BILL NUMBER: AB 291 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 12, 2011
INTRODUCED BY Assembly Member Wieckowski
FEBRUARY 8, 2011
An act to amend Section 25503.5 of the Health and Safety
Code, relating to hazardous materials. An act to amend
Section 25299.52 of the Health and Safety Code, relating to
underground storage tanks.
LEGISLATIVE COUNSEL'S DIGEST
AB 291, as amended, Wieckowski. Hazardous materials:
business plans. Underground storage tanks: petroleum:
corrective action claims.
Under the existing Barry Keene Underground Storage Tank Cleanup
Trust Fund Act of 1989, every owner of an underground storage tank is
required to pay a storage fee for each gallon of petroleum placed in
the tank. The fees are required to be deposited in the Underground
Storage Tank Cleanup Fund and the State Water Resources Control Board
is authorized to expend the moneys in the fund, upon appropriation
by the Legislature, for various purposes, including the payment of
claims to aid owners and operators of petroleum underground storage
tanks who take corrective action to clean up unauthorized releases
from those tanks. The board is required to award the claims in
accordance with a specified priority ranking, which provides for 4
categories of priority.
This bill would require the board to allocate 25 percent of the
funds authorized to be expended for claims filed for the 2nd and 3rd
priority rankings based upon the environmental risk priority of the
claims.
(1) Existing law requires a business that handles a hazardous
material to adopt a business plan for response to the release of
hazardous materials, and to annually submit an inventory to the local
administering agency if the business handles a specified amount of
hazardous materials at any one time during the reporting year.
This bill would additionally require a business to adopt the plan
or inventory for specified lesser or greater amounts of various
classes of hazardous materials if the hazardous materials meets
certain requirements. The administering agency would be required to
make findings regarding the regulation of certain of these hazardous
materials in consultation with the local fire chief. The bill would
impose a state-mandated local program by imposing new duties upon
administering agencies with regard to business plans.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25299.52 of the
Health and Safety Code is amended to read:
25299.52. (a) The board shall adopt a priority ranking list at
least annually for awarding claims pursuant to Section 25299.57 or
25299.58. Any owner or operator eligible for payment of a claim
pursuant to Section 25299.54 shall file an application with the board
within a reasonable period, to be determined by the board, prior to
adoption of the priority ranking list.
(b) Except as provided in subdivision (c), in awarding claims
pursuant to Section 25299.57 or 25299.58, the board shall pay claims
in accordance with the following order of priority:
(1) Owners of tanks who are eligible to file a claim pursuant to
subdivision (e) of Section 25299.54.
(2) (A) Owners and operators of tanks that
are either of the following:
(A)
( i) An owner or operator of a tank that is
a small business, by meeting the requirements of subdivision (d) of
Section 14837 of the Government Code. An owner or operator that meets
that definition of small business, but who is domiciled or has its
principal office outside of the state, shall be classified in this
category if the owner or operator otherwise meets the requirements of
subdivision (d) of Section 14837 of the Government Code with regard
to the number of employees and the total annual revenues received.
(B)
(ii) An owner or operator that is a city, county,
district, or nonprofit organization that receives total annual
revenues of not more than seven million dollars ($7,000,000). In
determining the amount of a nonprofit organization's annual revenues,
the board shall calculate only those revenues directly attributable
to the particular site at which the tank or tanks for which the claim
is submitted are located.
(B) The board shall rank the environmental risk priority for
purposes of paragraph (3) of subdivision (c) of the claims that are
subject to this paragraph.
(3) (A) Owners or operators of tanks that
are either of the following:
(A)
( i) The owner or operator owns and operates
a business that employs fewer than 500 full-time and part-time
employees, is independently owned and operated, and is not dominant
in its field of operation.
(B)
(ii) The owner or operator is a city, county, district,
or nonprofit organization that employs fewer than 500 full-time and
part-time employees. In determining the number of employees employed
by a nonprofit organization, the board shall calculate only those
employees employed at the particular site at which a tank for which
the claim is being submitted is located.
(B) The board shall rank the environmental risk priority for
purposes of paragraph (3) of subdivision (c) of the claims subject to
this paragraph.
(4) All other tank owners and operators.
(c) (1) In any year Except as provided in
paragraph (3), in any year in which the board is not otherwise
authorized to award at least 15 percent of the total amount of funds
committed for that year to tank owners or operators in those
categories set forth in paragraph (3) or (4) of subdivision (b) due
to the priority ranking list award limitations set forth in
subdivision (b), the board shall allocate between 14 and 16 percent
of the total amount of funds committed for that year to each category
that is not otherwise entitled to at least that level of committed
funding for that year.
(2) If the total amount of claims outstanding in one or more of
the priority categories specified in paragraph (3) or (4) of
subdivision (b) is less than 15 percent of the total amount annually
appropriated from the fund for the purpose of awarding claims, the
board shall reserve for making claims in that category only the
amount that is necessary to satisfy the outstanding claims in that
category.
(3) Notwithstanding paragraphs (1) and (2), the board shall
annually allocate 25 percent of the total amount of funds committed
for that year for claims filed pursuant to Section 25299.57 by owners
and operators in the categories set forth in paragraphs (2) and (3)
of subdivision (b) based upon the environmental risk priority of the
claim.
(d) The board shall give priority to a claim that is filed before
September 24, 1993, by a city, county, or district that is eligible
for payment pursuant to Section 25299.54 in the following manner:
(1) The board shall determine whether the priority category
specified for a city, county, or district pursuant to subparagraph
(B) of paragraph (2), or pursuant to subparagraph (B) of paragraph
(3), of subdivision (b) requires that the priority ranking of the
claim be changed.
(2) If the priority ranking of the claim is changed and the claim
is placed into either the priority category specified in subparagraph
(B) of paragraph (2), or specified in subparagraph (B) of paragraph
(3), of subdivision (b), the board shall pay all other claims that
were assigned to that priority category prior to January 1, 2000,
before paying the claim of the city, county, or district.
(e) The board may, to carry out the intent specified in paragraph
(1) of subdivision (b) of Section 25299.10 and to expedite the
processing and awarding of claims pursuant to Sections 25299.57 and
25299.58, implement the contracting procedures required by Chapter 10
(commencing with Section 4525) of Division 5 of Title 1 of the
Government Code, as may be necessary, to alleviate the claims
processing and award backlog. If, at the conclusion of any fiscal
year, 25 percent or more of the funds appropriated annually for
awards to claimants during that year have not actually been obligated
by the board, the board shall, at its next regularly scheduled
meeting, determine, in a public hearing, whether, given the
circumstances of the awards backlog, it is appropriate to implement
those contracting procedures for some, or all, of the claims filed
with the board.
(f) For purposes of this section, the following definitions shall
apply:
(1) "Nonprofit organization" means a nonprofit public benefit
organization incorporated pursuant to Part 2 (commencing with Section
5110) of Division 2 of Title 1 of the Corporations Code.
(2) "Annual revenue," with respect to public entities, means the
total annual general purpose revenues, excluding all restricted
revenues over which the governing agency has no discretion, as
reported in the Annual Report of Financial Transactions submitted to
the Controller, for the latest fiscal year ending prior to the date
the fund application was filed.
(3) "Annual revenue," with respect to nonprofit organizations,
means the total annual revenues, as shown in an annual fiscal report
filed with the Registry of Charitable Trusts of state and federal tax
records, based on the latest fiscal year ending prior to the date
the fund application was filed.
(4) "General purpose revenues," as used in paragraph (2), means
revenues consisting of all of the following: secured and unsecured
revenues; less than countywide funds, secured and unsecured; prior
year secured and unsecured penalties and delinquent taxes; sales and
use taxes; transportation taxes (nontransit); property transfer
taxes; transient lodging taxes; timber yield taxes; aircraft taxes;
franchise taxes; fines, forfeitures, and penalties; revenues from use
of money and property; motor vehicle in-lieu taxes; trailer coach
in-lieu taxes; homeowner property tax relief; open-space tax relief;
and cigarette taxes.
SECTION 1. Section 25503.5 of the Health and
Safety Code is amended to read:
25503.5. (a) (1) A business, except as provided in subdivisions
(b), (c), and (d), shall establish and implement a business plan for
emergency response to a release or threatened release of a hazardous
material in accordance with the standards prescribed in the
regulations adopted pursuant to Section 25503, if the business
handles a hazardous material or a mixture containing a hazardous
material that has a quantity at any one time during the reporting
year that is any of the following:
(A) Except as provided in subparagraphs (B) to (E), inclusive,
equal to, or greater than, a total weight of 500 pounds or a total
volume of 55 gallons.
(B) The threshold planning quantity, under both of the following
conditions:
(i) The hazardous material is an extremely hazardous substance, as
defined in Section 355.61 of Title 40 of the Code of Federal
Regulations.
(ii) The threshold planning quantity for that extremely hazardous
substance listed in Appendices A and B of Part 355 (commencing with
Section 355.1) of Subchapter J of Chapter I of Title 40 of the Code
of Federal Regulations is less than 500 pounds.
(C) A total weight of 10,000 pounds, if the hazardous material is
a solid or liquid substance that is classified as a hazard for
purposes of Section 5194 of Title 8 of the California Code of
Regulations solely as an irritant or sensitizer, unless the
administering agency finds, and provides notice to the business
handling the product, that the handling of lesser quantities of that
hazardous material requires the submission of a business plan, or any
portion thereof, in response to public health, safety, or
environmental concerns.
(D) (i) A total of 6,000 cubic feet, if the hazardous material is
a gas at standard temperature and pressure and is classified as a
hazard for the purposes of Section 5194 of Title 8 of the California
Code of Regulations solely as a compressed gas, unless the
administering agency finds, and provides notice to the business
handling the product, that the handling of lesser quantities of that
hazardous material requires the submission of a business plan, or any
portion thereof, in response to public health, safety, or
environmental concerns.
(ii) The hazardous materials subject to this subparagraph include
a gas for which the only health and physical hazards are simple
asphyxiation and the release of pressure.
(iii) The hazardous materials subject to this subparagraph do not
include gases in a cryogenic state.
(E) If the substance is a radioactive material, it is handled in
quantities for which an emergency plan is required to be adopted
pursuant to Part 30 (commencing with Section 30.1), Part 40
(commencing with Section 40.1), or Part 70 (commencing with Section
70.1), of Chapter 1 of Title 10 of the Code of Federal Regulations,
or pursuant to any regulations adopted by the state in accordance
with those regulations.
(2) In meeting the requirements of this subdivision, a business
may, if it elects to do so, use the format adopted pursuant to
Section 25503.4.
(3) The administering agency shall make the findings required by
subparagraphs (C) and (D) of paragraph (1) in consultation with the
local fire chief.
(b) (1) Oxygen, nitrogen, and nitrous oxide, ordinarily maintained
by a physician, dentist, podiatrist, veterinarian, or pharmacist, at
his or her office or place of business, stored at each office or
place of business in quantities of not more than 1,000 cubic feet of
each material at any one time, are exempt from this section and from
Section 25505. The administering agency may require a one-time
inventory of these materials for a fee not to exceed fifty dollars
($50) to pay for the costs incurred by the agency in processing the
inventory forms.
(2) (A) Lubricating oil is exempt from this section and Sections
25505 and 25509, for a single business facility, if the total volume
of each type of lubricating oil handled at that facility does not
exceed 55 gallons and the total volume of all types of lubricating
oil handled at that facility does not exceed 275 gallons, at any one
time.
(B) For purposes of this paragraph, "lubricating oil" means any
oil intended for use in an internal combustion crankcase, or the
transmission, gearbox, differential, or hydraulic system of an
automobile, bus, truck, vessel, airplane, heavy equipment, or other
machinery powered by an internal combustion or electric powered
engine. "Lubricating oil" does not include used oil, as defined in
subdivision (a) of Section 25250.1.
(c) (1) Hazardous material contained solely in a consumer product
for direct distribution to, and use by, the general public is exempt
from the business plan requirements of this article unless the
administering agency has found, and has provided notice to the
business handling the product, that the handling of certain
quantities of the product requires the submission of a business plan,
or any portion thereof, in response to public health, safety, or
environmental concerns.
(2) In addition to the authority specified in paragraph (4), the
administering agency may, in exceptional circumstances, following
notice and public hearing, exempt from the inventory provisions of
this article any hazardous substance specified in subdivision (q) of
Section 25501 if the administering agency finds that the hazardous
substance would not pose a present or potential danger to the
environment or to human health and safety if the hazardous substance
was released into the environment. The administering agency shall
specify in writing the basis for granting any exemption under this
paragraph. The administering agency shall send a notice to the agency
within five days from the effective date of any exemption granted
pursuant to this paragraph.
(3) The administering agency, upon application by a handler, may
exempt the handler, under conditions that the administering agency
determines to be proper, from any portion of the business plan, upon
a written finding that the exemption would not pose a significant
present or potential hazard to human health or safety or to the
environment or affect the ability of the administering agency and
emergency rescue personnel to effectively respond to the release of a
hazardous material, and that there are unusual circumstances
justifying the exemption. The administering agency shall specify in
writing the basis for any exemption under this paragraph.
(4) The administering agency, upon application by a handler, may
exempt a hazardous material from the inventory provisions of this
article upon proof that the material does not pose a significant
present or potential hazard to human health and safety or to the
environment if released into the workplace or environment. The
administering agency shall specify in writing the basis for any
exemption under this paragraph.
(5) An administering agency shall exempt a business operating a
farm for purposes of cultivating the soil or raising or harvesting
any agricultural or horticultural commodity from filing the
information in the business plan required by subdivisions (b) and (c)
of Section 25504 if all of the following requirements are met:
(A) The handler annually provides the inventory of information
required by Section 25509 to the county agricultural commissioner
before January 1 of each year.
(B) Each building in which hazardous materials subject to this
article are stored is posted with signs, in accordance with
regulations that the agency shall adopt, that provide notice of the
storage of any of the following:
(i) Pesticides.
(ii) Petroleum fuels and oil.
(iii) Types of fertilizers.
(C) Each county agricultural commissioner forwards the inventory
to the administering agency within 30 days from the date of receipt
of the inventory.
(6) The administering agency shall exempt a business operating an
unstaffed remote facility located in an isolated sparsely populated
area from the hazardous materials business plan and inventory
requirements of this article if the facility is not otherwise subject
to the requirements of applicable federal law, and all of the
following requirements are met:
(A) The types and quantities of materials onsite are limited to
one or more of the following:
(i) Five hundred standard cubic feet of compressed inert gases
(asphyxiation and pressure hazards only).
(ii) Five hundred gallons of combustible liquid used as a fuel
source.
(iii) Two hundred gallons of corrosive liquids used as
electrolytes in closed containers.
(iv) Five hundred gallons of lubricating and hydraulic fluids.
(v) One thousand two hundred gallons of flammable gas used as a
fuel source.
(B) The facility is secured and not accessible to the public.
(C) Warning signs are posted and maintained for hazardous
materials pursuant to the California Fire Code.
(D) A one-time notification and inventory are provided to the
administering agency along with a processing fee in lieu of the
existing fee. The fee shall not exceed the actual cost of processing
the notification and inventory, including a verification inspection,
if necessary.
(E) If the information contained in the initial notification or
inventory changes and the time period of the change is longer than 30
days, the notification or inventory shall be resubmitted within 30
days to the administering agency to reflect the change, along with a
processing fee, in lieu of the existing fee, that does not exceed the
actual cost of processing the amended notification or inventory,
including a verification inspection, if necessary.
(F) The administering agency shall forward a copy of the
notification and inventory to those agencies that share
responsibility for emergency response.
(G) The administering agency may require an unstaffed remote
facility to submit a hazardous materials business plan and inventory
in accordance with this article if the agency finds that special
circumstances exist such that development and maintenance of the
business plan and inventory are necessary to protect public health
and safety and the environment.
(d) On-premise use, storage, or both, of propane in an amount not
to exceed 300 gallons that is for the sole purpose of heating the
employee working areas within that business is exempt from this
section, unless the administering agency finds, and provides notice
to the business handling the propane, that the handling of the
on-premise propane requires the submission of a business plan, or any
portion thereof, in response to public health, safety, or
environmental concerns.
(e) The administering agency shall provide all information
obtained from completed inventory forms, upon request, to emergency
rescue personnel on a 24-hour basis.
(f) The administering agency shall adopt procedures to provide for
public input when approving any applications submitted pursuant to
paragraph (3) or (4) of subdivision (c).
SEC. 2. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.