BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1566
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          Date of Hearing:   March 20, 2012

           ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
                                Bob Wieckowski, Chair
                  AB 1566 (Wieckowski) - As Amended:  March 15, 2012
           
          SUBJECT  :   Aboveground storage tanks:  enforcement.

           SUMMARY  :   Authorizes the Office of the State Fire Marshal 
          (State Fire Marshal) to regulate the Aboveground Petroleum 
          Storage Act (APSA) and makes conforming changes to the APSA.  
          Specifically,  this bill  :

          1)Redefines "aboveground storage tank" (AST) or "storage tank" 
            as a tank that has the capacity to store 55 gallons or more of 
            petroleum including, but not limited to, a tank located in an 
            underground area.

          2)Defines "tank in an underground area" as a tank located in a 
            structure that is at least 10 percent below the ground 
            surface, 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.  Requires the underground area to be 
            capable of containing any discharge from the primary 
            containment, including piping and ancillary equipment, until 
            the occurrence of the cleanup of the discharge.

          3)Requires the State Fire Marshal to establish an advisory 
            committee that includes representatives from regulated 
            entities, appropriate trade associations, fire service 
            organizations, federal, state and local organizations, 
            including UPAs, and other interested parties.  The advisory 
            committee shall act in an advisory capacity to the office in 
            conducting its responsibilities.

          4)Requires the State Fire Marshal to ensure consistency with 
            state law and federal enforcement guidance issued by federal 
            agencies and to provide outreach to regulated persons 
            regarding compliance with local, state and federal regulations 
            relevant to the APSA.

          5)Exempts from the definition of "underground storage tank" 
            (UST) a tank, and associated piping, in an underground area 
            that is subject to the APSA.







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          6)Authorizes the State Fire Marshal to adopt regulations to 
            implement the APSA.  Requires the State Fire Marshal to 
            provide interpretation of the APSA to the Certified Unified 
            Program Agencies (CUPAs), and to oversee the implementation of 
            the APSA by the CUPAs.

          7)Requires regulations adopted by the State Fire Marshal 
            pursuant to the APSA to ensure consistency with the 
            requirements for spill prevention, control, and countermeasure 
            (SPCC) plans under the U.S. Code of Federal Regulations (40 
            C.F.R. part 112), and to include any more stringent 
            requirements necessary to implement the APSA.

          8)Establishes, for violation of the APSA, an administrative 
            penalty of not more than five thousand dollars ($5,000) for 
            each day on which the violation continues.  Authorizes, if the 
            owner or operator commits a second or subsequent violation, an 
            administrative penalty to be imposed of not more than ten 
            thousand dollars ($10,000) for each day on which the violation 
            continues.

          9)Requires the administrative penalties assessed by a CUPA to be 
            deposited into a unified program account established by the 
            CUPA for the purpose of carrying out the functions of the 
            unified program.

          10)Provides that the penalties specified in this section are in 
            addition to any other penalties provided by law.

          11)Provides that a person who knowingly violates the APSA, after 
            reasonable notice of the violation, is, upon conviction, 
            guilty of a misdemeanor.

          12)Clarifies that this section does not preempt any other 
            applicable criminal or civil penalties.

          13)Makes other conforming changes.

           EXISTING LAW  :

          1) Under the APSA (Health and Safety Code (HSC) §25270 et seq.):

             a)    Defines an "aboveground storage tank" or "storage tank" 
                as a tank that has the capacity to store 55 gallons or 







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                more of petroleum and that is substantially or totally 
                above the surface of the ground, except as specifically 
                exempted.

             b)    Requires the CUPA to implement the APSA.  Sets 
                inspection requirements.

             c)    Requires each owner or operator of a storage tank at a 
                tank facility, except as specified, to prepare a SPCC plan 
                prepared in accordance with the U.S. Code of Federal 
                Regulations.

             d)    Exempts a tank facility located on a farm, nursery, 
                logging site, or construction site from having to prepare 
                an SPCC plan if no storage tank at the location exceeds 
                20,000 gallons and the cumulative storage capacity of the 
                tank facility does not exceed 100,000 gallons.  Requires 
                the owner or operator of an exempt tank facility to take 
                specified actions.

             e)    Authorizes the State Water Resources Control Board 
                (SWRCB) and the Regional Water Quality Control Boards 
                (RWQCBs) to oversee cleanup or abatement efforts, or cause 
                cleanup or abatement efforts, of a release from a storage 
                tank at a tank facility.

             f)    Establishes the Environmental Protection Trust Fund 
                (Fund) to provide resources to train and assist CUPAs with 
                implementation of the APSA.

             g)    Establishes civil penalties for violation of the APSA.

          2) Defines "underground storage tank" as any one or combination 
             of tanks, including pipes connected thereto, that is used for 
             the storage of hazardous substances and that is substantially 
             or totally beneath the surface of the ground, except as 
             specifically exempted.

          3) Provides that any person who intentionally disables or 
             tampers with an automatic leak detection system on an UST in 
             a manner that would prevent the automatic leak detection 
             system from detecting a leak or alerting the owner or 
             operator of the leak, shall, upon conviction, be punished by 
             a fine of not less than five thousand dollars ($5,000) or 
             more than ten thousand dollars ($10,000), by imprisonment in 







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             the county jail for not more than one year, or by both the 
             fine and imprisonment.

          4) Describes the process for the development of adoption and 
             interpretation of 
          statewide standards and requirements for programs administration 
             by the CUPAs.

          5) Authorizes a CUPA, if it determines that a person has 
             committed a violation of any law, regulation, permit, 
             information request, order, variance, or other requirement 
             that the CUPA is authorized to enforce or implement, to issue 
             an administrative enforcement order requiring that the 
             violation be corrected and to impose an administrative 
             penalty.

          6) Establishes, under the federal SPCC rule (40 C.F.R. part 112) 
             and under federal UST rule (40 C.F.R. part 280), requirements 
             regarding storage tanks.

           FISCAL EFFECT  :  Unknown.

           COMMENTS  :
           
          Background on the AST program  :  The APSA was established 
          following a major spill event in Martinez, California in April 
          1988, during which an estimated 400,000 gallons of crude oil 
          spilled into sensitive marshes, the Suisun Bay and the Bay Delta 
          Estuary.  The APSA required the RWQCBs to oversee inspections of 
          AST facilities to ensure that a federally mandated SPCC plan was 
          in place, that tanks were not leaking, and that a monitoring 
          program was undertaken, if necessary.  It also required owners 
          and operators of ASTs, which at the time was approximately 4,500 
          fee paying AST facilities, to file a storage statement and 
          submit a biennial registration fee to the SWRCB.  The SWRCB was 
          then required to use these fees to support the inspection 
          program.  The APSA also required CUPAs to enforce the 
          requirements of the APSA regarding the SPCCs.

          According to the SWRCB, in fiscal year 2002-03, due to the 
          State's fiscal crisis, the funding authority and positions for 
          the AST inspection program were eliminated from the SWRCB's and 
          the RWQCB's budgets (Budget Act of 2002-03, Control Section 
          31.60).  As a result, the SWRCB and the RWQCBs discontinued the 
          AST inspection program.  While the intent of the budget change 







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          was to transfer the inspection program to the CUPAs, 
          complementary statutory changes were not made and no inspections 
          by any agency were conducted.  However, as was required by law, 
          the owners and operators of AST facilities continued to pay the 
          biennial fee into the Fund, which eventually obtained a balance 
          of approximately $7.5 million.

          AB 1130 (Laird, Chapter 626, Statutes of 2007) attempted to 
          repair the AST program by transferring the responsibility for 
          the implementation, enforcement, and administration of the APSA 
          from the SWRCB and RWQCBs to local environmental health and fire 
          departments sanctioned under law as CUPAS.  In addition to other 
          technical changes to the program, the bill deleted the existing 
          fee structure and in its place authorized the CUPAs to collect a 
          fee, beginning January 1, 2010, to cover reasonable and 
          necessary program costs.

           Statewide oversight  :  According to the sponsors, the APSA is 
          currently the only local environmental health program lacking 
          State oversight.  Because there are 83 CUPAs, at times they 
          differ in their interpretation of the APSA.  Therefore, AB 1566 
          provides statewide consistency and one point of contact for the 
          AST program by assigning regulatory authority of the program to 
          the State Fire Marshal.  The State Fire Marshal was selected as 
          the appropriate oversight agency because many of the aspects of 
          AST regulations are similar to other regulatory programs 
          implemented by the State Fire Marshal, such as fire codes and 
          pipeline safety.

           Penalty provisions  :  Current AST law provides that any owner or 
          operator of a tank facility who fails to prepare an SPCC plan, 
          to file a tank facility statement, to submit the required fee, 
          to report spills, or to otherwise to comply with the APSA 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.  AST law does not explicitly authorize administrative 
          or criminal penalties (HSC §25270.12).

          In contrast to AST law, UST law (HSC §25280 et seq.), in 
          addition to providing for civil penalties, provides for criminal 
          penalties for violations that include falsifying monitoring 
          records, knowingly failing to report an unauthorized release, 







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          and intentionally disabling or tampering with an automatic leak 
          detection system (HSC §25299).  In addition, Chapter 6.11 of 
          Division 20 of the HSC authorizes a CUPA, if it determines that 
          a person has committed, or is committing, a violation of any 
          law, regulation, permit, information request, order, variance, 
          or other requirement that the CUPA is authorized to enforce or 
          implement, to issue an administrative enforcement order 
          requiring that the violation be corrected and to impose an 
          administrative penalty (HSC §25404.1.1.).

          AB 1566 makes the AST penalty provisions consistent with the 
          other laws consolidated in the Unified Program, including UST 
          law, by adding the authority to levy criminal penalties and by 
          explicitly authorizing administrative penalties.

           Conformance with federal law  :  According to the sponsor, 
          currently there are more than 1000 facilities with lubricating 
          oil and used oil tanks able to be visually inspected in 
          basements or underground areas statewide that fall under the 
          Chapter 6.7 definition of an UST.  Because the UST requirements 
          are designed for monitoring buried tanks, applying APSA rules to 
          tanks in underground areas is typically an expensive engineering 
          challenge combined with the difficulty of meeting varying and 
          inconsistent CUPA requirements.  Further, because authority for 
          the SPCC program is not delegated to the CUPAs, California tank 
          owners and operators with tanks situated on the surface of the 
          floor in underground areas must comply with the federal SPCC 
          rule, as well as Chapter 6.7 and Title 23 of the California Code 
          of Regulations.  For these reasons, the sponsors argue, 
          continuing to regulate these tanks under the existing law is a 
          clear example of excessive bureaucracy that is not working.

          AB 1566 changes definitions in California law in order to 
          rectify these issues and align State statute with the Code of 
          Federal Regulations, Title 40, Part 112 (SPPC) and Part 280 (UST 
          regulation).  The sponsors estimate that this reform may lead to 
          an overall increase in environmental protection because clearly 
          requiring tanks in underground areas to be subject to SPCC 
          requirements under APSA, which is better suited for these types 
          of tanks, will result in more consistent application of the law 
          by CUPAs throughout California and a higher level of compliance 
          within the regulated community.

           Related legislation  :








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          AB 1701 (Wieckowski and Smyth) provides for a uniform local 
          agency certification for the oversight of the cleanup of leaking 
          USTs.  Authorizes, after July 1, 2013, cities and counties to 
          implement the UST cleanup program, subject to certification by 
          the SWRCB.  (Set for hearing on March 20, 2012, in the Assembly 
          Committee on Environmental Safety and Toxic Materials).

          AB 681 (Wieckowski ), Chapter 574, Statutes of 2011, extends 
          Fund expenditures until June 1, 2013, and provides that 
          unexpended funds be deposited in the Unified Program Account for 
          further support for CUPAs' AST activities.

           REGISTERED SUPPORT / OPPOSITION  :

           Support
           
          California Association of Environmental Health Administrators 
          (sponsor)

           Opposition
           
          None on file.
           

          Analysis Prepared by  :    Shannon McKinney / E.S. & T.M. / (916) 
          319-3965