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AB-304 Contaminated sites: waste releases or surface or groundwater contamination: local oversight: remedial actions.(2021-2022)

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Date Published: 06/30/2021 09:00 PM
AB304:v96#DOCUMENT

Amended  IN  Senate  June 30, 2021
Amended  IN  Senate  May 28, 2021
Amended  IN  Assembly  March 23, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 304


Introduced by Assembly Members Quirk and Mathis

January 25, 2021


An act to amend Sections 25299.50.6, 101480, 101483, 101485, and 101487 of the Health and Safety Code, relating to contaminated sites.


LEGISLATIVE COUNSEL'S DIGEST


AB 304, as amended, Quirk. Contaminated sites: waste releases or surface or groundwater contamination: local oversight: remedial actions.
(1) Whenever a release of waste occurs and remedial action is required, existing law authorizes a responsible party, as defined, to request that a local officer supervise the remedial action. Existing law authorizes a local officer to agree to supervise the remedial action if the local officer determines that certain conditions have been met. Existing law requires that remedial action to be carried out only pursuant to a remedial action agreement, which includes specified elements, entered into by the local officer and the responsible party, and authorizes the local officer to withdraw from the agreement, after giving the responsible party adequate notice, at any time after making specified findings. Existing law requires a local officer to provide written notification that includes specified information to the Department of Toxic Substances Control and the appropriate regional water quality control board at least 10 working days before entering into a remedial action agreement with a responsible party. Existing law authorizes a local officer to provide a responsible party with a letter or other document that describes the release of waste that occurred and the remedial action taken and certifies that the cleanup goals embodied in the remedial action agreement were accomplished. Existing law exempts from these requirements specified categories of sites, including, but not limited to, sites that are subject to a corrective action order.
This bill would authorize a responsible party to request the local officer to oversee a remedial investigation, as defined, or a remedial action, as defined, or both, only if the release of waste is not being overseen by the department or a regional water quality control board. The bill would authorize the local officer to agree to oversee the remedial investigation or remedial action, or both, only if the local officer determines that the same conditions referenced above have been met, the local officer has submitted specified information to the department and the regional water quality control board within the past 12 months, and the local officer has complied with specified notification requirements. The bill would revise the requirements for a remedial action agreement, as defined, and would impose other requirements relating to recordkeeping and public notification, as provided. The bill would require the local officer to provide notice to the department and the regional water quality control board of the local officer’s intention to enter into a remedial action agreement with a responsible party. The bill would require the department or the regional water quality control board, within 30 days of receiving that notice, to inform the local officer in writing if the department or the regional water quality control board will retain oversight authority for the release of waste. The bill would require, instead of authorize, a local officer to provide the responsible party with a document that makes the same descriptions and certifications described above. By imposing new duties on local officers, the bill would impose a state-mandated local program. The bill would also exempt sites subject to a corrective action agreement from these requirements, and make a corresponding and a technical change to the provisions exempting specified categories of sites from these requirements.
(2) Existing law establishes the Underground Storage Tank Cleanup Fund and authorizes the State Water Resources Control Board to expend moneys in the fund for certain purposes, including for transfer to the Site Cleanup Subaccount, as provided. Existing law authorizes the state board to expend funds in the subaccount, upon appropriation by the Legislature, for certain purposes, including to issue grants for specified costs relating to surface or groundwater contamination at a location if the state board, the department, a regional water quality control board, or a local agency requires the responsible parties to undertake or contract for investigation or cleanup at the location pursuant to an oral or written order, directive, notification, or approval issued pursuant to specified laws, and if the responsible parties lack sufficient financial resources to pay for the required response actions, as provided.
This bill would additionally authorize the state board to expend moneys in the subaccount for those grants if a local officer, as defined, or a unified program agency, as defined, requires the responsible parties to undertake or contract for those same actions pursuant to an oral or written order, directive, notification, or approval issued pursuant to additional specified laws.
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 25299.50.6 of the Health and Safety Code is amended to read:

25299.50.6.
 (a) The Site Cleanup Subaccount is hereby established in the State Treasury. Moneys shall be deposited in the subaccount pursuant to subdivision (m) of Section 25299.51.
(b) The board may expend the funds in the Site Cleanup Subaccount, upon appropriation by the Legislature, for the following purposes:
(1) To pay for reasonable and necessary expenditures that the board, the department, a regional board, a local agency, or a water replenishment district incurs to investigate the source of surface or groundwater contamination.
(2) (A) To pay for reasonable and necessary expenditures to remediate the harm or threat of harm to human health, safety, and the environment caused by existing or threatened surface or groundwater contamination incurred by any of the following:
(i) The board.
(ii) The department.
(iii) A regional board.
(iv) A local agency.
(v) A water replenishment district, under the direction of the board, a regional board, a local agency, or another appropriate regulatory agency with authority over surface or groundwater cleanup oversight.
(B) The board shall consider the following factors when approving expenditures for specific locations:
(i) The degree to which human health, safety, and the environment are threatened by contamination at the location.
(ii) Whether the location is located in a small or financially disadvantaged community.
(iii) The cost and potential environmental benefit of the investigation or cleanup.
(iv) Whether there are other potential sources of funding for the investigation or cleanup.
(v) Any other information the board identifies as necessary for consideration.
(3) To issue grants pursuant to this section for the reasonable and necessary costs of actions to remediate the harm or threat of harm to human health, safety, and the environment caused by existing or threatened surface or groundwater contamination at a location if both of the following conditions are met:
(A) The board, the department, a regional board, local agency, unified program agency, or a local officer requires the responsible parties to undertake or contract for investigation or cleanup pursuant to an oral or written order, directive, notification, or approval issued pursuant to Section 25187, 25187.1, 25296.10, 25355.5, 25358.3, or 101480, or any section of the Water Code. The board may waive this requirement if the board finds that it is infeasible for an order to be issued before initiation of remediation.
(B) No responsible party has sufficient financial resources to pay for the required response actions.
(4) For payments to the Attorney General by the board pursuant to subdivision (g).
(c) At least annually, the board shall review grant applications and adopt a list of applicants to be awarded grants pursuant to paragraph (3) of subdivision (b). In addition to the conditions specified in paragraph (3) of subdivision (b), the board shall consider all of the following factors when awarding grants:
(1) The degree to which human health, safety, and the environment are threatened by surface water or groundwater contamination at the location.
(2) Whether the location is located in a small or financially disadvantaged community.
(3) The cost and potential environmental benefit of the investigation or cleanup.
(4) Whether there are other potential sources of funding for the investigation or cleanup.
(5) Any other information the board identifies as necessary for consideration.
(d) (1) The board shall specify the information that shall be included in a grant application, consistent with this section, including, but not limited to, a provision requiring the applicant to make a sworn verification of the information in the application to the best of the applicant’s knowledge.
(2) The board may adopt procedures to implement this section.
(3) The board shall post any procedures or information requirements adopted pursuant to this section on its internet website.
(e) (1) The recipient of grant moneys shall expend those funds only for the reasonable costs necessary to protect human health, safety, and the environment, incurred on or after September 25, 2014.
(2) The board shall not issue a grant for any costs for which the applicant has been, or will be, paid by another source.
(3) The board may terminate a grant and may bar the applicant from receiving any future grants from the Site Cleanup Subaccount if the board finds that the applicant has made a misrepresentation or false claim.
(f) (1) Any funds in the Site Cleanup Subaccount that are not expended in a fiscal year shall remain in the subaccount until they are encumbered.
(2) Notwithstanding Section 16304.1 of the Government Code, the board shall encumber the funds appropriated pursuant to this section within three years of the appropriation and the board may make a disbursement in liquidation of an encumbrance before or during the three years following the last day the appropriation is available for encumbrance.
(3) Notwithstanding Section 16475 of the Government Code, any interest earned upon the money in the Site Cleanup Subaccount shall be deposited in the Site Cleanup Subaccount.
(g) The Attorney General may recover the actual, reasonable costs of investigation or cleanup undertaken pursuant to this section in a civil action, upon request from the board, from any responsible party. All money recovered by the Attorney General pursuant to this section shall be deposited in the Site Cleanup Subaccount.
(h) For purposes of this section, the following definitions apply:
(1) “Local officer” has the meaning provided for in Section 101480.
(2) “Unified program agency” has the meaning provided for in Section 25404.
(3) “Water replenishment district” has the meaning provided for in Section 60012 of the Water Code.

SEC. 2.

 Section 101480 of the Health and Safety Code is amended to read:

101480.
 (a)  For purposes of this article, the following definitions apply:
(1) “Department” means the Department of Toxic Substances Control.
(2) “Local officer” means a county health officer, city health officer, or county director of environmental health who has been granted authority by the city’s or county’s governing body to enter into a remedial action agreements agreement and oversee a remedial actions investigation or remedial action, or both, at a waste release sites. site.
(3) “Operation and maintenance” means those activities initiated or continued at a waste release site following completion of a remedial action deemed necessary to protect public health, safety, or the environment, to maintain the effectiveness of the remedial action at the waste release site, or to achieve or maintain the cleanup goals established in a remedial action agreement pursuant to subdivision (c).
(4) “Person” has the same meaning as set forth in Section 25118.
(5) “Regional water quality control board” means an entity formed pursuant to Section 13201 of the Water Code.
(6) “Release” has the same meaning as set forth in Section 25320.
(7) “Remedial action” or “remediation” means any action taken by a responsible party to clean up a released waste, to abate the effects of a released waste, or to prevent, minimize, or mitigate damages that may result from the release of a waste. “Remedial action” includes the restoration, rehabilitation, or replacement of any natural resource damaged or lost as a result of the release of a waste.
(8) “Remedial action agreement” means an agreement between a local officer and a responsible party pursuant to which the local officer oversees the investigation, remediation, or operation and maintenance of a waste release site that includes the information set forth in subdivision (c).
(9) “Remedial investigation” or “investigation” means those actions deemed necessary to determine the full extent of a waste release at a site, identify the public health and environmental threat posed by the waste release, collect data on possible remedies, and otherwise evaluate the waste release site for purposes of developing a remedial action.
(10) “Responsible party” means a person who, pursuant to this section, requests a local officer to oversee a remedial investigation or remedial action, or both, with respect to a released waste.
(11) “State board” means the State Water Resources Control Board.
(12) “Waste” has the same meaning as set forth in subdivision (b) of Section 101075.
(b)  Whenever a release of waste occurs and remedial action is required, and that waste release site is not being overseen by the department or the regional water quality control board, a responsible party may request the local officer to oversee the remedial investigation or remedial action, or both. A local officer may agree to oversee the remedial investigation or remedial action, or both, if the local officer determines, based on available information, that staff resources and the requisite technical expertise and capabilities are available to the local officer to adequately oversee the remedial investigation or remedial action, or both, and if the local officer has met both of the following requirements:
(1) The local officer has complied with the notification requirements in Section 101487.
(2) The local officer has, within the past 12 months, submitted to the department and the regional water quality control board all of the following information:
(A) A description of the technical expertise and staff resources available to the local officer to oversee the investigation or remediation, or both, of waste release sites, including the résumés of appropriately licensed professionals, licensed pursuant to Chapter 7 (commencing with Section 6700) of, or Chapter 12.5 (commencing with Section 7800) of, Division 3 of the Business and Professions Code. The local officer shall submit to the department and the regional water quality control board information on any substantial changes to staff resources described in this subparagraph within 30 days of those changes.
(B) Certification that all applicable requirements of this code and Division 7 (commencing with Section 13000) of the Water Code will be adhered to and that, if enforcement action is necessary, the appropriate enforcement action will be conducted. If the local officer lacks the necessary enforcement authority, the local officer shall notify the department and the regional water quality control board regarding the status of the case and the need for enforcement assistance.
(C) Attestation that accurate records will be maintained and kept up to date, including through the use of the state board’s GeoTracker electronic data management system, and kept in compliance with the electronic reporting requirements in Chapter 30 (commencing with Section 3890) of Division 3 of Title 23 of, and Subdivision 2 of Division 3 of Title 27 of, the California Code of Regulations, or any successor regulations.
(c) A remedial action carried out under this section shall be carried out only pursuant to a remedial action agreement entered into by a local officer and a responsible party. The remedial action agreement shall specify all of the following information:
(1) The testing, monitoring, and analysis the responsible party will carry out to determine the type and extent of the contamination caused by the released waste that is the subject of the remedial action.
(2) Proposed remedial actions.
(3) Reporting and public notification requirements.
(4) Actions that may be taken in the event of the responsible party’s noncompliance with state or local agency directives.
(5) The cleanup goals that the local officer determines are necessary to comply with applicable provisions of this code and the Water Code, and all associated regulations, in order to protect human health, safety, or the environment, and that, if met, constitute a permanent remedy to the release of the waste.
(d)  A local officer who enters into a remedial action agreement, as described in subdivision (c), may, after giving a responsible party at least 30 days’ notice, withdraw from the agreement at any time for one or more of the following reasons:
(1)  The responsible party is not in compliance with the remedial action agreement.
(2) Staff resources, technical expertise, or technical capabilities are not available to the local officer to adequately oversee the remedial investigation or remedial action, or both.
(3)  The release of the waste that is the subject of the remedial investigation or remedial action, or both, is of a sufficiently complex nature or may present such a significant potential hazard to human health, safety, or the environment that it should be referred to the department or the regional water quality control board.
(e) (1) Within 30 days of receiving a notification from a local officer pursuant to Section 101487, the department or the regional water quality control board shall inform the local officer in writing if the department or the regional water quality control board will retain oversight authority for the waste release site.
(2) If the department or the regional water quality control board informs a local officer that they will retain oversight authority for the waste release site, the response described in paragraph (1) shall include all of the following:
(A) A brief description of the department’s or the regional water quality control board’s reasons for retaining oversight authority.
(B) The name, phone number, and email address of the technical staff at the department or the regional water quality control board who made the determination.
(C) The internet website address of the electronic data management system where public records will be posted regarding the waste release site.
(f) (1) If the department or the regional water quality control board informs a local officer that they will retain oversight authority for the waste release site pursuant to this section, the local officer shall not enter into a remedial action agreement for that site.
(2) If the department and the regional water quality control board notify a local officer that they will not retain oversight authority for the waste release site pursuant to this section, through either a written statement or by not responding within 30 days from the date of the notification from a local officer pursuant to Section 101487, the local officer may enter a remedial action agreement for the site and, upon doing so, shall establish a global identification number and public record for the site in the state board’s GeoTracker electronic data management system and shall upload a copy of the agreement under that global identification number.
(g) The department or a regional water quality control board shall not assume regulatory oversight authority over a waste release site for which they have received a notification from a local officer pursuant to Section 101487 or after a remedial action agreement has been entered into unless the department or the regional water quality control board makes one or more of the following determinations:
(1)  The remedial action being proposed for the waste release site will be insufficient to address the contamination caused by the released waste that is the subject of the remedial action.
(2) The staff resources, technical expertise, or technical capabilities described in subparagraph (A) of paragraph (2) of subdivision (b) are no longer available to the local officer.
(3) The responsible party is not in compliance with the remedial action agreement and the local officer lacks the necessary enforcement authority to ensure compliance with the remedial action agreement.
(4) The release of the waste that is the subject of the remedial investigation or remedial action, or both, is of a sufficiently complex nature or may present such a significant potential hazard to human health, safety, or the environment that it should be handled by the department or the regional water quality control board.
(h) (1) After a remedial action agreement has been entered into by a local officer, the department or a regional water quality control board shall notify the local officer in writing if the department or the regional water quality control board will assume oversight authority over the waste release site pursuant to the authority referenced in Section 101485.
(2) The notification described in paragraph (1) shall occur with a minimum 30 days’ notice, after which the remedial action agreement shall no longer be valid.
(3) Nothing in the notification described in paragraph (1) shall preclude a local officer from recovering any costs from the responsible party that the local officer incurred under the terms of the remedial action agreement before its termination.
(i) A local officer shall ensure compliance with the electronic reporting requirements of Chapter 30 (commencing with Section 3890) of Division 3 of Title 23 of, and Subdivision 2 of Division 3 of Title 27 of, the California Code of Regulations, or any successor regulations. The electronic reporting requirements shall be included as a provision of a remedial action agreement.
(j) (1) At least 30 days before certifying that the cleanup goals identified in the remedial action agreement were accomplished pursuant to paragraph (2), a local officer shall conduct a public notification process that shall include, at a minimum, both of the following:
(A) Notifying the department, the regional water quality control board, agencies with authority to issue building permits for land affected by the waste release, owners and occupants of the property impacted by the waste release, and the owners and occupants of all parcels adjacent to the waste release site.
(B) Posting the public notice on the state board’s GeoTracker electronic data management system under the global identification number established for the waste release site.
(2) After determining that a responsible party has completed the actions required by the remedial action agreement and that a permanent remedy for the release of waste has been achieved, the local officer shall provide the responsible party with a document that describes the release of waste that occurred and the remedial action taken, and certifies that the cleanup goals embodied in the remedial action agreement were accomplished. The local officer shall post the document on the state board’s GeoTracker electronic data management system under the global identification number established for the waste release site.
(3) (A) Paragraphs (1) and (2) apply to a remedial action agreement entered into on or after January 1, 2022, and an open remedial action agreement entered into before January 1, 2022, if the document described in paragraph (2) has not been provided to the responsible party as of January 1, 2022.
(B) A local officer shall ensure that a global identification number and public record is established in the state board’s GeoTracker electronic data management system for a waste release site for which the local agency is overseeing a remedial action or remedial investigation, or both, pursuant to an open remedial action agreement entered into before January 1, 2022. Commencing on January 1, 2022, the local agency shall maintain all documents related to that waste release site in compliance with the electronic reporting requirements in Chapter 30 (commencing with Section 3890) of Division 3 of Title 23 of, and Subdivision 2 of Division 3 of Title 27 of, the California Code of Regulations, or any successor regulations.
(C) For purposes of this paragraph, “open remedial action agreement” means a remedial action agreement entered into by a local agency and a responsible party before January 1, 2022, for a waste release site for which the local agency, as of January 1, 2022, has not certified that the cleanup goals embodied in the remedial action agreement were accomplished pursuant to paragraph (2).
(k) Except as provided in paragraph (3) of subdivision (j), the amendments made to this section by Assembly Bill 304 of the 2021–22 Regular Session apply to a remedial action agreement entered into on or after January 1, 2022, and this section applies as it read on December 31, 2021, with regard to a remedial action agreement entered into before January 1, 2022.

SEC. 3.

 Section 101483 of the Health and Safety Code is amended to read:

101483.
 This article shall not apply to any of the following:
(a)  A hazardous substance release site listed pursuant to Section 25356, a site subject to an order or enforceable agreement issued pursuant to Section 25355.5 or 25358.3, or a site where the department has initiated action pursuant to Section 25355.
(b)  A site subject to a corrective action order or agreement issued pursuant to Section 25187.
(c)  A site subject to a cleanup and abatement order issued pursuant to Section 13304 of the Water Code.
(d)  A facility that is subject to the requirements of Section 25200.10 or 25200.14.

SEC. 4.

 Section 101485 of the Health and Safety Code is amended to read:

101485.
 This article does not prohibit the department from assuming jurisdiction over a waste release site pursuant to Chapter 6.8 (commencing with Section 25300) of Division 20, or the regional water quality control board or the state board from assuming jurisdiction over a waste release site or from taking enforcement action against a waste release site pursuant to Division 7 (commencing with Section 13000) of the Water Code.

SEC. 5.

 Section 101487 of the Health and Safety Code is amended to read:

101487.
 (a) A local officer shall provide written notification to the department and the regional water quality control board of the local officer’s intention to enter into a remedial action agreement with a responsible party pursuant to subdivision (c) of Section 101480. The written notification shall include all of the following:
(1) The name and address of the responsible party.
(2) The name and address of the current owner of the waste release site, if different than the responsible party.
(3) The address and location of the waste release site to which the remedial action agreement will apply.
(4) A description of any known or planned local, state, or federal regulatory involvement at the waste release site.
(5) A preliminary description of the waste release and, if known, the anticipated investigation or remediation to be performed under the remedial action agreement.
(6) The name, phone number, and email address of the local officer’s technical staff who are available to oversee the remediation of the waste release site.
(b) The amendments made to this section by Assembly Bill 304 of the 2021–22 Regular Session apply to a remedial action agreement entered into on or after January 1, 2022. For a remedial action agreement entered into before January 1, 2022, this section applies as it read on December 31, 2021.

SEC. 6.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.