BILL NUMBER: AB 1130 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 21, 2007
AMENDED IN ASSEMBLY JUNE 1, 2007
AMENDED IN ASSEMBLY APRIL 19, 2007
AMENDED IN ASSEMBLY APRIL 16, 2007
INTRODUCED BY Assembly Member Laird
FEBRUARY 23, 2007
An act to amend Sections 25270.2, 25270.3, 25270.6, 25270.8,
25270.12, 25270.13, 25404, 25404.1.1, and 25404.5 of, to
add Section 25270.4.5 to, to repeal Sections 25270.1, 25270.7, and
25270.10 of, to repeal and add Sections 25270, 25270.4, 25270.5, and
25270.9 of, and to repeal, add, and repeal Section 25270.11 of, the
Health and Safety Code, relating to aboveground storage tanks.
LEGISLATIVE COUNSEL'S DIGEST
AB 1130, as amended, Laird. Aboveground storage tanks.
(1) Existing law requires the Secretary for Environmental
Protection to implement a unified hazardous waste and hazardous
materials management regulatory program. A city or local agency that
meets specified requirements is authorized to apply to the secretary
to implement the unified program, and every county is required to
apply to the secretary to be certified to implement the unified
program.
The Aboveground Petroleum Storage Act (Act) defines, for purposes
of the act, a "storage tank" as any aboveground tank or container
used for the storage of petroleum, except as specified. Existing law
requires the State Water Resources Control Board and the California
regional water quality control boards to administer the act with
regard to a tank facility that is subject to specified federal
regulations and requires a certified unified program agency to
enforce the requirements of the act regarding a spill prevention
control and countermeasure plan. Existing law imposes specified
inspection and monitoring requirements upon the board and the
regional boards with regard to these tanks and requires a tank
facility owner or operator to file a storage statement with the
board. Existing law establishes the Environmental Protection Trust
Fund in the State Treasury and provides that the money in the fund is
available for expenditure by the board, upon appropriation by the
Legislature, for specified purposes.
This bill would instead require the Unified Program
Agency (UPA) unified program agencies
(UPAs) to implement that act, and would make conforming
changes.
The bill would define the term "aboveground storage tank" and
would revise the types of storage tanks subject to the act. A storage
tank at a tank facility subject to specified federal regulations
would be required to prepare a spill prevention control and
countermeasure plan and a tank facility located on a farm, nursery,
logging site, or construction site that is less than a specified
capacity would be required to be subject to inspections and , if
the UPA makes a certain determination, secondary containment
requirements.
The bill would require the UPA to inspect, at least once every 3
years, each storage tank within its jurisdiction that has a storage
capacity of 10,000 gallons or more of petroleum, except as specified.
The owner or operator of a tank facility would be required to file
an annual tank facility statement with the local agency, accompanied
by a fee established by the UPA.
The board, the regional board, and the UPA would be
required authorized to oversee the cleanup or
abatement efforts, or to cause cleanup or abatement efforts, with
regard to a release from a storage tank at a tank facility.
Any expenses recovered by the board or a regional board in
overseeing, or contracting for, a cleanup or abatement would be
required to be deposited in the Waste Discharge Permit Fund, for
expenditure by the board, upon appropriation by the Legislature, to
assist the regional boards and other public agencies in cleaning up
or abating the effects of waste on water and other specified
purposes. The bill would require the deposited money to be separately
accounted for.
The bill would impose a state-mandated local program by imposing
new duties upon local agencies with regard to the regulation of
aboveground storage tanks.
The bill would authorize the expenditure of a portion of the
money moneys in the Environmental
Protection Trust Fund, as of January 1, 2008 upon
appropriation by the Legislature, in an amount determined by the
Secretary of Environmental Protection in consultation with the UPAs,
to a training account established and maintained by the secretary to
be used for purposes of training UPA personnel in the requirements of
the act, and would authorize the expenditure of all remaining funds
to the UPAs to implement the act. Any funds remaining in the training
account established by the secretary, or in the Environmental
Protection Trust Fund, as of June 1, 2011, upon
appropriation by the Legislature would be authorized to be
expended by the UPAs to implement the act , upon appropriation
by the Legislature . The Environmental Protection Trust Fund
and the training account would be inoperative as of July 1, 2011, and
would be repealed as of January 1, 2012.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25270 of the Health and Safety Code is
repealed.
SEC. 2. Section 25270 is added to the Health and Safety Code, to
read:
25270. This chapter shall be known and may be cited as the
Aboveground Petroleum Storage Act.
SEC. 3. Section 25270.1 of the Health and Safety Code is repealed.
SEC. 4. Section 25270.2 of the Health and Safety Code is amended
to read:
25270.2. For purposes of this chapter, the following definitions
apply:
(a) "Aboveground storage tank" or "storage tank" means a tank that
has the capacity to store 55 gallons or more of petroleum and that
is substantially or totally above the surface of the ground.
"Aboveground storage tank" does not include any of the following:
(1) A pressure vessel or boiler that is subject to Part 6
(commencing with Section 7620) of Division 5 of the Labor Code.
(2) A tank containing hazardous waste, as defined in subdivision
(g) of Section 25316, if the Department of Toxic Substances Control
has issued the person owning or operating the tank a hazardous waste
facilities permit for the storage tank.
(3) An aboveground oil production tank that is subject to Section
3106 of the Public Resources Code.
(4) Oil-filled electrical equipment, including, but not limited
to, transformers, circuit breakers, or capacitors, if the oil-filled
electrical equipment meets either of the following conditions:
(A) The equipment contains less than 10,000 gallons of dielectric
fluid.
(B) The equipment contains 10,000 gallons or more of dielectric
fluid with PCB levels less than 50 parts per million, appropriate
containment or diversionary structures or equipment are employed to
prevent discharged oil from reaching a navigable water course, and
the electrical equipment is visually inspected in accordance with the
usual routine maintenance procedures of the owner or operator.
(5) A tank regulated as an underground storage tank under Chapter
6.7 (commencing with Section 25280) and Chapter 16 (commencing with
Section 2610) of Division 3 of Title 23 of the California Code of
Regulations.
(6) Any transportation-related tank facility, subject to the
authority and control of the United States Department of
Transportation, as defined in the Memorandum of Understanding between
the Secretary of Transportation and the Administrator of the United
States Environmental Protection Agency, dated November 24, 1971, set
forth in Appendix A to Part 112 (commencing with Section 112.1) of
Subchapter D of Chapter I of Title 40 of the Code of Federal
Regulations.
(b) "Board" means the State Water Resources Control Board.
(c) (1) "Certified Unified Program Agency" or "CUPA" means the
agency certified by the Secretary for Environmental Protection to
implement the unified program specified in Chapter 6.11 (commencing
with Section 25404) within a jurisdiction.
(2) "Participating Agency" or "PA" means an agency that has a
written agreement with the CUPA pursuant to subdivision (d) of
Section 25404.3, and is approved by the secretary, to implement and
enforce the unified program element specified in paragraph (2) of
subdivision (c) of Section 25404, in accordance with Sections 25404.1
and 25404.2.
(3) (A) "Unified Program Agency" or "UPA" means the CUPA, or its
participating agencies to the extent that each PA has been designated
by the CUPA, pursuant to a written agreement, to implement and
enforce the unified program element specified in paragraph (2) of
subdivision (c) of Section 25404. The UPAs have the responsibility
and authority, to the extent provided by this chapter and Sections
25404.1 and 25404.2, to implement and enforce the requirements of
this chapter.
(B) After a CUPA has been certified by the secretary, the unified
program agency shall be the only agency authorized to enforce the
requirements of this chapter..
(C) This paragraph shall not be construed to limit the authority
or responsibility granted to the board and the regional boards by
this chapter.
(d) "Operator" means the person responsible for the overall
operation of a tank facility.
(e) "Owner" means the person who owns the tank facility or part of
the tank facility.
(f) "Person" means an individual, trust, firm, joint stock
company, corporation, including a government corporation,
partnership, limited liability company, or association. "Person" also
includes any city, county, district, the University of California,
the California State University, the state, any department or agency
thereof, and the United States, to the extent authorized by federal
law.
(g) "Petroleum" means crude oil, or any fraction thereof, which is
liquid at 60 degrees Fahrenheit temperature and 14.7 pounds per
square inch absolute pressure.
(h) "Regional board" means a California regional water quality
control board.
(i) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, escaping, leaching, or disposing
into the environment.
(j) "Secretary" means the Secretary for Environmental Protection.
(k) "Storage" or "store" means the containment, handling, or
treatment of petroleum, for any period of time, including on a
temporary basis.
(l) "Storage capacity" means the aggregate capacity of all
aboveground tanks at a tank facility.
(m) "Tank facility" means any one, or combination of, aboveground
storage tanks, including any piping that is integral to the tank,
that contains petroleum and that is used by a single business entity
at a single location or site. For purposes of this chapter, a pipe is
integrally related to an aboveground storage tank if the pipe is
connected to the tank and meets any of the following:
(1) The pipe is within the dike or containment area.
(2) The pipe is between the containment area and the first flange
or valve outside the containment area.
(3) The pipe is connected to the first flange or valve on the
exterior of the tank, if state or federal law does not require a
containment area.
SEC. 5. Section 25270.3 of the Health and Safety Code is amended
to read:
25270.3. A tank facility is subject to this chapter if
the tank if the tank facility is subject to the
oil pollution prevention regulations specified in Part 112
(commencing with Section 112.1) of Subchapter D of Chapter I of Title
40 of the Code of Federal Regulations or the tank facility has a
storage capacity of 1,320 gallons or more of petroleum.
SEC. 6. Section 25270.4 of the Health and Safety Code is repealed.
SEC. 7. Section 25270.4 is added to the Health and Safety Code, to
read:
25270.4. This chapter shall be implemented by the Unified Program
Agency. If there is no UPA, the agency authorized pursuant to
subdivision (f) of Section 25404.3 shall be deemed to be the UPA for
purposes of this chapter and shall implement this chapter.
SEC. 8. Section 25270.4.5 is added to the Health and Safety Code,
to read:
25270.4.5. (a) Except as provided in subdivision (b), each owner
or operator of a storage tank at a tank facility subject to this
chapter shall prepare a spill prevention control and countermeasure
plan prepared in accordance with Part 112 (commencing with Section
112.1) of Subchapter D of Chapter I of Title 40 of the Code of
Federal Regulations. Each owner or operator specified in this
subdivision shall conduct periodic inspections of the storage tank to
assure compliance with Section 112 (commencing with Section 112.1)
of Subchapter D of Chapter I of Title 40 of the Code of Federal
Regulations. In implementing the spill prevention control and
countermeasure plan, each owner or operator specified in this
subdivision shall fully comply with the latest version of the
regulations contained in Part 112 (commencing with Section 112.1) of
Subchapter D of Chapter I of Title 40 of the Code of Federal
Regulations.
(b) A tank facility located on a farm, nursery, logging site, or
construction site is not subject to subdivision (a) 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. The owner or operator of a tank facility exempt pursuant to
this subdivision shall take the following actions:
(1) Conduct a daily visual inspection of any storage tank storing
petroleum.
(2) Allow the UPA to conduct a periodic inspection of the tank
facility.
(3) Install a secondary means of containment for the entire
contents of the largest storage tank at the tank facility, plus
sufficient space for precipitation, if the UPA determines this
installation is necessary for the protection of the waters of the
state.
(3) If the UPA determines installation of secondary containment is
necessary for the protection of the waters of the state, install a
secondary means of containment for each tank or group of tanks where
the secondary containment will, at a minimum, contain the entire
contents of the largest tank protected by the secondary containment
plus precipitation.
SEC. 9. Section 25270.5 of the Health and Safety Code is repealed.
SEC. 10. Section 25270.5 is added to the Health and Safety Code,
to read:
25270.5. (a) Except as provided in subdivision (b), at least once
every three years, the UPA shall inspect each storage tank or a
representative sampling of the storage tanks at each tank facility
that has a storage capacity of 10,000 gallons or more of petroleum.
The purpose of the inspection shall be to determine whether the owner
or operator is in compliance with the spill prevention control and
countermeasure plan requirements of this chapter.
(b) The UPA may develop an alternative inspection and compliance
plan, subject to approval by the secretary.
(c) An inspection conducted pursuant to this section does not
require the oversight of a professional engineer.
SEC. 11. Section 25270.6 of the Health and Safety Code is amended
to read:
25270.6. (a) On or before January 1, 2009, and on or before
January 1 annually thereafter, each owner or operator of a tank
facility subject to this chapter shall file with the UPA a tank
facility statement that shall identify the name and address of the
tank facility, a contact person for the tank facility, the total
storage capacity of the tank facility, and the location, size, age,
and contents of each storage tank that exceeds 10,000 gallons in
capacity and that holds a substance containing at least 5 percent of
petroleum. A copy of a statement submitted previously pursuant to
this section may be submitted in lieu of a new tank facility
statement if no new or used storage tanks have been added to the
facility or if no significant modifications have been made. For
purposes of this section, a significant modification includes, but is
not limited to, altering existing storage tanks or changing spill
prevention or containment methods.
(b) On or before January 1, 2010, and on or before January 1 of
each year thereafter
(b) Each year, commencing in calendar
year 2010 , each owner or operator of a tank facility who is
required to submit a tank facility statement pursuant to subdivision
(a) shall pay a fee to the UPA , on or before a date specified
by the UPA . The governing body of the UPA shall establish a
fee, as part of the single fee system implemented pursuant to Section
25404.5, at a level sufficient to pay the necessary and reasonable
costs incurred by the UPA in administering this chapter, including
but not limited to, inspections, enforcement, and administrative
costs. The UPA may provide for a waiver of these fees when a state or
local government agency submits a tank facility statement.
SEC. 12. Section 25270.7 of the Health and Safety Code is
repealed.
SEC. 13. Section 25270.8 of the Health and Safety Code is amended
to read:
25270.8. Each owner or operator of a tank facility shall
immediately, upon discovery, notify the Office of Emergency Services
and the UPA using the appropriate 24-hour emergency number or the 911
number, as established by the UPA, or by the governing body of the
UPA, of the occurrence of a spill or other release of one barrel (42
gallons) or more of petroleum that is required to be reported
pursuant to subdivision (a) of Section 13272 of the Water Code.
SEC. 14. Section 25270.9 of the Health and Safety Code is
repealed.
SEC. 15. Section 25270.9 is added to the Health and Safety Code,
to read:
25270.9. (a) The board, the regional board, and the UPA
shall may oversee cleanup or abatement efforts,
or cause cleanup or abatement efforts, of a release from a storage
tank at a tank facility. The UPA may refer the oversight or cleanup
of a release from a storage tank at a tank facility to a regional
board for action, if appropriate, pursuant to Division 7 (commencing
with Section 13000) of the Water Code.
(b) The reasonable expenses of the board, the regional board, and
the UPA incurred in overseeing, or contracting for, a
cleanup or abatement that results cleanup or abatement
efforts that result from a release at a tank facility is a
charge against the owner or operator of the tank facility. Expenses
reimbursed reimbursable to a public
agency under this section are a debt of the tank facility owner or
operator, and shall be collected in the same manner as in
the case of an express or implied obligation under contract.
manner as in the case of an obligation under a
contract, express or implied.
(c) Expenses recovered by the board or a regional board pursuant
to this section shall be deposited into the Waste Discharge Permit
Fund. These moneys shall be separately accounted for, and shall be
expended by the board, upon appropriation by the Legislature, to
assist regional boards and other public agencies with authority to
clean up waste or abate the effects of the waste, in cleaning up or
abating the effects of the waste on waters of the state, or for the
purposes authorized in Section 13443.
(d) The expenses recovered by the UPA pursuant to this section
shall be deposited in an account maintained by the UPA for the
purposes of carrying out this chapter.
SEC. 16. Section 25270.10 of the Health and Safety Code is
repealed.
SEC. 17. Section 25270.11 of the Health and Safety Code is
repealed.
SEC. 18. Section 25270.11 is added to the Health and Safety Code,
to read:
25270.11. (a) All money remaining moneys
in the Environmental Protection Trust Fund as of
January 1, 2008, may be expended, upon appropriation by the
Legislature, in the following manner:
(1) A portion of the funds, in an amount determined by the
secretary in consultation with the UPAs, to a training account
established and maintained by the secretary, to be used for purposes
of training UPA personnel in the requirements of this chapter.
(2) All remaining funds in the Environmental Protection Trust
Fund, shall be allocated to the UPAs, in accordance with a formula
and process determined by the secretary in consultation with the
UPAs. The UPAs shall expend those funds for the purpose of
implementing this chapter.
(b) All moneys remaining in the training account established
pursuant to paragraph (1) of subdivision (a), as of June 1, 2011, may
be expended pursuant to paragraph (2) of subdivision (a), upon
appropriation by the Legislature.
(c) All moneys remaining in the Environmental Protection Trust
Fund that have not been expended, as of June 1, 2011, shall be
expended pursuant to paragraph (2) of subdivision (a), upon
appropriation by the Legislature.
(c)
(d) This section shall become inoperative on July 1,
2011, and, as of January 1, 2012, is repealed, unless a later enacted
statute, that becomes operative on or before January 1, 2012,
deletes or extends the dates on which it becomes inoperative and is
repealed.
SEC. 19. Section 25270.12 of the Health and Safety Code is amended
to read:
25270.12. (a) Any owner or operator of a tank facility who fails
to prepare a spill prevention control and countermeasure plan in
compliance with subdivision (a) of Section 25270.4.5, to file a tank
facility statement pursuant to subdivision (a) of Section 25270.6, to
submit the fee required by subdivision (b) of Section 25270.6, to
report spills as required by Section 25270.8, or otherwise to comply
with the requirements of this chapter, 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.
(b) (1) The civil penalties provided by this section may be
assessed and recovered in a civil action brought by the city attorney
or district attorney on behalf of the UPA.
(2) Fifty percent of all penalties assessed and recovered in a
civil action brought on behalf of a UPA pursuant to this subdivision
shall be deposited into a unified program account established by the
UPA for the purpose of carrying out the functions of the unified
program and 50 percent shall be paid to the office of the city
attorney or district attorney, whoever brought that action.
(c) (1) The civil penalties provided in this section may be
assessed and recovered in a civil action brought by the Attorney
General on behalf of the board or a regional board, or on behalf of
the people of the State of California.
(2) All penalties assessed and recovered in a civil action brought
pursuant to this subdivision shall be deposited in the Waste
Discharge Permit Fund. These moneys shall be separately accounted
for, and shall be expended by the board, upon appropriation by the
Legislature, to assist regional boards and other public agencies with
authority to clean up waste or abate the effects of the waste, in
cleaning up or abating the effects of the waste on waters of the
state, or for the purposes authorized in Section 13443.
(d) The city attorney, district attorney, or the Attorney General
may seek to enjoin, in any court of competent jurisdiction, any
person believed to be in violation of this chapter.
(e) The penalties specified in this section are in addition to any
other penalties provided by law.
SEC. 20. Section 25270.13 of the Health and Safety Code is amended
to read:
25270.13. (a) This chapter does not preempt local storage tank
ordinances, in effect as of August 16, 1989, that meet or exceed the
standards prescribed by this chapter.
(b) This chapter does not preempt the authority granted to the
board and the regional boards under the Porter Cologne Water Quality
Control Act (Division 7 (commencing with Section 13000) of the Water
Code).
SEC. 21. Section 25404 of the Health and Safety Code is amended to
read:
25404. (a) For purposes of this chapter, the following terms
shall have the following meanings:
(1) (A) "Certified Unified Program Agency" or "CUPA" means the
agency certified by the secretary to implement the unified program
specified in this chapter within a jurisdiction.
(B) "Participating Agency" or "PA" means a state or local agency
that has a written agreement with the CUPA pursuant to subdivision
(d) of Section 25404.3, and is approved by the secretary, to
implement or enforce one or more of the unified program elements
specified in subdivision (c), in accordance with Sections 25404.1 and
25404.2.
(C) "Unified Program Agency" or "UPA" means the CUPA, or its
participating agencies to the extent each PA has been designated by
the CUPA, pursuant to a written agreement, to implement or enforce a
particular unified program element specified in subdivision (c). The
UPAs have the responsibility and authority to implement and enforce
the requirements listed in subdivision (c), and the regulations
adopted to implement the requirements listed in subdivision (c), to
the extent provided by Chapter 6.5 (commencing with Section 25100),
Chapter 6.67 (commencing with Section 25270), Chapter 6.7 (commencing
with Section 25280), Chapter 6.95 (commencing with Section 25500),
and Sections 25404.1 and 25404.2. After a CUPA has been certified by
the secretary, the unified program agencies and the state agencies
carrying out responsibilities under this chapter shall be the only
agencies authorized to enforce the requirements listed in subdivision
(c) within the jurisdiction of the CUPA.
(2) "Department" means the Department of Toxic Substances Control.
(3) "Minor violation" means the failure of a person to comply with
any requirement or condition of any applicable law, regulation,
permit, information request, order, variance, or other requirement,
whether procedural or substantive, of the unified program that the
UPA is authorized to implement or enforce pursuant to this chapter,
and that does not otherwise include any of the following:
(A) A violation that results in injury to persons or property, or
that presents a significant threat to human health or the
environment.
(B) A knowing, willful, or intentional violation.
(C) A violation that is a chronic violation, or that is committed
by a recalcitrant violator. In determining whether a violation is
chronic or a violator is recalcitrant, the UPA shall consider whether
there is evidence indicating that the violator has engaged in a
pattern of neglect or disregard with respect to applicable regulatory
requirements.
(D) A violation that results in an emergency response from a
public safety agency.
(E) A violation that enables the violator to benefit economically
from the noncompliance, either by reduced costs or competitive
advantage.
(F) A class I violation as provided in Section 25117.6.
(G) A class II violation committed by a chronic or a recalcitrant
violator, as provided in Section 25117.6.
(H) A violation that hinders the ability of the UPA to determine
compliance with any other applicable local, state, or federal rule,
regulation, information request, order, variance, permit, or other
requirement.
(4) "Secretary" means the Secretary for Environmental Protection.
(5) "Unified program facility" means all contiguous land and
structures, other appurtenances, and improvements on the land that
are subject to the requirements listed in subdivision (c).
(6) "Unified program facility permit" means a permit issued
pursuant to this chapter. For the purposes of this chapter, a unified
program facility permit encompasses the permitting requirements of
Section 25284, and any permit or authorization requirements under any
local ordinance or regulation relating to the generation or handling
of hazardous waste or hazardous materials, but does not encompass
the permitting requirements of a local ordinance that incorporates
provisions of the Uniform Fire Code or the Uniform Building Code.
(b) The secretary shall adopt implementing regulations and
implement a unified hazardous waste and hazardous materials
management regulatory program, which shall be known as the unified
program, after holding an appropriate number of public hearings
throughout the state. The unified program shall be developed in close
consultation with the director, the Director of the Office of
Emergency Services, the State Fire Marshal, the executive officers
and chairpersons of the State Water Resources Control Board and the
California regional water quality control boards, the local health
officers, local fire services, and other appropriate officers of
interested local agencies, and affected businesses and interested
members of the public, including environmental organizations.
(c) The unified program shall consolidate the administration of
the following requirements, and shall, to the maximum extent feasible
within statutory constraints, ensure the coordination and
consistency of any regulations adopted pursuant to those
requirements:
(1) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.5 (commencing with Section 25100), and the
regulations adopted by the department pursuant thereto, are
applicable to all of the following:
(i) Hazardous waste generators, persons operating pursuant to a
permit-by-rule, conditional authorization, or conditional exemption,
pursuant to Chapter 6.5 (commencing with Section 25100) or the
regulations adopted by the department.
(ii) Persons managing perchlorate materials.
(iii) Persons subject to Article 10.1 (commencing with Section
25211) of Chapter 6.5.
(B) The unified program shall not include the requirements of
paragraph (3) of subdivision (c) of Section 25200.3, the requirements
of Sections 25200.10 and 25200.14, and the authority to issue an
order under Sections 25187 and 25187.1, with regard to those portions
of a unified program facility that are subject to one of the
following:
(i) A corrective action order issued by the department pursuant to
Section 25187.
(ii) An order issued by the department pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iii) A remedial action plan approved pursuant to Chapter 6.8
(commencing with Section 25300) or Chapter 6.85 (commencing with
Section 25396).
(iv) A cleanup and abatement order issued by a California regional
water quality control board pursuant to Section 13304 of the Water
Code, to the extent that the cleanup and abatement order addresses
the requirements of the applicable section or sections listed in this
subparagraph.
(v) Corrective action required under subsection (u) of Section
6924 of Title 42 of the United States Code or subsection (h) of
Section 6928 of Title 42 of the United States Code.
(vi) An environmental assessment pursuant to Section 25200.14 or a
corrective action pursuant to Section 25200.10 or paragraph (3) of
subdivision (c) of Section 25200.3, that is being overseen by the
department.
(C) The unified program shall not include the requirements of
Chapter 6.5 (commencing with Section 25100), and the regulations
adopted by the department pursuant thereto, applicable to persons
operating transportable treatment units, except that any required
notice regarding transportable treatment units shall also be provided
to the CUPAs.
(2) The requirements of Chapter 6.67 (commencing with Section
25270) concerning aboveground storage tanks.
(3) (A) Except as provided in subparagraphs (B) and (C), the
requirements of Chapter 6.7 (commencing with Section 25280)
concerning underground storage tanks and the requirements of any
underground storage tank ordinance adopted by a city or county.
(B) The unified
program may not include the responsibilities assigned to the State
Water Resources Control Board pursuant to Section 25297.1.
(C) The unified program may not include the corrective action
requirements of Sections 25296.10 to 25296.40, inclusive.
(4) The requirements of Article 1 (commencing with Section 25500)
of Chapter 6.95 concerning hazardous material release response plans
and inventories.
(5) The requirements of Article 2 (commencing with Section 25531)
of Chapter 6.95, concerning the accidental release prevention
program.
(6) The requirements of subdivisions (b) and (c) of Section 80.103
of the Uniform Fire Code, as adopted by the State Fire Marshal
pursuant to Section 13143.9 concerning hazardous material management
plans and inventories.
(d) To the maximum extent feasible within statutory constraints,
the secretary shall consolidate, coordinate, and make consistent
these requirements of the unified program with other requirements
imposed by other federal, state, regional, or local agencies upon
facilities regulated by the unified program.
(e) (1) The secretary shall establish standards applicable to
CUPAs, participating agencies, state agencies, and businesses
specifying the data to be collected and submitted by unified program
agencies in administering the programs listed in subdivision (c).
Those standards shall incorporate any standard developed under
Section 25503.3.
(2) The secretary shall establish an electronic geographic
information management system capable of receiving all data collected
by the unified program agencies pursuant to this subdivision and
Section 25504.1. The secretary shall make all nonconfidential data
available on the Internet.
(3) (A) As funding becomes available, the secretary shall
establish, consistent with paragraph (2), and thereafter maintain, a
statewide database.
(B) The secretary, or one or more of the boards, departments, or
offices within the California Environmental Protection Agency, shall
seek available federal funding for purposes of implementing this
subdivision.
(4) Once the statewide database is established, the secretary
shall work with the CUPAs to develop a phased-in schedule for the
electronic collection and submittal of information to be included in
the statewide database, giving first priority to information relating
to those chemicals determined by the secretary to be of greatest
concern. The secretary, in making this determination shall consult
with the CUPAs, the Office of Emergency Services, the State Fire
Marshal, and the boards, departments, and offices within the
California Environmental Protection Agency. The information initially
included in the statewide database shall include, but is not limited
to, the hazardous materials inventory information required to be
submitted pursuant to Section 25504.1 for perchlorate materials.
SEC. 22. Section 25404.1.1 of the
Health and Safety Code is amended to read:
25404.1.1. (a) If the unified program agency 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 UPA is authorized to enforce or implement
pursuant to this chapter, the UPA may issue an administrative
enforcement order requiring that the violation be corrected and
imposing an administrative penalty, in accordance with the following:
(1) Except as provided in paragraph (5), if the order is for a
violation of Chapter 6.5 (commencing with Section 25100), the
violator shall be subject to the applicable administrative penalties
provided by that chapter.
(2) If the order is for a violation of Chapter 6.7 (commencing
with Section 25280), the violator shall be subject to the applicable
civil penalties provided in subdivisions (a), (b), (c), and (e) of
Section 25299.
(3) If the order is for a violation of Article 1 (commencing with
Section 25500) of Chapter 6.95, the violator shall be subject to a
penalty that is consistent with the administrative penalties imposed
pursuant to Section 25514.5.
(4) If the order is for a violation of Article 2 (commencing with
Section 25531) of Chapter 6.95, the violator shall be subject to a
penalty that is consistent with the administrative penalties imposed
pursuant to Section 25540 or 25540.5.
(5) If the order is for a violation of Section 25270.5
25270.4.5 , the violator shall be liable for a
penalty of not more than five thousand dollars ($5,000) for each day
on which the violation continues. If the violator commits a second or
subsequent violation, a penalty of not more than ten thousand
dollars ($10,000) for each day on which the violation continues may
be imposed.
(b) In establishing a penalty amount and ordering that the
violation be corrected pursuant to this section, the UPA shall take
into consideration the nature, circumstances, extent, and gravity of
the violation, the violator's past and present efforts to prevent,
abate, or clean up conditions posing a threat to the public health or
safety or the environment, the violator's ability to pay the
penalty, and the deterrent effect that the imposition of the penalty
would have on both the violator and the regulated community.
(c) Any order issued pursuant to this section shall be served by
personal service or certified mail and shall inform the person served
of the right to a hearing. If the UPA issues an order pursuant to
this section, the order shall state whether the hearing procedure
specified in paragraph (2) of subdivision (e) may be requested by the
person receiving the order.
(d) Any person served with an order pursuant to this section who
has been unable to resolve any violation with the UPA, may within 15
days after service of the order, request a hearing pursuant to
subdivision (e) by filing with the UPA a notice of defense. The
notice shall be filed with the office that issued the order. A notice
of defense shall be deemed filed within the 15-day period provided
by this subdivision if it is postmarked within that 15-day period. If
no notice of defense is filed within the time limits provided by
this subdivision, the order shall become final.
(e) Except as provided in subparagraph (B) of paragraph (2), a
person requesting a hearing on an order issued by the UPA under this
section may select the hearing officer specified in either paragraph
(1) or (2) in the notice of defense filed with the UPA pursuant to
subdivision (d). If a notice of defense is filed but no hearing
officer is selected, the UPA may select the hearing officer. Within
90 days of receipt of the notice of defense by the UPA, the hearing
shall be scheduled using one of the following:
(1) An administrative law judge of the Office of Administrative
Hearings of the Department of General Services, who shall conduct the
hearing in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code, and
the UPA shall have all the authority granted to an agency by those
provisions.
(2) (A) A hearing officer designated by the UPA, who shall conduct
the hearing in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code, and
the UPA shall have all the authority granted to an agency by those
provisions. When a hearing is conducted by a UPA hearing officer
pursuant to this paragraph, the UPA shall issue a decision within 60
days after the hearing is conducted. Each hearing officer designated
by a UPA shall meet the requirements of Section 11425.30 of the
Government Code and any other applicable restriction.
(B) A UPA, or a person requesting a hearing on an order issued by
a UPA may select the hearing process specified in this paragraph in a
notice of defense filed pursuant to subdivision (d) only if the UPA
has, as of the date the order is issued pursuant to subdivision (c),
selected a designated hearing officer and established a program for
conducting a hearing in accordance with this paragraph.
(f) The hearing decision issued pursuant to paragraph (2) of
subdivision (e) shall be effective and final upon issuance by the
UPA. A copy of the decision shall be served by personal service or by
certified mail upon the party served with the order, or their
representative, if any.
(g) Any provision of an order issued under this section, except
the imposition of an administrative penalty, shall take effect upon
issuance by the UPA if the UPA finds that the violation or violations
of law associated with that provision may pose an imminent and
substantial endangerment to the public health or safety or the
environment. A request for a hearing shall not stay the effect of
that provision of the order pending a hearing decision. However, if
the UPA determines that any or all provisions of the order are so
related that the public health or safety or the environment can be
protected only by immediate compliance with the order as a whole, the
order as a whole, except the imposition of an administrative
penalty, shall take effect upon issuance by the UPA. A request for a
hearing shall not stay the effect of the order as a whole pending a
hearing decision.
(h) A decision issued pursuant to paragraph (2) of subdivision (e)
may be reviewed by a court pursuant to Section 11523 of the
Government Code. In all proceedings pursuant to this section, the
court shall uphold the decision of the UPA if the decision is based
upon substantial evidence in the record as a whole. The filing of a
petition for writ of mandate shall not stay any action required
pursuant to this chapter or the accrual of any penalties assessed
pursuant to this chapter. This subdivision does not prohibit the
court from granting any appropriate relief within its jurisdiction.
(i) All administrative penalties collected from actions brought by
a UPA pursuant to this section shall be paid to the UPA that imposed
the penalty, and shall be deposited into a special account that
shall be expended to fund the activities of the UPA in enforcing this
chapter.
(j) The UPA shall consult with the district attorney, county
counsel, or city attorney on the development of policies to be
followed in exercising the authority delegated pursuant to this
section as it relates to the authority of the UPA to issue orders.
(k) (1) A unified program agency may suspend or revoke any unified
program facility permit, or an element of a unified program facility
permit, for not paying the permit fee or a fine or penalty
associated with the permit in accordance with the procedures
specified in this subdivision.
(2) If a permittee does not comply with a written notice from the
unified program agency to the permittee to make the payments
specified in paragraph (1) by the required date provided in the
notice, the unified program agency may suspend or revoke the permit
or permit element. If the permit or permit element is suspended or
revoked, the permittee shall immediately discontinue operating that
facility or function of the facility to which the permit element
applies until the permit is reinstated or reissued.
(3) A permittee may request a hearing to appeal the suspension or
revocation of a permit or element of a permit pursuant to this
subdivision by requesting a hearing using the procedures provided in
subdivision (d).
() This section does not do any of the following:
(1) Otherwise affect the authority of a UPA to take any other
action authorized by any other provision of law, except the UPA shall
not require a person to pay a penalty pursuant to this section and
pursuant to a local ordinance for the same violation.
(2) Restrict the power of a city attorney, district attorney,
county counsel, or the Attorney General to bring, in the name of the
people of California, any criminal proceeding otherwise authorized by
law.
(3) Prevent the UPA from cooperating with, or participating in, a
proceeding specified in paragraph (2).
SEC. 22. SEC. 23. Section 25404.5 of
the Health and Safety Code is amended to read:
25404.5. (a) (1) Each certified unified program agency shall
institute a single fee system, which shall replace the fees levied
pursuant to Sections 25201.14 and 25205.14, except for transportable
treatment units permitted under Section 25200.2, and which shall also
replace any fees levied by a local agency pursuant to Sections
25143.10, 25270.6, 25287, 25513, and 25535.5, or any other fee levied
by a local agency specifically to fund the implementation of the
provisions specified in subdivision (c) of Section 25404.
Notwithstanding Sections 25143.10, 25270.6,
25201.14, 25205.14, 25270.6, 25287,
25513, and 25535.5, a person who complies with the certified unified
program agency's "single fee system" fee shall not be required to pay
any fee levied pursuant to those sections, except for transportable
treatment units permitted under Section 25200.2.
(2) (A) The governing body of the local certified unified program
agency shall establish the amount to be paid by each person regulated
by the unified program under the single fee system at a level
sufficient to pay the necessary and reasonable costs incurred by the
certified unified program agency and by any participating agency
pursuant to the requirements of subparagraph (E) of paragraph (1) of
subdivision (d) of Section 25404.3.
(B) The secretary shall establish the amount to be paid when the
unified program agency is a state agency.
(3) The fee system may also be designed to recover the necessary
and reasonable costs incurred by the certified unified program
agency, or a participating agency pursuant to the requirements of
subparagraph (E) of paragraph (1) of subdivision (d) of Section
25404.3, in administering provisions other than those specified in
subdivision (c) of Section 25404, if the implementation and
enforcement of those provisions has been incorporated as part of the
unified program by the certified unified program agency pursuant to
subdivision (b) of Section 25404.2, and if the single fee system
replaces any fees levied as of January 1, 1994, to fund the
implementation of those additional provisions.
(4) The amount to be paid by a person regulated by the unified
program may be adjusted to account for the differing costs of
administering the unified program with respect to that person's
regulated activities.
(b) (1) Except as provided in subdivision (d), the single fee
system instituted by each certified unified program agency shall
include an assessment on each person regulated by the unified program
of a surcharge, the amount of which shall be determined by the
secretary annually, to cover the necessary and reasonable costs of
the state agencies in carrying out their responsibilities under this
chapter. The secretary may adjust the amount of the surcharge to be
collected by different certified unified program agencies to reflect
the different costs incurred by the state agencies in supervising the
implementation of the unified program in different jurisdictions,
and in supervising the implementation of the unified program in those
jurisdictions for which the secretary has waived the assessment of
the surcharge pursuant to subdivision (d). The certified unified
program agency may itemize the amount of the surcharge on any bill,
invoice, or return that the agency sends to a person regulated by the
unified program. Each certified unified program agency shall
transmit all surcharge revenues collected to the secretary on a
quarterly basis. The surcharge shall be deposited in the Unified
Program Account, which is hereby created in the General Fund and
which may be expended, upon appropriation by the Legislature, by
state agencies for the purposes of implementing this chapter.
(2) On or before January 10, 2001, the secretary shall report to
the Legislature on whether the number of persons subject to
regulation by the unified program in any county is insufficient to
support the reasonable and necessary cost of operating the unified
program using only the revenues from the fee. The secretary's report
shall consider whether the surcharge required by subdivision (a)
should include an assessment to be used to supplement the funding of
unified program agencies that have a limited number of entities
regulated under the unified program.
(c) Each certified unified program agency and the secretary shall,
before the institution of the single fee system and the assessment
of the surcharge, implement a fee accountability program designed to
encourage more efficient and cost-effective operation of the program
for which the single fee and surcharge are assessed. The fee
accountability programs shall include those elements of the
requirements of the plan adopted pursuant to former Section 25206, as
it read on January 1, 1995, that the secretary determines are
appropriate.
(d) The secretary may waive the requirement for a county to assess
a surcharge pursuant to subdivision (b), if both of the following
conditions apply:
(1) The county meets all of the following conditions:
(A) The county submits an application to the secretary for
certification on or before January 1, 1996, that incorporates all of
the requirements of this chapter, and includes the county's request
for a waiver of the surcharge, and contains documentation that
demonstrates, to the satisfaction of the secretary, both of the
following:
(i) That the assessment of the surcharge will impose a significant
economic burden on most businesses within the county.
(ii) That the combined dollar amount of the surcharge and the
single fee system to be assessed by the county pursuant to
subdivision (a) exceeds the combined dollar amount of all existing
fees that are replaced by the single fee system for most businesses
within the county.
(B) The application for certification, including the information
required by subparagraph (A), is determined by the secretary to be
complete, on or before April 30, 1996. The secretary, for good cause,
may grant an extension of that deadline of up to 90 days.
(C) The county is certified by the secretary on or before December
31, 1996.
(D) On or before January 1, 1994, the county completed the
consolidation of the administration of the hazardous waste generator
program, the hazardous materials release response plans and
inventories program, and the underground storage tank program,
referenced in paragraphs (1), (3), and (4) of subdivision (c) of
Section 25404, into a single program within the county's
jurisdiction.
(E) The county demonstrates that it will consolidate the
administration of all programs specified in subdivision (c) of
Section 25404, and that it will also consolidate the administration
of at least one additional program that regulates hazardous waste,
hazardous substances, or hazardous materials, as specified in
subdivision (d) of Section 25404.2, other than the programs specified
in subdivision (c) of Section 25404, into a single program to be
administered by a single agency in the county's jurisdiction at the
time that the county's certification by the secretary becomes
effective.
(2) The secretary makes all of the following findings:
(A) The county meets all of the criteria specified in paragraph
(1).
(B) The assessment of the surcharge would impose a significant
economic burden on most businesses within the county.
(C) The combined dollar amount of the surcharge and the single fee
system to be assessed by the county pursuant to subdivision (a)
would exceed the combined dollar amount of all existing fees that are
replaced by the single fee system for most businesses within the
county.
(D) The waiver of the surcharge for those counties applying for
and qualifying for a waiver, and the resulting increase in the
surcharge for other counties, would not, when considered
cumulatively, impose a significant economic burden on businesses in
any other county that does not apply for, or does not meet the
criteria for, a waiver of the surcharge.
(e) The secretary shall review all of the requests for a waiver of
the surcharge made pursuant to subdivision (d) simultaneously, so as
to adequately assess the cumulative impact of granting the requested
waivers on businesses in those counties that have not applied, or do
not qualify, for a waiver, and shall grant or deny all requests for
a waiver of the surcharge within 30 days from the date that the
secretary certifies all counties applying, and qualifying, for a
waiver. If the secretary finds that the grant of a waiver of the
surcharge for all counties applying and qualifying for the waiver
will impose a significant economic burden on businesses in one or
more other counties, the secretary shall take either of the following
actions:
(1) Deny all of the applications for a waiver of the surcharge.
(2) Approve only a portion of the waiver requests for counties
meeting the criteria set forth in subdivision (d), to the extent that
the approved waivers, when taken as a whole, meet the condition
specified in subparagraph (D) of paragraph (2) of subdivision (d). In
determining which of the counties' waiver requests to grant, the
secretary shall consider all of the following factors:
(A) The relative degree to which the assessment of the surcharge
will impose a significant economic burden on most businesses within
each county applying and qualifying for a waiver.
(B) The relative degree to which the combined dollar amount of the
surcharge and the single fee system to be assessed, pursuant to
subdivision (a), by each county applying and qualifying for a waiver
exceeds the combined dollar amount of all existing fees that are
replaced by the single fee system for most businesses within the
county.
(C) The relative extent to which each county applying and
qualifying for a waiver has incorporated, or will incorporate, upon
certification, additional programs pursuant to subdivision (d) of
Section 25404.2, into the unified program within the county's
jurisdiction.
(f) The secretary may, at any time, terminate a county's waiver of
the surcharge granted pursuant to subdivisions (d) and (e) if the
secretary determines that the criteria specified in subdivision (d)
for the grant of a waiver are no longer met.
SEC. 23. SEC. 24. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because a local agency or school district has
the authority to levy service charges, fees, or assessments
sufficient to pay for the program or level of service mandated by
this act, within the meaning of Section 17556 of the Government Code.