the service of summons in civil actions, or by mailing
a copy of the notice of hearing by first-class mail or airmail,
postage prepaid to the person to be served, together with two copies
of the notice of service and acknowledgment specified in subdivision
(d) and a return envelope, postage prepaid, addressed to the
department.
(c) The notice of service specified in subdivision (b) shall be in
substantially the following form:
NOTICE OF SERVICE
To: (Here state the name of the person to be served.)
The accompanying notice of hearing is served pursuant to Section
25222 of the California Health and Safety Code. Failure to complete
this form and return it to the sender within 20 days may subject you,
or the party on whose behalf you are being served, to liability for
the payment of any expenses incurred in serving the notice of hearing
upon you in any other manner permitted by law. If you are served on
behalf of a corporation, unincorporated association, including a
partnership, or other entity, this form must be signed in the name of
that entity by you or by a person authorized to receive service of
process on behalf of that entity. In all other cases, this form must
be signed by you personally or by a person authorized by you to
acknowledge receipt of summons. Section 25222 provides that the
accompanying notice of hearing is deemed served on the date of
execution of an acknowledgment of receipt of notice of hearing.
________________________________
(Signature of Sender)
ACKNOWLEDGMENT OF RECEIPT OF NOTICE OF HEARING
This acknowledges receipt on (insert date) of a copy of the notice
of hearing.
Date: ___________________________________________
(Date this acknowledgment is executed)
_________________________________
(Signature of person
acknowledging
receipt, with title if
acknowledgment is
made on behalf of another person)
(d) Service of a notice of hearing pursuant to this section is
deemed complete on the date a written acknowledgment of receipt of
notice is executed, if the acknowledgment thereafter is returned to
the department.
(e) If the person to whom a copy of the notice of hearing is
mailed pursuant to this section fails to complete and return the
acknowledgment form set forth in subdivision (b) within 20 days from
the date of that mailing, the party to whom the notice of hearing was
mailed is liable for reasonable expenses thereafter incurred in
serving or attempting to serve the party by any other method
permitted by this section. The department may bring a single action
to recover all of these expenses in any court of competent
jurisdiction and, except for good cause shown, the court upon motion,
with or without notice to that person, shall award the department
these expenses.
25222.1. (a) Notwithstanding Sections 25222, 25229, 25232, and
25233, any person may enter into an agreement with the department
regarding that person's property, or a portion thereof, which
provides for restricting specified uses of the property, as
determined by all parties to the agreement. Except as otherwise
provided in this article, the agreement is irrevocable and shall be
recorded by the owner, pursuant to paragraph (1) of subdivision (a)
of Section 25230, as a hazardous waste easement, covenant,
restriction, or servitude, or any combination thereof, as
appropriate, upon the present and future uses of the land. That
person shall bear all costs incurred in determining the specific land
use restrictions for that person's property, or a portion thereof
pursuant to this subdivision.
(b) By entering into this agreement with respect to a portion of a
property, the department is not precluded from taking action to
designate the remainder of the property as hazardous waste or border
zone property.
25223. Public notice of any hearing conducted pursuant to Section
25222, or of any agreement proposed to be entered into pursuant to
Section 25222.1, shall be provided by the department at least 30 days
before the hearing or execution of the agreement. The notice shall
be given by publication once in a newspaper of general circulation
published and circulated in the locale or, if there is none, by
posting the notice in at least three public places in the locale. In
the case of a proposed agreement, the department shall also give
notice to the city or county in whose jurisdiction the property is
located. Public comment on any proposed agreement pursuant to Section
25222.1 shall be submitted to the department in writing.
25224. The hearing shall be held before the director, or any agent
or agency designated by the director for that purpose, not less than
30 days or more than 90 days after the notice. The department may
delay the hearing upon request of any interested person.
25226. The persons served shall have the right to file a response
to the notice and to appear in person or otherwise and give testimony
at the place and time fixed in the notice. At the discretion of the
director, agent, or agency conducting the hearing, any interested
person may be allowed to intervene in the proceeding and to present
testimony. Any such proceeding shall, so far as practicable, be
conducted pursuant to the provisions of Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code. All proceedings shall be appropriately reported, and the
testimony taken shall be reduced to writing and filed with the
director. Thereafter, at his or her discretion, the director, upon
notice, may take further testimony or hear argument.
25227. Discovery for a hearing held pursuant to this article shall
be conducted as provided in Sections 11507.6, 11507.7, 11510, and
11511 of the Government Code.
25228. (a) With regard to designating land as a hazardous waste
property, the department shall have the burden of proving that
hazardous waste has been deposited on, under, or in the land and that
the hazardous waste creates a significant existing or potential
hazard to present or future public health or safety on the hazardous
waste property.
(b) With regard to designating land as a border zone property, the
department shall have the burden of proving that hazardous waste has
been deposited within 2,000 feet of the land and that the hazardous
waste creates a significant existing or potential hazard to present
or future public health or safety on the border zone property.
25229. (a) If, after the hearing, the director makes the decision
that the subject land should not be designated a hazardous waste
property or border zone property, the director shall issue that
decision in writing and serve it in the manner provided in
subdivision (c).
(b) If, after the hearing, the director makes the decision, upon a
preponderance of the evidence, including any evidence developed at
any time prior to the hearing, that the land should be designated a
hazardous waste property or a border zone property, the director
shall issue that decision in writing, which shall identify the
subject land, or portion thereof, by street address, assessor's
parcel number, or legal description and the name of the owner of
record, contain findings of fact based upon the issues presented,
including the reasons for this designation, the substances on, under,
or in the land, and the significant existing or potential hazards to
present or future public health and safety, and order every owner of
the designated land to take all of the following actions:
(1) Execute before a notary a written instrument which imposes an
easement, covenant, restriction, or servitude, or any combination
thereof, as appropriate, upon the present and future uses of the land
pursuant to Section 25230. The written instrument shall also include
a copy of the director's decision.
(2) Return the executed instrument to the director within 30 days
after the decision is delivered or mailed. Within 10 days after
receiving the instrument, the director shall execute the written
instrument and return the instrument to the owner.
(3) Record the written instrument pursuant to Section 25230 within
10 days after receiving the written instrument executed by the
director, as specified in paragraph (2).
(4) Return the recorded written instrument to the director within
10 days after the owner records the instrument, as specified in
paragraph (3).
(c) Copies of the determination shall be delivered or sent by
certified mail to the owner of the property, the legislative body of
the city or county in whose jurisdiction the land is located, and any
other persons who were served pursuant to Section 25222 or who were
permitted to intervene in the proceeding pursuant to Section 25226.
(d) Failure or refusal to comply with any order issued pursuant to
this section shall be treated in the manner provided by Article 12
(commencing with Section 11455.10) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code.
25230. (a) Upon a decision that the subject land shall be
designated as hazardous waste property or border zone property
pursuant to Section 25229, the director shall notify the owner of the
property and the legislative body of the city or county in whose
jurisdiction the land is located and any other persons who were
permitted to intervene in the proceeding, and shall issue orders to
every owner of the land requiring all of the following:
(1) The notarized execution and recordation of a written
instrument which imposes an easement, covenant, restriction, or
servitude, or combination thereof, as appropriate, upon the present
and future uses of all or part of the land which has been designated
a hazardous waste property or a border zone property as provided by
Section 25232, and which provides that removal of the easement,
covenant, restriction, or servitude, or any combination thereof, as
appropriate, shall be in accordance with Section 25234. The easement,
covenant, restriction, or servitude, or any combination thereof, as
appropriate, shall be executed by all the owners of the land and by
the director, shall particularly describe the real property affected
by the instrument, and, if applicable, the location of the easement,
covenant, restriction, or servitude, or any combination thereof, as
appropriate, on the real property. The easement, covenant,
restriction, or servitude, or any combination thereof, as
appropriate, shall be recorded with the recorder of the county in
which the land is located within 10 days after the instrument, as
executed by the director, is received by the owner and shall be
indexed by the county recorder in the grantor index in the name of
the record title owner of the real property and in the grantee index
in the name of the department. The easement, covenant, restriction,
or servitude, or any combination thereof, as appropriate, shall state
that the land described in the instrument is subject to a hazardous
waste easement, covenant, restriction, or servitude, or any
combination thereof, as appropriate. Notwithstanding any other
provision of law, an easement, covenant, restriction, or servitude,
or any combination thereof, as appropriate, executed pursuant to this
section shall run with the land from the date of recordation and
shall be binding upon all of the owners of the land, their heirs,
successors, and assignees, and the agents, employees, or lessees of
the owners, heirs, successors, and assignees, unless it is removed
pursuant to Section 25234. The easement, covenant, restriction, or
servitude, or any combination thereof, as appropriate, shall be
enforceable by the department pursuant to Article 8 (commencing with
Section 25180).
(2) The execution and delivery of a written instrument to
accompany all purchase, lease, or rental agreements relating to the
land which has been designated a hazardous waste property or a border
zone property. The instrument shall be prepared by the owner or
lessor of the land and shall contain the following statement:
"The land described herein contains hazardous waste or is within
2,000 feet of land that contains hazardous waste. This condition
renders the land and the owner, lessee, or other possessor of the
land subject to the requirements, restrictions, provisions, and
liabilities contained in Chapter 6.5 (commencing with Section 25100)
of Division 20 of the Health and Safety Code. This statement is not a
declaration that a hazard exists."
(b) In any case where the department has made reasonable efforts
to obtain execution of the easement, covenant, restriction, or
servitude, or any combination thereof, as appropriate, and the owner
or owners have failed or refused to execute it, the department may
apply to the court for an order imposing the easement, covenant,
restriction, or servitude, or any combination thereof, as
appropriate. The issued order shall be recorded in the same manner as
an executed instrument, as specified in paragraph (1) of subdivision
(a).
(c) Any hazardous waste easement, covenant, restriction, or
servitude, or any combination thereof, as appropriate, executed
pursuant to this section shall be exclusively for the purpose of
protecting the public health and safety and shall convey no interest
in real or other property to the state. Notwithstanding any other
provision of law, any easement, covenant, restriction, or servitude,
or any combination thereof, as appropriate, held by the department
shall not be sold or otherwise transferred to another person.
25231. A decision of the director made pursuant to Section 25229
shall be reviewable pursuant to Section 1094.5 of the Code of Civil
Procedure.
25232. (a) Except as provided in subdivision (c) of this section,
after the director has provided notice in compliance with Section
25222 and a hearing or decision regarding specific land is pending,
or after a hearing has been conducted and a decision has been made
pursuant to Section 25229 that land is a hazardous waste property,
then none of the following shall occur on the land without a specific
variance approved in writing by the department for the land use and
land in question:
(1) Any new use of the land, other than the use, modification, or
expansion of an existing industrial or manufacturing facility or
complex on land which is owned by, or held for the beneficial use of,
such facility or complex as of January 1, 1981, and which is a
hazardous waste property as defined in Section 25117.3.
(2) Subdivision of such land, as that term is used in Division 2
(commencing with Section 66410) of Title 7 of the Government Code,
except that this paragraph shall not prevent the division of a parcel
of land so as to divide that portion of the parcel which is
designated a hazardous waste property from other portions of such
parcel not so designated.
(b) Except as provided in subdivision (c) of this section, after
the director has provided notice in compliance with Section 25222 and
a hearing or decision regarding specific land is pending, or after a
hearing has been conducted and a decision has been made pursuant to
Section 25229 that land is a border zone property, then none of the
following shall occur on the land without a specific variance
approved in writing by the department for the land use and land in
question:
(1) Construction or placement of a building or structure on the
land which is intended for use as any of the following, or the new
use of an existing structure for the purpose of serving as any of the
following:
(A) A residence, including any mobilehome or factory built housing
constructed or installed for use as permanently occupied human
habitation, except that the addition of rooms or living space to an
existing single-family dwelling or other minor repairs or
improvements to residential property which do not change the use of
the property or increase the population density does not constitute
construction or placement of a building or structure for the purposes
of this paragraph.
(B) A hospital for humans.
(C) A school for persons under 21 years of age.
(D) A day care center for children.
(E) Any permanently occupied human habitation other than those
used for industrial purposes.
(2) Subdivision of such land, as that term is used in Division 2
(commencing with Section 66410) of Title 7 of the Government Code,
except that this paragraph shall not prevent the division of a parcel
of land so as to divide that portion of the parcel which is
designated a border zone property from other portions of such parcel
not so designated.
(c) This section shall not apply to a portion of a parcel of land
which is determined by the director to meet all of the following
requirements:
(1) The parcel has been previously classified as a class II-1
disposal site as defined in Section 2510 or 2511 of Title 23 of the
California Administrative Code.
(2) The portion of the parcel is physically isolated from the
remainder of the classified parcel by the construction of a freeway,
as defined in Section 332 of the Vehicle Code, which divides the
classified parcel.
(3) The portion of the parcel has not been used as a hazardous
waste disposal site.
(4) The portion of the parcel does not contain or overlie
hazardous waste.
25233. (a) Any aggrieved person may apply to the department for a
written variance from a land use restriction, including the
requirements set forth in subdivision (a) or (b) of Section 25232.
Any application shall contain sufficient evidence for the department
to issue a notice for a hearing. The notice shall contain both of the
following:
(1) A statement of all of the following that apply:
(A) Land use restrictions have been imposed on the land.
(B) A hearing is pending on the land.
(C) The land has been designated a hazardous waste property or
border zone property.
(2) A statement of who is applying for a variance, the proposed
variance, and a statement of the reasons in support of the granting
of a variance.
(b) The procedures for the conducting of the hearing specified in
subdivision (a) are those set forth in this article. No person shall
make a subsequent application pursuant to this section within 18
months of a final decision on an application by the department. A
person applying for a variance pursuant to this section shall pay the
department for all costs incurred by the department relating to the
application.
(c) The applicant shall have the burden of proving at the hearing
that the variance will not cause or allow any of the following
effects associated with hazardous waste or extremely hazardous waste:
(1) The creation or increase of significant present or future
hazards to public health.
(2) Any significant diminution of the ability to mitigate any
significant potential or actual hazard to public health.
(3) Any long-term increase in the number of humans or animals
exposed to significant hazards which affect the health, well-being,
or safety of the public.
(d) If, upon the preponderance of the testimony taken, the
director is of the opinion that the variance should be granted, the
director shall issue and cause to be served his or her decision and
findings of fact on the owner of the land, the legislative body of
the city or county in whose jurisdiction the land is located, and
upon any other persons who were permitted to intervene in the
proceedings. The findings of fact shall include the exact nature of
the proposed variance and the reasons in support of the granting of
the variance.
(e) If the director is of the opinion that the variance should not
be granted, the director shall issue and cause to be served his or
her findings of fact in support of the denial on the parties
mentioned in subdivision (c).
(f) The department shall record within 10 days any final decision
made by the director pursuant to this section as provided in Section
25235.
(g) A decision of the director made after a hearing held pursuant
to this section shall be reviewable pursuant to Section 1094.5 of the
Code of Civil Procedure and shall be upheld if the court finds that
it is supported by substantial evidence.
25234. (a) Any aggrieved person may apply to the department to
remove a land use restriction, including a designation that the land
is a hazardous waste property or a border zone property on the
grounds that the waste no longer creates a significant existing or
potential hazard to present or future public health or safety. No
person shall make a subsequent application pursuant to this section
within 12 months of a final decision on an application by the
department. A person applying to the department pursuant to this
section shall pay the department all costs incurred by the department
relating to the application. Any application shall contain
sufficient evidence for the department to make a finding upon any or
all of the following grounds:
(1) The hazardous waste which caused the land to be restricted or
designated has since been removed or altered in a manner which
precludes any significant existing or potential hazard to present or
future public health.
(2) New scientific evidence is available since the restriction or
designation of the land or the making of any previous application
pursuant to this section, concerning either of the following:
(A) The nature of the hazardous waste which caused the land to be
designated.
(B) The geology or other physical environmental characteristics of
the designated land.
(b) Any aggrieved person may appeal a determination of the
department made pursuant to subdivision (a) by submitting a request
for a hearing to the director. The request shall be mailed by
certified mail not later than 30 days after the date of the mailing
of the department's decision on the application.
(c) Upon receipt of a timely appeal, the director shall give
notice of a hearing pursuant to the procedures set forth in this
article.
(d) The department shall record within 10 days any new and final
determination made by the department pursuant to this section as
provided in Section 25235.
(e) A determination made by the department, after a hearing held
pursuant to this section, shall be reviewable pursuant to Section
1094.5 of the Code of Civil Procedure and shall be upheld if the
court finds that it is supported by substantial evidence.
(f) Whenever there is a final determination pursuant to this
section removing a land use restriction, including the designation of
a hazardous waste property or a border zone property, the easement,
covenant, restriction, or servitude imposed on the land created by
Section 25222.1, 25230, or 25355.5 shall automatically terminate. The
department shall record or cause to be recorded within 10 days a
termination of the easement, covenant, restriction, or servitude
which shall particularly describe the real property subject to the
easement, covenant, restriction, or servitude and which shall be
indexed by the recorder in the grantee index in the name of the
record title owner of the real property subject to the easement,
covenant, restriction, or servitude, and in the grantor index in the
name of the department.
25235. The department shall record within 10 days any final written
instrument made pursuant to Section 25222.1 or 25230 with the county
recorder of the county in which the property is located. Any
recordation made pursuant to this article or Section 25202.5 or
25355.5 shall include the street address, assessor's parcel number,
or legal description of each parcel affected and the name of the
owner thereof, and the recordation shall be recorded by the recorder
in the grantor index in the name of the record title owner of the
real property and in the grantee index in the name of the department.
25236. (a) Prior to, or simultaneously with, utilizing the
provisions of this article, the department shall diligently pursue
feasible civil and criminal actions against any operator or other
responsible party who violates any provision of this chapter or
Chapter 6.8 (commencing with Section 25300) and the regulations
promulgated under those chapters. However, nothing in this chapter
shall be construed as restricting or diminishing any remedy provided
by law to the owner or possessor of any land which is affected by
hazardous waste on or near the land against any person who produced
the waste or against any other person who was responsible for the
condition affecting the property.
(b) A designation by the department pursuant to Section 25230
shall constitute a land use restriction. Except as specifically
provided in this chapter, nothing in this chapter shall diminish or
limit the authority of any city or county to approve or disapprove
proposed land uses. Nothing in this chapter shall be construed to
require a local government to permit a particular land use,
including, but not limited to, commercial, industrial, agricultural,
or other nonresidential use, on land which has been designated
hazardous waste property or border zone property pursuant to Section
25230.
25237. If any provision of this article or the application thereof
to any person or circumstance is held invalid, such holding shall not
affect other provisions or applications of this article which can be
given effect without the invalid provision or application, and to
this end, the provisions of the article are severable.
25239. All costs associated with the administration of this article
by the department, including, but not limited to, costs incurred to
implement Section 25156 and 25220, shall be paid from the Hazardous
Waste Control Account in the General Fund.
25240. An assessor shall consider any restrictive easement,
covenant, restriction, or servitude adopted pursuant to Section
25202.5, 25222.1, or 25355.5 or any easement, covenant, restriction,
or servitude imposed pursuant to Section 25230 as an enforceable
easement, covenant, restriction, or servitude subject to Section
402.1 of the Revenue and Taxation Code and shall appropriately
reassess any land, the use of which has been so restricted, at the
lien date following the adoption or imposition of the easement,
covenant, restriction, or servitude.
25241. The provisions of this article shall not apply to hazardous
waste property as defined in paragraph (1) of subdivision (a) of
Section 25117.3. Such property shall be regulated by the department
pursuant to Section 25202.5 in order to protect the present and
future public health and safety from hazardous waste.
25220. (a) For purposes of this article, unless the context clearly
requires a different meaning:
(1) "Determination" means a decision by the department as to
whether land should be designated as hazardous waste property or
border zone property and which is reached after an analysis and an
evaluation of the information obtained by the department.
(2) "Designation" means imposition of the requirements specified
in Section 25230 after a determination, a public hearing, and a
decision by the director has occurred pursuant to Section 25229.
(b) Whenever there is reasonable cause for the department to
believe that any land may be a hazardous waste property or border
zone property, the department may, by certified mail, request any
person who owns, leases, or occupies the land, or any other person
who has information relating to the land, to provide any or all of
the following information:
(1) A description of the present use of the land.
(2) The types and volumes of hazardous waste or extremely
hazardous waste contained therein or thereon.
(3) The date or dates the hazardous waste or extremely hazardous
waste was deposited into or onto the land.
(4) A map or maps of the property which they own and which
contains or overlies hazardous waste or extremely hazardous waste,
drawn to a scale of not more than 200 feet to the inch, which shows
the area or areas where the hazardous waste or extremely hazardous
waste is contained or was deposited. The provision of a map pursuant
to this subdivision shall not be required if the respondent to the
request asserts in writing that the respondent has no knowledge or
insufficient knowledge of the existence or location of the wastes to
comply with this subdivision.
(5) Any other information which relates to the disposal of
hazardous waste on or within 2,000 feet of the property or the
potential for the migration of those wastes.
(c) Any person who is requested to provide information pursuant to
subdivision (b) shall submit the information to the department
within 90 calendar days of receipt of the request.
(d) The department shall notify the planning and building
department of each city, county, or regional council of governments
of any recorded land use restriction imposed pursuant to Section
25202.5, 25222.1, 25229, 25230, 25355.5, or 25398.7 within the
jurisdiction of the local agency. Upon receiving this notification,
the planning and building department shall do both of the following:
(1) File all recorded land use restrictions in the property files
of the city, county, or regional council of government.
(2) Require that any person requesting a land use which differs
from those filed land use restrictions on the property apply to the
department for a variance or a removal of the land use restrictions
pursuant to Section 25233 or 25234.
(e) A planning and building department of a city, county, or
regional council of governments may assess a property owner a
reasonable fee to cover the costs of taking the actions required by
subdivision (d). For purposes of this subdivision, "property owner"
does not include a person who holds evidence of ownership solely to
protect a security interest in the property, unless the person
participates, or has a legal right to participate, in the management
of the property.
(f) The department shall maintain a list of all recorded land use
restrictions, including deed restrictions, recorded pursuant to
Sections 25200, 25200.10, 25202.5, 25222.1, 25229, 25230, 25355.5,
and 25398.7. The list shall, at a minimum, provide the street
address, or, if a street address is not available, an equivalent
description of location for a rural location or the latitude and
longitude, of each property. The department shall update the list as
new deed restrictions are recorded. The department shall make the
list available to the public, upon request, and shall make the list
available on the department's Internet website. The list shall also
be incorporated into the list of sites compiled pursuant to Section
65962.5 of the Government Code.
25221. (a) Any person as owner, lessor, or lessee who (1) knows, or
has probable cause to believe, that a significant disposal of
hazardous waste has occurred on, under, or into the land which he or
she owns or leases or that the land is within 2,000 feet of a
significant disposal of hazardous waste, and (2) intends to construct
or allow the construction on that land of a building or structure to
be used for a purpose which is described in subdivision (b) of
Section 25232 within one year, shall apply to the department prior to
construction for a determination as to whether the land should be
designated a hazardous waste property or a border zone property
pursuant to Section 25229.
The addition of rooms or living space to an existing single-family
dwelling or other minor repairs or improvements to residential
property which do not change the use of the property or increase the
population density does not constitute the construction of a building
or structure for purposes of this subdivision.
(b) Any person who, as owner, lessor, or lessee, knows or has
probable cause to believe that land which he or she owns or leases is
a hazardous waste property or a border zone property, may apply to
the department for a determination as to whether the land should be
designated a hazardous waste property or a border zone property
pursuant to Section 25229.
(c) If a city or county knows or has probable cause to believe
that any land within its jurisdiction is a hazardous waste property
or a border zone property, the city or county may apply to the
department for a determination as to whether that land should be
designated a hazardous waste property or a border zone property
pursuant to Section 25229.
(d) Subdivisions (a), (b), and (c) do not apply to any land on
which a determination has previously been made pursuant to Section
25222.1 or 25229, unless either of the following has occurred since
that determination:
(1) A significant new disposal of hazardous waste has occurred on,
under, or into the land.
(2) Significant new information about past disposal of hazardous
waste on, or within 2,000 feet of, the land becomes known to the
owner, lessor, or lessee of the land or to the city or county.
25221.1. Whenever the department receives an application pursuant
to Section 25221, it may request information pursuant to Section
25220 to determine whether the land should be designated as hazardous
waste property or border zone property. Upon evaluating all
pertinent available information, the department may do any one or
more of the following:
(a) Issue a statement that, based on existing documents and other
information available to the department, there is no currently known
hazard.
(b) Recommend to local land use authorities that they place a
moratorium on any new land uses specified in paragraph (1) of
subdivision (a) of Section 25232, if the department suspects that the
land is hazardous waste property, or a moratorium on the
construction or placement of any building or structure which is
intended to be used for any of the purposes specified in paragraph
(1) of subdivision (b) of Section 25232, if the department suspects
that the land is border zone property.
(c) Collect additional information, including sampling,
monitoring, and analytical data for the purpose of making a
determination as to whether the land should be designated as
hazardous waste property or border zone property pursuant to Section
25229.
(d) Make a determination as to whether the land should be
designated as hazardous waste property or border zone property
pursuant to Section 25229.
(e) Enter into an agreement pursuant to Section 25222.1.
25222. (a) In any case where the department has obtained
information which shows that a significant disposal of hazardous
wastes has occurred on, under, or in land and that the disposal
creates a significant existing or potential hazard to present or
future public health or safety, the department may consider
designating the affected land as hazardous waste property or border
zone property.
Whenever the department considers designating land as a hazardous
waste property or a border zone property, it shall issue and cause to
be served upon the owner of the land, and the legislative body of
the city or county in whose jurisdiction the land is located, a
notice of a hearing. The notice shall contain (1) a statement that
the land is under consideration for designation as a hazardous waste
property or a border zone property; (2) a summary of the reasons for
that designation and what significant existing or potential health
hazards are believed to exist; (3) notice of the time, date, and
place of the hearing, and any policy regarding continuance of the
hearing; and (4) a form to acknowledge receipt of the notice.
(b) Service of the notice of hearing may be made in any manner
permitted for the service of summons in civil actions, or by mailing
a copy of the notice of hearing by first-class mail or airmail,
postage prepaid to the person to be served, together with two copies
of the notice of service and acknowledgment specified in subdivision
(d) and a return envelope, postage prepaid, addressed to the
department.
(c) The notice of service specified in subdivision (b) shall be in
substantially the following form:
NOTICE OF SERVICE
To: (Here state the name of the person to be served.)
The accompanying notice of hearing is served pursuant to Section
25222 of the California Health and Safety Code. Failure to complete
this form and return it to the sender within 20 days may subject you,
or the party on whose behalf you are being served, to liability for
the payment of any expenses incurred in serving the notice of hearing
upon you in any other manner permitted by law. If you are served on
behalf of a corporation, unincorporated association, including a
partnership, or other entity, this form must be signed in the name of
that entity by you or by a person authorized to receive service of
process on behalf of that entity. In all other cases, this form must
be signed by you personally or by a person authorized by you to
acknowledge receipt of summons. Section 25222 provides that the
accompanying notice of hearing is deemed served on the date of
execution of an acknowledgment of receipt of notice of hearing.
________________________________
(Signature of Sender)
ACKNOWLEDGMENT OF RECEIPT OF NOTICE OF HEARING
This acknowledges receipt on (insert date) of a copy of the notice
of hearing.
Date: ___________________________________________
(Date this acknowledgment is executed)
_________________________________
(Signature of person
acknowledging
receipt, with title if
acknowledgment is
made on behalf of another person)
(d) Service of a notice of hearing pursuant to this section is
deemed complete on the date a written acknowledgment of receipt of
notice is executed, if the acknowledgment thereafter is returned to
the department.
(e) If the person to whom a copy of the notice of hearing is
mailed pursuant to this section fails to complete and return the
acknowledgment form set forth in subdivision (b) within 20 days from
the date of that mailing, the party to whom the notice of hearing was
mailed is liable for reasonable expenses thereafter incurred in
serving or attempting to serve the party by any other method
permitted by this section. The department may bring a single action
to recover all of these expenses in any court of competent
jurisdiction and, except for good cause shown, the court upon motion,
with or without notice to that person, shall award the department
these expenses.
25222.1. (a) Notwithstanding Sections 25222, 25229, 25232, and
25233, any person may enter into an agreement with the department
regarding that person's property, or a portion thereof, which
provides for restricting specified uses of the property, as
determined by all parties to the agreement. Except as otherwise
provided in this article, the agreement is irrevocable and shall be
recorded by the owner, pursuant to paragraph (1) of subdivision (a)
of Section 25230, as a hazardous waste easement, covenant,
restriction, or servitude, or any combination thereof, as
appropriate, upon the present and future uses of the land. That
person shall bear all costs incurred in determining the specific land
use restrictions for that person's property, or a portion thereof
pursuant to this subdivision.
(b) By entering into this agreement with respect to a portion of a
property, the department is not precluded from taking action to
designate the remainder of the property as hazardous waste or border
zone property.
25223. Public notice of any hearing conducted pursuant to Section
25222, or of any agreement proposed to be entered into pursuant to
Section 25222.1, shall be provided by the department at least 30 days
before the hearing or execution of the agreement. The notice shall
be given by publication once in a newspaper of general circulation
published and circulated in the locale or, if there is none, by
posting the notice in at least three public places in the locale. In
the case of a proposed agreement, the department shall also give
notice to the city or county in whose jurisdiction the property is
located. Public comment on any proposed agreement pursuant to Section
25222.1 shall be submitted to the department in writing.
25224. The hearing shall be held before the director, or any agent
or agency designated by the director for that purpose, not less than
30 days or more than 90 days after the notice. The department may
delay the hearing upon request of any interested person.
25226. The persons served shall have the right to file a response
to the notice and to appear in person or otherwise and give testimony
at the place and time fixed in the notice. At the discretion of the
director, agent, or agency conducting the hearing, any interested
person may be allowed to intervene in the proceeding and to present
testimony. Any such proceeding shall, so far as practicable, be
conducted pursuant to the provisions of Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code. All proceedings shall be appropriately reported, and the
testimony taken shall be reduced to writing and filed with the
director. Thereafter, at his or her discretion, the director, upon
notice, may take further testimony or hear argument.
25227. Discovery for a hearing held pursuant to this article shall
be conducted as provided in Sections 11507.6, 11507.7, 11510, and
11511 of the Government Code.
25228. (a) With regard to designating land as a hazardous waste
property, the department shall have the burden of proving that
hazardous waste has been deposited on, under, or in the land and that
the hazardous waste creates a significant existing or potential
hazard to present or future public health or safety on the hazardous
waste property.
(b) With regard to designating land as a border zone property, the
department shall have the burden of proving that hazardous waste has
been deposited within 2,000 feet of the land and that the hazardous
waste creates a significant existing or potential hazard to present
or future public health or safety on the border zone property.
25229. (a) If, after the hearing, the director makes the decision
that the subject land should not be designated a hazardous waste
property or border zone property, the director shall issue that
decision in writing and serve it in the manner provided in
subdivision (c).
(b) If, after the hearing, the director makes the decision, upon a
preponderance of the evidence, including any evidence developed at
any time prior to the hearing, that the land should be designated a
hazardous waste property or a border zone property, the director
shall issue that decision in writing, which shall identify the
subject land, or portion thereof, by street address, assessor's
parcel number, or legal description and the name of the owner of
record, contain findings of fact based upon the issues presented,
including the reasons for this designation, the substances on, under,
or in the land, and the significant existing or potential hazards to
present or future public health and safety, and order every owner of
the designated land to take all of the following actions:
(1) Execute before a notary a written instrument which imposes an
easement, covenant, restriction, or servitude, or any combination
thereof, as appropriate, upon the present and future uses of the land
pursuant to Section 25230. The written instrument shall also include
a copy of the director's decision.
(2) Return the executed instrument to the director within 30 days
after the decision is delivered or mailed. Within 10 days after
receiving the instrument, the director shall execute the written
instrument and return the instrument to the owner.
(3) Record the written instrument pursuant to Section 25230 within
10 days after receiving the written instrument executed by the
director, as specified in paragraph (2).
(4) Return the recorded written instrument to the director within
10 days after the owner records the instrument, as specified in
paragraph (3).
(c) Copies of the determination shall be delivered or sent by
certified mail to the owner of the property, the legislative body of
the city or county in whose jurisdiction the land is located, and any
other persons who were served pursuant to Section 25222 or who were
permitted to intervene in the proceeding pursuant to Section 25226.
(d) Failure or refusal to comply with any order issued pursuant to
this section shall be treated in the manner provided by Article 12
(commencing with Section 11455.10) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code.
25230. (a) Upon a decision that the subject land shall be
designated as hazardous waste property or border zone property
pursuant to Section 25229, the director shall notify the owner of the
property and the legislative body of the city or county in whose
jurisdiction the land is located and any other persons who were
permitted to intervene in the proceeding, and shall issue orders to
every owner of the land requiring all of the following:
(1) The notarized execution and recordation of a written
instrument which imposes an easement, covenant, restriction, or
servitude, or combination thereof, as appropriate, upon the present
and future uses of all or part of the land which has been designated
a hazardous waste property or a border zone property as provided by
Section 25232, and which provides that removal of the easement,
covenant, restriction, or servitude, or any combination thereof, as
appropriate, shall be in accordance with Section 25234. The easement,
covenant, restriction, or servitude, or any combination thereof, as
appropriate, shall be executed by all the owners of the land and by
the director, shall particularly describe the real property affected
by the instrument, and, if applicable, the location of the easement,
covenant, restriction, or servitude, or any combination thereof, as
appropriate, on the real property. The easement, covenant,
restriction, or servitude, or any combination thereof, as
appropriate, shall be recorded with the recorder of the county in
which the land is located within 10 days after the instrument, as
executed by the director, is received by the owner and shall be
indexed by the county recorder in the grantor index in the name of
the record title owner of the real property and in the grantee index
in the name of the department. The easement, covenant, restriction,
or servitude, or any combination thereof, as appropriate, shall state
that the land described in the instrument is subject to a hazardous
waste easement, covenant, restriction, or servitude, or any
combination thereof, as appropriate. Notwithstanding any other
provision of law, an easement, covenant, restriction, or servitude,
or any combination thereof, as appropriate, executed pursuant to this
section shall run with the land from the date of recordation and
shall be binding upon all of the owners of the land, their heirs,
successors, and assignees, and the agents, employees, or lessees of
the owners, heirs, successors, and assignees, unless it is removed
pursuant to Section 25234. The easement, covenant, restriction, or
servitude, or any combination thereof, as appropriate, shall be
enforceable by the department pursuant to Article 8 (commencing with
Section 25180).
(2) The execution and delivery of a written instrument to
accompany all purchase, lease, or rental agreements relating to the
land which has been designated a hazardous waste property or a border
zone property. The instrument shall be prepared by the owner or
lessor of the land and shall contain the following statement:
"The land described herein contains hazardous waste or is within
2,000 feet of land that contains hazardous waste. This condition
renders the land and the owner, lessee, or other possessor of the
land subject to the requirements, restrictions, provisions, and
liabilities contained in Chapter 6.5 (commencing with Section 25100)
of Division 20 of the Health and Safety Code. This statement is not a
declaration that a hazard exists."
(b) In any case where the department has made reasonable efforts
to obtain execution of the easement, covenant, restriction, or
servitude, or any combination thereof, as appropriate, and the owner
or owners have failed or refused to execute it, the department may
apply to the court for an order imposing the easement, covenant,
restriction, or servitude, or any combination thereof, as
appropriate. The issued order shall be recorded in the same manner as
an executed instrument, as specified in paragraph (1) of subdivision
(a).
(c) Any hazardous waste easement, covenant, restriction, or
servitude, or any combination thereof, as appropriate, executed
pursuant to this section shall be exclusively for the purpose of
protecting the public health and safety and shall convey no interest
in real or other property to the state. Notwithstanding any other
provision of law, any easement, covenant, restriction, or servitude,
or any combination thereof, as appropriate, held by the department
shall not be sold or otherwise transferred to another person.
25231. A decision of the director made pursuant to Section 25229
shall be reviewable pursuant to Section 1094.5 of the Code of Civil
Procedure.
25232. (a) Except as provided in subdivision (c) of this section,
after the director has provided notice in compliance with Section
25222 and a hearing or decision regarding specific land is pending,
or after a hearing has been conducted and a decision has been made
pursuant to Section 25229 that land is a hazardous waste property,
then none of the following shall occur on the land without a specific
variance approved in writing by the department for the land use and
land in question:
(1) Any new use of the land, other than the use, modification, or
expansion of an existing industrial or manufacturing facility or
complex on land which is owned by, or held for the beneficial use of,
such facility or complex as of January 1, 1981, and which is a
hazardous waste property as defined in Section 25117.3.
(2) Subdivision of such land, as that term is used in Division 2
(commencing with Section 66410) of Title 7 of the Government Code,
except that this paragraph shall not prevent the division of a parcel
of land so as to divide that portion of the parcel which is
designated a hazardous waste property from other portions of such
parcel not so designated.
(b) Except as provided in subdivision (c) of this section, after
the director has provided notice in compliance with Section 25222 and
a hearing or decision regarding specific land is pending, or after a
hearing has been conducted and a decision has been made pursuant to
Section 25229 that land is a border zone property, then none of the
following shall occur on the land without a specific variance
approved in writing by the department for the land use and land in
question:
(1) Construction or placement of a building or structure on the
land which is intended for use as any of the following, or the new
use of an existing structure for the purpose of serving as any of the
following:
(A) A residence, including any mobilehome or factory built housing
constructed or installed for use as permanently occupied human
habitation, except that the addition of rooms or living space to an
existing single-family dwelling or other minor repairs or
improvements to residential property which do not change the use of
the property or increase the population density does not constitute
construction or placement of a building or structure for the purposes
of this paragraph.
(B) A hospital for humans.
(C) A school for persons under 21 years of age.
(D) A day care center for children.
(E) Any permanently occupied human habitation other than those
used for industrial purposes.
(2) Subdivision of such land, as that term is used in Division 2
(commencing with Section 66410) of Title 7 of the Government Code,
except that this paragraph shall not prevent the division of a parcel
of land so as to divide that portion of the parcel which is
designated a border zone property from other portions of such parcel
not so designated.
(c) This section shall not apply to a portion of a parcel of land
which is determined by the director to meet all of the following
requirements:
(1) The parcel has been previously classified as a class II-1
disposal site as defined in Section 2510 or 2511 of Title 23 of the
California Administrative Code.
(2) The portion of the parcel is physically isolated from the
remainder of the classified parcel by the construction of a freeway,
as defined in Section 332 of the Vehicle Code, which divides the
classified parcel.
(3) The portion of the parcel has not been used as a hazardous
waste disposal site.
(4) The portion of the parcel does not contain or overlie
hazardous waste.
25233. (a) Any aggrieved person may apply to the department for a
written variance from a land use restriction, including the
requirements set forth in subdivision (a) or (b) of Section 25232.
Any application shall contain sufficient evidence for the department
to issue a notice for a hearing. The notice shall contain both of the
following:
(1) A statement of all of the following that apply:
(A) Land use restrictions have been imposed on the land.
(B) A hearing is pending on the land.
(C) The land has been designated a hazardous waste property or
border zone property.
(2) A statement of who is applying for a variance, the proposed
variance, and a statement of the reasons in support of the granting
of a variance.
(b) The procedures for the conducting of the hearing specified in
subdivision (a) are those set forth in this article. No person shall
make a subsequent application pursuant to this section within 18
months of a final decision on an application by the department. A
person applying for a variance pursuant to this section shall pay the
department for all costs incurred by the department relating to the
application.
(c) The applicant shall have the burden of proving at the hearing
that the variance will not cause or allow any of the following
effects associated with hazardous waste or extremely hazardous waste:
(1) The creation or increase of significant present or future
hazards to public health.
(2) Any significant diminution of the ability to mitigate any
significant potential or actual hazard to public health.
(3) Any long-term increase in the number of humans or animals
exposed to significant hazards which affect the health, well-being,
or safety of the public.
(d) If, upon the preponderance of the testimony taken, the
director is of the opinion that the variance should be granted, the
director shall issue and cause to be served his or her decision and
findings of fact on the owner of the land, the legislative body of
the city or county in whose jurisdiction the land is located, and
upon any other persons who were permitted to intervene in the
proceedings. The findings of fact shall include the exact nature of
the proposed variance and the reasons in support of the granting of
the variance.
(e) If the director is of the opinion that the variance should not
be granted, the director shall issue and cause to be served his or
her findings of fact in support of the denial on the parties
mentioned in subdivision (c).
(f) The department shall record within 10 days any final decision
made by the director pursuant to this section as provided in Section
25235.
(g) A decision of the director made after a hearing held pursuant
to this section shall be reviewable pursuant to Section 1094.5 of the
Code of Civil Procedure and shall be upheld if the court finds that
it is supported by substantial evidence.
25234. (a) Any aggrieved person may apply to the department to
remove a land use restriction, including a designation that the land
is a hazardous waste property or a border zone property on the
grounds that the waste no longer creates a significant existing or
potential hazard to present or future public health or safety. No
person shall make a subsequent application pursuant to this section
within 12 months of a final decision on an application by the
department. A person applying to the department pursuant to this
section shall pay the department all costs incurred by the department
relating to the application. Any application shall contain
sufficient evidence for the department to make a finding upon any or
all of the following grounds:
(1) The hazardous waste which caused the land to be restricted or
designated has since been removed or altered in a manner which
precludes any significant existing or potential hazard to present or
future public health.
(2) New scientific evidence is available since the restriction or
designation of the land or the making of any previous application
pursuant to this section, concerning either of the following:
(A) The nature of the hazardous waste which caused the land to be
designated.
(B) The geology or other physical environmental characteristics of
the designated land.
(b) Any aggrieved person may appeal a determination of the
department made pursuant to subdivision (a) by submitting a request
for a hearing to the director. The request shall be mailed by
certified mail not later than 30 days after the date of the mailing
of the department's decision on the application.
(c) Upon receipt of a timely appeal, the director shall give
notice of a hearing pursuant to the procedures set forth in this
article.
(d) The department shall record within 10 days any new and final
determination made by the department pursuant to this section as
provided in Section 25235.
(e) A determination made by the department, after a hearing held
pursuant to this section, shall be reviewable pursuant to Section
1094.5 of the Code of Civil Procedure and shall be upheld if the
court finds that it is supported by substantial evidence.
(f) Whenever there is a final determination pursuant to this
section removing a land use restriction, including the designation of
a hazardous waste property or a border zone property, the easement,
covenant, restriction, or servitude imposed on the land created by
Section 25222.1, 25230, or 25355.5 shall automatically terminate. The
department shall record or cause to be recorded within 10 days a
termination of the easement, covenant, restriction, or servitude
which shall particularly describe the real property subject to the
easement, covenant, restriction, or servitude and which shall be
indexed by the recorder in the grantee index in the name of the
record title owner of the real property subject to the easement,
covenant, restriction, or servitude, and in the grantor index in the
name of the department.
25235. The department shall record within 10 days any final written
instrument made pursuant to Section 25222.1 or 25230 with the county
recorder of the county in which the property is located. Any
recordation made pursuant to this article or Section 25202.5 or
25355.5 shall include the street address, assessor's parcel number,
or legal description of each parcel affected and the name of the
owner thereof, and the recordation shall be recorded by the recorder
in the grantor index in the name of the record title owner of the
real property and in the grantee index in the name of the department.
25236. (a) Prior to, or simultaneously with, utilizing the
provisions of this article, the department shall diligently pursue
feasible civil and criminal actions against any operator or other
responsible party who violates any provision of this chapter or
Chapter 6.8 (commencing with Section 25300) and the regulations
promulgated under those chapters. However, nothing in this chapter
shall be construed as restricting or diminishing any remedy provided
by law to the owner or possessor of any land which is affected by
hazardous waste on or near the land against any person who produced
the waste or against any other person who was responsible for the
condition affecting the property.
(b) A designation by the department pursuant to Section 25230
shall constitute a land use restriction. Except as specifically
provided in this chapter, nothing in this chapter shall diminish or
limit the authority of any city or county to approve or disapprove
proposed land uses. Nothing in this chapter shall be construed to
require a local government to permit a particular land use,
including, but not limited to, commercial, industrial, agricultural,
or other nonresidential use, on land which has been designated
hazardous waste property or border zone property pursuant to Section
25230.
25237. If any provision of this article or the application thereof
to any person or circumstance is held invalid, such holding shall not
affect other provisions or applications of this article which can be
given effect without the invalid provision or application, and to
this end, the provisions of the article are severable.
25239. All costs associated with the administration of this article
by the department, including, but not limited to, costs incurred to
implement Section 25156 and 25220, shall be paid from the Hazardous
Waste Control Account in the General Fund.
25240. An assessor shall consider any restrictive easement,
covenant, restriction, or servitude adopted pursuant to Section
25202.5, 25222.1, or 25355.5 or any easement, covenant, restriction,
or servitude imposed pursuant to Section 25230 as an enforceable
easement, covenant, restriction, or servitude subject to Section
402.1 of the Revenue and Taxation Code and shall appropriately
reassess any land, the use of which has been so restricted, at the
lien date following the adoption or imposition of the easement,
covenant, restriction, or servitude.
25241. The provisions of this article shall not apply to hazardous
waste property as defined in paragraph (1) of subdivision (a) of
Section 25117.3. Such property shall be regulated by the department
pursuant to Section 25202.5 in order to protect the present and
future public health and safety from hazardous waste.
25220. (a) For purposes of this article, unless the context clearly
requires a different meaning:
(1) "Determination" means a decision by the department as to
whether land should be designated as hazardous waste property or
border zone property and which is reached after an analysis and an
evaluation of the information obtained by the department.
(2) "Designation" means imposition of the requirements specified
in Section 25230 after a determination, a public hearing, and a
decision by the director has occurred pursuant to Section 25229.
(b) Whenever there is reasonable cause for the department to
believe that any land may be a hazardous waste property or border
zone property, the department may, by certified mail, request any
person who owns, leases, or occupies the land, or any other person
who has information relating to the land, to provide any or all of
the following information:
(1) A description of the present use of the land.
(2) The types and volumes of hazardous waste or extremely
hazardous waste contained therein or thereon.
(3) The date or dates the hazardous waste or extremely hazardous
waste was deposited into or onto the land.
(4) A map or maps of the property which they own and which
contains or overlies hazardous waste or extremely hazardous waste,
drawn to a scale of not more than 200 feet to the inch, which shows
the area or areas where the hazardous waste or extremely hazardous
waste is contained or was deposited. The provision of a map pursuant
to this subdivision shall not be required if the respondent to the
request asserts in writing that the respondent has no knowledge or
insufficient knowledge of the existence or location of the wastes to
comply with this subdivision.
(5) Any other information which relates to the disposal of
hazardous waste on or within 2,000 feet of the property or the
potential for the migration of those wastes.
(c) Any person who is requested to provide information pursuant to
subdivision (b) shall submit the information to the department
within 90 calendar days of receipt of the request.
(d) The department shall notify the planning and building
department of each city, county, or regional council of governments
of any recorded land use restriction imposed pursuant to Section
25202.5, 25222.1, 25229, 25230, 25355.5, or 25398.7 within the
jurisdiction of the local agency. Upon receiving this notification,
the planning and building department shall do both of the following:
(1) File all recorded land use restrictions in the property files
of the city, county, or regional council of government.
(2) Require that any person requesting a land use which differs
from those filed land use restrictions on the property apply to the
department for a variance or a removal of the land use restrictions
pursuant to Section 25233 or 25234.
(e) A planning and building department of a city, county, or
regional council of governments may assess a property owner a
reasonable fee to cover the costs of taking the actions required by
subdivision (d). For purposes of this subdivision, "property owner"
does not include a person who holds evidence of ownership solely to
protect a security interest in the property, unless the person
participates, or has a legal right to participate, in the management
of the property.
(f) The department shall maintain a list of all recorded land use
restrictions, including deed restrictions, recorded pursuant to
Sections 25200, 25200.10, 25202.5, 25222.1, 25229, 25230, 25355.5,
and 25398.7. The list shall, at a minimum, provide the street
address, or, if a street address is not available, an equivalent
description of location for a rural location or the latitude and
longitude, of each property. The department shall update the list as
new deed restrictions are recorded. The department shall make the
list available to the public, upon request, and shall make the list
available on the department's Internet website. The list shall also
be incorporated into the list of sites compiled pursuant to Section
65962.5 of the Government Code.
25221. (a) Any person as owner, lessor, or lessee who (1) knows, or
has probable cause to believe, that a significant disposal of
hazardous waste has occurred on, under, or into the land which he or
she owns or leases or that the land is within 2,000 feet of a
significant disposal of hazardous waste, and (2) intends to construct
or allow the construction on that land of a building or structure to
be used for a purpose which is described in subdivision (b) of
Section 25232 within one year, shall apply to the department prior to
construction for a determination as to whether the land should be
designated a hazardous waste property or a border zone property
pursuant to Section 25229.
The addition of rooms or living space to an existing single-family
dwelling or other minor repairs or improvements to residential
property which do not change the use of the property or increase the
population density does not constitute the construction of a building
or structure for purposes of this subdivision.
(b) Any person who, as owner, lessor, or lessee, knows or has
probable cause to believe that land which he or she owns or leases is
a hazardous waste property or a border zone property, may apply to
the department for a determination as to whether the land should be
designated a hazardous waste property or a border zone property
pursuant to Section 25229.
(c) If a city or county knows or has probable cause to believe
that any land within its jurisdiction is a hazardous waste property
or a border zone property, the city or county may apply to the
department for a determination as to whether that land should be
designated a hazardous waste property or a border zone property
pursuant to Section 25229.
(d) Subdivisions (a), (b), and (c) do not apply to any land on
which a determination has previously been made pursuant to Section
25222.1 or 25229, unless either of the following has occurred since
that determination:
(1) A significant new disposal of hazardous waste has occurred on,
under, or into the land.
(2) Significant new information about past disposal of hazardous
waste on, or within 2,000 feet of, the land becomes known to the
owner, lessor, or lessee of the land or to the city or county.
25221.1. Whenever the department receives an application pursuant
to Section 25221, it may request information pursuant to Section
25220 to determine whether the land should be designated as hazardous
waste property or border zone property. Upon evaluating all
pertinent available information, the department may do any one or
more of the following:
(a) Issue a statement that, based on existing documents and other
information available to the department, there is no currently known
hazard.
(b) Recommend to local land use authorities that they place a
moratorium on any new land uses specified in paragraph (1) of
subdivision (a) of Section 25232, if the department suspects that the
land is hazardous waste property, or a moratorium on the
construction or placement of any building or structure which is
intended to be used for any of the purposes specified in paragraph
(1) of subdivision (b) of Section 25232, if the department suspects
that the land is border zone property.
(c) Collect additional information, including sampling,
monitoring, and analytical data for the purpose of making a
determination as to whether the land should be designated as
hazardous waste property or border zone property pursuant to Section
25229.
(d) Make a determination as to whether the land should be
designated as hazardous waste property or border zone property
pursuant to Section 25229.
(e) Enter into an agreement pursuant to Section 25222.1.
25222. (a) In any case where the department has obtained
information which shows that a significant disposal of hazardous
wastes has occurred on, under, or in land and that the disposal
creates a significant existing or potential hazard to present or
future public health or safety, the department may consider
designating the affected land as hazardous waste property or border
zone property.
Whenever the department considers designating land as a hazardous
waste property or a border zone property, it shall issue and cause to
be served upon the owner of the land, and the legislative body of
the city or county in whose jurisdiction the land is located, a
notice of a hearing. The notice shall contain (1) a statement that
the land is under consideration for designation as a hazardous waste
property or a border zone property; (2) a summary of the reasons for
that designation and what significant existing or potential health
hazards are believed to exist; (3) notice of the time, date, and
place of the hearing, and any policy regarding continuance of the
hearing; and (4) a form to acknowledge receipt of the notice.
(b) Service of the notice of hearing may be made in any manner
permitted for the service of summons in civil actions, or by mailing
a copy of the notice of hearing by first-class mail or airmail,
postage prepaid to the person to be served, together with two copies
of the notice of service and acknowledgment specified in subdivision
(d) and a return envelope, postage prepaid, addressed to the
department.
(c) The notice of service specified in subdivision (b) shall be in
substantially the following form:
NOTICE OF SERVICE
To: (Here state the name of the person to be served.)
The accompanying notice of hearing is served pursuant to Section
25222 of the California Health and Safety Code. Failure to complete
this form and return it to the sender within 20 days may subject you,
or the party on whose behalf you are being served, to liability for
the payment of any expenses incurred in serving the notice of hearing
upon you in any other manner permitted by law. If you are served on
behalf of a corporation, unincorporated association, including a
partnership, or other entity, this form must be signed in the name of
that entity by you or by a person authorized to receive service of
process on behalf of that entity. In all other cases, this form must
be signed by you personally or by a person authorized by you to
acknowledge receipt of summons. Section 25222 provides that the
accompanying notice of hearing is deemed served on the date of
execution of an acknowledgment of receipt of notice of hearing.
________________________________
(Signature of Sender)
ACKNOWLEDGMENT OF RECEIPT OF NOTICE OF HEARING
This acknowledges receipt on (insert date) of a copy of the notice
of hearing.
Date: ___________________________________________
(Date this acknowledgment is executed)
_________________________________
(Signature of person
acknowledging
receipt, with title if
acknowledgment is
made on behalf of another person)
(d) Service of a notice of hearing pursuant to this section is
deemed complete on the date a written acknowledgment of receipt of
notice is executed, if the acknowledgment thereafter is returned to
the department.
(e) If the person to whom a copy of the notice of hearing is
mailed pursuant to this section fails to complete and return the
acknowledgment form set forth in subdivision (b) within 20 days from
the date of that mailing, the party to whom the notice of hearing was
mailed is liable for reasonable expenses thereafter incurred in
serving or attempting to serve the party by any other method
permitted by this section. The department may bring a single action
to recover all of these expenses in any court of competent
jurisdiction and, except for good cause shown, the court upon motion,
with or without notice to that person, shall award the department
these expenses.
25222.1. (a) Notwithstanding Sections 25222, 25229, 25232, and
25233, any person may enter into an agreement with the department
regarding that person's property, or a portion thereof, which
provides for restricting specified uses of the property, as
determined by all parties to the agreement. Except as otherwise
provided in this article, the agreement is irrevocable and shall be
recorded by the owner, pursuant to paragraph (1) of subdivision (a)
of Section 25230, as a hazardous waste easement, covenant,
restriction, or servitude, or any combination thereof, as
appropriate, upon the present and future uses of the land. That
person shall bear all costs incurred in determining the specific land
use restrictions for that person's property, or a portion thereof
pursuant to this subdivision.
(b) By entering into this agreement with respect to a portion of a
property, the department is not precluded from taking action to
designate the remainder of the property as hazardous waste or border
zone property.
25223. Public notice of any hearing conducted pursuant to Section
25222, or of any agreement proposed to be entered into pursuant to
Section 25222.1, shall be provided by the department at least 30 days
before the hearing or execution of the agreement. The notice shall
be given by publication once in a newspaper of general circulation
published and circulated in the locale or, if there is none, by
posting the notice in at least three public places in the locale. In
the case of a proposed agreement, the department shall also give
notice to the city or county in whose jurisdiction the property is
located. Public comment on any proposed agreement pursuant to Section
25222.1 shall be submitted to the department in writing.
25224. The hearing shall be held before the director, or any agent
or agency designated by the director for that purpose, not less than
30 days or more than 90 days after the notice. The department may
delay the hearing upon request of any interested person.
25226. The persons served shall have the right to file a response
to the notice and to appear in person or otherwise and give testimony
at the place and time fixed in the notice. At the discretion of the
director, agent, or agency conducting the hearing, any interested
person may be allowed to intervene in the proceeding and to present
testimony. Any such proceeding shall, so far as practicable, be
conducted pursuant to the provisions of Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code. All proceedings shall be appropriately reported, and the
testimony taken shall be reduced to writing and filed with the
director. Thereafter, at his or her discretion, the director, upon
notice, may take further testimony or hear argument.
25227. Discovery for a hearing held pursuant to this article shall
be conducted as provided in Sections 11507.6, 11507.7, 11510, and
11511 of the Government Code.
25228. (a) With regard to designating land as a hazardous waste
property, the department shall have the burden of proving that
hazardous waste has been deposited on, under, or in the land and that
the hazardous waste creates a significant existing or potential
hazard to present or future public health or safety on the hazardous
waste property.
(b) With regard to designating land as a border zone property, the
department shall have the burden of proving that hazardous waste has
been deposited within 2,000 feet of the land and that the hazardous
waste creates a significant existing or potential hazard to present
or future public health or safety on the border zone property.
25229. (a) If, after the hearing, the director makes the decision
that the subject land should not be designated a hazardous waste
property or border zone property, the director shall issue that
decision in writing and serve it in the manner provided in
subdivision (c).
(b) If, after the hearing, the director makes the decision, upon a
preponderance of the evidence, including any evidence developed at
any time prior to the hearing, that the land should be designated a
hazardous waste property or a border zone property, the director
shall issue that decision in writing, which shall identify the
subject land, or portion thereof, by street address, assessor's
parcel number, or legal description and the name of the owner of
record, contain findings of fact based upon the issues presented,
including the reasons for this designation, the substances on, under,
or in the land, and the significant existing or potential hazards to
present or future public health and safety, and order every owner of
the designated land to take all of the following actions:
(1) Execute before a notary a written instrument which imposes an
easement, covenant, restriction, or servitude, or any combination
thereof, as appropriate, upon the present and future uses of the land
pursuant to Section 25230. The written instrument shall also include
a copy of the director's decision.
(2) Return the executed instrument to the director within 30 days
after the decision is delivered or mailed. Within 10 days after
receiving the instrument, the director shall execute the written
instrument and return the instrument to the owner.
(3) Record the written instrument pursuant to Section 25230 within
10 days after receiving the written instrument executed by the
director, as specified in paragraph (2).
(4) Return the recorded written instrument to the director within
10 days after the owner records the instrument, as specified in
paragraph (3).
(c) Copies of the determination shall be delivered or sent by
certified mail to the owner of the property, the legislative body of
the city or county in whose jurisdiction the land is located, and any
other persons who were served pursuant to Section 25222 or who were
permitted to intervene in the proceeding pursuant to Section 25226.
(d) Failure or refusal to comply with any order issued pursuant to
this section shall be treated in the manner provided by Article 12
(commencing with Section 11455.10) of Chapter 4.5 of Part 1 of
Division 3 of Title 2 of the Government Code.
25230. (a) Upon a decision that the subject land shall be
designated as hazardous waste property or border zone property
pursuant to Section 25229, the director shall notify the owner of the
property and the legislative body of the city or county in whose
jurisdiction the land is located and any other persons who were
permitted to intervene in the proceeding, and shall issue orders to
every owner of the land requiring all of the following:
(1) The notarized execution and recordation of a written
instrument which imposes an easement, covenant, restriction, or
servitude, or combination thereof, as appropriate, upon the present
and future uses of all or part of the land which has been designated
a hazardous waste property or a border zone property as provided by
Section 25232, and which provides that removal of the easement,
covenant, restriction, or servitude, or any combination thereof, as
appropriate, shall be in accordance with Section 25234. The easement,
covenant, restriction, or servitude, or any combination thereof, as
appropriate, shall be executed by all the owners of the land and by
the director, shall particularly describe the real property affected
by the instrument, and, if applicable, the location of the easement,
covenant, restriction, or servitude, or any combination thereof, as
appropriate, on the real property. The easement, covenant,
restriction, or servitude, or any combination thereof, as
appropriate, shall be recorded with the recorder of the county in
which the land is located within 10 days after the instrument, as
executed by the director, is received by the owner and shall be
indexed by the county recorder in the grantor index in the name of
the record title owner of the real property and in the grantee index
in the name of the department. The easement, covenant, restriction,
or servitude, or any combination thereof, as appropriate, shall state
that the land described in the instrument is subject to a hazardous
waste easement, covenant, restriction, or servitude, or any
combination thereof, as appropriate. Notwithstanding any other
provision of law, an easement, covenant, restriction, or servitude,
or any combination thereof, as appropriate, executed pursuant to this
section shall run with the land from the date of recordation and
shall be binding upon all of the owners of the land, their heirs,
successors, and assignees, and the agents, employees, or lessees of
the owners, heirs, successors, and assignees, unless it is removed
pursuant to Section 25234. The easement, covenant, restriction, or
servitude, or any combination thereof, as appropriate, shall be
enforceable by the department pursuant to Article 8 (commencing with
Section 25180).
(2) The execution and delivery of a written instrument to
accompany all purchase, lease, or rental agreements relating to the
land which has been designated a hazardous waste property or a border
zone property. The instrument shall be prepared by the owner or
lessor of the land and shall contain the following statement:
"The land described herein contains hazardous waste or is within
2,000 feet of land that contains hazardous waste. This condition
renders the land and the owner, lessee, or other possessor of the
land subject to the requirements, restrictions, provisions, and
liabilities contained in Chapter 6.5 (commencing with Section 25100)
of Division 20 of the Health and Safety Code. This statement is not a
declaration that a hazard exists."
(b) In any case where the department has made reasonable efforts
to obtain execution of the easement, covenant, restriction, or
servitude, or any combination thereof, as appropriate, and the owner
or owners have failed or refused to execute it, the department may
apply to the court for an order imposing the easement, covenant,
restriction, or servitude, or any combination thereof, as
appropriate. The issued order shall be recorded in the same manner as
an executed instrument, as specified in paragraph (1) of subdivision
(a).
(c) Any hazardous waste easement, covenant, restriction, or
servitude, or any combination thereof, as appropriate, executed
pursuant to this section shall be exclusively for the purpose of
protecting the public health and safety and shall convey no interest
in real or other property to the state. Notwithstanding any other
provision of law, any easement, covenant, restriction, or servitude,
or any combination thereof, as appropriate, held by the department
shall not be sold or otherwise transferred to another person.
25231. A decision of the director made pursuant to Section 25229
shall be reviewable pursuant to Section 1094.5 of the Code of Civil
Procedure.
25232. (a) Except as provided in subdivision (c) of this section,
after the director has provided notice in compliance with Section
25222 and a hearing or decision regarding specific land is pending,
or after a hearing has been conducted and a decision has been made
pursuant to Section 25229 that land is a hazardous waste property,
then none of the following shall occur on the land without a specific
variance approved in writing by the department for the land use and
land in question:
(1) Any new use of the land, other than the use, modification, or
expansion of an existing industrial or manufacturing facility or
complex on land which is owned by, or held for the beneficial use of,
such facility or complex as of January 1, 1981, and which is a
hazardous waste property as defined in Section 25117.3.
(2) Subdivision of such land, as that term is used in Division 2
(commencing with Section 66410) of Title 7 of the Government Code,
except that this paragraph shall not prevent the division of a parcel
of land so as to divide that portion of the parcel which is
designated a hazardous waste property from other portions of such
parcel not so designated.
(b) Except as provided in subdivision (c) of this section, after
the director has provided notice in compliance with Section 25222 and
a hearing or decision regarding specific land is pending, or after a
hearing has been conducted and a decision has been made pursuant to
Section 25229 that land is a border zone property, then none of the
following shall occur on the land without a specific variance
approved in writing by the department for the land use and land in
question:
(1) Construction or placement of a building or structure on the
land which is intended for use as any of the following, or the new
use of an existing structure for the purpose of serving as any of the
following:
(A) A residence, including any mobilehome or factory built housing
constructed or installed for use as permanently occupied human
habitation, except that the addition of rooms or living space to an
existing single-family dwelling or other minor repairs or
improvements to residential property which do not change the use of
the property or increase the population density does not constitute
construction or placement of a building or structure for the purposes
of this paragraph.
(B) A hospital for humans.
(C) A school for persons under 21 years of age.
(D) A day care center for children.
(E) Any permanently occupied human habitation other than those
used for industrial purposes.
(2) Subdivision of such land, as that term is used in Division 2
(commencing with Section 66410) of Title 7 of the Government Code,
except that this paragraph shall not prevent the division of a parcel
of land so as to divide that portion of the parcel which is
designated a border zone property from other portions of such parcel
not so designated.
(c) This section shall not apply to a portion of a parcel of land
which is determined by the director to meet all of the following
requirements:
(1) The parcel has been previously classified as a class II-1
disposal site as defined in Section 2510 or 2511 of Title 23 of the
California Administrative Code.
(2) The portion of the parcel is physically isolated from the
remainder of the classified parcel by the construction of a freeway,
as defined in Section 332 of the Vehicle Code, which divides the
classified parcel.
(3) The portion of the parcel has not been used as a hazardous
waste disposal site.
(4) The portion of the parcel does not contain or overlie
hazardous waste.
25233. (a) Any aggrieved person may apply to the department for a
written variance from a land use restriction, including the
requirements set forth in subdivision (a) or (b) of Section 25232.
Any application shall contain sufficient evidence for the department
to issue a notice for a hearing. The notice shall contain both of the
following:
(1) A statement of all of the following that apply:
(A) Land use restrictions have been imposed on the land.
(B) A hearing is pending on the land.
(C) The land has been designated a hazardous waste property or
border zone property.
(2) A statement of who is applying for a variance, the proposed
variance, and a statement of the reasons in support of the granting
of a variance.
(b) The procedures for the conducting of the hearing specified in
subdivision (a) are those set forth in this article. No person shall
make a subsequent application pursuant to this section within 18
months of a final decision on an application by the department. A
person applying for a variance pursuant to this section shall pay the
department for all costs incurred by the department relating to the
application.
(c) The applicant shall have the burden of proving at the hearing
that the variance will not cause or allow any of the following
effects associated with hazardous waste or extremely hazardous waste:
(1) The creation or increase of significant present or future
hazards to public health.
(2) Any significant diminution of the ability to mitigate any
significant potential or actual hazard to public health.
(3) Any long-term increase in the number of humans or animals
exposed to significant hazards which affect the health, well-being,
or safety of the public.
(d) If, upon the preponderance of the testimony taken, the
director is of the opinion that the variance should be granted, the
director shall issue and cause to be served his or her decision and
findings of fact on the owner of the land, the legislative body of
the city or county in whose jurisdiction the land is located, and
upon any other persons who were permitted to intervene in the
proceedings. The findings of fact shall include the exact nature of
the proposed variance and the reasons in support of the granting of
the variance.
(e) If the director is of the opinion that the variance should not
be granted, the director shall issue and cause to be served his or
her findings of fact in support of the denial on the parties
mentioned in subdivision (c).
(f) The department shall record within 10 days any final decision
made by the director pursuant to this section as provided in Section
25235.
(g) A decision of the director made after a hearing held pursuant
to this section shall be reviewable pursuant to Section 1094.5 of the
Code of Civil Procedure and shall be upheld if the court finds that
it is supported by substantial evidence.
25234. (a) Any aggrieved person may apply to the department to
remove a land use restriction, including a designation that the land
is a hazardous waste property or a border zone property on the
grounds that the waste no longer creates a significant existing or
potential hazard to present or future public health or safety. No
person shall make a subsequent application pursuant to this section
within 12 months of a final decision on an application by the
department. A person applying to the department pursuant to this
section shall pay the department all costs incurred by the department
relating to the application. Any application shall contain
sufficient evidence for the department to make a finding upon any or
all of the following grounds:
(1) The hazardous waste which caused the land to be restricted or
designated has since been removed or altered in a manner which
precludes any significant existing or potential hazard to present or
future public health.
(2) New scientific evidence is available since the restriction or
designation of the land or the making of any previous application
pursuant to this section, concerning either of the following:
(A) The nature of the hazardous waste which caused the land to be
designated.
(B) The geology or other physical environmental characteristics of
the designated land.
(b) Any aggrieved person may appeal a determination of the
department made pursuant to subdivision (a) by submitting a request
for a hearing to the director. The request shall be mailed by
certified mail not later than 30 days after the date of the mailing
of the department's decision on the application.
(c) Upon receipt of a timely appeal, the director shall give
notice of a hearing pursuant to the procedures set forth in this
article.
(d) The department shall record within 10 days any new and final
determination made by the department pursuant to this section as
provided in Section 25235.
(e) A determination made by the department, after a hearing held
pursuant to this section, shall be reviewable pursuant to Section
1094.5 of the Code of Civil Procedure and shall be upheld if the
court finds that it is supported by substantial evidence.
(f) Whenever there is a final determination pursuant to this
section removing a land use restriction, including the designation of
a hazardous waste property or a border zone property, the easement,
covenant, restriction, or servitude imposed on the land created by
Section 25222.1, 25230, or 25355.5 shall automatically terminate. The
department shall record or cause to be recorded within 10 days a
termination of the easement, covenant, restriction, or servitude
which shall particularly describe the real property subject to the
easement, covenant, restriction, or servitude and which shall be
indexed by the recorder in the grantee index in the name of the
record title owner of the real property subject to the easement,
covenant, restriction, or servitude, and in the grantor index in the
name of the department.
25235. The department shall record within 10 days any final written
instrument made pursuant to Section 25222.1 or 25230 with the county
recorder of the county in which the property is located. Any
recordation made pursuant to this article or Section 25202.5 or
25355.5 shall include the street address, assessor's parcel number,
or legal description of each parcel affected and the name of the
owner thereof, and the recordation shall be recorded by the recorder
in the grantor index in the name of the record title owner of the
real property and in the grantee index in the name of the department.
25236. (a) Prior to, or simultaneously with, utilizing the
provisions of this article, the department shall diligently pursue
feasible civil and criminal actions against any operator or other
responsible party who violates any provision of this chapter or
Chapter 6.8 (commencing with Section 25300) and the regulations
promulgated under those chapters. However, nothing in this chapter
shall be construed as restricting or diminishing any remedy provided
by law to the owner or possessor of any land which is affected by
hazardous waste on or near the land against any person who produced
the waste or against any other person who was responsible for the
condition affecting the property.
(b) A designation by the department pursuant to Section 25230
shall constitute a land use restriction. Except as specifically
provided in this chapter, nothing in this chapter shall diminish or
limit the authority of any city or county to approve or disapprove
proposed land uses. Nothing in this chapter shall be construed to
require a local government to permit a particular land use,
including, but not limited to, commercial, industrial, agricultural,
or other nonresidential use, on land which has been designated
hazardous waste property or border zone property pursuant to Section
25230.
25237. If any provision of this article or the application thereof
to any person or circumstance is held invalid, such holding shall not
affect other provisions or applications of this article which can be
given effect without the invalid provision or application, and to
this end, the provisions of the article are severable.
25239. All costs associated with the administration of this article
by the department, including, but not limited to, costs incurred to
implement Section 25156 and 25220, shall be paid from the Hazardous
Waste Control Account in the General Fund.
25240. An assessor shall consider any restrictive easement,
covenant, restriction, or servitude adopted pursuant to Section
25202.5, 25222.1, or 25355.5 or any easement, covenant, restriction,
or servitude imposed pursuant to Section 25230 as an enforceable
easement, covenant, restriction, or servitude subject to Section
402.1 of the Revenue and Taxation Code and shall appropriately
reassess any land, the use of which has been so restricted, at the
lien date following the adoption or imposition of the easement,
covenant, restriction, or servitude.
25241. The provisions of this article shall not apply to hazardous
waste property as defined in paragraph (1) of subdivision (a) of
Section 25117.3. Such property shall be regulated by the department
pursuant to Section 25202.5 in order to protect the present and
future public health and safety from hazardous waste.
