25355.5
. (a) Except as provided in subdivisions (b), (c), and (d),
no money shall be expended from the state account for removal or
remedial actions on any site selected for inclusion on the list
established pursuant to Section 25356, unless the department first
takes both of the following actions:
(1) The department issues one of the following orders or enters
into the following agreement:
(A) The department issues an order specifying a schedule for
compliance or correction pursuant to Section 25187.
(B) The department issues an order establishing a schedule for
removing or remedying the release of a hazardous substance at the
site, or for correcting the conditions that threaten the release of a
hazardous substance. The order shall include, but is not limited to,
requiring specific dates by which necessary corrective actions shall
be taken to remove the threat of a release, or dates by which the
nature and extent of a release shall be determined and the site
adequately characterized, a remedial action plan shall be prepared,
the remedial action plan shall be submitted to the department for
approval, and a removal or remedial action shall be completed.
(C) The department enters into an enforceable agreement with a
potentially responsible party for the site that requires the party to
take necessary corrective action to remove the threat of the
release, or to determine the nature and extent of the release and
adequately characterize the site, prepare a remedial action plan, and
complete the necessary removal or remedial actions, as required in
the approved remedial action plan.
Any enforceable agreement entered into pursuant to this section
may provide for the execution and recording of a written instrument
that imposes an easement, covenant, restriction, or servitude, or
combination thereof, as appropriate, upon the present and future uses
of the site. The instrument shall provide that the easement,
covenant, restriction, or servitude, or combination thereof, as
appropriate, is subject to the variance or removal procedures
specified in Sections 25233 and 25234. Notwithstanding any other
provision of law, an easement, covenant, restriction, or servitude,
or any combination thereof, as appropriate, executed pursuant to this
section and recorded so as to provide constructive notice runs with
the land from the date of recordation, is binding upon all of the
owners of the land, their heirs, successors, and assignees, and the
agents, employees, or lessees of the owners, heirs, successors, and
assignees, and is enforceable by the department pursuant to Article 8
(commencing with Section 25180) of Chapter 6.5.
(2) The department determines, in writing, that the potentially
responsible party or parties for the hazardous substance release site
have not complied with all of the terms of an order issued pursuant
to subparagraph (A) or (B) of paragraph (1) or an agreement entered
into pursuant to subparagraph (C) of paragraph (1). Before the
department determines that a potentially responsible party is not in
compliance with the order or agreement, the department shall give the
potentially responsible party written notice of the proposed
determination and an opportunity to correct the noncompliance or show
why the order should be modified. After the department has made the
final determination that a potentially responsible party is not in
compliance with the order or agreement, the department may expend
money from the state account for a removal or remedial action.
(b) Subdivision (a) does not apply, and money from the state
account shall be available, upon appropriation by the Legislature,
for removal or remedial actions, if any of the following conditions
apply:
(1) The department, after a reasonable effort, is unable to
identify a potential responsible party for the hazardous substance
release site.
(2) The department determines that immediate corrective action is
necessary, as provided in Section 25354.
(3) The director determines that removal or remedial action at a
site is necessary because there may be an imminent and substantial
endangerment to the public health or welfare or to the environment.
(c) Notwithstanding subdivision (a), the department may expend
funds, upon appropriation by the Legislature, from the state account
to conduct activities necessary to verify that an uncontrolled
release of hazardous substances has occurred at a suspected hazardous
substance release site, to issue an order or enter into an
enforceable agreement pursuant to paragraph (1) of subdivision (a),
and to review, comment upon, and approve or disapprove remedial
action plans submitted by potentially responsible parties subject to
the orders or the enforceable agreement.
(d) Notwithstanding subdivision (a), the department may expend
funds, upon appropriation by the Legislature, from the state account,
to provide for oversight of removal and remedial actions, or, if the
site is also listed on the federal act (42 U.S.C. Sec. 9604(c)(3)),
to provide the state's share of a removal or remedial action.
(e) A responsible party who fails, as determined by the department
in writing, to comply with an order issued pursuant to subparagraph
(A) or (B) of paragraph (1) of subdivision (a), or to comply with all
of the terms of an enforceable agreement entered into pursuant to
subparagraph (C) of paragraph (1) of subdivision (a), shall be
deemed, for purposes of subdivision (b) of Section 25355, to have
failed to take action properly and in a timely fashion with respect
to a hazardous substance release or a threatened release.