BILL NUMBER: AB 358 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 21, 2011
AMENDED IN ASSEMBLY APRIL 28, 2011
AMENDED IN ASSEMBLY APRIL 13, 2011
AMENDED IN ASSEMBLY APRIL 4, 2011
INTRODUCED BY Assembly Member Smyth
FEBRUARY 10, 2011
An act to amend Section 25296.25 of the Health and Safety
Code, relating to hazardous substances, and declaring the urgency
thereof, to take effect immediately. An act to amend
Sections 25295, 25296.35, 25296.40, and 25299.39.2 of the Health and
Safety Code, relating to hazardous substances, and declaring the
urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 358, as amended, Smyth. Hazardous substances: underground
storage tanks: corrective action suspension.
releases: reports.
Existing
(1) Existing law generally
regulates the storage of hazardous substances in underground storage
tanks, including requiring underground storage tanks that are used to
store hazardous substances to meet certain requirements.
Existing law requires tank owners and operators to report
unauthorized releases to local agencies and requires the State Water
Resources Control Board to continuously post and update on its
Internet Web site reports of information concerning unauthorized
releases.
Existing law requires owners and operators of underground storage
tanks to take corrective action to an unauthorized release. The State
Water Resources Control Board is authorized to suspend corrective
action at a site, unless the board, in consultation with local
agencies and a California regional water quality control board
(regional board), determines that a site is an emergency site, as
defined. The board is prohibited from suspending certain activities
pursuant to that authority and is required to continue the suspension
under certain conditions. The board is required to adopt regulations
to specify the conditions under which a site is an emergency site,
in that it poses either an imminent threat to public health or safety
or to the environment or a substantial probability of causing a
condition of contamination, nuisance, or pollution.
Under the existing Barry Keene Underground Storage Tank Cleanup
Trust Fund Act of 1989, the board is authorized to expend moneys from
the Underground Storage Tank Cleanup Fund to pay claims to aid
eligible owners and operators of petroleum underground storage tanks
who take corrective action to clean up unauthorized releases from
those tanks.
This bill would require the board to adopt these regulations
specifying the conditions under which a site is an emergency site on
or before January 1, 2012, as emergency regulations. The bill would
exempt the adoption of these regulations from certain requirements
regarding review by the Office of Administrative Law.
The bill would declare that it is to take effect immediately as an
urgency statute.
This bill would instead require each regional board and local
agency to submit a report to the board for all unauthorized releases
using the board's Internet-accessible database, thereby imposing a
state-mandated local program by imposing new duties upon local
agencies. The bill would require the board to annually post and
update on its Internet Web site the information in those reports
concerning unauthorized releases.
The bill would authorize the board to adopt regulations to specify
electronic submission requirements for these reports. The bill would
require the regulations to be adopted as emergency regulations and
would exempt the adoption of these regulations from certain
requirements regarding review by the Office of Administrative Law.
(2) Existing law authorizes the board to close a tank case if that
tank case is under the jurisdiction of a regional board or a local
agency implementing a local oversight program and allows the board to
recommend that a local agency close that tank case if the tank case
is at a site of a local agency that is not implementing the local
oversight program.
This bill would instead authorize the board to require closure of
any underground storage tank case where an unauthorized release has
occurred and would delete the board's authority to recommend closure
to a local agency that is not implementing the local oversight
program.
(3) The bill would declare that it is to take effect immediately
as an urgency statute
(4) 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: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25295 of the Health
and Safety Code is amended to read:
25295. (a) (1) Any An unauthorized
release which that escapes from the
secondary containment, or from the primary containment, if no
secondary containment exists, increases the hazard of fire or
explosion, or causes any deterioration of the
secondary containment of the underground tank system shall be
reported by the owner or operator to the local agency designated
pursuant to Section 25283 within 24 hours after the release has been
detected or should have been detected. A full written report shall be
transmitted by the owner or operator of the underground tank system
to the local agency within five working days of the occurrence of the
release. The report shall describe the nature and volume of the
unauthorized release, any corrective or remedial actions undertaken,
and any further corrective or remedial actions, including
investigative actions, which that will
be needed to clean up the unauthorized release and abate the effects
of the release and a time schedule for implementing these actions.
(2) The local agency shall review the permit whenever there has
been an unauthorized release or when it determines that the
underground tank system is unsafe. In determining whether to modify
or terminate the permit, the local agency shall consider the age of
the tank, the methods of containment, the methods of monitoring, the
feasibility of any required repairs, the concentration of the
hazardous substances stored in the tank, the severity of potential
unauthorized releases, and the suitability of any other long-term
preventive measures which would meet the requirements of this
chapter.
(b) The board shall continuously post and update on its
Web site, but at a minimum, annually on or before December 1, a
report of (1) Each regional
board and local agency shall submit a report to the board for
all unauthorized releases, indicating for each unauthorized release
the responsible party, the site name, the hazardous substance, the
quantity of the unauthorized release if known, and
the actions taken to abate the problem , the source and cause
of the unauthorized release, the underground storage tank system's
record of compliance with this chapter, data on equipment failures,
and any other information that the board deems necessary to implement
this chapter, Chapter 6.75 (commencing with Section 25299.10)
, or the federal act.
(2) The information required by this subdivision shall be
submitted to the board and updated using the board's
Internet-accessible database that accepts data pursuant to Section
13196 of the Water Code.
(3) On and before December 1, 2012, and not less then annually
thereafter, the board shall post and update on its Internet Web site,
the information concerning unauthorized releases in the reports
submitted pursuant to this subdivision.
(4) The board may adopt regulations pursuant to Section 25299.3
that specify requirements for the electronic submission of the
information required in a report submitted pursuant to this
subdivision. If the board adopts these regulations, the board shall
adopt the regulations as emergency regulations in accordance with
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code, and for the purposes of that
chapter, including Section 11349.6 of the Government Code, the
adoption of these regulations is an emergency and shall be considered
by the Office of Administrative Law as necessary to avoid serious
harm to the public peace, health, safety or general welfare.
Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code, including
subdivision (e) of Section 11346.1 of the Government Code, the
emergency regulations adopted pursuant to this subdivision shall be
filed with, but shall not be repealed by, the Office of
Administrative Law and shall remain in effect until revised by the
board.
(c) The reporting requirements imposed by this section are in
addition to any requirements which that
may be imposed by Sections 13271 and 13272 of the Water Code.
SEC. 2. Section 25296.35 of the Health
and Safety Code is amended to read:
25296.35. (a) The board shall develop, implement, and maintain a
system for storing and retrieving data from cases involving
discharges of petroleum from underground storage tanks to allow
regulatory agencies and the general public to use historic data in
making decisions regarding permitting, land use, and other matters.
The system shall be accessible to government agencies and the general
public and shall include the reports submitted to the board by
regional boards or local agencies pursuant to Section 25295 . A
site included in the data system shall be clearly designated as
having no residual contamination if, at the time a closure letter is
issued for the site pursuant to Section 25296.10 or at any time after
that closure letter is issued, the board determines that no residual
contamination remains on the site.
(b) For purposes of this section, "residual contamination" means
the petroleum that remains on a site after a corrective action has
been carried out and the cleanup levels established by the corrective
action plan for the site, pursuant to subdivision (g) of Section
2725 of Title 23 of the California Code of Regulations, have been
achieved.
SEC. 3. Section 25296.40 of the Health
and Safety Code is amended to read:
25296.40. (a) (1) Any owner or operator, or other responsible
party who has a an underground storage
tank case and who believes that the corrective action plan for the
site has been satisfactorily implemented, but where closure has not
been granted, may petition the board for a review of the case.
(2) Upon receipt of a petition pursuant to paragraph (1), the
board may close the any underground storage
tank case or require closure , if the tank case is at
a site under the jurisdiction of a regional board or a local agency
that is implementing a local oversight program under Section 25297.1
and of any underground storage tank case where an
unauthorized release has occurred, if the board determines that
corrective action at the site is in compliance with all of the
requirements of subdivisions (a) and (b) of Section 25296.10 and the
corrective action regulations adopted pursuant to Section 25299.3.
If a tank case is at a site under the jurisdiction of a
local agency that is not implementing a local oversight program
pursuant to Section 25297.1, the board may recommend to the local
agency that the tank case be closed.
(b) Any An aggrieved person may, not
later than 30 days from the date of final action by the board,
pursuant to subdivision (a), file with the superior court a petition
for writ of mandate for review of the decision. If the aggrieved
person does not file a petition for writ of mandate within the time
provided by this subdivision, a board decision shall not be subject
to review by any court. Section 1094.5 of the Code of Civil Procedure
shall govern proceedings for which petitions are filed pursuant to
this subdivision. For purposes of subdivision (c) of Section 1094.5
of the Code of Civil Procedure, the court shall uphold the decision
if the decision is based upon substantial evidence in light of the
whole record.
(c) The authority provided under this section does not limit a
person's ability to petition the board for review under any other
state law.
SEC. 4. Section 25299.39.2 of the
Health and Safety Code is amended to read:
25299.39.2. (a) The manager responsible for the fund shall
notify tank owners or operators who have an active letter of
commitment that has been in an active status for five years or more
and shall review the case history of their tank case on an annual
basis unless otherwise notified by the tank owner or operator within
30 days of the notification. The manager, with approval of the tank
owner or operator, may make a recommendation to the board for
closure. The board may close the any
tank case or require the closure of a any
tank case at a site under the jurisdiction of a
regional board or a local agency implementing a local oversight
program under Section 25297.1 where an unauthorized
release has occurred if the board determines that corrective
action at the site is in compliance with all of the requirements of
subdivisions (a) and (b) of Section 25296.10 and the corrective
action regulations adopted pursuant to Section 25299.3. If a
tank case is at a site under the jurisdiction of a local agency that
is not implementing a local oversight program under Section 25297.1,
the board may recommend to the local agency that the case be closed.
(b) Any An aggrieved person may, not
later than 30 days from the date of final action by the board,
pursuant to subdivision (a), file with the superior court a petition
for writ of mandate for review of the decision. If the aggrieved
person does not file a petition for writ of mandate within the time
provided by this subdivision, a board decision shall not be subject
to review by any court. Section 1094.5 of the Code of Civil Procedure
shall govern proceedings for which petitions are filed pursuant to
this subdivision. For purposes of subdivision (c) of Section 1094.5
of the Code of Civil Procedure, the court shall uphold the decision
if the decision is based upon substantial evidence in light of the
whole record.
(c) The authority provided under this section does not limit a
person's ability to petition the board for review under any other
state law.
SEC. 5. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because a local agency or school district has the
authority to levy service charges, fees, or assessments sufficient to
pay for the program or level of service mandated by this act, within
the meaning of Section 17556 of the Government Code.
SEC. 6. This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
In order to clarify as soon as possible existing oversight
authority regarding the remediation of releases from underground
storage tanks, thereby protecting public health and safety and the
environment, it is necessary that this act take effect immediately as
an urgency statute.
SECTION 1. Section 25296.25 of the Health and
Safety Code is amended to read:
25296.25. (a) (1) Unless the board, in consultation with local
agencies and the regional board, determines that a site is an
emergency site, the board, at the request of a responsible party who
is eligible for reimbursement of corrective action costs under
Chapter 6.75 (commencing with Section 25299.10), may suspend
additional corrective action or investigation work at a site, based
on a preliminary site assessment conducted in accordance with the
corrective action regulations adopted by the board, but the board
shall not suspend any of the following activities pursuant to this
section:
(A) Removal of, or approved modifications of, existing tanks.
(B) Excavation of petroleum saturated soil or removal of excess
petroleum from saturated soil.
(C) Removal of free product from the saturated and unsaturated
zones.
(D) Periodic monitoring to ensure that released petroleum is not
migrating in an uncontrolled manner that will cause the site to
become an emergency site.
(2) For purposes of this subdivision, "emergency site" means a
site that, because of an unauthorized release of petroleum, meets one
of the following conditions:
(A) The site presents an imminent threat to public health or
safety or the environment.
(B) The site poses a substantial probability of causing a
condition of contamination or nuisance, as defined in Section 13050
of the Water Code, or of causing pollution of a source of drinking
water at a level that is a violation of a primary or secondary
drinking water standard adopted by the State Department of Public
Health pursuant to Chapter 4 (commencing with Section 116270) of Part
12 of Division 104.
(b) The suspension shall continue until one of the following
occurs:
(1) The board provides the eligible responsible party with a
letter of commitment pursuant to Chapter 6.75 (commencing with
Section 25299.10) that the party will receive reimbursement for the
corrective action.
(2) The responsible party requests in writing that the suspension
be terminated and that the work continue.
(3) The fund established pursuant to Article 6 (commencing with
Section 25299.50) of Chapter 6.75 is no longer in existence.
(c) (1) On or before January 1, 2012, the board shall adopt
emergency regulations pursuant to Section 25299.3 that specify the
conditions under which a site is an imminent threat to public health
or safety or to the environment or poses a substantial probability of
causing a condition of contamination, nuisance, or pollution, as
specified in paragraph (2) of subdivision (a).
(2) These emergency regulations shall be adopted in accordance
with Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code, and for the purposes of
that chapter, including Section 11349.6 of the Government Code, the
adoption of these regulations is an emergency and shall be considered
by the Office of Administrative Law as necessary for the immediate
preservation of the public peace, health and safety, and general
welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, including
subdivision (e) of Section 11346.1 of the Government Code, the
emergency regulations adopted pursuant to this subdivision shall be
filed with, but shall not be repealed by, the Office of
Administrative Law and shall remain in effect until revised by the
board.
(3) The board shall not suspend corrective action or investigation
work at any site pursuant to this section until the effective date
of the emergency regulations adopted by the board pursuant to this
subdivision.
SEC. 2. This act is an urgency statute
necessary for the immediate preservation of the public peace, health,
or safety within the meaning of Article IV of the Constitution and
shall go into immediate effect. The facts constituting the necessity
are:
In order to better protect public health and safety and the
environment by clarifying the procedures for corrective actions, it
is necessary that this act take effect immediately.