SECTIONS 25395.90-25395.101

25395.90.  (a) Except as otherwise expressly provided in thisarticle, the definitions in Article 2 (commencing with Section25395.63) apply to the terms used in this article. (b) "Action level" has the same meaning as defined in paragraph(1) of subdivision (c) of Section 116455. (c) "Host jurisdiction" means the city or county in which the siteis located and which has the authority to take action regarding thesite pursuant to Title 7 (commencing with Section 65000) of theGovernment Code. (d) "Unreasonable risk" at a site means that a condition at a siterequires a response action pursuant to Chapter 6.8 (commencing withSection 25300) of this code or Division 7 (commencing with Section13000) of the Water Code.25395.91.  (a) Only the following are eligible to enter into anagreement pursuant to this article: (1) A bona fide purchaser, innocent landowner, or contiguousproperty owner who meets the requirements specified in Section25395.80. (2) A prospective purchaser who is in contract to acquire a sitethrough a purchase agreement, option agreement, or otherwise, andsatisfies the requirements of Section 25395.69, except for anyprovision that requires current ownership of the site. However, aprospective purchaser who enters into an agreement pursuant to thisarticle shall not receive the immunities provided in Section 25395.81until the time that the prospective purchaser acquires the site. (b) An agreement entered under this article is not subject toChapter 2 (commencing with Section 10290) of Part 2 of Division 2 ofthe Public Contract Code, including, but not limited to, Section10295 of the Public Contract Code.25395.92.  (a) A bona fide purchaser, innocent landowner, orcontiguous property owner who seeks to qualify for the immunityprovided by this chapter shall enter into an agreement with an agencypursuant to this article that includes the performance of a siteassessment, and, if the agency determines that a response plan isnecessary pursuant to Section 25395.96, the preparation andimplementation of a response plan. (b) Before finalizing the agreement, the requested agency shallnotify other appropriate agencies, including the host jurisdiction. (c) A person who enters into an agreement with an agency pursuantto this section shall submit sufficient information to the agency forthe agency to determine whether the site is an eligible site,whether the person meets the conditions to qualify as a bona fidepurchaser, innocent landowner, or contiguous property owner pursuantto this chapter, and to prepare an agreement pursuant to thissection. (d) (1) A person who enters into an agreement pursuant to thissection shall agree to take all actions required for a responseaction pursuant to Chapter 6.8 (commencing with Section 25300) andDivision 7 (commencing with Section 13000) of the Water Code. Theseactions may include actions necessary to prevent an unreasonable riskbefore the approval of a response plan. (2) In determining whether there is unreasonable risk at a sitefor purposes of this subdivision, the agency shall take into accountthe intended use of the property, in accordance with any changed useof the property, as specified in subdivision (d) of Section 25395.96.25395.93.  (a) A person may withdraw from an agreement entered intopursuant to this article by providing a 30-day written notice to theagency and doing both of the following: (1) Reimbursing the agency for all costs incurred by the agencypursuant to the agreement. (2) Demonstrating to the satisfaction of the agency thatconditions at the site to which the agreement applies do not pose anendangerment to public health and safety or the environment. If theagency determines that conditions at the site pose an endangerment topublic health, safety, or the environment, this article does notprevent the agency from exercising its authority to take appropriateresponse actions or to cause the person or persons responsible forthe endangerment to take appropriate response actions. (b) A person who enters into an agreement with an agency pursuantto this article shall reimburse the agency for all agency costs,including, but not limited to, costs incurred while reviewing a siteassessment plan or a response plan or overseeing the implementationof a site assessment or response plan by the person pursuant to thisarticle, except that the department's costs shall be reimbursedpursuant to Chapter 6.66 (commencing with Section 25269) and shall berecoverable pursuant to Section 25360. (c) The entry into an agreement pursuant to this article shall notconstitute an admission of fact or liability or conclusion of lawfor any purpose or proceeding and a person who enters into anagreement under this article shall not be deemed liable under anyother provision of law solely by reason of entering into thatagreement. (d) If the conditions described in paragraph (1) of subdivision(c) of Section 25395.81 or in subdivision (d) of Section 25395.81occur, an agency may withdraw from an agreement entered into pursuantto this chapter by providing a 30-day written notice to the otherparty.25395.94.  (a) (1) A person who enters into an agreement pursuant tothis article with an agency for the oversight of a site assessmentshall submit a site assessment plan to the agency to conduct a siteassessment of the site in accordance with the requirements of thissection. (2) If the agency requires a health risk assessment as part ofthat agreement, the health assessment shall be prepared in accordancewith subdivisions (b), (c), and (d) of Section 25356.1.5. (b) The site assessment plan shall provide for the evaluation ofall of the following: (1) Whether a release of hazardous materials has occurred at thesite, a threat of a release of hazardous materials exists at thesite, or there is a threat of a release of hazardous materials fromthe site. (2) If a release or threatened release of hazardous materialsexists at the site or there is a release or a threatened release fromthe site, whether the release or threatened release poses anunreasonable risk to public health and safety or the environment. (c) The site assessment plan shall also include all of thefollowing: (1) Adequate characterization of the hazardous materials releasedor threatened to be released at, or from, the site and documentationof the findings. (2) Reasonably available information about the site, including,where appropriate, a risk assessment that evaluates the risk posed byany hazardous materials released or threatened to be released at, orfrom, the site, and information regarding reasonably anticipatedforeseeable uses of the site based on current and projected land useand zoning designations. (3) If the release has impacted groundwater, reasonablecharacterization of underlying groundwater, including present andanticipated beneficial uses of that water. (d) A person shall submit the site assessment plan to the agencyfor review and approval. (e) The agency shall evaluate the adequacy of the site assessmentplan to ensure that it contains all necessary information. (f) After evaluating the site assessment plan, if the agency findsthat the site assessment plan is adequate, the agency shall approvethe site assessment plan and provide notification to appropriatepersons, including notification of any public water system thatrelies on impacted groundwater for public drinking water purposes.25395.95.  (a) After implementation of the site assessment plan, theperson shall submit to the agency a report of the findings madepursuant to the plan. Based upon a review of this information, theagency shall determine whether a response action is necessary toaddress any unreasonable risk from hazardous materials at the site. (b) If the agency determines that there is no unreasonable risk atthe site and that there are no hazardous materials at the site atlevels that are not suitable for unrestricted use of the site, theagency shall make a finding that no further action is necessary atthe site. (c) If the agency determines that there are hazardous materials atthe site at levels that are not suitable for unrestricted use, butthat are suitable for the reasonably anticipated foreseeable use ofthe site based on current and projected land use and zoningdesignations, the agency shall find that no further action isnecessary at the site except that a land use control that imposesappropriate restrictions pursuant to Section 25395.99 shall beexecuted and recorded and the public comment and participationrequirements of Section 25395.96 shall be met before the executionand recording of any land use control. On or before 15 days after thedate when the land use control is recorded pursuant to Section25395.99, the agency shall state in writing that this act constitutes"appropriate care" for the purposes of Section 25395.67.25395.96.  (a) If, upon review of the site assessment preparedpursuant to this article, the agency determines that a responseaction is necessary to prevent or eliminate an unreasonable risk, thebona fide purchaser, innocent landowner, or contiguous propertyowner shall submit a response plan to the agency to conduct aresponse action at the site, in conformance with the agreemententered into pursuant to Section 25395.92. The response plan shallinclude all of the following: (1) The response plan shall provide for an opportunity for thepublic, other agencies, and the host jurisdiction to participate indecisions regarding the response action, taking into considerationthe nature of the community interest, and shall include all of thefollowing: (A) Thirty days before taking action pursuant to the responseplan, the agency shall take all of the following actions: (i)  Notify all other appropriate governmental entities and localagencies, including, but not limited to, the department, the regionalboard, or a redevelopment agency, that is not a party to theresponse plan regarding the proposed response plan. (ii) Place a notice in a newspaper of general circulation, in thearea of the site, including, but not limited to, a community-basednewspaper, as appropriate. (iii) Post notice of the proposed response plan on the site. (B) All of the following methods for public participation shall beincluded in the response plan: (i) Thirty days' prior public notice in a factsheet format of theproposed response plan, in English and in any other language commonlyspoken in the area of the site. (ii) Access, at both the agency and at local repositories, to theproposed response plan, site assessment, addenda, and any othersupporting documentation, including materials listed as references inthe response plan and site assessment. (iii) Procedures for providing a reasonable opportunity to commenton the plan and related documents specified in clause (ii). (iv) If a public meeting is requested, the holding of a publicmeeting by the agency in the area to receive comments. (v) The agency's consideration of any comments received beforetaking any action regarding the response plan. (C) The response plan may also provide for, but is not limited to,proposing the use of other methods for public participation,including the use of public notices, direct notification ofinterested parties, electronic copies of the response plan, siteassessment addenda, and other supporting documentation, includingmaterials listed as references in the response plan and siteassessment, electronic comment forms, forming advisory groups, asappropriate, to disseminate information and assist the agency ingathering public input, additional public meetings or publichearings, and an opportunity to comment on the proposed response planprior to approval. (D) The agency, as part of its communications with affectedcommunities, shall provide information regarding the process by whichdecisions about the site are made and the recourse that is availablefor those who may disagree with an agency decision. (E) The agency shall consider the issue of environmental justice,as defined in subdivision (e) of Section 65040.12 of the GovernmentCode, for communities most impacted, including low-income and racialminority populations before taking action on the response plan. (F) To the extent possible, the agency shall coordinate its publicparticipation activities with those undertaken by the hostjurisdiction and other agencies associated with the development ofthe property, to avoid duplication to the extent feasible. (G) It is the intent of the Legislature that the publicparticipation process established pursuant to this paragraph ensuresfull and robust participation of a community affected by thischapter. (2) Identification of the release or threatened release that isthe subject of the response plan and documentation that the plan isbased on an adequate characterization of the site. (3) An identification of the response plan objectives and theproposed remedy, and an identification of the reasonably anticipatedfuture land uses of the site and of the current and projected landuse and zoning designations. This identification shall includeconfirmation by the host jurisdiction that the anticipated futureland uses and current and projected land uses and zoning designationsare accurate. (4) A description of activities that will be implemented tocontrol any endangerment that may occur during the response action atthe site. (5) A description of any land use control that is part of theresponse action. (6) A description of wastes other than hazardous materials at thesite and how they will be managed in conjunction with the responseaction. (7) Provisions for the removal of containment or storage vesselsand other sources of contamination, including soils and free product,that cause an unreasonable risk. (8) Provisions for the agency to require further response actionsbased on the discovery of hazardous materials that pose anunreasonable risk to human health and safety or the environment thatare discovered during the course of the response action or subsequentdevelopment of the site. (9) Any other information that the agency determines is necessary. (b) The agency shall evaluate the adequacy of the plan submittedpursuant to subdivision (a) and shall approve the plan if the agencymakes all of the following findings: (1) The plan contains the information required by subdivision (a). (2) When implemented, the plan will place the site in a conditionthat allows it to be used for its reasonably anticipated future landuse without unreasonable risk to human health and safety and theenvironment. (3) The plan addresses any public comments. (4) If applicable, the plan provides for long-term operation andmaintenance, including land use and engineering controls, that arepart of the remedy contained in the response plan. (c) (1) On or before 60 days after the date an agency receives aresponse plan, the agency shall make a written determination thatproper completion of the response plan constitutes "appropriate care"for purposes of subdivision (a) of Section 25395.67. (2) Upon approval of the response plan by the agency, the agencyshall notify all appropriate persons, including the hostjurisdiction. (d) If the use of the property changes, after a response plan isapproved, to a use that requires a higher level of protection, theagency may require the preparation and implementation of a newresponse plan pursuant to this article. (e) The owner of a site shall not make any change in use of a siteinconsistent with any land use control recorded for the site, unlessthe change is approved by the agency in accordance with subdivision(f) of Section 25395.99.25395.97.  (a) Except as provided in Section 25395.99, the agencyshall issue a certificate of completion upon determining that allresponse actions have been satisfactorily completed in accordancewith an approved response plan. (b) Notwithstanding subdivision (a), the agency shall issue acertificate of completion when a response action plan includeslong-term obligations that have not been completed, includingoperation and maintenance requirements or monitoring, only if theagency makes all of the following determinations: (1) All response actions, other than long-term operation andmaintenance at the site, have been completed. (2) The person has submitted an adequate long-term operation andmaintenance plan and has demonstrated initial compliance. (c) If the agency determines that long-term operation andmaintenance is required at a site, the agency may, as a condition ofissuing a certificate of completion, enter into an operation andmaintenance agreement with the person that governs the long-termoperation and maintenance activities and that provides for adequatefinancial assurance.25395.98.  A person who acquires a property from an innocentlandowner, bona fide purchaser, or contiguous property owner, and theproperty was previously issued a certificate of completion or nofurther action determination, may qualify as a bona fide prospectivepurchaser or contiguous property owner by demonstrating to the agencythat the person meets all of the qualifying conditions of Section25395.80 and either Section 25395.69 or 25395.70, as applicable.25395.99.  (a) A response plan may require the use of a land usecontrol that imposes appropriate conditions, restrictions, andobligations on land use or activities, if, after completion of theremoval and remedial actions specified in the response plan,hazardous materials remain at the site at a level that is notsuitable for the unrestricted use of the site. (b) Except as provided in subdivision (c), if the agency approvesa response plan that requires the use of a land use control, the landuse control shall be executed by the landowner and recorded by thelandowner in the office of the county recorder in each county inwhich all, or a portion of, the land is located within 10 days of thedate of execution. (c) An agency shall not issue a certificate of completion to aperson who submits a response plan that is approved by the agency andthat requires the use of a land use control, until the agencyreceives a certified copy of the recorded land use control. If thesite that requires the land use control does not have an owner, orthe agency determines the owner is incapable of executing a land usecontrol in accordance with this section, the agency may record in thecounty records a "Notice of Land Use Restriction" that has the sameeffect as any other land use control executed pursuant to thissection, and that is subject to the variance and terminationprocedures specified in subdivision (f). (d) Notwithstanding any other provision of law, a land use controlthat is executed pursuant to this section and that is recorded so asto provide constructive notice shall run with the land from the dateof recordation, is binding upon all of the owners of the land, andtheir heirs, successors and assignees, and the agents, employees, orlessees of the owners, heirs, successors and assignees, and isenforceable pursuant to Article 8 (commencing with Section 25180) ofChapter 6.5. (e) Notwithstanding any other provision of law, a land use controlexecuted pursuant to this section is subject to Section 57012. (f) A land use control imposed pursuant to this section is subjectto the variance and removal procedures specified in Sections 25233and 25234.25395.100.  To the extent consistent with the Resource Conservationand Recovery Act of 1976, as amended, (42 U.S.C. Sec. 6901 et seq.),the department may exclude any portion of a response action conductedentirely onsite from the hazardous waste facilities permitrequirements of Sections 25200.3, 25201, and 25201.6, if both of thefollowing apply: (a) The response action is carried out pursuant to an approvedresponse plan. (b) The response plan specifies that the response action will beconducted in compliance with the standards, requirements, criteria,or limitations applicable to the construction, operation, and closureof the type of facility at the site, as necessary to prevent anunreasonable risk to public health and safety or the environment andany other condition imposed by the agency.25395.101.  (a) Except as expressly provided in this article, thisarticle does not affect the authority of an agency to issue an orderor take any other action under any provision of law to protect publichealth and safety or the environment. (b) Except as otherwise expressly provided in this article, thisarticle does not affect the authority of the agency or any otherpublic agency to pursue any existing legal, equitable, oradministrative remedies pursuant to state or federal law. (c) Except as otherwise expressly provided in this article,Chapter 6.8 (commencing with Section 25300) does not apply to thisarticle. (d) If a local agency determines that, due to an emergency, it isnecessary to gain access to a site that is the subject of a findingof no further action or a certificate of completion, the person whohas obtained immunity pursuant to this chapter with regard to thatsite shall allow the local agency access to the site to take anyaction necessary to mitigate that emergency, or take any othernecessary response action. However, that person shall not be requiredto pay for, or undertake, any of those actions taken by or requiredby the local agency, unless the person caused or contributed to therelease at the site that constituted the emergency.