Section 25364.1 Of Article 6. Recovery Actions From California Health And Safety Code >> Division 20. >> Chapter 6.8. >> Article 6.
25364.1
. (a) For purposes of this section, the following
definitions shall apply:
(1) "Affiliate" means any entity that directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is
under common control with, the responsible party owner. For purposes
of this paragraph, "control" means the possession, direct or
indirect, of the power to direct or cause the direction of the
management and policies of an entity, or ownership of shares or
interests in the entity possessing more than 50 percent of the voting
power.
(2) "Qualified independent consultant" means either a geologist
who is registered pursuant to Section 7850 of the Business and
Professions Code or a professional engineer who is registered
pursuant to Section 6762 of the Business and Professions Code.
(3) "Responsible party owner" means the owner of all or part of
the site on January 1, 1993, or if all or a part of the site is
transferred to a joint venture formed for purposes of development of
the site, the owner of the site immediately prior to that transfer.
(4) "Site" means the site of the former Kaiser Steel Corporation
steel mill located near the City of Fontana.
(b) Notwithstanding any other provision of law, except as provided
in subdivisions (c) and (e), the director may release from liability
under this chapter or Chapter 6.5 (commencing with Section 25100),
and from liability for any claims of the state for recovery of
response costs under the federal act, any of the following persons,
with regard to a removal or remedial action at the site:
(1) Any person who provides financing for all, or a substantial
part of, the costs of performing a removal or remedial action at the
site pursuant to a remedial action plan prepared by a qualified
independent consultant and issued by the department pursuant to
subdivision (e) of Section 25356.1, except that the release from
liability shall not release the person providing this financing from
liability for any hazardous substance release or threatened release
resulting from that person's exercise of decisionmaking control over
the performance of the removal or remedial action while the
responsible party owner remains in possession of the site.
(2) Any person who enters into an agreement with the responsible
party owner to provide development services for the development of
all, or a part of, the site, including a developer, who becomes a
partner in a joint venture partnership with the responsible party
owner, if the joint venture is formed for purposes of the development
of the site and legal title to the site is transferred by the
responsible party owner to the joint venture. If a release from
liability is granted to a developer pursuant to this paragraph and
the legal title to the site is transferred by the responsible party
owner to a joint venture between the developer and the responsible
party owner of the site, the responsible party owner shall not be
relieved of liability under this chapter.
(3) Any person who acquires an ownership or leasehold interest in
all or a part of the site after performance of the removal or
remedial action specified in the remedial action plan for the site,
or part of the site, has been completed to the satisfaction of the
department.
(c) A release from liability shall not be granted pursuant to
subdivision (b) unless all of the following conditions are met:
(1) A responsible party owner has entered into a stipulated
settlement of an order issued by the department pursuant to Section
25187, 25355.5, or 25358.3 to perform the removal or remedial action
at the site in accordance with the remedial action plan and has
arranged financing, contingent only upon obtaining releases from
potential liability pursuant to subdivision (b), for the costs of
performing the removal or remedial action.
(2) A responsible party owner agrees to pay all applicable
oversight fees required by Section 25343 and to pay any additional
costs that are recoverable pursuant to Section 25360.
(3) No person to be released from liability pursuant to
subdivision (b) is a responsible party or an affiliate of a
responsible party, with respect to any hazardous substance release
existing at the site at the time the release from liability is
granted.
(4) The stipulated settlement requires the responsible party owner
to provide irrevocable financial assurances for full performance of
the remedial action plan. The financial assurances may consist of one
or more of the financial assurance instruments described in Section
66264.143 of Title 22 of the California Code of Regulations. Upon the
approval of the department, the forms of these instruments may be
revised as appropriate to apply to the costs of performing the
removal or remedial action specified in the remedial action plan.
(5) The director finds that the release from liability to be
granted will promote the purposes and goals of this chapter and
encourage private investment in property that is in need of
remediation.
(d) The site may be subdivided to create subdivided parcels of
land, pursuant to the Subdivision Map Act (Division 2 (commencing
with Section 66410) of Title 7 of the Government Code), in order to
facilitate removal or remedial action at the site, secure financing
for removal or remedial action, or secure financing for development
which would generate funds for removal or remedial action at the
site.
(e) Notwithstanding any other provision of this section, a release
from liability granted pursuant to subdivision (b) shall not extend
to any of the following:
(1) Any person who was a responsible party for a hazardous
substance release existing at the site before the release from
liability was granted, and any entity which is an affiliate of such a
responsible party.
(2) Any contractor who prepares the remedial action plan or
performs the removal or remedial action provided for in the remedial
action plan.
(3) Any person who obtains a release pursuant to subdivision (b)
by fraud or negligent or intentional nondisclosure or
misrepresentation.
(4) Any liability for a release or threatened release of a
hazardous substance first deposited at the site by a person released
from liability pursuant to subdivision (b) after the release from
liability is granted.
(f) Any release from liability granted by the director pursuant to
this section shall contain the following provision: "If, for any
reason, the responsible party does not complete the removal or
remedial action, this release does not extend to any subsequent
actions or activities performed by the released party that exacerbate
the conditions at the site."