BILL NUMBER: AB 2935 CHAPTERED
BILL TEXT
CHAPTER 564
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2008
APPROVED BY GOVERNOR SEPTEMBER 29, 2008
PASSED THE SENATE AUGUST 27, 2008
PASSED THE ASSEMBLY AUGUST 29, 2008
AMENDED IN SENATE AUGUST 21, 2008
AMENDED IN SENATE AUGUST 12, 2008
AMENDED IN SENATE JULY 1, 2008
AMENDED IN SENATE JUNE 23, 2008
AMENDED IN ASSEMBLY MAY 23, 2008
AMENDED IN ASSEMBLY APRIL 21, 2008
AMENDED IN ASSEMBLY APRIL 9, 2008
AMENDED IN ASSEMBLY APRIL 1, 2008
INTRODUCED BY Assembly Member Huffman
(Coauthors: Assembly Members DeSaulnier, Hancock, Laird, Leno,
Mullin, Ruskin, and Wolk)
FEBRUARY 22, 2008
An act to add Section 5654 to the Fish and Game Code, and to amend
Section 8574.7 of the Government Code, relating to toxic spills.
LEGISLATIVE COUNSEL'S DIGEST
AB 2935, Huffman. Oil spill prevention and response.
The Lempert-Keene-Seastrand Oil Spill Prevention and Response Act
generally requires the administrator for oil spill response, acting
at the direction of the Governor, to implement activities relating to
oil spill response, including emergency drills and preparedness, and
oil spill containment and cleanup, and to represent the state in any
coordinated response efforts with the federal government. Existing
law requires the administrator to amend, on a triennial basis, the
California oil spill contingency plan containing specified elements,
including an environmentally and ecologically sensitive element for
the preparation and distribution of maps depicting environmentally
and ecologically sensitive areas in marine waters or along the coast.
This bill would additionally require the environmentally and
ecologically sensitive element to include the identification and
prioritization of environmentally and ecologically sensitive areas, a
plan for protection actions to be taken in the event of an oil spill
in those areas, the location of available response equipment and
personnel to deploy the equipment to protect priority environmentally
and ecologically sensitive areas, and a program for testing
protection strategies for each of the priority environmentally and
ecologically sensitive areas. The bill would additionally require the
California oil spill contingency plan to include an element that
would consider the utilization of specified private working craft and
mariners in plans for containment and cleanup.
Existing law with regard to fish generally makes it unlawful to
deposit in, permit to pass into, or place where it can pass into, the
waters of this state any of certain listed petroleum products.
Existing law authorizes the Department of Fish and Game to clean up
or abate, or cause to be cleaned up or abated, the effects of any
petroleum or petroleum product deposited or discharged in the waters
of this state or deposited or discharged in any location onshore or
offshore where the petroleum or petroleum product is likely to enter
the waters of this state, to order any person responsible for the
deposit or discharge to clean up the petroleum or petroleum product
or abate the effects of the deposit or discharge, and recover any
costs incurred as a result of the cleanup or abatement from the
responsible party.
This bill would require the Director of Fish and Game, within 24
hours of notification of a spill or discharge, as described, to close
certain waters to the take of all fish and shellfish. The bill would
provide that closure is not required if the Office of Environmental
Health Hazard Assessment (OEHHA) finds, within 24 hours of the
notification, that a public health threat does not or is not likely
to exist. The bill would require the director, in consultation with
the OEHHA, to make specific determinations with regard to the spill
or discharge within 48 hours. The director would also be required,
within 48 hours of notification or as soon as is feasible, in
consultation with the OEHHA, to assess and determine the potential
danger from consuming fish contained in a recirculating seawater tank
onboard a vessel.
The director would be required, after complying with the above
provisions, but in no event more than 7 days from notification of the
spill or discharge, to order expedited tests of fish and shellfish
known to be taken for commercial, recreational, or subsistence
purposes in the closed area, to determine the levels of
contamination, if any, and whether the fish or shellfish are safe for
human consumption. The director would be authorized to immediately
reopen the closed area and waive the testing requirements if the
director determines in the assessment that there is no significant
risk to the public or fisheries.
The bill would require the director to reopen the closed areas if
the OEHHA notifies the director, within 24 hours of receiving the
notification, that the closed areas be reopened but would authorize
the director to maintain a closure in a remaining portion of the
closed area if the OEHHA makes a specified finding or if the
department determines contamination from the spill or discharge
persists that may cause the waste of fish or shellfish. The bill
would require the director to seek full reimbursement from the
responsible party or parties for the spill or discharge for all
reasonable costs incurred by the department in carrying out these
provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 5654 is added to the Fish and Game Code, to
read:
5654. (a) (1) Notwithstanding Section 7715 and except as provided
in paragraph (2), the director, within 24 hours of notification of a
spill or discharge, as those terms are defined in subdivision (aa)
of Section 8670.3 of the Government Code, where any fishing,
including all commercial, recreational, and nonlicensed subsistence
fishing, may take place, or where aquaculture operations are taking
place, shall close to the take of all fish and shellfish all waters
in the vicinity of the spill or discharge or where the spilled or
discharged material has spread, or is likely to spread. In
determining where a spill or discharge is likely to spread, the
director shall consult with the Administrator of the Office of Spill
Prevention and Response. At the time of closure, the department shall
make all reasonable efforts to notify the public of the closure,
including notification to commercial and recreational fishing
organizations, and posting of warnings on public piers and other
locations where subsistence fishing is known to occur. The department
shall coordinate, when possible, with local and regional agencies
and organizations to expedite public notification.
(2) Closure pursuant to paragraph (1) is not required if, within
24 hours of notification of a spill or discharge, the Office of
Environmental Health Hazard Assessment finds that a public health
threat does not or is unlikely to exist.
(b) Within 48 hours of notification of a spill or discharge
subject to subdivision (a), the director, in consultation with the
Office of Environmental Health Hazard Assessment, shall make an
assessment and determine all of the following:
(1) The danger posed to the public from fishing in the area where
the spill or discharge occurred or spread, and the danger of
consuming fish taken in the area where the spill or discharge
occurred or spread.
(2) Whether the areas closed for the take of fish or shellfish
should be expanded to prevent any potential take or consumption of
any fish or shellfish that may have been contaminated by the spill or
discharge.
(3) The likely period for maintaining a closure on the take of
fish and shellfish in order to prevent any possible contaminated fish
or shellfish from being taken or consumed or other threats to human
health.
(c) Within 48 hours after receiving notification of a spill or
discharge subject to subdivision (a), or as soon as is feasible, the
director, in consultation with the Office of Environmental Health
Hazard Assessment, shall assess and determine the potential danger
from consuming fish that have been contained in a recirculating
seawater tank onboard a vessel that may become contaminated by the
vessel's movement through an area where the spill or discharge
occurred or spread.
(d) If the director finds in his or her assessment pursuant to
subdivision (b) that there is no significant risk to the public or to
the fisheries, the director may immediately reopen the closed area
and waive the testing requirements of subdivisions (e) and (f).
(e) Except under the conditions specified in subdivision (d),
after complying with subdivisions (a) and (b), the director, in
consultation with the Office of Environmental Health Hazard
Assessment, but in no event more than seven days from the
notification of the spill or discharge, shall order expedited tests
of fish and shellfish that would have been open for take for
commercial, recreational, or subsistence purposes in the closed area
if not for the closure, to determine the levels of contamination, if
any, and whether the fish or shellfish is safe for human consumption.
(f) (1) Within 24 hours of receiving a notification from the
Office of Environmental Health Hazard Assessment that no threat to
human health exists from the spill or discharge or that no
contaminant from the spill or discharge is present that could
contaminate fish or shellfish, the director shall reopen the areas
closed pursuant to this section. The director may maintain a closure
in any remaining portion of the closed area where the Office of
Environmental Health Hazard Assessment finds contamination from the
spill or discharge persists that may
adversely affect human health.
(2) The director, in consultation with the commission, may also
maintain a closure in any remaining portion of the closed area where
commercial fishing or aquaculture occurs and where the department
determines, pursuant to this paragraph, that contamination from the
spill or discharge persists that may cause the waste of commercial
fish or shellfish as regulated by Section 7701.
(g) To the extent feasible, the director shall consult with
representatives of commercial and recreational fishing associations
and subsistence fishing communities regarding the extent and duration
of a closure, testing protocols, and findings. If a spill or
discharge occurs within the lands governed by a Native American tribe
or affects waters flowing through tribal lands, or tribal fisheries,
the director shall consult with the affected tribal governments.
(h) The director shall seek full reimbursement from the
responsible party or parties for the spill or discharge for all
reasonable costs incurred by the department in carrying out this
section, including, but not limited to, all testing.
SEC. 2. Section 8574.7 of the Government Code is amended to read:
8574.7. The Governor shall require the administrator, in
consultation with the State Interagency Oil Spill Committee and not
in conflict with the National Contingency Plan, to amend the
California oil spill contingency plan by adding a marine oil spill
contingency planning section that provides for the best achievable
protection of the coast and marine waters. "Administrator" for
purposes of this section means the administrator appointed by the
Governor pursuant to Section 8670.4. The marine oil spill contingency
planning section shall consist of all of the following elements:
(a) A state marine response element that specifies the hierarchy
for state and local agency response to an oil spill. The element
shall define the necessary tasks for oversight and control of cleanup
and removal activities associated with a marine oil spill and shall
specify each agency's particular responsibility in carrying out these
tasks. The element shall also include an organizational chart of the
state marine oil spill response organization and a definition of the
resources, capabilities, and response assignments of each agency
involved in cleanup and removal actions in a marine oil spill.
(b) A regional and local planning element that shall provide the
framework for the involvement of regional and local agencies in the
state effort to respond to a marine oil spill, and shall ensure the
effective and efficient use of regional and local resources in all of
the following:
(1) Traffic and crowd control.
(2) Firefighting.
(3) Boating traffic control.
(4) Radio and communications control and provision of access to
equipment.
(5) Identification and use of available local and regional
equipment or other resources suitable for use in cleanup and removal
actions.
(6) Identification of private and volunteer resources or personnel
with special or unique capabilities relating to marine oil spill
cleanup and removal actions.
(7) Provision of medical emergency services.
(8) Consideration of the identification and use of private working
craft and mariners, including commercial fishing vessels and
licensed commercial fishing men and women, in containment, cleanup,
and removal actions.
(c) A coastal protection element that establishes the state
standards for coastline protection. The administrator, in
consultation with the State Interagency Oil Spill Committee, the
Coast Guard and Navy, and the shipping industry, shall develop
criteria for coastline protection. If appropriate, the administrator
shall consult with representatives from the States of Alaska,
Washington, and Oregon, the Province of British Columbia in Canada,
and the Republic of Mexico. The criteria shall designate at least all
of the following:
(1) Appropriate shipping lanes and navigational aids for tankers,
barges, and other commercial vessels to reduce the likelihood of
collisions between tankers, barges, and other commercial vessels.
Designated shipping lanes shall be located off the coastline at a
distance sufficient to significantly reduce the likelihood that
disabled vessels will run aground along the coast of the state.
(2) Ship position reporting and communications requirements.
(3) Required predeployment of protective equipment for sensitive
environmental areas along the coastline.
(4) Required emergency response vessels that are capable of
preventing disabled tankers from running aground.
(5) Required emergency response vessels that are capable of
commencing oil cleanup operations before spilled oil can reach the
shoreline.
(6) An expedited decisionmaking process for dispersant use in
coastal waters. Prior to adoption of the process, the administrator
shall ensure that a comprehensive testing program is carried out for
any dispersant proposed for use in California marine waters. The
testing program shall evaluate toxicity and effectiveness of the
dispersants.
(7) Required rehabilitation facilities for wildlife injured by
spilled oil.
(8) An assessment of how activities that usually require a permit
from a state or local agency may be expedited or issued by the
administrator in the event of an oil spill.
(d) An environmentally and ecologically sensitive areas element
that shall provide the framework for prioritizing and ensuring the
protection of environmentally and ecologically sensitive areas. The
environmentally and ecologically sensitive areas element shall be
developed by the administrator, in conjunction with appropriate local
agencies, and shall include all of the following:
(1) Identification and prioritization of environmentally and
ecologically sensitive areas in marine waters and along the coast.
Identification and prioritization of environmentally and ecologically
sensitive areas shall not prevent or excuse the use of all
reasonably available containment and cleanup resources from being
used to protect every environmentally and ecologically sensitive area
possible. Environmentally and ecologically sensitive areas shall be
prioritized through the evaluation of criteria, including, but not
limited to, all of the following:
(A) Risk of contamination by oil after a spill.
(B) Environmental, ecological, recreational, and economic
importance.
(C) Risk of public exposure should the area be contaminated.
(2) Regional maps depicting environmentally and ecologically
sensitive areas in marine waters or along the coast that shall be
distributed to facilities and local and state agencies. The maps
shall designate those areas that have particularly high priority for
protection against oil spills.
(3) A plan for protection actions required to be taken in the
event of an oil spill for each of the environmentally and
ecologically sensitive areas and protection priorities for the first
24 to 48 hours after an oil spill shall be specified.
(4) The location of available response equipment and the
availability of trained personnel to deploy the equipment to protect
the priority environmentally and ecologically sensitive areas.
(5) A program for systemically testing and revising, if necessary,
protection strategies for each of the priority environmentally and
ecologically sensitive areas.
(6) Any recommendations for action that cannot be financed or
implemented pursuant to existing authority of the administrator,
which shall also be reported to the Legislature along with
recommendations for financing those actions.