850. The definitions set forth in Section 25260 of the Health and
Safety Code govern the construction of this chapter. In addition, the
following definitions apply for purposes of this chapter only:
(a) "Actual awareness" means actual knowledge of a fact pertaining
to an obligation under this chapter, including actual knowledge of a
release exceeding the notification threshold. Only actual awareness
possessed by those employees or representatives of an owner of a site
who are responsible for monitoring, responding to or otherwise
addressing the release shall be attributable to the owner. Only
actual awareness possessed by those employees or representatives of a
potentially responsible party who are responsible for monitoring,
responding to, or otherwise addressing, the release shall be
attributable to the potentially responsible party.
(b) "Commitment statement" means a written statement executed by
the notice recipient which recites expressly the language specified
in Section 854.
(c) "Mediation" means an informal process in which the disputing
parties select a neutral third party to assist them in reaching a
negotiated settlement in which the neutral third party has no power
to impose a solution on the parties, but rather has the power only to
assist the parties in shaping solutions to meet their interests and
objectives.
(d) "Negative response" means a written response by the recipient
of a notice of potential liability indicating that the recipient will
not undertake any response action, or a deemed negative response
pursuant to subdivision (c) of Section 851 in the event of the
recipient's failure to respond.
(e) "Neutral third party" means an experienced professional, such
as an attorney, engineer, environmentalist, hydrologist, or retired
judge, who has served as a mediator.
(f) "Notice of potential liability" means a notice, sent by the
owner of the site, stating that a release that exceeds the
notification threshold has occurred at the site and that the owner
believes that the recipient of the notice is a responsible party with
respect to the release. The notice of potential liability shall
describe the location of the site and the nature of the release.
(g) "Notice recipient" means any one of the following:
(1) A person who receives a notice of potential liability pursuant
to subdivision (a) of Section 851.
(2) A person who provides a release report pursuant to subdivision
(b) of Section 851.
(3) A person who offers a commitment statement to the owner of a
site pursuant to subdivision (c) of Section 851.
(h) "Notification threshold" means any release of such a magnitude
that:
(1) The release is the subject of a response action which has been
ordered by, or is being performed by, an oversight agency; or
(2) The release is impeding the ability of the owner of the site
to sell, lease, or otherwise use the site.
(i) "Operation and maintenance" means any activity as defined in
subdivision (a) of Section 25318.5 of the Health and Safety Code.
(j) "Oversight agency" means any agency, as defined in subdivision
(c) of Section 25260 of the Health and Safety Code, that has
jurisdiction over a response action performed in connection with a
release that is the subject of a notice of potential liability.
Subject to any other limitation imposed by law, an oversight agency
retains full discretion as to when it exercises jurisdiction over a
site.
(k) "Reasonable steps," as used in subdivision (a) of Section 851,
means the least expensive means available to ascertain the
potentially responsible parties. If the owner cannot otherwise
identify any apparent, potentially responsible parties, then
"reasonable steps" includes:
(1) Conducting a title search; and
(2) Reviewing all environmental reports in the owner's possession
of which the owner has actual awareness pertaining to the site.
(l) "Release" means the release, as defined in Sections 25320 and
25321 of the Health and Safety Code, of a hazardous material or
hazardous materials.
(m) "Release report" means a notice sent by a responsible party to
the owner of the site stating that a release has occurred on the
site which is likely to exceed the notification threshold. The
release report shall describe the location of the site and the nature
of the release.
(n) "Remedial action" means any action as defined in Section 25322
of the Health and Safety Code.
(o) "Removal action" means any action as defined in subdivision
(a) of Section 25323 of the Health and Safety Code.
(p) "Response action" means any removal actions, including, but
not limited to, site investigations and remedial actions, including,
but not limited to, operation and maintenance measures.
(q) "Responsible party" means any person who is liable under state
or local law for taking action in response to a release.
(r) "Site" means any parcel of commercial, industrial, or
agricultural real property where a hazardous materials release has
occurred.
(s) "Written action" means any official action by any oversight
agency where the oversight agency has expressly exercised its cleanup
authority in writing, pursuant to the oversight agency's procedures,
directing a response action at the site.
851. (a) An owner of a site who has actual awareness of a release
exceeding the notification threshold shall take all reasonable steps
as defined in subdivision (j) of Section 850 to expeditiously
identify the potentially responsible parties. The owner shall, as
soon as reasonably possible after obtaining actual awareness of the
potentially responsible parties, send a notice of potential liability
to the identified potentially responsible parties and the agency, as
defined in subdivision (c) of Section 25260 of the Health and Safety
Code, that the owner believes to be the appropriate oversight
agency. For any release exceeding the notification threshold of which
the owner has actual awareness that occurred prior to, but within
three years of, the effective date of this section, the notice shall
be given on or before December 31, 1998.
(b) A potentially responsible party who has actual awareness of a
release which is likely to exceed the notification threshold shall as
soon as reasonably possible after obtaining actual awareness of the
release provide the owner of the site where the release occurred with
a release report. For any release exceeding the notification
threshold of which the potentially responsible party has actual
awareness that occurred prior to, but within three years of, the
effective date of this section, the release report shall be given on
or before December 31, 1998. A potentially responsible party may
issue, at the potentially responsible party's option, a commitment
statement to the owner of the site within 120 days of the potentially
responsible party's issuance of a release report. The fact that a
release report is issued shall not constitute an admission of
liability and may not be admitted as evidence against a potentially
responsible party in any litigation.
(c) When a notice of potential liability is issued, a notice
recipient shall respond to the owner, in writing, and by certified
mail, return receipt requested, within 120 days from the date that
the notice of potential liability was mailed. The notice recipient's
response shall be either a commitment statement or a negative
response. The notice recipient's failure to submit the written
response within the 120-day period, or failure to strictly comply
with the form of the written response, as provided in Section 854,
shall be deemed a negative response. The owner may agree in writing
to extend the period during which the notice recipient may respond to
the notice of potential liability. An extension of up to 120 days
shall be provided if the notice recipient commits to do a site
investigation, the results of which shall be provided to the owner
and the oversight agency.
(d) (1) The common law duty to mitigate damages shall apply to any
failure of the owner of a site to give a timely notice of potential
liability when the owner is required to give this notice pursuant to
this chapter. Where an owner fails to mitigate damages by not giving
a timely notice of potential liability, the owner's damage claim
shall be reduced in accordance with common law principles by the
amount that the potentially responsible party proves would have
likely been mitigated had a timely notice of potential liability been
given.
(2) Common law principles shall apply to the failure of the
potentially responsible party to issue a timely release report. Where
a potentially responsible party fails to give a timely release
report, the potentially responsible party, in accordance with common
law principles, shall be responsible to the owner of the site, for
damages that the owner proves are likely caused by such failure to
provide a release report.
(3) Any party who argues the applicability of this subdivision
carries the burden of proof in that regard.
(4) Nothing in this section is intended to create a new cause of
action or defense beyond that which already exists under common law.
(5) Subdivisions (a) and (b), and paragraphs (1) and (2) of this
subdivision, shall not apply when the party to whom a notice of
potential liability or release report is owed already possesses
actual awareness of the information required to be transmitted in
such notice of potential liability or release report.
(e) (1) Except as provided in paragraph (2), the requirements of
this chapter shall not apply to a site listed pursuant to Section
25356 of the Health and Safety Code for response action pursuant to
Chapter 6.8 (commencing with Section 25300) of Division 20 of the
Health and Safety Code or to a site where an oversight agency has
issued an order or entered into an enforceable agreement pursuant to
any authority, including, but not limited to, an order or enforceable
agreement entered into by a local agency, the Department of Toxic
Substance Control, the State Water Resources Control Board, or a
regional water quality control board pursuant to Chapter 6.5
(commencing with Section 25100), Chapter 6.7 (commencing with Section
25280), Chapter 6.75 (commencing with Section 25299.10), Chapter 6.8
(commencing with Section 25300), Chapter 6.85 (commencing with
Section 25396), or Chapter 6.11 (commencing with Section 25404) of
Division 20 of the Health and Safety Code, or pursuant to Division 7
(commencing with Section 13000) of the Water Code.
(2) The requirements of this chapter shall apply if either of the
following applies:
(A) The order or enforceable agreement is issued or entered into
after the owner accepts a commitment statement.
(B) The Department of Toxic Substance Control, State Water
Resources Control Board, or regional water quality control board that
issued the order or entered into an enforceable agreement consents
in writing to the applicability of this chapter to the site.
(f) It is the intent of the Legislature for this chapter to
resolve disputes between, and affect the rights of, private parties
only. Nothing in this chapter shall affect the authority of the
Department of Toxic Substance Control, the State Water Resources
Control Board, a regional water quality control board, or any other
oversight agency.
(g) Notwithstanding any other provision of this chapter, any time
prior to accepting a commitment statement, the owner may provide the
notice to the notice recipient that the provisions of subdivision
(c), paragraph (2) of subdivision (e), and Sections 852 and 854,
shall not apply to the site, in which case the provisions of
subdivision (c), paragraph (2) of subdivision (e), and Sections 852
and 854 shall not apply to the site and the owner and notice
recipient shall be entitled to pursue all other legal remedies and
defenses authorized by law.
852. (a) Within 45 days after issuance of the commitment statement,
the owner may transmit to the notice recipient by certified mail,
return receipt requested, an executed copy of the commitment
statement, indicating its acceptance. If the owner does not execute
the commitment statement, the commitment statement shall be deemed to
have been rejected upon expiration of the 45-day period. A notice
recipient has no obligation with respect to the provisions of a
rejected commitment statement.
(b) (1) Except as otherwise provided in this chapter, or unless
the owner or the notice recipient has elected not to proceed with the
mediation, if the owner rejects the commitment statement, the owner
and notice recipient shall participate in a mediation process prior
to the commencement of any litigation which pertains to a release
covered by the commitment statement. The mediation process shall be
supervised by a neutral third party mutually agreed upon by the owner
and the notice recipient in order to mediate a mutually agreeable
settlement between the owner and notice recipient of all issues
related to the release.
(2) Either the notice recipient or the owner may elect not to
proceed further with the mediation process at any time prior to
completion of those proceedings.
(3) To the extent a mutually agreeable settlement is reached which
allocates the liability and assigns the rights and obligations of
the owner and notice recipient in a manner different from or
inconsistent with this chapter, the settlement shall supersede the
terms of this chapter pursuant to subdivision (f) of Section 853. If
a settlement of all issues cannot be reached within 90 days after the
owner's rejection of the commitment statement, the neutral third
party shall declare the mediation process unsuccessful and terminate
the process. The owner and notice recipient may mutually agree to
extend the mediation process but shall communicate any such extension
in writing to the neutral third party. If the party issuing the
commitment statement fails, for any reason, to participate in the
mediation within 90 days of the rejection of the commitment
statement, the owner may proceed with litigation.
(4) After the termination of an unsuccessful mediation process,
the parties shall be free to litigate or otherwise resolve their
respective claims. The parties may mutually agree to the terms of the
commitment statement at any time after the termination of an
unsuccessful mediation process, in which case this chapter shall
govern the rights and obligations of the parties.
(5) Any applicable statute of limitations shall be tolled for 90
days following issuance of a notice of potential liability, a release
report, or a commitment statement.
(6) Any applicable statute of limitations shall be tolled from the
time the owner rejects a commitment statement until the termination
of the mediation process. If mediation is not commenced within 90
days after the owner's rejection of the commitment statement, the
tolling of the statute of limitations shall terminate unless
otherwise agreed to by the parties.
(7) Unless the owner and notice recipient agree otherwise, the
fees and costs of the neutral third party shall be borne equally by
the notice recipient and the owner.
(c) Upon taking effect, the commitment statement shall have all of
the following results:
(1) The commitment statement shall constitute a binding promise
that the notice recipient will undertake any response action as
required by an oversight agency through a written action, directed to
the owner or notice recipient, in connection with the release that
is the subject of the notice of potential liability or release
report. The commitment statement shall not create any obligations
with respect to releases occurring after the commitment statement is
signed, or with respect to any other release that is not the subject
of the notice of potential liability.
(2) The commitment statement shall constitute a binding promise
that the owner shall provide reasonable site access to the notice
recipient to take any action that is reasonably necessary or
appropriate to conduct a response action. This grant of access shall
not affect the rights of the owner if the notice recipient's
activities onsite result in physical damage to the site which the
notice recipient fails to repair within a reasonable period after
completion of all onsite activities. Unless otherwise ordered by the
oversight agency, the notice recipient shall take all reasonable
steps to avoid interfering with the owner's use of the site.
(3) Except for civil actions seeking damages for personal injury
or wrongful death, once a commitment statement has been accepted, the
court shall stay any action brought by the owner of the site against
the notice recipient that issued the commitment statement,
including, but not limited to, actions in trespass, nuisance,
negligence, and strict liability, which arise from or relate to a
release for which a commitment statement has been issued. The stay
shall be effective for a period of not more than two years from the
date of acceptance of the commitment statement, but only so long as
the site response action is proceeding to the satisfaction of an
oversight agency. The stay shall not apply to any civil action that
is based on fraud, failure to disclose, or misrepresentation related
to any transaction between the owner of the site and the notice
recipient, to any civil action for breach of the commitment
statement, or to any civil action which is unrelated to the release.
The owner and notice recipient may elect to extend the period of the
stay by written agreement.
(4) In an action by an owner who has accepted a commitment
statement against the notice recipient who issued the commitment
statement, and which arises from or relates to a release for which a
commitment statement has been issued, only the following damages
shall be recoverable to the extent otherwise authorized by law:
(A) Damages for personal injuries or wrongful death caused by the
release.
(B) Damages for breach of a commitment statement.
(C) Damages from the failure of a prospective purchaser to perform
under a sales contract because of the release, where such failure to
perform occurs prior to the issuance of the commitment statement.
(D) Damages for the lost use of the property prior to the issuance
of a commitment statement caused by the release.
(E) Recovery of costs of investigating and responding to the
release where such costs are incurred prior to the issuance of the
commitment statement.
(F) Remedies for any breach of a preexisting contract entered into
prior to the acceptance of a commitment statement.
(G) Damages for lost rents and any other damages recoverable under
law associated with lost use of the site caused by any notice
recipient during site response action activities.
(5) An owner may obtain rescission of a commitment statement if a
notice recipient repudiates its obligations under the commitment
statement, in which case Sections 852 and 854 shall no longer apply
to the site.
(6) The notice recipient and owner shall copy each other with
respect to all correspondence and proposed workplans to and from the
oversight agency that relate to the site.
(d) Nothing in this chapter shall affect the authority of an
oversight agency under the law to bring an administrative, criminal,
or civil action against either a notice recipient or the owner, nor
does it compel any action on the part of the oversight agency.
(e) At any time after the commitment statement is accepted, either
the owner or the notice recipient may file an action against the
other for material breach of rights and obligations associated with
the commitment statement. Subject to the stay provided for in
paragraph (3) of subdivision (c), the parties may litigate these
claims in the same action as any other claims they may have in
connection with the release that is the subject of the commitment
statement.
(f) Whenever a notice recipient issues a commitment statement, the
following notice shall be provided in 14 point boldface type if
printed or in boldface capital letters if typed:
"THIS FORM WAS DEVELOPED AS PART OF A PROCESS ENACTED BY THE
CALIFORNIA LEGISLATURE TO PROVIDE OWNERS OF PROPERTY AND POTENTIALLY
RESPONSIBLE PARTIES AN ALTERNATIVE TO LITIGATING DISPUTES OVER
CONTAMINATION. IT IS YOUR OPTION AS TO WHETHER YOU SIGN THIS FORM OR
OTHERWISE PARTICIPATE IN THIS PROCESS. IF YOU CHOOSE NOT TO
PARTICIPATE IN THE PROCESS, YOU SHOULD NOTIFY THE PARTY WHO SENT YOU
THIS FORM. THIS FORM INVOLVES A TRADEOFF WHEREBY EACH PARTY ACQUIRES
AND RELINQUISHES CERTAIN RIGHTS. UNDER THIS FORM, THE PROPERTY OWNER
GETS THE ASSURANCE THAT THE POTENTIALLY RESPONSIBLE PARTY IS
OBLIGATED TO PERFORM INVESTIGATORY AND CLEANUP ACTIONS IN THE EVENT
THAT GOVERNMENT AUTHORITIES ELECT TO REQUIRE THESE ACTIONS. ON THE
OTHER HAND, THE PROPERTY OWNER FOREGOES CERTAIN CLAIMS ASSOCIATED
WITH RESIDUAL CONTAMINATION THAT GOVERNMENTAL AUTHORITIES ALLOW TO
REMAIN IN PLACE ON THE PROPERTY. IF YOU ELECT NOT TO SIGN THIS FORM,
THE PROCESS DEVELOPED BY THE LEGISLATURE CONTEMPLATES THAT YOU WILL
ATTEMPT TO MEDIATE ANY DISPUTES REGARDING THE CONTAMINATION.
HOWEVER, MEDIATION IS NEITHER MANDATORY NOR BINDING. IF YOU HAVE
QUESTIONS ABOUT THE PROCESS, YOU MAY WISH TO CONSULT AN ATTORNEY."
(g) Any applicable statute of limitations shall be tolled for two
and one-half years from the date of acceptance of the commitment
statement. If at the end of two years from the date of acceptance of
the commitment statement an oversight agency has not issued a written
action directed to the owner or notice recipient, the owner has 60
days in which he or she may terminate the commitment statement; and,
in this event, it shall have no further force or effect. In the event
the owner terminates the commitment statement, subdivision (c) shall
no longer apply to the site and shall no longer govern the rights
and obligations of the owner or notice recipient.
853. (a) Neither the failure to issue a commitment statement nor
its issuance shall be construed as an admission that the recipient of
the notice of potential liability is liable under any federal,
state, or local law, including common law, for the release that the
party agrees to investigate or respond. Neither the failure to issue
a commitment statement nor the contents of the commitment statement
shall be admissible evidence in any proceeding, as defined in Section
901 of the Evidence Code, except that the contents of the commitment
statement shall be admissible evidence in an action to enforce the
commitment statement to the extent that such contents would be
admissible under other applicable law.
(b) Nothing in this chapter shall subject a notice recipient to
any damages, fines, or penalties for a failure to make a written
response, either positive or negative, to a notice of potential
liability.
(c) Nothing in this chapter shall subject the owner of a site to
any damages, fines, or penalties for a failure to send a notice of
potential liability pursuant to Section 851. Failure by the owner of
a site to send a notice of potential liability of a release in a
timely fashion shall not be deemed to create any liability for the
owner under a theory of negligence per se.
(d) Nothing in this chapter imposes an affirmative duty on the
owner of a site, or any potentially responsible party, to discover,
or determine the nature or extent of, a hazardous materials release
at the site. This chapter does not affect such an affirmative duty to
the extent it is imposed by any other law.
(e) Subject to the defenses specified in Section 101(35) and 107
(b) of the federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Secs.
9601(35) and 9607(b)), a cause of action is hereby established
whereby a notice recipient may recover from any responsible party any
reasonable response costs for conducting a response action as may be
approved or overseen by an oversight agency or as incurred pursuant
to a commitment statement. Liability among responsible parties shall
be allocated based upon the equitable factors specified in
subdivision (c) of Section 25356.3 of the Health and Safety Code. No
third-party beneficiary rights are created by a commitment statement,
except as provided in subdivision (b) of Section 854. This cause of
action applies to costs incurred prior to enactment of this
subdivision. However, no recovery may be obtained under this
subdivision for costs incurred more than three years prior to the
filing of litigation to recover those costs. The cause of action
established pursuant to this subdivision shall not apply against a
current or former owner of a site unless that owner operated a
business that caused a release being addressed by a response action
at the site and the costs incurred by the notice recipient were in
response to a release caused by the owner.
(f) Nothing in this chapter shall affect or limit the rights of an
owner under preexisting contract. Nothing in this chapter shall
affect or limit the right of a notice recipient and owner to agree to
an allocation of liability or to an assignment of rights and
obligations that is different from or inconsistent with this chapter.
Such agreements shall supersede the terms of this chapter.
(g) Nothing in this chapter shall make a notice recipient a
responsible party, beyond the obligations the notice recipient
undertakes pursuant to this chapter.
(h) Nothing in this chapter shall apply to causes of action for
wrongful death or personal injury. However, the pleading of a cause
of action for wrongful death or personal injury shall not affect the
applicability of this chapter to other causes of action in the same
civil action.
854. A commitment statement shall be executed in substantially the
following form:
NOTICE OF ASSUMPTION OF
COUNTY OF __________ GOVERNMENT IMPOSED SITE
STATE OF
INVESTIGATION AND/OR
CALIFORNIA
REMEDIAL ACTION ORDERS
(COMMITMENT STATEMENT)
(a) The undersigned notice recipient is aware of, or has received
a notice of potential liability pursuant to, Section 851 of the Civil
Code ("notice of potential liability") in connection with a release
of hazardous materials at a parcel of property ("site") having the
following legal description: (Insert description here)
(b) The undersigned notice recipient and the undersigned owner of
the site and the owner's successors, heirs, and assigns agree, upon
the proper and timely execution and delivery of this commitment
statement, to abide by the requirements of Chapter 3 (commencing with
Section 850) of Title 3 of Part 2 of Division 2 in connection with
the release that is the subject of the notice of potential liability.
(c) The undersigned notice recipient hereby commits to undertake
any response action as required by an oversight agency through a
written action, directed to the owner or notice recipient, in
connection with the release that is the subject of the notice of
potential liability or release report. This commitment runs with the
land and binds, in addition to the current owner of the site, all of
the owner's successors in interest, including current and future
lenders having a security interest in the site.
(d) The owner of the site and the owner's successors, heirs, and
assigns agree, upon the proper and timely execution and delivery of
this commitment statement, to all of the following:
(1) The undersigned notice recipient or the party's designee shall
be allowed such access to the site as may be required to perform its
obligations under this commitment statement, provided that the
undersigned notice recipient shall be liable for any physical damage
it causes in conducting a response action, which the notice recipient
fails to repair within a reasonable period after completion of all
onsite activities.
(2) The parties, their successors, heirs, and assigns shall
provide each other with copies of any communication or correspondence
with an oversight agency in connection with the release of hazardous
materials at the site.
(3) Provided that the undersigned notice recipient performs all of
its obligations under this commitment statement, and except as
otherwise provided in subdivisions (c) and (e) of Section 852 of the
Civil Code, no claim for damages, accruing after the acceptance of
the commitment statement, shall be brought against the undersigned
notice recipient by the owner of the site or by the owner's
successors, heirs, and assigns.
(e) The contents of this commitment statement shall be
inadmissible evidence in any proceeding, as defined in Section 901 of
the Evidence Code, except in an action to enforce this commitment
statement to the extent that such contents would be admissible under
other applicable law. This commitment statement may be enforced fully
by the owner of the site and all parties identified in paragraph
(b). There are no third-party beneficiary rights created by this
commitment statement.
(f) The owner of the site shall provide a copy of this commitment
statement to any prospective purchaser or lessee of the site until
this commitment statement is terminated or until all response actions
have been completed in accordance with the commitment statement.
(g) If the owner transfers the site, the owner shall notify the
undersigned parties to this commitment statement, by mail, within 14
business days of the property transfer.
(h) As provided by law, this commitment statement shall become
effective if the owner executes this commitment statement within 45
days from the date of issuance, in which case its terms shall go into
effect upon receipt of that acceptance by the issuer of this
commitment statement. If the owner rejects this commitment statement,
the rejection shall be subject to the mediation provisions of
subdivision (b) of Section 852.
(i) If at the end of two years from the date of acceptance of this
commitment statement, an oversight agency has not issued a written
action directed to the owner or notice recipient, the owner has 60
days in which he or she may terminate the commitment statement; and,
in this event, it shall have no further force or effect.
____________________________ ____________________
Notice recipient Date
(Notice recipient's name,
address, and telephone
number)
(Notarial affidavit)
____________________________ ____________________
Owner Date
(Owner's name,
address,
and telephone
number)
(Notarial affidavit)
855. The notification requirements of Section 851 shall not become
effective until 180 days after the effective date of this chapter.
850. The definitions set forth in Section 25260 of the Health and
Safety Code govern the construction of this chapter. In addition, the
following definitions apply for purposes of this chapter only:
(a) "Actual awareness" means actual knowledge of a fact pertaining
to an obligation under this chapter, including actual knowledge of a
release exceeding the notification threshold. Only actual awareness
possessed by those employees or representatives of an owner of a site
who are responsible for monitoring, responding to or otherwise
addressing the release shall be attributable to the owner. Only
actual awareness possessed by those employees or representatives of a
potentially responsible party who are responsible for monitoring,
responding to, or otherwise addressing, the release shall be
attributable to the potentially responsible party.
(b) "Commitment statement" means a written statement executed by
the notice recipient which recites expressly the language specified
in Section 854.
(c) "Mediation" means an informal process in which the disputing
parties select a neutral third party to assist them in reaching a
negotiated settlement in which the neutral third party has no power
to impose a solution on the parties, but rather has the power only to
assist the parties in shaping solutions to meet their interests and
objectives.
(d) "Negative response" means a written response by the recipient
of a notice of potential liability indicating that the recipient will
not undertake any response action, or a deemed negative response
pursuant to subdivision (c) of Section 851 in the event of the
recipient's failure to respond.
(e) "Neutral third party" means an experienced professional, such
as an attorney, engineer, environmentalist, hydrologist, or retired
judge, who has served as a mediator.
(f) "Notice of potential liability" means a notice, sent by the
owner of the site, stating that a release that exceeds the
notification threshold has occurred at the site and that the owner
believes that the recipient of the notice is a responsible party with
respect to the release. The notice of potential liability shall
describe the location of the site and the nature of the release.
(g) "Notice recipient" means any one of the following:
(1) A person who receives a notice of potential liability pursuant
to subdivision (a) of Section 851.
(2) A person who provides a release report pursuant to subdivision
(b) of Section 851.
(3) A person who offers a commitment statement to the owner of a
site pursuant to subdivision (c) of Section 851.
(h) "Notification threshold" means any release of such a magnitude
that:
(1) The release is the subject of a response action which has been
ordered by, or is being performed by, an oversight agency; or
(2) The release is impeding the ability of the owner of the site
to sell, lease, or otherwise use the site.
(i) "Operation and maintenance" means any activity as defined in
subdivision (a) of Section 25318.5 of the Health and Safety Code.
(j) "Oversight agency" means any agency, as defined in subdivision
(c) of Section 25260 of the Health and Safety Code, that has
jurisdiction over a response action performed in connection with a
release that is the subject of a notice of potential liability.
Subject to any other limitation imposed by law, an oversight agency
retains full discretion as to when it exercises jurisdiction over a
site.
(k) "Reasonable steps," as used in subdivision (a) of Section 851,
means the least expensive means available to ascertain the
potentially responsible parties. If the owner cannot otherwise
identify any apparent, potentially responsible parties, then
"reasonable steps" includes:
(1) Conducting a title search; and
(2) Reviewing all environmental reports in the owner's possession
of which the owner has actual awareness pertaining to the site.
(l) "Release" means the release, as defined in Sections 25320 and
25321 of the Health and Safety Code, of a hazardous material or
hazardous materials.
(m) "Release report" means a notice sent by a responsible party to
the owner of the site stating that a release has occurred on the
site which is likely to exceed the notification threshold. The
release report shall describe the location of the site and the nature
of the release.
(n) "Remedial action" means any action as defined in Section 25322
of the Health and Safety Code.
(o) "Removal action" means any action as defined in subdivision
(a) of Section 25323 of the Health and Safety Code.
(p) "Response action" means any removal actions, including, but
not limited to, site investigations and remedial actions, including,
but not limited to, operation and maintenance measures.
(q) "Responsible party" means any person who is liable under state
or local law for taking action in response to a release.
(r) "Site" means any parcel of commercial, industrial, or
agricultural real property where a hazardous materials release has
occurred.
(s) "Written action" means any official action by any oversight
agency where the oversight agency has expressly exercised its cleanup
authority in writing, pursuant to the oversight agency's procedures,
directing a response action at the site.
851. (a) An owner of a site who has actual awareness of a release
exceeding the notification threshold shall take all reasonable steps
as defined in subdivision (j) of Section 850 to expeditiously
identify the potentially responsible parties. The owner shall, as
soon as reasonably possible after obtaining actual awareness of the
potentially responsible parties, send a notice of potential liability
to the identified potentially responsible parties and the agency, as
defined in subdivision (c) of Section 25260 of the Health and Safety
Code, that the owner believes to be the appropriate oversight
agency. For any release exceeding the notification threshold of which
the owner has actual awareness that occurred prior to, but within
three years of, the effective date of this section, the notice shall
be given on or before December 31, 1998.
(b) A potentially responsible party who has actual awareness of a
release which is likely to exceed the notification threshold shall as
soon as reasonably possible after obtaining actual awareness of the
release provide the owner of the site where the release occurred with
a release report. For any release exceeding the notification
threshold of which the potentially responsible party has actual
awareness that occurred prior to, but within three years of, the
effective date of this section, the release report shall be given on
or before December 31, 1998. A potentially responsible party may
issue, at the potentially responsible party's option, a commitment
statement to the owner of the site within 120 days of the potentially
responsible party's issuance of a release report. The fact that a
release report is issued shall not constitute an admission of
liability and may not be admitted as evidence against a potentially
responsible party in any litigation.
(c) When a notice of potential liability is issued, a notice
recipient shall respond to the owner, in writing, and by certified
mail, return receipt requested, within 120 days from the date that
the notice of potential liability was mailed. The notice recipient's
response shall be either a commitment statement or a negative
response. The notice recipient's failure to submit the written
response within the 120-day period, or failure to strictly comply
with the form of the written response, as provided in Section 854,
shall be deemed a negative response. The owner may agree in writing
to extend the period during which the notice recipient may respond to
the notice of potential liability. An extension of up to 120 days
shall be provided if the notice recipient commits to do a site
investigation, the results of which shall be provided to the owner
and the oversight agency.
(d) (1) The common law duty to mitigate damages shall apply to any
failure of the owner of a site to give a timely notice of potential
liability when the owner is required to give this notice pursuant to
this chapter. Where an owner fails to mitigate damages by not giving
a timely notice of potential liability, the owner's damage claim
shall be reduced in accordance with common law principles by the
amount that the potentially responsible party proves would have
likely been mitigated had a timely notice of potential liability been
given.
(2) Common law principles shall apply to the failure of the
potentially responsible party to issue a timely release report. Where
a potentially responsible party fails to give a timely release
report, the potentially responsible party, in accordance with common
law principles, shall be responsible to the owner of the site, for
damages that the owner proves are likely caused by such failure to
provide a release report.
(3) Any party who argues the applicability of this subdivision
carries the burden of proof in that regard.
(4) Nothing in this section is intended to create a new cause of
action or defense beyond that which already exists under common law.
(5) Subdivisions (a) and (b), and paragraphs (1) and (2) of this
subdivision, shall not apply when the party to whom a notice of
potential liability or release report is owed already possesses
actual awareness of the information required to be transmitted in
such notice of potential liability or release report.
(e) (1) Except as provided in paragraph (2), the requirements of
this chapter shall not apply to a site listed pursuant to Section
25356 of the Health and Safety Code for response action pursuant to
Chapter 6.8 (commencing with Section 25300) of Division 20 of the
Health and Safety Code or to a site where an oversight agency has
issued an order or entered into an enforceable agreement pursuant to
any authority, including, but not limited to, an order or enforceable
agreement entered into by a local agency, the Department of Toxic
Substance Control, the State Water Resources Control Board, or a
regional water quality control board pursuant to Chapter 6.5
(commencing with Section 25100), Chapter 6.7 (commencing with Section
25280), Chapter 6.75 (commencing with Section 25299.10), Chapter 6.8
(commencing with Section 25300), Chapter 6.85 (commencing with
Section 25396), or Chapter 6.11 (commencing with Section 25404) of
Division 20 of the Health and Safety Code, or pursuant to Division 7
(commencing with Section 13000) of the Water Code.
(2) The requirements of this chapter shall apply if either of the
following applies:
(A) The order or enforceable agreement is issued or entered into
after the owner accepts a commitment statement.
(B) The Department of Toxic Substance Control, State Water
Resources Control Board, or regional water quality control board that
issued the order or entered into an enforceable agreement consents
in writing to the applicability of this chapter to the site.
(f) It is the intent of the Legislature for this chapter to
resolve disputes between, and affect the rights of, private parties
only. Nothing in this chapter shall affect the authority of the
Department of Toxic Substance Control, the State Water Resources
Control Board, a regional water quality control board, or any other
oversight agency.
(g) Notwithstanding any other provision of this chapter, any time
prior to accepting a commitment statement, the owner may provide the
notice to the notice recipient that the provisions of subdivision
(c), paragraph (2) of subdivision (e), and Sections 852 and 854,
shall not apply to the site, in which case the provisions of
subdivision (c), paragraph (2) of subdivision (e), and Sections 852
and 854 shall not apply to the site and the owner and notice
recipient shall be entitled to pursue all other legal remedies and
defenses authorized by law.
852. (a) Within 45 days after issuance of the commitment statement,
the owner may transmit to the notice recipient by certified mail,
return receipt requested, an executed copy of the commitment
statement, indicating its acceptance. If the owner does not execute
the commitment statement, the commitment statement shall be deemed to
have been rejected upon expiration of the 45-day period. A notice
recipient has no obligation with respect to the provisions of a
rejected commitment statement.
(b) (1) Except as otherwise provided in this chapter, or unless
the owner or the notice recipient has elected not to proceed with the
mediation, if the owner rejects the commitment statement, the owner
and notice recipient shall participate in a mediation process prior
to the commencement of any litigation which pertains to a release
covered by the commitment statement. The mediation process shall be
supervised by a neutral third party mutually agreed upon by the owner
and the notice recipient in order to mediate a mutually agreeable
settlement between the owner and notice recipient of all issues
related to the release.
(2) Either the notice recipient or the owner may elect not to
proceed further with the mediation process at any time prior to
completion of those proceedings.
(3) To the extent a mutually agreeable settlement is reached which
allocates the liability and assigns the rights and obligations of
the owner and notice recipient in a manner different from or
inconsistent with this chapter, the settlement shall supersede the
terms of this chapter pursuant to subdivision (f) of Section 853. If
a settlement of all issues cannot be reached within 90 days after the
owner's rejection of the commitment statement, the neutral third
party shall declare the mediation process unsuccessful and terminate
the process. The owner and notice recipient may mutually agree to
extend the mediation process but shall communicate any such extension
in writing to the neutral third party. If the party issuing the
commitment statement fails, for any reason, to participate in the
mediation within 90 days of the rejection of the commitment
statement, the owner may proceed with litigation.
(4) After the termination of an unsuccessful mediation process,
the parties shall be free to litigate or otherwise resolve their
respective claims. The parties may mutually agree to the terms of the
commitment statement at any time after the termination of an
unsuccessful mediation process, in which case this chapter shall
govern the rights and obligations of the parties.
(5) Any applicable statute of limitations shall be tolled for 90
days following issuance of a notice of potential liability, a release
report, or a commitment statement.
(6) Any applicable statute of limitations shall be tolled from the
time the owner rejects a commitment statement until the termination
of the mediation process. If mediation is not commenced within 90
days after the owner's rejection of the commitment statement, the
tolling of the statute of limitations shall terminate unless
otherwise agreed to by the parties.
(7) Unless the owner and notice recipient agree otherwise, the
fees and costs of the neutral third party shall be borne equally by
the notice recipient and the owner.
(c) Upon taking effect, the commitment statement shall have all of
the following results:
(1) The commitment statement shall constitute a binding promise
that the notice recipient will undertake any response action as
required by an oversight agency through a written action, directed to
the owner or notice recipient, in connection with the release that
is the subject of the notice of potential liability or release
report. The commitment statement shall not create any obligations
with respect to releases occurring after the commitment statement is
signed, or with respect to any other release that is not the subject
of the notice of potential liability.
(2) The commitment statement shall constitute a binding promise
that the owner shall provide reasonable site access to the notice
recipient to take any action that is reasonably necessary or
appropriate to conduct a response action. This grant of access shall
not affect the rights of the owner if the notice recipient's
activities onsite result in physical damage to the site which the
notice recipient fails to repair within a reasonable period after
completion of all onsite activities. Unless otherwise ordered by the
oversight agency, the notice recipient shall take all reasonable
steps to avoid interfering with the owner's use of the site.
(3) Except for civil actions seeking damages for personal injury
or wrongful death, once a commitment statement has been accepted, the
court shall stay any action brought by the owner of the site against
the notice recipient that issued the commitment statement,
including, but not limited to, actions in trespass, nuisance,
negligence, and strict liability, which arise from or relate to a
release for which a commitment statement has been issued. The stay
shall be effective for a period of not more than two years from the
date of acceptance of the commitment statement, but only so long as
the site response action is proceeding to the satisfaction of an
oversight agency. The stay shall not apply to any civil action that
is based on fraud, failure to disclose, or misrepresentation related
to any transaction between the owner of the site and the notice
recipient, to any civil action for breach of the commitment
statement, or to any civil action which is unrelated to the release.
The owner and notice recipient may elect to extend the period of the
stay by written agreement.
(4) In an action by an owner who has accepted a commitment
statement against the notice recipient who issued the commitment
statement, and which arises from or relates to a release for which a
commitment statement has been issued, only the following damages
shall be recoverable to the extent otherwise authorized by law:
(A) Damages for personal injuries or wrongful death caused by the
release.
(B) Damages for breach of a commitment statement.
(C) Damages from the failure of a prospective purchaser to perform
under a sales contract because of the release, where such failure to
perform occurs prior to the issuance of the commitment statement.
(D) Damages for the lost use of the property prior to the issuance
of a commitment statement caused by the release.
(E) Recovery of costs of investigating and responding to the
release where such costs are incurred prior to the issuance of the
commitment statement.
(F) Remedies for any breach of a preexisting contract entered into
prior to the acceptance of a commitment statement.
(G) Damages for lost rents and any other damages recoverable under
law associated with lost use of the site caused by any notice
recipient during site response action activities.
(5) An owner may obtain rescission of a commitment statement if a
notice recipient repudiates its obligations under the commitment
statement, in which case Sections 852 and 854 shall no longer apply
to the site.
(6) The notice recipient and owner shall copy each other with
respect to all correspondence and proposed workplans to and from the
oversight agency that relate to the site.
(d) Nothing in this chapter shall affect the authority of an
oversight agency under the law to bring an administrative, criminal,
or civil action against either a notice recipient or the owner, nor
does it compel any action on the part of the oversight agency.
(e) At any time after the commitment statement is accepted, either
the owner or the notice recipient may file an action against the
other for material breach of rights and obligations associated with
the commitment statement. Subject to the stay provided for in
paragraph (3) of subdivision (c), the parties may litigate these
claims in the same action as any other claims they may have in
connection with the release that is the subject of the commitment
statement.
(f) Whenever a notice recipient issues a commitment statement, the
following notice shall be provided in 14 point boldface type if
printed or in boldface capital letters if typed:
"THIS FORM WAS DEVELOPED AS PART OF A PROCESS ENACTED BY THE
CALIFORNIA LEGISLATURE TO PROVIDE OWNERS OF PROPERTY AND POTENTIALLY
RESPONSIBLE PARTIES AN ALTERNATIVE TO LITIGATING DISPUTES OVER
CONTAMINATION. IT IS YOUR OPTION AS TO WHETHER YOU SIGN THIS FORM OR
OTHERWISE PARTICIPATE IN THIS PROCESS. IF YOU CHOOSE NOT TO
PARTICIPATE IN THE PROCESS, YOU SHOULD NOTIFY THE PARTY WHO SENT YOU
THIS FORM. THIS FORM INVOLVES A TRADEOFF WHEREBY EACH PARTY ACQUIRES
AND RELINQUISHES CERTAIN RIGHTS. UNDER THIS FORM, THE PROPERTY OWNER
GETS THE ASSURANCE THAT THE POTENTIALLY RESPONSIBLE PARTY IS
OBLIGATED TO PERFORM INVESTIGATORY AND CLEANUP ACTIONS IN THE EVENT
THAT GOVERNMENT AUTHORITIES ELECT TO REQUIRE THESE ACTIONS. ON THE
OTHER HAND, THE PROPERTY OWNER FOREGOES CERTAIN CLAIMS ASSOCIATED
WITH RESIDUAL CONTAMINATION THAT GOVERNMENTAL AUTHORITIES ALLOW TO
REMAIN IN PLACE ON THE PROPERTY. IF YOU ELECT NOT TO SIGN THIS FORM,
THE PROCESS DEVELOPED BY THE LEGISLATURE CONTEMPLATES THAT YOU WILL
ATTEMPT TO MEDIATE ANY DISPUTES REGARDING THE CONTAMINATION.
HOWEVER, MEDIATION IS NEITHER MANDATORY NOR BINDING. IF YOU HAVE
QUESTIONS ABOUT THE PROCESS, YOU MAY WISH TO CONSULT AN ATTORNEY."
(g) Any applicable statute of limitations shall be tolled for two
and one-half years from the date of acceptance of the commitment
statement. If at the end of two years from the date of acceptance of
the commitment statement an oversight agency has not issued a written
action directed to the owner or notice recipient, the owner has 60
days in which he or she may terminate the commitment statement; and,
in this event, it shall have no further force or effect. In the event
the owner terminates the commitment statement, subdivision (c) shall
no longer apply to the site and shall no longer govern the rights
and obligations of the owner or notice recipient.
853. (a) Neither the failure to issue a commitment statement nor
its issuance shall be construed as an admission that the recipient of
the notice of potential liability is liable under any federal,
state, or local law, including common law, for the release that the
party agrees to investigate or respond. Neither the failure to issue
a commitment statement nor the contents of the commitment statement
shall be admissible evidence in any proceeding, as defined in Section
901 of the Evidence Code, except that the contents of the commitment
statement shall be admissible evidence in an action to enforce the
commitment statement to the extent that such contents would be
admissible under other applicable law.
(b) Nothing in this chapter shall subject a notice recipient to
any damages, fines, or penalties for a failure to make a written
response, either positive or negative, to a notice of potential
liability.
(c) Nothing in this chapter shall subject the owner of a site to
any damages, fines, or penalties for a failure to send a notice of
potential liability pursuant to Section 851. Failure by the owner of
a site to send a notice of potential liability of a release in a
timely fashion shall not be deemed to create any liability for the
owner under a theory of negligence per se.
(d) Nothing in this chapter imposes an affirmative duty on the
owner of a site, or any potentially responsible party, to discover,
or determine the nature or extent of, a hazardous materials release
at the site. This chapter does not affect such an affirmative duty to
the extent it is imposed by any other law.
(e) Subject to the defenses specified in Section 101(35) and 107
(b) of the federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Secs.
9601(35) and 9607(b)), a cause of action is hereby established
whereby a notice recipient may recover from any responsible party any
reasonable response costs for conducting a response action as may be
approved or overseen by an oversight agency or as incurred pursuant
to a commitment statement. Liability among responsible parties shall
be allocated based upon the equitable factors specified in
subdivision (c) of Section 25356.3 of the Health and Safety Code. No
third-party beneficiary rights are created by a commitment statement,
except as provided in subdivision (b) of Section 854. This cause of
action applies to costs incurred prior to enactment of this
subdivision. However, no recovery may be obtained under this
subdivision for costs incurred more than three years prior to the
filing of litigation to recover those costs. The cause of action
established pursuant to this subdivision shall not apply against a
current or former owner of a site unless that owner operated a
business that caused a release being addressed by a response action
at the site and the costs incurred by the notice recipient were in
response to a release caused by the owner.
(f) Nothing in this chapter shall affect or limit the rights of an
owner under preexisting contract. Nothing in this chapter shall
affect or limit the right of a notice recipient and owner to agree to
an allocation of liability or to an assignment of rights and
obligations that is different from or inconsistent with this chapter.
Such agreements shall supersede the terms of this chapter.
(g) Nothing in this chapter shall make a notice recipient a
responsible party, beyond the obligations the notice recipient
undertakes pursuant to this chapter.
(h) Nothing in this chapter shall apply to causes of action for
wrongful death or personal injury. However, the pleading of a cause
of action for wrongful death or personal injury shall not affect the
applicability of this chapter to other causes of action in the same
civil action.
854. A commitment statement shall be executed in substantially the
following form:
NOTICE OF ASSUMPTION OF
COUNTY OF __________ GOVERNMENT IMPOSED SITE
STATE OF
INVESTIGATION AND/OR
CALIFORNIA
REMEDIAL ACTION ORDERS
(COMMITMENT STATEMENT)
(a) The undersigned notice recipient is aware of, or has received
a notice of potential liability pursuant to, Section 851 of the Civil
Code ("notice of potential liability") in connection with a release
of hazardous materials at a parcel of property ("site") having the
following legal description: (Insert description here)
(b) The undersigned notice recipient and the undersigned owner of
the site and the owner's successors, heirs, and assigns agree, upon
the proper and timely execution and delivery of this commitment
statement, to abide by the requirements of Chapter 3 (commencing with
Section 850) of Title 3 of Part 2 of Division 2 in connection with
the release that is the subject of the notice of potential liability.
(c) The undersigned notice recipient hereby commits to undertake
any response action as required by an oversight agency through a
written action, directed to the owner or notice recipient, in
connection with the release that is the subject of the notice of
potential liability or release report. This commitment runs with the
land and binds, in addition to the current owner of the site, all of
the owner's successors in interest, including current and future
lenders having a security interest in the site.
(d) The owner of the site and the owner's successors, heirs, and
assigns agree, upon the proper and timely execution and delivery of
this commitment statement, to all of the following:
(1) The undersigned notice recipient or the party's designee shall
be allowed such access to the site as may be required to perform its
obligations under this commitment statement, provided that the
undersigned notice recipient shall be liable for any physical damage
it causes in conducting a response action, which the notice recipient
fails to repair within a reasonable period after completion of all
onsite activities.
(2) The parties, their successors, heirs, and assigns shall
provide each other with copies of any communication or correspondence
with an oversight agency in connection with the release of hazardous
materials at the site.
(3) Provided that the undersigned notice recipient performs all of
its obligations under this commitment statement, and except as
otherwise provided in subdivisions (c) and (e) of Section 852 of the
Civil Code, no claim for damages, accruing after the acceptance of
the commitment statement, shall be brought against the undersigned
notice recipient by the owner of the site or by the owner's
successors, heirs, and assigns.
(e) The contents of this commitment statement shall be
inadmissible evidence in any proceeding, as defined in Section 901 of
the Evidence Code, except in an action to enforce this commitment
statement to the extent that such contents would be admissible under
other applicable law. This commitment statement may be enforced fully
by the owner of the site and all parties identified in paragraph
(b). There are no third-party beneficiary rights created by this
commitment statement.
(f) The owner of the site shall provide a copy of this commitment
statement to any prospective purchaser or lessee of the site until
this commitment statement is terminated or until all response actions
have been completed in accordance with the commitment statement.
(g) If the owner transfers the site, the owner shall notify the
undersigned parties to this commitment statement, by mail, within 14
business days of the property transfer.
(h) As provided by law, this commitment statement shall become
effective if the owner executes this commitment statement within 45
days from the date of issuance, in which case its terms shall go into
effect upon receipt of that acceptance by the issuer of this
commitment statement. If the owner rejects this commitment statement,
the rejection shall be subject to the mediation provisions of
subdivision (b) of Section 852.
(i) If at the end of two years from the date of acceptance of this
commitment statement, an oversight agency has not issued a written
action directed to the owner or notice recipient, the owner has 60
days in which he or she may terminate the commitment statement; and,
in this event, it shall have no further force or effect.
____________________________ ____________________
Notice recipient Date
(Notice recipient's name,
address, and telephone
number)
(Notarial affidavit)
____________________________ ____________________
Owner Date
(Owner's name,
address,
and telephone
number)
(Notarial affidavit)
855. The notification requirements of Section 851 shall not become
effective until 180 days after the effective date of this chapter.
850. The definitions set forth in Section 25260 of the Health and
Safety Code govern the construction of this chapter. In addition, the
following definitions apply for purposes of this chapter only:
(a) "Actual awareness" means actual knowledge of a fact pertaining
to an obligation under this chapter, including actual knowledge of a
release exceeding the notification threshold. Only actual awareness
possessed by those employees or representatives of an owner of a site
who are responsible for monitoring, responding to or otherwise
addressing the release shall be attributable to the owner. Only
actual awareness possessed by those employees or representatives of a
potentially responsible party who are responsible for monitoring,
responding to, or otherwise addressing, the release shall be
attributable to the potentially responsible party.
(b) "Commitment statement" means a written statement executed by
the notice recipient which recites expressly the language specified
in Section 854.
(c) "Mediation" means an informal process in which the disputing
parties select a neutral third party to assist them in reaching a
negotiated settlement in which the neutral third party has no power
to impose a solution on the parties, but rather has the power only to
assist the parties in shaping solutions to meet their interests and
objectives.
(d) "Negative response" means a written response by the recipient
of a notice of potential liability indicating that the recipient will
not undertake any response action, or a deemed negative response
pursuant to subdivision (c) of Section 851 in the event of the
recipient's failure to respond.
(e) "Neutral third party" means an experienced professional, such
as an attorney, engineer, environmentalist, hydrologist, or retired
judge, who has served as a mediator.
(f) "Notice of potential liability" means a notice, sent by the
owner of the site, stating that a release that exceeds the
notification threshold has occurred at the site and that the owner
believes that the recipient of the notice is a responsible party with
respect to the release. The notice of potential liability shall
describe the location of the site and the nature of the release.
(g) "Notice recipient" means any one of the following:
(1) A person who receives a notice of potential liability pursuant
to subdivision (a) of Section 851.
(2) A person who provides a release report pursuant to subdivision
(b) of Section 851.
(3) A person who offers a commitment statement to the owner of a
site pursuant to subdivision (c) of Section 851.
(h) "Notification threshold" means any release of such a magnitude
that:
(1) The release is the subject of a response action which has been
ordered by, or is being performed by, an oversight agency; or
(2) The release is impeding the ability of the owner of the site
to sell, lease, or otherwise use the site.
(i) "Operation and maintenance" means any activity as defined in
subdivision (a) of Section 25318.5 of the Health and Safety Code.
(j) "Oversight agency" means any agency, as defined in subdivision
(c) of Section 25260 of the Health and Safety Code, that has
jurisdiction over a response action performed in connection with a
release that is the subject of a notice of potential liability.
Subject to any other limitation imposed by law, an oversight agency
retains full discretion as to when it exercises jurisdiction over a
site.
(k) "Reasonable steps," as used in subdivision (a) of Section 851,
means the least expensive means available to ascertain the
potentially responsible parties. If the owner cannot otherwise
identify any apparent, potentially responsible parties, then
"reasonable steps" includes:
(1) Conducting a title search; and
(2) Reviewing all environmental reports in the owner's possession
of which the owner has actual awareness pertaining to the site.
(l) "Release" means the release, as defined in Sections 25320 and
25321 of the Health and Safety Code, of a hazardous material or
hazardous materials.
(m) "Release report" means a notice sent by a responsible party to
the owner of the site stating that a release has occurred on the
site which is likely to exceed the notification threshold. The
release report shall describe the location of the site and the nature
of the release.
(n) "Remedial action" means any action as defined in Section 25322
of the Health and Safety Code.
(o) "Removal action" means any action as defined in subdivision
(a) of Section 25323 of the Health and Safety Code.
(p) "Response action" means any removal actions, including, but
not limited to, site investigations and remedial actions, including,
but not limited to, operation and maintenance measures.
(q) "Responsible party" means any person who is liable under state
or local law for taking action in response to a release.
(r) "Site" means any parcel of commercial, industrial, or
agricultural real property where a hazardous materials release has
occurred.
(s) "Written action" means any official action by any oversight
agency where the oversight agency has expressly exercised its cleanup
authority in writing, pursuant to the oversight agency's procedures,
directing a response action at the site.
851. (a) An owner of a site who has actual awareness of a release
exceeding the notification threshold shall take all reasonable steps
as defined in subdivision (j) of Section 850 to expeditiously
identify the potentially responsible parties. The owner shall, as
soon as reasonably possible after obtaining actual awareness of the
potentially responsible parties, send a notice of potential liability
to the identified potentially responsible parties and the agency, as
defined in subdivision (c) of Section 25260 of the Health and Safety
Code, that the owner believes to be the appropriate oversight
agency. For any release exceeding the notification threshold of which
the owner has actual awareness that occurred prior to, but within
three years of, the effective date of this section, the notice shall
be given on or before December 31, 1998.
(b) A potentially responsible party who has actual awareness of a
release which is likely to exceed the notification threshold shall as
soon as reasonably possible after obtaining actual awareness of the
release provide the owner of the site where the release occurred with
a release report. For any release exceeding the notification
threshold of which the potentially responsible party has actual
awareness that occurred prior to, but within three years of, the
effective date of this section, the release report shall be given on
or before December 31, 1998. A potentially responsible party may
issue, at the potentially responsible party's option, a commitment
statement to the owner of the site within 120 days of the potentially
responsible party's issuance of a release report. The fact that a
release report is issued shall not constitute an admission of
liability and may not be admitted as evidence against a potentially
responsible party in any litigation.
(c) When a notice of potential liability is issued, a notice
recipient shall respond to the owner, in writing, and by certified
mail, return receipt requested, within 120 days from the date that
the notice of potential liability was mailed. The notice recipient's
response shall be either a commitment statement or a negative
response. The notice recipient's failure to submit the written
response within the 120-day period, or failure to strictly comply
with the form of the written response, as provided in Section 854,
shall be deemed a negative response. The owner may agree in writing
to extend the period during which the notice recipient may respond to
the notice of potential liability. An extension of up to 120 days
shall be provided if the notice recipient commits to do a site
investigation, the results of which shall be provided to the owner
and the oversight agency.
(d) (1) The common law duty to mitigate damages shall apply to any
failure of the owner of a site to give a timely notice of potential
liability when the owner is required to give this notice pursuant to
this chapter. Where an owner fails to mitigate damages by not giving
a timely notice of potential liability, the owner's damage claim
shall be reduced in accordance with common law principles by the
amount that the potentially responsible party proves would have
likely been mitigated had a timely notice of potential liability been
given.
(2) Common law principles shall apply to the failure of the
potentially responsible party to issue a timely release report. Where
a potentially responsible party fails to give a timely release
report, the potentially responsible party, in accordance with common
law principles, shall be responsible to the owner of the site, for
damages that the owner proves are likely caused by such failure to
provide a release report.
(3) Any party who argues the applicability of this subdivision
carries the burden of proof in that regard.
(4) Nothing in this section is intended to create a new cause of
action or defense beyond that which already exists under common law.
(5) Subdivisions (a) and (b), and paragraphs (1) and (2) of this
subdivision, shall not apply when the party to whom a notice of
potential liability or release report is owed already possesses
actual awareness of the information required to be transmitted in
such notice of potential liability or release report.
(e) (1) Except as provided in paragraph (2), the requirements of
this chapter shall not apply to a site listed pursuant to Section
25356 of the Health and Safety Code for response action pursuant to
Chapter 6.8 (commencing with Section 25300) of Division 20 of the
Health and Safety Code or to a site where an oversight agency has
issued an order or entered into an enforceable agreement pursuant to
any authority, including, but not limited to, an order or enforceable
agreement entered into by a local agency, the Department of Toxic
Substance Control, the State Water Resources Control Board, or a
regional water quality control board pursuant to Chapter 6.5
(commencing with Section 25100), Chapter 6.7 (commencing with Section
25280), Chapter 6.75 (commencing with Section 25299.10), Chapter 6.8
(commencing with Section 25300), Chapter 6.85 (commencing with
Section 25396), or Chapter 6.11 (commencing with Section 25404) of
Division 20 of the Health and Safety Code, or pursuant to Division 7
(commencing with Section 13000) of the Water Code.
(2) The requirements of this chapter shall apply if either of the
following applies:
(A) The order or enforceable agreement is issued or entered into
after the owner accepts a commitment statement.
(B) The Department of Toxic Substance Control, State Water
Resources Control Board, or regional water quality control board that
issued the order or entered into an enforceable agreement consents
in writing to the applicability of this chapter to the site.
(f) It is the intent of the Legislature for this chapter to
resolve disputes between, and affect the rights of, private parties
only. Nothing in this chapter shall affect the authority of the
Department of Toxic Substance Control, the State Water Resources
Control Board, a regional water quality control board, or any other
oversight agency.
(g) Notwithstanding any other provision of this chapter, any time
prior to accepting a commitment statement, the owner may provide the
notice to the notice recipient that the provisions of subdivision
(c), paragraph (2) of subdivision (e), and Sections 852 and 854,
shall not apply to the site, in which case the provisions of
subdivision (c), paragraph (2) of subdivision (e), and Sections 852
and 854 shall not apply to the site and the owner and notice
recipient shall be entitled to pursue all other legal remedies and
defenses authorized by law.
852. (a) Within 45 days after issuance of the commitment statement,
the owner may transmit to the notice recipient by certified mail,
return receipt requested, an executed copy of the commitment
statement, indicating its acceptance. If the owner does not execute
the commitment statement, the commitment statement shall be deemed to
have been rejected upon expiration of the 45-day period. A notice
recipient has no obligation with respect to the provisions of a
rejected commitment statement.
(b) (1) Except as otherwise provided in this chapter, or unless
the owner or the notice recipient has elected not to proceed with the
mediation, if the owner rejects the commitment statement, the owner
and notice recipient shall participate in a mediation process prior
to the commencement of any litigation which pertains to a release
covered by the commitment statement. The mediation process shall be
supervised by a neutral third party mutually agreed upon by the owner
and the notice recipient in order to mediate a mutually agreeable
settlement between the owner and notice recipient of all issues
related to the release.
(2) Either the notice recipient or the owner may elect not to
proceed further with the mediation process at any time prior to
completion of those proceedings.
(3) To the extent a mutually agreeable settlement is reached which
allocates the liability and assigns the rights and obligations of
the owner and notice recipient in a manner different from or
inconsistent with this chapter, the settlement shall supersede the
terms of this chapter pursuant to subdivision (f) of Section 853. If
a settlement of all issues cannot be reached within 90 days after the
owner's rejection of the commitment statement, the neutral third
party shall declare the mediation process unsuccessful and terminate
the process. The owner and notice recipient may mutually agree to
extend the mediation process but shall communicate any such extension
in writing to the neutral third party. If the party issuing the
commitment statement fails, for any reason, to participate in the
mediation within 90 days of the rejection of the commitment
statement, the owner may proceed with litigation.
(4) After the termination of an unsuccessful mediation process,
the parties shall be free to litigate or otherwise resolve their
respective claims. The parties may mutually agree to the terms of the
commitment statement at any time after the termination of an
unsuccessful mediation process, in which case this chapter shall
govern the rights and obligations of the parties.
(5) Any applicable statute of limitations shall be tolled for 90
days following issuance of a notice of potential liability, a release
report, or a commitment statement.
(6) Any applicable statute of limitations shall be tolled from the
time the owner rejects a commitment statement until the termination
of the mediation process. If mediation is not commenced within 90
days after the owner's rejection of the commitment statement, the
tolling of the statute of limitations shall terminate unless
otherwise agreed to by the parties.
(7) Unless the owner and notice recipient agree otherwise, the
fees and costs of the neutral third party shall be borne equally by
the notice recipient and the owner.
(c) Upon taking effect, the commitment statement shall have all of
the following results:
(1) The commitment statement shall constitute a binding promise
that the notice recipient will undertake any response action as
required by an oversight agency through a written action, directed to
the owner or notice recipient, in connection with the release that
is the subject of the notice of potential liability or release
report. The commitment statement shall not create any obligations
with respect to releases occurring after the commitment statement is
signed, or with respect to any other release that is not the subject
of the notice of potential liability.
(2) The commitment statement shall constitute a binding promise
that the owner shall provide reasonable site access to the notice
recipient to take any action that is reasonably necessary or
appropriate to conduct a response action. This grant of access shall
not affect the rights of the owner if the notice recipient's
activities onsite result in physical damage to the site which the
notice recipient fails to repair within a reasonable period after
completion of all onsite activities. Unless otherwise ordered by the
oversight agency, the notice recipient shall take all reasonable
steps to avoid interfering with the owner's use of the site.
(3) Except for civil actions seeking damages for personal injury
or wrongful death, once a commitment statement has been accepted, the
court shall stay any action brought by the owner of the site against
the notice recipient that issued the commitment statement,
including, but not limited to, actions in trespass, nuisance,
negligence, and strict liability, which arise from or relate to a
release for which a commitment statement has been issued. The stay
shall be effective for a period of not more than two years from the
date of acceptance of the commitment statement, but only so long as
the site response action is proceeding to the satisfaction of an
oversight agency. The stay shall not apply to any civil action that
is based on fraud, failure to disclose, or misrepresentation related
to any transaction between the owner of the site and the notice
recipient, to any civil action for breach of the commitment
statement, or to any civil action which is unrelated to the release.
The owner and notice recipient may elect to extend the period of the
stay by written agreement.
(4) In an action by an owner who has accepted a commitment
statement against the notice recipient who issued the commitment
statement, and which arises from or relates to a release for which a
commitment statement has been issued, only the following damages
shall be recoverable to the extent otherwise authorized by law:
(A) Damages for personal injuries or wrongful death caused by the
release.
(B) Damages for breach of a commitment statement.
(C) Damages from the failure of a prospective purchaser to perform
under a sales contract because of the release, where such failure to
perform occurs prior to the issuance of the commitment statement.
(D) Damages for the lost use of the property prior to the issuance
of a commitment statement caused by the release.
(E) Recovery of costs of investigating and responding to the
release where such costs are incurred prior to the issuance of the
commitment statement.
(F) Remedies for any breach of a preexisting contract entered into
prior to the acceptance of a commitment statement.
(G) Damages for lost rents and any other damages recoverable under
law associated with lost use of the site caused by any notice
recipient during site response action activities.
(5) An owner may obtain rescission of a commitment statement if a
notice recipient repudiates its obligations under the commitment
statement, in which case Sections 852 and 854 shall no longer apply
to the site.
(6) The notice recipient and owner shall copy each other with
respect to all correspondence and proposed workplans to and from the
oversight agency that relate to the site.
(d) Nothing in this chapter shall affect the authority of an
oversight agency under the law to bring an administrative, criminal,
or civil action against either a notice recipient or the owner, nor
does it compel any action on the part of the oversight agency.
(e) At any time after the commitment statement is accepted, either
the owner or the notice recipient may file an action against the
other for material breach of rights and obligations associated with
the commitment statement. Subject to the stay provided for in
paragraph (3) of subdivision (c), the parties may litigate these
claims in the same action as any other claims they may have in
connection with the release that is the subject of the commitment
statement.
(f) Whenever a notice recipient issues a commitment statement, the
following notice shall be provided in 14 point boldface type if
printed or in boldface capital letters if typed:
"THIS FORM WAS DEVELOPED AS PART OF A PROCESS ENACTED BY THE
CALIFORNIA LEGISLATURE TO PROVIDE OWNERS OF PROPERTY AND POTENTIALLY
RESPONSIBLE PARTIES AN ALTERNATIVE TO LITIGATING DISPUTES OVER
CONTAMINATION. IT IS YOUR OPTION AS TO WHETHER YOU SIGN THIS FORM OR
OTHERWISE PARTICIPATE IN THIS PROCESS. IF YOU CHOOSE NOT TO
PARTICIPATE IN THE PROCESS, YOU SHOULD NOTIFY THE PARTY WHO SENT YOU
THIS FORM. THIS FORM INVOLVES A TRADEOFF WHEREBY EACH PARTY ACQUIRES
AND RELINQUISHES CERTAIN RIGHTS. UNDER THIS FORM, THE PROPERTY OWNER
GETS THE ASSURANCE THAT THE POTENTIALLY RESPONSIBLE PARTY IS
OBLIGATED TO PERFORM INVESTIGATORY AND CLEANUP ACTIONS IN THE EVENT
THAT GOVERNMENT AUTHORITIES ELECT TO REQUIRE THESE ACTIONS. ON THE
OTHER HAND, THE PROPERTY OWNER FOREGOES CERTAIN CLAIMS ASSOCIATED
WITH RESIDUAL CONTAMINATION THAT GOVERNMENTAL AUTHORITIES ALLOW TO
REMAIN IN PLACE ON THE PROPERTY. IF YOU ELECT NOT TO SIGN THIS FORM,
THE PROCESS DEVELOPED BY THE LEGISLATURE CONTEMPLATES THAT YOU WILL
ATTEMPT TO MEDIATE ANY DISPUTES REGARDING THE CONTAMINATION.
HOWEVER, MEDIATION IS NEITHER MANDATORY NOR BINDING. IF YOU HAVE
QUESTIONS ABOUT THE PROCESS, YOU MAY WISH TO CONSULT AN ATTORNEY."
(g) Any applicable statute of limitations shall be tolled for two
and one-half years from the date of acceptance of the commitment
statement. If at the end of two years from the date of acceptance of
the commitment statement an oversight agency has not issued a written
action directed to the owner or notice recipient, the owner has 60
days in which he or she may terminate the commitment statement; and,
in this event, it shall have no further force or effect. In the event
the owner terminates the commitment statement, subdivision (c) shall
no longer apply to the site and shall no longer govern the rights
and obligations of the owner or notice recipient.
853. (a) Neither the failure to issue a commitment statement nor
its issuance shall be construed as an admission that the recipient of
the notice of potential liability is liable under any federal,
state, or local law, including common law, for the release that the
party agrees to investigate or respond. Neither the failure to issue
a commitment statement nor the contents of the commitment statement
shall be admissible evidence in any proceeding, as defined in Section
901 of the Evidence Code, except that the contents of the commitment
statement shall be admissible evidence in an action to enforce the
commitment statement to the extent that such contents would be
admissible under other applicable law.
(b) Nothing in this chapter shall subject a notice recipient to
any damages, fines, or penalties for a failure to make a written
response, either positive or negative, to a notice of potential
liability.
(c) Nothing in this chapter shall subject the owner of a site to
any damages, fines, or penalties for a failure to send a notice of
potential liability pursuant to Section 851. Failure by the owner of
a site to send a notice of potential liability of a release in a
timely fashion shall not be deemed to create any liability for the
owner under a theory of negligence per se.
(d) Nothing in this chapter imposes an affirmative duty on the
owner of a site, or any potentially responsible party, to discover,
or determine the nature or extent of, a hazardous materials release
at the site. This chapter does not affect such an affirmative duty to
the extent it is imposed by any other law.
(e) Subject to the defenses specified in Section 101(35) and 107
(b) of the federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Secs.
9601(35) and 9607(b)), a cause of action is hereby established
whereby a notice recipient may recover from any responsible party any
reasonable response costs for conducting a response action as may be
approved or overseen by an oversight agency or as incurred pursuant
to a commitment statement. Liability among responsible parties shall
be allocated based upon the equitable factors specified in
subdivision (c) of Section 25356.3 of the Health and Safety Code. No
third-party beneficiary rights are created by a commitment statement,
except as provided in subdivision (b) of Section 854. This cause of
action applies to costs incurred prior to enactment of this
subdivision. However, no recovery may be obtained under this
subdivision for costs incurred more than three years prior to the
filing of litigation to recover those costs. The cause of action
established pursuant to this subdivision shall not apply against a
current or former owner of a site unless that owner operated a
business that caused a release being addressed by a response action
at the site and the costs incurred by the notice recipient were in
response to a release caused by the owner.
(f) Nothing in this chapter shall affect or limit the rights of an
owner under preexisting contract. Nothing in this chapter shall
affect or limit the right of a notice recipient and owner to agree to
an allocation of liability or to an assignment of rights and
obligations that is different from or inconsistent with this chapter.
Such agreements shall supersede the terms of this chapter.
(g) Nothing in this chapter shall make a notice recipient a
responsible party, beyond the obligations the notice recipient
undertakes pursuant to this chapter.
(h) Nothing in this chapter shall apply to causes of action for
wrongful death or personal injury. However, the pleading of a cause
of action for wrongful death or personal injury shall not affect the
applicability of this chapter to other causes of action in the same
civil action.
854. A commitment statement shall be executed in substantially the
following form:
NOTICE OF ASSUMPTION OF
COUNTY OF __________ GOVERNMENT IMPOSED SITE
STATE OF
INVESTIGATION AND/OR
CALIFORNIA
REMEDIAL ACTION ORDERS
(COMMITMENT STATEMENT)
(a) The undersigned notice recipient is aware of, or has received
a notice of potential liability pursuant to, Section 851 of the Civil
Code ("notice of potential liability") in connection with a release
of hazardous materials at a parcel of property ("site") having the
following legal description: (Insert description here)
(b) The undersigned notice recipient and the undersigned owner of
the site and the owner's successors, heirs, and assigns agree, upon
the proper and timely execution and delivery of this commitment
statement, to abide by the requirements of Chapter 3 (commencing with
Section 850) of Title 3 of Part 2 of Division 2 in connection with
the release that is the subject of the notice of potential liability.
(c) The undersigned notice recipient hereby commits to undertake
any response action as required by an oversight agency through a
written action, directed to the owner or notice recipient, in
connection with the release that is the subject of the notice of
potential liability or release report. This commitment runs with the
land and binds, in addition to the current owner of the site, all of
the owner's successors in interest, including current and future
lenders having a security interest in the site.
(d) The owner of the site and the owner's successors, heirs, and
assigns agree, upon the proper and timely execution and delivery of
this commitment statement, to all of the following:
(1) The undersigned notice recipient or the party's designee shall
be allowed such access to the site as may be required to perform its
obligations under this commitment statement, provided that the
undersigned notice recipient shall be liable for any physical damage
it causes in conducting a response action, which the notice recipient
fails to repair within a reasonable period after completion of all
onsite activities.
(2) The parties, their successors, heirs, and assigns shall
provide each other with copies of any communication or correspondence
with an oversight agency in connection with the release of hazardous
materials at the site.
(3) Provided that the undersigned notice recipient performs all of
its obligations under this commitment statement, and except as
otherwise provided in subdivisions (c) and (e) of Section 852 of the
Civil Code, no claim for damages, accruing after the acceptance of
the commitment statement, shall be brought against the undersigned
notice recipient by the owner of the site or by the owner's
successors, heirs, and assigns.
(e) The contents of this commitment statement shall be
inadmissible evidence in any proceeding, as defined in Section 901 of
the Evidence Code, except in an action to enforce this commitment
statement to the extent that such contents would be admissible under
other applicable law. This commitment statement may be enforced fully
by the owner of the site and all parties identified in paragraph
(b). There are no third-party beneficiary rights created by this
commitment statement.
(f) The owner of the site shall provide a copy of this commitment
statement to any prospective purchaser or lessee of the site until
this commitment statement is terminated or until all response actions
have been completed in accordance with the commitment statement.
(g) If the owner transfers the site, the owner shall notify the
undersigned parties to this commitment statement, by mail, within 14
business days of the property transfer.
(h) As provided by law, this commitment statement shall become
effective if the owner executes this commitment statement within 45
days from the date of issuance, in which case its terms shall go into
effect upon receipt of that acceptance by the issuer of this
commitment statement. If the owner rejects this commitment statement,
the rejection shall be subject to the mediation provisions of
subdivision (b) of Section 852.
(i) If at the end of two years from the date of acceptance of this
commitment statement, an oversight agency has not issued a written
action directed to the owner or notice recipient, the owner has 60
days in which he or she may terminate the commitment statement; and,
in this event, it shall have no further force or effect.
____________________________ ____________________
Notice recipient Date
(Notice recipient's name,
address, and telephone
number)
(Notarial affidavit)
____________________________ ____________________
Owner Date
(Owner's name,
address,
and telephone
number)
(Notarial affidavit)
855. The notification requirements of Section 851 shall not become
effective until 180 days after the effective date of this chapter.
