California Legislature—2015–16 Regular Session

Assembly BillNo. 2912


Introduced by Committee on Natural Resources

March 15, 2016


An act to amend Section 5654 of the Fish and Game Code, and to amend Sections 8670.3, 8670.25.5, 8670.27, 8670.29, 8670.31, 8670.37.58, 8670.54, 8670.56.5, 8670.56.6, and 8670.59 of the Government Code, relating to oil spills.

LEGISLATIVE COUNSEL’S DIGEST

AB 2912, as introduced, Committee on Natural Resources. Oil spills.

The Lempert-Keene-Seastrand Oil Spill Prevention and Response Act generally requires the administrator for oil spill response, acting at the direction of the Governor, to implement activities relating to oil spill response, including emergency drills and preparedness, and oil spill containment and cleanup. The act requires each owner or operator of a tank vessel, nontank vessel carrying oil as a secondary cargo, or facility to submit, upon request of the administrator, a copy of a federally approved oil spill response plan at the time of approval of the plan.

This bill would instead require each owner or operator of a tank vessel, nontank vessel, vessel carrying oil as a secondary cargo, or facility to submit, upon request of the administrator, a copy of a federally approved oil spill response plan at the time of approval of the plan. The bill also would make nonsubstantive changes to these and other provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 5654 of the Fish and Game Code is
2amended to read:

3

5654.  

(a) (1) Notwithstanding Section 7715 and except as
4provided in paragraph (2), the director, within 24 hours of
5notification of a spill or discharge, as those terms are defined in
6begin delete subdivision (ad) ofend delete Section 8670.3 of the Government Code, where
7any fishing, including all commercial, recreational, and nonlicensed
8subsistence fishing, may take place, or where aquaculture
9operations are taking place, shall close to the take of all fish and
10shellfish all waters in the vicinity of the spill or discharge or where
11the spilled or discharged material has spread, or is likely to spread.
12In determining where a spill or discharge is likely to spread, the
13director shall consult with the Administrator of the Office of Spill
14Prevention and Response. At the time of closure, the department
15shall make all reasonable efforts to notify the public of the closure,
16including notification to commercial and recreational fishing
17organizations, and posting of warnings on public piers and other
18locations where subsistence fishing is known to occur. The
19department shall coordinate, when possible, with local and regional
20agencies and organizations to expedite public notification.

21(2) Closure pursuant to paragraph (1) is not required if, within
2224 hours of notification of a spill or discharge, the Office of
23Environmental Health Hazard Assessment finds that a public health
24threat does not or is unlikely to exist.

25(b) Within 48 hours of notification of a spill or discharge subject
26to subdivision (a), the director, in consultation with the Office of
27Environmental Health Hazard Assessment, shall make an
28assessment and determine all of the following:

29(1) The danger posed to the public from fishing in the area where
30the spill or discharge occurred or spread, and the danger of
31consuming fish taken in the area where the spill or discharge
32occurred or spread.

33(2) Whether the areas closed for the take of fish or shellfish
34should be expanded to prevent any potential take or consumption
35of any fish or shellfish that may have been contaminated by the
36spill or discharge.

37(3) The likely period for maintaining a closure on the take of
38fish and shellfish in order to prevent any possible contaminated
P3    1fish or shellfish from being taken or consumed or other threats to
2human health.

3(c) Within 48 hours after receiving notification of a spill or
4discharge subject to subdivision (a), or as soon as is feasible, the
5director, in consultation with the Office of Environmental Health
6Hazard Assessment, shall assess and determine the potential danger
7from consuming fish that have been contained in a recirculating
8seawater tank onboard a vessel that may become contaminated by
9the vessel’s movement through an area where the spill or discharge
10occurred or spread.

11(d) If the director finds in his or her assessment pursuant to
12subdivision (b) that there is no significant risk to the public or to
13the fisheries, the director may immediately reopen the closed area
14and waive the testing requirements of subdivisions (e) and (f).

15(e) Except under the conditions specified in subdivision (d),
16after complying with subdivisions (a) and (b), the director, in
17consultation with the Office of Environmental Health Hazard
18Assessment, but in no event more than seven days from the
19notification of the spill or discharge, shall order expedited tests of
20fish and shellfish that would have been open for take for
21commercial, recreational, or subsistence purposes in the closed
22area if not for the closure, to determine the levels of contamination,
23if any, and whether the fish or shellfish is safe for human
24consumption.

25(f) (1) Within 24 hours of receiving a notification from the
26Office of Environmental Health Hazard Assessment that no threat
27to human health exists from the spill or discharge or that no
28contaminant from the spill or discharge is present that could
29contaminate fish or shellfish, the director shall reopen the areas
30closed pursuant to this section. The director may maintain a closure
31in any remaining portion of the closed area where the Office of
32Environmental Health Hazard Assessment finds contamination
33from the spill or discharge persists that may adversely affect human
34health.

35(2) The director, in consultation with the commission, may also
36maintain a closure in any remaining portion of the closed area
37where commercial fishing or aquaculture occurs and where the
38department determines, pursuant to this paragraph, that
39contamination from the spill or discharge persists that may cause
P4    1the waste of commercial fish or shellfish as regulated by Section
27701.

3(g) To the extent feasible, the director shall consult with
4representatives of commercial and recreational fishing associations
5and subsistence fishing communities regarding the extent and
6duration of a closure, testing protocols, and findings. If a spill or
7discharge occurs within the lands governed by a Native American
8tribe or affects waters flowing through tribal lands, or tribal
9fisheries, the director shall consult with the affected tribal
10governments.

11(h) The director shall seek full reimbursement from the
12responsible party or parties for the spill or discharge for all
13reasonable costs incurred by the department in carrying out this
14section, including, but not limited to, all testing.

15

SEC. 2.  

Section 8670.3 of the Government Code is amended
16to read:

17

8670.3.  

Unless the context requires otherwise, the following
18definitions shall govern the construction of this chapter:

19(a) “Administrator” means the administrator for oil spill response
20appointed by the Governor pursuant to Section 8670.4.

21(b) (1) “Best achievable protection” means the highest level of
22protection that can be achieved through both the use of the best
23achievable technology and those manpower levels, training
24procedures, and operational methods that provide the greatest
25degree of protection achievable. The administrator’s determination
26of which measures provide the best achievable protection shall be
27guided by the critical need to protect valuable natural resources
28and state waters, while also considering all of the following:

29(A) The protection provided by the measure.

30(B) The technological achievability of the measure.

31(C) The cost of the measure.

32(2) The administrator shall not use a cost-benefit or
33cost-effectiveness analysis or any particular method of analysis in
34determining which measures provide the best achievable protection.
35The administrator shall instead, when determining which measures
36provide best achievable protection, give reasonable consideration
37to the protection provided by the measures, the technological
38achievability of the measures, and the cost of the measures when
39establishing the requirements to provide the best achievable
40protection for the natural resources of the state.

P5    1(c) (1) “Best achievable technology” means that technology
2that provides the greatest degree of protection, taking into
3consideration both of the following:

4(A) Processes that are being developed, or could feasibly be
5developed anywhere in the world, given overall reasonable
6expenditures on research and development.

7(B) Processes that are currently in use anywhere in the world.

8(2) In determining what is the best achievable technology
9pursuant to this chapter, the administrator shall consider the
10effectiveness and engineering feasibility of the technology.

11(d) “California oil spill contingency plan” means the California
12oil spill contingency plan prepared pursuant to Article 3.5
13(commencing with Section 8574.1) of Chapter 7.

14(e) “Dedicated response resources” means equipment and
15personnel committed solely to oil spill response, containment, and
16cleanup that are not used for any other activity that would adversely
17affect the ability of that equipment and personnel to provide oil
18spill response services in the timeframes for which the equipment
19and personnel are rated.

20(f) “Environmentally sensitive area” means an area defined
21pursuant to the applicable area contingency plans or geographic
22response plans, as created and revised by the Coast Guard, the
23United States Environmental Protection Agency, and the
24administrator.

25(g) (1) “Facility” means any of the following located in state
26waters or located where an oil spill may impact state waters:

27(A) A building, structure, installation, or equipment used in oil
28exploration, oil well drilling operations, oil production, oil refining,
29oil storage, oil gathering, oil processing, oil transfer, oil
30distribution, or oil transportation.

31(B) A marine terminal.

32(C) A pipeline that transports oil.

33(D) A railroad that transports oil as cargo.

34(E) A drill ship, semisubmersible drilling platform, jack-up type
35drilling rig, or any other floating or temporary drilling platform.

36(2) “Facility” does not include any of the following:

37(A) A vessel, except a vessel located and used for any purpose
38described in subparagraph (E) of paragraph (1).

P6    1(B) An owner or operator subject to Chapter 6.67 (commencing
2with Section 25270) or Chapter 6.75 (commencing with Section
325299.10) of Division 20 of the Health and Safety Code.

4(C) Operations on a farm, nursery, logging site, or construction
5site that are either of the following:

6(i) Do not exceed 20,000 gallons in a single storage tank.

7(ii) Have a useable tank storage capacity not exceeding 75,000
8gallons.

9(D) A small craft refueling dock.

10(h) “Local government” means a chartered or general law city,
11a chartered or general law county, or a city and county.

12(i) (1) “Marine terminal” means any facility used for
13transferring oil to or from a tank ship or tank barge.

14(2) “Marine terminal” includes, for purposes of this chapter, all
15piping not integrally connected to a tank facility, as defined in
16subdivision (n) of Section 25270.2 of the Health and Safety Code.

17(j) “Mobile transfer unit” means a vehicle, truck, or trailer,
18including all connecting hoses and piping, used for the transferring
19of oil at a location where a discharge could impact waters of the
20state.

21(k) “Nondedicated response resources” means those response
22resources identified by an Oil Spill Response Organization for oil
23spill response activities that are not dedicated response resources.

24(l) “Nonpersistent oil” means a petroleum-based oil, such as
25gasoline or jet fuel, that evaporates relatively quickly and is an oil
26with hydrocarbon fractions, at least 50 percent of which, by
27volume, distills at a temperature of 645 degrees Fahrenheit, and
28at least 95 percent of which, by volume, distills at a temperature
29of 700 degrees Fahrenheit.

30(m) “Nontank vessel” means a vessel of 300 gross tons or greater
31that carries oil, but does not carry that oil as cargo.

32(n) “Oil” means any kind of petroleum, liquid hydrocarbons,
33or petroleum products or any fraction or residues therefrom,
34including, but not limited to, crude oil, bunker fuel, gasoline, diesel
35fuel, aviation fuel, oil sludge, oil refuse, oil mixed with waste, and
36liquid distillates from unprocessed natural gas.

37(o) “Oil spill cleanup agent” means a chemical, or any other
38substance, used for removing, dispersing, or otherwise cleaning
39up oil or any residual products of petroleum in, or on, any of the
40waters of the state.

P7    1(p) “Oil spill contingency plan” or “contingency plan” means
2the oil spill contingency plan required pursuant to Article 5
3(commencing with Section 8670.28).

4(q) (1) “Oil Spill Response Organization” or “OSRO” means
5an individual, organization, association, cooperative, or other entity
6that provides, or intends to provide, equipment, personnel, supplies,
7or other services directly related to oil spill containment, cleanup,
8or removal activities.

9(2) “OSRO” does not include an owner or operator with an oil
10spill contingency plan approved by the administrator or an entity
11that only provides spill management services, or who provides
12services or equipment that are only ancillary to containment,
13cleanup, or removal activities.

14(r) (1) “Owner” or “operator” means any of the following:

15(A) In the case of a vessel, a person who owns, has an ownership
16interest in, operates, charters by demise, or leases the vessel.

17(B) In the case of a facility, a person who owns, has an
18ownership interest in, or operates the facility.

19(C) Except as provided in subparagraph (D), in the case of a
20vessel or facility, where title or control was conveyed due to
21bankruptcy, foreclosure, tax delinquency, abandonment, or similar
22means to an entity of state or local government, a person who
23owned, held an ownership interest in, operated, or otherwise
24controlled activities concerning the vessel or facility immediately
25beforehand.

26(D) An entity of the state or local government that acquired
27ownership or control of a vessel or facility, when the entity of the
28state or local government has caused or contributed to a spill or
29discharge of oil into waters of the state.

30(2) “Owner” or “operator” does not include a person who,
31without participating in the management of a vessel or facility,
32holds indicia of ownership primarily to protect the person’s security
33interest in the vessel or facility.

34(3) “Operator” does not include a person who owns the land
35underlying a facility or the facility itself if the person is not
36involved in the operations of the facility.

37(s) “Person” means an individual, trust, firm, joint stock
38company, or corporation, including, but not limited to, a
39government corporation, partnership, and association. “Person”
40also includes a city, county, city and county, district, and the state
P8    1or any department or agency thereof, and the federal government,
2or any department or agency thereof, to the extent permitted by
3law.

4(t) “Pipeline” means a pipeline used at any time to transport oil.

5(u) “Railroad” means a railroad, railway, rail car, rolling stock,
6or train.

7(v) “Rated OSRO” means an OSRO that has received a
8satisfactory rating from the administrator for a particular rating
9level established pursuant to Section 8670.30.

begin insert

10(w) “Response efforts” means rendering care, assistance, or
11advice in accordance with the National Contingency Plan, the
12California oil spill contingency plan, or at the direction of the
13administrator, the United States Environmental Protection Agency,
14or the United States Coast Guard in response to a spill or a
15threatened spill into waters of the state.

end insert
begin delete

16(w)

end delete

17begin insert(x)end insert “Responsible party” or “party responsible” means any of
18the following:

19(1) The owner or transporter of oil or a person or entity accepting
20responsibility for the oil.

21(2) The owner, operator, or lessee of, or a person that charters
22by demise, a vessel or facility, or a person or entity accepting
23responsibility for the vessel or facility.

begin delete

24(x)

end delete

25begin insert(y)end insert “Small craft” means a vessel, other than a tank ship or tank
26barge, that is less than 20 meters in length.

begin delete

27(y)

end delete

28begin insert(z)end insert “Small craft refueling dock” means a waterside operation
29that dispenses only nonpersistent oil in bulk and small amounts of
30persistent lubrication oil in containers primarily to small craft and
31meets both of the following criteria:

32(1) Has tank storage capacity not exceeding 20,000 gallons in
33any single storage tank or tank compartment.

34(2) Has total usable tank storage capacity not exceeding 75,000
35gallons.

begin delete

36(z)

end delete

37begin insert(aa)end insert “Small marine fueling facility” means either of the
38following:

39(1) A mobile transfer unit.

P9    1(2) A fixed facility that is not a marine terminal, that dispenses
2primarily nonpersistent oil, that may dispense small amounts of
3persistent oil, primarily to small craft, and that meets all of the
4following criteria:

5(A) Has tank storage capacity greater than 20,000 gallons but
6not more than 40,000 gallons in any single storage tank or storage
7tank compartment.

8(B) Has total usable tank storage capacity not exceeding 75,000
9gallons.

10(C) Had an annual throughput volume of over-the-water transfers
11of oil that did not exceed 3,000,000 gallons during the most recent
12preceding 12-month period.

begin delete

13(aa)

end delete

14begin insert(ab)end insert “Spill,” “discharge,” or “oil spill” means a release of any
15amount of oil into waters of the state that is not authorized by a
16federal, state, or local government entity.

begin delete

17(ab)

end delete

18begin insert(ac)end insert “Tank barge” means a vessel that carries oil in commercial
19quantities as cargo but is not equipped with a means of
20self-propulsion.

begin delete

21(ac)

end delete

22begin insert(ad)end insert “Tank ship” means a self-propelled vessel that is
23constructed or adapted for the carriage of oil in bulk or in
24commercial quantities as cargo.

begin delete

25(ad)

end delete

26begin insert(ae)end insert “Tank vessel” means a tank ship or tank barge.

begin delete

27(ae)

end delete

28begin insert(af)end insert “Vessel” means a watercraft or ship of any kind, including
29every structure adapted to be navigated from place to place for the
30transportation of merchandise or persons.

begin delete

31(af)

end delete

32begin insert(ag)end insert “Vessel carrying oil as secondary cargo” means a vessel
33that does not carry oil as a primary cargo, but does carry oil as
34cargo. The administrator may establish minimum oil volume
35amounts or other criteria by regulations.

begin delete

36(ag)

end delete

37begin insert(ah)end insert “Waters of the state” or “state waters” means any surface
38water, including saline waters, marine waters, and freshwaters,
39within the boundaries of the state but does not include groundwater.

P10   1

SEC. 3.  

Section 8670.25.5 of the Government Code is amended
2to read:

3

8670.25.5.  

(a) (1) Without regard to intent or negligence, any
4party responsible for the discharge or threatened discharge of oil
5in waters of the state shall report the discharge immediately to the
6Office of Emergency Services pursuant to Section 25510 of the
7Health and Safety Code.

8(2) If the information initially reported pursuant to paragraph
9(1) was inaccurate or incomplete, or if the quantity of oil discharged
10has changed, any party responsible for the discharge or threatened
11discharge of oil in waters of the state shall report the updated
12information immediately to the Office of Emergency Services
13pursuant to paragraph (1). The report shall contain the accurate or
14complete information, or the revised quantity of oil discharged.

15(b) Immediately upon receiving notification pursuant to
16subdivision (a), the Office of Emergency Services shall notify the
17administrator, the State Lands Commission, the California Coastal
18Commission, the California regional water quality control board
19having jurisdiction over the location of the discharged oil, and the
20appropriate local governmental agencies in the area surrounding
21the discharged oil, and take the actions required by subdivision
22(d) of Section 8589.7. If the spill has occurred within the
23jurisdiction of the San Francisco Bay Conservation and
24Development Commission, the Office of Emergency Services shall
25notify that commission. Each public agency specified in this
26subdivision shall adopt an internal protocol over communications
27regarding the discharge of oil and file the internal protocol with
28the Office of Emergency Services.

29(c) The 24-hour emergency telephone number of the Office of
30Emergency Services shall be posted at every railroad dispatch,
31pipeline operator control center,begin delete andend delete marine terminal,begin delete at theend delete area
32of control of everybegin delete marineend deletebegin insert otherend insert facility, and on the bridge of every
33tank ship in marine waters.

34(d) Except as otherwise provided in this section and Section
358589.7, a notification made pursuant to this section shall satisfy
36any immediate notification requirement contained in any permit
37issued by a permitting agency.

38

SEC. 4.  

Section 8670.27 of the Government Code is amended
39to read:

P11   1

8670.27.  

(a) (1) All potentially responsible parties for an oil
2spill and all of their agents and employees and all state and local
3agencies shall carry out response and cleanup operations in
4accordance with the applicable contingency plan, unless directed
5otherwise by thebegin delete administrator or the Coast Guard.end deletebegin insert administrator,
6the United States Coast Guard, or the United States Environmental
7Protection Agency.end insert

8(2) Except as provided in subdivision (b), the responsible party,
9potentially responsible parties, their agents and employees, the
10operators of all vessels docked at a marine facility that is the source
11of a discharge, and all state and local agencies shall carry out spill
12response consistent with the California oil spill contingency plan
13or other applicable federal, state, or local spill response plans, and
14owners and operators shall carry out spill response consistent with
15their applicable response contingency plans, unless directed
16otherwise by thebegin delete administrator or the Coast Guard.end deletebegin insert administrator,
17the United States Coast Guard, or the United States Environmental
18Protection Agency.end insert

19(b) If a responsible party or potentially responsible party
20reasonably, and in good faith, believes that the directions or orders
21given by the administrator pursuant to subdivision (a) will
22substantially endanger the public safety or the environment, the
23party may refuse to act in compliance with the orders or directions
24of the administrator. The responsible party or potentially
25responsible party shall state, at the time of the refusal, the reasons
26why the party refuses to follow the orders or directions of the
27administrator. The responsible party or potentially responsible
28party shall give the administrator written notice of the reasons for
29the refusal within 48 hours of refusing to follow the orders or
30directions of the administrator. In any civil or criminal proceeding
31commenced pursuant to this section, the burden of proof shall be
32on the responsible party or potentially responsible party to
33demonstrate, by clear and convincing evidence, why the refusal
34to follow the orders or directions of the administrator was justified
35under the circumstances.

36

SEC. 5.  

Section 8670.29 of the Government Code is amended
37to read:

38

8670.29.  

(a) In accordance with the rules, regulations, and
39policies established by the administrator pursuant to Section
408670.28, an owner or operator of a facility, small marine fueling
P12   1facility, or mobile transfer unit, or an owner or operator of a tank
2vessel, nontank vessel, or vessel carrying oil as secondary cargo,
3while operating in the waters of the state or where a spill could
4impact waters of the state, shall have an oil spill contingency plan
5that has been submitted to, and approved by, the administrator
6pursuant to Section 8670.31. An oil spill contingency plan shall
7ensure the undertaking of prompt and adequate response and
8removal action in case of a spill, shall be consistent with the
9California oil spill contingency plan, and shall not conflict with
10the National Oil and Hazardous Substances Pollution Contingency
11Plan (NCP).

12(b) An oil spill contingency plan shall, at a minimum, meet all
13of the following requirements:

14(1) Be a written document, reviewed for feasibility and
15executability, and signed by the owner or operator, or his or her
16designee.

17(2) Provide for the use ofbegin delete anend deletebegin insert a recognizedend insert incident command
18system to be used during a spill.

19(3) Provide procedures for reporting oil spills to local, state,
20and federal agencies, and include a list of contacts to call in the
21event of a drill, threatened spill, or spill.

22(4) Describe the communication plans to be used during a spill,
23if different from those used by a recognized incident command
24system.

25(5) Describe the strategies for the protection of environmentally
26sensitive areas.

27(6) Identify at least one rated OSRO for each rating level
28established pursuant to Section 8670.30. Each identified rated
29OSRO shall be directly responsible by contract, agreement, or
30other approved means to provide oil spill response activities
31pursuant to the oil spill contingency plan. A rated OSRO may
32provide oil spill response activities individually, or in combination
33with another rated OSRO, for a particular owner or operator.

34(7) Identify a qualified individual.

35(8) Provide the name, address, and telephone and facsimile
36 numbers for an agent for service of process, located within the
37state and designated to receive legal documents on behalf of the
38owner or operator.

P13   1(9) Provide for training and drills on elements of the plan at
2least annually, with all elements of the plan subject to a drill at
3least once every three years.

4(c) An oil spill contingency plan for a vessel shall also include,
5but is not limited to, all of the following requirements:

6(1) The plan shall be submitted to the administrator at least
7seven days prior to the vessel entering waters of the state.

8(2) The plan shall provide evidence of compliance with the
9International Safety Management Code, established by the
10International Maritime Organization, as applicable.

11(3) If the oil spill contingency plan is for a tank vessel, the plan
12shall include both of the following:

13(A) The plan shall specify oil and petroleum cargo capacity.

14(B) The plan shall specify the types of oil and petroleum cargo
15carried.

16(4) If the oil spill contingency plan is for a nontank vessel, the
17plan shall include both of the following:

18(A) The plan shall specify the type and total amount of fuel
19carried.

20(B) The plan shall specify the capacity of the largest fuel tank.

21(d) An oil spill contingency plan for a facility shall also include,
22but is not limited to, all of the following provisions, as appropriate:

23(1) Provisions for site security and control.

24(2) Provisions for emergency medical treatment and first aid.

25(3) Provisions for safety training, as required by state and federal
26safety laws for all personnel likely to be engaged in oil spill
27response.

28(4) Provisions detailing site layout and locations of
29environmentally sensitive areas requiring special protection.

30(5) Provisions for vessels that are in the operational control of
31the facility for loading and unloading.

32(e) Unless preempted by federal law or regulations, an oil spill
33contingency plan for a railroad also shall include, but is not limited
34to, all of the following:

35(1) A list of the types of train cars that may make up the consist.

36(2) A list of the types of oil and petroleum products that may
37be transported.

38(3) A map of track routes and facilities.

39(4) A list, description, and map of any prestaged spill response
40equipment and personnel for deployment of the equipment.

P14   1(f) The oil spill contingency plan shall be available to response
2personnel and to relevant state and federal agencies for inspection
3and review.

4(g) The oil spill contingency plan shall be reviewed periodically
5and updated as necessary. All updates shall be submitted to the
6administrator pursuant to this article.

7(h) In addition to the regulations adopted pursuant to Section
88670.28, the administrator shall adopt regulations and guidelines
9to implement this section. The regulations and guidelines shall
10provide for the best achievable protection of waters and natural
11resources of the state. The administrator may establish additional
12oil spill contingency plan requirements, including, but not limited
13to, requirements based on the different geographic regions of the
14state. All regulations and guidelines shall be developed in
15consultation with the Oil Spill Technical Advisory Committee.

16(i) Notwithstanding subdivision (a) and paragraph (6) of
17subdivision (b), a vessel or facility operating where a spill could
18impact state waters that are not tidally influenced shall identify a
19rated OSRO in the contingency plan no later than January 1, 2016.

20

SEC. 6.  

Section 8670.31 of the Government Code is amended
21to read:

22

8670.31.  

(a) Each oil spill contingency plan required under
23this article shall be submitted to the administrator for review and
24approval.

25(b) The administrator shall review each submitted contingency
26plan to determine whether it complies with the administrator’s
27rules, policies, and regulations adopted pursuant to Section 8670.28
28and 8670.29. The administrator may issue a preliminary approval
29pending final approval or disapproval.

30(c) Each contingency plan submitted shall be approved or
31disapproved within 30 days after receipt by the administrator. The
32administrator may approve or disapprove portions of a plan. A
33plan is not deemed approved until all portions are approved
34pursuant to this section. The disapproved portion shall be subject
35to the procedures contained in subdivision (d).

36(d) If the administrator finds the submitted contingency plan is
37inadequate under the rules, policies, and regulations of the
38administrator, the plan shall be returned to the submitter with
39written reasons why the plan was found inadequate and, if
40practicable, suggested modifications or alternatives, if appropriate.
P15   1The submitter shall submit a new or modified plan within 30 days
2after the earlier plan was returned, responding to the findings and
3incorporating any suggested modifications. The resubmittal shall
4be treated as a new submittal and processed according to the
5provisions of this section, except that the resubmitted plan shall
6be deemed approved unless the administrator acts pursuant to
7subdivision (c).

8(e) The administrator may make inspections and require drills
9of any oil spill contingency plan that is submitted.

10(f) After the plan has been approved, it shall be resubmitted
11every five years thereafter. The administrator may require earlier
12or more frequent resubmission, if warranted. Circumstances that
13would require an earlier resubmission include, but are not limited
14to, changes in regulations, new oil spill response technologies,
15deficiencies identified in the evaluation conducted pursuant to
16Section 8670.19, or a need for a different oil spill response because
17of increased need to protect endangered species habitat. The
18administrator may deny approval of the resubmitted plan if it is
19no longer considered adequate according to the adopted rules,
20regulations, and policies of the administrator at the time of
21resubmission.

22(g) Each owner or operator of a tank vessel, nontankbegin insert vessel,end insert
23 vessel carrying oil as a secondary cargo, or facility who is required
24to file an oil spill response plan or update pursuant to provisions
25of federal law regulating oil spill response plans shall submit, for
26informational purposes only and upon request of the administrator,
27a copy of that plan or update to the administrator at the time that
28it is approved by the relevant federal agency.

29

SEC. 7.  

Section 8670.37.58 of the Government Code is
30amended to read:

31

8670.37.58.  

(a) A nontank vessel shall not enter waters of the
32state unless the nontank vessel owner or operator has provided to
33the administrator evidence of financial responsibility that
34demonstrates, to the administrator’s satisfaction, the ability to pay
35at least three hundred million dollars ($300,000,000) to cover
36damages caused by a spill, and the owner or operator of the nontank
37vessel has obtained a certificate of financial responsibility from
38the administrator for the nontank vessel.

39(b) Notwithstanding subdivision (a), the administrator may
40establish a lower standard of financial responsibility for a nontank
P16   1vessel that has a carrying capacity of 6,500 barrels of oil or less,
2or for a nontank vessel that is owned and operated by California
3or a federal agency and has a carrying capacity of 7,500 barrels of
4oil or less. The standard shall be based upon the quantity of oil
5that can be carried by the nontank vessel and the risk of an oil spill
6into waters of the state. The administrator shall not set a standard
7that is less than the expected cleanup costs and damages from an
8oil spill into waters of the state.

begin insert

9(c) A nontank vessel fee shall be submitted along with the
10application for the certificate, as required pursuant to Section
118670.41.

end insert
begin delete

12(c)

end delete

13begin insert(d)end insert The administrator may adopt regulations to implement this
14section.

15

SEC. 8.  

Section 8670.54 of the Government Code is amended
16to read:

17

8670.54.  

(a) The Oil Spill Technical Advisory Committee,
18hereafter in this article, the committee, is hereby established to
19provide public input and independent judgment of the actions of
20the administrator. The committee shall consist of 14 members, of
21whom eight shall be appointed by the Governor, three by the
22Speaker of the Assembly, and three by the Senatebegin delete Rules
23Committee.end delete
begin insert Committee on Rules.end insert The appointments shall be made
24in the following manner:

25(1) The Speaker of the Assembly and Senate Committee on
26Rules shall each appoint a member who shall be a representative
27of the public.

28(2) The Governor shall appoint a member who has a
29demonstrable knowledge of marine transportation.

30(3) The Speaker of the Assembly and the Senate Committee on
31Rules shall each appoint two members who have demonstrable
32knowledge of environmental protection and the study of
33ecosystems.

34(4) The Governor shall appoint a member who has served as a
35local government elected official or who has worked for a local
36government.

37(5) The Governor shall appoint a member who has experience
38in oil spill response and prevention programs.

39(6) The Governor shall appoint a member who has been
40employed in the petroleum industry.

P17   1(7) The Governor shall appoint a member who has worked in
2state government.

3(8) The Governor shall appoint a member who has demonstrable
4knowledge of the dry cargo vessel industry.

5(9) The Governor shall appoint a member who has demonstrable
6knowledge of the railroad industry.

7(10) The Governor shall appoint a member who has
8demonstrable knowledge of the oil production industry.

9(b) The committee shall meet as often as required, but at least
10twice per year. Members shall be paid one hundred dollars ($100)
11per day for each meeting and all necessary travel expenses at state
12per diem rates.

13(c) The administrator and any personnel the administrator
14determines to be appropriate shall serve as staff to the committee.

15(d) A chair and vice chair shall be elected by a majority vote of
16the committee.

17

SEC. 9.  

Section 8670.56.5 of the Government Code is amended
18to read:

19

8670.56.5.  

(a)  A responsible party, as defined in Section
208670.3, shall be absolutely liable without regard to fault for any
21damages incurred by any injured party that arise out of, or are
22causedbegin delete byend deletebegin insert by,end insert a spill.

23(b) A responsiblebegin delete personend deletebegin insert partyend insert is not liable to an injured party
24under this section for any of the following:

25(1) Damages, other than costs of removal incurred by the state
26or a local government, caused solely by any act of war, hostilities,
27civil war, or insurrection or by an unanticipated grave natural
28disaster or other act of God of an exceptional, inevitable, and
29irresistible character, that could not have been prevented or avoided
30by the exercise of due care or foresight.

31(2) Damages caused solely by the negligence or intentional
32malfeasance of that injured party.

33(3) Damages caused solely by the criminal act of a third party
34other than the defendant or an agent or employee of the defendant.

35(4) Natural seepage not caused by a responsible party.

36(5) Discharge or leaking of oil or natural gas from a private
37pleasure boat or vessel.

38(6) Damages that arise out of, or are caused by, a discharge that
39is authorized by a state or federal permit.

P18   1(c) The defenses provided in subdivision (b) shall not be
2available to a responsiblebegin delete personend deletebegin insert partyend insert who fails to comply with
3Sections 8670.25, 8670.25.5, 8670.27, and 8670.62.

4(d) Upon motion and sufficient showing by a party deemed to
5bebegin insert aend insert responsiblebegin insert partyend insert under this section, the court shall join to
6the action any other party who may bebegin insert aend insert responsiblebegin insert partyend insert under
7this section.

8(e) In determining whether a party is a responsible party under
9this section, the court shall consider the results of chemical or other
10scientific tests conducted to determine whether oil or other
11substances produced, discharged, or controlled by the defendant
12matches the oil or other substance that caused the damage to the
13injured party. The defendant shall have the burden of producing
14the results of tests of samples of the substance that caused the
15injury and of substances for which the defendant is responsible,
16unless it is not possible to conduct the tests because of
17unavailability of samples to test or because the substance is not
18one for which reliable tests have been developed. At the request
19of a party, any other party shall provide samples of oil or other
20substances within its possession or control for testing.

21(f) The court may award reasonable costs of the suit, attorneys’
22fees, and the costs of necessary expert witnesses to a prevailing
23plaintiff. The court may award reasonable costs of the suit and
24attorneys’ fees to a prevailing defendant if the court finds that the
25plaintiff commenced or prosecuted the suit pursuant to this section
26in bad faith or solely for purposes of harassing the defendant.

27(g) This section does not prohibit a person from bringing an
28action for damages caused by oil or by exploration, under any
29other provision or principle of law, including, but not limited to,
30common law. However, damages shall not be awarded pursuant
31to this section to an injured party for loss or injury for which the
32party is or has been awarded damages under any other provision
33or principle of law. Subdivision (b) does not create a defense not
34otherwise available regarding an action brought under any other
35provision or principle of law, including, but not limited to, common
36law.

37(h) Damages for which responsible parties are liable under this
38section include the following:

39(1) All costs of response, containment, cleanup, removal, and
40treatment, including, but not limited to, monitoring and
P19   1administration costs incurred pursuant to the California oil spill
2contingency plan or actions taken pursuant to directions by the
3administrator.

4(2) Injury to, or economic losses resulting from destruction of
5or injury to, real or personal property, which shall be recoverable
6by any claimant who has an ownership or leasehold interest in
7property.

8(3) Injury to, destruction of or loss of, natural resources,
9including, but not limited to, the reasonable costs of rehabilitating
10wildlife, habitat, and other resources and the reasonable costs of
11assessing that injury, destruction, or loss, in an action brought by
12the state, a county, city, or district. Damages for the loss of natural
13resources may be determined by any reasonable method, including,
14but not limited to, determination according to the costs of restoring
15the lost resource.

16(4) Loss of subsistence use of natural resources, which shall be
17recoverable by a claimant who so uses natural resources that have
18been injured, destroyed, or lost.

19(5) Loss of taxes, royalties, rents, or net profit shares caused by
20the injury, destruction, loss, or impairment of use of real property,
21personal property, or natural resources.

22(6) Loss of profits or impairment of earning capacity due to the
23injury, destruction, or loss of real property, personal property, or
24natural resources, which shall be recoverable by any claimant who
25derives at least 25 percent of his or her earnings from the activities
26that utilize the property or natural resources, or, if those activities
27are seasonal in nature, 25 percent of his or her earnings during the
28applicable season.

29(7) Loss of use and enjoyment of natural resources, public
30beaches, and other public resources or facilities, in an action
31brought by the state, a county, city, or district.

32(i) Except as provided in Section 1431.2 of the Civil Code,
33liability under this section shall be joint and several. However, this
34section does not bar a cause of action that a responsible party has
35or would have, by reason of subrogation or otherwise, against a
36person.

37(j) This section does not apply to claims for damages for
38personal injury or wrongful death, and does not limit the right of
39a person to bring an action for personal injury or wrongful death
40pursuant to any provision or principle of law.

P20   1(k)  Payments made by a responsible party to cover liabilities
2arising from a discharge of oil, whether under this division or any
3other provision of federal, state, or local law, shall not be charged
4against royalties, rents, or net profits owed to the United States,
5the state, or any other public entity.

6(l)  An action that a private or public individual or entity may
7have against a responsible party under this section may be brought
8directly by the individual or entity or by the state on behalf of the
9individual or entity. However, the state shall not pursue an action
10on behalf of a private individual or entity that requests the state
11not to pursue that action.

12(m) For purposes of this section, “vessels” means vessels as
13defined in Section 21 of the Harbors and Navigation Code.

14

SEC. 10.  

Section 8670.56.6 of the Government Code is
15amended to read:

16

8670.56.6.  

(a) (1) Except as provided in subdivisions (b) and
17(d), and subject to subdivision (c), a person, including, but not
18limited to, an oil spill cooperative, its agents, subcontractors, or
19employees, shall not be liable under this chapter or the laws of the
20state to any person for costs, damages, or other claims or expenses
21as a result of actions taken or omitted in good faith in the course
22ofbegin delete rendering care, assistance, or advice in accordance with the
23National Contingency Plan, the California oil spill contingency
24plan, or at the direction of the administrator, onsite coordinator,
25or the Coast Guard in response to a spill or threatened spill.end delete

26begin insert response efforts.end insert

27(2) The qualified immunity under this section shall not apply
28to anybegin delete oil spillend delete responsebegin delete actionend deletebegin insert effortsend insert thatbegin delete isend deletebegin insert areend insert inconsistent with
29the following:

30(A) The directions of the unified command, consisting of at
31least the Coast Guard and the administrator.

32(B) In the absence of a unified command, the directions of the
33administrator pursuant to Section 8670.27.

34(C) In the absence of directions pursuant to subparagraph (A)
35or (B), applicable oil spill contingency plans implemented under
36this division.

37(3) begin deleteNothing in this section shall, end deletebegin insertThis section does not, end insertin any
38manner or respect, affect or impair any cause of action against or
39any liability of anybegin delete person or personsend deletebegin insert party or partiesend insert responsible
40for the spill, for the discharged oil, or for the vessel, terminal,
P21   1pipeline, or facility from which the oil was discharged. The
2responsiblebegin delete person or personsend deletebegin insert party or partiesend insert shall remain liable
3for any and all damages arising from the discharge, including
4damages arising from improperly carried out response efforts, as
5otherwise provided by law.

6(b) begin deleteNothing in this section shall, end deletebegin insertThis section does not, end insertin any
7manner or respect, affect or impair any cause of action against or
8any liability of any party or parties responsible for the spill, or the
9responsible party’s agents, employees, or subcontractors, except
10persons immunized under subdivision (a) for response efforts, for
11the discharged oil, or for the vessel, terminal, pipeline, or facility
12from which the oil was discharged.

13(c) The responsible party or parties shall be subject to both of
14the following:

15(1) Notwithstanding subdivision (b) or (i) of Section 8670.56.5,
16or any other law, be strictly and jointly and severally liable for all
17damages arising pursuant to subdivision (h) of Section 8670.56.5
18from the response efforts of its agents, employees, subcontractors,
19or an oil spill cooperative of which it is a member or with which
20it has a contract or other arrangement for cleanup of its oil spills,
21unless it would have a defense to the original spill.

22(2) Remain strictly liable for any and all damages arising from
23the response efforts of a person other than a person specified in
24paragraph (1).

25(d) begin deleteNothing in this section shall end deletebegin insert This section does not end insertimmunize
26a cooperative or any other person from liability for acts of gross
27negligence or willful misconduct in connection withbegin delete the cleanup
28of a spill.end delete
begin insert response efforts.end insert

29(e) This section does not apply to any action for personal injury
30or wrongful death.

31(f) As used in this section, a “cooperative” means an
32organization of private persons that is established for the primary
33purpose and activity of preventing or rendering care, assistance,
34or advice in response to a spill or threatened spill.

35(g) Except for the responsible party, membership in a
36cooperative shall not be grounds, in and of itself, for liability
37resulting frombegin delete cleanup activitiesend deletebegin insert response effortsend insert of the cooperative.

38(h) For purposes of this section, there shall be a rebuttable
39presumption that an act or omission described in subdivision (a)
40was taken in good faith.

P22   1(i) In any situation in which immunity is granted pursuant to
2subdivision (a) and a responsible party is not liable, is not liable
3for noneconomic damages caused by another, or is partially or
4totally insolvent, the fund provided for in Article 7 (commencing
5with Section 8670.46) shall reimburse, in accordance with its terms,
6claims of any injured party for which a person who is granted
7immunity pursuant to this section would otherwise be liable.

8(j) (1) The immunity granted by this section shall only apply
9to response efforts that are undertaken after the administrator
10 certifies that contracts with qualified and responsible persons are
11in place to ensure an adequate and expeditious response to any
12foreseeable oil spill that may occur in waters of the state for which
13the responsible party (A) cannot be identified or (B) is unable or
14unwilling to respond, contain, and clean up the oil spill in an
15adequate and timely manner. In negotiating these contracts, the
16administrator shall procure, to the maximum extent practicable,
17the services of persons who are willing to respond to oil spills with
18no, or lesser, immunity than that conferred by this section, but, in
19no event, a greater immunity. The administrator shall make the
20certification required by this subdivision on an annual basis. Upon
21certification, the immunity conferred by this section shall apply
22to all response efforts undertaken during the calendar year to which
23the certification applies. In the absence of the certification required
24by this subdivision, the immunity conferred by this section shall
25not attach to any response efforts undertaken by any person in
26waters of the state.

27(2) In addition to the authority to negotiate contracts described
28in paragraph (1), the administrator may also negotiate and enter
29into indemnification agreements with qualified and financially
30responsible persons to respond to oil spills that may occur in waters
31of the state for which the responsible party (A) cannot be identified
32or (B) is unable or unwilling to respond, contain, and clean up the
33oil spill in an adequate and timely manner.

34(3) The administrator may indemnify response contractors for
35(A) all damages payable by means of settlement or judgment that
36arise from response efforts to which the immunity conferred by
37this section would otherwise apply, and (B) reasonably related
38legal costs and expenses incurred by the responder, provided that
39indemnification shall only apply to response efforts undertaken
40 after the expiration of any immunity that may exist as the result
P23   1of the contract negotiations authorized in this subdivision. In
2negotiating these contracts, the administrator shall procure, to the
3maximum extent practicable, the services of persons who are
4willing to respond to oil spills with no, or as little, right to
5indemnification as possible. All indemnification shall be paid by
6the administrator from the Oil Spill Response Trust Fund.

7(4) (A) The contracts required by this section, and any other
8contracts entered into by the administrator for response,
9containment, or cleanup of an existing spill, or for response of an
10imminent threat of a spill, the payment of which is to be made
11from the Oil Spill Response Trust Fund created pursuant to Section
128670.46, shall be exempt from Part 2 (commencing with Section
1310100) of Division 2 of the Public Contract Code and Article 6
14(commencing with Section 999) of Chapter 6 of Division 4 of the
15Military and Veterans Code.

16(B) The exemption specified in subparagraph (A) applies only
17to contracts for which the services are used for a period of less
18than 90 days, cumulatively, per year.

19(C) This paragraph shall not be construed as limiting the
20administrator’s authority to exercise the emergency powers granted
21pursuant to subdivision (c) of Section 8670.62, including the
22authority to enter into emergency contracts that are exempt from
23approval by the Department of General Services.

24(k) (1) With regard to a person who is regularly engaged in the
25business of responding to oil spills, the immunity conferred by
26this section shall not apply to any response efforts by that person
27that occur later than 60 days after the first day the person’s response
28efforts commence.

29(2) Notwithstanding the limitation contained in paragraph (1),
30the administrator may extend, upon making all the following
31findings, the period of time, not to exceed 30 days, during which
32the immunity conferred by this section applies to response efforts:

33(A) Due to inadequate or incomplete containment and
34stabilization, there exists a substantial probability that the size of
35the spill will significantly expand and (i) threaten previously
36uncontaminated resources, (ii) threaten already contaminated
37resources with substantial additional contamination, or (iii)
38otherwise endanger the public health and safety or harm the
39environment.

P24   1(B) The remaining work is of a difficult or perilous nature that
2extension of the immunity is clearly in the public interest.

3(C) No other qualified and financially responsible contractor is
4prepared and willing to complete the response effort in the absence
5of the immunity, or a lesser immunity, as negotiated by contract.

6(3) The administrator shall provide five days’ notice of his or
7her proposed decision to either extend, or not extend, the immunity
8conferred by this section. Interested parties shall be given an
9opportunity to present oral and written evidence at an informal
10hearing. In making his or her proposed decision, the administrator
11shall specifically seek and consider the advice of the relevant Coast
12Guard representative. The administrator’s decision to not extend
13the immunity shall be announced at least 10 working days before
14the expiration of the immunity to provide persons an opportunity
15to terminate their response efforts as contemplated by paragraph
16(4).

17(4) A person or their agents, subcontractors, or employees shall
18not incur any liability under this chapter or any other provision of
19law solely as a result of that person’s decision to terminate their
20response efforts because of the expiration of the immunity
21conferred by this section. A person’s decision to terminate response
22efforts because of the expiration of the immunity conferred by this
23section shall not in any manner impair, curtail, limit, or otherwise
24affect the immunity conferred on the person with regard to the
25person’s response efforts undertaken during the period of time the
26immunity applied to those response efforts.

27(5) The immunity granted under this section shall attach, without
28the limitation contained in this subdivision, to the response efforts
29of any person who is not regularly engaged in the business of
30responding to oil spills. A person who is not regularly engaged in
31the business of responding to oil spills includes, but is not limited
32to, (A) a person who is primarily dedicated to the preservation and
33rehabilitation of wildlife and (B) a person who derives his or her
34livelihood primarily from fishing.

begin delete

35(l) As used in this section, “response efforts” means rendering
36care, assistance, or advice in accordance with the National
37Contingency Plan, the California oil spill contingency plan, or at
38the direction of the administrator, United States Environmental
39Protection Agency, or the Coast Guard in response to a spill or
40threatened spill into waters of the state.

end delete
P25   1

SEC. 11.  

Section 8670.59 of the Government Code is amended
2to read:

3

8670.59.  

(a) Any civil action brought pursuant to this chapter,
4or pursuant to Division 7.8 (commencing with Section 8750) of
5the Public Resources Code, shall be brought in the county in which
6the spill, discharge, or violation occurred, the county in which the
7principal place of business of the defendant is located, or the county
8in which the defendant is doing business in this state.

9(b) (1) Notwithstanding any other provision of law, all criminal
10actions for the prosecution of misdemeanor violations of this
11chapter or Division 7.8 (commencing with Section 8750) of the
12Public Resources Code shall be commenced within one year from
13the date of the discovery of the facts or circumstancesbegin delete whichend deletebegin insert thatend insert
14 constitute the violation.

15(2) Notwithstanding any other provision of law, all criminal
16actions for the prosecution of felony violations of this chapter or
17Division 7.8 (commencing with Section 8750) of the Public
18Resources Code shall be commenced within three years from the
19date of the discovery of the facts or circumstancesbegin delete whichend deletebegin insert thatend insert
20 constitute the violation.

21(c) Notwithstanding any other provision of law, except as
22provided in subdivision (d), any action to recover civil damages
23or penalties shall be commenced within three years from the date
24of discovery of the facts or circumstancesbegin delete whichend deletebegin insert thatend insert constitute a
25violation of this chapter or Division 7.8 (commencing with Section
268750) of the Public Resources Code.

27(d) Any action to recover civil damages or penalties pursuant
28to paragraph (3), (4), (5), (6), or (7) of subdivisionbegin delete (g)end deletebegin insert (h)end insert of Section
298670.56.5 because of effects on natural resources shall be
30commenced within five years from the date of the discovery of
31the facts or circumstancesbegin delete whichend deletebegin insert thatend insert are the basis for the cause
32of action.

33(e) Any action to compel the removal of oil or the restoration
34and rehabilitation of wildlife and wildlife habitat shall be
35commenced within five years from the date of discovery of the
36facts or circumstancesbegin delete whichend deletebegin insert thatend insert constitute a violation of this
37chapter or Division 7.8 (commencing with Section 8750) of the
38Public Resources Code.

39(f) For purposes of subdivisions (b), (c), (d), and (e), “date of
40discovery” means the actual date that facts sufficient to establish
P26   1that a violation of this chapter or Division 7.8 (commencing with
2Section 8750) of the Public Resources Code has occurred are
3discovered by a peace officer appointed pursuant to Section 851
4of the Fish and Game Code.

5(g) The administrator may adopt regulations prescribing
6procedures for the implementation of this section.



O

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