California Civil Code. California
(e) “Neutral third party” means an experienced professional, such as an attorney, engineer, environmentalist, hydrologist, or retired judge, who has served as a mediator.
(f) “Notice of potential liability” means a notice, sent by the owner of the site, stating that a release that exceeds the notification threshold has occurred at the site and that the owner believes that the recipient of the notice is a responsible party with respect to the release. The notice of potential liability shall describe the location of the site and the nature of the release.
(g) “Notice recipient” means any one of the following:
(1) A person who receives a notice of potential liability pursuant to subdivision (a) of Section 851.
(2) A person who provides a release report pursuant to subdivision (b) of Section 851.
(3) A person who offers a commitment statement to the owner of a site pursuant to subdivision (c) of Section 851.
(h) “Notification threshold” means any release of such a magnitude that:
(1) The release is the subject of a response action which has been ordered by, or is being performed by, an oversight agency; or
(2) The release is impeding the ability of the owner of the site to sell, lease, or otherwise use the site.
(i) “Operation and maintenance” means any activity as defined in subdivision (a) of Section 25318.5 of the Health and Safety Code.
(j) “Oversight agency” means any agency, as defined in subdivision (c) of Section 25260 of the Health and Safety Code, that has jurisdiction over a response action performed in connection with a release that is the subject of a notice of potential liability. Subject to any other limitation imposed by law, an oversight agency retains full discretion as to when it exercises jurisdiction over a site.
(k) “Reasonable steps,” as used in subdivision (a) of Section 851, means the least expensive means available to ascertain the potentially responsible parties. If the owner cannot otherwise identify any apparent, potentially responsible parties, then “reasonable steps” includes:
(1) Conducting a title search; and
(2) Reviewing all environmental reports in the owner’s possession of which the owner has actual awareness pertaining to the site.
(l) “Release” means the release, as defined in Sections 25320 and 25321 of the Health and Safety Code, of a hazardous material or hazardous materials.
(m) “Release report” means a notice sent by a responsible party to the owner of the site stating that a release has occurred on the site which is likely to exceed the notification threshold. The release report shall describe the location of the site and the nature of the release.
(n) “Remedial action” means any action as defined in Section 25322 of the Health and Safety Code.
(o) “Removal action” means any action as defined in subdivision (a) of Section 25323 of the Health and Safety Code.
(p) “Response action” means any removal actions, including, but not limited to, site investigations and remedial actions, including, but not limited to, operation and maintenance measures.
(q) “Responsible party” means any person who is liable under state or local law for taking action in response to a release.
(r) “Site” means any parcel of commercial, industrial, or agricultural real property where a hazardous materials release has occurred.
(s) “Written action” means any official action by any oversight agency where the oversight agency has expressly exercised its cleanup authority in writing, pursuant to the oversight agency’s procedures, directing a response action at the site.
(Added by Stats. 1997, Ch. 873, Sec. 1. Effective January 1, 1998.)
851. (a) An owner of a site who has actual awareness of a release exceeding the notification threshold shall take all reasonable steps as defined in subdivision (j) of Section 850 to expeditiously identify the potentially responsible parties. The owner shall, as soon as reasonably possible after obtaining actual awareness of the potentially responsible parties, send a notice of potential liability to the identified potentially responsible parties and the agency, as defined in subdivision (c) of Section 25260 of the Health and Safety Code, that the owner believes to be the appropriate oversight agency. For any release exceeding the notification threshold of which the owner has actual awareness that occurred prior to, but within three years of, the effective date of this section, the notice shall be given on or before December 31, 1998.
(b) A potentially responsible party who has actual awareness of a release which is likely to exceed the notification threshold shall as soon as reasonably possible after obtaining actual awareness of the release provide the owner of the site where the release occurred with a release report. For any release exceeding the notification threshold of which the potentially responsible party has actual awareness that occurred prior to, but within three years of, the effective date of this section, the release report shall be given on or before December 31, 1998. A potentially responsible party may issue, at the potentially responsible party’s option, a commitment statement to the owner of the site within 120 days of the potentially responsible party’s issuance of a release report. The fact that a release report is issued shall not constitute an admission of liability and may not be admitted as evidence against a potentially responsible party in any litigation.
(c) When a notice of potential liability is issued, a notice recipient shall respond to the owner, in writing, and by certified mail, return receipt requested, within 120 days from the date that the notice of potential liability was mailed. The notice recipient’s response shall be either a commitment statement or a negative response. The notice recipient’s failure to submit the written response within the 120-day period, or failure to strictly comply with the form of the written response, as provided in Section 854, shall be deemed a negative response. The owner may agree in writing to extend the period during which the notice recipient may respond to the notice of potential liability. An extension of up to 120 days shall be provided if the notice recipient commits to do a site investigation, the results of which shall be provided to the owner and the oversight agency.
(d) (1) The common law duty to mitigate damages shall apply to any failure of the owner of a site to give a timely notice of potential liability when the owner is required to give this notice pursuant to this chapter. Where an owner fails to mitigate damages by not giving a timely notice of potential liability, the owner’s damage claim shall be reduced in accordance with common law principles by the amount that the potentially responsible party proves would have likely been mitigated had a timely notice of potential liability been given.
(2) Common law principles shall apply to the failure of the potentially responsible party to issue a timely release report. Where a potentially responsible party fails to give a timely release report, the potentially responsible party, in accordance with common law principles, shall be responsible to the owner of the site, for damages that the owner proves are likely caused by such failure to provide a release report.
(3) Any party who argues the applicability of this subdivision carries the burden of proof in that regard.
(4) Nothing in this section is intended to create a new cause of action or defense beyond that which already exists under common law.
(5) Subdivisions (a) and (b), and paragraphs (1) and (2) of this subdivision, shall not apply when the party to whom a notice of potential liability or release report is owed already possesses actual awareness of the information required to be transmitted in such notice of potential liability or release report.
(e) (1) Except as provided in paragraph (2), the requirements of this chapter shall not apply to a site listed pursuant to Section 25356 of the Health and Safety Code for response action pursuant to Chapter 6.8 (commencing with Section 25300) of Division 20 of the Health and Safety Code or to a site where an oversight agency has issued an order or entered into an enforceable agreement pursuant to any authority, including, but not limited to, an order or enforceable agreement entered into by a local agency,