BILL NUMBER: AB 1715 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 20, 2012
AMENDED IN ASSEMBLY APRIL 30, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Smyth
FEBRUARY 16, 2012
An act to amend Section 25297.1 25299.39.2
of the Health and Safety Code, relating to underground storage
tanks.
LEGISLATIVE COUNSEL'S DIGEST
AB 1715, as amended, Smyth. Underground storage tanks:
local oversight programs. tank case closure.
Existing law requires an owner, operator, or other responsible
party to take corrective action in response to an unauthorized
release of petroleum from an underground storage tank. Under existing
law, the State Water Resources Control Board, a regional board, or a
local agency may undertake or contract for corrective action in
response to that unauthorized release. The State Water Resources
Control Board is authorized to close, or to require the closure of,
an underground storage tank case where an unauthorized release has
occurred, if the board determines that the corrective action at the
site complies with specified requirements. Existing law requires the
manager of the Underground Storage Tank Cleanup Fund to annually
review certain tank cases and authorizes the manager, with the
approval of the tank owner or operator, to make a recommendation to
the board for closure of a tank case. If the manager recommends
closing a tank case, existing law requires the board to limit
reimbursement of subsequently incurred corrective action costs to
$10,000, except as specified.
This bill would require the manager, upon a determination that
closure of the tank case is appropriate based upon that review, to
provide a review summary report to the applicable regional board and
local agency and provide opportunity for comment. The bill would
prohibit the regional board or local agency from issuing a corrective
action directive or enforcing an existing corrective action
directive for a tank case for which the manager has provided this
review summary report, until the board issues a decision regarding
the closure of the tank case, except as specified. The bill would
specify that the $10,000 limit for corrective action costs after tank
closure includes costs for groundwater monitoring.
The bill would make a statement of legislative intent regarding
the board's actions regarding these tank cases.
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. The State Water Resources Control
Board is required to develop and implement a local oversight program
for the abatement of, and oversight of the abatement of, unauthorized
releases of hazardous substances from underground storage tanks by
local agencies that apply for this authority. The local agency's
cleanup, abatement, or other actions under that program are required
to be consistent with procedures adopted by the board and be based
upon cleanup standards specified by the board or a California
regional water quality control board.
This bill would require the board to recommend to the Legislature,
no later than January 1, 2014, appropriate standards and
measurements for judging a local agency's compliance with those
cleanup standards. The bill would make this requirement inoperative
as of January 1, 2015.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that
the State Water Resources Control Board should expediently process
underground storage tank cases subject to Section 25299.39.2 of the
Health and Safety Code while ensuring the adequate protection of
public health and safety, in accordance with Chapter 6.75 (commencing
with Section 25299.10) of Division 20 of the Health and Safety Code.
SEC. 2. Section 25299.39.2 of the
Health and Safety Code is amended to read:
25299.39.2. (a) (1) 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
(A) If the manager determines that
closure of the tank case is appropriate based upon that review, the
manager shall provide a review summary report to the
applicable regional board and local agency summarizing the reasons
for this determination and shall provide the applicable regional
board and local agency with an opportunity for comment on the review
summary report.
(B) If the manager determines that
closure of the tank case is appropriate, the manager, with
approval of the tank owner or operator, may make a recommendation to
the board for closure. The
(C) The board may close any tank
case or require the closure of any 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.
Before
(D) Before closing or requiring
closure of an underground storage tank case, the board shall provide
an opportunity for reviewing and providing responses to the manager's
recommendation to the applicable regional board and local agency,
and to the water replenishment district, municipal water district,
county water district, or special act district with groundwater
management authority if the underground storage tank case is located
in the jurisdiction of that district.
(2) Except as provided in paragraph (3), if the manager recommends
closing a tank case pursuant to paragraph (1), the board shall limit
reimbursement of subsequently incurred corrective action costs ,
including costs for groundwater monitoring, to ten thousand
dollars ($10,000) per year.
(3) The board may allow reimbursement of corrective action costs
in excess of the ten thousand dollar ($10,000) limit specified in
paragraph (2) if the board determines that corrective action costs
related to the closure will exceed this amount, or that additional
corrective action is necessary to meet the requirements specified in
subdivisions (a) and (b) of Section 25296.10.
(4) After the manager provides a review summary report to the
applicable regional board and local agency in accordance with
subparagraph (A) of paragraph (1), the regional board or local agency
shall not issue a corrective action directive or enforce an existing
corrective action directive for the tank case until the board issues
a decision on the closure of the tank case, unless one of the
following applies:
(A) The regional board or local agency demonstrates to the
satisfaction of the manager that there is an imminent threat to human
health, safety, or the environment.
(B) The regional board or local agency demonstrates to the
satisfaction of the manager that other site-specific needs warrant
additional directives during the period that the board is considering
case closure.
(C) After considering responses to the review summary report and
other relevant information, the manager determines that case closure
is not appropriate.
(D) The regional board or local agency closes the tank case but
the directives are necessary to carry out case-closure activities.
(b) An aggrieved person may, not later than 30 days from the date
of final action by the board, pursuant to subparagraph (C) of
paragraph (1) of 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.
SECTION 1. Section 25297.1 of the Health and
Safety Code is amended to read:
25297.1. (a) In addition to the authority granted to the board
pursuant to Division 7 (commencing with Section 13000) of the Water
Code and to the department pursuant to Chapter 6.8 (commencing with
Section 25300), the board, in cooperation with the department, shall
develop and implement a local oversight program for the abatement of,
and oversight of the abatement of, unauthorized releases of
hazardous substances from underground storage tanks by local
agencies. In implementing the local oversight program, the agreement
specified in subdivision (b) shall be between the board and the local
agency. The board shall select local agencies for participation in
the program from among those local agencies that apply to the board,
giving first priority to those local agencies that have demonstrated
prior experience in cleanup, abatement, or other actions necessary to
remedy the effects of unauthorized releases of hazardous substances
from underground storage tanks. The board shall select only those
local agencies that have implemented this chapter and that, except as
provided in Section 25404.5, have begun to collect and transmit to
the board the surcharge or fees pursuant to subdivision (b) of
Section 25287.
(b) (1) In implementing the local oversight program described in
subdivision (a), the board may enter into an agreement with any local
agency to perform, or cause to be performed, any cleanup, abatement,
or other action necessary to remedy the effects of a release of
hazardous substances from an underground storage tank with respect to
which the local agency has enforcement authority pursuant to this
section. The board may not enter into an agreement with a local
agency for soil contamination cleanup or for groundwater
contamination cleanup unless the board determines that the local
agency has a demonstrated capability to oversee or perform the
cleanup.
(2) The implementation of the cleanup, abatement, or other action
shall be consistent with procedures adopted by the board pursuant to
subdivision (d) and shall be based upon cleanup standards specified
by the board or regional board.
(3) The board shall, no later than January 1, 2014, recommend to
the Legislature appropriate standards and measurements for judging a
local agency's compliance with the cleanup standards specified
pursuant to paragraph (2). The requirement for submitting a report
under this paragraph is inoperative on January 1, 2015, pursuant to
Section 10231.5 of the Government Code, and shall be submitted in
compliance with Section 9795 of the Government Code.
(c) The board shall provide funding to a local agency that enters
into an agreement pursuant to subdivision (b) for the reasonable
costs incurred by the local agency in overseeing any cleanup,
abatement, or other action taken by a responsible party to remedy the
effects of unauthorized releases from underground storage tanks.
(d) The board shall adopt administrative and technical procedures,
as part of the state policy for water quality control adopted
pursuant to Section 13140 of the Water Code, for cleanup and
abatement actions taken pursuant to this section. The procedures
shall include, but not be limited to, all of the following:
(1) Guidelines as to which sites may be assigned to the local
agency.
(2) The content of the agreements which may be entered into by the
board and the local agency.
(3) Procedures by which a responsible party may petition the board
or a regional board for review, pursuant to Article 2 (commencing
with Section 13320) of Chapter 5 of Division 7 of the Water Code, or
pursuant to Chapter 9.2 (commencing with Section 2250) of Division 3
of Title 23 of the California Code of Regulations, or any successor
regulation, as applicable, of actions or decisions of the local
agency in implementing the cleanup, abatement, or other action.
(4) Protocols for assessing and recovering money from responsible
parties for any reasonable and necessary costs incurred by the local
agency in implementing this section, as specified in subdivision (i),
unless the cleanup or abatement action is subject to subdivision (d)
of Section 25296.10.
(5) Quantifiable measures to evaluate the outcome of a pilot
program established pursuant to this section.
(e) Any agreement between the regional board and a local agency to
carry out a local oversight program pursuant to this section shall
require both of the following:
(1) The local agency shall establish and maintain accurate
accounting records of all costs it incurs pursuant to this section
and shall periodically make these records available to the board. The
Controller may annually audit these records to verify the hourly
oversight costs charged by a local agency. The board shall reimburse
the Controller for the cost of the audits of a local agency's records
conducted pursuant to this section.
(2) The board and the department shall make reasonable efforts to
recover costs incurred pursuant to this section from responsible
parties, and may pursue any available legal remedy for this purpose.
(f) The board shall develop a system for maintaining a database
for tracking expenditures of funds pursuant to this section, and
shall make this data available to the Legislature upon request.
(g) (1) Sections 25355.5 and 25356 do not apply to expenditures
from the Toxic Substances Control Account for oversight of abatement
of releases from underground storage tanks as part of the local
oversight program established pursuant to this section.
(2) A local agency that enters into an agreement pursuant to
subdivision (b) shall notify the responsible party, for any site
subject to a cleanup, abatement, or other action taken pursuant to
the local oversight program established pursuant to this section,
that the responsible party is liable for not more than 150 percent of
the total amount of site-specific oversight costs actually incurred
by the local agency.
(h) Any aggrieved person may petition the board or regional board
for review of the action or failure to act of a local agency that
enters into an agreement pursuant to subdivision (b), at a site
subject to cleanup, abatement, or other action conducted as part of
the local oversight program established pursuant to this section, in
accordance with the procedures adopted by the board or regional board
pursuant to subdivision (d).
(i) (1) For purposes of this section, site-specific oversight
costs include only the costs of the following activities, when
carried out by the staff of a local agency or the local agency's
authorized representative, that are either technical program staff or
their immediate supervisors:
(A) Responsible party identification and notification.
(B) Site visits.
(C) Sampling activities.
(D) Meetings with responsible parties or responsible party
consultants.
(E) Meetings with the regional board or with other affected
agencies regarding a specific site.
(F) Review of reports, workplans, preliminary assessments,
remedial action plans, or postremedial monitoring.
(G) Development of enforcement actions against a responsible
party.
(H) Issuance of a closure document.
(2) The responsible party is liable for the site-specific
oversight costs, calculated pursuant to paragraphs (3) and (4),
incurred by a local agency, in overseeing any cleanup, abatement, or
other action taken pursuant to this section to remedy an unauthorized
release from an underground storage tank.
(3) Notwithstanding the requirements of any other provision of
law, the amount of liability of a responsible party for the oversight
costs incurred by the local agency and by the board and regional
boards in overseeing any action pursuant to this section shall be
calculated as an amount not more than 150 percent of the total amount
of the site-specific oversight costs actually incurred by the local
agency and shall not include the direct or indirect costs incurred by
the board or regional boards.
(4) (A) The total amount of oversight costs for which a local
agency may be reimbursed shall not exceed one hundred fifteen dollars
($115) per hour, multiplied by the total number of site-specific
hours performed by the local agency.
(B) The total amount of the costs per site for administration and
technical assistance to local agencies by the board and the regional
board entering into agreements pursuant to subdivision (b) shall not
exceed a combined total of thirty-five dollars ($35) for each hour of
site-specific oversight. The board shall base its costs on the total
hours of site-specific oversight work performed by all participating
local agencies. The regional board shall base its costs on the total
number of hours of site-specific oversight costs attributable to the
local agency that received regional board assistance.
(C) The amounts specified in subparagraphs (A) and (B) are base
rates for the 1990-91 fiscal year. Commencing July 1, 1991, and for
each fiscal year thereafter, the board shall adjust the base rates
annually to reflect increases or decreases in the cost of living
during the prior fiscal year, as measured by the implicit price
deflator for state and local government purchases of goods and
services, as published by the United States Department of Commerce or
by a successor agency of the federal government.
(5) In recovering costs from responsible parties for costs
incurred under this section, the local agency shall prorate any costs
identifiable as startup costs over the expected number of cases that
the local agency will oversee during a 10-year period. A responsible
party who has been assessed startup costs for the cleanup of any
unauthorized release that, as of January 1, 1991, is the subject of
oversight by a local agency, shall receive an adjustment by the local
agency in the form of a credit, for the purposes of cost recovery.
Startup costs include all of the following expenses:
(A) Small tools, safety clothing, cameras, sampling equipment, and
other similar articles necessary to investigate or document
pollution.
(B) Office furniture.
(C) Staff assistance needed to develop computer tracking of
financial and site-specific records.
(D) Training and setup costs for the first six months of the local
agency program.
(6) This subdivision does not apply to costs that are required to
be recovered pursuant to Article 7.5 (commencing with Section 25385)
of Chapter 6.8.
(j) The inoperation of former paragraph (1) of this subdivision,
as it read on January 1, 2012, does not affect the validity of any
action taken by the Santa Clara Valley Water District before June 30,
2005, and does not provide a defense for an owner, operator, or
other responsible party who fails to comply with that action.