BILL ANALYSIS �
AB 2005
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 2005
AUTHOR: Garrick
AMENDED: May 1, 2012
FISCAL: Yes HEARING DATE: July 2, 2012
URGENCY: Yes CONSULTANT: Randy Pestor
SUBJECT : OIL SPILL PREVENTION AND RESPONSE
SUMMARY :
Existing law , under the Lempert-Keene-Seastrand Oil Spill
Prevention and Response (OSPR) Act:
1) Requires the Governor to establish a state oil spill
contingency plan (Government Code �8574.1 et seq.),
establishes oil spill response and contingency planning
requirements (�8670.1 et seq.), and establishes oil spill
prevention, response, containment, and cleanup programs
(Public Resources Code �8750 et seq.).
2) Requires the OSPR administrator to adopt and implement
regulations governing the adequacy of oil spill contingency
plans to be prepared and implemented, taking into
consideration marine facility or vessel contingency plan
requirements of the national and California contingency
plans, the State Lands Commission, State Fire Marshal, and
California Coastal Commission. The regulations must, among
other things: a) ensure that standards set for response,
containment, and cleanup equipment are maintained and
regularly improved to protect state resources; and b)
ensure that each oil spill contingency plan demonstrates
that all protection measures are being taken to reduce the
possibility of an oil spill occurring as a result of the
operation of the marine facility or vessel. (Government
Code �8670.28).
3) Creates the Oil Spill Prevention and Administration Fund to
be used for the above purposes, requires the OSPR
administrator to administer the fund, and requires the
AB 2005
Page 2
State Board of Equalization to collect a fee in an amount
determined by the administrator to be sufficient to carry
out certain purposes. The amount of the fee cannot exceed
$0.065 per barrel of crude oil or petroleum products, and
$0.05 per barrel beginning January 1, 2015. The fee is
collected by marine terminal operators from the owner of
crude oil or petroleum products based on each barrel of
those products received by means of a vessel operating in,
through, or across marine waters of the state. (��8670.38,
8670.39, and 8670.40).
4) Requires the OSPR administrator to charge a nontank vessel
owner or operator a reasonable fee, to be collected with
each application to obtain a certificate of financial
responsibility, in an amount that is based on the
administrator's costs in implementing the above
requirements relating to nontank vessels. Before January
1, 2005, the fee must be $2,500 or less per vessel.
(�8670.41).
5) Prohibits a nontank vessel that is required to have an oil
spill contingency plan from entering marine waters of the
state unless the vessel owner or operator has provided
evidence of financial responsibility to the administrator
that demonstrates the ability to pay at least $300 million
to cover damages caused by a spill, and the vessel owner or
operator has obtained a certificate of financial
responsibility from the administrator. The administrator
may establish a lower financial responsibility standard for
a nontank vessel that has a carrying capacity of 6,500
barrels of oil or less. (�8670.37.58). Evidence of
financial responsibility must be received by the OSPR
administrator at least 10 calendar days prior to operating
or entering marine waters. (14 Cal. Code of Regs.
�791.6(b)). The oil spill contingency plan must be
submitted to the OSPR administrator at least 5 working days
prior to entering marine waters. (14 Cal. Code of Regs.
�826.01(b)(1)(A)).
This bill , under the oil spill response and contingency
planning requirements (�8670.1 et seq.) of the OSPR Act:
AB 2005
Page 3
1) Requires a nontank vessel that is not used for commercial
purposes and that weighs between 300 and 400 gross tons to
submit the following to the OSPR administrator at least 96
hours prior to arrival in the waters of the state,
notwithstanding other oil spill response and contingency
planning requirements:
a) Evidence of financial responsibility.
b) Payment of the nontank vessel fee.
c) Vessel particulars, such as the size and dimensions
of the vessel.
2) Requires the operator of a nontank vessel that is not used
for commercial purposes to submit other documents required
under the oil spill response and contingency planning
requirements (including the oil spill contingency plan)
within 14 days after arrival of the vessel.
3) Sunsets January 1, 2015.
COMMENTS :
1) Purpose of Bill . According to the author, "AB 2005 will
streamline the requirements for non-commercial boats to
enter California waters while still maintaining the
safeguards in place with current law. Specifically, AB
2005 will require boats to provide Fish and Game officials
an application for a certificate of financial
responsibility prior to entering California waters and
subsequently provide an oil spill contingency plan no later
than 14 days after they have arrived."
The author also notes that "As you know, San Francisco is set
to host the America's Cup race in 2012 and the event is
expected to provide a huge economic boost to the Bay Area
and California as a whole. In order to ease the process in
which visiting boats can enter California prior to the race
it is imperative that this legislation be in place prior to
the events later this year."
AB 2005
Page 4
The author asserts that under state law, a nontank vessel over
300 gross tons must "submit an Oil Spill Contingency plan
and certificate of Financial Responsibility (COFR) (7 and
21 days respectively) prior to entering California waters"
and the "U.S. Coast Guard implemented similar requirements
for nontank vessels at 400 gross tons or above." The
author further believes that "This conflicting information
coupled with lack of notification and a rigid time-frame
has made it increasingly difficult for out of country
yachts to comply with these requirements before entering
California waters. This has led to the industry's
avoidance of visiting California and a significant loss of
revenue to coastal cities and towns."
According to the author, "We have had numerous meetings with
industry representatives and OSPR to try to resolve the
issue. Several opportunities to improve the process have
been identified by OSPR and are in the process, however it
was decided that the only real solution to rectify this
situation before the America's Cup event in San Francisco,
is through legislation."
AB 2205 is sponsored by Todd Roberts, owner of Marine Group
Boat Works, which is a boat and superyacht repair facility
located in Chula Vista (southern part of San Diego Bay)
with a second location in San Jose del Cabo. The company
specializes in refits, repairs, and new construction of
boats up to 220 feet long.
2) Background . The Lempert-Keene-Seastrand Oil Spill
Prevention and Response Act requires the Governor to
establish a state oil spill contingency plan (Government
Code �8574.1 et seq.), establishes oil spill response and
contingency planning requirements (Government Code �8670.1
et seq.), and establishes oil spill prevention, response,
containment, and cleanup programs (Public Resources Code
�8750 et seq.). SB 1644 (Thompson) Chapter 964, Statutes
of 1998, added a provision to the oil spill response and
contingency planning requirements for "nontank" vessels.
3) Differences in state and federal nontank vessel reporting
requirements . A "nontank vessel" under state law is a
AB 2005
Page 5
vessel of 300 gross tons or greater that carries oil, but
does not carry that oil as cargo. (Government Code
�8670.3(p)). Under federal law, for purposes of vessel
response plans a "nontank vessel" weighs at least 400 gross
tons (33 U.S.C. �1321(a)(26)), and for financial
responsibility purposes a "nontank vessel" weighs over 300
gross tons (33 U.S.C. �2716).
Under state law, evidence of financial responsibility must be
received at least 10 calendar days prior to operating or
entering marine waters. (14 Cal. Code of Regs. �791.6(b)).
The oil spill contingency plan must be submitted to OSPR
at least 5 working days prior to entering marine waters.
(14 Cal. Code of Regs. �826.01(b)(1)(A)).
For nontank vessels between 300 and 400 gross tons, AB 2005
allows evidence of financial responsibility to be received
at least 96 hours prior to arrival in the marine waters of
the state, and the oil spill contingency plan and other
required documents to be submitted to OSPR within 14 days
after arrival of the vessel.
Under federal law, evidence of financial responsibility must
be submitted at least 21 days prior to entering U.S.
navigable waters (33 CFR �138.50) and a response plan must
be submitted at least 60 days before operating upon U.S.
navigable waters (33 CFR �155.5065).
4) Is AB 2005 necessary and does this bill set a precedent for
other vessels ? The owner or operator of a yacht weighing
between 300 and 400 gross tons visiting America's Cup
events, let alone operating in any other marine waters of
the state, has the background and financial resources
needed to comply with local, state, federal, and
international laws - and plan well ahead for such an
occasion.
As noted above, financial responsibility requirements apply to
300 gross ton vessels under both state and federal laws.
And although federal contingency plan requirements apply to
vessels weighing over 400 gross tons, state regulations
allow appropriate sections of plans approved by any state,
AB 2005
Page 6
federal, or international authority to be either submitted
or cited, as approved by the OSPR administrator, to meet
certain California requirements. (14 Cal. Code of Regs.
826.01(a)(2)(A)).
Should owners and operators of 300 to 400 gross ton yachts
delay complying with the state's oil spill prevention and
response requirements?
5) The America's Cup . The author believes that AB 2005 is
needed for large yachts visiting America's Cup events.
However, this bill applies to any nontank vessel weighing
300 to 400 tons in marine waters until January 1, 2015.
San Francisco America's Cup events are scheduled for August
21-26, 2012; October 4-7, 2012; July 4 to September 1,
2013; and September 7-22, 2013.
If the Committee believes these yacht owners and operators are
deserving of an exception, should this carve out apply only
during the duration of the America's Cup with some limited
additional time before and after the events?
What is the basis for receiving a contingency plan and other
documents after arrival of a vessel, let alone 14 days
after arrival of the vessel when the vessel is likely to
have already left the area?
6) What "particulars" will be provided ? AB 2005 requires the
"vessel's particulars, such as the size and dimensions of
the vessel" to be provided at least 96 hours prior to
arrival.
Since it is not known what other information may be needed
under these circumstances, if the Committee believes this
bill is needed, then the vessel owner or operator should
also provide any other information required by OSPR, and
the owner should be prohibited from using AB 2005
procedures if a contingency plan has been denied, revoked,
or suspended.
7) Clean Coast Act requirements . The California Clean Coast
AB 2005
Page 7
Act, enacted by SB 771 (Simitian) Chapter 588, Statutes of
2005, contains various requirements relating to the release
of graywater, hazardous waste, oily bilgewater, and sewage
and sewage sludge from a large passenger vessel or
oceangoing ship. A private vessel of 300 gross tons or
more falls under the Act's definition of "oceangoing ship."
Releases of sewage and graywater are prohibited in the
marine waters of the state (and a marine sanctuary under SB
1360 (Simitian) of 2012) from an oceangoing vessel with
sufficient holding tank capacity.
If the Committee believes this bill is necessary, then a
vessel benefitting from the requirements of AB 2005 should
also provide the following to the administrator and the
State Water Resources Control Board: a) the sewage and
graywater holding capacity of the vessel, and b)
information ensuring that the holding capacity of the
vessel is sufficient for the time period that the vessel is
within marine waters of the state or a marine sanctuary.
8) Technical amendments also needed . If the committee
believes AB 2005 is necessary, the following clarifying
amendments are also needed: a) on page 2, line 4, after
the comma insert: "an owner or operator of"; b) on page 2,
line 6, after "the" insert: "marine"; c) on page 2, line
16, after "The" insert: "owner or"; and on page 2, line
18, after "vessel" insert: "in the marine waters of the
state". AB 2005 should also sunset January 1, 2014, rather
than January 1, 2015.
9) Related legislation . AB 1112 (Huffman) Chapter 583,
Statutes of 2011, among other things, increased the Oil
Spill Prevention and Administration Fund fee from $0.05 to
$0.065 per barrel of crude oil or petroleum products, and
reverts to $0.05 per barrel beginning January 1, 2015.
AB 1601 (Huffman) of 2012 adds a $3,250 nontank vessel fee cap
that may be annually increased based on the California
Consumer Price Index. AB 1601was heard by the Senate
Natural Resources Committee June 26, 2012 (9-0), and will
be heard by the Senate Environmental Quality Committee July
2, 2012, if approved by the Natural Resources Committee.
AB 2005
Page 8
SB 1192 (Evans) of 2012 increases the Oil Spill Prevention and
Administration Fund fee from $0.065 to $0.068 per barrel of
crude oil or petroleum products, and $0.053 per barrel
beginning January 1, 2015; requires a $3,500 minimum
nontank vessel fee; and requires the OSPR administrator to
submit a proposed Budget appropriation of no more than $2
million for Oiled Wildlife Care Network purposes. SB 1192
will be heard by the Assembly Natural Resources Committee
July 2, 2012.
SOURCE : Todd Roberts, Owner, Marine Group Boat Works
SUPPORT : California Association of Harbor Masters and
Port Captains, California Marine Parks and
Harbors Association, California Yacht Brokers
Association, Marine Recreation Association,
Northern California Marina Association, Western
Boaters Safety Group
OPPOSITION : None on file.