33459. For purposes of this article, the following terms shall have
the following meanings:
(a) "Department" means the Department of Toxic Substances Control.
(b) "Director" means the Director of Toxic Substances Control.
(c) "Hazardous substance" means any hazardous substance as defined
in subdivision (h) of Section 25281, and any reference to hazardous
substance in the definitions referenced in this section shall be
deemed to refer to hazardous substance, as defined in this
subdivision.
(d) "Local agency" means a single local agency that is one of the
following:
(1) A local agency authorized pursuant to Section 25283 to
implement Chapter 6.7 (commencing with Section 25280) of, and Chapter
6.75 (commencing with Section 25299.10) of, Division 20.
(2) A local officer who is authorized pursuant to Section 101087
to supervise a remedial action.
(e) "Qualified independent contractor" means an independent
contractor who is any of the following:
(1) An engineering geologist who is certified pursuant to Section
7842 of the Business and Professions Code.
(2) A geologist who is registered pursuant to Section 7850 of the
Business and Professions Code.
(3) A civil engineer who is registered pursuant to Section 6762 of
the Business and Professions Code.
(f) "Release" means any release, as defined in Section 25320.
(g) "Remedy" or "remove" means any action to assess, evaluate,
investigate, monitor, remove, correct, clean up, or abate a release
of a hazardous substance or to develop plans for those actions.
"Remedy" includes any action set forth in Section 25322 and "remove"
includes any action set forth in Section 25323.
(h) "Responsible party" means any person described in subdivision
(a) of Section 25323.5 of this code or subdivision (a) of Section
13304 of the Water Code.
33459.01. This article shall be known, and may be cited as, the
"Polanco Redevelopment Act."
33459.1. (a) (1) An agency may take any actions that the agency
determines are necessary and that are consistent with other state and
federal laws to remedy or remove a release of hazardous substances
on, under, or from property within a project area, whether the agency
owns that property or not, subject to the conditions specified in
subdivision (b). Unless an administering agency has been designated
under Section 25262, the agency shall request cleanup guidelines from
the department or the California regional water quality control
board before taking action to remedy or remove a release. The
department or the California regional water quality control board
shall respond to the agency's request to provide cleanup guidelines
within a reasonable period of time. The agency shall thereafter
submit for approval a cleanup or remedial action plan to the
department or the California regional water quality control board
before taking action to remedy or remove a release. The department or
the California regional water quality control board shall respond to
the agency's request for approval of a cleanup or remedial action
plan within a reasonable period of time.
(2) The agency shall provide the department and local health and
building departments, the California regional water quality control
board, with notification of any cleanup activity pursuant to this
section at least 30 days before the commencement of the activity. If
an action taken by an agency or a responsible party to remedy or
remove a release of a hazardous substance does not meet, or is not
consistent with, a remedial action plan or cleanup plan approved by
the department or the California regional water quality control
board, the department or the California regional water quality
control board that approved the cleanup or remedial action plan may
require the agency to take, or cause the taking of, additional action
to remedy or remove the release, as provided by applicable law. If
an administering agency for the site has been designated under
Section 25262, any requirement for additional action may be imposed
only as provided in Sections 25263 and 25265. If methane or landfill
gas is present, the agency shall obtain written approval from the
California Integrated Waste Management Board prior to taking that
action.
(b) Except as provided in subdivision (c), an agency may take the
actions specified in subdivision (a) only under one of the following
conditions:
(1) There is no responsible party for the release identified by
the agency.
(2) A party determined by the agency to be a responsible party for
the release has been notified by the agency or has received adequate
notice from the department, a California regional water quality
control board, the Environmental Protection Agency, or other
governmental agency with relevant authority and has been given 60
days to respond and to propose a remedial action plan and schedule,
and the responsible party has not agreed within an additional 60 days
to implement a plan and schedule to remedy or remove the release
that is acceptable to the agency and that has been found by the
agency to be consistent, to the maximum extent possible, with the
priorities, guidelines, criteria, and regulations contained in the
National Contingency Plan and published pursuant to Section 9605 of
Title 42 of the United States Code for similar releases, situations,
or events.
(3) The party determined by the agency to be the responsible party
for the hazardous substance release entered into an agreement with
the agency to prepare a remedial action plan for approval by the
department, the California regional water quality control board, or
the appropriate local agency and to implement the remedial action
plan in accordance with an agreed schedule, but failed to prepare the
remedial action plan, failed to implement the remedial action plan
in accordance with the agreed schedule, or otherwise failed to carry
out the remedial action in an appropriate and timely manner. Any
action taken by the agency pursuant to this paragraph shall be
consistent with any agreement between the agency and the responsible
party and with the requirements of the state or local agency that
approved or will approve the remedial action plan and is overseeing
or will oversee the preparation and implementation of the remedial
action plan.
(c) Subdivision (b) does not apply to either of the following
agencies:
(1) An agency taking actions to investigate or conduct feasibility
studies concerning a release.
(2) An agency taking the actions specified in subdivision (a) if
the agency determines that conditions require immediate action.
(d) An agency may designate a local agency in lieu of the
department or the California regional water quality control board to
review and approve a cleanup or remedial action plan and to oversee
the remediation or removal of hazardous substances from a specific
hazardous substance release site in accordance with the following
conditions:
(1) The local agency may be so designated if it is designated as
the administering agency under Section 25262. In that event, the
local agency, as the administering agency, shall conduct the
oversight of the remedial action in accordance with Chapter 6.65
(commencing with Section 25260) and all provisions of that chapter
shall apply to the remedial action.
(2) The local agency may be so designated if cleanup guidelines
were requested from a California regional water quality control
board, and the site is an underground storage tank site subject to
Chapter 6.7 (commencing with Section 25280) of Division 20, the local
agency has been certified as a certified unified program agency
pursuant to Section 25404.1, the State Water Resources Control Board
has entered into an agreement with the local agency for oversight of
those sites pursuant to Section 25297.1, the local agency determines
that the site is within the guidelines and protocols established in,
and pursuant to, that agreement, and the local agency consents to the
designation.
(3) A local agency may not consent to the designation by an agency
unless the local agency determines that it has adequate staff
resources and the requisite technical expertise and capabilities
available to adequately supervise the remedial action.
(4) (A) Where a local agency has been designated pursuant to
paragraph (2), the department or a California regional water quality
control board may require that a local agency withdraw from the
designation, after providing the agency with adequate notice, if both
of the following conditions are met:
(i) The department or a California regional water quality control
board determines that an agency's designation of a local agency was
not consistent with paragraph (2), or makes one of the findings
specified in subdivision (d) of Section 101480.
(ii) The department or a California regional water quality control
board determines that it has adequate staff resources and
capabilities available to adequately supervise the remedial action,
and assumes that responsibility.
(B) Nothing in this paragraph prevents a California regional water
quality control board from taking any action pursuant to Division 7
(commencing with Section 13000) of the Water Code.
(5) Where a local agency has been designated pursuant to paragraph
(2), the local agency may, after providing the agency with adequate
notice, withdraw from its designation after making one of the
findings specified in subdivision (d) of Section 101480.
(e) To facilitate redevelopment planning, the agency may require
the owner or operator of any site within a project area to provide
the agency with all existing environmental information pertaining to
the site, including the results of any Phase I or subsequent
environmental assessment, as defined in Section 25200.14, any
assessment conducted pursuant to an order from, or agreement with,
any federal, state or local agency, and any other environmental
assessment information, except that which is determined to be
privileged. The person requested to furnish the information shall be
required only to furnish that information as may be within their
possession or control, including actual knowledge of information
within the possession or control of any other party. If environmental
assessment information is not available, the agency may require the
owner of the property to conduct an assessment in accordance with
standard real estate practices for conducting phase I or phase II
environmental assessments.
33459.3. (a) Notwithstanding any other provision of law, except as
provided in Section 33459.7, an agency that undertakes and completes
an action, or causes another person to undertake and complete an
action pursuant to Section 33459.1, as specified in subdivision (c),
to remedy or remove a hazardous substance release on, under, or from
property within a redevelopment project, in accordance with a cleanup
or remedial action plan prepared by a qualified independent
contractor and approved by the department or a California regional
water quality control board or the local agency, as appropriate,
pursuant to subdivision (b), is not liable, with respect to that
release only, under Division 7 (commencing with Section 13000) of the
Water Code or Chapter 6.5 (commencing with Section 25100), Chapter
6.7 (commencing with Section 25280), Chapter 6.75 (commencing with
Section 25299.10), or Chapter 6.8 (commencing with Section 25300), of
Division 20 of this code, or any other state or local law providing
liability for remedial or removal actions for releases of hazardous
substances. If the remedial action was also performed pursuant to
Chapter 6.65 (commencing with Section 25260) of Division 20, and a
certificate of completion is issued pursuant to subdivision (b) of
Section 25264, the immunity from agency action provided by the
certificate of completion, as specified in subdivision (c) of Section
25264, shall apply to the agency, in addition to the immunity
conferred by this section. In the case of a remedial action performed
pursuant to Chapter 6.65 (commencing with Section 25260) of Division
20, and for which the administering agency is a local agency, the
limitations on the certificate of completion set forth in paragraphs
(1) to (6), inclusive, of subdivision (c) of Section 25264 are limits
on any immunity provided for by this section and subdivision (c) of
Section 25264.
(b) Upon approval of any cleanup or remedial action plan, pursuant
to applicable statutes and regulations, the director or the
California regional water quality control board or the local agency,
as appropriate, shall acknowledge, in writing, within 60 days of the
date of approval, that upon proper completion of the remedial or
removal action in accordance with the plan, the immunity provided by
this section shall apply to the agency.
(c) Notwithstanding any provision of law or policy providing for
certification by a person conducting a remedial or removal action
that the action has been properly completed, a determination that a
remedial or removal action has been properly completed pursuant to
this section shall be made only upon the affirmative approval of the
director or the California regional water quality control board or
the local agency, as appropriate. The department, California regional
water quality control board, or local agency, as appropriate, shall,
within 60 days of the date it finds that a remedial action has been
completed, notify the agency in writing that the immunity provided by
this section is in effect.
(d) The approval of a cleanup or remedial action plan under this
section by a local agency shall also be subject to the concurrent
approval of the department or a California regional water quality
control board when the agency receiving the approval was formed by
the same entity of which the local agency is a part.
(e) Upon proper completion of a remedial or removal action, as
specified in subdivision (c), the immunity from agency action
provided by the certificate of completion provided pursuant to
subdivision (c) of Section 25264 and the immunity provided by this
section extends to all of the following, but only for the release or
releases specifically identified in the approved cleanup or remedial
action plan and not for any subsequent release or any release not
specifically identified in the approved cleanup or remedial action
plan:
(1) Any employee or agent of the agency, including an
instrumentality of the agency authorized to exercise some, or all, of
the powers of an agency within, or for the benefit of, a
redevelopment project and any employee or agent of the
instrumentality.
(2) Any person who enters into an agreement with an agency for the
redevelopment of property, if the agreement requires the person to
acquire property affected by a hazardous substance release or to
remove or remedy a hazardous substance release with respect to that
property.
(3) Any person who acquires the property after a person has
entered into an agreement with an agency for redevelopment of the
property as described in paragraph (2).
(4) Any person who provided financing to a person specified in
paragraph (2) or (3).
(f) Notwithstanding any other provision of law, the immunity
provided by this section does not extend to any of the following:
(1) Any person who was a responsible party for the release before
entering into an agreement, acquiring property, or providing
financing, as specified in subdivision (e).
(2) Any person specified in subdivision (a) or (e) for any
subsequent release of a hazardous substance or any release of a
hazardous substance not specifically identified in the approved
cleanup or remedial action plan.
(3) Any contractor who prepares the cleanup or remedial action
plan, or conducts the removal or remedial action.
(4) Any person who obtains an approval, as specified in
subdivision (b), or a determination, as specified in subdivision (c),
by fraud, negligent or intentional nondisclosure, or
misrepresentation, and any person who knows before the approval or
determination is obtained or before the person enters into an
agreement, acquires the property or provides financing, as specified
in subdivision (e), that the approval or determination was obtained
by these means.
(g) The immunity provided by this section is in addition to any
other immunity of an agency provided by law.
(h) This section does not impair any cause of action by an agency
or any other party against the person, firm, or entity responsible
for the hazardous substance release which is the subject of the
removal or remedial action taken by the agency or other person immune
from liability pursuant to this section.
(i) This section does not apply to, or limit, alter, or restrict,
any action for personal injury, property damage, or wrongful death.
(j) This section does not limit liability of a person described in
paragraph (3) or (4) of subdivision (e) for damages under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).
(k) This section does not establish, limit, or affect the
liability of an agency for any release of a hazardous substance that
is not investigated or remediated pursuant to this section or Chapter
6.65 (commencing with Section 25260) of Division 20.
( l) The immunity provided for by this section is only conferred
if both of the following apply:
(1) The action is in accordance with a cleanup or remedial action
plan prepared by a qualified independent contractor and approved by
the department or a California regional water quality control board
or the local agency, as appropriate, pursuant to subdivision (b).
(2) The remedial or removal action is undertaken and properly
completed, as specified in subdivision (c).
(m) The agency shall reimburse the department, the California
regional water quality control board, and the local agency for costs
incurred in reviewing or approving cleanup or remedial action plans
pursuant to this section.
33459.4. (a) Except as provided in Section 33459.7, if a
redevelopment agency undertakes action to remedy or remove, or to
require others to remedy or remove, including compelling a
responsible party through a civil action, to remedy or remove a
release of hazardous substance, any responsible party or parties
shall be liable to the redevelopment agency for the costs incurred in
the action. An agency may not recover the costs of goods and
services that were not procured in accordance with applicable
procurement procedures. The amount of the costs shall include the
interest on the costs accrued from the date of expenditure and
reasonable attorney's fees and shall be recoverable in a civil
action. Interest shall be calculated based on the average annual rate
of return on an agency's investment of surplus funds for the fiscal
year in which costs were incurred.
(b) The only defenses available to a responsible party shall be
the defenses specified in subdivision (b) of Section 25323.5.
(c) An agency may recover any costs incurred to develop and to
implement a cleanup or remedial action plan approved pursuant to
Sections 33459.1 and 33459.3, to the same extent the department is
authorized to recover those costs. The scope and standard of
liability for cost recovery pursuant to this section shall be the
scope and standard of liability under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. Sec. 9601 et seq.) as that act would apply to the department;
provided, however, that any reference to hazardous substance therein
shall be deemed to refer to hazardous substance as defined in
subdivision (c) of Section 33459.
(d) An action for recovery of costs of a remedy or removal
undertaken by a redevelopment agency under this section shall be
commenced within three years after completion of the remedy or
removal.
(e) The action to recover costs provided by this section is in
addition to, and is not to be construed as restricting, any other
cause of action available to a redevelopment agency.
(f) Except as provided in subdivision (m) of Section 33459.3,
notwithstanding any other provision of state law or policy, an agency
that undertakes and completes a remedial action, or otherwise causes
a remedial action to be undertaken and completed pursuant to
Sections 33459.1 and 33459.3, shall not be liable based on its
ownership of property after a release occurred, for any costs that
any responsible party for that release incurs to investigate or
remediate the release or to compensate others for the effects of that
release.
33459.5. Except as provided in Section 33459.3, nothing in this
article shall limit the powers of the State Water Resources Control
Board or a California regional water quality control board to enforce
Division 7 (commencing with Section 13000) of the Water Code.
33459.8. If an agency undertakes any action to remedy or remove a
release of hazardous substances on, under, or from property within a
project area, the agency shall amend its redevelopment plan and
follow the same procedure, as specified, and the legislative body is
subject to the same restrictions as provided for in Article 4
(commencing with Section 33330), for the adoption of a redevelopment
plan, if the agency determines that as a result of the remedial or
removal action, it will also be taking any of the following actions:
(a) Proposing to add new territory to the project area.
(b) Increasing either the limitation on the amount of funds to be
allocated to the agency or the time limit on the establishing of
loans, advances, and indebtedness established pursuant to
subdivisions (1) and (2) of Section 33333.2.
(c) Lengthening the period during which the redevelopment plan is
effective.
(d) Merging project areas.
(e) Adding significant additional capital improvement projects.
33459. For purposes of this article, the following terms shall have
the following meanings:
(a) "Department" means the Department of Toxic Substances Control.
(b) "Director" means the Director of Toxic Substances Control.
(c) "Hazardous substance" means any hazardous substance as defined
in subdivision (h) of Section 25281, and any reference to hazardous
substance in the definitions referenced in this section shall be
deemed to refer to hazardous substance, as defined in this
subdivision.
(d) "Local agency" means a single local agency that is one of the
following:
(1) A local agency authorized pursuant to Section 25283 to
implement Chapter 6.7 (commencing with Section 25280) of, and Chapter
6.75 (commencing with Section 25299.10) of, Division 20.
(2) A local officer who is authorized pursuant to Section 101087
to supervise a remedial action.
(e) "Qualified independent contractor" means an independent
contractor who is any of the following:
(1) An engineering geologist who is certified pursuant to Section
7842 of the Business and Professions Code.
(2) A geologist who is registered pursuant to Section 7850 of the
Business and Professions Code.
(3) A civil engineer who is registered pursuant to Section 6762 of
the Business and Professions Code.
(f) "Release" means any release, as defined in Section 25320.
(g) "Remedy" or "remove" means any action to assess, evaluate,
investigate, monitor, remove, correct, clean up, or abate a release
of a hazardous substance or to develop plans for those actions.
"Remedy" includes any action set forth in Section 25322 and "remove"
includes any action set forth in Section 25323.
(h) "Responsible party" means any person described in subdivision
(a) of Section 25323.5 of this code or subdivision (a) of Section
13304 of the Water Code.
33459.01. This article shall be known, and may be cited as, the
"Polanco Redevelopment Act."
33459.1. (a) (1) An agency may take any actions that the agency
determines are necessary and that are consistent with other state and
federal laws to remedy or remove a release of hazardous substances
on, under, or from property within a project area, whether the agency
owns that property or not, subject to the conditions specified in
subdivision (b). Unless an administering agency has been designated
under Section 25262, the agency shall request cleanup guidelines from
the department or the California regional water quality control
board before taking action to remedy or remove a release. The
department or the California regional water quality control board
shall respond to the agency's request to provide cleanup guidelines
within a reasonable period of time. The agency shall thereafter
submit for approval a cleanup or remedial action plan to the
department or the California regional water quality control board
before taking action to remedy or remove a release. The department or
the California regional water quality control board shall respond to
the agency's request for approval of a cleanup or remedial action
plan within a reasonable period of time.
(2) The agency shall provide the department and local health and
building departments, the California regional water quality control
board, with notification of any cleanup activity pursuant to this
section at least 30 days before the commencement of the activity. If
an action taken by an agency or a responsible party to remedy or
remove a release of a hazardous substance does not meet, or is not
consistent with, a remedial action plan or cleanup plan approved by
the department or the California regional water quality control
board, the department or the California regional water quality
control board that approved the cleanup or remedial action plan may
require the agency to take, or cause the taking of, additional action
to remedy or remove the release, as provided by applicable law. If
an administering agency for the site has been designated under
Section 25262, any requirement for additional action may be imposed
only as provided in Sections 25263 and 25265. If methane or landfill
gas is present, the agency shall obtain written approval from the
California Integrated Waste Management Board prior to taking that
action.
(b) Except as provided in subdivision (c), an agency may take the
actions specified in subdivision (a) only under one of the following
conditions:
(1) There is no responsible party for the release identified by
the agency.
(2) A party determined by the agency to be a responsible party for
the release has been notified by the agency or has received adequate
notice from the department, a California regional water quality
control board, the Environmental Protection Agency, or other
governmental agency with relevant authority and has been given 60
days to respond and to propose a remedial action plan and schedule,
and the responsible party has not agreed within an additional 60 days
to implement a plan and schedule to remedy or remove the release
that is acceptable to the agency and that has been found by the
agency to be consistent, to the maximum extent possible, with the
priorities, guidelines, criteria, and regulations contained in the
National Contingency Plan and published pursuant to Section 9605 of
Title 42 of the United States Code for similar releases, situations,
or events.
(3) The party determined by the agency to be the responsible party
for the hazardous substance release entered into an agreement with
the agency to prepare a remedial action plan for approval by the
department, the California regional water quality control board, or
the appropriate local agency and to implement the remedial action
plan in accordance with an agreed schedule, but failed to prepare the
remedial action plan, failed to implement the remedial action plan
in accordance with the agreed schedule, or otherwise failed to carry
out the remedial action in an appropriate and timely manner. Any
action taken by the agency pursuant to this paragraph shall be
consistent with any agreement between the agency and the responsible
party and with the requirements of the state or local agency that
approved or will approve the remedial action plan and is overseeing
or will oversee the preparation and implementation of the remedial
action plan.
(c) Subdivision (b) does not apply to either of the following
agencies:
(1) An agency taking actions to investigate or conduct feasibility
studies concerning a release.
(2) An agency taking the actions specified in subdivision (a) if
the agency determines that conditions require immediate action.
(d) An agency may designate a local agency in lieu of the
department or the California regional water quality control board to
review and approve a cleanup or remedial action plan and to oversee
the remediation or removal of hazardous substances from a specific
hazardous substance release site in accordance with the following
conditions:
(1) The local agency may be so designated if it is designated as
the administering agency under Section 25262. In that event, the
local agency, as the administering agency, shall conduct the
oversight of the remedial action in accordance with Chapter 6.65
(commencing with Section 25260) and all provisions of that chapter
shall apply to the remedial action.
(2) The local agency may be so designated if cleanup guidelines
were requested from a California regional water quality control
board, and the site is an underground storage tank site subject to
Chapter 6.7 (commencing with Section 25280) of Division 20, the local
agency has been certified as a certified unified program agency
pursuant to Section 25404.1, the State Water Resources Control Board
has entered into an agreement with the local agency for oversight of
those sites pursuant to Section 25297.1, the local agency determines
that the site is within the guidelines and protocols established in,
and pursuant to, that agreement, and the local agency consents to the
designation.
(3) A local agency may not consent to the designation by an agency
unless the local agency determines that it has adequate staff
resources and the requisite technical expertise and capabilities
available to adequately supervise the remedial action.
(4) (A) Where a local agency has been designated pursuant to
paragraph (2), the department or a California regional water quality
control board may require that a local agency withdraw from the
designation, after providing the agency with adequate notice, if both
of the following conditions are met:
(i) The department or a California regional water quality control
board determines that an agency's designation of a local agency was
not consistent with paragraph (2), or makes one of the findings
specified in subdivision (d) of Section 101480.
(ii) The department or a California regional water quality control
board determines that it has adequate staff resources and
capabilities available to adequately supervise the remedial action,
and assumes that responsibility.
(B) Nothing in this paragraph prevents a California regional water
quality control board from taking any action pursuant to Division 7
(commencing with Section 13000) of the Water Code.
(5) Where a local agency has been designated pursuant to paragraph
(2), the local agency may, after providing the agency with adequate
notice, withdraw from its designation after making one of the
findings specified in subdivision (d) of Section 101480.
(e) To facilitate redevelopment planning, the agency may require
the owner or operator of any site within a project area to provide
the agency with all existing environmental information pertaining to
the site, including the results of any Phase I or subsequent
environmental assessment, as defined in Section 25200.14, any
assessment conducted pursuant to an order from, or agreement with,
any federal, state or local agency, and any other environmental
assessment information, except that which is determined to be
privileged. The person requested to furnish the information shall be
required only to furnish that information as may be within their
possession or control, including actual knowledge of information
within the possession or control of any other party. If environmental
assessment information is not available, the agency may require the
owner of the property to conduct an assessment in accordance with
standard real estate practices for conducting phase I or phase II
environmental assessments.
33459.3. (a) Notwithstanding any other provision of law, except as
provided in Section 33459.7, an agency that undertakes and completes
an action, or causes another person to undertake and complete an
action pursuant to Section 33459.1, as specified in subdivision (c),
to remedy or remove a hazardous substance release on, under, or from
property within a redevelopment project, in accordance with a cleanup
or remedial action plan prepared by a qualified independent
contractor and approved by the department or a California regional
water quality control board or the local agency, as appropriate,
pursuant to subdivision (b), is not liable, with respect to that
release only, under Division 7 (commencing with Section 13000) of the
Water Code or Chapter 6.5 (commencing with Section 25100), Chapter
6.7 (commencing with Section 25280), Chapter 6.75 (commencing with
Section 25299.10), or Chapter 6.8 (commencing with Section 25300), of
Division 20 of this code, or any other state or local law providing
liability for remedial or removal actions for releases of hazardous
substances. If the remedial action was also performed pursuant to
Chapter 6.65 (commencing with Section 25260) of Division 20, and a
certificate of completion is issued pursuant to subdivision (b) of
Section 25264, the immunity from agency action provided by the
certificate of completion, as specified in subdivision (c) of Section
25264, shall apply to the agency, in addition to the immunity
conferred by this section. In the case of a remedial action performed
pursuant to Chapter 6.65 (commencing with Section 25260) of Division
20, and for which the administering agency is a local agency, the
limitations on the certificate of completion set forth in paragraphs
(1) to (6), inclusive, of subdivision (c) of Section 25264 are limits
on any immunity provided for by this section and subdivision (c) of
Section 25264.
(b) Upon approval of any cleanup or remedial action plan, pursuant
to applicable statutes and regulations, the director or the
California regional water quality control board or the local agency,
as appropriate, shall acknowledge, in writing, within 60 days of the
date of approval, that upon proper completion of the remedial or
removal action in accordance with the plan, the immunity provided by
this section shall apply to the agency.
(c) Notwithstanding any provision of law or policy providing for
certification by a person conducting a remedial or removal action
that the action has been properly completed, a determination that a
remedial or removal action has been properly completed pursuant to
this section shall be made only upon the affirmative approval of the
director or the California regional water quality control board or
the local agency, as appropriate. The department, California regional
water quality control board, or local agency, as appropriate, shall,
within 60 days of the date it finds that a remedial action has been
completed, notify the agency in writing that the immunity provided by
this section is in effect.
(d) The approval of a cleanup or remedial action plan under this
section by a local agency shall also be subject to the concurrent
approval of the department or a California regional water quality
control board when the agency receiving the approval was formed by
the same entity of which the local agency is a part.
(e) Upon proper completion of a remedial or removal action, as
specified in subdivision (c), the immunity from agency action
provided by the certificate of completion provided pursuant to
subdivision (c) of Section 25264 and the immunity provided by this
section extends to all of the following, but only for the release or
releases specifically identified in the approved cleanup or remedial
action plan and not for any subsequent release or any release not
specifically identified in the approved cleanup or remedial action
plan:
(1) Any employee or agent of the agency, including an
instrumentality of the agency authorized to exercise some, or all, of
the powers of an agency within, or for the benefit of, a
redevelopment project and any employee or agent of the
instrumentality.
(2) Any person who enters into an agreement with an agency for the
redevelopment of property, if the agreement requires the person to
acquire property affected by a hazardous substance release or to
remove or remedy a hazardous substance release with respect to that
property.
(3) Any person who acquires the property after a person has
entered into an agreement with an agency for redevelopment of the
property as described in paragraph (2).
(4) Any person who provided financing to a person specified in
paragraph (2) or (3).
(f) Notwithstanding any other provision of law, the immunity
provided by this section does not extend to any of the following:
(1) Any person who was a responsible party for the release before
entering into an agreement, acquiring property, or providing
financing, as specified in subdivision (e).
(2) Any person specified in subdivision (a) or (e) for any
subsequent release of a hazardous substance or any release of a
hazardous substance not specifically identified in the approved
cleanup or remedial action plan.
(3) Any contractor who prepares the cleanup or remedial action
plan, or conducts the removal or remedial action.
(4) Any person who obtains an approval, as specified in
subdivision (b), or a determination, as specified in subdivision (c),
by fraud, negligent or intentional nondisclosure, or
misrepresentation, and any person who knows before the approval or
determination is obtained or before the person enters into an
agreement, acquires the property or provides financing, as specified
in subdivision (e), that the approval or determination was obtained
by these means.
(g) The immunity provided by this section is in addition to any
other immunity of an agency provided by law.
(h) This section does not impair any cause of action by an agency
or any other party against the person, firm, or entity responsible
for the hazardous substance release which is the subject of the
removal or remedial action taken by the agency or other person immune
from liability pursuant to this section.
(i) This section does not apply to, or limit, alter, or restrict,
any action for personal injury, property damage, or wrongful death.
(j) This section does not limit liability of a person described in
paragraph (3) or (4) of subdivision (e) for damages under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).
(k) This section does not establish, limit, or affect the
liability of an agency for any release of a hazardous substance that
is not investigated or remediated pursuant to this section or Chapter
6.65 (commencing with Section 25260) of Division 20.
( l) The immunity provided for by this section is only conferred
if both of the following apply:
(1) The action is in accordance with a cleanup or remedial action
plan prepared by a qualified independent contractor and approved by
the department or a California regional water quality control board
or the local agency, as appropriate, pursuant to subdivision (b).
(2) The remedial or removal action is undertaken and properly
completed, as specified in subdivision (c).
(m) The agency shall reimburse the department, the California
regional water quality control board, and the local agency for costs
incurred in reviewing or approving cleanup or remedial action plans
pursuant to this section.
33459.4. (a) Except as provided in Section 33459.7, if a
redevelopment agency undertakes action to remedy or remove, or to
require others to remedy or remove, including compelling a
responsible party through a civil action, to remedy or remove a
release of hazardous substance, any responsible party or parties
shall be liable to the redevelopment agency for the costs incurred in
the action. An agency may not recover the costs of goods and
services that were not procured in accordance with applicable
procurement procedures. The amount of the costs shall include the
interest on the costs accrued from the date of expenditure and
reasonable attorney's fees and shall be recoverable in a civil
action. Interest shall be calculated based on the average annual rate
of return on an agency's investment of surplus funds for the fiscal
year in which costs were incurred.
(b) The only defenses available to a responsible party shall be
the defenses specified in subdivision (b) of Section 25323.5.
(c) An agency may recover any costs incurred to develop and to
implement a cleanup or remedial action plan approved pursuant to
Sections 33459.1 and 33459.3, to the same extent the department is
authorized to recover those costs. The scope and standard of
liability for cost recovery pursuant to this section shall be the
scope and standard of liability under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. Sec. 9601 et seq.) as that act would apply to the department;
provided, however, that any reference to hazardous substance therein
shall be deemed to refer to hazardous substance as defined in
subdivision (c) of Section 33459.
(d) An action for recovery of costs of a remedy or removal
undertaken by a redevelopment agency under this section shall be
commenced within three years after completion of the remedy or
removal.
(e) The action to recover costs provided by this section is in
addition to, and is not to be construed as restricting, any other
cause of action available to a redevelopment agency.
(f) Except as provided in subdivision (m) of Section 33459.3,
notwithstanding any other provision of state law or policy, an agency
that undertakes and completes a remedial action, or otherwise causes
a remedial action to be undertaken and completed pursuant to
Sections 33459.1 and 33459.3, shall not be liable based on its
ownership of property after a release occurred, for any costs that
any responsible party for that release incurs to investigate or
remediate the release or to compensate others for the effects of that
release.
33459.5. Except as provided in Section 33459.3, nothing in this
article shall limit the powers of the State Water Resources Control
Board or a California regional water quality control board to enforce
Division 7 (commencing with Section 13000) of the Water Code.
33459.8. If an agency undertakes any action to remedy or remove a
release of hazardous substances on, under, or from property within a
project area, the agency shall amend its redevelopment plan and
follow the same procedure, as specified, and the legislative body is
subject to the same restrictions as provided for in Article 4
(commencing with Section 33330), for the adoption of a redevelopment
plan, if the agency determines that as a result of the remedial or
removal action, it will also be taking any of the following actions:
(a) Proposing to add new territory to the project area.
(b) Increasing either the limitation on the amount of funds to be
allocated to the agency or the time limit on the establishing of
loans, advances, and indebtedness established pursuant to
subdivisions (1) and (2) of Section 33333.2.
(c) Lengthening the period during which the redevelopment plan is
effective.
(d) Merging project areas.
(e) Adding significant additional capital improvement projects.
33459. For purposes of this article, the following terms shall have
the following meanings:
(a) "Department" means the Department of Toxic Substances Control.
(b) "Director" means the Director of Toxic Substances Control.
(c) "Hazardous substance" means any hazardous substance as defined
in subdivision (h) of Section 25281, and any reference to hazardous
substance in the definitions referenced in this section shall be
deemed to refer to hazardous substance, as defined in this
subdivision.
(d) "Local agency" means a single local agency that is one of the
following:
(1) A local agency authorized pursuant to Section 25283 to
implement Chapter 6.7 (commencing with Section 25280) of, and Chapter
6.75 (commencing with Section 25299.10) of, Division 20.
(2) A local officer who is authorized pursuant to Section 101087
to supervise a remedial action.
(e) "Qualified independent contractor" means an independent
contractor who is any of the following:
(1) An engineering geologist who is certified pursuant to Section
7842 of the Business and Professions Code.
(2) A geologist who is registered pursuant to Section 7850 of the
Business and Professions Code.
(3) A civil engineer who is registered pursuant to Section 6762 of
the Business and Professions Code.
(f) "Release" means any release, as defined in Section 25320.
(g) "Remedy" or "remove" means any action to assess, evaluate,
investigate, monitor, remove, correct, clean up, or abate a release
of a hazardous substance or to develop plans for those actions.
"Remedy" includes any action set forth in Section 25322 and "remove"
includes any action set forth in Section 25323.
(h) "Responsible party" means any person described in subdivision
(a) of Section 25323.5 of this code or subdivision (a) of Section
13304 of the Water Code.
33459.01. This article shall be known, and may be cited as, the
"Polanco Redevelopment Act."
33459.1. (a) (1) An agency may take any actions that the agency
determines are necessary and that are consistent with other state and
federal laws to remedy or remove a release of hazardous substances
on, under, or from property within a project area, whether the agency
owns that property or not, subject to the conditions specified in
subdivision (b). Unless an administering agency has been designated
under Section 25262, the agency shall request cleanup guidelines from
the department or the California regional water quality control
board before taking action to remedy or remove a release. The
department or the California regional water quality control board
shall respond to the agency's request to provide cleanup guidelines
within a reasonable period of time. The agency shall thereafter
submit for approval a cleanup or remedial action plan to the
department or the California regional water quality control board
before taking action to remedy or remove a release. The department or
the California regional water quality control board shall respond to
the agency's request for approval of a cleanup or remedial action
plan within a reasonable period of time.
(2) The agency shall provide the department and local health and
building departments, the California regional water quality control
board, with notification of any cleanup activity pursuant to this
section at least 30 days before the commencement of the activity. If
an action taken by an agency or a responsible party to remedy or
remove a release of a hazardous substance does not meet, or is not
consistent with, a remedial action plan or cleanup plan approved by
the department or the California regional water quality control
board, the department or the California regional water quality
control board that approved the cleanup or remedial action plan may
require the agency to take, or cause the taking of, additional action
to remedy or remove the release, as provided by applicable law. If
an administering agency for the site has been designated under
Section 25262, any requirement for additional action may be imposed
only as provided in Sections 25263 and 25265. If methane or landfill
gas is present, the agency shall obtain written approval from the
California Integrated Waste Management Board prior to taking that
action.
(b) Except as provided in subdivision (c), an agency may take the
actions specified in subdivision (a) only under one of the following
conditions:
(1) There is no responsible party for the release identified by
the agency.
(2) A party determined by the agency to be a responsible party for
the release has been notified by the agency or has received adequate
notice from the department, a California regional water quality
control board, the Environmental Protection Agency, or other
governmental agency with relevant authority and has been given 60
days to respond and to propose a remedial action plan and schedule,
and the responsible party has not agreed within an additional 60 days
to implement a plan and schedule to remedy or remove the release
that is acceptable to the agency and that has been found by the
agency to be consistent, to the maximum extent possible, with the
priorities, guidelines, criteria, and regulations contained in the
National Contingency Plan and published pursuant to Section 9605 of
Title 42 of the United States Code for similar releases, situations,
or events.
(3) The party determined by the agency to be the responsible party
for the hazardous substance release entered into an agreement with
the agency to prepare a remedial action plan for approval by the
department, the California regional water quality control board, or
the appropriate local agency and to implement the remedial action
plan in accordance with an agreed schedule, but failed to prepare the
remedial action plan, failed to implement the remedial action plan
in accordance with the agreed schedule, or otherwise failed to carry
out the remedial action in an appropriate and timely manner. Any
action taken by the agency pursuant to this paragraph shall be
consistent with any agreement between the agency and the responsible
party and with the requirements of the state or local agency that
approved or will approve the remedial action plan and is overseeing
or will oversee the preparation and implementation of the remedial
action plan.
(c) Subdivision (b) does not apply to either of the following
agencies:
(1) An agency taking actions to investigate or conduct feasibility
studies concerning a release.
(2) An agency taking the actions specified in subdivision (a) if
the agency determines that conditions require immediate action.
(d) An agency may designate a local agency in lieu of the
department or the California regional water quality control board to
review and approve a cleanup or remedial action plan and to oversee
the remediation or removal of hazardous substances from a specific
hazardous substance release site in accordance with the following
conditions:
(1) The local agency may be so designated if it is designated as
the administering agency under Section 25262. In that event, the
local agency, as the administering agency, shall conduct the
oversight of the remedial action in accordance with Chapter 6.65
(commencing with Section 25260) and all provisions of that chapter
shall apply to the remedial action.
(2) The local agency may be so designated if cleanup guidelines
were requested from a California regional water quality control
board, and the site is an underground storage tank site subject to
Chapter 6.7 (commencing with Section 25280) of Division 20, the local
agency has been certified as a certified unified program agency
pursuant to Section 25404.1, the State Water Resources Control Board
has entered into an agreement with the local agency for oversight of
those sites pursuant to Section 25297.1, the local agency determines
that the site is within the guidelines and protocols established in,
and pursuant to, that agreement, and the local agency consents to the
designation.
(3) A local agency may not consent to the designation by an agency
unless the local agency determines that it has adequate staff
resources and the requisite technical expertise and capabilities
available to adequately supervise the remedial action.
(4) (A) Where a local agency has been designated pursuant to
paragraph (2), the department or a California regional water quality
control board may require that a local agency withdraw from the
designation, after providing the agency with adequate notice, if both
of the following conditions are met:
(i) The department or a California regional water quality control
board determines that an agency's designation of a local agency was
not consistent with paragraph (2), or makes one of the findings
specified in subdivision (d) of Section 101480.
(ii) The department or a California regional water quality control
board determines that it has adequate staff resources and
capabilities available to adequately supervise the remedial action,
and assumes that responsibility.
(B) Nothing in this paragraph prevents a California regional water
quality control board from taking any action pursuant to Division 7
(commencing with Section 13000) of the Water Code.
(5) Where a local agency has been designated pursuant to paragraph
(2), the local agency may, after providing the agency with adequate
notice, withdraw from its designation after making one of the
findings specified in subdivision (d) of Section 101480.
(e) To facilitate redevelopment planning, the agency may require
the owner or operator of any site within a project area to provide
the agency with all existing environmental information pertaining to
the site, including the results of any Phase I or subsequent
environmental assessment, as defined in Section 25200.14, any
assessment conducted pursuant to an order from, or agreement with,
any federal, state or local agency, and any other environmental
assessment information, except that which is determined to be
privileged. The person requested to furnish the information shall be
required only to furnish that information as may be within their
possession or control, including actual knowledge of information
within the possession or control of any other party. If environmental
assessment information is not available, the agency may require the
owner of the property to conduct an assessment in accordance with
standard real estate practices for conducting phase I or phase II
environmental assessments.
33459.3. (a) Notwithstanding any other provision of law, except as
provided in Section 33459.7, an agency that undertakes and completes
an action, or causes another person to undertake and complete an
action pursuant to Section 33459.1, as specified in subdivision (c),
to remedy or remove a hazardous substance release on, under, or from
property within a redevelopment project, in accordance with a cleanup
or remedial action plan prepared by a qualified independent
contractor and approved by the department or a California regional
water quality control board or the local agency, as appropriate,
pursuant to subdivision (b), is not liable, with respect to that
release only, under Division 7 (commencing with Section 13000) of the
Water Code or Chapter 6.5 (commencing with Section 25100), Chapter
6.7 (commencing with Section 25280), Chapter 6.75 (commencing with
Section 25299.10), or Chapter 6.8 (commencing with Section 25300), of
Division 20 of this code, or any other state or local law providing
liability for remedial or removal actions for releases of hazardous
substances. If the remedial action was also performed pursuant to
Chapter 6.65 (commencing with Section 25260) of Division 20, and a
certificate of completion is issued pursuant to subdivision (b) of
Section 25264, the immunity from agency action provided by the
certificate of completion, as specified in subdivision (c) of Section
25264, shall apply to the agency, in addition to the immunity
conferred by this section. In the case of a remedial action performed
pursuant to Chapter 6.65 (commencing with Section 25260) of Division
20, and for which the administering agency is a local agency, the
limitations on the certificate of completion set forth in paragraphs
(1) to (6), inclusive, of subdivision (c) of Section 25264 are limits
on any immunity provided for by this section and subdivision (c) of
Section 25264.
(b) Upon approval of any cleanup or remedial action plan, pursuant
to applicable statutes and regulations, the director or the
California regional water quality control board or the local agency,
as appropriate, shall acknowledge, in writing, within 60 days of the
date of approval, that upon proper completion of the remedial or
removal action in accordance with the plan, the immunity provided by
this section shall apply to the agency.
(c) Notwithstanding any provision of law or policy providing for
certification by a person conducting a remedial or removal action
that the action has been properly completed, a determination that a
remedial or removal action has been properly completed pursuant to
this section shall be made only upon the affirmative approval of the
director or the California regional water quality control board or
the local agency, as appropriate. The department, California regional
water quality control board, or local agency, as appropriate, shall,
within 60 days of the date it finds that a remedial action has been
completed, notify the agency in writing that the immunity provided by
this section is in effect.
(d) The approval of a cleanup or remedial action plan under this
section by a local agency shall also be subject to the concurrent
approval of the department or a California regional water quality
control board when the agency receiving the approval was formed by
the same entity of which the local agency is a part.
(e) Upon proper completion of a remedial or removal action, as
specified in subdivision (c), the immunity from agency action
provided by the certificate of completion provided pursuant to
subdivision (c) of Section 25264 and the immunity provided by this
section extends to all of the following, but only for the release or
releases specifically identified in the approved cleanup or remedial
action plan and not for any subsequent release or any release not
specifically identified in the approved cleanup or remedial action
plan:
(1) Any employee or agent of the agency, including an
instrumentality of the agency authorized to exercise some, or all, of
the powers of an agency within, or for the benefit of, a
redevelopment project and any employee or agent of the
instrumentality.
(2) Any person who enters into an agreement with an agency for the
redevelopment of property, if the agreement requires the person to
acquire property affected by a hazardous substance release or to
remove or remedy a hazardous substance release with respect to that
property.
(3) Any person who acquires the property after a person has
entered into an agreement with an agency for redevelopment of the
property as described in paragraph (2).
(4) Any person who provided financing to a person specified in
paragraph (2) or (3).
(f) Notwithstanding any other provision of law, the immunity
provided by this section does not extend to any of the following:
(1) Any person who was a responsible party for the release before
entering into an agreement, acquiring property, or providing
financing, as specified in subdivision (e).
(2) Any person specified in subdivision (a) or (e) for any
subsequent release of a hazardous substance or any release of a
hazardous substance not specifically identified in the approved
cleanup or remedial action plan.
(3) Any contractor who prepares the cleanup or remedial action
plan, or conducts the removal or remedial action.
(4) Any person who obtains an approval, as specified in
subdivision (b), or a determination, as specified in subdivision (c),
by fraud, negligent or intentional nondisclosure, or
misrepresentation, and any person who knows before the approval or
determination is obtained or before the person enters into an
agreement, acquires the property or provides financing, as specified
in subdivision (e), that the approval or determination was obtained
by these means.
(g) The immunity provided by this section is in addition to any
other immunity of an agency provided by law.
(h) This section does not impair any cause of action by an agency
or any other party against the person, firm, or entity responsible
for the hazardous substance release which is the subject of the
removal or remedial action taken by the agency or other person immune
from liability pursuant to this section.
(i) This section does not apply to, or limit, alter, or restrict,
any action for personal injury, property damage, or wrongful death.
(j) This section does not limit liability of a person described in
paragraph (3) or (4) of subdivision (e) for damages under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).
(k) This section does not establish, limit, or affect the
liability of an agency for any release of a hazardous substance that
is not investigated or remediated pursuant to this section or Chapter
6.65 (commencing with Section 25260) of Division 20.
( l) The immunity provided for by this section is only conferred
if both of the following apply:
(1) The action is in accordance with a cleanup or remedial action
plan prepared by a qualified independent contractor and approved by
the department or a California regional water quality control board
or the local agency, as appropriate, pursuant to subdivision (b).
(2) The remedial or removal action is undertaken and properly
completed, as specified in subdivision (c).
(m) The agency shall reimburse the department, the California
regional water quality control board, and the local agency for costs
incurred in reviewing or approving cleanup or remedial action plans
pursuant to this section.
33459.4. (a) Except as provided in Section 33459.7, if a
redevelopment agency undertakes action to remedy or remove, or to
require others to remedy or remove, including compelling a
responsible party through a civil action, to remedy or remove a
release of hazardous substance, any responsible party or parties
shall be liable to the redevelopment agency for the costs incurred in
the action. An agency may not recover the costs of goods and
services that were not procured in accordance with applicable
procurement procedures. The amount of the costs shall include the
interest on the costs accrued from the date of expenditure and
reasonable attorney's fees and shall be recoverable in a civil
action. Interest shall be calculated based on the average annual rate
of return on an agency's investment of surplus funds for the fiscal
year in which costs were incurred.
(b) The only defenses available to a responsible party shall be
the defenses specified in subdivision (b) of Section 25323.5.
(c) An agency may recover any costs incurred to develop and to
implement a cleanup or remedial action plan approved pursuant to
Sections 33459.1 and 33459.3, to the same extent the department is
authorized to recover those costs. The scope and standard of
liability for cost recovery pursuant to this section shall be the
scope and standard of liability under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. Sec. 9601 et seq.) as that act would apply to the department;
provided, however, that any reference to hazardous substance therein
shall be deemed to refer to hazardous substance as defined in
subdivision (c) of Section 33459.
(d) An action for recovery of costs of a remedy or removal
undertaken by a redevelopment agency under this section shall be
commenced within three years after completion of the remedy or
removal.
(e) The action to recover costs provided by this section is in
addition to, and is not to be construed as restricting, any other
cause of action available to a redevelopment agency.
(f) Except as provided in subdivision (m) of Section 33459.3,
notwithstanding any other provision of state law or policy, an agency
that undertakes and completes a remedial action, or otherwise causes
a remedial action to be undertaken and completed pursuant to
Sections 33459.1 and 33459.3, shall not be liable based on its
ownership of property after a release occurred, for any costs that
any responsible party for that release incurs to investigate or
remediate the release or to compensate others for the effects of that
release.
33459.5. Except as provided in Section 33459.3, nothing in this
article shall limit the powers of the State Water Resources Control
Board or a California regional water quality control board to enforce
Division 7 (commencing with Section 13000) of the Water Code.
33459.8. If an agency undertakes any action to remedy or remove a
release of hazardous substances on, under, or from property within a
project area, the agency shall amend its redevelopment plan and
follow the same procedure, as specified, and the legislative body is
subject to the same restrictions as provided for in Article 4
(commencing with Section 33330), for the adoption of a redevelopment
plan, if the agency determines that as a result of the remedial or
removal action, it will also be taking any of the following actions:
(a) Proposing to add new territory to the project area.
(b) Increasing either the limitation on the amount of funds to be
allocated to the agency or the time limit on the establishing of
loans, advances, and indebtedness established pursuant to
subdivisions (1) and (2) of Section 33333.2.
(c) Lengthening the period during which the redevelopment plan is
effective.
(d) Merging project areas.
(e) Adding significant additional capital improvement projects.
