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(continued) on with the state board.
(c) The state board or executive director, when acting as the state board's designee, may hold action on a petition in abeyance if agreed upon in writing by the petitioner and the applicant (if not the petitioner).
(d) An aggrieved person may petition the state board or executive director, when acting as the state board's designee, for a stay of the effect of an action under this Chapter by a regional board, executive officer, or the executive director (state board only). Petitions for a stay are subject to the following requirements:
(1) A stay shall be granted only if the petitioner alleges facts and produces proof of:
(A) substantial harm to the petitioner or to the public interest if the stay is not granted;

(B) lack of substantial harm to other interested persons and the public interest if a stay is granted, or the harm which would result from the stay being granted substantially outweighed by the harm which would occur if no stay is granted; and
(C) substantial questions of fact or law regarding the disputed action.
(2) A petition for a stay shall be supported by an affidavit from a person or persons having knowledge of the facts alleged. Upon a documented showing by the petitioner that it complies with the prerequisites for a stay, the state board or the executive director (when not the originator of the action in question) may hold a hearing. A request for a stay may be issued or denied without a hearing. If a hearing is held, notice shall be given in such manner and to such persons, in addition to the petitioner, as the board or executive director (when not the originator of the action in question) deems appropriate.
(3) Nothing in Subsection 3869(d)(1) of this Chapter shall preclude the state board or executive director, when acting as the state board's designee, from issuing a stay of the effect of an action under this Chapter by a regional board, an executive officer, or the executive director (state board only), upon their own motion. The requirement for an affidavit may be waived by the state board or the executive director (when not the originator of the action in question).


Note: Authority cited: Section 1058, Water Code. Reference: 26 USC Section 169, 40 CFR Section 20; 15 USC Section 636, 40 CFR Section 21; 33 USC Section 1341; Sections 7, 183, 186 and 1059, Water Code; and Sections 44533 and 44539, Health and Safety Code.





s 3870. Definitions.
As used in this chapter:
(a) "Architectural, landscape architectural, engineering, environmental, and land surveying services," "construction project management," and "environmental services" have the same meaning as defined in Section 4525 of the Government Code.
(b) "Board" means either the State Water Resources Control Board or a California Regional Water Quality Control Board.
(c) "Disabled veteran business enterprise" has the same meaning as defined in Section 999 of the Military and Veterans Code.
(d) "Emergency" has the same meaning as defined in Section 1102 of the Public Contract Code.
(e) "Firm" means an individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice the profession of architecture, landscape architecture, engineering, environmental services, land surveying, or construction project management.
(f) "Small business firm" has the same meaning as defined in Section 14837 of the Government Code.


Note: Authority cited: Section 4526, Government Code. Reference: Sections 4525-4529.10 and 14837, Government Code; Section 999, Military and Veterans Code; and Section 1102, Public Contract Code.





s 3871. Establishment of Criteria.
(a) Each time the board intends to contract with a firm for a service identified in Section 3870, subdivision (a), the board shall utilize the following criteria for selecting a firm:
(1) the firm's professional experience in performing similar services;
(2) the quality and timeliness of the firm's recently completed or ongoing work;
(3) the firm's reliability, continuity, and location;
(4) the firm's staffing capability;
(5) the education and experience of key personnel the firm intends to assign to the contract;
(6) the firm's knowledge of applicable regulations and technology associated with the services required; and
(7) other factors the board deems relevant to the specific task to be performed.
(b) The board shall weigh the factors identified in subdivision (a) according to the nature of the proposed project, the complexity and special requirements of the specific project, and the needs of the board.


Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526, 4527, 4529.5 and 4529.12, Government Code.





s 3872. Announcement.
(a) The board shall publish a statewide announcement of the proposed project.
(b) In addition to the announcement specified in subdivision (a), the board may publish an annual statewide announcement requesting the submittal of qualifications from firms wanting to be included on regional lists of potentially available firms.
(c) An announcement issued pursuant to subdivision (a) or (b) shall be published in the California State Contracts Register, in accordance with title 2, division 3, part 5.5, chapter 6 of the Government Code (commencing with Section 14825), and in at least one print or electronic publication of an appropriate professional society. Failure of a professional society to publish the announcement shall not invalidate a contract. In addition to these publications, an announcement issued pursuant to subdivision (a) shall be sent to firms on current applicable annual regional lists, if any.
(d) The board may maintain a mailing list of firms that have requested announcements issued pursuant to subdivisions (a) or (b) and published pursuant to subdivision (c). The board may provide copies of announcements to those firms. Failure of the board to send a copy of an announcement to a firm shall not invalidate a contract.
(e) An announcement issued pursuant to subdivision (a) shall contain the following information:
(1) a description of the work to be performed;
(2) the criteria upon which the award will be based;

(3) submittal requirements and deadlines; and
(4) the name and phone number of a person to contact for further submittal information.
(f) An announcement issued pursuant to subdivision (b) shall contain the following information:
(1) a request for a statement of qualifications and performance data;
(2) a description of the type of services that the statement should address;
(3) an explanation of how the information will be used to hire firms, including geographical limitations and expiration dates;
(4) submittal requirements and deadlines; and
(5) the name and phone number of a person to contact for further submittal information.
(g) The board shall endeavor to identify potentially qualified small business firms interested in contracting with the board, and shall provide copies of the announcements to those small business firms that have indicated an interest in receiving the announcements. Failure of the board to send a copy of an announcement to a firm shall not invalidate a contract.


Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526, 4527 and 4529.12, Government Code.





s 3873. Selection of Qualified Firms.
(a) After the final response date stated in the announcement issued pursuant to Section 3872, subdivision (a), the board shall review the written responses to the announcement together with statements of qualifications submitted by firms on the current applicable annual regional list, if any, for the region in which the contract will be performed. The board shall evaluate submissions using the selection criteria contained in the announcement issued pursuant to Section 3872, subdivision (a). The board shall rank, in order of preference based on the criteria set forth in the announcement, the firms determined to be qualified to perform the required services.
(b) The board shall conduct interviews with no fewer than the three highest ranked firms to discuss qualifications and methods for furnishing the required services.
(c) From the interviewed firms, the board shall select, in order of preference, no fewer than three firms determined to be the most highly qualified to perform the required services.
(d) In the event the board concludes that there are fewer than three firms determined to be qualified to perform the required services, the board may proceed by interviewing all the firms determined to be qualified. Failure of the board to interview three firms shall not invalidate a contract if the board interviews all firms that the board determines to be qualified to perform the required services.


Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526, 4527 and 4529.12, Government Code.





s 3874. Estimate of Value of Services.
(a) Before interviewing a firm, the board shall prepare an estimate of the value of the proposed project based upon accepted rates for comparable services. The estimate shall serve as a guide during contract negotiations to evaluate a fair and reasonable compensation.
(b) If at any time the board determines its estimate to be unrealistic due to changing market costs, special conditions, or other relevant considerations, the board shall reevaluate and modify the estimate as necessary.
(c) The board's estimate shall remain confidential until the award of the contract or abandonment of any further procedure for the services to which it relates.


Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526, 4526.5, 4528 and 4529.12, Government Code.





s 3875. Contract Negotiation.
(a) The board shall implement the following procedure to negotiate fees and execute a contract:
(1) notify the successful firm of its selection;
(2) provide the firm with written instructions for the ensuing negotiations;

(3) begin negotiations within 14 days of the firm's receipt of selection notification or upon receipt of the firm's cost proposal or, if additional time is necessary, notify the firm of a later negotiation date;
(4) if an agreement is successfully negotiated, the board and the firm shall proceed to execute a contract so that the board may complete the contract within 45 days of the date the contract is signed by the board and the firm. The board shall notify the firm if additional time is necessary to complete the contract.
(b) The board shall attempt to negotiate a satisfactory contract with the firm most highly qualified to perform the required services, as selected according to Section 3873, at a compensation that the board determines is fair and reasonable. If the board is unable to negotiate a satisfactory contract, the board shall terminate negotiations with that firm. The board shall then proceed in the same manner with the other firms selected according to Section 3873, in the selected order.
(c) If the board is unable to negotiate a satisfactory contract with a selected firm, the board may make additional selections from the qualified firms, as provided for in Section 3873, and continue the negotiation process or may terminate the negotiation process.
(d) If the board is unable to negotiate a satisfactory contract with a qualified firm, the board shall abandon the negotiation process for the required services.


Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526, 4526.5, 4528 and 4529.12, Government Code; and Section 6106, Public Contract Code.





s 3876. Statewide Participation Goals.
Upon execution of a contract, unless waived by the board, the firm must meet the statewide participation goal of not less than three percent for disabled veteran business enterprises or demonstrate that a good faith effort was made to meet the goal, in order to comply with the statewide participation goals as required by Title 2, California Code of Regulations, sections 1896.60-1896.64.


Note: Authority cited: Section 4526, Government Code. Reference: Section 4528, Government Code; Sections 999, 999.2 and 999.3, Military and Veterans Code; Sections 10115, 10115.1 and 10115.2, Public Contract Code; and Monterey Mechanical Co. v. Wilson (9th Cir. 1997) 125 F.3d 702, 706, fn. 5, rehearing denied (1998) 138 F.3d 1270.





s 3877. Contract Amendments.
If the board determines that a change in the contract is necessary during performance of the contract, the parties may amend the contract, by mutual consent, in writing, and make a reasonable adjustment in the firm's compensation.


Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526, 4528 and 4529.12, Government Code.





s 3878. Contracting in Phases.
The board is not required to negotiate the total contract compensation provision when the contract is initially executed pursuant to Section 3875, subdivision (a)(4), if the following conditions are satisfied:
(a) the board determines it is necessary or desirable for a project to be performed in phases;
(b) the board determines that the firm is the most highly qualified to perform the entire project at a fair and reasonable price, excluding from consideration firms with whom negotiations have been terminated pursuant to Section 3875, subdivision (b); and
(c) The contract between the board and the firm provides that the board has an option to use the firm for other phases of the project and that the firm will accept a fair and reasonable price to be later negotiated in accordance with this chapter and reflected in a subsequent written instrument.


Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526, 4526.5, 4528 and 4529.12, Government Code; and Section 6106, Public Contract Code.





s 3879. Prohibited Practices.
(a) A board employee shall not participate in the selection process if the employee has a relationship, as specified in Section 87100 of the Government Code, with a firm seeking a contract subject to this chapter.
(b) The board shall require a contract entered pursuant to this chapter to include a provision in which the firm warrants that the contract was not obtained through rebates, kickbacks, or other unlawful considerations either promised or paid to a board employee. Failure to adhere to the warranty may be cause for contract termination and recovery of damages under the rights and remedies due the board under the default provision of the contract.
(c) Nothing in this chapter shall be construed to abridge the obligation of the board or the firm to comply with all laws regarding political contributions, conflicts of interest, or unlawful activities.


Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526, 4529.12 and 87100, Government Code.





s 3880. Application of Chapter.
(a) This chapter shall not apply when the board determines that the needed services are technical in nature, require little professional judgment, and it is in the public interest to require competitive bids.
(b) This chapter shall not apply when the board determines that these procedures are not required because an emergency condition exists.


Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526 and 4529, Government Code; and Section 1102, Public Contract Code.




s 3890. General Intent, Content, and Applicability of Regulations.
(a) The regulations in this Chapter are intended to provide electronic access to reports, including soil, vapor, and water data, prepared for the purpose of subsurface investigation or remediation of: (1) an unauthorized discharge or deposit of waste as defined in section 13050 of the Water Code, (2) an unauthorized release of a hazardous substance as defined in section 25281 of the Health and Safety Code, or (3) a discharge of waste to land subject to Division 2 of Title 27 or Division 3, Chapter 15, of Title 23 of the California Code of Regulations.
(b) The regulations in this Chapter require persons responsible for submitting certain reports to the State Board, a regional board, or a local agency to submit these reports electronically over the Internet to the State Board's Geotracker system.
(c) The requirements of this Chapter are in addition to, and not superseded by, any other applicable reporting requirements.
(d) Except as provided in Section 3895(b), the electronic reporting requirements of this Chapter are intended to replace requirements for the submittal of paper copies of reports, beginning July 1, 2005.


Note: Authority cited: Sections 13196 and 13198(c), Water Code. Reference: Sections 13196 and 13198, Water Code.




s 3891. Definition of Terms.
"COELT" is the United States Army Corps of Engineers Loading Tool program. It is a relational database application that is designed to run with the Microsoft Windows operating system. COELT places laboratory data into the standardized Electronic Deliverable Format (EDF). The program can accept data from Laboratory Information Management System (LIMS) or manually entered data. COELT is an optional software application that is intended to help laboratories that require new software to produce the EDF data deliverable. COELT includes a report utility that allows hard copy laboratory reports to be printed that match the actual electronic data. For purposes of the requirements of this chapter, version 1.2a of COELT may be used. The program (coelt12i.exe) and documents (coelt 1.2i manual.zip) for version 1.2i of COELT are available through links provided at http://www.swrcb.ca.gov/ust.
"CSRS-H" is the California Spatial Reference System-Horizontal, which includes the High Precision Geodetic Network (HPGN), the High Precision Geodetic Network-Densification (HPGN-D) and other geodetic control positions. These control positions have been determined by Global Positioning System survey methods in accordance with first order or better standards and specifications from the Federal Geodetic Control Subcommittee (FGCS) of the Federal Geographic Data Committee. These control positions are published by the National Geodetic Survey, California Spatial Reference Center or its successor.
"EDCC" is the Electronic Deliverable Consistency Checker program, which was developed for the EDF1.2i format, described below. The EDCC program is run upon completion of an EDF report and produces an error report. This error report identifies problems within the given data set based upon the EDF database structure, guidelines, restrictions, and valid values. The error report also indicates the nature of each problem, so that the submitter can correct them. For purposes of the requirements of this chapter, the interactive web-version 1.2i or personal computer version 1.2i of EDCC shall be used. Programs (edcc.zip and edccservicepac1.zip) for version 1.2i of EDCC are available through links provided at http://www.swrcb.ca.gov/ust.
"EDF" is the Electronic Deliverable Format, originally developed for the United States Army Corps of Engineers. It is a data standard designed to facilitate transfer of electronic data files from analytical laboratories to end-users. It is a relational database whose files are related to one another through key fields. Laboratories can produce electronic EDF files by using their own LIMS or COELT software. The data components include chain-of custody information, laboratory results, and quality assurance information. For purposes of the requirements of this chapter, version 1.2i of EDF shall be used. Specifications for version 1.2i of EDF (The Electronic Deliverable Format [EDF] Version 1.2i data dictionary are available in Title 27, Division 3, Subdivision 2, Chapter 1 (Laboratory Results) California Code of Regulations, through links provided at http://www.swrcb.ca.gov/ust.
"Geotracker" is the State Board's Internet-accessible database system used by the State Board, regional boards, and local agencies to track and archive compliance data from authorized or unauthorized discharges of waste to land, or unauthorized releases of hazardous substances from underground storage tanks. This system consists of a relational database, on-line compliance reporting features, a geographical information system (GIS) interface and other features that are utilized by the State Board, regional boards, local agencies, regulated industry and the public to input, manage, or access compliance and regulatory tracking data. Geotracker, initially known as the Geographical Environmental Information Management System (GEIMS) database, is available at http://geotracker.swrcb.ca.gov/.
"PDF" means Portable Document Format. "PDF" files are self-contained and cross-platform documents. A PDF file will look the same on the screen and in print, regardless of what type of computer or printer a person uses or which software package originally created the file. Although PDF files contain the complete formatting of the original document, including fonts and images, they are highly compressed, allowing efficient transfer of complex information.
"Permanent monitoring well" means any artificial excavation by any method made for the purpose of monitoring fluctuations in groundwater levels, the quality of groundwater, or the concentration of contaminants in groundwater and which is used for at least thirty days.
"Report" means any document or item that is required for submittal in order for a person to comply with a regulation, directive, or order issued by the State Board, a regional board, or a local agency, including but not limited to, any analysis of material by a laboratory that has accreditation or certification pursuant to Article 3 (commencing with Section 100825) of Chapter 4 of Part 1 of Division 101 of the Health and Safety Code.


Note: Authority cited: Sections 13196 and 13198(c), Water Code. Reference: Sections 13195(b) and 13196, Water Code.




s 3892. Reports.
The following reports are subject to the requirements of this Chapter, when those reports are required for the purpose of subsurface investigation or remediation of: (1) an unauthorized discharge or deposit of waste as defined in section 13050 of the Water Code, (2) an unauthorized release of a hazardous substance as defined in section 25281 of the Health and Safety Code, or (3) a discharge of waste to land subject to Division 2 of Title 27 or Division 3, Chapter 15 of Title 23 of the California Code of Regulations.
(a) Reports submitted pursuant to Division 3, Chapter 16, Article 11 of Title 23 of the California Code of Regulations.
(b) Reports submitted pursuant to Division 2 of Title 27 or Division 3, Chapter 15 of Title 23 of the California Code of Regulations.
(c) Reports submitted pursuant to section 13304 of the Water Code.
(d) Reports submitted pursuant to section 13267 of the Water Code.
(e) Reports submitted pursuant to any order or directive of the State Board, a regional board or a local agency.
(f) Reports submitted pursuant to the Two-year Joint Cooperative Agreement Execution Plans under the Defense/State Memorandum of Agreement and Navy Cost Recovery Cooperative Agreement, for the State of California.


Note: Authority cited: Sections 13196 and 13198(c), Water Code. Reference: Sections 13196(a) and 13198(c), Water Code.




s 3893. Electronic Submittal of Reports.
(a) Persons responsible for submitting reports pursuant to this Chapter shall submit the following information described in subdivision (b) electronically over the Internet to the State Board's Geotracker system in conformance with data dictionaries found in Title 27, Division 3, Subdivision 2 (Monitoring and Release Information) and specifications contained in the State Water Resources Control Board EDF Guidelines and Restrictions (version 1.2i) and Survey XYZ Guidelines and Restrictions (Version 6). These data dictionaries and documents are available through links provided at http://www.swrcb.ca.gov/ust.
(b) Data generated after the effective date of the regulations by chemical analysis of soil, vapor, or water samples (including surface water, groundwater and influent/effluent water samples from remediation systems), shall be submitted in EDF format. All data submitted in EDF format shall be checked for errors prior to and during submittal using the EDCC software consistency-checking tool. All data submitted in EDF format must pass this error-checking tool as well as meet normal regulatory requirements in order to be considered valid data. In addition, when required for reports subject to this Chapter, the following shall also be submitted electronically:
(1) The latitude and longitude of any permanent monitoring well for which data is reported in EDF format, accurate to within 1 meter and referenced to a minimum of two reference points from the California Spatial Reference System (CSRS-H), if available.
(2) The surveyed elevation relative to a geodetic datum of any permanent monitoring well.
(3) The elevation of groundwater in any permanent monitoring well relative to the surveyed elevation.

(4) A site map or maps showing the location of all sampling points referred to in the report.
(5) The depth to the screened interval and the length of screened interval for any permanent monitoring well.
(6) Boring logs, in PDF format.
(7) A complete copy of the report, in PDF format, which includes the signed transmittal letter and professional certification.
(c) All deadlines and timeframes for submittals of reports are applicable to the information submitted electronically pursuant to this Chapter.


Note: Authority cited: Sections 13196 and 13198(c), Water Code. Reference: Sections 13196 and 13198(c), Water Code.




s 3894. Timing of Electronic Reporting Requirements.
(a) Electronic submittals of information for sites subject to the requirements of Title 23, Division 3, Chapter 16, Article 11 of the California Code of Regulations, shall begin on December 16, 2004.
(b) Unless otherwise specifically noted, all other electronic submittals required pursuant to this Chapter shall begin January 1, 2005.
(c) Until July 1, 2005, the electronic reporting requirements of this Chapter are in addition to any existing paper or other reporting requirements.


Note: Authority cited: Sections 13196 and 13198(c), Water Code. Reference: Sections 13196(a) and 13198(c), Water Code.




s 3895. Submittal of Alternate Forms of Reports.
(a) Beginning July 1, 2005, the successful submittal of electronic information in accordance with this Chapter shall replace the requirement for the submittal of a paper copy, except as provided in subdivision (b).
(b) In addition to the electronic submittal of reports required pursuant to this Chapter, a regulatory agency may require the submittal of a report, or portions thereof, in diskette, compact disc or other form if the agency determines that the alternative form is necessary. The burden, including cost, of these alternative forms shall bear a reasonable relationship to the need for alternative form and benefits to be obtained from the alternative form.


Note: Authority cited: Sections 13196 and 13198(c), Water Code. Reference: Sections 13196(a) and 13198(c), Water Code.