SECTIONS 25398-25398.15 - California Statutes

HEALTH AND SAFETY CODE

SECTION 25398-25398.15

25398. (a) The department shall serve as the lead agency for
implementing this chapter and shall act as the oversight agency for
purposes of all response actions taken pursuant to this chapter.
(b) After a site has been selected for response action under this
chapter, and prior to holding the conference specified in Section
25398.2, the department shall, after necessary investigation,
including a title search of the site, if appropriate, notify
appropriate state and local agencies and all known potentially
responsible persons for that site of all of the following:
(1) The names and addresses of all potentially responsible persons
who the department has identified at the site, and the factual and
statutory basis for that identification.
(2) That the site has been selected for response action under this
chapter, that the potentially responsible person's rights and
liabilities with respect to the site will be determined under this
chapter, and that the potentially responsible person will be bound by
that determination.
(3) A description of the known extent and type of hazardous
substance that has been released or is threatened to be released on,
at, or from the site.
(4) The date, time, and place for the conference specified in
Section 25398.2.
(c) After the notice provided for in subdivision (b) has been
issued, the department shall notify any additional persons who have
been subsequently identified by the department as potentially
responsible persons, of the selection of the site under this chapter.
This notification shall include all the information specified in
subdivision (b) except that the date, time, and place of the
conference specified in Section 25398.2 need not be included if that
conference has already taken place. The department shall also send
such notifications to the other potentially responsible parties who
have already been identified.
(d) (1) The department shall notify the city or county in which
any site is located that a response action has been initiated
pursuant to this chapter. The department shall provide the city or
county with notice of the time, date, and place of all public
hearings and meetings regarding the response action, shall provide
the city or county with regular response action progress reports, and
shall involve the city or county in any deliberation concerning land
use controls or actions proposed pursuant to subdivision (c) of
Section 25398.7. The department shall request the city or county to
provide the department with the city's or county's assessment of the
planned use of the site, including the current and future zoning and
general plan designations for the site and the city's or county's
determination as to the appropriate planned use designation in the
remedial action plan prepared for the site. The city's or county's
determination as to the appropriate planned use designation shall be
presumed by the department to be the appropriate planned use for the
site. In any action or proceeding to attack, set aside, void, or
annul a determination of the appropriate planned use by the city or
county pursuant to this section, there shall be a rebuttable
presumption of the validity of the determination by the city or
county. The department may rebut that presumption by showing, based
upon substantial evidence in the record, that the requirements of
this chapter are more fully satisfied by a determination that there
should be a different planned use for the site.
(2) Before making a determination regarding the planned use for
the site, the department shall hold a public hearing on that issue
and shall consider all comments received at the hearing. The
department shall thereafter determine the planned use and provide a
written explanation supporting its determination to the city or
county and to any person requesting an explanation.
(e) Nothing in this chapter shall be construed to affect the
authority of a city or county pursuant to Title 7 (commencing with
Section 65000) of the Government Code.

25398.2. (a) Within 90 days from the date of the selection of a
site pursuant to Section 25396.6, the department shall hold a
conference with the identified potentially responsible persons for
purposes of explaining all of the following:
(1) The department's requirements for the performance of a site
investigation and the preparation of a site investigation report to
determine the nature and extent of possible releases of hazardous
substances at the site.
(2) The department's requirements for a community assessment.
(3) The department's procedures for carrying out response
activities, including requirements for public participation.
(b) (1) Except as provided in paragraph (2), within 90 days from
the date of the close of the conference, the department may enter
into an enforceable agreement with one or more responsible persons
for a site selected pursuant to Section 25396.6. The enforceable
agreement shall require all of the following:
(A) The responsible person shall take necessary response actions
at the site pursuant to this chapter.
(B) The responsible person or persons shall pay all of the state's
response costs that are related to the site on an ongoing basis,
within 60 days from the date of receipt of each invoice from the
department, except response costs incurred by the state in relation
to an arbitration conducted pursuant to this chapter, or judicial
review of the arbitration decision, if the arbitration or judicial
review is initiated by a responsible person who is not a party to the
enforceable agreement. After liability is finally apportioned
pursuant to this chapter, each participating responsible person's
share of response costs may be adjusted in relation to the shares of
other participating responsible persons. Any agreement to pay orphan
share costs, which the fund cannot pay, shall be backed by adequate
forms of financial security, as determined by the department.
(C) The department and the responsible person enter into a
covenant not to sue each other or any responsible person who has
entered into an enforceable agreement under this section pursuant to
the federal act. However, any site selected for remediation pursuant
to this chapter shall not be immune from, and, if appropriate, may be
subject to, natural resource damage claims pursuant to subdivision
(f) of Section 9607 of the federal act.
(D) If a responsible person subject to the agreement fails to
comply with this chapter or any regulation, requirement, or order
issued or adopted pursuant to this chapter, the department shall
remove the site from eligibility for response action pursuant to
Chapter 6.65 (commencing with Section 25260) and this chapter, and
may direct that any further response actions at that site be taken
pursuant to Chapter 6.8 (commencing with Section 25300), unless one
or more of the remaining responsible persons, if any, agree to assume
the noncomplying responsible person's responsibilities under the
agreement.
(2) The 90-day period to enter into an agreement may be extended
by agreement of the department and the responsible person or
responsible persons.
(c) The covenants not to sue executed by responsible persons and
the department shall be expressly conditioned upon performance of all
obligations under this chapter and the enforceable agreement.
(d) If no responsible person enters into an enforceable agreement
pursuant to subdivision (b), the response actions at the site shall
no longer be governed by this chapter.
(e) A draft remedial action plan shall be prepared pursuant to
Section 25398.6 by the responsible person. The draft remedial action
plan shall be approved by the department pursuant to Section 25398.6
for each site selected. Preliminary and intermediate actions may be
taken prior to the approval of a remedial action plan to ensure
protection of public health and the environment.
(f) To the extent consistent with the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C.A. Sec. 6901 et seq.), the
department may exclude from the hazardous waste facilities permit
requirements of Section 25201, those portions of any response action
selected and carried out pursuant to this chapter, that complies with
all laws, rules, regulations, standards, requirements, criteria, or
limitations applicable to the construction, operation, and closure of
the type of facility at the site, and with any other condition
imposed by the department as necessary to protect human health and
safety or the environment. The department may enforce any federal or
state law, rule, regulation, standard, requirement, criteria, or
limitation with which the response action is required to comply
pursuant to this subdivision.

25398.3. (a) If the department determines that an interim
endangerment exists at any site after it has been selected for
response action pursuant to Article 2 (commencing with Section
25396.5), the department may take those actions necessary to contain
or eliminate the interim endangerment.
(b) When actions are required to be taken to immediately contain
or eliminate an interim endangerment, the department shall, whenever
practicable, given the risk of harm to human health and the
environment, provide the potentially responsible person or persons,
who have entered into an agreement pursuant to subdivision (b) of
Section 25398.2, a reasonable opportunity to initiate or take over
the interim endangerment response actions as soon as possible.
(c) To contain or eliminate an interim endangerment at any site
undergoing remediation pursuant to this chapter, the department may
take either of the following actions:
(1) Order the responsible persons to take or pay for all
appropriate remedial actions necessary to contain or eliminate the
interim endangerment.
(2) Take or contract for any appropriate response actions
necessary to contain or eliminate the interim endangerment and if so,
the provisions of Section 25358.5 shall apply with respect to
response actions taken or contracted for by the department.
(d) Any person subject to an order issued pursuant to paragraph
(1) of subdivision (c) who does not comply with the order without a
showing of good cause shall be subject to a civil penalty of not more
than twenty-five thousand dollars ($25,000) for each day of
noncompliance. Liability under this subdivision may be imposed in a
civil action or liability may be imposed administratively pursuant to
Section 25359.3.

25398.4. Any remedial action plan prepared pursuant to this chapter
shall require response actions that, when fully implemented, place
the site for which the plan is prepared in a condition that allows it
to be permanently used for its planned use without any significant
risk to human health or any significant potential for future
environmental damage. To ensure that those objectives are met and
permanently maintained, response actions shall be based on a site
specific assessment that evaluates the potential human health risks,
if any, that are posed by the hazardous substance release or
threatened release at the site, the potential human health risks, if
any, that may result if the site is permanently used for its planned
use after response actions have been completed, and the adverse
effects on the environment, if any, of the hazardous substance
release. The site-specific assessment required by this section shall
be carried out using standard criteria, principles, and protocols for
risk assessments adopted by the department. Those criteria,
principles, and protocols shall be based on sound scientific methods,
knowledge, and practice, and shall reflect criteria, principles, and
protocols developed for risk assessment pursuant to Section 57003,
to the extent relevant to risk assessments conducted pursuant to this
chapter.

25398.5. (a) (1) To expedite the conversion of property into
productive use and to provide funds for response activities, the
department may approve a site owner's request to modify the
boundaries of a site selected for response action under this chapter.
The department may approve a site owner's request for that
modification only if all of the following apply to the site:
(A) A remedial action plan has been approved by the department for
the site.
(B) The holder of the first deed of trust, if any, has concurred
in the modification of the boundaries of the site.
(C) The portions of the site proposed to be removed from the site
by the boundary modification do not require any response action.
(D) The planned use for the portions of the site proposed to be
removed from the site by the boundary modification will not result in
an unacceptable risk of human exposure to hazardous substances from
the site.
(E) Hazardous substances have not migrated, and are not expected
to migrate, onto the portions of the site proposed to be removed from
the site by the boundary modification.
(F) The modification of the boundaries of the site will not
significantly interfere with response actions at the site.
(2) As a condition to approving a site owner's request to modify
the boundaries of a site pursuant to paragraph (1), the department
shall require that the owner, after complying with the Subdivision
Map Act (Division 2 (commencing with Section 66410) of Title 7 of the
Government Code), deposit the net proceeds of the sale, after
payment of expenses necessary and appropriate to the subdivision and
sale, of the portions of the site proposed to be removed from the
site by the boundary modification, into a special trust account to be
applied towards the cost of response actions at the site if the
department determines that adequate funds may not otherwise be
available to pay for all costs of response actions at the site. The
department shall also require that the site owner provide the
department with access to any of the portions of the site proposed to
be removed from the site by a boundary modification for the purpose
of taking a response action.
(b) Purchasers and their lessees of the portions of the site
proposed to be removed from the site by a boundary modification
approved pursuant to this section which do not require any response
action under this chapter shall not acquire liability under this
chapter solely based on that purchase or lease if both of the
following apply:
(1) The purchaser or lessee is not affiliated with any other
person liable for response costs at the site including any direct or
indirect familial relationship, or any contractual, corporate, or
financial relationship other than that created by the instruments by
which title to the parcel is conveyed or financed or the instruments
by which a lease is created.
(2) Hazardous substances have not been released from the portions
of the site proposed to be removed from the site by a boundary
modification subsequent to the date of the purchase or lease.
(c) The department's approval of a site owner's request to modify
the boundaries of a site pursuant to this section shall not
constitute a subdivision of any parcel within the boundaries of the
site. Any subdivision of any parcels within the boundaries of the
site shall comply with the requirements of the Subdivision Map Act
(Division 2 (commencing with Section 66410) of Title 7 of the
Government Code).

25398.6. (a) All remedies selected at a site subject to this
chapter shall meet all of the following criteria:
(1) Be protective of human health and the environment.
(2) Provide long-term reliability at reasonable cost.
(3) Provide reasonable protection to the waters of the state, as
required by the Water Code.
(4) Leave the site in a condition that allows it to be permanently
used for its planned use and free of any significant risk to human
health or any potential for any future significant environmental
damage.
(b) A response action may achieve protection of human health and
the environment by any of the following methods:
(1) Proven and effective engineering controls and appropriate land
use controls to eliminate or mitigate risk at a site when utilized
for its planned use.
(2) Treatment that reduces the toxicity, mobility, or volume of
hazardous substances.
(3) Removal of hazardous substances.
(4) A combination of engineering and land use controls, treatment,
and removal.
(5) Other methods of protection.
(c) Except as provided in subdivision (d), the department shall
give no special preference to one or more available types of response
action, including engineering and land use controls, treatment,
removal, or other methods of protection, but shall evaluate available
response action options on the individual merits of each option, or
combination of options, reasonably available in light of
site-specific conditions. In selecting the appropriate remedy, the
department shall balance all of the following factors:
(1) The effectiveness of the remedy.
(2) The long-term reliability of the remedy.
(3) Any short-term risk to the affected community, to those
engaged in the remediation effort, or to the environment.
(4) The reasonableness of the cost of the remedy.
(d) For discrete areas within a site that contain hazardous
substances which are: (1) present in high concentrations or (2) are
highly mobile, and for which containment cannot prevent significant
risk of harm to human health or the environment from exposure to the
hazardous substances, the department shall select treatment or
removal, or both, as the remedial alternative or alternatives. The
department may, however, select engineering and land use controls, or
other methods of protection, to be implemented in combination with
treatment or removal, or both, if such a combination will prevent a
significant risk of harm from exposure.
(e) A remedial action plan prepared pursuant to this chapter shall
include all of the following:
(1) The selection of a response action alternative or combination
of alternatives described in subdivision (b) that are appropriate for
the site and that satisfy the response action criteria set forth in
this section.
(2) A site-specific assessment prepared for the site pursuant to
Section 25398.4.
(3) A description of the characteristics of the site, including
the potential for offsite migration of hazardous substances, the
condition of surface or subsurface soil, and the hydrogeologic
conditions.
(4) An analysis of the cost-effectiveness of the remedial action
measures.
(5) An analysis of the ability to implement the remedial action
measures.
(6) Consideration of the historical use of the site, background
levels of hazardous substances present there due to natural
conditions, and the existing and planned use of the site, in
determining the extent, type, and scope of the remedy appropriate for
the site.
(f) A remedial action plan prepared pursuant to this chapter shall
include all of the following:
(1) A summary of the site investigation report setting forth the
full extent of contamination at the site, including an assessment of
potential human health risks from exposure to the hazardous
substances and an assessment of environmental impacts which shall
include the impact of the contamination on the planned uses of the
site and the beneficial uses of water.
(2) An analysis of the long-term and short-term protection
afforded by the remedial action with regard to human health and the
environment.
(3) An analysis of the compliance of the remedial action with
federal, state, and local statutes, regulations, and ordinances.
(g) In addition to the requirements of subdivision (a), a remedial
action plan prepared pursuant to this chapter shall do all of the
following:
(1) Describe all proposed remedial action measures in detail.
(2) Set forth a schedule for implementation of the plan.
(3) Set forth a plan for long-term operation and maintenance of
the remedial action measures, if any are required.
(h) Any remedial action plan approved pursuant to this section
shall include a statement of reasons setting forth the basis for the
remedial action selected. The statement shall include a description
of each alternative evaluated and the reasons for the rejection of
alternatives that were evaluated and not selected.
(i) Before approving a remedial action plan, the department shall
do all of the following:
(1) Notify the public, including those persons reasonably believed
to be members of the affected community, of the response action
proposed in the plan in a manner that provides reasonable assurance
of reaching those persons on a timely basis. The notice shall include
posting notices in the area where the proposed remedial action would
be taken and notification, by direct mail, of the recorded owners of
property contiguous to the site addressed by the plan, as shown in
the latest equalized assessment roll and all potentially responsible
persons identified in the plan.
(2) Provide at least 30 days for comment by the potentially
responsible persons, appropriate federal, state, and local agencies,
the affected community, and other members of the Public.
(3) Hold one or more public meetings with the potentially
responsible persons, the affected community, and other members of the
public, if any, seeking information or desiring to comment,
concerning the response action. The information provided shall
include an assessment of the degree of contamination, the
characteristics of the hazardous substances, an estimate of the time
required to carry out the response action and a description of the
proposed response action, the planned use, and the remedial
objectives. The department shall give all of the parties entitled by
this section to a public meeting a fair opportunity to comment on the
merits of the plan.
(4) Comply with Section 25397.2.
(j) After complying with subdivision (i), the department shall
review and consider any comments received at the public meeting or by
other means within the specified time period, shall consider the
affected community's acceptance of the proposed remedial alternative
or alternatives, and shall propose revisions to the draft plan, if
appropriate.
(k) When reviewing a remedial action plan, the department shall
give no special preferences to one or more available types of
response action, including engineering and land use controls,
treatment, removal, or other types of corrective action, but shall
evaluate available response action options on the individual merits
of each option reasonably available in light of specific site
conditions.
( l) Within 60 days after the close of the comment period set
forth in paragraph (2) of subdivision (i), the department shall
approve the final remedial action plan, or issue a notice of
deficiency to the person who submitted the plan that describes, in
detail, any deficiencies in the plan. A remedial action plan found to
be deficient shall be modified in a reasonable time. However, any
notice of rejection of the notice of deficiency shall be filed with
the department within 30 days from the date of receipt of the notice
of deficiency. Within 60 days of receiving a modified plan, the
department shall approve the plan or advise the person who prepared
the plan, in detail, of the new or continuing deficiencies. Any
failure to act by the department as provided in this subdivision may
be appealed to the secretary. If the secretary fails to act on behalf
of the department within 30 days after the appeal is filed, the
department's failure to act may be challenged by any responsible
person for the site pursuant to the provisions of Section 1085 of the
Code of Civil Procedure.
(m) Once approved by the department, a draft plan shall become
final 60 days from the date that notice of its approval is provided
in writing by appropriate means, as provided in subdivision (b) of
Section 25398.10, unless a petition for review is filed prior to that
time pursuant to Section 25398.10.
(n) A remedial action plan is not required for the abatement of an
interim endangerment pursuant to Section 25398.2.
(o) Nothing in this chapter shall be construed to change the
standards for response actions taken at voluntary action sites that
are overseen by the department pursuant to Section 25201.9 or any
other authority.

25398.7. (a) A remedial action plan may utilize land use controls
to limit or restrict land use where appropriate. All land use
controls shall be recorded by the site owner in the county in which
the site is located. The site owner shall provide the department with
a copy of the land use controls which have been appropriately
recorded.
(b) Any person who violates the terms of a land use control which
that person knew, or reasonably should have known, applied to the
property, shall be subject to a civil penalty not to exceed
twenty-five thousand dollars ($25,000) per day for each day of
violation.
(c) The terms and conditions of a land use control may be modified
only with the express written consent of the department, based on a
determination that the response actions implemented at the site
provide sufficient protection of human health and the environment
required by subdivision (a) of Section 25398.6, and are sufficient to
permit the planned use of the site. If additional response action is
required to provide that protection, the department shall not
approve the request for modification of the restriction or control
until completion of the additional response action. Implementation of
a modification to a land use control shall be in accordance with the
following procedure:
(1) The person requesting the modification to the permitted use of
the site shall provide the request in writing to the department for
the site to approve a modification to an existing land use control.
The request shall be accompanied by supporting documentation
demonstrating that the response action implemented at the site
provides the required protection. The request shall be accompanied by
any applicable costs.
(2) Within 120 days of receiving the request, and after a public
notice is placed in a newspaper of general circulation in the
affected area, and after a 30-day public comment period, a duly
noticed public meeting shall be held on the merits of the request,
the department shall do one of the following:
(A) Approve the proposed modification.
(B) Approve the proposed modification with conditions for
implementation of additional response action.
(C) Disapprove the proposed modification and provide the owner
with the reasons for that disapproval.
(3) (A) The approval or denial of a request for modification shall
become final within 30 days from the date that the department acts
to approve or deny the modification and provides notice to all
persons required to receive notice pursuant to, and in the manner
required by, paragraph (2). Within 30 days from the date that any
decision to approve a request for modification becomes final, the
site owner shall record the modified land use control in the county
in which the site is located and provide the department with a copy
of the land use control which has been endorsed by the county
recorder. The approved modification shall take effect upon
recordation and after notice of the final decision is given in
writing, by appropriate means, to immediately adjacent property
owners, commenters, and persons who attended the public meeting and
requested this notice.
(B) If the approval is accompanied with conditions which require
compliance prior to modification of the land use control, the site
owner shall provide the department with a copy of the land use
control which has been appropriately recorded within 30 days after
the department has notified the site owner that compliance with those
conditions has been demonstrated. The approved modification shall
take effect upon recordation.

25398.8. (a) At the same time that the department gives notice of
the approval of the remedial action plan for a site, or prior to the
time that the department issues its first notice of deficiency
regarding the remedial action plan, the department shall, based on
all available information before the department at that time, do both
of the following:
(1) Notify, in writing, and by appropriate means, all of the
responsible persons, the affected community, and the public, of the
department's proposed apportionment of liability for the costs of
response for the site which is the subject of the remedial action
plan.
(2) Indicate in the notice whether there are orphan shares that
will, or may be, paid from the trust fund.
(b) The department shall apportion liability for the response
actions taken pursuant to this chapter to each responsible person for
that person's share of response costs, based upon equitable factors
and fairness principles so that total shares, including orphan
shares, if any, total 100 percent. The fund administrator shall
represent any orphan share with respect to actions concerning
apportionment of liability if there is a proposed apportionment of
liability to the orphan share for payment from the trust fund. The
department shall provide any person who has requested notification of
the department's proposed apportionment of liability with a copy of
the proposed apportionment within 10 days after the department
completes its proposal for apportionment of liability.
(c) The department shall weigh each factor considered appropriate
under the circumstances of the release for which the remedial action
was initiated. The department shall emphasize timely apportionment of
approximate shares of liability and is not required to precisely
determine all relevant factors, as long as substantial justice among
the parties is achieved. Equitable factors that shall guide the
apportionment decision include, but are not limited to, all of the
following:
(1) The amount of hazardous substance for which each person is
responsible.
(2) The degree of toxicity of the hazardous substance, its
contribution to the contamination at the site, and the total expense
involved in the remediation effort attributable to the hazardous
substances for which each person is responsible.
(3) The degree of involvement of the person in the generation,
transportation, treatment, or disposal of the hazardous substance for
which each person is responsible.
(4) The degree of care exercised by the responsible person with
respect to the hazardous substances for which each person is
responsible, taking into account the characteristics of the
substance.
(5) The degree of cooperation by the responsible person with
federal, state, and local officials to prevent harm to human health
and the environment.
(d) The site owner shall pay for all additional costs of response
actions performed pursuant to this chapter at the request of the site
owner that exceed the costs that would be incurred if the response
action were limited to those required by this chapter.
(e) The apportionment of liability pursuant to this section shall
not be subject to judicial review, except as provided in Section
25398.10.
(f) Notwithstanding the requirements of subdivisions (a) to (d),
inclusive, the potentially responsible persons may agree upon an
allocation of liability among themselves at a particular site, that,
in the absence of an allocation of liability to an orphan share for
payment from the trust fund, shall be adopted by the department as
the apportionment of liability for the site.

25398.9. (a) Prior to the date that the department apportions
liability pursuant to Section 25398.8, the department shall, when it
determines that it is in the best interests of the public, propose a
final administrative or judicial expedited settlement with
responsible persons who, in the judgment of the department, meet
either of the following conditions for eligibility for such an
expedited settlement:
(1) The responsible person's individual contribution of hazardous
substances at the site is de minimis. The contribution of hazardous
substance to a site by a responsible person is de minimis if both of
the following apply:
(A) The responsible person's volumetric contribution of materials
containing hazardous substances is minimal in comparison to the total
volumetric contributions of materials containing hazardous
substances at the site, and that individual contribution is presumed
to be minimal if it is 1 percent or less of the total volumetric
contribution at the site, unless the department identifies a lower
threshold based on site-specific factors.
(B) The responsible person's contribution of materials containing
hazardous substances does not present toxic or other hazardous
effects that are significantly greater than those of other hazardous
substances at the site.
(2) (A) The responsible person is the site owner, 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 action or omission.
(B) Paragraph (A) does not apply if the responsible person
purchased the site with actual or constructive knowledge that the
site was used for the generation, transportation, storage, treatment,
or disposal of any hazardous substance.
(b) The department may reach an expedited settlement with
responsible persons only when the aggregate shares of liability
determined pursuant to subdivision (a) do not exceed 10 percent of
the projected cost of the response action at the site.
(c) Any person who enters into a settlement pursuant to this
section shall provide any information relevant to the administration
of this chapter which is requested by the department. The
determination of whether a person is eligible for an expedited
settlement shall be made on the basis of all information available to
the department at the time the determination is made. If the
department determines not to apply the provisions of this section at
a site, the basis for that determination shall be explained in
writing to any person who requests such a settlement.
(d) A responsible person who has reached a final settlement under
this section and paid any response costs which are part of the
settlement, is not liable for claims for contribution from any other
party for the costs of the response action at the site.
(e) At the same time that notice is provided pursuant to
subdivision (a) of Section 25398.8, the department shall provide
written notice of the proposed settlement to all other responsible
persons, the affected community, and the public by appropriate means.
The notice shall identify the site and the parties to the proposed
settlement.
(f) The department shall consider any written comments submitted
regarding the proposed expedited settlement in determining whether or
not to consent to the proposed settlement. The department may
withhold consent to the proposed settlement if the comments disclose
factors or considerations that indicate the proposed settlement is
inappropriate, improper, or inadequate. The department shall withhold
consent to the proposed settlement if any responsible person for the
site petitions the department to invoke an arbitration panel to
evaluate the merits of the settlement before the settlement agreement
becomes final.

25398.10. (a) The Director of Environmental Health Hazard
Assessment shall convene an arbitration panel, if a timely petition
is filed with the director, for purposes of resolving all disputes
with any responsible person concerning any of the following:
(1) The remedial action plan developed pursuant to Section
25398.6, including disputes regarding remedy selection, other
technical issues, conditions of approval, or any other element of the
plan.
(2) The department's proposed apportionment of liability pursuant
to Section 25398.8.
(3) Any proposed de minimis settlements pursuant to Section
25398.9.
(4) The department's approval or denial of a change in land use
pursuant to Section 25398.7.
(5) The department's approval or denial of a certificate of
completion pursuant to Section 25398.15, as provided in subdivision
(b) of Section 25398.15.
(b) (1) Petitions for disputes concerning the matters specified in
paragraphs (1) to (3), inclusive, of subdivision (a) shall be filed
within 60 days from the date that the notice of approval of the
remedial action plan is issued, or from the date that the responsible
person or persons preparing the remedial action plan notify the
department in writing, by appropriate means, of the responsible
person or person's rejection of a notice of deficiency. Within 10
days of the department's approval of the remedial action plan or
receipt of a notice of a rejection of a notice of deficiency for the
remedial action plan, the department shall provide notice in writing,
by appropriate means, of its approval, or receipt of the notice of
rejection, to all responsible persons for the site and to the public.
The notice shall indicate the rights of the parties to file
petitions for arbitration of the disputes concerning the matters
specified in paragraphs (1) to (3), inclusive, of subdivision (a) and
the deadline for the filing of a petition. Petitions for arbitration
of disputes concerning the matters specified in paragraphs (1) to
(3), inclusive, of subdivision (a) may be made by any responsible
person. Petitions for arbitration of disputes concerning the matter
specified in paragraph (1) of subdivision (a) may also be filed by
the affected community, and petitions for arbitration of disputes
concerning the matters specified in paragraphs (2) and (3) of
subdivision (a) may be filed by any member of the public if orphan
shares that are to be paid from the trust fund are at issue.
(2) Petitions for the arbitration of all disputes concerning the
matters specified in paragraphs (4) and (5) of subdivision (a) may be
made by any responsible person for the site, the affected community,
or the public, and shall be made prior to the time that the action
in dispute becomes final.
(3) Prior to submitting a petition for arbitration, the
responsible persons shall make all reasonable efforts to resolve the
dispute.
(4) If one or more petitions for arbitration have been filed for
any combination of review of the remedial action plan, apportionment
of liability, or de minimis settlements, the arbitration panel shall
review all of these petitions in a consolidated hearing. The
arbitration panel shall minimize the need for hearings on all other
issues by consolidating hearings in all cases where reasonably
possible.
(5) The arbitrators shall be selected as provided in subdivision
(d) of Section 25356.2.
(c) All the provisions of Sections 25356.2, 25356.3, 25356.4 and
25356.6 apply to arbitration proceedings conducted pursuant to this
section, except for all of the following:
(1) The arbitration panel shall apply the factors and standards
for liability apportionment set forth in subdivision (c) of Section
25398.8, instead of those set forth in subdivision (c) of Section
25356.2.
(2) The provisions of subdivision (a) of Section 25356.3 and the
provisions of subdivisions (c) and (e) of Section 25356.4 shall not
apply.
(3) The arbitrators shall be bound by, and shall apply, the
requirements and standards set forth in this chapter and Chapter 6.65
(commencing with Section 25260) that are applicable to the dispute
that is the subject of the arbitration.
(4) The arbitrators shall have the expertise and experience
appropriate to understand and critically evaluate the issues to be
arbitrated.
(d) The arbitration panel shall hold a public hearing on any
matter presented to the panel for evaluation, shall take all evidence
presented, shall keep a record of the proceedings, including all
testimony and evidence presented, and shall have discretion in the
determination of facts. All findings and decisions of the panel shall
be supported by substantial evidence in light of the whole record.
The response action for which the arbitration panel has been
requested to act pursuant to this section shall not be stayed during
the pendency of the arbitration proceedings. Notice of the
arbitration panel's decision shall be provided in writing, by
appropriate means, within five days from the date that the
arbitration panel has reached a decision, to the responsible persons,
the affected community, the public, and any other person or entity
who participated in the arbitration proceeding and requested notice
of the decision.
(e) The department, any member of the advisory committee described
in Section 25263, or, for purposes of appealing the approval of a
remedial action plan by the arbitration panel, any member of the
affected community, may seek judicial review of a decision of the
arbitration panel by filing a petition for a writ of mandate pursuant
to Section 1094.5 of the Code of Civil Procedure not more than 30
days from the date that notice of the decision is provided in writing
by appropriate means to those entities or persons. Any person
authorized to petition for arbitration may also seek judicial review
of a decision of the arbitration panel concerning any matter for
which the person is authorized pursuant to subdivision (b) to submit
a petition for arbitration, by filing a petition for writ of mandate
pursuant to Section 1094.5 of the Code of Civil Procedure not more
than 30 days from the date that notice of the decision is provided in
writing by appropriate means to that person. No person may seek
judicial review of a matter that is subject to arbitration, if
requested, that has not been first presented to an arbitration panel.
(f) Except for acts of recklessness, gross negligence, fraud,
deceit, or other criminal activity, the arbitrators are immune from
liability for any actions taken in their role as arbitrators.
(g) Response costs incurred by the state because of an arbitration
proceeding shall be paid as follows:
(1) By the responsible person or responsible persons who are
parties to the enforceable agreement described in subdivision (b) of
Section 25398.2 if either of the following occurs:
(A) The arbitration proceeding or judicial review is initiated by
one of those participating responsible persons, the affected
community, or a member of the public.
(B) Judicial review is sought by the department or a member of the
advisory committee described in Section 25263.
(2) By the responsible person or responsible persons who initiated
the arbitration proceeding if the responsible person or responsible
persons are not parties to the enforceable agreement described in
subdivision (b) of Section 25398.2.

25398.11. (a) (1) The secretary shall ensure that all arbitration
panels are provided with the necessary technical support services by
a team of state employees with experience and expertise appropriate
to the issue or issues in dispute, including, but not limited to,
where necessary, expertise in hydrogeology, geology, chemical
engineering, toxicology, hazardous substance response action law,
soil science, environmental health and engineering, industrial
hygiene, and other related disciplines. The team of state employees
shall provide a written report to the panel setting forth the team
recommendations on all technical issues before the arbitrators, and
the arbitrators shall give substantial weight to the team's
recommendations. The team's report shall be a public record.
(2) The Director of Environmental Health Hazard Assessment shall
adopt procedures for the removal of arbitrators from panels for
inadequate performance of their assigned responsibilities.
(b) (1) The department shall notify all responsible persons who
have been identified and located, the affected community, the team of
state employees, and the public, of the arbitration hearing request
and the location and scheduling of the arbitration hearing, in
writing, by appropriate means, as soon as reasonably practicable
after an arbitration hearing is requested.
(2) All responsible persons for the site notified by the
department of the arbitration shall be subject to arbitration by the
arbitration panel, and all response costs shall be apportioned among
all responsible persons notified of the arbitration proceedings
regardless of whether those persons appear before the arbitration
panel.

25398.12. (a) No person may serve as an arbitrator for a site for
which that person has a conflict of interest. A conflict of interest,
for purposes of this section, includes the following:
(1) Employment at any time in the past by one or more of the
responsible persons for the site.
(2) Existence of a potentially material financial impact from one
or more of the decisions the arbitrator may be asked to make
involving the site.
(b) Any person may challenge the selection of any arbitrator on
grounds of (1) conflict of interest, or (2) lack of one or more of
the qualifications required by Section 25398.10. Any challenge shall
be filed with the Director of Environmental Health Hazard Assessment
within 10 days of the provision of public notice of the arbitration
hearing pursuant to paragraph (1) of subdivision (b) of Section
25398.11. The Director of Environmental Health Hazard Assessment
shall, within 20 days thereafter, determine the arbitrator's fitness
to serve. Any arbitrator that is disqualified from serving on a
particular panel shall be replaced in a timely manner in the same
manner as the disqualified arbitrator was chosen.

25398.13. All decisions of the arbitration panel shall be made by
majority vote.

25398.14. Upon completion of an engineering design to implement an
approved remedial action plan, the responsible persons for the site
shall submit the design to the department for approval. The
department shall approve, modify, or deny the design within 60 days
from the date of receipt.

25398.15. (a) Upon completion of a response action pursuant to a
remedial action plan, the responsible person shall file a request
with the department for a certificate of completion. A request for
certificate of completion may be filed even though long-term
operation and maintenance requirements and other long-term remedial
activities remain an ongoing obligation, if all other final response
actions have been completed.
(b) The department shall review each request for a certificate of
completion and shall approve the request if the department determines
that the response action plan and any other directive of the
department have been satisfactorily completed and that the site has
been placed into a condition that allows it to be permanently used
for its planned use without any significant risk to human health or
potential for any future significant environmental damage. The
department shall approve or deny the request for a certificate of
completion within 90 days after it is filed with the department. Any
failure of the department to act on the submittal of a request for a
certificate of completion within the time periods provided in this
section may be appealed to the secretary. If the secretary fails to
act on behalf of the department within 30 days after the appeal is
filed, the department's failure to act may be challenged by any
responsible person for the site pursuant to the provisions of Section
1085 of the Code of Civil Procedure. Any person who disputes the
approval or denial of a request for a certificate of completion may,
before the approval or denial becomes final pursuant to subdivision
(c), file a petition for review of that denial pursuant to Section
25398.10 except that the petition may request review only concerning
those issues in dispute that were heard before an arbitration panel
in a prior hearing concerning the remedial action plan. All other
disputes concerning the approval or denial of a request for a
certificate of completion may be resolved by the secretary, at the
discretion of the secretary.
(c) Notice of any approval or denial of a request for a
certificate of completion shall be provided to the responsible
persons for the site and to the public, by appropriate means, within
five days from the date that the decision is made by the department.
The approval or denial shall become final within 30 days from the
date that notice is provided pursuant to this subdivision, unless a
review of that approval or denial is requested, pursuant to
subdivision (b), before the expiration of that 30-day period.
(d) A certificate of completion that becomes final pursuant to
this section shall be deemed to have been issued pursuant to Section
25264, and Sections 25264 and 25265 shall apply to the site.