BILL NUMBER: AB 681 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 7, 2011
AMENDED IN SENATE JUNE 22, 2011
INTRODUCED BY Assembly Member Wieckowski
FEBRUARY 17, 2011
An act to amend Sections 25270.2, 25270.4, 25270.11, 25270.12, and
25404.1 of, and to add Sections 25270.4.1, 25270.12.1, and
25270.12.5 to, the Health and Safety Code, relating to aboveground
storage tanks.
LEGISLATIVE COUNSEL'S DIGEST
AB 681, as amended, Wieckowski. Aboveground storage tanks:
enforcement.
(1) The Aboveground Petroleum Storage Act (act) defines, for
purposes of the act, an "aboveground storage tank" as a tank that has
the capacity to store 55 gallons or more of petroleum and that is
substantially or totally above the surface of the ground, except as
specified. Existing law requires every county to apply to the
Secretary for Environmental Protection to be certified to implement
the unified hazardous waste and hazardous materials management
regulatory program (unified program) and allows a city or local
agency to implement the unified program. Existing law requires the
unified program agencies (UPAs) to implement that act.
This bill would revise the definition of "aboveground storage tank"
to include tanks located in underground areas, as defined. The bill
would require the UPAs to implement the act in accordance with the
regulations adopted by the Office of the State Fire Marshal and would
authorize the Office of the State Fire Marshal to adopt these
regulations, thereby imposing a state-mandated local program by
imposing new requirements upon local agencies with regard to the act.
The bill would also require the office to interpret the act and
oversee the implementation of the act by the UPAs and would make
conforming changes in that regard.
The bill would impose criminal penalties for a violation of the
act, thereby imposing a state-mandated local program by creating new
crimes, and would impose administrative penalties for a violation of
the act.
(2) Existing law makes the Environmental Protection Trust Fund
and the training account in that fund inoperative as of July 1, 2011,
and repeals the fund and account as of January 1, 2012. Until July
1, 2011, existing law authorizes the expenditure of a portion of the
moneys in the Environmental Protection Trust Fund, upon appropriation
by the Legislature, to a training account established and maintained
by the Secretary for Environmental Protection and allocates all
remaining funds to the UPAs for expenditure to implement the act.
This bill would make the fund and account operative until July 1,
2013, and would repeal the fund and the account on January 1, 2014.
(3) Existing law requires all aspects of the unified program
related to the adoption and interpretation of statewide standards and
requirements to be the responsibility of the state agency that is
charged with that responsibility.
This bill would require the Office of the State Fire Marshal to be
the state agency that is charged with this responsibility for
aboveground petroleum storage tanks.
(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 specified reasons.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25270.2 of the Health and Safety Code is
amended to read:
25270.2. For purposes of this chapter, the following definitions
apply:
(a) "Aboveground storage tank" or "storage tank" means a tank that
has the capacity to store 55 gallons or more of petroleum and that
is substantially or totally above the surface of the ground or as
provided in subparagraph (B) of paragraph (5). "Aboveground storage
tank" does not include any of the following:
(1) A pressure vessel or boiler that is subject to Part 6
(commencing with Section 7620) of Division 5 of the Labor Code.
(2) A tank containing hazardous waste, as described in subdivision
(g) of Section 25316, if the Department of Toxic Substances Control
has issued the person owning or operating the tank a hazardous waste
facilities permit for the storage tank.
(3) An aboveground oil production tank that is subject to Section
3106 of the Public Resources Code.
(4) Oil-filled electrical equipment, including, but not limited
to, transformers, circuit breakers, or capacitors, if the oil-filled
electrical equipment meets either of the following conditions:
(A) The equipment contains less than 10,000 gallons of dielectric
fluid.
(B) The equipment contains 10,000 gallons or more of dielectric
fluid with PCB levels less than 50 parts per million, appropriate
containment or diversionary structures or equipment are employed to
prevent discharged oil from reaching a navigable water course, and
the electrical equipment is visually inspected in accordance with the
usual routine maintenance procedures of the owner or operator.
(5) (A) A tank regulated as an underground storage tank under
Chapter 6.7 (commencing with Section 25280) of this division and
Chapter 16 (commencing with Section 2610) of Division 3 of Title 23
of the California Code of Regulations.
(B) Notwithstanding subparagraph (A), a tank located in an
underground area that is exempt from Chapter 6.7 (commencing with
Section 25280) shall be regulated as an underground
aboveground storage tank for purposes of this
chapter.
(6) A transportation-related tank facility, subject to the
authority and control of the United States Department of
Transportation, as defined in the Memorandum of Understanding between
the Secretary of Transportation and the Administrator of the United
States Environmental Protection Agency, dated November 24, 1971, set
forth in Appendix A to Part 112 (commencing with Section 112.1) of
Subchapter D of Chapter I of Title 40 of the Code of Federal
Regulations.
(b) "Board" means the State Water Resources Control Board.
(c) (1) "Certified Unified Program Agency" or "CUPA" means the
agency certified by the Secretary for Environmental Protection to
implement the unified program specified in Chapter 6.11 (commencing
with Section 25404) within a jurisdiction.
(2) "Participating Agency" or "PA" means an agency that has a
written agreement with the CUPA pursuant to subdivision (d) of
Section 25404.3, and is approved by the secretary, to implement and
enforce the unified program element specified in paragraph (2) of
subdivision (c) of Section 25404, in accordance with Sections 25404.1
and 25404.2.
(3) (A) "Unified Program Agency" or "UPA" means the CUPA, or its
participating agencies to the extent that each PA has been designated
by the CUPA, pursuant to a written agreement, to implement and
enforce the unified program element specified in paragraph (2) of
subdivision (c) of Section 25404. The UPAs have the responsibility
and authority, to the extent provided by this chapter and Sections
25404.1 and 25404.2, to implement and enforce the requirements of
this chapter.
(B) After a CUPA has been certified by the secretary, the unified
program agency shall be the only agency authorized to enforce the
requirements of this chapter.
(C) This paragraph does not limit the authority or responsibility
granted to the office, the board, and the regional boards by this
chapter.
(d) "Office" means the Office of the State Fire Marshal.
(e) "Operator" means the person responsible for the overall
operation of a tank facility.
(f) "Owner" means the person who owns the tank facility or part of
the tank facility.
(g) "Person" means an individual, trust, firm, joint stock
company, corporation, including a government corporation,
partnership, limited liability company, or association. "Person" also
includes any city, county, district, the University of California,
the California State University, the state, any department or agency
thereof, and the United States, to the extent authorized by federal
law.
(h) "Petroleum" means crude oil, or a fraction thereof, that is
liquid at 60 degrees Fahrenheit temperature and 14.7 pounds per
square inch absolute pressure.
(i) "Regional board" means a California regional water quality
control board.
(j) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, escaping, leaching, or disposing
into the environment.
(k) "Secretary" means the Secretary for Environmental Protection.
(l) "Storage" or "store" means the containment, handling, or
treatment of petroleum, for a period of time, including on a
temporary basis.
(m) "Storage capacity" means the aggregate capacity of all
aboveground tanks at a tank facility.
(n) "Tank facility" means one or more aboveground storage tanks,
including any piping that is integral to the tanks, that contain
petroleum and that are used by an owner or operator at a single
location or site. For purposes of this chapter, a pipe is integrally
related to an aboveground storage tank if the pipe is connected to
the tank and meets any of the following:
(1) The pipe is within the dike or containment area.
(2) The pipe is between the containment area and the first flange
or valve outside the containment area.
(3) The pipe is connected to the first flange or valve on the
exterior of the tank, if state or federal law does not require a
containment area.
(o) "Underground area" means an underground room or space,
including, but not limited to, a basement, cellar, shaft, pit, or
vault, providing enough space for physical inspection of the exterior
of the tank situated on or above the surface of the floor.
SEC. 2. Section 25270.4 of the Health and Safety Code is amended
to read:
25270.4. This chapter shall be implemented by the Unified Program
Agency, in accordance with the regulations adopted by the office
pursuant to Section 25270.4.1. If there is no UPA, the agency
authorized pursuant to subdivision (f) of Section 25404.3 shall be
deemed to be the UPA for purposes of this chapter and shall implement
this chapter.
SEC. 3. Section 25270.4.1 is added to the Health and Safety Code,
to read:
25270.4.1. (a) The office may adopt regulations implementing this
chapter. The office shall also provide interpretation of this
chapter to the UPAs, and oversee the implementation of this chapter
by the UPAs.
(b) Any regulation adopted by the office pursuant to this section
shall ensure consistency with the requirements for spill prevention,
control, and countermeasure plans under Part 112 (commencing with
Section 112.1) of Subchapter D of Chapter I of Title 40 of the Code
of Federal Regulations, and shall include any more stringent
requirements necessary to implement this chapter.
SEC. 4. Section 25270.11 of the Health and Safety Code is amended
to read:
25270.11. (a) All moneys in the Environmental Protection Trust
Fund may be expended, upon appropriation by the Legislature, in the
following manner:
(1) A portion of the funds, in an amount determined by the
secretary in consultation with the UPAs, to a training account
established and maintained by the secretary, to be used for purposes
of training UPA personnel in the requirements of this chapter.
(2) All remaining funds in the Environmental Protection Trust
Fund, shall be allocated to the UPAs, in accordance with a formula
and process determined by the secretary in consultation with the
UPAs. The UPAs shall expend those funds for the purpose of
implementing this chapter. Eighty percent or less of each UPA's
allocation may be distributed to the UPA in advance of actual
expenditure by the UPA.
(b) All moneys remaining in the training account established
pursuant to paragraph (1) of subdivision (a), as of June 1, 2013, may
be expended pursuant to paragraph (2) of subdivision (a), upon
appropriation by the Legislature.
(c) All moneys remaining in the Environmental Protection Trust
Fund that have not been expended, as of June 1, 2013, shall be
deposited into the Unified Program Account created pursuant to
Section 25404.5 and expended pursuant to paragraph (2) of subdivision
(a), upon appropriation by the Legislature.
(d) This section shall become inoperative on July 1, 2013, and, as
of January 1, 2014, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2014, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 5. Section 25270.12 of the Health and Safety Code is amended
to read:
25270.12. (a) Any owner or operator of a tank facility who fails
to prepare a spill prevention control and countermeasure plan in
compliance with subdivision (a) of Section 25270.4.5, to file a tank
facility statement pursuant to subdivision (a) of Section 25270.6, to
submit the fee required by subdivision (b) of Section 25270.6, to
report spills as required by Section 25270.8, or otherwise fails to
comply with the requirements of this chapter, is subject to a civil
penalty of not more than five thousand dollars ($5,000) for each day
on which the violation continues. If the owner or operator commits a
second or subsequent violation, a civil penalty of not more than ten
thousand dollars ($10,000) for each day on which the violation
continues may be imposed.
(b) (1) The civil penalties provided by this section may be
assessed and recovered in a civil action brought by the city attorney
or district attorney on behalf of the UPA.
(2) Fifty percent of all penalties assessed and recovered in a
civil action brought on behalf of a UPA pursuant to this subdivision
shall be deposited into a unified program account established by the
UPA for the purpose of carrying out the functions of the unified
program and 50 percent shall be paid to the office of the city
attorney or district attorney, whoever brought that action.
(c) (1) The civil penalties provided in this section may be
assessed and recovered in a civil action brought by the Attorney
General on behalf of the office, the board, or a regional board, or
on behalf of the people of the State of California.
(2) All penalties assessed and recovered in a civil action brought
pursuant to this subdivision shall be deposited in the Waste
Discharge Permit Fund. These moneys shall be separately accounted
for, and shall be expended by the board, upon appropriation by the
Legislature, to assist regional boards and other public agencies with
authority to clean up waste or abate the effects of the waste, in
cleaning up or abating the effects of the waste on waters of the
state, or for the purposes authorized in Section 13443.
(d) The city attorney, district attorney, or the Attorney General
may seek to enjoin, in any court of competent jurisdiction, any
person believed to be in violation of this chapter.
(e) The penalties specified in this section are in addition to any
other penalties provided by law.
SEC. 6. Section 25270.12.1 is added to the Health and Safety Code,
to read:
25270.12.1. (a) An owner or operator of a tank facility who fails
to prepare a spill prevention control and countermeasure plan in
compliance with subdivision (a) of Section 25270.4.5, to file a tank
facility statement pursuant to subdivision (a) of Section 25270.6, to
submit the fee required by subdivision (b) of Section 25270.6, to
report spills as required by Section 25270.8, or who otherwise fails
to comply with the requirements of this chapter is liable to the UPA
for an administrative penalty of not more than five thousand dollars
($5,000) for each day on which the violation continues. If the owner
or operator commits a second or subsequent violation, an
administrative penalty of not more than ten thousand dollars
($10,000) for each day on which the violation continues may be
imposed.
(b) The administrative penalties assessed by a UPA shall be
deposited into a unified program account established by the UPA for
the purpose of carrying out the functions of the unified program.
(c) The penalties specified in this section are in addition to any
other penalties provided by law.
(d) When a UPA issues an enforcement order or assesses an
administrative penalty, or both, for a violation of this chapter, the
administering agency shall utilize the administrative enforcement
procedures specified in Sections 25404.1.1 and 25404.1.2.
SEC. 7. Section 25270.12.5 is added to the Health and Safety Code,
to read:
25270.12.5. (a) A person that knowingly violates Section
25270.4.5, 25270.6, or 25270.8 after reasonable notice of the
violation is, upon conviction, guilty of a misdemeanor.
(b) This section does not preempt any other applicable criminal or
civil penalties.
SEC. 8. Section 25404.1 of the Health and Safety Code is amended
to read:
25404.1. (a) (1) All aspects of the unified program related to
the adoption and interpretation of statewide standards and
requirements shall be the responsibility of the state agency that is
charged with that responsibility under existing law. For underground
storage tanks, that agency shall be the State Water Resources Control
Board. The California regional water quality control boards shall
have responsibility for the issuance of variances pursuant to
subdivision (b) of Section 25299.4. The Department of Toxic
Substances Control shall have the sole responsibility for the
issuances of variances from the requirements of Chapter 6.5
(commencing with Section 25100) and the regulations adopted pursuant
thereto, for the determination of whether or not a waste is hazardous
or nonhazardous, for the determination of whether or not a person is
eligible to be deemed to be operating pursuant to a permit-by-rule,
conditional authorization, or conditional exemption pursuant to
Chapter 6.5 (commencing with Section 25100) or the regulations
adopted by the department, and for the suspension and revocation of
permits-by-rule, conditional authorizations, and conditional
exemptions. The Office of the State Fire Marshal shall be the state
agency that is charged with the responsibility for the adoption and
interpretation of statewide standards for aboveground petroleum
storage tanks.
(2) Except as provided in paragraphs (1) and (3), those aspects of
the unified program related to the application of statewide
standards to particular facilities, including the issuance of unified
program facility permits, the review of reports and plans,
environmental assessment, compliance and correction, and the
enforcement of those standards and requirements against particular
facilities, shall be the responsibility of the unified program
agencies.
(3) (A) Except in those jurisdictions for which the UPA has been
determined by the department, in accordance with regulations adopted
pursuant to subparagraph (C), to be qualified to implement the
environmental assessment and removal and remediation corrective
action aspects of the unified program, the department shall have sole
responsibility and authority under the unified program for all of
the following:
(i) Implementing and enforcing the requirements of paragraph (3)
of subdivision (c) of Section 25200.3 and Sections 25200.10 and
25200.14, and the regulations adopted by the department to implement
those sections. As a pilot program in up to 10 counties, pending the
adoption and implementation of regulations pursuant to subparagraph
(C), the department may delegate to the CUPA, through a delegation
agreement, responsibility and authority for implementing and
enforcing the requirements of Section 25200.14.
(ii) The issuance of orders under Section 25187 requiring removal
or remedial action.
(iii) The issuance of orders under Section 25187.1.
(B) Notwithstanding subparagraph (A), a UPA may issue an order
under Section 25187 specifying a schedule for compliance or
correction and imposing an administrative penalty for any violation
of the requirements of Chapter 6.5 (commencing with Section 25100)
listed in paragraph (1) of subdivision (c) of Section 25404, or the
requirements of any permit, rule, regulation, standard or requirement
issued or adopted pursuant to the requirements of Chapter 6.5
(commencing with Section 25100) listed in paragraph (1) of
subdivision (c) of Section 25404, if one of the following applies:
(i) The order does not require removal or remedial action.
(ii) The only removal or remedial actions required by the order
are those actions determined to be necessary to address an imminent
and substantial endangerment based upon a finding by the UPA pursuant
to subdivision (h) of Section 25187.
(C) The department shall adopt emergency regulations specifying
the criteria and procedures for implementing paragraph (3) of
subdivision (c) of Section 25200.3 and Sections 25200.10 and
25200.14, including criteria and procedures for determining whether
or not a unified program agency is qualified to implement the
environmental assessment and removal and remediation corrective
action portions of the unified program under paragraph (3) of
subdivision (c) of Section 25200.3 and Sections 25187, 25187.1,
25200.10, and 25200.14. The criteria for determining whether a
unified program agency is qualified shall, at a minimum, include
consideration of the following factors:
(i) Adequacy of the technical expertise possessed by the unified
program agency.
(ii) Adequacy of staff resources.
(iii) Adequacy of budget resources and funding mechanisms.
(iv) Training requirements.
(v) Past performance in implementing and enforcing requirements
related to environmental assessments, and removal and remediation
corrective actions.
(vi) Recordkeeping and accounting systems.
(D) The regulations adopted by the department pursuant to
subparagraph (C) shall include provisions to ensure coordinated and
consistent application of paragraph (3) of subdivision (c) of Section
25200.3 and Sections 25187, 25187.1, 25200.10, and 25200.14, when
both the department and the unified program agency are, or will be,
implementing and enforcing the requirements of one or more of these
sections at the same facility.
(E) For purposes of subparagraph (D), "facility" means the entire
site that is under the control of the owner or operator.
(F) If the department is designated as a unified program agency,
the department is deemed qualified to implement all of the following:
(i) The environmental assessment, removal and remedial action, and
corrective action aspects of the unified program.
(ii) Paragraph (3) of subdivision (c) of Section 25300.3, Sections
25200.10, 25200.14, 25187, and 25287.1, and the regulations adopted
by the department to implement those provisions.
(b) (1) On or before January 1, 1996, each county shall apply to
the secretary to be certified as a unified program agency to
implement the unified program within the unincorporated area of the
county and within each city in the county, in which area or city, as
of January 1, 1996, the city or other local agency has not applied to
be the certified unified program agency.
(2) (A) Any city or other local agency which, as of December 31,
1995, has been designated as an administering agency pursuant to
Section 25502, or which has assumed responsibility for the
implementation of Chapter 6.7 (commencing with Section 25280)
pursuant to Section 25283, may apply to the secretary to become the
certified unified program agency to implement the unified program
within the jurisdictional boundaries of the city or local agency.
(B) A city or other local agency which, as of December 31, 1995,
has not been designated as an administering agency pursuant to
Section 25502, or which has not assumed responsibility for the
implementation of Chapter 6.7 (commencing with Section 25280)
pursuant to Section 25283, may apply to the secretary to become the
certified unified program agency within the jurisdictional boundaries
of the city or local agency if it enters into an agreement with the
county to become the certified unified program agency within those
boundaries. A county shall not refuse to enter into an agreement
unless it specifies in writing its reasons for failing to enter into
the agreement. However, if the city does not enter into the agreement
with the county, within 30 days of receiving a county's reasons for
failing to enter into agreement, a city may request that the
secretary allow it to apply to be a certified unified program agency
and the secretary may, in his or her discretion, approve the request.
(3) A city, county, or other local agency may propose, in its
application for certification to the secretary, to allow other public
agencies to implement certain elements of the unified program, but
the secretary shall accept that proposal only if the secretary makes
the findings specified in subdivision (d) of Section 25404.3.
(4) If a city or other local agency which, as of December 31,
1995, has been designated as an administering agency pursuant to
Section 25502, or has assumed responsibility for the implementation
of Chapter 6.7 (commencing with Section 25280) pursuant to Section
25283, requests that the county propose in its application for
certification to the secretary that the city or local agency
implement, within the jurisdictional boundaries of the city or local
agency, those elements of the unified program which, as of December
31, 1995, the city or local agency has authority to administer, the
county shall grant that request. If such an agency is subsequently
removed or withdraws from the unified program, the agency shall not
act as an administering agency under Section 25502 or act as a local
agency pursuant to Chapter 6.7 (commencing with Section 25280),
except as provided in subdivision (c) of Section 25283.
SEC. 9. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
costs may be incurred by a local agency or school district 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, or 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.