25356.1
. (a) For purposes of this section, "regional board" means a
California regional water quality control board and "state board"
means the State Water Resources Control Board.
(b) Except as provided in subdivision (h), the department, or, if
appropriate, the regional board shall prepare or approve remedial
action plans for the sites listed pursuant to Section 25356.
(c) A potentially responsible party may request the department or
the regional board, when appropriate, to prepare or approve a
remedial action plan for a site not listed pursuant to Section 25356,
if the department or the regional board determines that a removal or
remedial action is required to respond to a release of a hazardous
substance. The department or the regional board shall respond to a
request to prepare or approve a remedial action plan within 90 days
of receipt. This subdivision does not affect the authority of a
regional board to issue and enforce a cleanup and abatement order
pursuant to Section 13304 of the Water Code or a cease and desist
order pursuant to Section 13301 of the Water Code.
(d) All remedial action plans prepared or approved pursuant to
this section shall be based upon Section 25350, Subpart E of the
National Oil and Hazardous Substances Pollution Contingency Plan (40
C.F.R. 300.400 et seq.), and any amendments thereto, and upon all of
the following factors, to the extent that these factors are
consistent with these federal regulations and do not require a less
stringent level of cleanup than these federal regulations:
(1) Health and safety risks posed by the conditions at the site.
When considering these risks, the department or the regional board
shall consider scientific data and reports which may have a
relationship to the site.
(2) The effect of contamination or pollution levels upon present,
future, and probable beneficial uses of contaminated, polluted, or
threatened resources.
(3) The effect of alternative remedial action measures on the
reasonable availability of groundwater resources for present, future,
and probable beneficial uses. The department or the regional board
shall consider the extent to which remedial action measures are
available that use, as a principal element, treatment that
significantly reduces the volume, toxicity, or mobility of the
hazardous substances, as opposed to remedial actions that do not use
this treatment. The department or the regional board shall not select
remedial action measures that use offsite transport and disposal of
untreated hazardous substances or contaminated materials if practical
and cost-effective treatment technologies are available.
(4) Site-specific characteristics, including the potential for
offsite migration of hazardous substances, the surface or subsurface
soil, and the hydrogeologic conditions, as well as preexisting
background contamination levels.
(5) Cost-effectiveness of alternative remedial action measures. In
evaluating the cost-effectiveness of proposed alternative remedial
action measures, the department or the regional board shall consider,
to the extent possible, the total short-term and long-term costs of
these actions and shall use, as a major factor, whether the deferral
of a remedial action will result, or is likely to result, in a rapid
increase in cost or in the hazard to public health or the environment
posed by the site. Land disposal shall not be deemed the most
cost-effective measure merely on the basis of lower short-term cost.
(6) The potential environmental impacts of alternative remedial
action measures, including, but not limited to, land disposal of the
untreated hazardous substances as opposed to treatment of the
hazardous substances to remove or reduce its volume, toxicity, or
mobility prior to disposal.
(e) A remedial action plan prepared pursuant to this section shall
include the basis for the remedial action selected and shall include
an evaluation of each alternative considered and rejected by the
department or the regional board for a particular site. The plan
shall include an explanation for rejection of alternative remedial
actions considered but rejected. The plan shall also include an
evaluation of the consistency of the selected remedial action with
the requirements of the federal regulations and the factors specified
in subdivision (d), if those factors are not otherwise adequately
addressed through compliance with the federal regulations. The
remedial action plan shall also include a nonbinding preliminary
allocation of responsibility among all identifiable potentially
responsible parties at a particular site, including those parties
which may have been released, or may otherwise be immune, from
liability pursuant to this chapter or any other provision of law.
Before adopting a final remedial action plan, the department or the
regional board shall prepare or approve a draft remedial action plan
and shall do all of the following:
(1) Circulate the draft plan for at least 30 days for public
comment.
(2) Notify affected local and state agencies of the removal and
remedial actions proposed in the remedial action plan and publish a
notice in a newspaper of general circulation in the area affected by
the draft remedial action plan. The department or the regional board
shall also post notices in the location where the proposed removal or
remedial action would be located and shall notify, by direct
mailing, the owners of property contiguous to the site addressed by
the plan, as shown in the latest equalized assessment roll.
(3) Hold one or more meetings with the lead and responsible
agencies for the removal and remedial actions, the potentially
responsible parties for the removal and remedial actions, and the
interested public, to provide the public with the information that is
necessary to address the issues that concern the public. The
information to be 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 removal and remedial
actions, and a description of the proposed removal and remedial
actions.
(4) Comply with Section 25358.7.
(f) After complying with subdivision (e), the department or the
regional board shall review and consider any public comments, and
shall revise the draft plan, if appropriate. The department or the
regional board shall then issue the final remedial action plan.
(g) (1) A potentially responsible party named in the final
remedial action plan issued by the department or the regional board
may seek judicial review of the final remedial action plan by filing
a petition for writ of mandate pursuant to Section 1085 of the Code
of Civil Procedure within 30 days after the final remedial action
plan is issued by the department or the regional board. Any other
person who has the right to seek judicial review of the final
remedial action plan by filing a petition for writ of mandate
pursuant to Section 1085 of the Code of Civil Procedure shall do so
within one year after the final remedial action plan is issued. No
action may be brought by a potentially responsible party to review
the final remedial action plan if the petition for writ of mandate is
not filed within 30 days of the date that the final remedial action
plan was issued. No action may be brought by any other person to
review the final remedial action plan if the petition for writ of
mandate is not filed within one year of the date that the final
remedial action plan was issued. The filing of a petition for writ of
mandate to review the final remedial action plan shall not stay any
removal or remedial action specified in the final plan.
(2) For purposes of judicial review, the court shall uphold the
final remedial action plan if the plan is based upon substantial
evidence available to the department or the regional board, as the
case may be.
(3) This subdivision does not prohibit the court from granting any
appropriate relief within its jurisdiction, including, but not
limited to, enjoining the expenditure of funds pursuant to paragraph
(2) of subdivision (b) of Section 25385.6.
(h) (1) This section does not require the department or a regional
board to prepare a remedial action plan if conditions present at a
site present an imminent or substantial endangerment to the public
health and safety or to the environment or, if the department, a
regional board, or a responsible party takes a removal action at a
site and the estimated cost of the removal action is less than two
million dollars ($2,000,000). The department or a regional board
shall prepare or approve a removal action work plan for all sites
where a nonemergency removal action is proposed and where a remedial
action plan is not required. For sites where removal actions are
planned and are projected to cost less than two million dollars
($2,000,000), the department or a regional board shall make the local
community aware of the hazardous substance release site and shall
prepare, or direct the parties responsible for the removal action to
prepare, a community profile report to determine the level of public
interest in the removal action. Based on the level of expressed
interest, the department or regional board shall take appropriate
action to keep the community informed of project activity and to
provide opportunities for public comment which may include conducting
a public meeting on proposed removal actions.
(2) A remedial action plan is not required pursuant to subdivision
(b) if the site is listed on the National Priority List by the
Environmental Protection Agency pursuant to the federal act, if the
department or the regional board concurs with the remedy selected by
the Environmental Protection Agency's record of decision. The
department or the regional board may sign the record of decision
issued by the Environmental Protection Agency if the department or
the regional board concurs with the remedy selected.
(3) The department may waive the requirement that a remedial
action plan meet the requirements specified in subdivision (d) if all
of the following apply:
(A) The responsible party adequately characterizes the hazardous
substance conditions at a site listed pursuant to Section 25356.
(B) The responsible party submits to the department, in a form
acceptable to the department, all of the following:
(i) A description of the techniques and methods to be employed in
excavating, storing, handling, transporting, treating, and disposing
of materials from the site.
(ii) A listing of the alternative remedial measures which were
considered by the responsible party in selecting the proposed removal
action.
(iii) A description of methods that will be employed during the
removal action to ensure the health and safety of workers and the
public during the removal action.
(iv) A description of prior removal actions with similar hazardous
substances and with similar public safety and environmental
considerations.
(C) The department determines that the remedial action plan
provides protection of human health and safety and for the
environment at least equivalent to that which would be provided by a
remedial action plan prepared in accordance with subdivision (c).
(D) The total cost of the removal action is less than two million
dollars ($2,000,000).
(4) For purposes of this section, the cost of a removal action
includes the cleanup of removal of released hazardous substances from
the environment or the taking of other actions that are necessary to
prevent, minimize, or mitigate damage that may otherwise result from
a release or threatened release, as further defined by Section 9601
(23) of Title 42 of the United States Code.
(5) Paragraph (2) of this subdivision does not apply to a removal
action paid from the state account.
(i) Article 2 (commencing with Section 13320), Article 3
(commencing with Section 13330), Article 5 (commencing with Section
13350), and Article 6 (commencing with Section 13360) of Chapter 5 of
Division 7 of the Water Code apply to an action or failure to act by
a regional board pursuant to this section.