Bill Text: CA AB2912 | 2015-2016 | Regular Session | Chaptered
Bill Title: Oil spills.
Spectrum: Unknown
Status: (Passed) 2016-08-26 - Chaptered by Secretary of State - Chapter 209, Statutes of 2016. [AB2912 Detail]
Download: California-2015-AB2912-Chaptered.html
BILL NUMBER: AB 2912 CHAPTERED
BILL TEXT
CHAPTER 209
FILED WITH SECRETARY OF STATE AUGUST 26, 2016
APPROVED BY GOVERNOR AUGUST 26, 2016
PASSED THE SENATE AUGUST 11, 2016
PASSED THE ASSEMBLY AUGUST 15, 2016
AMENDED IN SENATE JUNE 30, 2016
AMENDED IN SENATE JUNE 20, 2016
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, 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 revise and add various definitions
within the act and would make nonsubstantive changes to these and
other provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 5654 of the Fish and Game Code is amended to
read:
5654. (a) (1) Notwithstanding Section 7715 and except as provided
in paragraph (2), the director, within 24 hours of notification of a
spill or discharge, as those terms are defined in Section 8670.3 of
the Government Code, where any fishing, including all commercial,
recreational, and nonlicensed subsistence fishing, may take place, or
where aquaculture operations are taking place, shall close to the
take of all fish and shellfish all waters in the vicinity of the
spill or discharge or where the spilled or discharged material has
spread, or is likely to spread. In determining where a spill or
discharge is likely to spread, the director shall consult with the
Administrator of the Office of Spill Prevention and Response. At the
time of closure, the department shall make all reasonable efforts to
notify the public of the closure, including notification to
commercial and recreational fishing organizations, and posting of
warnings on public piers and other locations where subsistence
fishing is known to occur. The department shall coordinate, when
possible, with local and regional agencies and organizations to
expedite public notification.
(2) Closure pursuant to paragraph (1) is not required if, within
24 hours of notification of a spill or discharge, the Office of
Environmental Health Hazard Assessment finds that a public health
threat does not or is unlikely to exist.
(b) Within 48 hours of notification of a spill or discharge
subject to subdivision (a), the director, in consultation with the
Office of Environmental Health Hazard Assessment, shall make an
assessment and determine all of the following:
(1) The danger posed to the public from fishing in the area where
the spill or discharge occurred or spread, and the danger of
consuming fish taken in the area where the spill or discharge
occurred or spread.
(2) Whether the areas closed for the take of fish or shellfish
should be expanded to prevent any potential take or consumption of
any fish or shellfish that may have been contaminated by the spill or
discharge.
(3) The likely period for maintaining a closure on the take of
fish and shellfish in order to prevent any possible contaminated fish
or shellfish from being taken or consumed or other threats to human
health.
(c) Within 48 hours after receiving notification of a spill or
discharge subject to subdivision (a), or as soon as is feasible, the
director, in consultation with the Office of Environmental Health
Hazard Assessment, shall assess and determine the potential danger
from consuming fish that have been contained in a recirculating
seawater tank onboard a vessel that may become contaminated by the
vessel's movement through an area where the spill or discharge
occurred or spread.
(d) If the director finds in his or her assessment pursuant to
subdivision (b) that there is no significant risk to the public or to
the fisheries, the director may immediately reopen the closed area
and waive the testing requirements of subdivisions (e) and (f).
(e) Except under the conditions specified in subdivision (d),
after complying with subdivisions (a) and (b), the director, in
consultation with the Office of Environmental Health Hazard
Assessment, but in no event more than seven days from the
notification of the spill or discharge, shall order expedited tests
of fish and shellfish that would have been open for take for
commercial, recreational, or subsistence purposes in the closed area
if not for the closure, to determine the levels of contamination, if
any, and whether the fish or shellfish is safe for human consumption.
(f) (1) Within 24 hours of receiving a notification from the
Office of Environmental Health Hazard Assessment that no threat to
human health exists from the spill or discharge or that no
contaminant from the spill or discharge is present that could
contaminate fish or shellfish, the director shall reopen the areas
closed pursuant to this section. The director may maintain a closure
in any remaining portion of the closed area where the Office of
Environmental Health Hazard Assessment finds contamination from the
spill or discharge persists that may adversely affect human health.
(2) The director, in consultation with the commission, may also
maintain a closure in any remaining portion of the closed area where
commercial fishing or aquaculture occurs and where the department
determines, pursuant to this paragraph, that contamination from the
spill or discharge persists that may cause the waste of commercial
fish or shellfish as regulated by Section 7701.
(g) To the extent feasible, the director shall consult with
representatives of commercial and recreational fishing associations
and subsistence fishing communities regarding the extent and duration
of a closure, testing protocols, and findings. If a spill or
discharge occurs within the lands governed by a Native American tribe
or affects waters flowing through tribal lands, or tribal fisheries,
the director shall consult with the affected tribal governments.
(h) The director shall seek full reimbursement from the
responsible party or parties for the spill or discharge for all
reasonable costs incurred by the department in carrying out this
section, including, but not limited to, all testing.
SEC. 2. Section 8670.3 of the Government Code is amended to read:
8670.3. Unless the context requires otherwise, the following
definitions shall govern the construction of this chapter:
(a) "Administrator" means the administrator for oil spill response
appointed by the Governor pursuant to Section 8670.4.
(b) (1) "Best achievable protection" means the highest level of
protection that can be achieved through both the use of the best
achievable technology and those manpower levels, training procedures,
and operational methods that provide the greatest degree of
protection achievable. The administrator's determination of which
measures provide the best achievable protection shall be guided by
the critical need to protect valuable natural resources and state
waters, while also considering all of the following:
(A) The protection provided by the measure.
(B) The technological achievability of the measure.
(C) The cost of the measure.
(2) The administrator shall not use a cost-benefit or
cost-effectiveness analysis or any particular method of analysis in
determining which measures provide the best achievable protection.
The administrator shall instead, when determining which measures
provide best achievable protection, give reasonable consideration to
the protection provided by the measures, the technological
achievability of the measures, and the cost of the measures when
establishing the requirements to provide the best achievable
protection for the natural resources of the state.
(c) (1) "Best achievable technology" means that technology that
provides the greatest degree of protection, taking into consideration
both of the following:
(A) Processes that are being developed, or could feasibly be
developed anywhere in the world, given overall reasonable
expenditures on research and development.
(B) Processes that are currently in use anywhere in the world.
(2) In determining what is the best achievable technology pursuant
to this chapter, the administrator shall consider the effectiveness
and engineering feasibility of the technology.
(d) "California oil spill contingency plan" means the California
oil spill contingency plan prepared pursuant to Article 3.5
(commencing with Section 8574.1) of Chapter 7.
(e) "Dedicated response resources" means equipment and personnel
committed solely to oil spill response, containment, and cleanup that
are not used for any other activity that would adversely affect the
ability of that equipment and personnel to provide oil spill response
services in the timeframes for which the equipment and personnel are
rated.
(f) "Environmentally sensitive area" means an area defined
pursuant to the applicable area contingency plans or geographic
response plans, as created and revised by the Coast Guard, the United
States Environmental Protection Agency, and the administrator.
(g) (1) "Facility" means any of the following located in state
waters or located where an oil spill may impact state waters:
(A) A building, structure, installation, or equipment used in oil
exploration, oil well drilling operations, oil production, oil
refining, oil storage, oil gathering, oil processing, oil transfer,
oil distribution, or oil transportation.
(B) A marine terminal.
(C) A pipeline that transports oil.
(D) A railroad that transports oil as cargo.
(E) A drill ship, semisubmersible drilling platform, jack-up type
drilling rig, or any other floating or temporary drilling platform.
(2) "Facility" does not include any of the following:
(A) A vessel, except a vessel located and used for any purpose
described in subparagraph (E) of paragraph (1).
(B) An owner or operator subject to Chapter 6.67 (commencing with
Section 25270) or Chapter 6.75 (commencing with Section 25299.10) of
Division 20 of the Health and Safety Code.
(C) Operations on a farm, nursery, logging site, or construction
site that are either of the following:
(i) Do not exceed 20,000 gallons in a single storage tank.
(ii) Have a useable tank storage capacity not exceeding 75,000
gallons.
(D) A small craft refueling dock.
(h) "Local government" means a chartered or general law city, a
chartered or general law county, or a city and county.
(i) (1) "Marine terminal" means any facility used for transferring
oil to or from a tank ship or tank barge.
(2) "Marine terminal" includes, for purposes of this chapter, all
piping not integrally connected to a tank facility, as defined in
subdivision (n) of Section 25270.2 of the Health and Safety Code.
(j) "Marine waters" means those waters subject to tidal influence,
and includes the waterways used for waterborne commercial vessel
traffic to the Port of Sacramento and the Port of Stockton.
(k) "Mobile transfer unit" means a vehicle, truck, or trailer,
including all connecting hoses and piping, used for the transferring
of oil at a location where a discharge could impact waters of the
state.
(l) "Nondedicated response resources" means those response
resources identified by an Oil Spill Response Organization for oil
spill response activities that are not dedicated response resources.
(m) "Nonpersistent oil" means a petroleum-based oil, such as
gasoline or jet fuel, that evaporates relatively quickly and is an
oil with hydrocarbon fractions, at least 50 percent of which, by
volume, distills at a temperature of 645 degrees Fahrenheit, and at
least 95 percent of which, by volume, distills at a temperature of
700 degrees Fahrenheit.
(n) "Nontank vessel" means a vessel of 300 gross tons or greater
that carries oil, but does not carry that oil as cargo.
(o) "Oil" means any kind of petroleum, liquid hydrocarbons, or
petroleum products or any fraction or residues therefrom, including,
but not limited to, crude oil, bunker fuel, gasoline, diesel fuel,
aviation fuel, oil sludge, oil refuse, oil mixed with waste, and
liquid distillates from unprocessed natural gas.
(p) "Oil spill cleanup agent" means a chemical, or any other
substance, used for removing, dispersing, or otherwise cleaning up
oil or any residual products of petroleum in, or on, any of the
waters of the state.
(q) "Oil spill contingency plan" or "contingency plan" means the
oil spill contingency plan required pursuant to Article 5 (commencing
with Section 8670.28).
(r) (1) "Oil spill response organization" or "OSRO" means an
individual, organization, association, cooperative, or other entity
that provides, or intends to provide, equipment, personnel, supplies,
or other services directly related to oil spill containment,
cleanup, or removal activities.
(2) "OSRO" does not include an owner or operator with an oil spill
contingency plan approved by the administrator or an entity that
only provides spill management services, or who provides services or
equipment that are only ancillary to containment, cleanup, or removal
activities.
(s) (1) "Owner" or "operator" means any of the following:
(A) In the case of a vessel, a person who owns, has an ownership
interest in, operates, charters by demise, or leases the vessel.
(B) In the case of a facility, a person who owns, has an ownership
interest in, or operates the facility.
(C) Except as provided in subparagraph (D), in the case of a
vessel or facility, where title or control was conveyed due to
bankruptcy, foreclosure, tax delinquency, abandonment, or similar
means to an entity of state or local government, a person who owned,
held an ownership interest in, operated, or otherwise controlled
activities concerning the vessel or facility immediately beforehand.
(D) An entity of the state or local government that acquired
ownership or control of a vessel or facility, when the entity of the
state or local government has caused or contributed to a spill or
discharge of oil into waters of the state.
(2) "Owner" or "operator" does not include a person who, without
participating in the management of a vessel or facility, holds
indicia of ownership primarily to protect the person's security
interest in the vessel or facility.
(3) "Operator" does not include a person who owns the land
underlying a facility or the facility itself if the person is not
involved in the operations of the facility.
(t) "Person" means an individual, trust, firm, joint stock
company, or corporation, including, but not limited to, a government
corporation, partnership, and association. "Person" also includes a
city, county, city and county, district, and the state or any
department or agency thereof, and the federal government, or any
department or agency thereof, to the extent permitted by law.
(u) "Pipeline" means a pipeline used at any time to transport oil.
(v) "Railroad" means a railroad, railway, rail car, rolling stock,
or train.
(w) "Rated OSRO" means an OSRO that has received a satisfactory
rating from the administrator for a particular rating level
established pursuant to Section 8670.30.
(x) "Response efforts" means rendering care, assistance, or advice
in accordance with the National Contingency Plan, the California oil
spill contingency plan, or at the direction of the administrator,
the United States Environmental Protection Agency, or the United
States Coast Guard in response to a spill or a threatened spill into
waters of the state.
(y) "Responsible party" or "party responsible" means any of the
following:
(1) The owner or transporter of oil or a person or entity
accepting responsibility for the oil.
(2) The owner, operator, or lessee of, or a person that charters
by demise, a vessel or facility, or a person or entity accepting
responsibility for the vessel or facility.
(z) "Small craft" means a vessel, other than a tank ship or tank
barge, that is less than 20 meters in length.
(aa) "Small craft refueling dock" means a waterside operation that
dispenses only nonpersistent oil in bulk and small amounts of
persistent lubrication oil in containers primarily to small craft and
meets both of the following criteria:
(1) Has tank storage capacity not exceeding 20,000 gallons in any
single storage tank or tank compartment.
(2) Has total usable tank storage capacity not exceeding 75,000
gallons.
(ab) "Small marine fueling facility" means either of the
following:
(1) A mobile transfer unit.
(2) A fixed facility that is not a marine terminal, that dispenses
primarily nonpersistent oil, that may dispense small amounts of
persistent oil, primarily to small craft, and that meets all of the
following criteria:
(A) Has tank storage capacity greater than 20,000 gallons but not
more than 40,000 gallons in any single storage tank or storage tank
compartment.
(B) Has total usable tank storage capacity not exceeding 75,000
gallons.
(C) Had an annual throughput volume of over-the-water transfers of
oil that did not exceed 3,000,000 gallons during the most recent
preceding 12-month period.
(ac) "Spill," "discharge," or "oil spill" means a release of any
amount of oil into waters of the state that is not authorized by a
federal, state, or local government entity.
(ad) "Tank barge" means a vessel that carries oil in commercial
quantities as cargo but is not equipped with a means of
self-propulsion.
(ae) "Tank ship" means a self-propelled vessel that is constructed
or adapted for the carriage of oil in bulk or in commercial
quantities as cargo.
(af) "Tank vessel" means a tank ship or tank barge.
(ag) "Vessel" means a watercraft or ship of any kind, including
every structure adapted to be navigated from place to place for the
transportation of merchandise or persons.
(ah) "Vessel carrying oil as secondary cargo" means a vessel that
does not carry oil as a primary cargo, but does carry oil as cargo.
The administrator may establish minimum oil volume amounts or other
criteria by regulations.
(ai) "Waters of the state" or "state waters" means any surface
water, including saline waters, marine waters, and freshwaters,
within the boundaries of the state but does not include groundwater.
SEC. 3. Section 8670.25.5 of the Government Code is amended to
read:
8670.25.5. (a) (1) Without regard to intent or negligence, any
party responsible for the discharge or threatened discharge of oil in
waters of the state shall report the discharge immediately to the
Office of Emergency Services pursuant to Section 25510 of the Health
and Safety Code.
(2) If the information initially reported pursuant to paragraph
(1) was inaccurate or incomplete, or if the quantity of oil
discharged has changed, any party responsible for the discharge or
threatened discharge of oil in waters of the state shall report the
updated information immediately to the Office of Emergency Services
pursuant to paragraph (1). The report shall contain the accurate or
complete information, or the revised quantity of oil discharged.
(b) Immediately upon receiving notification pursuant to
subdivision (a), the Office of Emergency Services shall notify the
administrator, the State Lands Commission, the California Coastal
Commission, the California regional water quality control board
having jurisdiction over the location of the discharged oil, and the
appropriate local governmental agencies in the area surrounding the
discharged oil, and take the actions required by subdivision (d) of
Section 8589.7. If the spill has occurred within the jurisdiction of
the San Francisco Bay Conservation and Development Commission, the
Office of Emergency Services shall notify that commission. Each
public agency specified in this subdivision shall adopt an internal
protocol over communications regarding the discharge of oil and file
the internal protocol with the Office of Emergency Services.
(c) The 24-hour emergency telephone number of the Office of
Emergency Services shall be posted at every railroad dispatch,
pipeline operator control center, marine terminal, area of control of
every other facility, and on the bridge of every tank ship in marine
waters.
(d) Except as otherwise provided in this section and Section
8589.7, a notification made pursuant to this section shall satisfy
any immediate notification requirement contained in any permit issued
by a permitting agency.
SEC. 4. Section 8670.27 of the Government Code is amended to read:
8670.27. (a) (1) All potentially responsible parties for an oil
spill and all of their agents and employees and all state and local
agencies shall carry out response and cleanup operations in
accordance with the applicable contingency plan, unless directed
otherwise by the administrator, the United States Coast Guard, or the
United States Environmental Protection Agency.
(2) Except as provided in subdivision (b), the responsible party,
potentially responsible parties, their agents and employees, the
operators of all vessels docked at a marine facility that is the
source of a discharge, and all state and local agencies shall carry
out spill response consistent with the California oil spill
contingency plan or other applicable federal, state, or local spill
response plans, and owners and operators shall carry out spill
response consistent with their applicable response contingency plans,
unless directed otherwise by the administrator, the United States
Coast Guard, or the United States Environmental Protection Agency.
(b) If a responsible party or potentially responsible party
reasonably, and in good faith, believes that the directions or orders
given by the administrator pursuant to subdivision (a) will
substantially endanger the public safety or the environment, the
party may refuse to act in compliance with the orders or directions
of the administrator. The responsible party or potentially
responsible party shall state, at the time of the refusal, the
reasons why the party refuses to follow the orders or directions of
the administrator. The responsible party or potentially responsible
party shall give the administrator written notice of the reasons for
the refusal within 48 hours of refusing to follow the orders or
directions of the administrator. In any civil or criminal proceeding
commenced pursuant to this section, the burden of proof shall be on
the responsible party or potentially responsible party to
demonstrate, by clear and convincing evidence, why the refusal to
follow the orders or directions of the administrator was justified
under the circumstances.
SEC. 5. Section 8670.29 of the Government Code is amended to read:
8670.29. (a) In accordance with the rules, regulations, and
policies established by the administrator pursuant to Section
8670.28, an owner or operator of a facility, small marine fueling
facility, or mobile transfer unit, or an owner or operator of a tank
vessel, nontank vessel, or vessel carrying oil as secondary cargo,
while operating in the waters of the state or where a spill could
impact waters of the state, shall have an oil spill contingency plan
that has been submitted to, and approved by, the administrator
pursuant to Section 8670.31. An oil spill contingency plan shall
ensure the undertaking of prompt and adequate response and removal
action in case of a spill, shall be consistent with the California
oil spill contingency plan, and shall not conflict with the National
Oil and Hazardous Substances Pollution Contingency Plan (NCP).
(b) An oil spill contingency plan shall, at a minimum, meet all of
the following requirements:
(1) Be a written document, reviewed for feasibility and
executability, and signed by the owner or operator, or his or her
designee.
(2) Provide for the use of a recognized incident command system to
be used during a spill.
(3) Provide procedures for reporting oil spills to local, state,
and federal agencies, and include a list of contacts to call in the
event of a drill, threatened spill, or spill.
(4) Describe the communication plans to be used during a spill, if
different from those used by a recognized incident command system.
(5) Describe the strategies for the protection of environmentally
sensitive areas.
(6) Identify at least one rated OSRO for each rating level
established pursuant to Section 8670.30. Each identified rated OSRO
shall be directly responsible by contract, agreement, or other
approved means to provide oil spill response activities pursuant to
the oil spill contingency plan. A rated OSRO may provide oil spill
response activities individually, or in combination with another
rated OSRO, for a particular owner or operator.
(7) Identify a qualified individual.
(8) Provide the name, address, and telephone and facsimile numbers
for an agent for service of process, located within the state and
designated to receive legal documents on behalf of the owner or
operator.
(9) Provide for training and drills on elements of the plan at
least annually, with all elements of the plan subject to a drill at
least once every three years.
(c) An oil spill contingency plan for a vessel shall also include,
but is not limited to, all of the following requirements:
(1) The plan shall be submitted to the administrator at least
seven days prior to the vessel entering waters of the state.
(2) The plan shall provide evidence of compliance with the
International Safety Management Code, established by the
International Maritime Organization, as applicable.
(3) If the oil spill contingency plan is for a tank vessel, the
plan shall include both of the following:
(A) The plan shall specify oil and petroleum cargo capacity.
(B) The plan shall specify the types of oil and petroleum cargo
carried.
(4) If the oil spill contingency plan is for a nontank vessel, the
plan shall include both of the following:
(A) The plan shall specify the type and total amount of fuel
carried.
(B) The plan shall specify the capacity of the largest fuel tank.
(d) An oil spill contingency plan for a facility shall also
include, but is not limited to, all of the following provisions, as
appropriate:
(1) Provisions for site security and control.
(2) Provisions for emergency medical treatment and first aid.
(3) Provisions for safety training, as required by state and
federal safety laws for all personnel likely to be engaged in oil
spill response.
(4) Provisions detailing site layout and locations of
environmentally sensitive areas requiring special protection.
(5) Provisions for vessels that are in the operational control of
the facility for loading and unloading.
(e) Unless preempted by federal law or regulations, an oil spill
contingency plan for a railroad also shall include, but is not
limited to, all of the following:
(1) A list of the types of train cars that may make up the
consist.
(2) A list of the types of oil and petroleum products that may be
transported.
(3) A map of track routes and facilities.
(4) A list, description, and map of any prestaged spill response
equipment and personnel for deployment of the equipment.
(f) The oil spill contingency plan shall be available to response
personnel and to relevant state and federal agencies for inspection
and review.
(g) The oil spill contingency plan shall be reviewed periodically
and updated as necessary. All updates shall be submitted to the
administrator pursuant to this article.
(h) In addition to the regulations adopted pursuant to Section
8670.28, the administrator shall adopt regulations and guidelines to
implement this section. The regulations
and guidelines shall provide for the best
achievable protection of waters and natural resources of the state.
The administrator may establish additional oil spill contingency plan
requirements, including, but not limited to, requirements based on
the different geographic regions of the state. All regulations and
guidelines shall be developed in consultation with the Oil Spill
Technical Advisory Committee.
(i) Notwithstanding subdivision (a) and paragraph (6) of
subdivision (b), a vessel or facility operating where a spill could
impact state waters that are not tidally influenced shall identify a
rated OSRO in the contingency plan no later than January 1, 2016.
SEC. 6. Section 8670.31 of the Government Code is amended to read:
8670.31. (a) Each oil spill contingency plan required under this
article shall be submitted to the administrator for review and
approval.
(b) The administrator shall review each submitted contingency plan
to determine whether it complies with the administrator's rules,
policies, and regulations adopted pursuant to Sections 8670.28 and
8670.29. The administrator may issue a preliminary approval pending
final approval or disapproval.
(c) Each contingency plan submitted shall be approved or
disapproved within 30 days after receipt by the administrator. The
administrator may approve or disapprove portions of a plan. A plan is
not deemed approved until all portions are approved pursuant to this
section. The disapproved portion shall be subject to the procedures
contained in subdivision (d).
(d) If the administrator finds the submitted contingency plan is
inadequate under the rules, policies, and regulations of the
administrator, the plan shall be returned to the submitter with
written reasons why the plan was found inadequate and, if
practicable, suggested modifications or alternatives, if appropriate.
The submitter shall submit a new or modified plan within 30 days
after the earlier plan was returned, responding to the findings and
incorporating any suggested modifications. The resubmittal shall be
treated as a new submittal and processed according to the provisions
of this section, except that the resubmitted plan shall be deemed
approved unless the administrator acts pursuant to subdivision (c).
(e) The administrator may make inspections and require drills of
any oil spill contingency plan that is submitted.
(f) After the plan has been approved, it shall be resubmitted
every five years thereafter. The administrator may require earlier or
more frequent resubmission, if warranted. Circumstances that would
require an earlier resubmission include, but are not limited to,
changes in regulations, new oil spill response technologies,
deficiencies identified in the evaluation conducted pursuant to
Section 8670.19, or a need for a different oil spill response because
of increased need to protect endangered species habitat. The
administrator may deny approval of the resubmitted plan if it is no
longer considered adequate according to the adopted rules,
regulations, and policies of the administrator at the time of
resubmission.
(g) Each owner or operator of a tank vessel, nontank vessel,
vessel carrying oil as a secondary cargo, or facility who is required
to file an oil spill response plan or update pursuant to provisions
of federal law regulating oil spill response plans shall submit, for
informational purposes only and upon request of the administrator, a
copy of that plan or update to the administrator at the time that it
is approved by the relevant federal agency.
SEC. 7. Section 8670.37.58 of the Government Code is amended to
read:
8670.37.58. (a) A nontank vessel shall not enter waters of the
state unless the nontank vessel owner or operator has provided to the
administrator evidence of financial responsibility that
demonstrates, to the administrator's satisfaction, the ability to pay
at least three hundred million dollars ($300,000,000) to cover
damages caused by a spill, and the owner or operator of the nontank
vessel has obtained a certificate of financial responsibility from
the administrator for the nontank vessel.
(b) Notwithstanding subdivision (a), the administrator may
establish a lower standard of financial responsibility for a nontank
vessel that has a carrying capacity of 6,500 barrels of oil or less,
or for a nontank vessel that is owned and operated by California or a
federal agency and has a carrying capacity of 7,500 barrels of oil
or less. The standard shall be based upon the quantity of oil that
can be carried by the nontank vessel and the risk of an oil spill
into waters of the state. The administrator shall not set a standard
that is less than the expected cleanup costs and damages from an oil
spill into waters of the state.
(c) A nontank vessel fee shall be submitted along with the
application for the certificate, as required pursuant to Section
8670.41.
(d) The administrator may adopt regulations to implement this
section.
SEC. 8. Section 8670.54 of the Government Code is amended to read:
8670.54. (a) The Oil Spill Technical Advisory Committee,
hereafter in this article, the committee, is hereby established to
provide public input and independent judgment of the actions of the
administrator. The committee shall consist of 14 members, of whom
eight shall be appointed by the Governor, three by the Speaker of the
Assembly, and three by the Senate Committee on Rules. The
appointments shall be made in the following manner:
(1) The Speaker of the Assembly and Senate Committee on Rules
shall each appoint a member who shall be a representative of the
public.
(2) The Governor shall appoint a member who has a demonstrable
knowledge of marine transportation.
(3) The Speaker of the Assembly and the Senate Committee on Rules
shall each appoint two members who have demonstrable knowledge of
environmental protection and the study of ecosystems.
(4) The Governor shall appoint a member who has served as a local
government elected official or who has worked for a local government.
(5) The Governor shall appoint a member who has experience in oil
spill response and prevention programs.
(6) The Governor shall appoint a member who has been employed in
the petroleum industry.
(7) The Governor shall appoint a member who has worked in state
government.
(8) The Governor shall appoint a member who has demonstrable
knowledge of the dry cargo vessel industry.
(9) The Governor shall appoint a member who has demonstrable
knowledge of the railroad industry.
(10) The Governor shall appoint a member who has demonstrable
knowledge of the oil production industry.
(b) The committee shall meet as often as required, but at least
twice per year. Members shall be paid one hundred dollars ($100) per
day for each meeting and all necessary travel expenses at state per
diem rates.
(c) The administrator and any personnel the administrator
determines to be appropriate shall serve as staff to the committee.
(d) A chair and vice chair shall be elected by a majority vote of
the committee.
SEC. 9. Section 8670.56.5 of the Government Code is amended to
read:
8670.56.5. (a) A responsible party, as defined in Section
8670.3, shall be absolutely liable without regard to fault for any
damages incurred by any injured person that arise out of, or are
caused by, a spill.
(b) A responsible party is not liable to an injured person under
this section for any of the following:
(1) Damages, other than costs of removal incurred by the state or
a local government, caused solely by any act of war, hostilities,
civil war, or insurrection or by an unanticipated grave natural
disaster or other act of God of an exceptional, inevitable, and
irresistible character, that could not have been prevented or avoided
by the exercise of due care or foresight.
(2) Damages caused solely by the negligence or intentional
malfeasance of that injured person.
(3) Damages caused solely by the criminal act of a third party
other than the defendant or an agent or employee of the defendant.
(4) Natural seepage not caused by a responsible party.
(5) Discharge or leaking of oil or natural gas from a private
pleasure boat or vessel.
(6) Damages that arise out of, or are caused by, a discharge that
is authorized by a state or federal permit.
(c) The defenses provided in subdivision (b) shall not be
available to a responsible party who fails to comply with Sections
8670.25, 8670.25.5, 8670.27, and 8670.62.
(d) Upon motion and sufficient showing by a party deemed to be a
responsible party under this section, the court shall join to the
action any other party who may be a responsible party under this
section.
(e) In determining whether a party is a responsible party under
this section, the court shall consider the results of chemical or
other scientific tests conducted to determine whether oil or other
substances produced, discharged, or controlled by the defendant
matches the oil or other substance that caused the damage to the
injured party. The defendant shall have the burden of producing the
results of tests of samples of the substance that caused the injury
and of substances for which the defendant is responsible, unless it
is not possible to conduct the tests because of unavailability of
samples to test or because the substance is not one for which
reliable tests have been developed. At the request of a party, any
other party shall provide samples of oil or other substances within
its possession or control for testing.
(f) The court may award reasonable costs of the suit, attorneys'
fees, and the costs of necessary expert witnesses to a prevailing
plaintiff. The court may award reasonable costs of the suit and
attorneys' fees to a prevailing defendant if the court finds that the
plaintiff commenced or prosecuted the suit pursuant to this section
in bad faith or solely for purposes of harassing the defendant.
(g) This section does not prohibit a person from bringing an
action for damages caused by oil or by exploration, under any other
provision or principle of law, including, but not limited to, common
law. However, damages shall not be awarded pursuant to this section
to an injured person for loss or injury for which the person is or
has been awarded damages under any other provision or principle of
law. Subdivision (b) does not create a defense not otherwise
available regarding an action brought under any other provision or
principle of law, including, but not limited to, common law.
(h) Damages for which responsible parties are liable under this
section include the following:
(1) All costs of response, containment, cleanup, removal, and
treatment, including, but not limited to, monitoring and
administration costs incurred pursuant to the California oil spill
contingency plan or actions taken pursuant to directions by the
administrator.
(2) Injury to, or economic losses resulting from destruction of or
injury to, real or personal property, which shall be recoverable by
any claimant who has an ownership or leasehold interest in property.
(3) Injury to, destruction of or loss of, natural resources,
including, but not limited to, the reasonable costs of rehabilitating
wildlife, habitat, and other resources and the reasonable costs of
assessing that injury, destruction, or loss, in an action brought by
the state, a county, city, or district. Damages for the loss of
natural resources may be determined by any reasonable method,
including, but not limited to, determination according to the costs
of restoring the lost resource.
(4) Loss of subsistence use of natural resources, which shall be
recoverable by a claimant who so uses natural resources that have
been injured, destroyed, or lost.
(5) Loss of taxes, royalties, rents, or net profit shares caused
by the injury, destruction, loss, or impairment of use of real
property, personal property, or natural resources.
(6) Loss of profits or impairment of earning capacity due to the
injury, destruction, or loss of real property, personal property, or
natural resources, which shall be recoverable by any claimant who
derives at least 25 percent of his or her earnings from the
activities that utilize the property or natural resources, or, if
those activities are seasonal in nature, 25 percent of his or her
earnings during the applicable season.
(7) Loss of use and enjoyment of natural resources, public
beaches, and other public resources or facilities, in an action
brought by the state, a county, city, or district.
(i) Except as provided in Section 1431.2 of the Civil Code,
liability under this section shall be joint and several. However,
this section does not bar a cause of action that a responsible party
has or would have, by reason of subrogation or otherwise, against a
person.
(j) This section does not apply to claims for damages for personal
injury or wrongful death, and does not limit the right of a person
to bring an action for personal injury or wrongful death pursuant to
any provision or principle of law.
(k) Payments made by a responsible party to cover liabilities
arising from a discharge of oil, whether under this division or any
other provision of federal, state, or local law, shall not be charged
against royalties, rents, or net profits owed to the United States,
the state, or any other public entity.
( l ) An action that a private or public individual or
entity may have against a responsible party under this section may
be brought directly by the individual or entity or by the state on
behalf of the individual or entity. However, the state shall not
pursue an action on behalf of a private individual or entity that
requests the state not to pursue that action.
(m) For purposes of this section, "vessels" means vessels as
defined in Section 21 of the Harbors and Navigation Code.
SEC. 10. Section 8670.56.6 of the Government Code is amended to
read:
8670.56.6. (a) (1) Except as provided in subdivisions (b) and
(d), and subject to subdivision (c), a person, including, but not
limited to, an oil spill response organization, its agents,
subcontractors, or employees, shall not be liable under this chapter
or the laws of the state to any person for costs, damages, or other
claims or expenses as a result of actions taken or omitted in good
faith in the course of response efforts.
(2) The qualified immunity under this section shall not apply to
any response efforts that are inconsistent with the following:
(A) The directions of the unified command, consisting of at least
the Coast Guard and the administrator.
(B) In the absence of a unified command, the directions of the
administrator pursuant to Section 8670.27.
(C) In the absence of directions pursuant to subparagraph (A) or
(B), applicable oil spill contingency plans implemented under this
division.
(3) This section does not, in any manner or respect, affect or
impair any cause of action against or any liability of any party or
parties responsible for the spill, for the discharged oil, or for the
vessel, terminal, pipeline, or facility from which the oil was
discharged. The responsible party or parties shall remain liable for
any and all damages arising from the discharge, including damages
arising from improperly carried out response efforts, as otherwise
provided by law.
(b) This section does not, in any manner or respect, affect or
impair any cause of action against or any liability of any party or
parties responsible for the spill, or the responsible party's agents,
employees, or subcontractors, except persons immunized under
subdivision (a) for response efforts, for the discharged oil, or for
the vessel, terminal, pipeline, or facility from which the oil was
discharged.
(c) The responsible party or parties shall be subject to both of
the following:
(1) Notwithstanding subdivision (b) or (i) of Section 8670.56.5,
or any other law, be strictly and jointly and severally liable for
all damages arising pursuant to subdivision (h) of Section 8670.56.5
from the response efforts of its agents, employees, subcontractors,
or an oil spill response organization of which it is a member or with
which it has a contract or other arrangement for cleanup of its oil
spills, unless it would have a defense to the original spill.
(2) Remain strictly liable for any and all damages arising from
the response efforts of a person other than a person specified in
paragraph (1).
(d) This section does not immunize an oil spill response
organization or any other person from liability for acts of gross
negligence or willful misconduct in connection with response efforts.
(e) This section does not apply to any action for personal injury
or wrongful death.
(f) Reserved]
(g) Except for the responsible party, membership in an oil spill
response organization shall not be grounds, in and of itself, for
liability resulting from response efforts of the oil spill response
organization.
(h) For purposes of this section, there shall be a rebuttable
presumption that an act or omission described in subdivision (a) was
taken in good faith.
(i) In any situation in which immunity is granted pursuant to
subdivision (a) and a responsible party is not liable, is not liable
for noneconomic damages caused by another, or is partially or totally
insolvent, the fund provided for in Article 7 (commencing with
Section 8670.46) shall reimburse, in accordance with its terms,
claims of any injured person for which a person who is granted
immunity pursuant to this section would otherwise be liable.
(j) (1) The immunity granted by this section shall only apply to
response efforts that are undertaken after the administrator
certifies that contracts with persons who are qualified and
responsible are in place to ensure an adequate and expeditious
response to any foreseeable oil spill that may occur in waters of the
state for which the responsible party (A) cannot be identified or
(B) is unable or unwilling to respond, contain, and clean up the oil
spill in an adequate and timely manner. In negotiating these
contracts, the administrator shall procure, to the maximum extent
practicable, the services of persons who are willing to respond to
oil spills with no, or lesser, immunity than that conferred by this
section, but, in no event, a greater immunity. The administrator
shall make the certification required by this subdivision on an
annual basis. Upon certification, the immunity conferred by this
section shall apply to all response efforts undertaken during the
calendar year to which the certification applies. In the absence of
the certification required by this subdivision, the immunity
conferred by this section shall not attach to any response efforts
undertaken by any person in waters of the state.
(2) In addition to the authority to negotiate contracts described
in paragraph (1), the administrator may also negotiate and enter into
indemnification agreements with persons who are qualified and
financially responsible to respond to oil spills that may occur in
waters of the state for which the responsible party (A) cannot be
identified or (B) is unable or unwilling to respond, contain, and
clean up the oil spill in an adequate and timely manner.
(3) The administrator may indemnify response contractors for (A)
all damages payable by means of settlement or judgment that arise
from response efforts to which the immunity conferred by this section
would otherwise apply, and (B) reasonably related legal costs and
expenses incurred by the responder, provided that indemnification
shall only apply to response efforts undertaken after the expiration
of any immunity that may exist as the result of the contract
negotiations authorized in this subdivision. In negotiating these
contracts, the administrator shall procure, to the maximum extent
practicable, the services of persons who are willing to respond to
oil spills with no, or as little, right to indemnification as
possible. All indemnification shall be paid by the administrator from
the Oil Spill Response Trust Fund.
(4) (A) The contracts required by this section, and any other
contracts entered into by the administrator for response,
containment, or cleanup of an existing spill, or for response of an
imminent threat of a spill, the payment of which is to be made from
the Oil Spill Response Trust Fund created pursuant to Section
8670.46, shall be exempt from Part 2 (commencing with Section 10100)
of Division 2 of the Public Contract Code and Article 6 (commencing
with Section 999) of Chapter 6 of Division 4 of the Military and
Veterans Code.
(B) The exemption specified in subparagraph (A) applies only to
contracts for which the services are used for a period of less than
90 days, cumulatively, per year.
(C) This paragraph shall not be construed as limiting the
administrator's authority to exercise the emergency powers granted
pursuant to subdivision (c) of Section 8670.62, including the
authority to enter into emergency contracts that are exempt from
approval by the Department of General Services.
(k) (1) With regard to a person who is regularly engaged in the
business of responding to oil spills, the immunity conferred by this
section shall not apply to any response efforts by that person that
occur later than 60 days after the first day the person's response
efforts commence.
(2) Notwithstanding the limitation contained in paragraph (1), the
administrator may extend, upon making all the following findings,
the period of time, not to exceed 30 days, during which the immunity
conferred by this section applies to response efforts:
(A) Due to inadequate or incomplete containment and stabilization,
there exists a substantial probability that the size of the spill
will significantly expand and (i) threaten previously uncontaminated
resources, (ii) threaten already contaminated resources with
substantial additional contamination, or (iii) otherwise endanger the
public health and safety or harm the environment.
(B) The remaining work is of a difficult or perilous nature that
extension of the immunity is clearly in the public interest.
(C) No other qualified and financially responsible contractor is
prepared and willing to complete the response effort in the absence
of the immunity, or a lesser immunity, as negotiated by contract.
(3) The administrator shall provide five days' notice of his or
her proposed decision to either extend, or not extend, the immunity
conferred by this section. Interested parties shall be given an
opportunity to present oral and written evidence at an informal
hearing. In making his or her proposed decision, the administrator
shall specifically seek and consider the advice of the relevant Coast
Guard representative. The administrator's decision to not extend the
immunity shall be announced at least 10 working days before the
expiration of the immunity to provide persons an opportunity to
terminate their response efforts as contemplated by paragraph (4).
(4) A person or their agents, subcontractors, or employees shall
not incur any liability under this chapter or any other provision of
law solely as a result of that person's decision to terminate their
response efforts because of the expiration of the immunity conferred
by this section. A person's decision to terminate response efforts
because of the expiration of the immunity conferred by this section
shall not in any manner impair, curtail, limit, or otherwise affect
the immunity conferred on the person with regard to the person's
response efforts undertaken during the period of time the immunity
applied to those response efforts.
(5) The immunity granted under this section shall attach, without
the limitation contained in this subdivision, to the response efforts
of any person who is not regularly engaged in the business of
responding to oil spills. A person who is not regularly engaged in
the business of responding to oil spills includes, but is not limited
to, (A) a person who is primarily dedicated to the preservation and
rehabilitation of wildlife and (B) a person who derives his or her
livelihood primarily from fishing.
SEC. 11. Section 8670.59 of the Government Code is amended to
read:
8670.59. (a) Any civil action brought pursuant to this chapter,
or pursuant to Division 7.8 (commencing with Section 8750) of the
Public Resources Code, shall be brought in the county in which the
spill, discharge, or violation occurred, the county in which the
principal place of business of the defendant is located, or the
county in which the defendant is doing business in this state.
(b) (1) Notwithstanding any other provision of law, all criminal
actions for the prosecution of misdemeanor violations of this chapter
or Division 7.8 (commencing with Section 8750) of the Public
Resources Code shall be commenced within one year from the date of
the discovery of the facts or circumstances that constitute the
violation.
(2) Notwithstanding any other provision of law, all criminal
actions for the prosecution of felony violations of this chapter or
Division 7.8 (commencing with Section 8750) of the Public Resources
Code shall be commenced within three years from the date of the
discovery of the facts or circumstances that constitute the
violation.
(c) Notwithstanding any other provision of law, except as provided
in subdivision (d), any action to recover civil damages or penalties
shall be commenced within three years from the date of discovery of
the facts or circumstances that constitute a violation of this
chapter or Division 7.8 (commencing with Section 8750) of the Public
Resources Code.
(d) Any action to recover civil damages or penalties pursuant to
paragraph (3), (4), (5), (6), or (7) of subdivision (h) of Section
8670.56.5 because of effects on natural resources shall be commenced
within five years from the date of the discovery of the facts or
circumstances that are the basis for the cause of action.
(e) Any action to compel the removal of oil or the restoration and
rehabilitation of wildlife and wildlife habitat shall be commenced
within five years from the date of discovery of the facts or
circumstances that constitute a violation of this chapter or Division
7.8 (commencing with Section 8750) of the Public Resources Code.
(f) For purposes of subdivisions (b), (c), (d), and (e), "date of
discovery" means the actual date that facts sufficient to establish
that a violation of this chapter or Division 7.8 (commencing with
Section 8750) of the Public Resources Code has occurred are
discovered by a peace officer appointed pursuant to Section 851 of
the Fish and Game Code.
(g) The administrator may adopt regulations prescribing procedures
for the implementation of this section.
