Loading (50 kb)...'
(continued)
(4) If the Administering Agency, or Department if the Department is not the Administering Agency, determines that the Borrower is not making sufficient progress in completing the PEA or Response Action, as appropriate, the Department may require Loan repayment to begin immediately or may determine that the Borrower is in default;
(5) If the Borrower of an ISCP Loan decides not to complete the PEA, the Borrower shall notify the Department in writing of that decision and shall submit to the Department all data, documents, reports, and other information regarding the PEA performed prior to the notification. Repayment of the disbursed Loan amount shall begin immediately. A Borrower that does not complete a PEA is not eligible for a partial waiver of Loan repayment under section 68204.
(f) For CLEAN Loan Program Loans, the Loan Agreement provision regarding completion of Response Actions shall include the following:
(1) For a Borrower of a CLEAN Loan Program Loan that is a responsible party as defined in section 25323.5 of the Health and Safety Code or a Person subject to regulation under chapter 6.7 (commencing with section 25280) or chapter 6.75 (commencing with section 25299.10) of the Health and Safety Code, agreement to complete all Response Actions as approved by the Administering Agency, even if the Loan amount does not cover the full cost of the Response Action;
(2) For a Borrower of a CLEAN Loan Program Loan that is not a responsible party as defined in section 25323.5 of the Health and Safety Code, agreement to immediately notify the Administering Agency and the Department, if the Department is not the Administering Agency, if:
(A) New information shows that the cost of completing the Response Action will exceed the cost originally projected by the Borrower, and
(B) The Borrower has determined that the Project is no longer economically feasible because the sum of the cost of the Response Action and the current appraised fair market value of the Property is greater than the projected fair market value of the Property after all necessary Response Actions have been completed.
(3) If the Borrower notifies the Administering Agency and the Department under paragraph (2), the Borrower shall:
(A) Provide to the Administering Agency documentation of the cost of Response Action and the current and projected appraised fair market values under paragraph (2);
(B) Begin repayment of the Loan or the Loan amount disbursed to date immediately;
(C) Submit to the Administering Agency all data, documents, reports and other information regarding the Response Action activities on the Property; and
(D) Perform those actions required by the Administering Agency to ensure that the Property will pose no immediate public health or environmental risks and that the Property will not remain in a condition that is visually less attractive than its original condition.
(4) Documentation of the cost of the Response Action submitted by a Borrower under subparagraph (3)(A) shall be prepared by any of the following who are licensed or registered to practice in California and who have demonstrated expertise in Hazardous Material remediation and cost estimation: Class II environmental assessor, engineering geologist, licensed hazardous substance contractor, or licensed professional engineer. An affidavit may be submitted in lieu of a cost documentation report if the affidavit is signed by a person authorized under this subparagraph to prepare a cost documentation report.
Note: Authority cited: Sections 25150, 25351.5, 25395.29 and 58012, Health and Safety Code. Reference: Sections 25395.20, 25395.21, 25395.22, 25395.25, 25395.28 and 25395.31, Health and Safety Code.
s 68211. ISCP Environmental Oversight Agreements; CLEAN Loan Program Response Action Agreements or Equivalent Agreements.
(a) ISCP Environmental Oversight Agreements, CLEAN Loan Program Response Action Agreements, and enforceable agreements with the State Board or a Regional Board under subdivision (h) of section 25395.28 of the Health and Safety Code, shall contain, at a minimum, the following:
(1) Identification of parties entering into the agreement;
(2) Description of the Property subject to the agreement, and description of any environmental assessment or other Response Action activities previously performed on the Property;
(3) If the Property is part of a larger site where there is known or suspected release or threatened release of a Hazardous Material, description of the site and nature and extent of any known or suspected release or threatened release of a Hazardous Material on the site;
(4) Description of the work that will be performed using Loan funds, including a detailed scope of work, schedules, public participation activities, quality assurance/quality control plans, and health and safety plans;
(5) Provision that the Borrower shall reimburse the Administering Agency's costs for oversight of the preparation and approval of a PEA or PEA-equivalent site assessment, or Response Action, as appropriate and as specified under section 25395.28 of the Health and Safety Code, on any portion of the Property where the work that is performed is not funded by Loan funds;
(6)(A) For ISCP Loans, provision for the Department's approval of the PEA, and any reports, plans, schedules, or other documents submitted under the agreement, including provisions regarding any Department-required modifications to submittals;
(B) For CLEAN Loan Program Loans, provision for the Administering Agency's approval of any Response Actions and any reports, plans, schedules, or other documents submitted under the agreement, including provisions regarding any modifications to submittals required by the Administering Agency;
(7) Provision regarding actions to be taken in the event of endangerment during implementation of work on the Property;
(8) Provision regarding Administering Agency and Department, if the Department is not the Administering Agency, access to the Property;
(9) Provision regarding sampling, data, and document availability and preservation;
(10) Provision regarding notifications of field activities and any condition posing an immediate threat to public health or safety or the environment on the Property;
(11) Provision regarding the Borrower's liability related to activities on the Property;
(12) For ISCP Loans, provision regarding the Department's oversight costs for the preparation and approval of a PEA on the Property required by the Department, and for CLEAN Loan Program Loans, provision regarding the Administering Agency's costs for oversight of any Response Action on the Property;
(A) A Borrower is liable for paying the Administering Agency's oversight costs pursuant to section 25395.28 of the Health and Safety Code, associated with the oversight of the preparation and approval of the PEA or the Response Action unless the Department determines there are sufficient funds in the Account to reimburse the Administering Agency for that oversight;
(B) If the Department determines that the Account has insufficient funds to pay for the oversight costs associated with the oversight of the preparation and approval of the PEA or the Response Action, the Borrower shall pay the Administering Agency's costs as specified under section 25395.28 of the Health and Safety Code. If the Department makes a determination that the Account has insufficient funds to pay for the oversight costs after a Loan Agreement has been executed, the Department will notify the Borrower that the Borrower will be billed for the Administering Agency's oversight costs as specified under section 25395.28 of the Health and Safety Code, that are not reimbursed from the Account;
(C) The Department shall reimburse the State Board or Regional Board only if the conditions in 25395.28(g) are met; and
(13) Any other provisions as agreed by the parties determined to be necessary by the Administering Agency.
(b) An ISCP Environmental Oversight Agreement shall also include, at a minimum, the following:
(1) Requirement to conduct the PEA in accordance with the Department's guidelines as specified in paragraphs (1)-(3) of subdivision (d) of section 68205;
(2) Requirement that the Borrower shall complete the PEA for the Property even if the Loan amount does not finance the complete cost of the PEA or shall meet the requirements of paragraph (5) of subdivision (e) of section 68210 if the Borrower decides not to complete the PEA;
(3) Agreement by the Borrower to provide any and all PEA results to the Department if the Borrower does not proceed with the Project.
(c) A CLEAN Loan Program Response Action Agreement shall also include, at a minimum, the following:
(1) Identification of the Project Coordinator and description of the Project Coordinator's qualifications;
(2) Scope of work that includes tasks needed to complete all Response Actions for the Property including Operation and Maintenance and land use restrictions, if applicable;
(3) Requirement that work undertaken on the Property shall be conducted by a qualified Project Coordinator with expertise in Hazardous Materials site investigation and cleanup and that all engineering and geological work shall be conducted in conformance with applicable State laws including, but not limited to, Business and Professions Code sections 6735 and 7835;
(4) In order to provide for the possibility that the Loan amount may not cover the full cost of the Response Action:
(A) For a Borrower that is a responsible party as defined in section 25323.5 of the Health and Safety Code, a requirement to complete all Response Actions for the Property even if the Loan amount does not finance the complete cost of the Response Action; or
(B) For a Borrower that is not a responsible party as defined in section 25323.5 of the Health and Safety Code or a Person subject to regulation under chapter 6.7 (commencing with section 25280) or chapter 6.75 (commencing with section 25299.10) of the Health and Safety Code, a provision regarding the requirements of paragraph (2) of subdivision (f) of section 68210 if the Borrower notifies the Administering Agency and the Department the Borrower has determined the Project is no longer economically feasible;
(5) Provision for all removal actions, remedial actions, California Environmental Quality Act documentation, remedial design and implementation, and any other activities necessary for the Administering Agency's approval of the Response Action.
Note: Authority cited: Sections 25150, 25351.5, 25395.29 and 58012, Health and Safety Code. Reference: Sections 25395.21, 25395.25, 25395.27, 25395.28 and 25395.31, Health and Safety Code.
s 68212. Compliance.
(a) The Borrower shall comply with all federal, State, and local laws, ordinances, regulations and permits that apply to the procurement and management of consultant services and contracts related to correcting existing or possible non-compliance problems;
(b) Administering Agency and Department, if the Department is not the Administering Agency, staff may conduct field inspections during the Project to verify compliance with the approved plans, specifications, and terms of the Loan Agreement, the ISCP Environmental Oversight Agreement, the CLEAN Loan Program Response Action Agreement, or other enforceable agreements with the State Board or a Regional Board;
(c) The Borrower shall provide quarterly site reports indicating work completed on the Property, work in process, and Project expenditures;
(d) The Borrower shall maintain records in accordance with generally accepted accounting standards and with the CLEAN Loan Program Response Action Agreement and ISCP Environmental Oversight Agreement, including all Project expenditures and disbursements; and
(e) The Borrower shall comply with all terms and conditions of the CLEAN Loan Program Response Action Agreement and ISCP Environmental Oversight Agreement or other enforceable agreement with the State Board or a Regional Board.
Note: Authority cited: Sections 25150, 25351.5, 25395.29 and 58012, Health and Safety Code. Reference: Sections 25395.21, 25395.22, 25395.23, 25395.27 and 25395.28, Health and Safety Code.
s 68213. Program Administration.
Condition of the Loan, Loan Processes, Repayment, and Loan Closing Functions will be governed and administered by the Department.
Note: Authority cited: Sections 25150, 25351.5, 25295.29 and 58012, Health and Safety Code. Reference: Sections 25395.21 and 25395.22, Health and Safety Code.
s 68214. Auditing of Expenditure of Loan Proceeds.
(a) The Department, Department of Finance, State Controller or State Auditor, or their designated representatives, may audit the expenditure of the proceeds of any Loan disbursed under this article; and
(b) The Borrower shall allow the Administering Agency and the Department, if the Department is not the Administering Agency, and other State agencies, including the State Controller and the State Auditor, or their designated representatives, absolute right of access to all of the Borrower's records pertaining to the Loan Agreement. Any portion of the Borrower's records requested shall be made available to the designated auditors upon request. The Borrower shall retain all relevant financial records for at least three (3) years after termination of the Loan Agreement, or until completion of actions and resolution of all issues that may arise as a result of any litigation, claim, negotiation or audit concerning the Loan Agreement, ISCP Environmental Oversight Agreement, or CLEAN Loan Program Response Action Agreement or other enforceable agreement required by the Administering Agency, whichever is later.
Note: Authority cited: Sections 25150, 25351.5, 25395.29 and 58012, Health and Safety Code. Reference: Sections 25395.21, 25395.22, 25395.27 and 25395.28, Health and Safety Code.
Appendix 1 to Chapter 47, Article 1
"Urbanized Areas"
Subdivision (ss) of section 68202 defines "Urban Area" to include urbanized areas as defined in paragraph (2) of subdivision (b) of section 21080.7 of the Public Resources Code. This Appendix further describes urbanized areas in California.
On March 9, 1992, the United States Census Bureau published in the Federal Register the list of urbanized areas that qualified based on the results of the 1990 Census. (57 Fed. Reg. 8386 (1992))
According to the United States Census Bureau, an urbanized area comprises one or more places and the adjacent densely settled surrounding territory that together have a minimum of 50,000 people. A central place and an urban fringe together make up an urbanized area. The urban fringe generally consists of contiguous territory with a density of at least 1,000 people per square mile. Additional territory may qualify as urban fringe (e.g. if there is a road connection from a densely populated area to a central place). The complete criteria are available from the Chief, Geography Division, U.S. Bureau of the Census, Washington, DC 20233.
There are 38 urbanized areas in California. These are:
Antioch-Pittsburg Riverside-San Bernardino
Bakersfield Sacramento
Chico Salinas
Davis San Diego
Fairfield San Franciso-Oakland
Fresno San Jose
Hemet-San Jacinto San Luis Obispo
Hesperia-Apple Valley-Victorville Santa Barbara
Indio-Coachella Santa Cruz
Lancaster-Palmdale Santa Maria
Lodi Santa Rosa
Lompoc Seaside-Monterey
Los Angeles Simi Valley
Merced Stockton
Modesto Vacaville
Napa Visalia
Oxnard-Ventura Watsonville
Palm Springs Yuba City
Redding Yuma AZ-CA (California portion only)
s 68300. Definitions.
Unless the context indicates otherwise and except as provided in this section, the definitions set forth in Chapter 6.8, Division 20, of the Health and Safety Code (commencing with section 25300) govern the interpretation of this Article. For purposes of this Chapter, the following definitions apply:
(a) "Applicant" means one of the following that has submitted an application package for a loan (1) a city, town, district, county, or other public body (including an intermunicipal agency of two or more of the foregoing entities) created under State law, or (2) an Indian tribe or authorized Indian tribal organization having jurisdiction over disposal of sewage, industrial wastes, or other waste, or (3) a designated and approved management agency under section 208 of the Federal Clean Water Act applying for a State Revolving Fund (SRF) loan, or (4) a local public agency with specific authority to conduct groundwater remediation projects.
(b) "EPA" means the United States Environmental Protection Agency.
(c) "Department" means the Department of Toxic Substances Control.
(d) "Groundwater Remediation Project" means actions that are necessary to prevent, minimize, or mitigate damage that may result from a release or threatened release of a hazardous substance to groundwater and that, when carried to completion, allows the groundwater to be permanently used for its planned use without any significant risk to human health or significant potential for future environmental damage or for designated beneficial uses.
(e) "Loan" means a loan from the State Revolving Fund Loan Subaccount for the purposes of providing loans under Article 3, section 79133 of the Water Code.
(f) "Loan Agreement" means the written agreement between the applicant and the Department made in accordance with Section 68305.
(g) "Site Coordinator" means the person or persons with demonstrated expertise and experience in planning, designing, constructing, and operating groundwater remediation projects and who have been identified as responsible for managing the groundwater remediation project.
Note: Authority cited: Sections 25150 and 25351.5, Health and Safety Code; and Section 79133, Water Code. Reference: Section 79133, Water Code.
s 68301. Loan Eligibility.
The applicant must demonstrate, through the loan application process, that the groundwater in the area of the proposed groundwater remediation project poses a risk or potential risk to public health and the environment due to the release of hazardous substances.
Additionally, the applicant will need to show repayment ability based on the historical financial statements and/or income tax returns.
Note: Authority cited: Sections 25150 and 25351.5, Health and Safety Code; and Section 79133, Water Code. Reference: Section 79133, Water Code.
s 68302. Priority Ranking Criteria.
The Department shall prioritize projects for each fiscal year using the following criteria:
(a) The Groundwater Remediation Loan Program application package is received by August 30 and deemed complete.
(b) Sites listed pursuant to section 25356 of the Health and Safety Code.
(c) Sites listed on the State Water Resources Control Board's Statewide Project Priority List.
(d) The readiness of the loan applicant to proceed with the groundwater remediation project.
(e) Scope of project including (1) the degree to which the groundwater supply has been impacted, such as being taken out of service, and (2) the extent to which remediation will prevent migration of contaminants.
(f) Number of users affected.
(g) Effectiveness of the groundwater remediation project, including the amount of water to be treated and made available for use.
Note: Authority cited: Sections 25150 and 25351.5, Health and Safety Code; and Section 79133, Water Code. Reference: Section 79133, Water Code.
s 68303. Application Content.
Application packages shall contain the following information:
(a) Applicant /Site Coordinator Information:
(1) The applicant's name, address, and phone number.
(2) The site coordinator's name, address, and phone number, if it is different from the applicant's. Also attach resume of the applicant's site coordinator.
(3) A certified copy of a resolution adopted by the governing authority of the applicant agency that authorizes a representative (by title) to act on behalf of the applicant agency to sign documents such as contracts, disbursement requests, as well as assure compliance with applicable state statutory and regulatory requirements.
(4) A certified copy of a resolution adopted by the governing authority of the applicant agency that specifies the authorized loan amount for the applicant agency.
(5) Applicant's relationship to the project site.
(6) Description of local government or agency's activities and responsibilities.
(7) Current property owner's name, addresses and phone number.
(8) List technical support personnel (by classification) who will be working on the project.
(9) A letter requesting consideration for available loan funds with the signature of the applicant/authorized representative.
(b) Project/Site Information:
(1) Proposed location of the remediation work, including a legal description of the property boundaries and assessor's parcel number(s).
(2) Description of current project site use.
(3) Project description of overall areas impacted and Statement of Work. If the treated groundwater is to be returned to aquifers, the application shall include a list of public water systems that use the affected aquifers as sources of drinking water, and the means by which the applicant shall inform those water systems of the project.
(4) Brief analysis of engineering/project alternatives considered and an explanation of why the proposed project description was chosen.
(5) List of previous uses of the project site.
(6) Applicant's prior experience in implementing similar groundwater remediation projects.
(7) Applicant's ability to obtain the necessary permits if treated groundwater is reused for drinking water supply. (If the treated groundwater is to be directly used for drinking water supply, then the applicant must comply with the requirements of the Department of Health Services and seek the appropriate permits.)
(8) Information regarding the impacts that the project site conditions or the proposed response actions may have on: the geological features of the project site; land use planning; public health and safety; the local population and housing in the vicinity of the project site; water quality; air quality; traffic and transportation; ecological and biological resources; energy and mineral resources; noise levels; public service systems and utilities; local aesthetics; cultural resources; and recreation. The proposed groundwater remediation project must comply with the California Environmental Quality Act (CEQA) in accordance with section 21000-21178 of the Public Resources Code and the State CEQA guidelines (14 CCR 15000-15387).
(9) A proposed project timeline with dates that show the beginning and ending date for the various phases of work identified in the Statement of Work.
(c) Financial Information/Project Costs:
(1) Supporting documentation concerning source of loan repayment, including but not limited to annual financial operating statements.
(2) Information on existing bank loans and other types of debt, including names of bank officers and officials and contact information as appropriate. Provide documentation indicating the ability of the applicant to repay the loan and to obtain conventional financing absent a loan under this program.
(3) An ordinance or resolution committing a source or sources of funds for repayment. The ordinance or resolution shall contain language equivalent to the following: "The (name of agency) hereby dedicates the following source of revenue (list source or sources) for repayment of any and all groundwater remediation loans on the project (identify the project name) to be funded through the Groundwater Remediation Loan Program."
(4) Estimate of project costs.
(d) Any further information or documentation deemed necessary by the Department to determine the credit worthiness of the applicant or the applicant's ability to secure and repay the loan.
Note: Authority cited: Sections 25150 and 25351.5, Health and Safety Code; and Section 79133, Water Code. Reference: Section 79133, Water Code.
s 68304. Application Process.
(a) An applicant may apply for a loan for a groundwater remediation project by submitting a completed Groundwater Remediation Loan package to the Department by August 30 of any fiscal year. The Department may disburse loans until the approximately seven million dollars ($7,000,000) of Water Bond Act funding, less administrative costs, is expended.
(b) The Department will make a determination by August 30 of each fiscal year whether Water Bond Act funds are available under section 79133 of the Water Code. The determination will also include the funding level available.
(c) The Groundwater Remediation Loan package sets forth the information required by the Department to determine if the groundwater remediation project is eligible for funding under section 79133 of the Water Code. The Department will not consider the application complete until all required information is received.
(d) The Groundwater Remediation Loan package shall be signed by a legally authorized representative of the applicant and submitted to the California Environmental Protection Agency, Department of Toxic Substances Control. Application packages may be mailed to the Department at P.O. Box 806, Sacramento, California 95812-0806. The applicant shall provide the Department with three (3) copies of the application package with original signatures and all accompanying support documentation.
(e) Staff will review each application package for completeness and determine whether the applicant and the applicant's project are eligible to receive loan funding under section 79133 of the Water Code, including credit worthiness of the applicant. Within sixty (60) days of receiving an application, Department staff will notify the applicant by letter of one of the following:
(1) The applicant or the applicant's project is ineligible for a loan. If the applicant or the applicant's project is determined to be ineligible, the reasons for the Department's determination will be provided in writing to the applicant. The applicant will have 10 days to submit additional information needed, if such information may make the project eligible; or
(2) The application package is incomplete. If the package is determined to be incomplete, the Department will specify the steps in writing, if any, that the applicant may take to correct identified deficiencies. The applicant will have 10 days to submit additional information needed to complete the application package, or
(3) The applicant and applicant's project are eligible for a loan.
(f) Upon the Department's determination that the loan application package is complete, the package will be considered for prioritization with other eligible projects. The eligible loan application packages will be ranked each fiscal year based on criteria established in Section 68302, Priority Ranking Criteria.
(g) Applicants will be notified in writing when their projects are approved for loan funding.
Note: Authority cited: Sections 25150 and 25351.5, Health and Safety Code; and Section 79133, Water Code. Reference: Section 79133, Water Code.
s 68305. Loan Agreement.
The Department and the applicant shall enter into a loan agreement after approval of the loan. Each loan agreement shall include at a minimum the following terms and conditions:
(a) The interest rate of the loan as specified in Section 68307.
(b) The term of repayment for a loan as specified in Section 68308.
(c) The legal description of the property(ies) where the groundwater remediation project is to occur.
(d) Agreement that the applicant shall complete all activities outlined in the applicant's Statement of Work, as determined to be appropriate by the Department.
(e) Time frames for complying with the conditions of loan closing:
(1) Any special conditions that must be satisfied prior to closing, and
(2) Any covenants that must be complied with after the disbursement of funds.
(f) Identification of what is considered an event of default, including the provisions in subsections (1) and (2) below. A default will result in any remaining unpaid amount of the loan, with accrued interest, to be immediately due and payable, upon determination by the Department that:
(1) The applicant has failed to comply with the loan agreement.
(2) Any information provided by the applicant is untrue.
(g) A provision that the applicant agrees to waive any claims against, and hold harmless, the State of California, including the Department and the State Water Resources Control Board, from and against any and all claims, costs, and expenses stemming from operation, maintenance, or environmental degradation at the site.
(h) Proof of insurance for the applicant, naming the Department and the State Water Resources Control Board as loss payee, up to the amount of the loan.
Note: Authority cited: Sections 25150 and 25351.5, Health and Safety Code; and Section 79133, Water Code. Reference: Section 79133, Water Code.
s 68306. Loan Administration.
Condition of the loan, loan processes, repayment, and loan closing functions shall be governed and administered by the Department or the State Water Resources Control Board through a memorandum of understanding.
Note: Authority cited: Sections 25150 and 25351.5, Health and Safety Code; and Section 79133, Water Code. Reference: Section 79133, Water Code.
s 68307. Interest Rate.
To the extent permitted by federal law, the interest rate shall be set at a rate equal to 50 percent of the interest rate paid by the State on the most recent sale of State general obligation bonds and the interest rate shall be computed according to the true interest cost method.
Note: Authority cited: Sections 25150 and 25351.5, Health and Safety Code; and Section 79133, Water Code. Reference: Sections 13480 and 79133, Water Code.
s 68308. Loan Repayment.
The Department's Groundwater Remediation Loan Program will provide loans for groundwater remediation projects that meet the priority ranking criteria in Section 68302 of these regulations until all funds in the account have been loaned or otherwise expended. All loan repayments shall require annual payments of principal and any interest, with repayment commencing not later than one year after completion of the project for which the loan is made and full amortization not later than 20 years after project completion in accordance with Water Code section 13480(b)(1)(B), and payments will be deposited in the State Revolving Fund Loan Subaccount, Clean Water Program, as administered by the State Water Resources Control Board. Loan repayments may be used by the State Water Resources Control Board to fund other projects or activities as specified by the Clean Water Program.
Note: Authority cited: Sections 25150 and 25351.5, Health and Safety Code; and Section 79133, Water Code. Reference: Section 13480(b)(1)(B) and 79133, Water Code.
s 68309. Auditing Expenditures of Loan Proceeds.
The Department or the Department of Finance may audit the expenditures of the proceeds of any loan disbursed under this Article. Specific audit requirements shall be part of the loan agreement. The State reserves the right to call for a program audit or a financial audit at any time between the execution of the loan agreement and the completion or termination of the project.
Note: Authority cited: Sections 25150 and 25351.5, Health and Safety Code; and Section 79133, Water Code. Reference: Section 79133, Water Code.
s 68400. Applicability.
Note: Authority cited: Sections 25150 and 58012, Health and Safety Code. Reference: Sections 25173.6, 25187, 25200.10, 25200.14, 58009 and 58010, Health and Safety Code.
s 68400.1. Definitions.
Note: Authority cited: Sections 25150 and 58012, Health and Safety Code. Reference: Sections 25173.6, 25187, 25200.10, 25200.14, 58009 and 58010, Health and Safety Code.
s 68400.2. Corrective Action Requirements.
Note: Authority cited: Sections 25150 and 58012, Health and Safety Code. Reference: Sections 25173.6, 25187, 25200.10, 25200.14, 58009 and 58010, Health and Safety Code.
s 68400.11. Applicability.
(a) The provisions of this chapter establish criteria and procedures for determining whether or not a unified program agency is qualified to implement environmental assessment and corrective action pursuant to Health and Safety Code sections 25187, 25187.1, and 25404.1. Except as otherwise specified in this chapter, the provisions of this chapter are not intended to, and shall not be construed to, preclude any other state or local agency from exercising its enforcement or regulatory authority.
(b) The corrective action authority granted to a unified program agency (UPA) pursuant to this chapter is limited to a release or threatened release of a hazardous waste or hazardous constituent occurring at a facility within the jurisdiction of a qualified UPA.
(c) A qualified UPA shall comply with all applicable state laws and regulations and local ordinances pertaining to environmental assessment and corrective action.
(d) The authority granted pursuant to this chapter does not limit an UPA's authority to take enforcement action authorized by or in accordance with local ordinances or resolutions, to the extent that local ordinances or resolutions are not inconsistent with the provisions of this chapter.
(e) Upon discovering a release or threatened release at a hazardous waste facility that is, or was, required to obtain a hazardous waste facility permit, standardized permit or interim status, a qualified UPA shall immediately notify the Department. If a release occurs at such a facility and the facility also contains units that are or were subject to generator requirements, or Permit By Rule or Conditional Authorization or Conditionally Exempt requirements, a qualified UPA shall notify and coordinate with the Department.
(f) The Department and a qualified UPA are the only agencies authorized to implement and enforce the environmental assessment and corrective action requirements of Health and Safety Code section 25404.1.
(1) If the Department determines that a qualified UPA has not adequately implemented or enforced environmental assessment or corrective action requirements in accordance with this chapter, the Department may issue an order pursuant to Health and Safety Code section 25187 or section 25187.1.
(2) A qualified UPA may refer sites for corrective action to the Department.
(g) If at any time, an UPA determines that a site requires corrective action that is beyond the activities delegated to the agency or the expertise of the agency, the UPA shall refer the site to the Department.
(h) A qualified UPA shall comply with the California Environmental Quality Act (CEQA), Public Resources Code section 21000 et seq, whenever any activity or action required by this chapter is a project subject to CEQA.
(i) A qualified UPA shall not implement and enforce environmental assessment or corrective action requirements when any of the following applies:
(1) Environmental assessment or corrective action is required at any hazardous waste facility that is or was required to obtain a permit or other forms of authorization pursuant to the Resource Conservation and Recovery Act (RCRA).
(2) The Department has issued an order or agreement for corrective action at the site pursuant to Health and Safety Code section 25187 or section 25187.1.
(3) The site has been determined to be the responsibility of the Department pursuant to an agreement entered into between the Department and the UPA.
(4) The source of the release or threatened release is a facility or hazardous waste management unit or an activity that is, or was, regulated by the Department pursuant to Health and Safety Code, Division 20, Chapter 6.5 (commencing with section 25100), unless the source meets the conditions of paragraph (b) of this section.
(5) The Department is conducting, or has conducted, oversight of the corrective action at the site at the request of the responsible party.
(6) A site is subject to a Cease and Desist Order issued pursuant to Water Code section 13301 or a Cleanup and Abatement Order issued pursuant to Water Code section 13304.
(7) The Site Designation Committee has determined the administering agency for a site to be either the Department, a Regional Water Quality Control Board, or the Department of Fish and Game, pursuant to Health and Safety Code section 25262.
(j) The Department, qualified UPA, or responsible party conducting or requiring corrective action shall ensure that all engineering and geological interpretations, conclusions and recommendations are developed in accordance with applicable state law, including, but not limited to, Business and Professions Code sections 6735 and 7835. The Department, qualified UPA, or responsible party shall ensure that all risk assessment and toxicological interpretations, conclusions and recommendations are conducted by a professional with one of the following:
(1) Certification as a Diplomate of the American Board of Toxicology, or
(2) Possession of a Master's Degree in Toxicology, Biochemistry, Pharmacology or a closely related specialty from an accredited college or university and three years of experience following the receipt of the Master's Degree in designing and managing toxicological studies, interpreting results, and conducting hazard and safety evaluations; or
(3) Possession of a Doctoral Degree in Toxicology, Biochemistry or Pharmacology, or a closely related specialty, and one year of experience following the receipt of the Doctoral Degree in designing and managing toxicological studies, interpreting results, and conducting hazard and safety evaluations.
Note: Authority cited: Sections 25150, 25404.1 and 58012, Health and Safety Code. Reference: Section 25187, 25187.1, 25200.3, 25200.10, 25200.14, 25356.1 and 25404.1, Health and Safety Code.
s 68400.12. Definitions Applicable to this Chapter.
Unless otherwise defined herein, the definitions of terms used in this chapter shall be those in Division 20 of the Health and Safety Code and section 66260.10 of this division. For the purposes of this chapter, the following definitions apply:
"Administrative enforcement order" means an order or consent agreement issued pursuant to Health and Safety Code section 25187.
"Administrative record file" means a record maintained by the UPA that consists of all documents the UPA relied upon or considered when selecting, taking or requiring corrective action pursuant to this chapter.
"Application" means a request submitted by a Unified Program Agency to the Department for a determination of qualification to implement the environmental assessment and corrective action portions of the unified program pursuant to Health and Safety Code section 25404.1.
"Certified Unified Program Agency" or "CUPA" means an agency as defined in Title 27, California Code of Regulations, subsection 15110(a), that has been certified by the secretary to implement the Unified Program.
"Corrective action" means activities taken to investigate, characterize, evaluate, correct, remove, or remediate a release or threatened release of a hazardous waste or constituent, as necessary to protect public health and/or the environment.
"Department" means the Department of Toxic Substances Control.
"Hazardous constituent" has the meaning set forth in section 66260.10 of this division.
"Hazardous waste" has the meaning set forth in Health and Safety Code section 25117.
"Less complex site" means a site at which all of the following conditions apply:
(1) the site characterization, performed as part of the site investigation required pursuant to subsection 68400.16(d)(3), indicates the presence of only those chemicals listed in Appendix I of this chapter. The chemicals listed in Appendix I are among the chemicals for which advisory screening numbers have been developed by the California Environmental Protection Agency pursuant to Health and Safety Code section 57008;
(2) the selected remediation alternative at the site consists only of removal of no more than 60 cubic yards of contaminated soil, as measuredin situ;
(3) the human health screening evaluation, performed as part of the preliminary endangerment assessment required pursuant to subsection 68400.16(d)(2), indicates that the remaining contamination at the site does not pose a significant threat to human health, as determined by a risk estimation greater than or equal to 10 -6 or a hazard index greater than one resulting from the summation of risk/hazard for all media, and
(4) the release has been adequately characterized as determined by the Department or qualified UPA.
"Local oversight program" means the program in which local agencies oversee corrective actions at underground storage tank sites through a contract with the State Water Resources Control Board pursuant to Health and Safety Code section 25297.1.
"Phase I environmental assessment" has the meaning set forth in Health and Safety Code section 25200.14.
"Preliminary endangerment assessment" has the meaning set forth in Health and Safety Code section 25319.5.
"Qualified UPA" means an agency delegated by the Department to implement and enforce the environmental assessment and corrective action pursuant to Health and Safety Code section 25404.1.
"Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment, including the abandonment or discarding of barrels, containers, and other closed receptacles containing hazardous waste, hazardous constituents, hazardous substances or hazardous materials.
"Risk assessment" means a risk-based system of analysis used to characterize the current and potential threats to human health and the environment that may be posed by contaminants migrating to groundwater or surface water, releasing to air, leaching through soil, remaining in the soil and bioaccumulating in the food chain.
"Site" means any site, area or facility, including, but not limited to, any building, structure, installation, equipment, pipe or pipeline, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock or aircraft, where any hazardous waste, hazardous constituent, hazardous substance or hazardous material has been treated, stored, transferred, disposed of, deposited, placed, released, or has otherwise come to be located.
"Technical staff" means staff assigned to oversee environmental assessments and corrective action.
"Unified Program Agency" or "UPA" means the agency as defined in Health and Safety Code subsection 25404(a)(1)(C).
Note: Authority cited: Sections 25150, 25404.1 and 58012, Health and Safety Code. Reference: Sections 25187, 25187.1, 25200.3, 25200.10, 25200.14, 25356.1 and 25404.1, Health and Safety Code.
s 68400.13. Qualification Tiers.
Except as provided in section 68400.11(i) of this chapter, a qualified UPA may implement and enforce only those parts of the environmental assessment and corrective action program that have been delegated by the Department pursuant to Health and Safety Code section 25404.1, as described below:
(a) A qualified UPA with a Tier 1 level of qualification, as defined in section 68400.14, shall be qualified to do the following at a facility within the jurisdiction of the UPA:
(1) Review phase I environmental assessments, as defined in Health and Safety Code section 25200.14 (Phase I) for completeness and accuracy;
(2) Inspect permit-by-rule facilities and facilities with conditional authorization for Phase I compliance;
(3) Enforce compliance with Phase I requirements;
(4) Review further investigation schedule, as defined in Health and Safety Code section 25200.14, to determine if a release from solid waste management unit or hazardous waste management unit requires corrective action;
(5) Implement and enforce the corrective action program at applicable less complex sites, as defined in subsection 68400.12 of this chapter;
(6) Issue an order specifying corrective action pursuant to Health and Safety Code section 25187 only for less complex sites to be conducted in accordance with applicable state laws and regulations and section 68400.16 of this chapter;
(b) A qualified UPA with a Tier 2 level of qualification, as defined in section 68400.14, is qualified to conduct the following activities at a facility within the jurisdiction of the UPA:
(1) All of Tier I activities;
(2) Implement and enforce corrective action at applicable sites in addition to less complex sites, except as provided in subsection 68400.11(i);
(3) Issue an order under Health and Safety Code section 25187 for corrective action in accordance with applicable state laws and regulations and section 68400.16 of this chapter.
Note: Authority cited: Sections 25150, 25404.1 and 58012, Health and Safety Code. Reference: Sections 25187, 25187.1, 25200.3, 25200.10, 25200.14, 25356.1 and 25404.1, Health and Safety Code.
s 68400.14. Unified Program Agency Qualification Criteria.
(a) A qualified UPA with Tier 1 level of qualification shall meet the following Tier 1 criteria:
(1) Personnel Expertise Requirements.
(A) UPA personnel designated to perform the activities of Tier 1 as described in subsection 68400.13(a) and section 68400.16 shall have educational background and technical expertise sufficient to perform the activities of Tier 1 as described in subsection 68400.13(a) and section 68400.16 in accordance with all applicable state laws and regulations, including the requirements of either subparagraph 1 or subparagraph 2, and subparagraph 3 and subparagraph 4 below:
1. Educational background shall consist of a degree from a college or university with a minimum of 60 semester units in the following areas of study:
a. environmental, biological, chemical, physical, or soil science;
b. environmental or public health;
c. environmental, civil or chemical engineering; or
d. directly related scientific field;
2. As an alternative to the requirements of subparagraph 1 above, the UPA personnel may satisfy the educational background requirements by possessing qualifications, knowledge and abilities that are equivalent to those for the Hazardous Substances Scientist, Hazardous Substances Engineer, or Engineering Geologist Classes defined by the California State Personnel Board in the following documents, incorporated herein by reference:
a. Hazardous Substances Scientist, Series Specification, established July 1, 1994;
b. Hazardous Substances Engineer, Series Specification, established June 21, 1994 and revised January 19, 2000;
c. Engineering Geologist, Series Specification, established September 24, 2002.
3. Technical expertise shall include two consecutive years of experience in hazardous materials management, regulation, analysis, or research, environmental research, monitoring, surveillance or enforcement, or resource recovery.
4. Technical expertise shall also consist of documented training or proficiency in the fields of hydrogeology, fate and transport, environmental chemistry, toxicology, preliminary endangerment assessment, quality assurance and quality control for analytical results, and statistics. Additional training in other technical disciplines related to site characterization and cleanup activities will be considered for its applicability to this requirement. This training shall be sponsored by a credible program, including, but not limited to a state or federal agency, university extension, community college, or qualified UPA.
(B) Documentation of UPA Personnel Expertise. An UPA shall submit with its application documentation demonstrating that UPA personnel meet the educational and technical expertise requirements as described in subsection (a)(1)(A).
(2) UPA Past Experience.
(A) An UPA qualified in Tier 1 shall have the ability to issue administrative enforcement orders, and at least two years of experience conducting hazardous waste generator inspections. The required experience shall have been acquired in the two years prior to the date the application is submitted to the Department. A Tier 1 UPA shall also have one of the following:
1. Participation in a Site Designation program pursuant to Health and Safety Code section 25262;
2. At least three years of experience participating in a Local Oversight Program; or
3. At least three years of experience conducting response actions.
(B) Documentation of Past Experience. An UPA shall submit with its application documentation demonstrating that it has experience, as described in paragraph (2)(A) as follows:
1. Most recent UPA triennial final Evaluation Report as required by California Code of Regulations, title 27, section 15530.
2. A certification that indicates an UPA has the ability to issue an administrative enforcement order, if not included in the most recent UPA triennial final Evaluation Report; and
3. Narrative descriptions of three relevant projects completed in the last three years or in progress that most clearly demonstrate the UPA's experience, specifying responsible staff and their expertise, a description of relevant project tasks and methods for overcoming technical obstacles.
(3) A qualified UPA shall have the ability to implement environmental assessment and corrective action for the tier delegated, pursuant to Health and Safety Code section 25404.1 in accordance with this chapter. (continued)