California Civil Code. California

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СКАЧАТЬ 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, the Department of Toxic Substance Control, the State Water Resources Control Board, or a regional water quality control board pursuant to Chapter 6.5 (commencing with Section 25100), Chapter 6.7 (commencing with Section 25280), Chapter 6.75 (commencing with Section 25299.10), Chapter 6.8 (commencing with Section 25300), Chapter 6.85 (commencing with Section 25396), or Chapter 6.11 (commencing with Section 25404) of Division 20 of the Health and Safety Code, or pursuant to Division 7 (commencing with Section 13000) of the Water Code.

      (2) The requirements of this chapter shall apply if either of the following applies:

      (A) The order or enforceable agreement is issued or entered into after the owner accepts a commitment statement.

      (B) The Department of Toxic Substance Control, State Water Resources Control Board, or regional water quality control board that issued the order or entered into an enforceable agreement consents in writing to the applicability of this chapter to the site.

      (f) It is the intent of the Legislature for this chapter to resolve disputes between, and affect the rights of, private parties only. Nothing in this chapter shall affect the authority of the Department of Toxic Substance Control, the State Water Resources Control Board, a regional water quality control board, or any other oversight agency.

      (g) Notwithstanding any other provision of this chapter, any time prior to accepting a commitment statement, the owner may provide the notice to the notice recipient that the provisions of subdivision (c), paragraph (2) of subdivision (e), and Sections 852 and 854, shall not apply to the site, in which case the provisions of subdivision (c), paragraph (2) of subdivision (e), and Sections 852 and 854 shall not apply to the site and the owner and notice recipient shall be entitled to pursue all other legal remedies and defenses authorized by law.

      (Added by Stats. 1997, Ch. 873, Sec. 1. Effective January 1, 1998.)

      852. (a) Within 45 days after issuance of the commitment statement, the owner may transmit to the notice recipient by certified mail, return receipt requested, an executed copy of the commitment statement, indicating its acceptance. If the owner does not execute the commitment statement, the commitment statement shall be deemed to have been rejected upon expiration of the 45-day period. A notice recipient has no obligation with respect to the provisions of a rejected commitment statement.

      (b) (1) Except as otherwise provided in this chapter, or unless the owner or the notice recipient has elected not to proceed with the mediation, if the owner rejects the commitment statement, the owner and notice recipient shall participate in a mediation process prior to the commencement of any litigation which pertains to a release covered by the commitment statement. The mediation process shall be supervised by a neutral third party mutually agreed upon by the owner and the notice recipient in order to mediate a mutually agreeable settlement between the owner and notice recipient of all issues related to the release.

      (2) Either the notice recipient or the owner may elect not to proceed further with the mediation process at any time prior to completion of those proceedings.

      (3) To the extent a mutually agreeable settlement is reached which allocates the liability and assigns the rights and obligations of the owner and notice recipient in a manner different from or inconsistent with this chapter, the settlement shall supersede the terms of this chapter pursuant to subdivision (f) of Section 853. If a settlement of all issues cannot be reached within 90 days after the owner’s rejection of the commitment statement, the neutral third party shall declare the mediation process unsuccessful and terminate the process. The owner and notice recipient may mutually agree to extend the mediation process but shall communicate any such extension in writing to the neutral third party. If the party issuing the commitment statement fails, for any reason, to participate in the mediation within 90 days of the rejection of the commitment statement, the owner may proceed with litigation.

      (4) After the termination of an unsuccessful mediation process, the parties shall be free to litigate or otherwise resolve their respective claims. The parties may mutually agree to the terms of the commitment statement at any time after the termination of an unsuccessful mediation process, in which case this chapter shall govern the rights and obligations of the parties.

      (5) Any applicable statute of limitations shall be tolled for 90 days following issuance of a notice of potential liability, a release report, or a commitment statement.

      (6) Any applicable statute of limitations shall be tolled from the time the owner rejects a commitment statement until the termination of the mediation process. If mediation is not commenced within 90 days after the owner’s rejection of the commitment statement, the tolling of the statute of limitations shall terminate unless otherwise agreed to by the parties.

      (7) Unless the owner and notice recipient agree otherwise, the fees and costs of the neutral third party shall be borne equally by the notice recipient and the owner.

      (c) Upon taking effect, the commitment statement shall have all of the following results:

      (1) The commitment statement shall constitute a binding promise that the notice recipient will undertake any response action as required by an oversight agency through a written action, directed to the owner or notice recipient, in connection with the release that is the subject of the notice of potential liability or release report. The commitment statement shall not create any obligations with respect to releases occurring after the commitment statement is signed, or with respect to any other release that is not the subject of the notice of potential liability.

      (2) The commitment statement shall constitute a binding promise that the owner shall provide reasonable site access to the notice recipient to take any action that is reasonably necessary or appropriate to conduct a response action. This grant of access shall not affect the rights of the owner if the notice recipient’s activities onsite result in physical damage to the site which the notice recipient fails to repair within a reasonable period after completion of all onsite activities. Unless otherwise ordered by the oversight agency, the notice recipient shall take all reasonable steps to avoid interfering with the owner’s use of the site.

      (3) Except for civil actions seeking damages for personal injury or wrongful death, once a commitment statement has been accepted, the court shall stay any action brought by СКАЧАТЬ