(a) Nothing in subdivision (a) of Section 2782 prevents an agreement to indemnify a professional engineer or geologist or the agents, servants, independent contractors, subsidiaries, or employees of that engineer or geologist from liability as described in Section 2782 in providing hazardous materials identification, evaluation, preliminary assessment, design, remediation services, or other services of the types described in Sections 25322 and 25323 of the Health and Safety Code or the federal National Oil and Hazardous Substances Pollution Contingency Plan (40 C.F.R. Sec. 300.1 et seq.), if all of the following criteria are satisfied:
(1) The services in whole or in part address subterranean contamination or other concealed conditions caused by the hazardous materials.
(2) The promisor is responsible, or potentially responsible, for all or part of the contamination.
(b) The indemnification described in this section is valid only for damages arising from, or related to, subterranean contamination or concealed conditions, and is not applicable to the first two hundred fifty thousand dollars ($250,000) of liability or such greater amount as is agreed by the parties.
(c) This section does not authorize contracts for indemnification, by promisors specified in paragraph (2) of subdivision (a), of any liability of a promisee arising from the gross negligence or willful misconduct of the promisee.
(d) “Hazardous materials,” as used in this section, means any hazardous or toxic substance, material, or waste which is or becomes subject to regulation as such by any agency of the state, any municipality or political subdivision of the state, or the United States. “Hazardous materials” includes, but is not limited to, any material or substance that is any of the following:
(1) A hazardous substance, as defined in Section 25316 of the Health and Safety Code.
(2) Hazardous material, as defined in subdivision (j) of Section 25501 of the Health and Safety Code.
(3) Acutely hazardous material, as defined in subdivision (a) of Section 25532 of the Health and Safety Code.
(4) Hazardous waste, as defined in Section 25117 of the Health and Safety Code.
(5) Extremely hazardous waste, as defined in Section 25115 of the Health and Safety Code.
(8) Designated as a hazardous substance for purposes of Section 311 of the Federal Water Pollution Control Act, as amended (33 U.S.C. Sec. 1321).
(9) Hazardous waste, as defined by subsection (5) of Section 1004 of the federal Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. Sec. 6903).
(10) A hazardous substance, as defined by subsection (14) of Section 101 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601).
(11) A regulated substance, as defined by subsection (2) of Section 9001 of the federal Solid Waste Disposal Act, as amended (42 U.S.C. Sec. 6991).
(e) Nothing in this section shall be construed to alter, modify, or otherwise affect the liability of the promisor or promisee, under an indemnity agreement meeting the criteria of this section, to third parties for damages for death or bodily injury to persons, injury to property, or any other loss, damage, or expense.
(f) This section does not apply to public entities, as defined by Section 811.2 of the Government Code.
(Added by Stats. 1990, Ch. 814, Sec. 2.)
Last modified: October 8, 2018