BILL ANALYSIS Ó AB 1566 Page 1 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. AB 1566 Page 2 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 AB 1566 Page 3 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 AB 1566 Page 4 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 AB 1566 Page 5 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, AB 1566 Page 6 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 : AB 1566 Page 7 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