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Article 7. Compensation of California Health And Safety Code >> Division 20. >> Chapter 6.8. >> Article 7.
"Board," as used in this article, means the California
Victim Compensation and Government Claims Board.
Any person may apply to the board, pursuant to Section
25373, for compensation of a loss caused by the release, in
California, of a hazardous substance if any of the following
conditions are met:
(a) The source of the release of the hazardous substance, or the identity of the party liable for damages in connection therewith or responsible for the costs of removal of the hazardous substance, is unknown or cannot, with reasonable diligence, be determined.
(b) The loss was not compensable pursuant to law, including Chapter 6.5 (commencing with Section 25100), because there is no liable party or the judgment could not be satisfied, in whole or part, against the party determined to be liable for the release of the hazardous substance.
(c) The person has presented a written demand for compensation, which sets forth the basis for the claim, to the party which the person reasonably believes is liable for a loss specified in paragraph (1) of subdivision (a) of Section 25375 which was incurred by that person and is compensable pursuant to this article, the person has presented the board with a copy of the demand, and, within 60 days after presenting the demand, the party has either rejected, in whole or in part, the demand to be compensated for a loss specified in paragraph (1) of subdivision (a) of Section 25375, or has not responded to the demand. Only losses specified in paragraph (1) of subdivision (a) of Section 25375 are compensable under a claim filed pursuant to this subdivision.
(a) The source of the release of the hazardous substance, or the identity of the party liable for damages in connection therewith or responsible for the costs of removal of the hazardous substance, is unknown or cannot, with reasonable diligence, be determined.
(b) The loss was not compensable pursuant to law, including Chapter 6.5 (commencing with Section 25100), because there is no liable party or the judgment could not be satisfied, in whole or part, against the party determined to be liable for the release of the hazardous substance.
(c) The person has presented a written demand for compensation, which sets forth the basis for the claim, to the party which the person reasonably believes is liable for a loss specified in paragraph (1) of subdivision (a) of Section 25375 which was incurred by that person and is compensable pursuant to this article, the person has presented the board with a copy of the demand, and, within 60 days after presenting the demand, the party has either rejected, in whole or in part, the demand to be compensated for a loss specified in paragraph (1) of subdivision (a) of Section 25375, or has not responded to the demand. Only losses specified in paragraph (1) of subdivision (a) of Section 25375 are compensable under a claim filed pursuant to this subdivision.
The board shall prescribe appropriate forms and procedures
for claims filed pursuant to this article, which shall include, as a
minimum, all of the following:
(a) A provision requiring the claimant to make a sworn verification of the claim to the best of his or her knowledge.
(b) A full description, supported by appropriate evidence from government agencies of the release of the hazardous substance claimed to be the cause of the physical injury or illness or loss of income.
(c) Certification by the claimant of dates and places of residence for the five years preceding the date of the claim.
(d) Certification of the medical history of the claimant for the five years preceding the date of the claim, along with certification of the alleged physical injury or illness and expenses for the physical injury or illness. The certification shall be made by hospitals, physicians, or other qualified medical authorities.
(e) The claimant's income as reported on the claimant's federal income tax return for the preceding three years in order to compute lost wages or income.
(f) Any person who knowingly gives, or causes to be given, any false information as a part of any such claim shall be guilty of a misdemeanor and shall, upon conviction, be fined up to five thousand dollars ($5,000), or imprisoned for not more than one year, or both.
(a) A provision requiring the claimant to make a sworn verification of the claim to the best of his or her knowledge.
(b) A full description, supported by appropriate evidence from government agencies of the release of the hazardous substance claimed to be the cause of the physical injury or illness or loss of income.
(c) Certification by the claimant of dates and places of residence for the five years preceding the date of the claim.
(d) Certification of the medical history of the claimant for the five years preceding the date of the claim, along with certification of the alleged physical injury or illness and expenses for the physical injury or illness. The certification shall be made by hospitals, physicians, or other qualified medical authorities.
(e) The claimant's income as reported on the claimant's federal income tax return for the preceding three years in order to compute lost wages or income.
(f) Any person who knowingly gives, or causes to be given, any false information as a part of any such claim shall be guilty of a misdemeanor and shall, upon conviction, be fined up to five thousand dollars ($5,000), or imprisoned for not more than one year, or both.
All decisions rendered by the board shall be in writing,
with notification to all appropriate parties, and shall be rendered
within 90 days of submission of a claim to the board unless all the
parties to the claim agree in writing to an extension of time. The
decision shall be considered a final agency action for the purposes
of judicial review of the decision by any party to the proceedings
resulting in the decision.
(a) If the board makes the determination, specified in
subdivision (b), that losses resulted from the claimant's damages,
injury, or disease, only the following losses are compensable
pursuant to this article:
(1) One hundred percent of uninsured, out-of-pocket medical expenses, for up to three years from the onset of treatment.
(2) Eighty percent of any uninsured, actual lost wages, or business income in lieu of wages, caused by injury to the claimant or the claimant's property, not to exceed fifteen thousand dollars ($15,000) per year for three years.
(3) One hundred percent of uninsured, out-of-pocket expenses for remedial action on the claimant's property undertaken to address a release of a hazardous substance when all of the following apply:
(A) The claimant's property is an owner-occupied single-family residence.
(B) The remedial action was ordered by federal, state, or local authorities due to a release of a hazardous substance.
(C) The department makes one of the following determinations:
(i) The release of the hazardous substance originated outside the boundaries of the property.
(ii) The release of the hazardous substance occurred on the property, was the result of an action which violated state or federal law, and the responsible party cannot be identified or cannot be located, or a judgment against the responsible party cannot be satisfied. The maximum compensation under this paragraph is limited to twenty-five thousand dollars ($25,000) per residence and to one hundred thousand dollars ($100,000) for five contiguous residential properties. Any compensation provided shall be reduced by the amount that the remedial action results in a capital improvement to the claimant's residence.
(4) One hundred percent of the fair market value of owner-occupied real property that is rendered permanently unfit for occupancy because of the release of a hazardous substance. For purposes of this paragraph, real property is rendered permanently unfit for occupancy only if a state or federal agency requires that it be evacuated for a period of six or more months because of the release of a hazardous substance. The fair market value of the real property shall be determined by an independent appraiser, and shall be considered by the independent appraiser as being equal to the value of the real property prior to the release of the hazardous substance that caused the evacuation of the property. Where compensation is made by the board pursuant to this paragraph, sole ownership of the real property shall be transferred to the state and any proceeds resulting from the final disposition of the real property shall be deposited into the state account, for expenditure by the department upon appropriation by the Legislature. To be eligible for compensation pursuant to this paragraph, claims for compensation shall be made within 12 months of the date on which the evacuation was ordered.
(5) One hundred percent of the expenses incurred due to the evacuation of a residence ordered by a state or federal agency. For purposes of this paragraph, "evacuation expenses" include the cost of shelter and any other emergency expenditures incurred due to an evacuation ordered by a state or federal agency. The board may provide compensation, pursuant to this paragraph, only if it finds that the evacuation expenses represent reasonable costs for the goods or services purchased, and would not have been incurred if an evacuation caused by a hazardous substance release had not occurred. The board may provide compensation for these evacuation expenses only if they were incurred within 12 months from the date on which evacuation was ordered.
(b) A loss specified in subdivision (a) is compensable if the board makes all of the following findings, based upon a preponderance of the evidence:
(1) A release of a hazardous substance occurred.
(2) The claimant or the claimant's property was exposed to the release of the hazardous substance.
(3) The exposure of the claimant to the release of the hazardous substance was of such a duration, and to such a quantity of the hazardous substance, that the exposure caused the damages, injury, or disease which resulted in the claimant's loss.
(4) For purposes of paragraphs (4) and (5) of subdivision (a), the hazardous substance release, or the order which resulted in the claim for compensation occurred on or after January 1, 1986.
(5) The conditions and requirements of this article including, but not limited to, the conditions of Sections 25372 and 25373, have been met.
(c) No money shall be used for the payment of any claim authorized by this chapter, where the claim is the result of long-term exposure to ambient concentrations of air pollutants.
(1) One hundred percent of uninsured, out-of-pocket medical expenses, for up to three years from the onset of treatment.
(2) Eighty percent of any uninsured, actual lost wages, or business income in lieu of wages, caused by injury to the claimant or the claimant's property, not to exceed fifteen thousand dollars ($15,000) per year for three years.
(3) One hundred percent of uninsured, out-of-pocket expenses for remedial action on the claimant's property undertaken to address a release of a hazardous substance when all of the following apply:
(A) The claimant's property is an owner-occupied single-family residence.
(B) The remedial action was ordered by federal, state, or local authorities due to a release of a hazardous substance.
(C) The department makes one of the following determinations:
(i) The release of the hazardous substance originated outside the boundaries of the property.
(ii) The release of the hazardous substance occurred on the property, was the result of an action which violated state or federal law, and the responsible party cannot be identified or cannot be located, or a judgment against the responsible party cannot be satisfied. The maximum compensation under this paragraph is limited to twenty-five thousand dollars ($25,000) per residence and to one hundred thousand dollars ($100,000) for five contiguous residential properties. Any compensation provided shall be reduced by the amount that the remedial action results in a capital improvement to the claimant's residence.
(4) One hundred percent of the fair market value of owner-occupied real property that is rendered permanently unfit for occupancy because of the release of a hazardous substance. For purposes of this paragraph, real property is rendered permanently unfit for occupancy only if a state or federal agency requires that it be evacuated for a period of six or more months because of the release of a hazardous substance. The fair market value of the real property shall be determined by an independent appraiser, and shall be considered by the independent appraiser as being equal to the value of the real property prior to the release of the hazardous substance that caused the evacuation of the property. Where compensation is made by the board pursuant to this paragraph, sole ownership of the real property shall be transferred to the state and any proceeds resulting from the final disposition of the real property shall be deposited into the state account, for expenditure by the department upon appropriation by the Legislature. To be eligible for compensation pursuant to this paragraph, claims for compensation shall be made within 12 months of the date on which the evacuation was ordered.
(5) One hundred percent of the expenses incurred due to the evacuation of a residence ordered by a state or federal agency. For purposes of this paragraph, "evacuation expenses" include the cost of shelter and any other emergency expenditures incurred due to an evacuation ordered by a state or federal agency. The board may provide compensation, pursuant to this paragraph, only if it finds that the evacuation expenses represent reasonable costs for the goods or services purchased, and would not have been incurred if an evacuation caused by a hazardous substance release had not occurred. The board may provide compensation for these evacuation expenses only if they were incurred within 12 months from the date on which evacuation was ordered.
(b) A loss specified in subdivision (a) is compensable if the board makes all of the following findings, based upon a preponderance of the evidence:
(1) A release of a hazardous substance occurred.
(2) The claimant or the claimant's property was exposed to the release of the hazardous substance.
(3) The exposure of the claimant to the release of the hazardous substance was of such a duration, and to such a quantity of the hazardous substance, that the exposure caused the damages, injury, or disease which resulted in the claimant's loss.
(4) For purposes of paragraphs (4) and (5) of subdivision (a), the hazardous substance release, or the order which resulted in the claim for compensation occurred on or after January 1, 1986.
(5) The conditions and requirements of this article including, but not limited to, the conditions of Sections 25372 and 25373, have been met.
(c) No money shall be used for the payment of any claim authorized by this chapter, where the claim is the result of long-term exposure to ambient concentrations of air pollutants.
(a) Except as specified in subdivision (b), the procedures
specified in Article 8 (commencing with Section 11435.05) of Chapter
4.5 of Part 1 of Division 3 of Title 2 of, and in Section 11513 of,
the Government Code apply to the proceedings conducted by the board
pursuant to this article.
(b) Notwithstanding subdivision (a), Sections 801, 802, 803, 804, and 805 of the Evidence Code apply to the proceedings conducted by the board pursuant to this article.
(c) The board may consider evidence presented by any person against whom a demand was made pursuant to subdivision (c) of Section 25372. The evidence presented by that person shall become a part of the record upon which the board's decision shall be based.
(b) Notwithstanding subdivision (a), Sections 801, 802, 803, 804, and 805 of the Evidence Code apply to the proceedings conducted by the board pursuant to this article.
(c) The board may consider evidence presented by any person against whom a demand was made pursuant to subdivision (c) of Section 25372. The evidence presented by that person shall become a part of the record upon which the board's decision shall be based.
No claim may be presented to the board pursuant to this
article later than three years from the date of discovery of the loss
or from January 1, 1982, whichever is later.
Nothing in this article shall require, or be deemed to
require, pursuit of any claim against the board as a condition
precedent to any other remedy.
(a) Compensation of any loss pursuant to this article shall
preclude indemnification or reimbursement from any other source for
the identical loss, and indemnification or reimbursement from any
other source shall preclude compensation pursuant to this article.
(b) If a claimant recovers any compensation from a party in a civil or administrative action for a loss for which the claimant has received compensation pursuant to this article, the claimant shall reimburse the state account in an amount equal to the compensation which the claimant has received from the state account pursuant to this article. The Attorney General may bring an action against the claimant to recover the amount which the claimant is required to reimburse the state account, and until the account is reimbursed, the state shall have a lien of first priority on the judgment or award recovered by the claimant. If the state account is reimbursed pursuant to this subdivision, the state shall not acquire, by subrogation, the claimant's rights pursuant to Section 25380.
(c) The Legislature hereby finds and declares that it is the purpose of this section to prevent double recovery for a loss compensable pursuant to this article.
(b) If a claimant recovers any compensation from a party in a civil or administrative action for a loss for which the claimant has received compensation pursuant to this article, the claimant shall reimburse the state account in an amount equal to the compensation which the claimant has received from the state account pursuant to this article. The Attorney General may bring an action against the claimant to recover the amount which the claimant is required to reimburse the state account, and until the account is reimbursed, the state shall have a lien of first priority on the judgment or award recovered by the claimant. If the state account is reimbursed pursuant to this subdivision, the state shall not acquire, by subrogation, the claimant's rights pursuant to Section 25380.
(c) The Legislature hereby finds and declares that it is the purpose of this section to prevent double recovery for a loss compensable pursuant to this article.
(a) The following evidence is not admissible as evidence in
any civil or criminal proceeding, including a subrogation action by
the state pursuant to Section 25380, to establish the liability of
any person for any damages alleged to have been caused by a release
of a hazardous substance:
(1) A final decision made by the board pursuant to this article.
(2) A decision made by the board to admit or not admit any evidence.
(3) Any finding of fact or conclusion of law entered by the board in a proceeding for a claim pursuant to this article.
(4) The fact that any person has done any of the following in a proceeding for a claim pursuant to Section 25372:
(A) Chosen to participate or appear.
(B) Chosen not to participate or appear.
(C) Failed to appear.
(D) Settled or offered to settle the claim.
(b) Subdivision (a) does not apply to any civil action or writ by a claimant against the board for any act, decision, or failure to act on a claim submitted by the claimant.
(1) A final decision made by the board pursuant to this article.
(2) A decision made by the board to admit or not admit any evidence.
(3) Any finding of fact or conclusion of law entered by the board in a proceeding for a claim pursuant to this article.
(4) The fact that any person has done any of the following in a proceeding for a claim pursuant to Section 25372:
(A) Chosen to participate or appear.
(B) Chosen not to participate or appear.
(C) Failed to appear.
(D) Settled or offered to settle the claim.
(b) Subdivision (a) does not apply to any civil action or writ by a claimant against the board for any act, decision, or failure to act on a claim submitted by the claimant.
Compensation of any loss pursuant to this article shall be
subject to the state's acquiring, by subrogation, all rights of the
claimant to recover the loss from the party determined to be liable
therefor. Upon the request of the board, the Attorney General shall
commence an action in the name of the people of the State of
California to recover any amount paid in compensation for any loss
pursuant to this article against any party who is liable to the
claimant for any loss compensable pursuant to this article in
accordance with the procedures set forth in Sections 25360 to 25364,
inclusive. Moneys recovered pursuant to this section shall be
deposited in the state account.
(a) The board shall, in consultation with the department,
adopt, and revise when appropriate, all rules and regulations
necessary to implement this article, including methods that provide
for establishing that a claimant has exercised reasonable diligence
in satisfying the conditions specified in Sections 25372, 25373,
25375, and 25375.5, and regulations that specify the proof necessary
to establish a loss compensable pursuant to this article.
(b) Claims approved by the board pursuant to this article shall be paid from the state account.
(c) The Legislature may appropriate up to two million dollars ($2,000,000) annually from the state account to be used by the board for the payment of awards pursuant to this article.
(d) Claims against or presented to the board shall not be paid in excess of the amount of money appropriated for this purpose from the state account. These claims shall be paid only when additional money is collected, appropriated, or otherwise added to that account.
(b) Claims approved by the board pursuant to this article shall be paid from the state account.
(c) The Legislature may appropriate up to two million dollars ($2,000,000) annually from the state account to be used by the board for the payment of awards pursuant to this article.
(d) Claims against or presented to the board shall not be paid in excess of the amount of money appropriated for this purpose from the state account. These claims shall be paid only when additional money is collected, appropriated, or otherwise added to that account.
The board may expend from the state account those sums of
money as are reasonably necessary to administer and carry out this
article.
