BILL ANALYSIS Ó AB 1566 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator S. Joseph Simitian, Chairman 2011-2012 Regular Session BILL NO: AB 1566 AUTHOR: Wieckowski AMENDED: May 25, 2012 FISCAL: Yes HEARING DATE: July 2, 2012 URGENCY: No CONSULTANT: Joanne Roy SUBJECT : ABOVEGROUND STORAGE TANKS SUMMARY : Existing law : 1) Pursuant to the federal Spill Prevention Control and Countermeasure (SPCC) rule (40 CFR Part 112), requires owners and operators of tank facilities to prepare and implement an SPCC Plan which is enforceable by Unified Program Agencies (UPAs). 2) Under the Aboveground Petroleum Storage Act (APSA) (Health and Safety Code §25270 et seq.): a) Defines "aboveground storage tank" (AST) as a "tank that has the capacity to store 55 gallons or more of petroleum and that is substantially or totally above the ground," except as specified. (§25270.2(a)). b) Defines "petroleum" as "crude oil, or a fraction thereof, that is liquid at 60 degrees Fahrenheit temperature and 14.7 pounds per square inch absolute pressure." (§25270.2(h)). c) Defines "tank facility" as one or more ASTs, including any piping integral to the tanks, that contain petroleum and that are used by the owner or operator at a single location or site. (§25270.2(m)). d) Requires the UPAs to implement APSA. (§25270.4) . e) Requires tank facilities with storage capacity AB 1566 Page 2 between 1,320 gallons and 10,000 gallons to be subject to the requirements of APSA. (§25270.3). f) Requires the owner or operator of an AST to prepare a spill prevention control and countermeasure plan, periodically inspect the AST, and allow the UPA to inspect as well. (§25270.4.5). g) Requires UPAs to inspect tank facilities with a 10,000 gallon minimum total storage capacity at least once every three years. (§25270.5). h) Requires the owner or operator to pay a fee to cover implementation costs of APSA. (§25270.6). i) Authorizes the State Water Resources Control Board (SWRCB) and regional water quality control boards (RWQCBs) to oversee cleanup or abatement efforts of unauthorized releases from ASTs. (§25270.9). j) Authorizes funds in the Environmental Protection Trust Fund (Fund) to be used for training UPAs and implementing APSA, and sunsets expenditures on July 1, 2013. (§25270.11). aa) Establishes civil penalties for violation of APSA and allocates those penalties back to the Fund. (§25270.12). 3) Describes the process for the adoption and interpretation of statewide standards and requirements for program administration by the UPAs. (§25404.1). 4) Exempts a tank located in a below-grade structure that is connected to an emergency generator tank system and meets specified conditions from requirements imposed on underground storage tanks, one condition being that the tank or combination of tanks has a cumulative capacity of 1,100 gallons or less of diesel fuel. (§25281.6). This bill : 1) Expands the definition of "aboveground storage tank" to AB 1566 Page 3 include a "tank in an underground area." 2) Defines a "tank in an underground area" as at least 10 percent below the ground surface and contained in a structure that provides secondary containment. The tank may contain specified liquids and specific conditions are required based on the liquid contained in the tank. 3) Requires the Office of the State Fire Marshal (OSFM) to adopt regulations and provide guidance and oversight to UPAs implementing APSA. OSFM must: a) establish an advisory committee made up of a variety of stakeholders; and b) provide training, ensure consistency with state and federal law, and support UPAs in outreach efforts to the regulated community. 4) Allows money in the Waste Discharge Permit Fund to be used by an RWQCB to remedy a significant unforeseen water pollution problem and other specified actions. 5) Authorizes UPAs to assess administrative penalties on an owner or operator for failing to meet the requirements of APSA and provides that violations of specified APSA requirements are a misdemeanor. 6) Increases the maximum cumulative capacity of specified tanks exempted from requirements imposed on underground storage tanks from 1,100 gallons to 1,320 gallons. COMMENTS : 1) Purpose of Bill . The sponsor, California Association of Environmental Health Administrators, states that "this measure will clarify the definition of what is commonly referred to a 'vaulted tank' and will establish the ÝOSFM] as the oversight agency for the aboveground tank program element within the Unified Program. There exists tension and confusion over exactly how these below-grade but not 'underground' or 'in-the-ground' tanks should be regulated. This bill clarifies the distinction between these two types of petroleum storage tanks. Furthermore, AB 1566 designates the ÝOSFM] as the State oversight agency for the aboveground tank program element that was transferred from AB 1566 Page 4 SWRCB to the certified unified program agencies (CUPAs) some years back. As in all the other elements of the Unified Program, the State oversight agencies assist in providing training and offering interpretation in program implementation - thus enhancing consistency and coordination in program management." 2) Background . UPAs regulate facilities with ASTs containing petroleum-based substances. These typically include large petroleum tank facilities, aboveground fuel tank stations and vehicle repair shops with aboveground petroleum storage tanks. There are approximately 9,000 regulated facilities covered by APSA requirements. 3) "Tank In an Underground Area" . AB 1566 expands the definition of "aboveground storage tank" to include a "tank in an underground area" which is commonly referred to as a "vaulted" tank. For example, these vaulted tanks are typically used in oil change service shops. The proposed definition requires the tank to be above the surface of the floor, able to be physically inspected, and meet either of the following conditions: a) If the tank contains oil or coolant to be used as a lubricant in a motor engine or transmission or used oil or coolants, then the tank must be situated to allow for physical inspection of the exterior of the tank except for the part of the tank in contact with the surface of the floor. b) If the tank contains motor fuel, then the tank must be situated to allow for physical inspection of the exterior of the tank including all piping connected to the tank including any portion of a vent line, vapor recovery line, or fill pipe that is beneath the surface of the ground, and all ancillary equipment. Oil/coolant tanks are receptacles and almost exclusively do not have ancillary piping connected to the tank and the liquid is drained in and pumped out. On the other hand, motor fuel tanks have ancillary piping which has the potential to leak. AB 1566 Page 5 4) Opposition . The U.S. Department of Defense contends that the proposed definition of "tank in an underground area" is too restrictive by limiting the contents of vaulted tanks to "oil or coolant to be used as a lubricant in a motor engine or transmission or used oil or coolants" and argues that all uses of petroleum products should be included. The U.S. Navy installed oil water separator tanks for a waste treatment system at the Naval Air Weapons Station, China Lake. The tanks were originally designed and constructed to meet hazardous waste systems criteria pursuant to California Code of Regulations (CCR) Title 22 and have been operated as 22 CCR hazardous waste water tank systems. In February 2011, San Bernardino County Certified Unified Program Agency (CUPA) issued an enforcement order citing that these tanks at China Lake should be regulated as underground storage tanks, registered and operated under CCR Title 23 and Health and Safety Code Chapter 6.7 pertaining to underground storage of hazardous substances. According to the U.S. Navy, it has requested the San Bernardino County CUPA to reconsider and the enforcement order is pending the outcome of AB 1566. In addition to AB 1566, the U.S. Navy has considered other options to address the issue cited by the San Bernardino County CUPA including "requesting a statutory exemption based on visual monitoring of the units with comparable regulatory standards for operation and maintenance of these tank units." (U.S. Navy letter to San Bernardino County Fire Department, subject: underground storage tank determination response with request for consideration and/or 6.7 HSC 25283.5 exemption, June 10, 2011.) It may be appropriate to strike the definition of "tank in an underground area," revise the definition of "aboveground storage tank" accordingly, and strike reference to "tank in an underground area" in §25281(y)(1)(E), while the parties can continue to meet and resolve this issue. 5) Conflict/Chaptering Out . AB 1566 (Wieckowski) and AB 1701 (Wieckowski) both amend §25281 which provides definitions for terms used in Chapter 6.7 of the Health and Safety Code AB 1566 Page 6 pertaining to underground storage of hazardous substances. Amendments are needed to double-joint the two bills in order to prevent the potential of either bill from chaptering out the other. 6) Related legislation . AB 1701 (Wieckowski) provides for state certification of cities and counties to oversee the cleanup of USTs. This bill is being heard in Senate Environmental Quality Committee July 2, 2012. 7) Previous legislation . AB 681 (Wieckowski) Chapter 574, Statutes of 2011, extended the Environmental Protection Trust fund expenditures until June 1, 2013, and provided that unexpended funds be deposited in the Unified Program Account for further support for Certified Unified Program Agencies' aboveground storage tank activities. AB 1130 (Laird) Chapter 626, Statutes of 2007, transferred the responsibility for aboveground storage tank inspection program and fee collection from the SWRCB and RWQCBs to the local CUPAs. SOURCE : California Association of Environmental Health Administrators SUPPORT : None on file OPPOSITION : U.S. Department of Defense