Section 25390.5 Of Article 7.8. Orphan Share Reimbursement Trust Fund From California Health And Safety Code >> Division 20. >> Chapter 6.8. >> Article 7.8.
25390.5
. For the purposes of this article, the orphan share shall
be determined in the following manner:
(a) The orphan share shall be expressed as a percentage in
multiples of five, up to, and, including, but not greater than, 75
percent.
(b) The potentially responsible party filing a claim for
reimbursement of the orphan share shall provide the administrator of
the fund with a written potentially responsible party search report
that shall include a list of all potentially responsible parties
identified for the site, the factual and legal basis for identifying
those parties, and a proposed orphan share percentage. The
potentially responsible party shall also provide the administrator
with the factual documentation necessary to support the proposed
orphan share percentage.
(c) Upon receipt of the information required by subdivision (a),
the administrator of the fund shall invite all identified potentially
responsible parties and the department and the regional board to
submit any additional information relating to the proposed orphan
share percentage or to the list of identified potentially responsible
parties.
(d) The administrator of the fund, in consultation with the
department or the regional board, shall determine a final orphan
share percentage based on the volume, toxicity, and difficulty of
removal of the contaminants contributed to the site by the party or
parties responsible for the orphan share. The administrator shall
determine the orphan share timely and efficiently and is not required
to precisely determine all relevant factors, as long as the
determination is generally equitable. In addition, the administrator
may consider the results of any apportionment or allocation conducted
by voluntary arbitration or mediation or by a civil action filed by
a potentially responsible party, or any other apportionment or
allocation decision that is helpful when determining the orphan share
percentage.
(e) A potentially responsible party shall not assert, and the
administrator of the fund shall not determine, that the orphan share
percentage includes the share of liability attributable to a
potentially responsible party's acts that occurred before January 1,
1982, unless that share of responsibility is attributable to a person
who is defunct or insolvent.
(f) In determining the orphan share percentage under this section,
the administrator of the fund may perform any of the activities
authorized in subdivisions (b) and (c) of Section 25358.1.
(g) The administrator of the fund shall issue all orphan share
percentage determinations in writing, with notification to all
appropriate parties. The decision of the administrator with respect
to either apportionment or payment of claims is a final agency action
for the purposes of judicial review of the decision by any party to
the proceedings resulting in the decision; however, judicial review
of the administrator's decision is limited to a showing of fraud by a
party submitting information under this subdivision. The
administrator shall be represented by the Attorney General in any
action brought under this article.