2009 California Health and Safety Code - Section 25390-25390.9 :: Article 7.8. Orphan Share Reimbursement Trust Fund

25390.  For purposes of this article, the following definitions
shall apply:
   (a) "Fund" means the Orphan Share Reimbursement Trust Fund
established pursuant to Section 25390.3.
   (b) "Orphan share" means the share of liability for the costs of
response action that is attributable to the activities of persons who
are defunct or insolvent, as determined pursuant to Section 25390.5.

25390.1.  The Legislature finds and declares all of the following:
   (a) This article, which establishes an Orphan Share Reimbursement
Trust Fund, operates in conjunction with the federal liability scheme
under the federal act as in effect on July 1, 1998, for the recovery
of response costs expended by government agencies.
   (b) Under federal liability, at sites where there are insolvent or
defunct parties that cannot contribute to the cost of cleanup,
viable responsible parties pay the share of liability for that
cleanup that may be attributable to insolvent and defunct parties.
   (c) The Orphan Share Reimbursement Trust Fund is created to
mitigate the payment of an insolvent or defunct party's liability
share by viable responsible parties, to the extent money in the fund
is available, and to encourage responsible parties to quickly and
efficiently remediate contamination.

25390.2.  (a) This article does not prohibit, and is not intended to
prohibit, the department, the regional board, or the Attorney
General from pursuing any existing legal, equitable, or
administrative remedies, pursuant to federal or state law, against
any potentially responsible party.
   (b) No liability or obligation is imposed upon the state pursuant
to this article, and the state shall not incur a liability or
obligation beyond the payment of claims pursuant to this article, to
the extent that money is available and has been allocated by the
administrator under subdivision (c) of Section 25390.4. No legal
action may be brought against the Orphan Share Reimbursement Trust
Fund in its own name.

25390.3.  (a) The Orphan Share Reimbursement Trust Fund is hereby
created in the State Treasury.
   (b) The administrator of the fund may expend the money deposited
in the fund as provided in this article, upon appropriation by the
Legislature. The administrator of the fund shall act in a fiduciary
capacity, shall prudently administer the fund, and shall protect the
fund from any unreasonable or unjustified claims, including any
unreasonable or unjustified determinations of the orphan share
percentage.
   (c) Except as provided in subdivision (d) and subdivision (b) of
Section 25358.7.2, the administrator of the fund may expend the money
in the fund for all of the following purposes:
   (1) To pay claims for reimbursement of all, or any part of, the
orphan share at a site paid by the responsible party filed pursuant
to Section 25390.4.
   (2) For the costs of implementing this article.
   (3) To pay the reasonable costs of the department and the regional
board for performance of its duties under this article, including,
but not limited to, its participation in the orphan share
determination process set forth in Section 25390.5, unless those
costs are paid by a potentially responsible party under an agreement
specified in paragraph (3) of subdivision (a) of Section 25390.4. The
expenditures from the fund for purposes of this paragraph shall not
exceed 5 percent of the total amount appropriated from the fund in
the annual Budget Act for purposes of this subdivision for that
fiscal year.
   (4) To pay the portion of costs attributable to the orphan share
incurred by the department and the regional boards to oversee actions
of potentially responsible parties, unless those costs are paid by a
potentially responsible party under an agreement specified in
paragraph (3) of subdivision (a) of Section 25390.4.
   (d) If an appropriation from the General Fund is made to the fund
in any fiscal year and an amount greater than five million dollars
($5,000,000) in unexpended funds, beyond any amount approved by the
administrator of the fund to pay claims pursuant to this article from
that General Fund appropriation, remain in the fund at the end of
that fiscal year, and if the department determines that additional
funding for orphan sites beyond that appropriated from the Toxic
Substances Control Account is required for the next fiscal year, the
administrator may expend the amount in excess of five million dollars
($5,000,000) from the General Fund appropriation to pay for response
costs incurred by the department or the regional boards under this
chapter at sites listed pursuant to Section 25356 where no viable
responsible parties exist.

25390.4.  (a) A potentially responsible party may file a claim
pursuant to paragraph (1) of subdivision (c) of Section 25390.3 only
if all of the following apply:
   (1) The site is listed pursuant to Section 25356.
   (2) The department or the regional board has approved a final
remedy for the site under Section 25356.1.
   (3) The department and the potentially responsible party have
entered into a written, enforceable cleanup agreement or order
embodied in a consent order issued pursuant to Section 25355.5 or
25358.3, or the regional board and the potentially responsible party
have entered into a written, enforceable cleanup agreement or order
that provides for the completion of all response actions necessary at
the site, conducted pursuant to this chapter and under the oversight
and at the direction of the department or the regional board. The
agreement shall provide for the payment by the potentially
responsible party of the department's or the regional board's
response costs.
   (4) The potentially responsible party demonstrates, and the
department or the regional board finds, that the potentially
responsible party has and will have sufficient financial resources to
complete all required response actions.
   (5) The potentially responsible party is in compliance with the
agreement provided in paragraph (3), and with any other applicable
order or agreement pertaining to the potentially responsible party's
obligations with respect to the site.
   (6) The potentially responsible party has prepared and provided
the information required under subdivision (b) of Section 25390.5.
   (7) The claim for reimbursement is for the costs incurred for
response actions that were subject to the oversight and approval of
the department or the regional board.
   (b) The administrator of the fund shall prescribe appropriate
application forms and procedures for claims filed pursuant to
paragraph (1) of subdivision (c) of Section 25390.3 that shall
include all of the following:
   (1) Requirements that the claimant provide, at a minimum, all of
the following documentation:
   (A) A sworn verification of the claim to the best of the
information known to the claimant or within the claimant's possession
or control.
   (B) All records and information pertaining to the site and
relevant to the ownership, operation, or control of the site, or to
the ownership, possession, generation, treatment, transportation,
storage or disposal of a hazardous substance, pollutant, or
contaminant at or in connection with the site, within the possession
or control of the claimant, including, but not limited to, the
information specified in subdivision (b) of Section 25358.1.
   (C) Certification of all response costs that have been, or will
be, incurred at the site by the potentially responsible party, and an
estimate of the total cost of completion of the approved final
remedy at the site.
   (2) Procedures specifying that claims shall be filed only at the
two following specific time periods during the performance of a
response action:
   (A) After the final remedy is selected under Section 25356.1.
   (B) After the department or the regional board determines that the
response action is complete. The department or the regional board
shall not include operation and maintenance activities in determining
whether the response action is complete under this subparagraph.
   (c) The administrator of the fund shall annually, on a fiscal year
basis, pay claims for reimbursement from the fund filed by
potentially responsible parties under paragraph (1) of subdivision
(c) of Section 25390.3, in accordance with the following procedures:
   (1) Claims for funds available during each fiscal year shall be
filed with the administrator by July 30 of that fiscal year.
   (2) For sites with multiple responsible parties, all potentially
responsible parties that have entered into the cleanup agreement
specified in paragraph (3) of subdivision (a) of Section 25390.4
shall file a single claim.
   (3) (A) The administrator shall allocate the money available in
the fund for the fiscal year among the claims filed by the July 30
deadline. The allocation shall be based on the determination of the
orphan share percentage at the facility under the process set forth
in Section 25390.5, the long-term financial stability and short-term
resources available in the fund, and the administrator's fiduciary
duty with respect to the fund. Except as provided in subparagraph
(B), the administrator shall pay claims for funds in the order in
which they are received.
   (B) Notwithstanding subparagraph (A), if an appropriation from the
General Fund is made to the fund in any fiscal year, the
administrator may alter the order of payment of claims required by
subparagraph (A) by using funds appropriated from the General Fund to
pay claims based on the threat to public health or the environment
posed by a site or the need to improve economic and environmental
conditions in redeveloping communities.
   (4) The total amount allocated to any one site shall not exceed 10
percent of the total amount available each fiscal year in the fund.
If, due to this limit or to the unavailability of funds, a claimant
receives only partial or no reimbursement of the orphan share paid by
that claimant, the claim shall be paid in the following fiscal year
and shall be given priority over all claims filed after the claim was
initially received, subject to the discretion of the administrator
set forth in paragraph (3).
   (5) The administrator's proposed allocation shall be subject to
public review and comment for 30 days.
   (d) The state and the fund have no obligation to provide full
reimbursement to a claimant. The fund shall be allocated at the
discretion of the administrator, subject to the requirements of this
article. In enacting this article, the Legislature intends that
claimants be reimbursed only to the extent that money is available in
the fund and is allocated to the claimant by the administrator.

25390.5.  For the purposes of this article, the orphan share shall
be determined in the following manner:
   (a) The orphan share shall be expressed as a percentage in
multiples of five, up to, and, including, but not greater than, 75
percent.
   (b) The potentially responsible party filing a claim for
reimbursement of the orphan share shall provide the administrator of
the fund with a written potentially responsible party search report
that shall include a list of all potentially responsible parties
identified for the site, the factual and legal basis for identifying
those parties, and a proposed orphan share percentage. The
potentially responsible party shall also provide the administrator
with the factual documentation necessary to support the proposed
orphan share percentage.
   (c) Upon receipt of the information required by subdivision (a),
the administrator of the fund shall invite all identified potentially
responsible parties and the department and the regional board to
submit any additional information relating to the proposed orphan
share percentage or to the list of identified potentially responsible
parties.
   (d) The administrator of the fund, in consultation with the
department or the regional board, shall determine a final orphan
share percentage based on the volume, toxicity, and difficulty of
removal of the contaminants contributed to the site by the party or
parties responsible for the orphan share. The administrator shall
determine the orphan share timely and efficiently and is not required
to precisely determine all relevant factors, as long as the
determination is generally equitable. In addition, the administrator
may consider the results of any apportionment or allocation conducted
by voluntary arbitration or mediation or by a civil action filed by
a potentially responsible party, or any other apportionment or
allocation decision that is helpful when determining the orphan share
percentage.
   (e) A potentially responsible party shall not assert, and the
administrator of the fund shall not determine, that the orphan share
percentage includes the share of liability attributable to a
potentially responsible party's acts that occurred before January 1,
1982, unless that share of responsibility is attributable to a person
who is defunct or insolvent.
   (f) In determining the orphan share percentage under this section,
the administrator of the fund may perform any of the activities
authorized in subdivisions (b) and (c) of Section 25358.1.
   (g) The administrator of the fund shall issue all orphan share
percentage determinations in writing, with notification to all
appropriate parties. The decision of the administrator with respect
to either apportionment or payment of claims is a final agency action
for the purposes of judicial review of the decision by any party to
the proceedings resulting in the decision; however, judicial review
of the administrator's decision is limited to a showing of fraud by a
party submitting information under this subdivision. The
administrator shall be represented by the Attorney General in any
action brought under this article.

25390.6.  (a) Any costs paid from the fund pursuant to paragraphs
(1) and (4) of subdivision (c) of Section 25390.3 shall be
recoverable by the Attorney General, at the request of the
administrator of the fund, from any liable person or persons who have
not entered into, or are not in compliance with, a written cleanup
agreement entered into pursuant to paragraph (3) of subdivision (a)
of Section 25390.4 that provides for the completion of all response
actions necessary at the site under the oversight and at the
direction of the department or the regional board.
   (b) Any potentially responsible party who withholds information
required to be submitted under this section, or who submits false
information, is subject to a civil penalty of up to twenty-five
thousand dollars ($25,000) for each piece of information withheld or
for each piece of false information submitted.

25390.7.  A claim for reimbursement under paragraph (1) of
subdivision (c) of Section 25390.3 shall not be filed for any of the
following:
   (a) Sites listed on the National Priorities List pursuant to the
federal act (42 U.S.C. Sec. 9605(a)(8)(B)).
   (b) Sites remediated pursuant to Chapter 6.85 (commencing with
Section 25396).
   (c) Sites, or portions of sites, for which the potentially
responsible party has agreed to take all response action required by
the department or the regional board at the site, and that agreement
is embodied in a written, enforceable settlement agreement,
including, but not limited to, a judicial consent decree, entered
into prior to January 1, 1999.
   (d) Sites, or portions of sites, that have been fully remediated
for which the department or the regional board has determined that
the response action is complete prior to January 1, 1999. The
department or the regional board shall not include operation and
maintenance activities in determining whether the response action is
complete under this section.

25390.8.  (a) Any costs incurred and payable from the fund by the
administrator pursuant to this article shall constitute a claim and
lien upon the real property owned by a responsible party which is
subject to, or affected by, a response action. A lien established by
this subdivision shall have all of the following properties:
   (1) The lien shall not exceed the increase in fair market value of
the site attributable to the response action at the time of a
subsequent sale or other disposition of the site.
   (2) The lien shall attach regardless of whether the responsible
party property owner is solvent.
   (3) The lien shall arise at the time costs to the fund are first
incurred by the administrator.
   (4) The lien shall be subject to the notice and hearing procedures
that due process of the law requires.
   (b) Neither the administrator of the fund nor the fund shall be
considered a responsible party for a hazardous substance release site
because a claim and lien is imposed pursuant to this section.
   (c) The lien imposed by this section shall have the force and
effect of, and the priority of, a judgment lien upon its recordation
in the county in which the property subject to the lien is located.
The lien shall contain the legal description of the property, the
assessor's parcel number, and the name of the owner of record, as
shown on the latest equalized assessment roll. The lien shall also
contain a legal description of the property that is the site of the
hazardous substance release, the assessor's parcel number for that
property, and the name of the owner of record, as shown on the latest
equalized assessment roll, of that property.
   (d) All funds recovered pursuant to this subdivision shall be
deposited in the fund.

25390.9.  (a) This article shall become operative on the operative
date of the statute that does either, or both, of the following:
   (1) Appropriates funds to the fund to implement this article.
   (2) Establishes a revenue source for the fund.
   (b) Notwithstanding subdivision (a), the operation of this article
shall be suspended during any fiscal year in which both no funds are
appropriated to the fund to implement this article and no revenue
source for the fund is operative.