text: An action may be commenced under Section 79650 or 79685 at any time prior to expiration of the applicable limitations period provided for by this article.

article: 4. Timing

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 8. Cost Recovery > 4. Timing


kind: section

code: HSC

text:
(a) (1) Except as provided in paragraph (2) and subdivision (b), an action under Section 79650 for the recovery of costs incurred by the department or a regional board in carrying out or overseeing a response or corrective action pursuant to this part or Chapter 6.5 (commencing with Section 25100) of Division 20, or as otherwise authorized by law, shall be commenced within three years after completion of all response or corrective actions has been certified by the department or a regional board.

(2) If operation and maintenance is required as part of the response or corrective action, the action for recovery of costs incurred by the department or a regional board shall be commenced within three years after completion of operation and maintenance has been certified by the department or a regional board.

(b) No action described in subdivision (a) may be brought that, as of December 31, 2015, had not been commenced by the department within three years after the certification of the completion of the removal or remedial action.

history: (History: Added by Stats. 2022, Ch. 257, Sec. 2. (AB 2293) Effective January 1, 2023. Operative January 1, 2024, pursuant to Sec. 4 of Stats. 2022, Ch. 257.)

division: 45. HAZARDOUS SUBSTANCE RESPONSE

part: 2. HAZARDOUS SUBSTANCE ACCOUNT

chapter: 8. Cost Recovery

article: 4. Timing


text: An action under Section 79685 for costs incurred by the department for the purposes specified in Section 79450 shall be commenced within three years after certification by the department of the completion of the activities authorized under Section 79450.

article: 4. Timing


text:
(a) (1) In an action described in Section 79730 or 79735 for recovery of response or corrective action costs, oversight costs, or damages, where the court has entered a judgment for past costs or damages, the court shall also enter an order reserving jurisdiction over the case and the court shall have continuing jurisdiction to determine any future liability and the amount of the future liability.

(2) The department or regional board may immediately enforce the judgment for past costs and damages.

(b) The department or the regional board may apply for a court judgment for further costs and damages that have been incurred during the response or corrective action, operation and maintenance, or during the performance of the activities authorized by Section 79450, but the application shall be made not later than three years after the certification of completion of the response or corrective action, operation and maintenance, or activities authorized pursuant to Section 79450.

article: 4. Timing


text: This article does not apply to a cost recovery action brought by a regional board under the Water Code.

article: 4. Timing


text:
(a) Except as provided in Section 79765, a party found liable for costs recoverable under this part who establishes by a preponderance of the evidence that only a portion of those costs are attributable to that party’s actions shall be required to pay only for that portion.

(b) Except as provided in Section 79765, if the trier of fact finds the evidence insufficient to establish each party’s portion of costs under subdivision (a), the court shall apportion those costs, to the extent practicable, according to equitable principles, among the defendants.

article: 5. Scope of Liability

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 8. Cost Recovery > 5. Scope of Liability


text: Notwithstanding this part, a response action contractor who is found liable for any costs recoverable under this part and who establishes by a preponderance of the evidence that only a portion of those costs are attributable to the response action contractor’s actions shall be required to pay only that portion of the costs attributable to the response action contractor’s actions.

article: 5. Scope of Liability


text:
For purposes of this article, the following definitions apply:

(a) “Owner” means either (1) the owner of property who occupies a single-family residence or one-half of a duplex constructed on the property, or (2) the owner of common areas within a residential common interest development who owns those common areas for the benefit of the residential homeowners. This subdivision does not include the developer of the common interest development.

(b) “Property” means either (1) real property of five acres or less that is zoned for, and on which has been constructed, a single-family residence, or (2) common areas within a residential common interest development.

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 8. Cost Recovery > 6. Liability of Residential Property Owner


text: Notwithstanding any other provision of this part, this article governs liability pursuant to this part for an owner of property.

article: 6. Liability of Residential Property Owner


text:
(a) Notwithstanding any other provision of this part, an owner of property that is the site of a hazardous substance release is presumed to have no liability pursuant to this part for either of the following:

(1) A hazardous substance release that has occurred on the property.

(2) A release of a hazardous substance to groundwater underlying the property if the release occurred at a site other than the property.

(b) The presumption may be rebutted as provided in Section 79800.


text:
An action for recovery of costs or expenditures incurred from the state account pursuant to this part in response to a hazardous substance release may not be brought against an owner of property unless the department first certifies that, in the opinion of the department, one of the following applies:

(a) The hazardous substance release that occurred on the property occurred after the owner acquired the property.

(b) The hazardous substance release that occurred on the property occurred before the owner acquired the property and at the time of acquisition the owner knew or had reason to know of the hazardous substance release.

(c) The owner of property where there has been a release of a hazardous substance to groundwater underlying the property took, or is taking, one or more of the following actions:

(1) Caused or contributed to a release of a hazardous substance to the groundwater.

(2) Fails to provide the department, or its authorized representative, with access to the property.

(3) Interferes with response action activities.


text: In an action brought against an owner of property to recover costs or expenditures incurred from the state account pursuant to this part in response to a hazardous substance release, the presumption established in Section 79790 may be rebutted if it is established by a preponderance of the evidence that the facts upon which the department made the certification pursuant to subdivision (a), (b), or (c) of Section 79795 are true.


text:
For the purposes of this article, the following terms have the following meaning:

(a) “Easement” means a conservation easement, as defined in Section 815.1 of the Civil Code.

(b) “Environmental assessment” means an investigation of real property, conducted by an independent qualified environmental consultant, to discover the presence or likely presence of a release or a threat of a release of a hazardous substance at, on, to, or from the real property. An environmental assessment shall include, but is not limited to, an investigation of the historical use of the real property, any prior releases, records, consultant reports and regulatory agency correspondence, a visual survey of the real property, and, if warranted, sampling and analytical testing.

(c) “Owner” means either of the following:

(1) An independent special district, as defined in Section 56044 of the Government Code.

(2) An entity or organization that holds an easement.

(d) “Property” means either of the following:

(1) Real property acquired by a special district by means of a gift or donation for which an environmental assessment was completed prior to the transfer or conveyance of the real property to the special district.

(2) An easement for which an environmental assessment was completed prior to the transfer or conveyance of the easement to an entity or organization authorized to accept the easement pursuant to Section 815.3 of the Civil Code.

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 8. Cost Recovery > 7. Liability of Easement Holder or Special District


text:
(a) Notwithstanding any other provision of this part, this article governs liability pursuant to this part for an owner of property.

(b) This article is applicable only to property that is acquired by the owner on or after January 1, 1995.

article: 7. Liability of Easement Holder or Special District


text:
(a) Notwithstanding any other provision of this part, if an environmental assessment of property discovers no evidence of the presence or likely presence of a release or a threat of a release of a hazardous substance, and a hazardous substance release is subsequently discovered on, to, or from that property, the owner of that property is entitled to a rebuttable presumption, affecting the burden of producing evidence, that the owner is not a liable person or responsible party for purposes of this part. An owner is entitled to this presumption whether the action is brought by the state or by a private party seeking contribution or indemnification.

(b) In an action brought against an owner of property to recover costs or expenditures incurred from the state account pursuant to this part in response to a hazardous substance release, the presumption may be rebutted if it is established by a preponderance of the evidence that the facts upon which the department made the certification pursuant to subdivision (a), (b), (c), or (d) of Section 79825 are true.


text:
An action for recovery of costs or expenditures incurred from the state account pursuant to this part in response to a hazardous substance release shall not be brought against an owner of property unless the department first certifies that, as found by the department, one of the following situations applies:

(a) The hazardous substance release occurred on or after the date that the owner acquired the property.

(b) The hazardous substance release occurred before the date that the owner acquired the property and, at the time of the acquisition, the owner knew, or had reason to know, of the hazardous substance release.

(c) The environmental assessment applicable to the property was not properly carried out, was fraudulently completed, or involves the negligent or intentional nondisclosure of information.

(d) The hazardous substance release was discovered on or after the date of acquisition and the owner failed to exercise due care with respect to the release, taking into consideration the characteristics of the hazardous substance in light of all relevant facts and circumstances.


text: For purposes of this article, “household hazardous waste collection program” means a program or facility, specified in Section 25218.1, in which hazardous wastes from households and very small quantity generators are collected and ultimately transferred to an authorized hazardous waste treatment, storage, or disposal facility.

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 8. Cost Recovery > 8. Liability of Operator for Household Hazardous Waste or Used Oil Collection Program


text: A public agency operating a household hazardous waste collection program or a person operating a household hazardous waste collection program under a written agreement with a public agency, or, for material received from the public as used oil, a person operating a certified used oil collection center as provided in Section 48660 of the Public Resources Code, shall not be held liable in a cost recovery action brought pursuant to Section 79650, including, but not limited to, an action to recover the fees imposed by Section 79105 or an action brought pursuant to Section 79670, for waste that has been properly handled and transported to an authorized hazardous waste treatment, storage, or disposal facility at a location other than that of the collection program.

article: 8. Liability of Operator for Household Hazardous Waste or Used Oil Collection Program


text: Except as provided in Section 79845, this article does not affect or modify the obligations or liabilities of a person imposed pursuant to state or federal law.


text: Except as provided in Article 10 (commencing with Section 79875), no indemnification, hold harmless, conveyance, or similar agreement shall be effective to transfer any liability for cost or expenditures recoverable under this part. This section shall not bar any agreement to insure, hold harmless, or indemnify a party to the agreement for any costs or expenditures under this part.

article: 9. Liability Agreements

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 8. Cost Recovery > 9. Liability Agreements


text: The repeal of Section 25364.6, pursuant to Chapter 1226 of the Statutes of 1998, shall not affect any indemnity provided pursuant to that section for any cause of action brought because of any act or omission that occurred before the repeal of that section.

article: 9. Liability Agreements


text:
For purposes of this article, the following definitions shall apply:

(a) “Affiliate” means any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the responsible party owner. For purposes of this subdivision, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, or ownership of shares or interests in the entity possessing more than 50 percent of the voting power.

(b) “Qualified independent consultant” means either a geologist who is registered pursuant to Section 7850 of the Business and Professions Code or a professional engineer who is registered pursuant to Section 6762 of the Business and Professions Code.

(c) “Responsible party owner” means the owner of all or part of the site on January 1, 1993, or if all or a part of the site is transferred to a joint venture formed for purposes of development of the site, the owner of the site immediately prior to that transfer.

(d) “Site” means the site of the former Kaiser Steel Corporation steel mill located near the City of Fontana.

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 8. Cost Recovery > 10. Former Kaiser Steel Corporation Steel Mill Site


text:
Notwithstanding any other provision of law, except as provided in Sections 79885 and 79890, the director may release from liability under this part or Chapter 6.5 (commencing with Section 25100) of Division 20, and from liability for any claims of the state for recovery of response costs under the federal act, any of the following persons, with regard to a removal or remedial action at the site:

(a) Any person who provides financing for all, or a substantial part of, the costs of performing a removal or remedial action at the site pursuant to a remedial action plan prepared by a qualified independent consultant and issued by the department pursuant to Section 79210 and subdivision (a) of Section 79215, except that the release from liability shall not release the person providing this financing from liability for any hazardous substance release or threatened release resulting from that person’s exercise of decisionmaking control over the performance of the removal or remedial action while the responsible party owner remains in possession of the site.

(b) Any person who enters into an agreement with the responsible party owner to provide development services for the development of all, or a part of, the site, including a developer, who becomes a partner in a joint venture partnership with the responsible party owner, if the joint venture is formed for purposes of the development of the site and legal title to the site is transferred by the responsible party owner to the joint venture. If a release from liability is granted to a developer pursuant to this subdivision and the legal title to the site is transferred by the responsible party owner to a joint venture between the developer and the responsible party owner of the site, the responsible party owner shall not be relieved of liability under this part.

(c) Any person who acquires an ownership or leasehold interest in all or a part of the site after performance of the removal or remedial action specified in the remedial action plan for the site, or part of the site, has been completed to the satisfaction of the department.

article: 10. Former Kaiser Steel Corporation Steel Mill Site


text:
A release from liability shall not be granted pursuant to Section 79880 unless all of the following conditions are met:

(a) A responsible party owner has entered into a stipulated settlement of an order issued by the department pursuant to Section 25187, 78870, or 79055 to perform the removal or remedial action at the site in accordance with the remedial action plan and has arranged financing, contingent only upon obtaining releases from potential liability pursuant to Section 79880, for the costs of performing the removal or remedial action.

(b) A responsible party owner agrees to pay all applicable oversight fees required by Section 79105 and to pay any additional costs that are recoverable pursuant to Section 79650.

(c) No person to be released from liability pursuant to Section 79880 is a responsible party or an affiliate of a responsible party, with respect to any hazardous substance release existing at the site at the time the release from liability is granted.

(d) The stipulated settlement requires the responsible party owner to provide irrevocable financial assurances for full performance of the remedial action plan. The financial assurances may consist of one or more of the financial assurance instruments described in Section 66264.143 of Title 22 of the California Code of Regulations. Upon the approval of the department, the forms of these instruments may be revised as appropriate to apply to the costs of performing the removal or remedial action specified in the remedial action plan.

(e) The director finds that the release from liability to be granted will promote the purposes and goals of this part and encourage private investment in property that is in need of remediation.


text:
Notwithstanding any other provision of this article, a release from liability granted pursuant to Section 79880 shall not extend to any of the following:

(a) (1) Any person who was a responsible party for a hazardous substance release existing at the site before the release from liability was granted.

(2) Any entity that is an affiliate of a responsible party described in paragraph (1).

(b) Any contractor who prepares the remedial action plan or performs the removal or remedial action provided for in the remedial action plan.

(c) Any person who obtains a release pursuant to Section 79880 by fraud or negligent or intentional nondisclosure or misrepresentation.

(d) Any liability for a release or threatened release of a hazardous substance first deposited at the site by a person released from liability pursuant to Section 79880 after the release from liability is granted.


text: Any release from liability granted by the director pursuant to this article shall contain the following provision: “If, for any reason, the responsible party does not complete the removal or remedial action, this release does not extend to any subsequent actions or activities performed by the released party that exacerbate the conditions at the site.”


text: The site may be subdivided to create subdivided parcels of land, pursuant to the Subdivision Map Act (Division 2 (commencing with Section 66410) of Title 7 of the Government Code), in order to facilitate removal or remedial action at the site, secure financing for removal or remedial action, or secure financing for development that would generate funds for removal or remedial action at the site.


text:
(a) Notwithstanding any other provision of this chapter, the costs incurred by a state agency to take a hazardous substance response action at the BKK Landfills Site in the City of West Covina shall be deemed to be a contribution towards any potential liability for response costs or damages imposed pursuant to state law upon a state agency that arranged for the disposal or treatment of a hazardous substance at that site.

(b) The Legislature declares its intent that the costs incurred by a state agency to take action in response to a hazardous substance release at the BKK Landfills Site in the City of West Covina shall be deemed to be a contribution towards any potential liability for response costs or damages imposed pursuant to the federal act upon a state agency that arranged for the disposal or treatment of a hazardous substance at that site.

article: 11. Costs Incurred at BKK Landfill Site

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 8. Cost Recovery > 11. Costs Incurred at BKK Landfill Site


text:
(a) The department shall, if it determines that it is practicable and in the public interest, propose a final administrative or judicial expedited settlement with potentially responsible parties if the settlement involves only a minor portion of the response costs at a site and, if in the judgment of the department, either of the following conditions are met:

(1) The amount of hazardous substances and the toxic or other hazardous effects of the hazardous substances contributed by the potentially responsible party to the site are minimal in comparison to the amount and effects of other hazardous substances at the site.

(2) The potentially responsible party is the owner of the real property on or in which the site is located, did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at the site, and did not contribute to the release or threat of release of a hazardous substance at the site through any act or omission. This paragraph does not apply if the potentially responsible party, at the time of the purchase of the real property, knew or should have known that the property was used for the generation, transportation, storage, treatment, or disposal of any hazardous substance.

(b) A party who has resolved its liability to the state under this section shall not be liable for claims for contribution regarding matters addressed in the settlement. A settlement under this section does not discharge any of the other potentially responsible parties unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.

(c) Any person who enters into a settlement under this section shall provide any information relevant to the administration of this part that is requested by the department. In order to obtain the contribution protection provided by subdivision (b), a potentially responsible party participating in a de minimis settlement shall certify that it has responded fully and accurately to all of the department’s requests for information, and that it has provided all of the relevant documents pertaining to the site to the department.

(d) Nothing in this section shall be construed to affect the authority of the department or regional board to reach settlements with other potentially responsible parties under this part.

article: 12. Settlement

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 8. Cost Recovery > 12. Settlement


text:
(a) (1) Any costs or damages incurred by the department or regional board pursuant to this part constitute a claim and lien upon the real property owned by the responsible party that is subject to, or affected by, the removal and remedial action.

(2) The lien provided by this article shall continue until the liability for these costs or damages, or a judgment against the responsible party, is satisfied. However, if it is determined by the court that the judgment against the responsible party will not be satisfied, the department may exercise its rights under the lien.

(b) This lien shall attach regardless of whether the responsible party is insolvent.

(c) A lien established by this article shall be subject to the notice and hearing procedures required by due process of the law and shall arise at the time costs are first incurred by the department or regional board with respect to a response action at the site.

article: 13. Liens

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 8. Cost Recovery > 13. Liens


text: The lien imposed by this article 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.

article: 13. Liens


text:
(a) The lien shall contain the legal description of the real property, the assessor’s parcel number, and the name of the owner of record, as shown on the latest equalized assessment roll.

(b) 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.

article: 13. Liens


text: The department shall not be considered a responsible party for a hazardous substance release site because a claim and lien is imposed pursuant to this article.

article: 13. Liens


text: All funds recovered pursuant to this article shall be deposited in the state account.

article: 13. Liens


text:
For purposes of this chapter, the following definitions shall apply:

(a) “Fund” means the Orphan Share Reimbursement Trust Fund established pursuant to Section 80020.

(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 80070.

history: (History: Added by Stats. 2022, Ch. 257, Sec. 2. (AB 2293) Effective January 1, 2023. Operative January 1, 2024, pursuant to Sec. 4 of Stats. 2022, Ch. 257. Conditionally operative pursuant to Sec. 80100.)

chapter: 9. Orphan Share Reimbursement

article: 1. General Provisions

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 9. Orphan Share Reimbursement > 1. General Provisions


text:
The Legislature finds and declares all of the following:

(a) This chapter, 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.

article: 1. General Provisions


text:
(a) This chapter 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 chapter, and the state shall not incur a liability or obligation beyond the payment of claims pursuant to this chapter, to the extent that money is available and has been allocated by the administrator under subdivision (a) of Section 80050. No legal action may be brought against the Orphan Share Reimbursement Trust Fund in its own name.

article: 1. General Provisions


text:
(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 chapter, 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) 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 chapter 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 state 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 part at sites listed pursuant to Article 5 (commencing with Section 78760) of Chapter 4 where no viable responsible parties exist.

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 9. Orphan Share Reimbursement > 2. Orphan Share Reimbursement Trust Fund


text:
Except as provided in subdivision (b) of Section 78420 and subdivision (c) of Section 80020, the administrator of the fund may expend the money in the fund for all of the following purposes:

(a) 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 Sections 80040, 80045, and 80050.

(b) For the costs of implementing this chapter.

(c) To pay the reasonable costs of the department and the regional board for performance of its duties under this chapter, including, but not limited to, its participation in the orphan share determination process set forth in Section 80070, unless those costs are paid by a potentially responsible party under an agreement specified in subdivision (c) of Section 80040. The expenditures from the fund for purposes of this subdivision shall not exceed 5 percent of the total amount appropriated from the fund in the annual Budget Act for purposes of this section for that fiscal year.

(d) 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 subdivision (c) of Section 80040.

article: 2. Orphan Share Reimbursement Trust Fund


text:
A potentially responsible party may file a claim pursuant to subdivision (a) of Section 80025 only if all of the following apply:

(a) The site is listed pursuant to Article 5 (commencing with Section 78760) of Chapter 4.

(b) The department or the regional board has approved a final remedy for the site under Article 12 (commencing with Section 79195) of Chapter 5.

(c) 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 78870 or 79055, 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 part 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.

(d) 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.

(e) The potentially responsible party is in compliance with the agreement provided in subdivision (c), and with any other applicable order or agreement pertaining to the potentially responsible party’s obligations with respect to the site.

(f) The potentially responsible party has prepared and provided the information required under subdivision (b) of Section 80070.

(g) 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.

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 9. Orphan Share Reimbursement > 3. Claims for Orphan Share Reimbursement


text:
The administrator of the fund shall prescribe appropriate application forms and procedures for claims filed pursuant to subdivision (a) of Section 80025 that shall include all of the following:

(a) Requirements that the claimant provide, at a minimum, all of the following documentation:

(1) A sworn verification of the claim to the best of the information known to the claimant or within the claimant’s possession or control.

(2) 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 (a) of Section 78440.

(3) 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.

(b) Procedures specifying that claims shall be filed only at the two following specific time periods during the performance of a response action:

(1) After the final remedy is selected under Article 12 (commencing with Section 79195) of Chapter 5.

(2) 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 paragraph.

article: 3. Claims for Orphan Share Reimbursement


text:
(a) 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 subdivision (a) of Section 80025, 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 subdivision (c) of Section 80040 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 80070, 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.

(b) 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 chapter. In enacting this chapter, 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.


text:
A claim for reimbursement under subdivision (a) of Section 80025 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 former Chapter 6.85 (commencing with Section 25396) of Division 20.

(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.


text:
For the purposes of this chapter, 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 (b), 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 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 (a) and (c) of Section 78440.

(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 section. The administrator shall be represented by the Attorney General in any action brought under this chapter.

article: 4. Determination of Orphan Share

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 9. Orphan Share Reimbursement > 4. Determination of Orphan Share


text: Any costs paid from the fund pursuant to subdivisions (a) and (d) of Section 80025 shall be recoverable by the Attorney General, at the request of the administrator of the fund, from any liable person who has not entered into, or is not in compliance with, a written cleanup agreement entered into pursuant to subdivision (c) of Section 80040 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.

article: 5. Enforcement and Cost Recovery

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 9. Orphan Share Reimbursement > 5. Enforcement and Cost Recovery


text: Any potentially responsible party who withholds information required to be submitted under this section or Section 80080, 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.

article: 5. Enforcement and Cost Recovery


text:
(a) Any costs incurred and payable from the fund by the administrator pursuant to this chapter shall constitute a claim and lien upon the real property owned by a responsible party that 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) (1) 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.

(2) 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 section shall be deposited in the fund.

article: 5. Enforcement and Cost Recovery


text:
(a) This chapter 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 chapter.

(2) Establishes a revenue source for the fund.

(b) Notwithstanding subdivision (a), the operation of this chapter shall be suspended during any fiscal year in which both no funds are appropriated to the fund to implement this chapter and no revenue source for the fund is operative.

article: 6. Operative Date

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 9. Orphan Share Reimbursement > 6. Operative Date


text: For purposes of this chapter, the definitions contained in this article shall apply.

article: 1. Definitions

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 1. Definitions


text: “Account” means the Cleanup Loans and Environmental Assistance to Neighborhoods Account established pursuant to Section 80350.

chapter: 10. Cleanup Loans and Environmental Assistance to Neighborhoods

article: 1. Definitions


text:
(a) “Brownfield” means property that meets all of the following conditions:

(1) It is located in an urban area.

(2) It was previously the site of an economic activity that is no longer in operation at that location.

(3) It has been vacant or has had no occupant engaged in year-round economically productive activities for a period of not less than the 12 months previous to the date of application for a loan pursuant to this chapter.

(b) “Brownfield” does not include any of the following:

(1) Property listed, or proposed for listing, on the National Priorities List pursuant to Section 105(a)(8)(B) of the federal act (42 U.S.C. Sec. 9605(a)(8)(B)).

(2) Property that is, or was, owned or operated by a department, agency, or instrumentality of the United States.

(3) Property that will be the site of a contiguous expansion or improvement of an operating industrial or commercial facility, unless the property is a brownfield described in paragraph (5) of subdivision (a) of Section 80230.

article: 1. Definitions


text: “Cleanup and abatement order” means an order issued by a regional board pursuant to Section 13304 of the Water Code.

article: 1. Definitions


text: “Cleanup Loans and Environmental Assistance to Neighborhoods Program” or “CLEAN” means the loan program established by the department pursuant to Article 6 (commencing with Section 80450), to finance the performance of actions necessary to respond to the release or threatened release of hazardous material on an eligible property.

article: 1. Definitions


text: “Economic activity” means a governmental activity, a commercial, agricultural, industrial, or not-for-profit enterprise, or other economic or business concern.

article: 1. Definitions


text:
(a) “Eligible property” means a site that is any of the following:

(1) A brownfield.

(2) An underutilized property that is a property described in paragraph (5) of subdivision (d) of Section 80275.

(3) An underutilized property that is a property located in any of the following:

(A) An enterprise zone established pursuant to the former Enterprise Zone Act (former Chapter 12.8 (commencing with Section 7070) of Division 7 of Title 1 of the Government Code).

(B) A project area for which a redevelopment plan has been approved pursuant to Article 4 (commencing with Section 33330) of Chapter 4 of Part 1 of Division 24.

(C) An eligible area, as determined pursuant to paragraph (2) of subdivision (c) of former Section 7072 of the Government Code.

(4) An underutilized property that is a property, the redevelopment of which will result in any of the following:

(A) An increase in the number of full-time jobs that is at least 100 percent greater than the number of jobs provided by the economic activity located on the property before redevelopment occurred.

(B) An increase in property taxes paid to the local government that is at least 100 percent greater than the property taxes paid by the property owner before redevelopment occurred.

(C) Sales tax revenues to the local government that are sufficient to defray the costs of providing municipal services to the property after the redevelopment occurs.

(D) Housing for very low, low-, or moderate-income households, as defined in paragraph (3) of subdivision (h) of Section 65589.5 of the Government Code.

(E) The construction of new or expanded school facilities, public day care centers, parks, or community recreational facilities.

(5) A brownfield or an underutilized property described in paragraph (3) that will be the site of a contiguous expansion of an operating industrial or commercial facility owned or operated by one of the following:

(A) A small business.

(B) A nonprofit corporation formed under the Nonprofit Public Benefit Corporation Law (Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the Corporations Code) or the Nonprofit Religious Corporation Law (Part 4 (commencing with Section 9110) of Division 2 of Title 1 of the Corporations Code).

(C) A small business incubator that is undertaking the expansion with the assistance of a loan guarantee provided pursuant to Section 63089.71 of the Government Code.

(b) “Eligible property” does not include any of the following:

(1) Property listed or proposed for listing on the National Priorities List pursuant to Section 105(a)(8)(B) of the federal act (42 U.S.C. Sec. 9605 (a)(8)(B)).

(2) Property that is, or was, owned or operated by a department, agency, or instrumentality of the United States.

(3) Property that will be the site of a contiguous expansion or improvement of an operating industrial or commercial facility, unless the property meets the criteria specified in paragraph (5) of subdivision (a).

article: 1. Definitions


text:
(a) “Hazardous material” means a substance or waste that, because of its physical, chemical, or other characteristics, may pose a risk of endangering human health or safety or of degrading the environment. “Hazardous material” includes, but is not limited to, all of the following:

(1) A hazardous substance, as defined in Section 25281 or subdivision (a) of Section 78075.

(2) A hazardous waste, as defined in Section 25117.

(3) A waste, as defined in Section 101075, or as defined in Section 13050 of the Water Code.

(4) A substance specified in subdivision (b) of Section 78075.

(b) “Hazardous material” does not include undisturbed naturally occurring hazardous material unless it will adversely affect the reasonable use of a property after response action is completed.

article: 1. Definitions


text: “Investigating site contamination program” means the loan program established by the department pursuant to Article 5 (commencing with Section 80400) to conduct a preliminary endangerment assessment of a brownfield or an underutilized urban property.

article: 1. Definitions


text: “Leaking underground fuel tank” has the same meaning as “tank,” as defined in Section 25299.24.

article: 1. Definitions


text: “No longer in operation” means an economic activity that is, or previously was, located on a property that is not conducting operations on the property of the type usually associated with the economic activity.

article: 1. Definitions


text: “Project” means any response action, and the planned future development, included in an application for a loan pursuant to Article 6 (commencing with Section 80450).

article: 1. Definitions


text: “Property” means real property, as defined in Section 658 of the Civil Code.

article: 1. Definitions


text: “Small business” means an independently owned and operated business, that is not dominant in its field of operation, that, together with affiliates, has 100 or fewer employees, and that has average annual gross receipts of ten million dollars ($10,000,000) or less over the previous three years, or a business that is a manufacturer, as defined in Section 14837 of the Government Code, with 100 or fewer employees.

article: 1. Definitions


text:
“Underutilized property” means property that meets all of the following conditions:

(a) It is located in an urban area.

(b) An economic activity is conducted on the property.

(c) It is the subject of a proposal for development pursuant to this chapter.

(d) One of the following applies:

(1) The economic activity on the property is irregular or intermittent in nature and uses the property for productive purposes less than four months in any calendar year.

(2) The economic activity on the property employs less than 25 percent of the property for productive purposes.

(3) The structures, infrastructure, and other facilities on the property are antiquated, obsolete, or in such poor repair that they cannot be used for the purposes for which they were originally constructed and require replacement in order to implement the redevelopment proposal.

(4) The economic activity conducted on the property is a parking facility or an activity that offers a similar marginal economic service and the facility or activity will be replaced when the property is redeveloped.

(5) The property is adjacent to one or more brownfields or underutilized properties that are the subject of a project under this chapter and its inclusion in the project is necessary in order to ensure that the redevelopment of the brownfield or brownfields or underutilized property or underutilized properties occurs.

(e) An underutilized property does not include any of the following:

(1) Property listed or proposed for listing on the National Priorities List pursuant to Section 105(a)(8)(B) of the federal act (42 U.S.C. Sec. 9605 (a)(8)(B)).

(2) Property that is, or was, owned or operated by a department, agency, or instrumentality of the United States.

(3) Property that will be the site of a contiguous expansion or improvement of an operating industrial or commercial facility, unless the property is an underutilized property described in paragraph (5) of subdivision (a) of Section 80230.

article: 1. Definitions


text:
“Urban area” means either of the following:

(a) The central portion of a city or a group of contiguous cities with a population of 50,000 or more, together with adjacent densely populated areas having a population density of at least 1,000 persons per square mile.

(b) An urbanized area as defined in paragraph (2) of subdivision (b) of former Section 21080.7 of the Public Resources Code, as enacted by Section 6 of Chapter 1130 of the Statutes of 1993.

article: 1. Definitions


text: Except as provided in Sections 80570 and 80575, any response action carried out under this chapter shall be conducted in accordance with the requirements of this part and Chapter 6.65 (commencing with Section 25260) of Division 20.

article: 2. General Provisions

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 2. General Provisions


text:
(a) (1) Notwithstanding Section 80300, for purposes of Section 25262, the administering agency for any site that is the subject of a loan under this chapter shall either be the department pursuant to this chapter, or a regional board, the state board, or a local oversight program agency under contract with the state board pursuant to Article 11 (commencing with Section 80570).

(2) A person shall not request that a different agency be designated as an administering agency for the site under Chapter 6.65 (commencing with Section 25260) of Division 20.

(b) (1) For purposes of this article, the Site Designation Committee created by Section 25261 is not required to meet and formally designate the department, a regional board, the state board, or a local oversight program agency under contract with the state board, as specified in Article 11 (commencing with Section 80570), as the administering agency pursuant to Section 25262 for a site that is the subject of a loan under this chapter.

(2) Upon the approval of a loan under Article 7 (commencing with Section 80480), the department shall notify the Site Designation Committee of the administering agency for the site.

article: 2. General Provisions


text: For sites that are the subject of a loan under this chapter, all references in this part to a hazardous substance shall be deemed to be a reference to a hazardous material.

article: 2. General Provisions


text: Except as provided in Sections 80570 and 80575, this part shall apply to a site that is the subject of a loan under this chapter, regardless of whether the site is on the list created pursuant to Article 5 (commencing with Section 78760) of Chapter 4.

article: 2. General Provisions


text:
(a) Except as provided in Section 25264, this chapter shall not be construed to limit the authority of the department, the regional board, or the state board to take any action otherwise authorized under any other provision of law.

(b) This chapter shall not be construed to limit, extend, or affect local land use and zoning authority.

article: 2. General Provisions


text:
(a) (1) The department shall post, and update at least monthly, a list of loan applications received pursuant to this chapter on the department’s internet website.

(2) The list shall include the name of the applicant, the location of the property that is the subject of the loan application, the administering agency, and a contact at the department for further information.

(b) The department shall also annually post on that website a summary of the response action status for each site with a loan approved under Article 7 (commencing with Section 80480).

article: 2. General Provisions


text:
The Cleanup Loans and Environmental Assistance to Neighborhoods Account is hereby established in the General Fund to provide low-interest loans to qualified applicants for the purpose of funding preliminary endangerment assessments and response actions at brownfields and underutilized properties located in the state pursuant to this chapter, and for any other purpose determined by the department to stimulate the redevelopment of brownfields and underutilized properties, if the department determines that the redevelopment will result in the overall improvement of the community in which the property is located and will provide a reasonable economic or social benefit, in accordance with Section 80355. All of the following moneys shall be deposited in the account:

(a) Funds appropriated by the Legislature for the purposes of this chapter.

(b) Notwithstanding Section 16475 of the Government Code, any interest earned upon money deposited into the account.

(c) Proceeds from loan repayments.

(d) Proceeds from the sale, pursuant to this chapter, of property that is the subject of foreclosure or its equivalent, as defined in subdivision (f) of Section 25548.1, and proceeds from the enforcement of any other security interest.

article: 3. Financial Provisions

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 3. Financial Provisions


text:
(a) Except as provided in subdivision (b), notwithstanding Section 13340 of the Government Code, the money in the account is continuously appropriated, without regard to fiscal years, to the department for the purpose of providing loans pursuant to Articles 5 (commencing with Section 80400) and 6 (commencing with Section 80450) and for the purpose of providing subsidies for environmental insurance pursuant to the California Financial Assurance and Insurance for Redevelopment Program (Chapter 11 (commencing with Section 80680)).

(b) The money in the account may be expended by the department, a regional board, the state board, and the agency for the implementation and administration of this article and for implementation and administration of the California Financial Assurance and Insurance for Redevelopment Program (Chapter 11 (commencing with Section 80680)), only upon appropriation by the Legislature in the annual Budget Act or in another measure.

article: 3. Financial Provisions


text:
The following persons are not eligible to apply for a loan under this chapter:

(a) A person who has been convicted of a felony or misdemeanor involving the regulation of hazardous materials, including, but not limited to, a conviction of a felony or misdemeanor under former Section 25395.13 (repealed by Section 73 of Chapter 39 of the Statutes of 2012).

(b) A person who has been convicted of a felony or misdemeanor involving moral turpitude, including, but not limited to, the crimes of fraud, bribery, the falsification of records, perjury, forgery, conspiracy, profiteering, or money laundering.

(c) A person who is in violation of an administrative order or agreement issued by or entered into with any federal, state, or local agency that requires response action at a site or a judicial order or consent decree that requires response action at a site.

(d) A person who knowingly made a false statement regarding a material fact or knowingly failed to disclose a material fact in connection with an application submitted to the secretary under this chapter.

article: 4. Loans Generally

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 4. Loans Generally


text: The rate of interest to be applied to loans made pursuant to this chapter shall be the same rate earned on investments in the Surplus Money Investment Fund during the loan repayment period. If a loan recipient defaults on a loan, the rate of interest to be applied to the loan shall be 10 percent from the date of default, or whatever greater rate is reflected in the agreement entered into pursuant to subdivision (a) of Section 80520.

article: 4. Loans Generally


text:
On or before January 10 of each year when a loan under this chapter is made or repaid during the previous fiscal year, the secretary shall report to the Joint Legislative Budget Committee and to the chairs of the appropriate policy committees of the Senate and the Assembly, and shall post on the internet website of the agency, all of the following:

(a) The number and dollar amount of loans approved pursuant to Article 5 (commencing with Section 80400), the number and dollar amount of those loans that have been repaid, and the number and dollar amount of those loans that are in default.

(b) The number and dollar amount of loans waived pursuant to Section 80425.

(c) The number and dollar amount of loans approved pursuant to Article 7 (commencing with Section 80480), the number and dollar amount of those loans that have been repaid, and the number and dollar amount of those loans that are in default.

(d) The number of preliminary endangerment assessments completed pursuant to agreements entered into under this chapter.

(e) The number of sites where necessary response actions have been completed pursuant to agreements entered into under this chapter.

article: 4. Loans Generally


text: The department, with the approval of the secretary, shall establish an Investigating Site Contamination Program to provide loans to eligible persons to conduct preliminary endangerment assessments of brownfields and underutilized properties. A loan provided pursuant to this article shall not be used for the cost of a phase I environmental assessment or the department’s oversight of the preparation and approval of the preliminary endangerment assessment.

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 5. Investigating Site Contamination Program


text:
The department shall develop a loan application form for an investigating site contamination program loan and shall include, in the form, any provisions that the department considers to be appropriate. The application form shall be signed by the loan applicant and shall be submitted to the department with all of the following documentation:

(a) The phase I environmental assessment for the property that is the subject of the loan application.

(b) Information that demonstrates that the property is a brownfield or an underutilized property.

(c) If the owner of the property that is the subject of the loan application is not the loan applicant, one of the following:

(1) Documentation that demonstrates that the owner consents to the performance of the preliminary endangerment assessment of the property.

(2) A copy of an agreement between the property owner and the loan applicant that gives the loan applicant an option to purchase the property.

(3) If the loan applicant is a local government entity, or a developer or prospective purchaser acting together with a local government entity pursuant to an enforceable agreement, a demonstration to the department that the local government entity, or developer or prospective purchaser acting together with the local government entity pursuant to an enforceable agreement, has legal access to perform the preliminary endangerment assessment at the property, or will have legal access, prior to receiving loan funds.

(d) Any other information the department deems necessary.

article: 5. Investigating Site Contamination Program


text: The department shall determine whether to approve a loan application pursuant to this article based upon the information submitted pursuant to Section 80405. In making a decision regarding whether to approve a loan application, the department shall approve a loan pursuant to this article for a property only if the department determines the property is a brownfield or an underutilized property.


text: The maximum amount of a loan granted pursuant to this article shall not exceed one hundred thousand dollars ($100,000).


text:
(a) Except as provided in subdivision (b) and in Section 80425, upon approval of the loan application by the department, the loan recipient shall execute an agreement with the department to repay the loan over a period not to exceed three years.

(b) If the loan is to a local government entity, or to a developer or prospective purchaser acting together with a local government entity pursuant to an enforceable agreement, the department may delay the beginning of the loan repayment period.

(c) Except as provided in subdivision (d), the agreement made pursuant to subdivision (a) shall require that if the loan recipient recovers from a responsible party any costs incurred in taking a response action at the site that is the subject of the loan application, any money so recovered, except for reasonable costs and the fees incurred to recover that money, shall be used first to repay the loan or repay the grant.

(d) Notwithstanding subdivision (c), a loan recipient is not required to first use the money recovered to repay the loan or grant, if the recipient can demonstrate, to the satisfaction of the department, that the recovered money is necessary to, and is being applied to, the total environmental remediation of the property, and that the total of the recovered money and the loan amount does not exceed the cost of remediation.


text: If a loan recipient who is not the owner of the property and the department determine, after the completion of the preliminary endangerment assessment, that the sum of the cost of remediation and the property purchase price makes the redevelopment of the property not economically feasible, the department may waive the repayment of up to 75 percent of the loan, and the amount waived shall be deemed a grant to the loan recipient. If the department waives the repayment of part of the loan, the recipient shall repay the remaining portion of the loan within one year of that waiver.


text: Upon approval of a loan, the recipient shall enter into an agreement with the department for the department to provide regulatory oversight of the preparation and approval of the preliminary endangerment assessment.


text: Notwithstanding any requirement of Division 20 (commencing with Section 24000) or this part regarding cost recovery or reimbursement for oversight costs, a loan recipient is not liable for paying the department’s cost associated with the oversight of the preparation and approval of the preliminary endangerment assessment if the department determines there are sufficient funds in the account to reimburse the department for that oversight. If the department determines that the account has insufficient funds to pay for the oversight costs associated with the oversight of the preparation and approval of the preliminary endangerment assessment, the loan recipient shall pay the department the amount of those costs.


text: The department, with the approval of the secretary, shall establish a Cleanup Loans and Environmental Assistance to Neighborhoods Program to provide loans to finance the performance of any action necessary to respond to the release or threatened release of hazardous material at an eligible property.

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 6. Cleanup Loans and Environmental Assistance to Neighborhoods Program


text:
The department shall develop an application form for a loan under the CLEAN program and shall include, in the form, any provisions that the department determines to be appropriate to carry out the CLEAN program. The application shall be signed by the loan applicant and shall be accompanied by all of the following:

(a) A preliminary endangerment assessment that has been approved by the department, or an environmental assessment with equivalent information, that discloses the presence of a release or threatened release of a hazardous material at the property at concentrations that may pose a risk to public health and safety and the environment.

(b) The name and address of the project coordinator for the site and the résumé of the coordinator that demonstrates that the coordinator possesses the requisite qualifications to manage the response action at the site.

(c) Documentation that the property is an eligible property and, if the department has implemented the priority scoring system set forth in Article 7 (commencing with Section 80480), sufficient information to enable the department to determine the priority score for the property.

(d) Documentation that the planned future development of the site is consistent with the current and reasonably foreseeable future land uses of the property.

(e) If the owner of the eligible property that is the subject of the loan application is not the loan applicant, one of the following:

(1) Documentation that demonstrates that the owner agrees to use the property as a security interest for the loan to finance necessary response action at the property.

(2) A copy of an agreement between the property owner and the loan applicant that gives the loan applicant an option to purchase the property.

(3) If the loan applicant is a local government entity, or a developer or prospective purchaser acting in concert with a local government entity pursuant to an enforceable agreement, a demonstration to the department that the local government entity, or developer or prospective purchaser acting in concert with a local government entity pursuant to an enforceable agreement, has legal access to perform any action necessary to respond to the release or threatened release of hazardous material at an eligible property, or will have legal access, prior to receiving loan funds.

(f) Any other information the department deems necessary.

article: 6. Cleanup Loans and Environmental Assistance to Neighborhoods Program


text:
(a) A recipient of a loan to perform an action to respond to a release or threatened release of a hazardous material at an eligible property that is granted pursuant to this article may also use the loan funds to pay the premium for environmental insurance products to facilitate the development of the site, if the insurance company has an A.M. Best Financial Strength Rating of A+ or better and an A.M. Best Financial Size Category of FSC X or larger and is authorized to offer environmental insurance in California.

(b) A loan provided pursuant to this article shall not be used to pay for a phase I environmental assessment, a preliminary endangerment assessment, the department’s oversight of actions necessary to respond to the release or threatened release of hazardous material at an eligible property, or any operation and maintenance activity at a site.


text: The department shall take those necessary actions to promote the use of loans under the CLEAN program by local governments.


text:
(a) The department, after consultation with the secretary, the Secretary of Business, Transportation and Housing, and the Director of the Office of Planning and Research, may approve loan applications submitted pursuant to Article 6 (commencing with Section 80450).

(b) The department may approve a loan only for those response actions necessary to address a release or threatened release of a hazardous material at an eligible property.

article: 7. Review of CLEAN Loan Applications

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 7. Review of CLEAN Loan Applications


text: If the department determines, based on estimates of the number of loan requests that will be submitted in any fiscal year and the amount of loan funds that will be available during that fiscal year, that sufficient funding to meet the demand for loans will not be available, the department shall establish a system for ranking loan applications based on priority scores. Priority scores shall be calculated for each loan application by scoring the project that is the subject of the loan application using scales that measure the factors listed in Section 80490. The department shall approve loans for a project based on its priority scores.

article: 7. Review of CLEAN Loan Applications


text:
The system for ranking loan applications pursuant to Section 80485 shall establish priority scores for projects that are the subjects of the loan applications using scales that measure all of the following factors:

(a) The degree of community support expressed for the project, including, but not limited to, letters of support from local governmental entities, state or local elected officials, community leaders, and the general public.

(b) Financial support for the project provided at the local level, including grants or other subsidies, and funding provided by the issuance of bonds pursuant to the Mello-Roos Community Facilities Act of 1982 (Chapter 2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the Government Code) or financing under the Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24).

(c) The potential for the project to provide additional protection of the public health and safety.

(d) The potential for the project to enhance strategic community development, including, but not limited to, all of the following:

(1) The creation of new jobs.

(2) Generation of additional tax revenue.

(3) The likelihood that the project will stimulate additional redevelopment in adjacent areas.

(4) The degree to which implementation of the project will improve local property values.

(5) The degree to which implementation of the project will result in the development of new parks.

(6) The extent to which the project may have a beneficial effect on the construction of new schools.

(7) The extent to which the project will result in the construction of affordable inner-city housing.

(8) The potential for the project to have a beneficial impact on existing local and regional infrastructure or projected infrastructure needs, or otherwise promote infill development.

(e) The economic viability of the project, including, but not limited to, an analysis of the current value of the property as compared to its projected value after all necessary response actions have been completed.

(f) The ability of the loan applicant to successfully perform the response action at the site and repay the loan if funding is provided.

(g) The geographic location of the project, taking into consideration the number and amounts of loans approved for projects located in that area, as compared to those approved for other needy areas throughout the state.

(h) The degree of likelihood that the response action would not be completed if a loan pursuant to Article 6 (commencing with Section 80450) is not made, including whether any necessary response action is already being paid for by a responsible party pursuant to an administrative order, an agreement issued or entered into with a federal, state, or local agency, a judicial order, or a consent decree.

(i) The ability to obtain conventional financing absent a loan under this program.

article: 7. Review of CLEAN Loan Applications


text: The department may approve all, or part of, a loan request pursuant to Article 7 (commencing with Section 80480), except the maximum amount of a loan approved pursuant to Article 7 (commencing with Section 80480) shall not exceed two million five hundred thousand dollars ($2,500,000).

article: 8. Conditions for Loan Approval

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 8. Conditions for Loan Approval


text: The department shall not approve a loan pursuant to Article 7 (commencing with Section 80480) if the total debt against the eligible property subject to the release or threatened release of a hazardous material on which the response action will be taken exceeds 80 percent of the estimated value of the property after all necessary response actions are complete.

article: 8. Conditions for Loan Approval


text:
Upon the approval of a loan pursuant to Article 7 (commencing with Section 80480), the loan recipient shall do all of the following:

(a) Enter into an agreement with the department to repay the loan over a period of not more than seven years. If the loan is to a local government entity, or to a developer or prospective purchaser acting together with a local government entity pursuant to an enforceable agreement, the department may delay the beginning of the loan repayment period.

(1) The agreement shall include those terms and conditions that the department deems appropriate.

(2) (A) The agreement shall require that if the loan recipient recovers from a responsible party any costs incurred in taking a response action at the site that is the subject of the response action pursuant to the agreement, the loan recipient shall use the recovered money, except for reasonable costs and the fees incurred to recover that money, first to satisfy the loan.

(B) Notwithstanding subparagraph (A), a loan recipient is not required to first use the money recovered to repay the loan or grant if the recipient can demonstrate, to the satisfaction of the department, that the recovered money is necessary to, and is being applied to, the total environmental remediation of the property, and that the total of the recovered money and the loan amount does not exceed the cost of remediation.

(b) (1) Enter into an agreement with the department or with the regional board or state board pursuant to Article 11 (commencing with Section 80570) for the oversight and approval of the response action at the site. This agreement shall include any necessary conditions and assurances to ensure that post-completion, ongoing operation and maintenance activities, and any necessary institutional controls on future uses of the property, are complied with. This agreement shall be provided to the department before the department may release any loan funds to the loan recipient.

(2) Notwithstanding any requirement of Division 20 (commencing with Section 24000) or this part regarding cost recovery or reimbursement for oversight costs, a loan recipient is not liable for paying the department’s costs pursuant to this chapter or the regional board’s or state board’s costs pursuant to Article 11 (commencing with Section 80570) associated with the oversight of the response action at the site subject to the agreement, if the department determines there are sufficient funds in the account to reimburse the department’s costs pursuant to this chapter or the regional board’s or state board’s costs pursuant to Article 11 (commencing with Section 80570) for that oversight. If the department determines that the account has insufficient funds to pay for the oversight costs associated with the oversight of the response action at the site subject to the agreement, the loan recipient shall pay the department’s costs pursuant to this chapter or the regional board’s or state board’s costs pursuant to Article 11 (commencing with Section 80570) for the amount of those costs.

(c) (1) Except as provided in paragraph (2), obtain secured creditor insurance, as defined in Section 80730, from the insurance company selected by the secretary pursuant to Section 80760, or comparable insurance from any insurance company with an A.M. Best Financial Strength Rating of A+ or better and an A.M. Best Financial Size Category of FSC X or larger that is authorized to offer environmental insurance in California. This insurance shall be obtained before the department may release any loan funds to the loan recipient.

(2) The secretary may waive the requirement of paragraph (1) to obtain insurance or any specific insurance coverage if either of the following apply:

(A) No money is available for the environmental insurance subsidies authorized pursuant to Section 80800.

(B) The secretary determines that the scope of the response action is limited and the cost of the premiums of the prenegotiated package of environmental insurance products equals or exceeds the estimated response action costs, or is otherwise not commercially feasible.

article: 9. Obligations of Loan Recipient

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 9. Obligations of Loan Recipient


text:
(a) A loan approved pursuant to Article 7 (commencing with Section 80480) shall be secured by the property subject to the release or threatened release of the hazardous material on which the response action will be taken or by another form of security that the department determines will adequately protect the state’s interest.

(b) The department shall obtain an appropriate security interest in the property or other alternative form of security approved by the department.

(c) (1) The department may foreclose on property, or the alternative form of security approved by the department, that is subject to a security interest pursuant to this article.

(2) Any funds received through a foreclosure or through the enforcement of any other security interest pursuant to this chapter shall be deposited in the account.

article: 10. Security for Loan

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 10. Security for Loan


text:
(a) The state, the secretary, the department, and the account are not liable under any state or local statute, regulation, or ordinance because the department holds the security interest identified in Section 80540 or because the department acquired property through foreclosure or its equivalent in satisfaction of a loan issued pursuant to this chapter.

(b) Chapter 6.96 (commencing with Section 25548) of Division 20 does not apply to the state, the secretary, the department, the agency, or the account with regard to a loan secured pursuant to Section 80540.

article: 10. Security for Loan


text:
(a) Notwithstanding any other provision of law, no approval or review shall be required from the Department of General Services to obtain any security interest or exercise any rights, including, but not limited to, foreclosure, under any security interest or other agreement made pursuant to this chapter.

(b) The acquisition of a property pursuant to this chapter through foreclosure or its equivalent is not subject to Article 2 (commencing with Section 14660) of Chapter 2 of Part 5.5 of Division 3 of Title 2 of the Government Code.

(c) The department shall promptly dispose of any property acquired through the exercise of any security interest pursuant to this chapter at the property’s current market value and the disposal of this property is exempt from Section 11011.1 of the Government Code and Article 8 (commencing with Section 54220) of Chapter 5 of Part 1 of Division 2 of Title 5 of the Government Code.

article: 10. Security for Loan


text:
(a) Except as provided in subdivision (b) and Section 80575, upon the request of a regional board or the state board, the administering agency for any site that is the subject of a loan approved under Article 7 (commencing with Section 80480) shall be a regional board, the state board, or a local oversight program agency under contract with the state board in accordance with Chapter 6.7 (commencing with Section 25280) of Division 20 and Chapter 6.75 (commencing with Section 25299.10) of Division 20, if the property is subject to a release from a leaking underground fuel tank and the release from the leaking underground fuel tank is the principal threat at that property, as determined by the regional board, the state board, and the department.

(b) If the site specified in subdivision (a) was not subject to oversight by a local oversight program agency prior to the date the loan application was submitted to the department pursuant to Article 6 (commencing with Section 80450), the regional board shall serve as the administering agency.

(c) Any response action for a property subject to this section for a leaking underground fuel tank shall be carried out under Chapter 6.65 (commencing with Section 25260), Chapter 6.7 (commencing with Section 25280), and Chapter 6.75 (commencing with Section 25299.10) of Division 20.

article: 11. Administering Agency

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 11. Administering Agency


text:
(a) Upon the request of a regional board, the regional board shall be the administering agency for a property specified in Section 80570, if the site is subject to one or more of the following orders or agreements under Division 7 (commencing with Section 13000) of the Water Code prior to the date the loan application was submitted to the department pursuant to Article 6 (commencing with Section 80450):

(1) A cleanup and abatement order.

(2) Another cleanup order issued by a regional board.

(3) A written voluntary agreement with a regional board.

(b) Any response action for a site subject to this section shall be carried out pursuant to Chapter 6.65 (commencing with Section 25260) of Division 20.

article: 11. Administering Agency


text: Notwithstanding Sections 80570 and 80575, the regional board and the state board, in consultation with the department, may request the department to be the administering agency for a property subject to this article.

article: 11. Administering Agency


text: Notwithstanding Section 80575, if a regional board has issued a cleanup order or entered into a written voluntary agreement under Division 7 (commencing with Section 13000) of the Water Code for a site and the department has issued an order or entered into an enforceable agreement under Chapter 6.5 (commencing with Section 25100) of Division 20 or this part, the regional board and the department shall consult and determine which agency shall be the administering agency for the site under this chapter.

article: 11. Administering Agency


text:
The department shall provide a written notice of the receipt of a loan application under Article 6 (commencing with Section 80450), including the name and address of the loan applicant and the location of the property, to both of the following:

(a) A regional board for any property within that regional board’s jurisdiction.

(b) The state board for any property that contains a leaking underground fuel tank.

article: 11. Administering Agency


text: The regional board or state board shall respond with a written notice to the department within 20 working days after receipt of the notice or information provided pursuant to Section 80590 indicating whether the regional board or a local oversight program agency under contract with the state board will oversee the response action pursuant to this article. If the regional board or state board does not provide this notice within that time period, the regional board or state board shall be deemed to have elected not to oversee the response action.

article: 11. Administering Agency


text:
(a) If a regional board or a local oversight program agency under contract with the state board oversees a response action pursuant to this article, the department shall reimburse the regional board or state board from the account for oversight costs, if all of the following occur:

(1) The department determines, pursuant to paragraph (2) of subdivision (b) of Section 80520, that there are sufficient funds in the account.

(2) The department receives the report required upon completion of the response action under Section 80605.

(3) The regional board or a local oversight program agency under contract with the state board, as appropriate, certifies that it is not eligible to be reimbursed for oversight costs from any other fund or account, including, but not limited to, the Underground Storage Tank Cleanup Fund pursuant to Chapter 6.75 (commencing with Section 25299.10) of Division 20.

(b) If the department determines pursuant to paragraph (2) of subdivision (b) of Section 80520 that the account has insufficient funds, the regional board or state board shall recover its oversight costs from the loan recipient, and the department shall not be liable for these oversight costs.

(c) If a regional board or a local oversight program agency under contract with the state board oversees a response action pursuant to this article, the recipient of a loan approved pursuant to Article 7 (commencing with Section 80480) shall enter into an agreement with the regional board or the state board under paragraph (1) of subdivision (b) of Section 80520 for the oversight and approval of the response action at the site, prior to the release of loan funds by the department. The agreement shall meet the requirements specified in the regulations adopted pursuant to Article 12 (commencing with Section 80620).

article: 11. Administering Agency


text:
If the regional board or a local oversight program agency under contract with the state board serves as the administering agency pursuant to this article, the regional board or the state board shall do both of the following:

(a) Annually provide information to the department about the status of the response action, including any response action decision document that includes limitations on land use or other institutional controls.

(b) Notify the department upon completion of the response action.

article: 11. Administering Agency


text: This article does not apply to any site subject to Chapter 1 (commencing with Section 17210) of Part 10.5 of Division 1 of Title 1 of the Education Code.

article: 11. Administering Agency


text:
(a) The department may adopt regulations to implement this chapter as emergency regulations. The Office of Administrative Law shall consider the situation addressed by those regulations to be an emergency for purposes of Section 11349.6 of the Government Code.

(b) Notwithstanding the time period specified in subdivision (e) of Section 11346.1 of the Government Code, the emergency regulations adopted or amended pursuant to this section shall be repealed 180 days after the effective date of the regulations, unless the secretary or the department readopts those regulations, in whole or in part, in compliance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

article: 12. Emergency Regulations

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 10. Cleanup Loans and Environmental Assistance to Neighborhoods > 12. Emergency Regulations


text:
(a) The department may adopt emergency regulations to implement the changes made by Chapter 548 of the Statutes of 2001. The Office of Administrative Law shall consider the situation addressed by those regulations an emergency for purposes of Section 11349.6 of the Government Code.

(b) Notwithstanding the time period specified in subdivision (e) of Section 11346.1 of the Government Code, the emergency regulations adopted or amended pursuant to this section shall be repealed 180 days after the effective date of the regulations, unless the secretary or the department readopts those regulations, in whole or in part, in compliance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

article: 12. Emergency Regulations


text: For purposes of this chapter, the definitions contained in this article shall apply.

article: 1. Definitions

path: 45. HAZARDOUS SUBSTANCE RESPONSE > 2. HAZARDOUS SUBSTANCE ACCOUNT > 11. California Financial Assurance and Insurance for Redevelopment Program > 1. Definitions


text: “CLEAN Program” means the Cleanup Loans and Environmental Assistance to Neighborhoods Program established pursuant to Section 80450.

chapter: 11. California Financial Assurance and Insurance for Redevelopment Program

article: 1. Definitions


text:
(a) “Cost overrun insurance” means insurance that covers some, or all, of the response costs caused by a known pollution condition at a site, that exceed the estimated response action costs that have been accepted and approved by the insurer, based on information from the department and other relevant sources at the time the insurance is first obtained.

(b) Cost overrun insurance shall, at a minimum, provide for all of the following:

(1) The response costs in excess of the estimated response action costs that have been accepted and approved by the insurer.

(2) A policy period of sufficient length to cover the duration of the response activities, not including post-completion operation and maintenance.

(3) A self-insured retention amount not to exceed 25 percent of the estimated response action costs that have been accepted and approved by the insurer.

article: 1. Definitions


text: “Eligible property” has the same meaning as defined in subdivision (a) of Section 80230.

article: 1. Definitions


text: “Environmental insurance” means insurance intended to limit the liability associated with the discovery and cleanup of a hazardous material release, including secured creditor insurance, pollution liability insurance, and cost overrun insurance, and any other insurance product that the secretary selects to be provided pursuant to Article 2 (commencing with Section 80750).

article: 1. Definitions


text: “Estimated response action costs” means the projected costs of taking a response action in implementing an approved removal action work plan or remedial action plan prepared to address a pollution condition at a site.

article: 1. Definitions


text:
“Hazardous material” means a substance or waste that, because of its physical, chemical, or other characteristics, may pose a risk of endangering human health or safety or of degrading the environment. “Hazardous material” includes, but is not limited to, all of the following:

(a) A hazardous substance, as defined in Section 25281 or subdivision (a) of Section 78075, including the substances specified in subdivision (b) of Section 78075.

(b) A hazardous waste, as defined in Section 25117.

(c) A waste, as defined in Section 101075, or as defined in Section 13050 of the Water Code.

article: 1. Definitions


text: “Insurance company” means an insurance company authorized in California to offer environmental insurance and that has an A.M. Best Financial Strength Rating of A+ or better and an A.M. Best Financial Size Category of FSC X or larger.

article: 1. Definitions


text: “Pollution condition” means a release or threatened release of a hazardous material and any resulting impact upon the environment.

article: 1. Definitions


text:
(a) “Pollution liability insurance” means insurance that covers damages caused by a pollution condition from, or at, a site that is preexisting and unknown, or was otherwise unknown at the time the insurance is first obtained, and, at a minimum, provides for all of the following:

(1) A minimum policy period of five years after the completion of remediation activities, not including post-completion operation and maintenance.

(2) A duty to defend and pay for defense costs in an amount at least up to the amount of coverage available under the policy, irrespective of whether an administrative or judicial order requires the insured to compensate any party or pay for the damages, so long as there already exists a reasonably quantifiable legal obligation to pay those damages.

(b) For purposes of this section, “damages” means either of the following:

(1) Property damage incurred at a site as an unforeseen and unexpected result of a pollution condition.

(2) Bodily injury, property damage, and response action costs sustained or incurred by a third party as a result of a pollution condition at a site.

(c) For purposes of this section, “damages” includes the property damage, bodily injury, and response costs specified in subdivision (b), irrespective of whether an administrative or judicial order requires the insured to compensate any party or pay for the property damage, bodily injury, or response costs, so long as there exists a reasonably quantifiable legal obligation to pay for those damages.

article: 1. Definitions