HEALTH AND SAFETY CODE
SECTION 25299.36-25299.39.3
25299.36. The board, a regional board, or a local agency may
undertake or contract for corrective action in response to an
unauthorized release from an underground storage tank that is subject
to this chapter, pursuant to subdivision (f) of Section 25296.10 or
if a situation exists that requires prompt action by the board, a
regional board, or local agency to protect human health or the
environment. At the request of the board or a regional board, the
Department of General Services may enter into a contract on behalf of
the board or a regional board and acting as the agent of the board
or a regional board. Notwithstanding any other provision of law, if a
situation requires prompt action by the board or a regional board to
protect human health or the environment, the board or a regional
board may enter into oral contracts for this work, and the contracts,
whether written or oral, may include provisions for equipment rental
and, in addition, the furnishing of labor and materials necessary to
accomplish the work. These contracts for corrective action by the
board or a regional board are exempt from approval by the Department
of General Services if the situation requires prompt action to
protect human health or the environment.
25299.38. (a) The local agency, the board, or the regional board
shall advise and work with the owner, operator, or other responsible
party on the opportunity to seek preapproval of corrective action
costs pursuant to Section 2811.4 of Title 23 of the California Code
of Regulations or any successor regulation. Regional board staff and
local agency staff shall work with the responsible party and fund
staff to obtain preapproval for the responsible party. The fund staff
shall grant or deny a request for preapproval within 30 calendar
days after the date a request is received. If fund staff denies a
request for preapproval or fails to act within 30 calendar days after
receiving the request, an owner, operator, or other responsible
party who has prepared a work plan that has been reviewed and
accepted pursuant to paragraph (3) of subdivision (c) of Section
25296.10, and is denied preapproval of corrective action costs for
one or more of the actions required by the work plan, may petition
the board for review of the request for preapproval. The board shall
review the petition pursuant to Section 25299.56, and for that
purpose the petition for review of a request for preapproval of
corrective action costs shall be reviewed by the board in the same
manner as a petition for review of an unpaid claim.
(b) If the board receives a petition for review pursuant to
subdivision (a), the board shall review the request for preapproval
and grant or deny the request pursuant to this subdivision and
subdivision (c). The board shall deny the request for preapproval if
the board makes one of the following findings:
(1) The petitioner is not eligible to file a claim pursuant to
Article 6 (commencing with Section 25299.50).
(2) The petitioner failed to submit one or more of the documents
required by the regulations adopted by the board governing
preapproval.
(3) The petitioner failed to obtain three bids or estimates for
corrective action costs and, under the circumstances pertaining to
the corrective action, there is no valid reason to waive the
three-bid requirement pursuant to the regulations adopted by the
board.
(c) If the board does not deny the request for preapproval
pursuant to subdivision (b), the board shall grant the request for
preapproval. However, the board may modify the request by denying
preapproval of corrective action costs or reducing the preapproval
amount of those costs for any action required by the work plan, if
the board finds that the fund staff has demonstrated either of the
following:
(1) The amount of corrective action reimbursement requested for
the action is not reasonable. In determining if the fund staff has
demonstrated that the amount of reimbursement requested for an action
is not reasonable, the board shall use, when available, recent
experience with bids or estimates for similar actions.
(2) The action required in the work plan is, in all likelihood,
not necessary for the corrective action to comply with the
requirements of subdivisions (a) and (b) of Section 25296.10 and the
corrective action regulations adopted pursuant to Section 25299.3.
25299.39.2. (a) (1) The manager responsible for the fund shall
notify tank owners or operators who have an active letter of
commitment that has been in an active status for five years or more
and shall review the case history of their tank case on an annual
basis unless otherwise notified by the tank owner or operator within
30 days of the notification. The manager, with approval of the tank
owner or operator, may make a recommendation to the board for
closure. The board may close any tank case or require the closure of
any tank case where an unauthorized release has occurred if the board
determines that corrective action at the site is in compliance with
all of the requirements of subdivisions (a) and (b) of Section
25296.10 and the corrective action regulations adopted pursuant to
Section 25299.3. Before closing or requiring closure of an
underground storage tank case, the board shall provide an opportunity
for reviewing and providing responses to the manager's
recommendation to the applicable regional board and local agency, and
to the water replenishment district, municipal water district,
county water district, or special act district with groundwater
management authority if the underground storage tank case is located
in the jurisdiction of that district.
(2) Except as provided in paragraph (3), if the manager recommends
closing a tank case pursuant to paragraph (1), the board shall limit
reimbursement of subsequently incurred corrective action costs to
ten thousand dollars ($10,000) per year.
(3) The board may allow reimbursement of corrective action costs
in excess of the ten thousand dollar ($10,000) limit specified in
paragraph (2) if the board determines that corrective action costs
related to the closure will exceed this amount, or that additional
corrective action is necessary to meet the requirements specified in
subdivisions (a) and (b) of Section 25296.10.
(b) An aggrieved person may, not later than 30 days from the date
of final action by the board, pursuant to paragraph (1) of
subdivision (a), file with the superior court a petition for writ of
mandate for review of the decision. If the aggrieved person does not
file a petition for writ of mandate within the time provided by this
subdivision, a board decision shall not be subject to review by any
court. Section 1094.5 of the Code of Civil Procedure shall govern
proceedings for which petitions are filed pursuant to this
subdivision. For purposes of subdivision (c) of Section 1094.5 of the
Code of Civil Procedure, the court shall uphold the decision if the
decision is based upon substantial evidence in light of the whole
record.
(c) The authority provided under this section does not limit a
person's ability to petition the board for review under any other
state law.
25299.39.3. The board, a regional board, or local agency shall be
permitted reasonable access to property owned or possessed by an
owner, operator, or responsible party as necessary to perform
corrective action pursuant to Section 25299.36. The access shall be
obtained with the consent of the owner or possessor of the property
or, if the consent is withheld, with a warrant duly issued pursuant
to the procedure described in Title 13 (commencing with Section
1822.50) of Part 3 of the Code of Civil Procedure. However, in the
event of an emergency affecting public health or safety, or the
environment, the board, a regional board, or local agency may enter
the property without consent or the issuance of a warrant.
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