California Assembly Bill AB1188 Introduced / Bill

 BILL NUMBER: AB 1188INTRODUCED BILL TEXT INTRODUCED BY Assembly Member Ruskin FEBRUARY 27, 2009 An act to amend Sections 25173.6, 25187, 25390, 25390.1, 25390.3, and 25390.4 of, and to add Section 25244.25 to, the Health and Safety Code, relating to hazardous materials. LEGISLATIVE COUNSEL'S DIGEST AB 1188, as introduced, Ruskin. Hazardous materials: penalties: allocation. (1) Existing law establishes the Toxic Substances Control Account in the General Fund and requires the Director of Toxic Substances Control to administer the account. Existing law authorizes the moneys in the account to be appropriated to the Department of Toxic Substances Control for various purposes, including for the administration of the Human and Ecological Risk Division, Hazardous Materials Laboratory, and Office of Pollution Prevention and Technology Development in the department. This bill would additionally authorize the funds in the account to be appropriated to the department for the administration of the successor organizations of those units of the department, the implementation of programs administered by those units, and activities in the department related to pollution prevention and technology development. (2) Existing law authorizes the department or a unified program agency to issue an administrative enforcement order requiring that a violation be corrected and imposing an administrative penalty for a violation of specified statutory provisions or a permit, rule, regulation, standard, or requirement issued or adopted pursuant to those provisions. Existing law imposes requirements regarding the payment of administrative penalties collected from enforcement actions and requires the administrative penalties to be placed in a separate subaccount in the Toxic Substances Control Account for transfer to the Site Remediation Account or the Expedited Site Remediation Trust Fund and for expenditure by the department upon appropriation by the Legislature. This bill would delete the requirement that the administrative penalties be placed in a separate subaccount in the account. If a specified requirement is met, the bill would additionally authorize, upon appropriation by the Legislature, (a) the transfer of those moneys to the Orphan Share Reimbursement Trust Fund, only for purposes of paying claims for reimbursement filed by project proponents, as defined, and to the Pollution Prevention Technology Assistance Grant Fund, which would be established by this bill, and (b) the expenditure by the department of those moneys for activities in the department related to pollution prevention and technology development. (3) Existing law requires the department to establish a technical and research assistance program to assist generators of hazardous waste in identifying and applying methods of source reduction and other hazardous waste management approaches. Under existing law, that program is required to emphasize assistance to smaller businesses that have inadequate technical and financial resources for obtaining information, assessing source reduction methods, and developing and applying source reduction techniques. Existing law also requires the department to conduct an inventory and analysis of low-cost voluntary programs to reduce hazardous waste generation and other environmental releases of toxic chemicals and to develop recommendations for new programs, as specified. This bill would establish the Pollution Prevention Technology Assistance Grant Fund in the State Treasury. The bill would authorize the department to expend the moneys in the fund, upon appropriation by the Legislature, to be used to pay for grants to assist small businesses in purchasing pollution prevention equipment and to pay the department's administrative costs in implementing the fund. The bill would authorize the department to adopt emergency regulations to implement the provisions relating to the fund. (4) Existing law establishes the Orphan Share Reimbursement Trust Fund to, among other things, encourage responsible parties to quickly and efficiently remediate contamination by hazardous substances and authorizes the administrator of the fund to expend the moneys in the fund, upon appropriation by the Legislature, to, among other things, pay a responsible party for a claim for reimbursement of the orphan share of a site, which is the share of liability for the costs of response action at the site that is attributable to the activities of persons who are defunct or insolvent. Existing law defines various terms for purposes of administering the Orphan Share Reimbursement Trust Fund. This bill would additionally define "project proponent" and "responsible party" for purposes of the fund and would authorize a project proponent to file a claim for reimbursement from that fund. The bill would also authorize the administrator of the fund to expend money in the fund to pay a project proponent for a claim for reimbursement of an orphan share at a site paid by that project proponent. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 25173.6 of the Health and Safety Code is amended to read: 25173.6. (a) There is in the General Fund the Toxic Substances Control Account, which shall be administered by the director. In addition to any other money that may be appropriated by the Legislature to the Toxic Substances Control Account, all of the following shall be deposited in the account: (1) The fees collected pursuant to Section 25205.6. (2) The fees collected pursuant to Section 25187.2, to the extent that those fees are for oversight of a removal or remedial action taken under Chapter 6.8 (commencing with Section 25300) or Chapter 6.85 (commencing with Section 25396). (3) Fines or penalties collected pursuant to this chapter, Chapter 6.8 (commencing with Section 25300) or Chapter 6.85 (commencing with Section 25396), except as directed otherwise by Section 25192. (4) Interest earned upon money deposited in the Toxic Substances Control Account. (5) All money recovered pursuant to Section 25360, except any amount recovered on or before June 30, 2006, that was paid from the Hazardous Substance Cleanup Fund. (6) All money recovered pursuant to Section 25380. (7) Reimbursements for funds expended from the Toxic Substances Control Account for services provided by the department, including, but not limited to, reimbursements required pursuant to Sections 25201.9 and 25343. (8) Money received from the federal government pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.). (9) Money received from responsible parties for remedial action or removal at a specific site, except as otherwise provided by law. (b) The funds deposited in the Toxic Substances Control Account may be appropriated to the department for the following purposes: (1) The administration and implementation of the following: (A) Chapter 6.8 (commencing with Section 25300), except that funds shall not be expended from the Toxic Substances Control Account for purposes of Section 25354.5. (B) Chapter 6.85 (commencing with Section 25396).  (C) Chapter 6.11 (commencing with Section 25404), on and before June 30, 1999.   (C)   (D)    Article 10 (commencing with Section 7710) of Chapter 1 of Division 4 of the Public Utilities Code, to the extent the department has been delegated responsibilities by the secretary for implementing that article.  (E) Activities in the department related to pollution prevention and technology development.  (2) The administration of  , and implementation of programs administered by,  the following units , and successor organizations of those units,  within the department: (A) The Human and Ecological Risk Division. (B) The  Hazardous Materials   Environmental Chemistry  Laboratory. (C) The Office of Pollution Prevention and Technology Development. (3) For allocation to the Office of Environmental Health Hazard Assessment, pursuant to an interagency agreement, to assist the department as needed in administering the programs described in subparagraphs (A) and (B) of paragraph (1). (4) For allocation to the State Board of Equalization to pay refunds of fees collected pursuant to Section 43054 of the Revenue and Taxation Code. (5) For the state share mandated pursuant to paragraph (3) of subsection (c) of Section 104 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9604(c)(3)). (6) For the purchase by the state, or by a local agency with the prior approval of the director, of hazardous substance response equipment and other preparations for response to a release of hazardous substances. However, all equipment shall be purchased in a cost-effective manner after consideration of the adequacy of existing equipment owned by the state or the local agency, and the availability of equipment owned by private contractors. (7) For payment of all costs of removal and remedial action incurred by the state, or by any local agency with the approval of the director, in response to a release or threatened release of a hazardous substance, to the extent the costs are not reimbursed by the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.). (8) For payment of all costs of actions taken pursuant to subdivision (b) of Section 25358.3, to the extent that these costs are not paid by the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.). (9) For all costs incurred by the department in cooperation with the Agency for Toxic Substances and Disease Registry established pursuant to subsection (i) of Section 104 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9604(i)) and all costs of health effects studies undertaken regarding specific sites or specific substances at specific sites. Funds appropriated for this purpose shall not exceed five hundred thousand dollars ($500,000) in any single fiscal year. However, these actions shall not duplicate reasonably available federal actions and studies. (10) For repayment of the principal of, and interest on, bonds sold pursuant to Article 7.5 (commencing with Section 25385) of Chapter 6.8. (11) For the reasonable and necessary administrative costs and expenses of the Hazardous Substance Cleanup Arbitration Panel created pursuant to Section 25356.2. (12) Direct site remediation costs. (13) For the department's expenses for staff to perform oversight of investigations, characterizations, removals, remediations, or long-term operation and maintenance. (14) For the administration and collection of the fees imposed pursuant to Section 25205.6. (15) For allocation to the office of the Attorney General, pursuant to an interagency agreement or similar mechanism, for the support of the Toxic Substance Enforcement Program in the office of the Attorney General, in carrying out the purposes of Chapter 6.8 (commencing with Section 25300) and Chapter 6.85 (commencing with Section 25396). (16) For funding the California Environmental Contaminant Biomonitoring Program established pursuant to Chapter 8 (commencing with Section 105440) of Part 5 of Division 103. (c) The funds deposited in the Toxic Substances Control Account may be appropriated by the Legislature to the Office of Environmental Health Hazard Assessment and the State Department of Public Health for the purposes of carrying out their duties pursuant to the California Environmental Contaminant Biomonitoring Program (Chapter 8 (commencing with Section 105440) of Part 5 of Division 103). (d) The director shall expend federal funds in the Toxic Substances Control Account consistent with the requirements specified in Section 114 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9614), upon appropriation by the Legislature, for the purposes for which they were provided to the state. (e) Money in the Toxic Substances Control Account shall not be expended to conduct removal or remedial actions if any significant portion of the hazardous substances to be removed or remedied originated from a source outside the state. (f) The Director of Finance, upon request of the director, may make a loan from the General Fund to the Toxic Substances Control Account to meet cash needs. The loan shall be subject to the repayment provisions of Section 16351 of the Government Code and the interest provisions of Section 16314 of the Government Code. (g) The Toxic Substances Control Account established pursuant to subdivision (a) is the successor fund of all of the following: (1) The Hazardous Substance Account established pursuant to Section 25330, as that section read on June 30, 2006. (2) The Hazardous Substance Clearing Account established pursuant to Section 25334, as that section read on June 30, 2006. (3) The Hazardous Substance Cleanup Fund established pursuant to Section 25385.3, as that section read on June 30, 2006. (4) The Superfund Bond Trust Fund established pursuant to Section 25385.8, as that section read on June 30, 2006. (h) On and after July 1, 2006, all assets, liabilities, and surplus of the accounts and funds listed in subdivision (g), shall be transferred to, and become a part of, the Toxic Substances Control Account, as provided by Section 16346 of the Government Code. All existing appropriations from these accounts, to the extent encumbered, shall continue to be available for the same purposes and periods from the Toxic Substances Control Account. (i) The department, on or before February 1 of each year, shall report to the Governor and the Legislature on the prior fiscal year's expenditure of funds within the Toxic Substances Control Account for the purposes specified in subdivision (b). SEC. 2. Section 25187 of the Health and Safety Code is amended to read: 25187. (a) (1) The department or a unified program agency, in accordance with subdivision  (   )   (l)  , may issue an order requiring that the violation be corrected and imposing an administrative penalty, for  any   a  violation of this chapter or  any   a  permit, rule, regulation, standard, or requirement issued or adopted pursuant to this chapter, whenever the department or Unified Program Agency determines that a person has violated, is in violation of, or threatens, as defined in subdivision (e) of Section 13304 of the Water Code, to violate, this chapter or Chapter 6.8 (commencing with Section 25300), or  any   a  permit, rule, regulation, standard, or requirement issued or adopted pursuant to this chapter or Chapter 6.8 (commencing with Section 25300). (2) In an order proposing a penalty pursuant to this section, the department or Unified Program Agency shall take into consideration the nature, circumstances, extent, and gravity of the violation, the violator's past and present efforts to prevent, abate, or clean up conditions posing a threat to the public health or safety or the environment, the violator's ability to pay the proposed penalty, and the prophylactic effect that the imposition of the proposed penalty would have on both the violator and the regulated community as a whole. (b) The department or a unified program agency, in accordance with subdivision  (   )   (l)  , may issue an order requiring corrective action whenever the department or Unified Program Agency determines that there is or has been a release, as defined in Chapter 6.8 (commencing with Section 25300), of hazardous waste or constituents into the environment from a hazardous waste facility. (1) In the case of a release of hazardous waste or constituents into the environment from a hazardous waste facility that is required to obtain a permit pursuant to Article 9 (commencing with Section 25200), the department shall pursue the remedies available under this chapter, including the issuance of an order for corrective action pursuant to this section, before using the legal remedies available pursuant to Chapter 6.8 (commencing with Section 25300), except in any of the following circumstances: (A) Where the person who is responsible for the release voluntarily requests in writing that the department issue an order to that person to take corrective action pursuant to Chapter 6.8 (commencing with Section 25300). (B) Where the person who is responsible for the release is unable to pay for the cost of corrective action to address the release. For purposes of this subparagraph, the inability of a person to pay for the cost of corrective action shall be determined in accordance with the policies of the Environmental Protection Agency for the implementation of Section 9605 of Title 42 of the United States Code. (C) Where the person responsible for the release is unwilling to perform corrective action to address the release. For purposes of this subparagraph, the unwillingness of a person to take corrective action shall be determined in accordance with the policies of the Environmental Protection Agency for the implementation of Section 9605 of Title 42 of the United States Code. (D) Where the release is part of a regional or multisite groundwater contamination problem that cannot, in its entirety, be addressed using the legal remedies available pursuant to this chapter and for which other releases that are part of the regional or multisite groundwater contamination problem are being addressed using the legal remedies available pursuant to Chapter 6.8 (commencing with Section 25300). (E) Where an order for corrective action has  already  been issued against the person responsible for the release, or the department and the person responsible for the release have, prior to January 1, 1996, entered into an agreement to address the required cleanup of the release pursuant to Chapter 6.8 (commencing with Section 25300). (F) Where the hazardous waste facility is owned or operated by the federal government. (2) The order shall include a requirement that the person take corrective action with respect to the release of hazardous waste or constituents, abate the effects  thereof,   of the release,  and take any other necessary remedial action. (3) If the order requires corrective action at a hazardous waste facility, the order shall require that corrective action be taken beyond the facility boundary, where necessary to protect human health or the environment. (4) The order shall incorporate, as a condition of the order, any applicable waste discharge requirements issued by the State Water Resources Control Board or a California regional water quality control board, and shall be consistent with all applicable water quality control plans adopted pursuant to Section 13170 of the Water Code and Article 3 (commencing with Section 13240) of Chapter 4 of Division 7 of the Water Code and state policies for water quality control adopted pursuant to Article 3 (commencing with Section 13140) of Chapter 3 of Division 7 of the Water Code existing at the time of the issuance of the order, to the extent that the department or Unified Program Agency determines that those plans and policies are not less stringent than this chapter and regulations adopted pursuant to this chapter. The order may include  any   a  more stringent requirement that the department or Unified Program Agency determines is necessary or appropriate to protect water quality. (5) Persons who are subject to an order pursuant to this subdivision include present and prior owners, lessees, or operators of the property where the hazardous waste is located, present or past generators, storers, treaters, transporters, disposers, and handlers of hazardous waste, and persons who arrange, or have arranged, by contract or other agreement, to store, treat, transport, dispose of, or otherwise handle hazardous waste. (6) For purposes of this subdivision, "hazardous waste facility" includes the entire site that is under the control of an owner or operator engaged in the management of hazardous waste. (c)  Any   An  order issued pursuant to this section shall be served by personal service or certified mail and shall inform the person so served of the right to a hearing. If the Unified Program Agency issues the order pursuant to this section, the order shall state whether the hearing procedure specified in paragraph (2) of subdivision (f) may be requested by the person receiving the order. (d)  Any   A  person served with an order pursuant to this section who has been unable to resolve any violation or deficiency on an informal basis with the department or Unified Program Agency may, within 15 days after service of the order, request a hearing pursuant to subdivision (e) or (f) by filing with the department or Unified Program Agency a notice of defense. The notice shall be filed with the office that issued the order. A notice of defense shall be deemed filed within the 15-day period provided by this subdivision if it is postmarked within that 15-day period. If  no   a  notice of defense is  not  filed within the time limits provided by this subdivision, the order shall become final. (e)  Any   A  hearing requested on an order issued by the department shall be conducted within 90 days after receipt of the notice of defense by an administrative law judge of the Office of Administrative Hearings of the Department of General Services in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, and the department shall have all the authority granted to an agency by those provisions. (f) Except as provided in subparagraph (B) of paragraph (2), a person requesting a hearing on an order issued by a unified program agency may select the hearing process specified in either paragraph (1) or (2) in the notice of defense filed with the Unified Program Agency pursuant to subdivision (d). Within 90 days of receipt of the notice of defense by the Unified Program Agency, the hearing shall be conducted using one of the following procedures: (1) An administrative law judge of the Office of Administrative Hearings of the Department of General Services shall conduct the hearing in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code. (2) (A) A hearing officer designated by the Unified Program Agency shall conduct the hearing in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, and the Unified Program Agency shall have all the authority granted to an agency by those provisions. When a hearing is conducted by a unified program agency pursuant to this paragraph, the Unified Program Agency shall, within 60 days of the hearing, issue a decision. (B) A person requesting a hearing on an order issued by a unified program agency may select the hearing process specified in this paragraph in a notice of defense filed pursuant to subdivision (d) only if the Unified Program Agency has, as of the date the order is issued pursuant to subdivision (c), selected a designated hearing officer and established a program for conducting a hearing in accordance with this paragraph. (g) The hearing decision issued pursuant to subdivision (f) shall be effective and final upon issuance. Copies of the decision shall be served by personal service or by certified mail upon the party served with the order and upon other persons who appeared at the hearing and requested a copy. (h)  Any   A  provision of an order issued under this section, except the imposition of an administrative penalty, shall take effect upon issuance by the department or Unified Program Agency if the department or Unified Program Agency finds that the violation or violations of law associated with that provision may pose an imminent and substantial endangerment to the public health or safety or the environment, and a request for a hearing shall not stay the effect of that provision of the order pending a hearing decision. However, if the department or Unified Program Agency determines that any or all provisions of the order are so related that the public health or safety or the environment can be protected only by immediate compliance with the order as a whole, then the order as a whole, except the imposition of an administrative penalty, shall take effect upon issuance by the department or Unified Program Agency. A request for a hearing shall not stay the effect of the order as a whole pending a hearing decision. (i) A decision issued pursuant to this section may be reviewed by the court pursuant to Section 11523 of the Government Code. In all proceedings pursuant to this section, the court shall uphold the decision of the department or Unified Program Agency if the decision is based upon substantial evidence in the whole record. The filing of a petition for writ of mandate shall not stay any action required pursuant to this chapter or the accrual of any penalties assessed pursuant to this chapter. This subdivision does not prohibit the court from granting any appropriate relief within its jurisdiction. (j)  (1)    All administrative penalties collected from actions brought by the department pursuant to this section shall be placed in  a separate subaccount in  the Toxic Substances Control Account and shall be available  only for transfer to the Site Remediation Account or the Expedited Site Remediation Trust Fund and for expenditure by the department  upon appropriation by the Legislature  for the following purposes:   .   (A) For transfer to the Site Remediation Account.   (B) For transfer to the Expedited Site Remediation Trust Fund.   (C) For transfer to the Orphan Share Reimbursement Trust Fund, only for purposes of paying off claims for reimbursement filed by project proponents, as defined in Section 25390.   (D) For transfer to the Pollution Prevention Technology Assistance Grant Fund created pursuant to Section 25244.25.   (E) For the purposes of subparagraph (E) of paragraph (1) of subdivision (b) of Section 25173.6.   (2) Moneys may only be appropriated for the purposes specified in subparagraphs (C) to (E), inclusive, of paragraph (1) if the moneys transferred pursuant to subparagraphs (A) and (B) of paragraph (1) in any year are in excess of the amounts specified in Section 25173.7.  (k) All administrative penalties collected from an action brought by a unified program agency pursuant to this section shall be paid to the Unified Program Agency that imposed the penalty, and shall be deposited into a special account that shall be expended to fund the activities of the Unified Program Agency in enforcing this chapter pursuant to Section 25180.  ( )   (l)    The authority granted under this section to a unified program agency is limited to both of the following: (1) The issuance of orders to impose penalties and to correct violations of the requirements of this chapter and its implementing regulations, only when the violations are violations of requirements applicable to hazardous waste generators and persons operating pursuant to a permit-by-rule, conditional authorization, or conditional exemption, when the violations occur at a unified program facility within the jurisdiction of the CUPA. (2) The issuance of orders to require corrective action when there has been a release of hazardous waste or constituents only when the Unified Program Agency is authorized to do so pursuant to Section 25404.1. (m) The CUPA shall annually submit a summary report to the department on the status of orders issued by the unified program agencies under this section and Section 25187.1. (n) The CUPA shall consult with the district attorney for the county on the development of policies to be followed in exercising the authority delegated pursuant to this section and Section 25187.1, as they relate to the authority of unified program agencies to issue orders. (o) The CUPA shall arrange to have appropriate legal representation in administrative hearings that are conducted by an administrative law judge of the Office of Administrative Hearings of the Department of General Services, and when a decision issued pursuant to this section is appealed to the superior court. (p) The department may adopt regulations to implement this section and paragraph (2) of subdivision (a) of Section 25187.1 as they relate to the authority of unified program agencies to issue orders. The regulations shall include, but not be limited to, all of the following requirements: (1) Provisions to ensure coordinated and consistent application of this section and Section 25187.1 when both the department and the Unified Program Agency have or will be issuing orders under one or both of these sections at the same facility. (2) Provisions to ensure that the enforcement authority granted to the unified program agencies will be exercised consistently throughout the state. (3) Minimum training requirements for staff of the Unified Program Agency relative to this section and Section 25187.1. (4) Procedures to be followed by the department to rescind the authority granted to a unified program agency under this section and Section 25187.1, if the department finds that the Unified Program Agency is not exercising that authority in a manner consistent with this chapter and Chapter 6.11 (commencing with Section 25404) and the regulations adopted pursuant thereto. (q) Except for an enforcement action taken pursuant to this chapter or Chapter 6.8 (commencing with Section 25300), this section does not otherwise affect the authority of a local agency to take any action under any other provision of law. SEC. 3. Section 25244.25 is added to the Health and Safety Code, to read: 25244.25. (a) The Pollution Prevention Technology Assistance Grant Fund is hereby established in the State Treasury and shall be administered by the director. (b) In addition to other moneys that may be appropriated by the Legislature to the fund, all of the following shall be deposited into the fund: (1) Administrative penalties transferred pursuant to subparagraph (D) of paragraph (1) of subdivision (j) of Section 25187. (2) Interest earned upon the moneys deposited in the fund. (c) (1) Upon appropriation by the Legislature, moneys in the fund may be used by the department to pay for grants to assist small businesses in purchasing pollution prevention equipment and to pay for the department's administrative costs in implementing this section. (2) A small business receiving a grant issued pursuant to paragraph (1) shall not expend the grant money to purchase equipment to comply with an existing local, state, or federal law, rule, regulation, or memorandum of agreement or understanding, or with any other legally binding document. (d) (1) The department may adopt regulations that the department determines are necessary to implement this section. (2) Regulations adopted by the department pursuant to this section shall be adopted as emergency regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The initial adoption, amendment, or repeal of a regulation authorized by this section is deemed to be necessary for the immediate preservation of the public peace, health, and safety, or general welfare, for the purposes of Sections 11346.1 and 11349.6 of the Government Code, and the department is hereby exempted from the requirement that it describe specific facts showing the need for immediate action. (e) For the purposes of this section, the following terms mean the following: (1) "Fund" means the Pollution Prevention Technology Assistance Grant Fund. (2) "Small business" means an independently owned and operated business, that is not dominant in its field of operation, that, together with affiliates, has 100 or fewer employees, and that has average annual gross receipts of ten million dollars ($10,000,000) or less over the previous three years, or a business that is a manufacturer, as defined in Section 14837 of the Government Code, with 100 or fewer employees. SEC. 4. Section 25390 of the Health and Safety Code is amended to read: 25390. For purposes of this article, the following definitions shall apply: (a) "Fund" means the Orphan Share Reimbursement Trust Fund established pursuant to Section 25390.3. (b) "Orphan share" means the share of liability for the costs of response action that is attributable to the activities of persons who are defunct or insolvent, as determined pursuant to Section 25390.5.  (c) "Project proponent" means a person who applies to the department for approval to conduct the response to a release or threatened release of hazardous substances. "Project proponent" does not include a responsible party.   (d) "Responsible party" has the same meaning as set forth in Section 25323.5.  SEC. 5. Section 25390.1 of the Health and Safety Code is amended to read: 25390.1. The Legislature finds and declares all of the following: (a) This article, which establishes an Orphan Share Reimbursement Trust Fund, operates in conjunction with the federal liability scheme under the federal act as in effect on July 1, 1998, for the recovery of response costs expended by government agencies. (b) Under federal liability, at sites where there are insolvent or defunct parties that cannot contribute to the cost of cleanup, viable responsible parties pay the share of liability for that cleanup that may be attributable to insolvent and defunct parties. (c) The Orphan Share Reimbursement Trust Fund is created to mitigate the payment of an insolvent or defunct party's liability share by viable responsible parties  or project proponents , to the extent money in the fund is available, and to encourage responsible parties  or project proponents  to quickly and efficiently remediate contamination. SEC. 6. Section 25390.3 of the Health and Safety Code is amended to read: 25390.3. (a) The Orphan Share Reimbursement Trust Fund is hereby created in the State Treasury. (b) The administrator of the fund may expend the money deposited in the fund as provided in this article, upon appropriation by the Legislature. The administrator of the fund shall act in a fiduciary capacity, shall prudently administer the fund, and shall protect the fund from any unreasonable or unjustified claims, including any unreasonable or unjustified determinations of the orphan share percentage. (c) Except as provided in  subdivision (d)   subdivisions (d) and (e) of this section,  and subdivision (b) of Section 25358.7.2, the administrator of the fund may expend the money in the fund for all of the following purposes: (1) To pay claims for reimbursement of all, or any part of, the orphan share at a site paid by the responsible party  or a project proponent  filed pursuant to Section 25390.4. (2) For the costs of implementing this article. (3) To pay the reasonable costs of the department and the regional board for performance of its duties under this article, including, but not limited to, its participation in the orphan share determination process set forth in Section 25390.5, unless those costs are paid by a potentially responsible party  or a project proponent  under an agreement specified in paragraph (3) of subdivision (a) of Section 25390.4. The expenditures from the fund for purposes of this paragraph shall not exceed 5 percent of the total amount appropriated from the fund in the annual Budget Act for purposes of this subdivision for that fiscal year. (4) To pay the portion of costs attributable to the orphan share incurred by the department and the regional boards to oversee actions of potentially responsible parties  or project proponents  , unless those costs are paid by a potentially responsible party  or a project proponent  under an agreement specified in paragraph (3) of subdivision (a) of Section 25390.4. (d) If an appropriation from the General Fund is made to the fund in any fiscal year and an amount greater than five million dollars ($5,000,000) in unexpended funds, beyond any amount approved by the administrator of the fund to pay claims pursuant to this article from that General Fund appropriation, remain in the fund at the end of that fiscal year, and if the department determines that additional funding for orphan sites beyond that appropriated from the Toxic Substances Control Account is required for the next fiscal year, the administrator may expend the amount in excess of five million dollars ($5,000,000) from the General Fund appropriation to pay for response costs incurred by the department or the regional boards under this chapter at sites listed pursuant to Section 25356 where no viable responsible parties exist.  (e) If a transfer is made pursuant to subparagraph (C) of paragraph (1) of subdivision (j) of Section 25187, the administrator of the fund may expend the moneys transferred only for the purposes of paying claims for reimbursement pursuant to paragraph (1) of subdivision (c) filed by project proponents.  SEC. 7. Section 25390.4 of the Health and Safety Code is amended to read: 25390.4. (a) A potentially responsible party  or a project proponent  may file a claim pursuant to paragraph (1) of subdivision (c) of Section 25390.3 only if all of the following apply: (1) The site is listed pursuant to Section 25356. (2) The department or the regional board has approved a final remedy for the site under Section 25356.1. (3) The department and the potentially responsible party  or the project proponent  have entered into  either  a written, enforceable cleanup agreement or  an  order embodied in a consent order issued pursuant to Section 25355.5 or 25358.3, or the regional board and the potentially responsible party  or the project proponent  have entered into  either  a written, enforceable cleanup agreement or  a   n  order that provides for the completion of all response actions necessary at the site, conducted pursuant to this chapter and under the oversight and at the direction of the department or the regional board. The agreement shall provide for the payment by the potentially responsible party  or the project proponent  of the department's or the regional board's response costs. (4) The potentially responsible party  or project proponent  demonstrates, and the department or the regional board finds, that the potentially responsible party  or project proponent  has and will have sufficient financial resources to complete all required response actions. (5) The potentially responsible party  or the project proponent  is in compliance with the agreement provided in paragraph (3), and with any other applicable order or agreement pertaining to the potentially responsible party's  or the project proponent's  obligations with respect to the site. (6) The potentially responsible party  or project proponent  has prepared and provided the information required under subdivision (b) of Section 25390.5. (7) The claim for reimbursement is for the costs incurred for response actions that were subject to the oversight and approval of the department or the regional board. (b) The administrator of the fund shall prescribe appropriate application forms and procedures for claims filed pursuant to paragraph (1) of subdivision (c) of Section 25390.3 that shall include all of the following: (1) Requirements that the claimant provide, at a minimum, all of the following documentation: (A) A sworn verification of the claim to the best of the information known to the claimant or within the claimant's possession or control. (B) All records and information pertaining to the site and relevant to the ownership, operation, or control of the site, or to the ownership, possession, generation, treatment, transportation, storage or disposal of a hazardous substance, pollutant, or contaminant at or in connection with the site, within the possession or control of the claimant, including, but not limited to, the information specified in subdivision (b) of Section 25358.1. (C) Certification of all response costs that have been, or will be, incurred at the site by the potentially responsible party  or the project proponent  , and an estimate of the total cost of completion of the approved final remedy at the site. (2) Procedures specifying that claims shall be filed only at the two following specific time periods during the performance of a response action: (A) After the final remedy is selected under Section 25356.1. (B) After the department or the regional board determines that the response action is complete. The department or the regional board shall not include operation and maintenance activities in determining whether the response action is complete under this subparagraph. (c) The administrator of the fund shall annually, on a fiscal year basis, pay claims for reimbursement from the fund filed by potentially responsible parties  and project proponents  under paragraph (1) of subdivision (c) of Section 25390.3, in accordance with the following procedures: (1) Claims for funds available during each fiscal year shall be filed with the administrator by July 30 of that fiscal year. (2) For sites with multiple responsible parties  or projec   t proponents  , all potentially responsible parties  and project proponents  that have entered into the cleanup agreement specified in paragraph (3) of subdivision (a) of Section 25390.4 shall file a single claim. (3) (A) The administrator shall allocate the money available in the fund for the fiscal year among the claims filed by the July 30 deadline. The allocation shall be based on the determination of the orphan share percentage at the facility under the process set forth in Section 25390.5, the long-term financial stability and short-term resources available in the fund, and the administrator's fiduciary duty with respect to the fund. Except as provided in subparagraph (B), the administrator shall pay claims for funds in the order in which they are received. (B) Notwithstanding subparagraph (A), if an appropriation from the General Fund is made to the fund in any fiscal year, the administrator may alter the order of payment of claims required by subparagraph (A) by using funds appropriated from the General Fund to pay claims based on the threat to public health or the environment posed by a site or the need to improve economic and environmental conditions in redeveloping communities. (4) The total amount allocated to any one site shall not exceed 10 percent of the total amount available each fiscal year in the fund. If, due to this limit or to the unavailability of funds, a claimant receives only partial or no reimbursement of the orphan share paid by that claimant, the claim shall be paid in the following fiscal year and shall be given priority over all claims filed after the claim was initially received, subject to the discretion of the administrator set forth in paragraph (3). (5) The administrator's proposed allocation shall be subject to public review and comment for 30 days. (d) The state and the fund have no obligation to provide full reimbursement to a claimant. The fund shall be allocated at the discretion of the administrator, subject to the requirements of this article. In enacting this article, the Legislature intends that claimants be reimbursed only to the extent that money is available in the fund and is allocated to the claimant by the administrator.