2005 California Health and Safety Code Sections 25395.90-25395.101 Response Plan Agreements

25395.90.  (a) Except as otherwise expressly provided in this
article, the definitions in Article 2 (commencing with Section
25395.63) apply to the terms used in this article.
   (b) "Action level" has the same meaning as defined in paragraph
(1) of subdivision (c) of Section 116455.
   (c) "Host jurisdiction" means the city or county in which the site
is located and which has the authority to take action regarding the
site pursuant to Title 7 (commencing with Section 65000) of the
Government Code.
   (d) "Unreasonable risk" at a site means that a condition at a site
requires a response action pursuant to Chapter 6.8 (commencing with
Section 25300) of this code or Division 7 (commencing with Section
13000) of the Water Code.
25395.91.  (a) Only a bona fide purchaser, innocent landowner, or
contiguous property owner who meets the requirements specified in
Section 25395.80 is eligible to enter into an agreement pursuant to
this article.
   (b) An agreement entered under this article is not subject to
Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of
the Public Contract Code, including, but not limited to, Section
10295 of the Public Contract Code.
25395.92.  (a) A bona fide purchaser, innocent landowner, or
contiguous property owner who seeks to qualify for the immunity
provided by this chapter shall enter into an agreement with an agency
pursuant to this article that includes the performance of a site
assessment, and, if the agency determines that a response plan is
necessary pursuant to Section 25395.96, the preparation and
implementation of a response plan.
   (b) Before finalizing the agreement, the requested agency shall
notify other appropriate agencies, including the host jurisdiction.
   (c) A person who enters into an agreement with an agency pursuant
to this section shall submit sufficient information to the agency for
the agency to determine whether the site is an eligible site,
whether the person meets the conditions to qualify as a bona fide
purchaser, innocent landowner, or contiguous property owner pursuant
to this chapter, and to prepare an agreement pursuant to this
section.
   (d) (1) A person who enters into an agreement pursuant to this
section shall agree to take all actions required for a response
action pursuant to Chapter 6.8 (commencing with Section 25300) and
Division 7 (commencing with Section 13000) of the Water Code.  These
actions may include actions necessary to prevent an unreasonable risk
before the approval of a response plan.
   (2) In determining whether there is unreasonable risk at a site
for purposes of this subdivision, the agency shall take into account
the intended use of the property, in accordance with any changed use
of the property, as specified in subdivision (d) of Section 25395.96.
25395.93.  (a) A person may withdraw from an agreement entered into
pursuant to this article by providing a 30-day written notice to the
agency and doing both of the following:
   (1) Reimbursing the agency for all costs incurred by the agency
pursuant to the agreement.
   (2) Demonstrating to the satisfaction of the agency that
conditions at the site to which the agreement applies do not pose an
endangerment to public health and safety or the environment. If the
agency determines that conditions at the site pose an endangerment to
public health, safety, or the environment, this article does not
prevent the agency from exercising its authority to take appropriate
response actions or to cause the person or persons responsible for
the endangerment to take appropriate response actions.
   (b) A person who enters into an agreement with an agency pursuant
to this article shall reimburse the agency for all agency costs,
including, but not limited to, costs incurred while reviewing a site
assessment plan or a response plan or overseeing the implementation
of a site assessment or response plan by the person pursuant to this
article, except that the department's costs shall be reimbursed
pursuant to Chapter 6.66 (commencing with Section 25269) and shall be
recoverable pursuant to Section 25360.
   (c) The entry into an agreement pursuant to this article shall not
constitute an admission of fact or liability or conclusion of law
for any purpose or proceeding and a person who enters into an
agreement under this article shall not be deemed liable under any
other provision of law solely by reason of entering into that
agreement.
   (d) If the conditions described in paragraph (1) of subdivision
(c) of Section 25395.81 or in subdivision (d) of Section 25395.81
occur, an agency may withdraw from an agreement entered into pursuant
to this chapter by providing a 30-day written notice to the other
party.
25395.94.  (a) (1) A person who enters into an agreement pursuant to
this article with an agency for the oversight of a site assessment
shall submit a site assessment plan to the agency to conduct a site
assessment of the site in accordance with the requirements of this
section.
   (2) If the agency requires a health risk assessment as part of
that agreement, the health assessment shall be prepared in accordance
with subdivisions (b), (c), and (d) of Section 25356.1.5.
   (b) The site assessment plan shall provide for the evaluation of
all of the following:
   (1) Whether a release of hazardous materials has occurred at the
site, a threat of a release of hazardous materials exists at the
site, or there is a threat of a release of hazardous materials from
the site.
   (2) If a release or threatened release of hazardous materials
exists at the site or there is a release or a threatened release from
the site, whether the release or threatened release poses an
unreasonable risk to public health and safety or the environment.
   (c) The site assessment plan shall also include all of the
following:
   (1) Adequate characterization of the hazardous materials released
or threatened to be released at, or from, the site and documentation
of the findings.
   (2) Reasonably available information about the site, including,
where appropriate, a risk assessment that evaluates the risk posed by
any hazardous materials released or threatened to be released at, or
from, the site, and information regarding reasonably anticipated
foreseeable uses of the site based on current and projected land use
and zoning designations.
   (3) If the release has impacted groundwater, reasonable
characterization of underlying groundwater, including present and
anticipated beneficial uses of that water.
   (d) A person shall submit the site assessment plan to the agency
for review and approval.
   (e) The agency shall evaluate the adequacy of the site assessment
plan to ensure that it contains all necessary information.
   (f) After evaluating the site assessment plan, if the agency finds
that the site assessment plan is adequate, the agency shall approve
the site assessment plan and provide notification to appropriate
persons, including notification of any public water system that
relies on impacted groundwater for public drinking water purposes.
25395.95.  (a) After implementation of the site assessment plan, the
person shall submit to the agency a report of the findings made
pursuant to the plan. Based upon a review of this information, the
agency shall determine whether a response action is necessary to
address any unreasonable risk from hazardous materials at the site.
   (b) If the agency determines that there is no unreasonable risk at
the site and that there are no hazardous materials at the site at
levels that are not suitable for unrestricted use of the site, the
agency shall make a finding that no further action is necessary at
the site.
   (c) If the agency determines that there are hazardous materials at
the site at levels that are not suitable for unrestricted use, but
that are suitable for the reasonably anticipated foreseeable use of
the site based on current and projected land use and zoning
designations, the agency shall find that no further action is
necessary at the site except that a land use control that imposes
appropriate restrictions pursuant to Section 25395.99 shall be
executed and recorded and the public comment and participation
requirements of Section 25395.96 shall be met before the execution
and recording of any land use control. On or before 15 days after the
date when the land use control is recorded pursuant to Section
25395.99, the agency shall state in writing that this act constitutes
"appropriate care" for the purposes of Section 25395.67.
25395.96.  (a) If, upon review of the site assessment prepared
pursuant to this article, the agency determines that a response
action is necessary to prevent or eliminate an unreasonable risk, the
bona fide purchaser, innocent landowner, or contiguous property
owner shall submit a response plan to the agency to conduct a
response action at the site, in conformance with the agreement
entered into pursuant to Section 25395.92. The response plan shall
include all of the following:
   (1) (A) An opportunity for the public, other agencies, and the
host jurisdiction to participate in decisions regarding the response
action, taking into consideration the nature of the community
interest.
   (B) If a regional board is the agency, the regional board shall
provide access to the proposed response plan and site assessment at
the regional board for public review, conduct a public hearing with
30 days' prior notice, provide notice on the agenda of the public
hearing, and take action on the response plan in a regularly
scheduled regional board meeting.
   (C) If the department is the agency, the methods for public
participation proposed in the response plan shall include reasonable
public notice in English and other languages commonly spoken in the
area, access to the proposed response plan and site assessment at the
agency and local repositories, and reasonable opportunity to
comment. The department shall hold a public meeting in the area to
receive comments if a public meeting is requested. The department
shall consider any comments received prior to acting on the response
plan. Methods for public participation may also include, but are not
limited to, the use of factsheets, public notices, direct
notification of interested parties, public meetings, and an
opportunity to comment on the proposed response plan prior to
approval.
   (D) To the extent possible, the agency shall coordinate its public
participation activities with those undertaken by the host
jurisdiction and other agencies associated with the development of
the property, to avoid duplication to the extent feasible.
   (E) It is the intent of the Legislature that the public
participation process established pursuant to this subdivision
ensures full and robust participation of a community affected by this
chapter.
   (2) Identification of the release or threatened release that is
the subject of the response plan and documentation that the plan is
based on an adequate characterization of the site.
   (3) An identification of the response plan objectives and the
proposed remedy, and an identification of the reasonably anticipated
future land uses of the site and of the current and projected land
use and zoning designations.  This identification shall include
confirmation by the host jurisdiction that the anticipated future
land uses and current and projected land uses and zoning designations
are accurate.
   (4) A description of activities that will be implemented to
control any endangerment that may occur during the response action at
the site.
   (5) A description of any land use control that is part of the
response action.
   (6) A description of wastes other than hazardous materials at the
site and how they will be managed in conjunction with the response
action.
   (7) Provisions for the removal of containment or storage vessels
and other sources of contamination, including soils and free product,
that cause an unreasonable risk.
   (8) Provisions for the agency to require further response actions
based on the discovery of hazardous materials that pose an
unreasonable risk to human health and safety or the environment that
are discovered during the course of the response action or subsequent
development of the site.
   (9) Any other information that the agency determines is necessary.
   (b) The agency shall evaluate the adequacy of the plan submitted
pursuant to subdivision (a) and shall approve the plan if the agency
makes all of the following findings:
   (1) The plan contains the information required by subdivision (a).
   (2) When implemented, the plan will place the site in a condition
that allows it to be used for its reasonably anticipated future land
use without unreasonable risk to human health and safety and the
environment.
   (3) The plan addresses any public comments.
   (4) If applicable, the plan provides for long-term operation and
maintenance, including land use and engineering controls, that are
part of the remedy contained in the response plan.
   (c) (1) On or before 60 days after the date an agency receives a
response plan, the agency shall make a written determination that
proper completion of the response plan constitutes "appropriate care"
for purposes of subdivision (a) of Section 25395.67.
   (2) Upon approval of the response plan by the agency, the agency
shall notify all appropriate persons, including the host
jurisdiction.
   (d) If the use of the property changes, after a response plan is
approved, to a use that requires a higher level of protection, the
agency may require the preparation and implementation of a new
response plan pursuant to this article.
   (e) The owner of a site shall not make any change in use of a site
inconsistent with any land use control recorded for the site, unless
the change is approved by the agency in accordance with subdivision
(f) of Section 25395.99.
25395.97.  (a) Except as provided in Section 25395.99, the agency
shall issue a certificate of completion upon determining that all
response actions have been satisfactorily completed in accordance
with an approved response plan.
   (b) Notwithstanding subdivision (a), the agency shall issue a
certificate of completion when a response action plan includes
long-term obligations that have not been completed, including
operation and maintenance requirements or monitoring, only if the
agency makes all of the following determinations:
   (1) All response actions, other than long-term operation and
maintenance at the site, have been completed.
   (2) The person has submitted an adequate long-term operation and
maintenance plan and has demonstrated initial compliance.
   (c) If the agency determines that long-term operation and
maintenance is required at a site, the agency may, as a condition of
issuing a certificate of completion, enter into an operation and
maintenance agreement with the person that governs the long-term
operation and maintenance activities and that provides for adequate
financial assurance.
25395.98.  A person who acquires a property from an innocent
landowner, bona fide purchaser, or contiguous property owner, and the
property was previously issued a certificate of completion or no
further action determination, may qualify as a bona fide prospective
purchaser or contiguous property owner by demonstrating to the agency
that the person meets all of the qualifying conditions of Section
25395.80 and either Section 25395.69 or 25395.70, as applicable.
25395.99.  (a) A response plan may require the use of a land use
control that imposes appropriate conditions, restrictions, and
obligations on land use or activities, if, after completion of the
removal and remedial actions specified in the response plan,
hazardous materials remain at the site at a level that is not
suitable for the unrestricted use of the site.
   (b) Except as provided in subdivision (c), if the agency approves
a response plan that requires the use of a land use control, the land
use control shall be executed by the landowner and recorded by the
landowner in the office of the county recorder in each county in
which all, or a portion of, the land is located within 10 days of the
date of execution.
   (c) An agency shall not issue a certificate of completion to a
person who submits a response plan that is approved by the agency and
that requires the use of a land use control, until the agency
receives a certified copy of the recorded land use control.  If the
site that requires the land use control does not have an owner, or
the agency determines the owner is incapable of executing a land use
control in accordance with this section, the agency may record in the
county records a "Notice of Land Use Restriction" that has the same
effect as any other land use control executed pursuant to this
section, and that is subject to the variance and termination
procedures specified in subdivision (f).
   (d) Notwithstanding any other provision of law, a land use control
that is executed pursuant to this section and that is recorded so as
to provide constructive notice shall run with the land from the date
of recordation, is binding upon all of the owners of the land, and
their heirs, successors and assignees, and the agents, employees, or
lessees of the owners, heirs, successors and assignees, and is
enforceable pursuant to Article 8 (commencing with Section 25180) of
Chapter 6.5.
   (e) Notwithstanding any other provision of law, a land use control
executed pursuant to this section is subject to Section 57012.
   (f) A land use control imposed pursuant to this section is subject
to the variance and removal procedures specified in Sections 25233
and 25234.
25395.100.  To the extent consistent with the Resource Conservation
and Recovery Act of 1976, as amended, (42 U.S.C. Sec. 6901 et seq.),
the department may exclude any portion of a response action conducted
entirely onsite from the hazardous waste facilities permit
requirements of Sections 25200.3, 25201, and 25201.6, if both of the
following apply:
   (a) The response action is carried out pursuant to an approved
response plan.
   (b) The response plan specifies that the response action will be
conducted in compliance with the standards, requirements, criteria,
or limitations applicable to the construction, operation, and closure
of the type of facility at the site, as necessary to prevent an
unreasonable risk to public health and safety or the environment and
any other condition imposed by the agency.
25395.101.  (a) Except as expressly provided in this article, this
article does not affect the authority of an agency to issue an order
or take any other action under any provision of law to protect public
health and safety or the environment.
   (b) Except as otherwise expressly provided in this article, this
article does not affect the authority of the agency or any other
public agency to pursue any existing legal, equitable, or
administrative remedies pursuant to state or federal law.
   (c) Except as otherwise expressly provided in this article,
Chapter 6.8 (commencing with Section 25300) does not apply to this
article.
   (d) If a local agency determines that, due to an emergency, it is
necessary to gain access to a site that is the subject of a finding
of no further action or a certificate of completion, the person who
has obtained immunity pursuant to this chapter with regard to that
site shall allow the local agency access to the site to take any
action necessary to mitigate that emergency, or take any other
necessary response action.  However, that person shall not be
required to pay for, or undertake, any of those actions taken by or
required by the local agency, unless the person caused or contributed
to the release at the site that constituted the emergency.