BILL ANALYSIS �
AB 1566
Page 1
Date of Hearing: March 20, 2012
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bob Wieckowski, Chair
AB 1566 (Wieckowski) - As Amended: March 15, 2012
SUBJECT : Aboveground storage tanks: enforcement.
SUMMARY : Authorizes the Office of the State Fire Marshal
(State Fire Marshal) to regulate the Aboveground Petroleum
Storage Act (APSA) and makes conforming changes to the APSA.
Specifically, this bill :
1)Redefines "aboveground storage tank" (AST) or "storage tank"
as a tank that has the capacity to store 55 gallons or more of
petroleum including, but not limited to, a tank located in an
underground area.
2)Defines "tank in an underground area" as a tank located in a
structure that is at least 10 percent below the ground
surface, including, but not limited to, a basement, cellar,
shaft, pit, or vault, providing enough space for physical
inspection of the exterior of the tank situated on or above
the surface of the floor. Requires the underground area to be
capable of containing any discharge from the primary
containment, including piping and ancillary equipment, until
the occurrence of the cleanup of the discharge.
3)Requires the State Fire Marshal to establish an advisory
committee that includes representatives from regulated
entities, appropriate trade associations, fire service
organizations, federal, state and local organizations,
including UPAs, and other interested parties. The advisory
committee shall act in an advisory capacity to the office in
conducting its responsibilities.
4)Requires the State Fire Marshal to ensure consistency with
state law and federal enforcement guidance issued by federal
agencies and to provide outreach to regulated persons
regarding compliance with local, state and federal regulations
relevant to the APSA.
5)Exempts from the definition of "underground storage tank"
(UST) a tank, and associated piping, in an underground area
that is subject to the APSA.
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6)Authorizes the State Fire Marshal to adopt regulations to
implement the APSA. Requires the State Fire Marshal to
provide interpretation of the APSA to the Certified Unified
Program Agencies (CUPAs), and to oversee the implementation of
the APSA by the CUPAs.
7)Requires regulations adopted by the State Fire Marshal
pursuant to the APSA to ensure consistency with the
requirements for spill prevention, control, and countermeasure
(SPCC) plans under the U.S. Code of Federal Regulations (40
C.F.R. part 112), and to include any more stringent
requirements necessary to implement the APSA.
8)Establishes, for violation of the APSA, an administrative
penalty of not more than five thousand dollars ($5,000) for
each day on which the violation continues. Authorizes, if the
owner or operator commits a second or subsequent violation, an
administrative penalty to be imposed of not more than ten
thousand dollars ($10,000) for each day on which the violation
continues.
9)Requires the administrative penalties assessed by a CUPA to be
deposited into a unified program account established by the
CUPA for the purpose of carrying out the functions of the
unified program.
10)Provides that the penalties specified in this section are in
addition to any other penalties provided by law.
11)Provides that a person who knowingly violates the APSA, after
reasonable notice of the violation, is, upon conviction,
guilty of a misdemeanor.
12)Clarifies that this section does not preempt any other
applicable criminal or civil penalties.
13)Makes other conforming changes.
EXISTING LAW :
1) Under the APSA (Health and Safety Code (HSC) �25270 et seq.):
a) Defines an "aboveground storage tank" or "storage tank"
as a tank that has the capacity to store 55 gallons or
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more of petroleum and that is substantially or totally
above the surface of the ground, except as specifically
exempted.
b) Requires the CUPA to implement the APSA. Sets
inspection requirements.
c) Requires each owner or operator of a storage tank at a
tank facility, except as specified, to prepare a SPCC plan
prepared in accordance with the U.S. Code of Federal
Regulations.
d) Exempts a tank facility located on a farm, nursery,
logging site, or construction site from having to prepare
an SPCC plan if no storage tank at the location exceeds
20,000 gallons and the cumulative storage capacity of the
tank facility does not exceed 100,000 gallons. Requires
the owner or operator of an exempt tank facility to take
specified actions.
e) Authorizes the State Water Resources Control Board
(SWRCB) and the Regional Water Quality Control Boards
(RWQCBs) to oversee cleanup or abatement efforts, or cause
cleanup or abatement efforts, of a release from a storage
tank at a tank facility.
f) Establishes the Environmental Protection Trust Fund
(Fund) to provide resources to train and assist CUPAs with
implementation of the APSA.
g) Establishes civil penalties for violation of the APSA.
2) Defines "underground storage tank" as any one or combination
of tanks, including pipes connected thereto, that is used for
the storage of hazardous substances and that is substantially
or totally beneath the surface of the ground, except as
specifically exempted.
3) Provides that any person who intentionally disables or
tampers with an automatic leak detection system on an UST in
a manner that would prevent the automatic leak detection
system from detecting a leak or alerting the owner or
operator of the leak, shall, upon conviction, be punished by
a fine of not less than five thousand dollars ($5,000) or
more than ten thousand dollars ($10,000), by imprisonment in
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the county jail for not more than one year, or by both the
fine and imprisonment.
4) Describes the process for the development of adoption and
interpretation of
statewide standards and requirements for programs administration
by the CUPAs.
5) Authorizes a CUPA, if it determines that a person has
committed a violation of any law, regulation, permit,
information request, order, variance, or other requirement
that the CUPA is authorized to enforce or implement, to issue
an administrative enforcement order requiring that the
violation be corrected and to impose an administrative
penalty.
6) Establishes, under the federal SPCC rule (40 C.F.R. part 112)
and under federal UST rule (40 C.F.R. part 280), requirements
regarding storage tanks.
FISCAL EFFECT : Unknown.
COMMENTS :
Background on the AST program : The APSA was established
following a major spill event in Martinez, California in April
1988, during which an estimated 400,000 gallons of crude oil
spilled into sensitive marshes, the Suisun Bay and the Bay Delta
Estuary. The APSA required the RWQCBs to oversee inspections of
AST facilities to ensure that a federally mandated SPCC plan was
in place, that tanks were not leaking, and that a monitoring
program was undertaken, if necessary. It also required owners
and operators of ASTs, which at the time was approximately 4,500
fee paying AST facilities, to file a storage statement and
submit a biennial registration fee to the SWRCB. The SWRCB was
then required to use these fees to support the inspection
program. The APSA also required CUPAs to enforce the
requirements of the APSA regarding the SPCCs.
According to the SWRCB, in fiscal year 2002-03, due to the
State's fiscal crisis, the funding authority and positions for
the AST inspection program were eliminated from the SWRCB's and
the RWQCB's budgets (Budget Act of 2002-03, Control Section
31.60). As a result, the SWRCB and the RWQCBs discontinued the
AST inspection program. While the intent of the budget change
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was to transfer the inspection program to the CUPAs,
complementary statutory changes were not made and no inspections
by any agency were conducted. However, as was required by law,
the owners and operators of AST facilities continued to pay the
biennial fee into the Fund, which eventually obtained a balance
of approximately $7.5 million.
AB 1130 (Laird, Chapter 626, Statutes of 2007) attempted to
repair the AST program by transferring the responsibility for
the implementation, enforcement, and administration of the APSA
from the SWRCB and RWQCBs to local environmental health and fire
departments sanctioned under law as CUPAS. In addition to other
technical changes to the program, the bill deleted the existing
fee structure and in its place authorized the CUPAs to collect a
fee, beginning January 1, 2010, to cover reasonable and
necessary program costs.
Statewide oversight : According to the sponsors, the APSA is
currently the only local environmental health program lacking
State oversight. Because there are 83 CUPAs, at times they
differ in their interpretation of the APSA. Therefore, AB 1566
provides statewide consistency and one point of contact for the
AST program by assigning regulatory authority of the program to
the State Fire Marshal. The State Fire Marshal was selected as
the appropriate oversight agency because many of the aspects of
AST regulations are similar to other regulatory programs
implemented by the State Fire Marshal, such as fire codes and
pipeline safety.
Penalty provisions : Current AST law provides that any owner or
operator of a tank facility who fails to prepare an SPCC plan,
to file a tank facility statement, to submit the required fee,
to report spills, or to otherwise to comply with the APSA is
subject to a civil penalty of not more than five thousand
dollars ($5,000) for each day on which the violation continues.
If the owner or operator commits a second or subsequent
violation, a civil penalty of not more than ten thousand dollars
($10,000) for each day on which the violation continues may be
imposed. AST law does not explicitly authorize administrative
or criminal penalties (HSC �25270.12).
In contrast to AST law, UST law (HSC �25280 et seq.), in
addition to providing for civil penalties, provides for criminal
penalties for violations that include falsifying monitoring
records, knowingly failing to report an unauthorized release,
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and intentionally disabling or tampering with an automatic leak
detection system (HSC �25299). In addition, Chapter 6.11 of
Division 20 of the HSC authorizes a CUPA, if it determines that
a person has committed, or is committing, a violation of any
law, regulation, permit, information request, order, variance,
or other requirement that the CUPA is authorized to enforce or
implement, to issue an administrative enforcement order
requiring that the violation be corrected and to impose an
administrative penalty (HSC �25404.1.1.).
AB 1566 makes the AST penalty provisions consistent with the
other laws consolidated in the Unified Program, including UST
law, by adding the authority to levy criminal penalties and by
explicitly authorizing administrative penalties.
Conformance with federal law : According to the sponsor,
currently there are more than 1000 facilities with lubricating
oil and used oil tanks able to be visually inspected in
basements or underground areas statewide that fall under the
Chapter 6.7 definition of an UST. Because the UST requirements
are designed for monitoring buried tanks, applying UST rules to
tanks in underground areas is typically an expensive engineering
challenge combined with the difficulty of meeting varying and
inconsistent CUPA requirements. Further, because authority for
the SPCC program is not delegated to the CUPAs, California tank
owners and operators with tanks situated on the surface of the
floor in underground areas must comply with the federal SPCC
rule, as well as Chapter 6.7 and Title 23 of the California Code
of Regulations. For these reasons, the sponsors argue,
continuing to regulate these tanks under the existing law is a
clear example of excessive bureaucracy that is not working.
AB 1566 changes definitions in California law in order to
rectify these issues and align State statute with the Code of
Federal Regulations, Title 40, Part 112 (SPPC) and Part 280 (UST
regulation). The sponsors estimate that this reform may lead to
an overall increase in environmental protection because clearly
requiring tanks in underground areas to be subject to SPCC
requirements under APSA, which is better suited for these types
of tanks, will result in more consistent application of the law
by CUPAs throughout California and a higher level of compliance
within the regulated community.
Related legislation :
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AB 1701 (Wieckowski and Smyth) provides for a uniform local
agency certification for the oversight of the cleanup of leaking
USTs. Authorizes, after July 1, 2013, cities and counties to
implement the UST cleanup program, subject to certification by
the SWRCB. (Set for hearing on March 20, 2012, in the Assembly
Committee on Environmental Safety and Toxic Materials).
AB 681 (Wieckowski ), Chapter 574, Statutes of 2011, extends
Fund expenditures until June 1, 2013, and provides that
unexpended funds be deposited in the Unified Program Account for
further support for CUPAs' AST activities.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Environmental Health Administrators
(sponsor)
Opposition
None on file.
Analysis Prepared by : Shannon McKinney / E.S. & T.M. / (916)
319-3965