Article 4. Corrective Action of California Health And Safety Code >> Division 20. >> Chapter 6.75. >> Article 4.
The board, a regional board, or a local agency may
undertake or contract for corrective action in response to an
unauthorized release from an underground storage tank that is subject
to this chapter, pursuant to subdivision (f) of Section 25296.10 or
if a situation exists that requires prompt action by the board, a
regional board, or local agency to protect human health or the
environment. At the request of the board or a regional board, the
Department of General Services may enter into a contract on behalf of
the board or a regional board and acting as the agent of the board
or a regional board. Notwithstanding any other provision of law, if a
situation requires prompt action by the board or a regional board to
protect human health or the environment, the board or a regional
board may enter into oral contracts for this work, and the contracts,
whether written or oral, may include provisions for equipment rental
and, in addition, the furnishing of labor and materials necessary to
accomplish the work. These contracts for corrective action by the
board or a regional board are exempt from approval by the Department
of General Services if the situation requires prompt action to
protect human health or the environment.
(a) The local agency, the board, or the regional board
shall advise and work with the owner, operator, or other responsible
party on the opportunity to seek preapproval of corrective action
costs pursuant to Section 2811.4 of Title 23 of the California Code
of Regulations or any successor regulation. Regional board staff and
local agency staff shall work with the responsible party and fund
staff to obtain preapproval for the responsible party. The fund staff
shall grant or deny a request for preapproval within 30 calendar
days after the date a request is received. If fund staff denies a
request for preapproval or fails to act within 30 calendar days after
receiving the request, an owner, operator, or other responsible
party who has prepared a work plan that has been reviewed and
accepted pursuant to paragraph (3) of subdivision (c) of Section
25296.10, and is denied preapproval of corrective action costs for
one or more of the actions required by the work plan, may petition
the board for review of the request for preapproval. The board shall
review the petition pursuant to Section 25299.56, and for that
purpose the petition for review of a request for preapproval of
corrective action costs shall be reviewed by the board in the same
manner as a petition for review of an unpaid claim.
(b) If the board receives a petition for review pursuant to
subdivision (a), the board shall review the request for preapproval
and grant or deny the request pursuant to this subdivision and
subdivision (c). The board shall deny the request for preapproval if
the board makes one of the following findings:
(1) The petitioner is not eligible to file a claim pursuant to
Article 6 (commencing with Section 25299.50).
(2) The petitioner failed to submit one or more of the documents
required by the regulations adopted by the board governing
preapproval.
(3) The petitioner failed to obtain three bids or estimates for
corrective action costs and, under the circumstances pertaining to
the corrective action, there is no valid reason to waive the
three-bid requirement pursuant to the regulations adopted by the
board.
(c) If the board does not deny the request for preapproval
pursuant to subdivision (b), the board shall grant the request for
preapproval. However, the board may modify the request by denying
preapproval of corrective action costs or reducing the preapproval
amount of those costs for any action required by the work plan, if
the board finds that the fund staff has demonstrated either of the
following:
(1) The amount of corrective action reimbursement requested for
the action is not reasonable. In determining if the fund staff has
demonstrated that the amount of reimbursement requested for an action
is not reasonable, the board shall use, when available, recent
experience with bids or estimates for similar actions.
(2) The action required in the work plan is, in all likelihood,
not necessary for the corrective action to comply with the
requirements of subdivisions (a) and (b) of Section 25296.10 and the
corrective action regulations adopted pursuant to Section 25299.3.
(a) (1) The manager responsible for the fund shall
notify tank owners or operators who have an active letter of
commitment that has been in an active status for five years or more
and shall review the case history of their tank case on an annual
basis unless otherwise notified by the tank owner or operator within
30 days of the notification.
(A) If the manager determines that closure of the tank case is
appropriate based upon that review, the manager shall provide a
review summary report to the applicable regional board and local
agency summarizing the reasons for this determination and shall
provide the applicable regional board and local agency with an
opportunity for comment on the review summary report.
(B) If the manager determines that closure of the tank case is
appropriate, the manager, with approval of the tank owner or
operator, may make a recommendation to the board for closure.
(C) The board may close any tank case or require the closure of
any tank case where an unauthorized release has occurred if the board
determines that corrective action at the site is in compliance with
all of the requirements of subdivisions (a) and (b) of Section
25296.10 and the corrective action regulations adopted pursuant to
Section 25299.3.
(D) Before closing or requiring closure of an underground storage
tank case, the board shall provide an opportunity for reviewing and
providing responses to the manager's recommendation to the applicable
regional board and local agency, and to the water replenishment
district, municipal water district, county water district, or special
act district with groundwater management authority if the
underground storage tank case is located in the jurisdiction of that
district.
(2) Except as provided in paragraph (3), if the manager recommends
closing a tank case pursuant to paragraph (1), the board shall limit
reimbursement of subsequently incurred corrective action costs,
including costs for groundwater monitoring, to ten thousand dollars
($10,000) per year.
(3) The board may allow reimbursement of corrective action costs
in excess of the ten thousand dollar ($10,000) limit specified in
paragraph (2) if the board determines that corrective action costs
related to the closure will exceed this amount, or that additional
corrective action is necessary to meet the requirements specified in
subdivisions (a) and (b) of Section 25296.10.
(4) After the manager provides a review summary report to the
applicable regional board and local agency in accordance with
subparagraph (A) of paragraph (1), the regional board or local agency
shall not issue a corrective action directive or enforce an existing
corrective action directive for the tank case until the board issues
a decision on the closure of the tank case, unless one of the
following applies:
(A) The regional board or local agency demonstrates to the
satisfaction of the manager that there is an imminent threat to human
health, safety, or the environment.
(B) The regional board or local agency demonstrates to the
satisfaction of the manager that other site-specific needs warrant
additional directives during the period that the board is considering
case closure.
(C) After considering responses to the review summary report and
other relevant information, the manager determines that case closure
is not appropriate.
(D) The regional board or local agency closes the tank case but
the directives are necessary to carry out case-closure activities.
(b) An aggrieved person may, not later than 30 days from the date
of final action by the board, pursuant to subparagraph (C) of
paragraph (1) of subdivision (a), file with the superior court a
petition for writ of mandate for review of the decision. If the
aggrieved person does not file a petition for writ of mandate within
the time provided by this subdivision, a board decision shall not be
subject to review by any court. Section 1094.5 of the Code of Civil
Procedure shall govern proceedings for which petitions are filed
pursuant to this subdivision. For purposes of subdivision (c) of
Section 1094.5 of the Code of Civil Procedure, the court shall uphold
the decision if the decision is based upon substantial evidence in
light of the whole record.
(c) The authority provided under this section does not limit a
person's ability to petition the board for review under any other
state law.
The board, a regional board, or local agency shall be
permitted reasonable access to property owned or possessed by an
owner, operator, or responsible party as necessary to perform
corrective action pursuant to Section 25299.36. The access shall be
obtained with the consent of the owner or possessor of the property
or, if the consent is withheld, with a warrant duly issued pursuant
to the procedure described in Title 13 (commencing with Section
1822.50) of Part 3 of the Code of Civil Procedure. However, in the
event of an emergency affecting public health or safety, or the
environment, the board, a regional board, or local agency may enter
the property without consent or the issuance of a warrant.