Bill Text: CA AB358 | 2011-2012 | Regular Session | Chaptered
Bill Title: Hazardous substances: underground storage tanks:
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2011-10-08 - Chaptered by Secretary of State - Chapter 571, Statutes of 2011. [AB358 Detail]
Download: California-2011-AB358-Chaptered.html
BILL NUMBER: AB 358 CHAPTERED
BILL TEXT
CHAPTER 571
FILED WITH SECRETARY OF STATE OCTOBER 8, 2011
APPROVED BY GOVERNOR OCTOBER 8, 2011
PASSED THE SENATE SEPTEMBER 6, 2011
PASSED THE ASSEMBLY SEPTEMBER 8, 2011
AMENDED IN SENATE SEPTEMBER 1, 2011
AMENDED IN SENATE AUGUST 15, 2011
AMENDED IN SENATE JULY 7, 2011
AMENDED IN SENATE JUNE 21, 2011
AMENDED IN ASSEMBLY APRIL 28, 2011
AMENDED IN ASSEMBLY APRIL 13, 2011
AMENDED IN ASSEMBLY APRIL 4, 2011
INTRODUCED BY Assembly Member Smyth
FEBRUARY 10, 2011
An act to amend Sections 25295, 25296.10, 25296.35, 25296.40,
25299.39.2, 25299.57, and 25299.58 of the Health and Safety Code,
relating to hazardous substances, and declaring the urgency thereof,
to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 358, Smyth. Hazardous substances: underground storage tanks:
releases: reports.
(1) Existing law generally regulates the storage of hazardous
substances in underground storage tanks, including requiring
underground storage tanks that are used to store hazardous substances
to meet certain requirements. Existing law requires tank owners and
operators to report unauthorized releases to local agencies, which
includes specified information, and requires the State Water
Resources Control Board to continuously post and update on its
Internet Web site reports of information concerning unauthorized
releases.
This bill would instead require the owner or operator to transmit
certain information regarding an unauthorized release to the local
agency on a written form or using an electronic format developed by
the board and approved by the Secretary for Environmental Protection.
The bill would require additional information to be provided to the
local agency. The bill would also instead require each regional board
and local agency to submit a report to the board for all
unauthorized releases using the board's Internet-accessible database,
thereby imposing a state-mandated local program by imposing new
duties upon local agencies. The bill would require the board to
annually post and update on its Internet Web site the information in
those reports concerning unauthorized releases.
The bill would authorize the board to adopt regulations to specify
reporting requirements to implement these provisions, including
electronic submission requirements for these reports. The bill would
require the regulations to be adopted as emergency regulations and
would exempt the adoption of these regulations from certain
requirements regarding review by the Office of Administrative Law.
(2) Existing law requires a uniform closure letter to be issued to
the owner, operator, or other responsible party taking corrective
action at an underground storage tank site by the local agency or the
regional board with jurisdiction over the site, or the State Water
Resources Control Board, upon a finding that the underground storage
tank site is in compliance with specified requirements and with any
corrective action regulations adopted by the board and that no
further corrective action is required at the site.
This bill would require that closure letters issued pursuant to
the above-described provisions on or after January 1, 2012, include
language notifying the owner, operator, or other responsible party of
the filing deadline for claims for reimbursement of corrective
action costs that are received by the board more than 365 days after
the date of issuance of a closure letter or after the issuance or
activation of a letter of commitment, whichever occurs later.
(3) Existing law authorizes the State Water Resources Control
Board to close a tank case if that tank case is under the
jurisdiction of a regional board or a local agency implementing a
local oversight program and the board determines that the corrective
action at the site complies with specified requirements. Existing law
allows the board to recommend that a local agency close that tank
case if the tank case is at a site of a local agency that is not
implementing the local oversight program. Existing law also
authorizes the manager of the Underground Storage Tank Cleanup Fund,
with the approval of the tank owner or operator, to make a
recommendation to the board for closure of any tank case.
This bill would instead authorize the board to require closure of
any underground storage tank case where an unauthorized release has
occurred and the board makes that determination. The bill would
delete the board's authority to recommend closure to a local agency
that is not implementing the local oversight program. The board would
be required, before closing or requiring closure of an underground
storage tank case, to provide an opportunity for reviewing and
providing responses to the petition or the manager's recommendation
to the applicable regional board, local agency, specified water
district, or special act district with groundwater management
authority.
This bill would, upon the manager of the fund recommending case
closure, to limit reimbursement of subsequently incurred corrective
action costs to $10,000 per year, except as specified.
(4) Existing law allows a person required to perform corrective
action pursuant to a specified provision to apply to the State Water
Resources Control Board for payment of a claim for specified portions
of the costs of the corrective action and third-party damages.
This bill would additionally authorize a person required to
perform corrective action under certain federal laws to apply to the
board for payment of a claim. The bill would also require that claims
for reimbursement of corrective action costs that are received by
the board more than 365 days after the date of issuance of a closure
letter or after the issuance or activation of a letter of commitment,
whichever occurs later, not be reimbursed unless one of 2 specified
conditions apply. The bill would require the board, for cases that
have been issued a closure letter prior to January 1, 2012, to notify
claimants of the 365-day filing deadline on or before March 31,
2012, or upon issuance of a letter of commitment, whichever occurs
later.
(5) The bill would declare that it is to take effect immediately
as an urgency statute, but the changes made by the bill would only
become operative if, and on the date that, AB 291 is chaptered.
(6) 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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25295 of the Health and Safety Code is amended
to read:
25295. (a) (1) An unauthorized release that escapes from the
secondary containment, or from the primary containment, if no
secondary containment exists, increases the hazard of fire or
explosion, or causes deterioration of the secondary containment of
the underground tank system shall be reported by the owner or
operator to the local agency designated pursuant to Section 25283
within 24 hours after the release has been detected or should have
been detected. The owner or operator of the underground tank system
shall transmit the information specified in this paragraph regarding
the unauthorized release to the local agency no later than five
working days after the date of the occurrence of the unauthorized
release. The information shall be submitted to the local agency on a
written form or using an electronic format developed by the board and
approved by the Secretary for Environmental Protection as consistent
with the standardized electronic format and protocol requirements of
Sections 71060 to 71065, inclusive, of the Public Resources Code.
Either reporting method shall include all of the following:
(A) A description of the nature and volume of the unauthorized
release.
(B) The corrective or remedial actions undertaken.
(C) Any further corrective or remedial actions, including
investigative actions, that will be needed to clean up the
unauthorized release and abate the effects of the unauthorized
release.
(D) A time schedule for implementing the actions specified in
subparagraph (C).
(E) The source and cause of the unauthorized release.
(F) The underground storage tank system's record of compliance
with this chapter, including data on equipment failures.
(G) Any other information the board deems necessary to implement
or comply with this chapter, Chapter 6.75 (commencing with Section
25299. 10), or the federal act.
(2) The local agency shall review the permit whenever there has
been an unauthorized release or when it determines that the
underground tank system is unsafe. In determining whether to modify
or terminate the permit, the local agency shall consider the age of
the tank, the methods of containment, the methods of monitoring, the
feasibility of any required repairs, the concentration of the
hazardous substances stored in the tank, the severity of potential
unauthorized releases, and the suitability of any other long-term
preventive measures which would meet the requirements of this
chapter.
(b) (1) Each regional board and local agency shall submit a report
to the board for all unauthorized releases, indicating for each
unauthorized release the responsible party, the site name, the
hazardous substance, the quantity of the unauthorized release if
known, the actions taken to abate the problem, the source and cause
of the unauthorized release, the underground storage tank system's
record of compliance with this chapter, data on equipment failures,
and any other information that the board deems necessary to implement
this chapter, Chapter 6.75 (commencing with Section 25299.10), or
the federal act.
(2) The information required by this subdivision shall be
submitted to the board and updated using the board's
Internet-accessible database that accepts data pursuant to Section
13196 of the Water Code.
(3) On and before December 1, 2012, and not less than annually
thereafter, the board shall post and update on its Internet Web site,
the information concerning unauthorized releases in the reports
submitted pursuant to this subdivision.
(4) The board may adopt regulations pursuant to Section 25299.3
that specify reporting requirements for the implementation of this
section, including, but not limited to, requirements for the
electronic submission of the information required in a report
submitted pursuant to this subdivision. If the board adopts these
regulations, the board shall adopt the regulations as emergency
regulations in accordance with Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code, and
for the purposes of that chapter, including Section 11349.6 of the
Government Code, the adoption of these regulations is an emergency
and shall be considered by the Office of Administrative Law as
necessary to avoid serious harm to the public peace, health, safety,
or general welfare. Notwithstanding Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code, including subdivision (e) of Section 11346.1 of the Government
Code, the emergency regulations adopted pursuant to this subdivision
shall be filed with, but shall not be repealed by, the Office of
Administrative Law and shall remain in effect until revised by the
board.
(c) The reporting requirements imposed by this section are in
addition to any requirements that may be imposed by Sections 13271
and 13272 of the Water Code.
SEC. 2. Section 25296.10 of the Health and Safety Code is amended
to read:
25296.10. (a) Each owner, operator, or other responsible party
shall take corrective action in response to an unauthorized release
in compliance with this chapter and the regulations adopted pursuant
to Section 25299.3. In adopting corrective action regulations, the
board shall develop corrective action requirements for health hazards
and protection of the environment, based on the severity of the
health hazards and the other factors listed in subdivision (b). The
corrective action regulations adopted by the board pursuant to
Section 25299.77 to implement Section 25299.37, as that section read
on January 1, 2002, that were in effect before January 1, 2003, shall
continue in effect on and after January 1, 2003, until revised by
the board to implement this section and shall be deemed to have been
adopted pursuant to Section 25299.3.
(b) Any corrective action conducted pursuant to this chapter shall
ensure protection of human health, safety, and the environment. The
corrective action shall be consistent with any applicable waste
discharge requirements or other order issued pursuant to Division 7
(commencing with Section 13000) of the Water Code, all applicable
state policies for water quality control adopted pursuant to Article
3 (commencing with Section 13140) of Chapter 3 of Division 7 of the
Water Code, and all applicable water quality control plans adopted
pursuant to Section 13170 of the Water Code and Article 3 (commencing
with Section 13240) of Chapter 4 of Division 7 of the Water Code.
(c) (1) When a local agency, the board, or a regional board
requires an owner, operator, or other responsible party to undertake
corrective action, including preliminary site assessment and
investigation, pursuant to an oral or written order, directive,
notification, or approval issued pursuant to this section, or
pursuant to a cleanup and abatement order or other oral or written
directive issued pursuant to Division 7 (commencing with Section
13000) of the Water Code, the owner, operator, or other responsible
party shall prepare a work plan that details the corrective action
the owner, operator, or other responsible party shall take to comply
with the requirements of subdivisions (a) and (b) and the corrective
action regulations adopted pursuant to Section 25299.3.
(2) The work plan required by paragraph (1) shall be prepared in
accordance with the regulations adopted pursuant to Section 25299.3.
The work plan shall include a schedule and timeline for corrective
action.
(3) At the request of the owner, operator, or other responsible
party, the local agency, the board, or the regional board shall
review a work plan prepared pursuant to paragraph (1) and either
accept the work plan, if it meets the requirements of the section, or
disapprove the work plan if it does not meet those requirements. If
the local agency, board, or the regional board accepts the work plan,
it shall indicate to the owner, operator, or other responsible
party, the actions or other elements of the work plan that are, in
all likelihood, adequate and necessary to meet the requirements of
this section, and the actions and elements that may be unnecessary.
If the local agency, board, or regional board disapproves the work
plan, it shall state the reasons for the disapproval.
(4) In the interests of minimizing environmental contamination and
promoting prompt cleanup, the responsible party may begin
implementation of the proposed action after the work plan has been
submitted but before the work plan has received regulatory agency
acceptance, except that implementation of the work plan may not begin
until 60 calendar days from the date of submittal, unless the
responsible party is otherwise directed in writing by the regulatory
agency. However, before beginning implementation pursuant to this
paragraph, the responsible party shall notify the regulatory agency
of the intent to initiate proposed actions set forth in the submitted
work plan.
(5) The owner, operator, or other responsible party shall conduct
corrective actions in accordance with the work plan approved pursuant
to this section.
(6) When the local agency, the board, or the regional board
requires a responsible party to conduct corrective action pursuant to
this section, it shall inform the responsible party of its right to
request the designation of an administering agency to oversee the
site investigation and remedial action at its site pursuant to
Section 25262 and, if requested to do so by the responsible party,
the local agency shall provide assistance to the responsible party in
preparing and processing a request for that designation.
(d) (1) This subdivision applies only to an unauthorized release
from a petroleum underground storage tank that is subject to Chapter
6.75 (commencing with Section 25299.10).
(2) Notwithstanding Section 25297.1, the board shall implement a
procedure that does not assess an owner, operator, or responsible
party taking corrective action pursuant to this chapter for the costs
of a local oversight program pursuant to paragraph (4) of
subdivision (d) of Section 25297.1. The board shall institute an
internal procedure for assessing, reviewing, and paying those costs
directly between the board and the local agency.
(e) A person to whom an order is issued pursuant to subdivision
(c), shall have the same rights of administrative and judicial appeal
and review as are provided by law for cleanup and abatement orders
issued pursuant to Section 13304 of the Water Code.
(f) (1) If a person to whom an order is issued pursuant to
subdivision (c) does not comply with the order, the board, a regional
board, or the local agency may undertake or contract for corrective
action.
(2) The board, a regional board, or local agency shall be
permitted reasonable access to property owned or possessed by an
owner, operator, or responsible party as necessary to perform
corrective action pursuant to this subdivision. The access shall be
obtained with the consent of the owner or possessor of the property
or, if the consent is withheld, with a warrant duly issued pursuant
to the procedure described in Title 13 (commencing with Section
1822.50) of Part 3 of the Code of Civil Procedure. However, if there
is an emergency affecting public health or safety, or the
environment, the board, a regional board, or local agency may enter
the property without consent or the issuance of a warrant.
(3) The board, a regional board, or local agency may recover its
costs incurred under this subdivision pursuant to Section 13304 of
the Water Code. If the unauthorized release is from an underground
storage tank that is subject to Chapter 6.75 (commencing with Section
25299.10), the board, a regional board, or local agency may also
recover its costs pursuant to Section 25299.70.
(g) The following uniform closure letter shall be issued to the
owner, operator, or other responsible party taking corrective action
at an underground storage tank site by the local agency or the
regional board with jurisdiction over the site, or the board, upon a
finding that the underground storage tank site is in compliance with
the requirements of subdivisions (a) and (b) and with any corrective
action regulations adopted pursuant to Section 25299.3 and that no
further corrective action is required at the site:
"Case File Number]
Dear Responsible Party]
This letter confirms the completion of a site investigation and
corrective action for the underground storage tank(s) formerly
located at the above-described location. Thank you for your
cooperation throughout this investigation. Your willingness and
promptness in responding to our inquiries concerning the former
underground storage tank(s) are greatly appreciated.
Based on information in the above-referenced file and with the
provision that the information provided to this agency was accurate
and representative of site conditions, this agency finds that the
site investigation and corrective action carried out at your
underground storage tank(s) site is in compliance with the
requirements of subdivisions (a) and (b) of Section 25296.10 of the
Health and Safety Code and with corrective action regulations adopted
pursuant to Section 25299.3 of the Health and Safety Code and that
no further action related to the petroleum release(s) at the site is
required.
This notice is issued pursuant to subdivision (g) of Section
25296.10 of the Health and Safety Code.
Please contact our office if you have any questions regarding this
matter.
Sincerely,
Name of Board Executive Director, Regional Board Executive
Officer, or Local Agency Director]"
(h) Any order, directive, notification, or approval issued under
Section 25299.37 as that section read on January 1, 2002, that was
issued on or before January 1, 2003, shall be deemed to have been
issued pursuant to this section.
(i) On or after January 1, 2012, uniform closure letters issued
pursuant to subdivision (g) shall include language notifying the
owner, operator, or other responsible party of the 365-day claim
filing deadline specified in paragraph (1) of subdivision (l) of
Section 25299.57.
SEC. 3. Section 25296.35 of the Health and Safety Code is amended
to read:
25296.35. (a) The board shall develop, implement, and maintain a
system for storing and retrieving data from cases involving
discharges of petroleum from underground storage tanks to allow
regulatory agencies and the general public to use historic data in
making decisions regarding permitting, land use, and other matters.
The system shall be accessible to government agencies and the general
public and shall include the reports submitted to the board by
regional boards or local agencies pursuant to Section 25295. A site
included in the data system shall be clearly designated as having no
residual contamination if, at the time a closure letter is issued for
the site pursuant to Section 25296.10 or at any time after that
closure letter is issued, the board determines that no residual
contamination remains on the site.
(b) For purposes of this section, "residual contamination" means
the petroleum that remains on a site after a corrective action has
been carried out and the cleanup levels established by the corrective
action plan for the site, pursuant to subdivision (g) of Section
2725 of Title 23 of the California Code of Regulations, have been
achieved.
SEC. 4. Section 25296.40 of the Health and Safety Code is amended
to read:
25296.40. (a) (1) Any owner or operator, or other responsible
party who has an underground storage tank case and who believes that
the corrective action plan for the site has been satisfactorily
implemented, but where closure has not been granted, may petition the
board for a review of the case.
(2) Upon receipt of a petition pursuant to paragraph (1), the
board may close any underground storage tank case or require closure
of any underground storage tank case where an unauthorized release
has occurred, if the board determines that corrective action at the
site is in compliance with all of the requirements of subdivisions
(a) and (b) of Section 25296.10 and the corrective action regulations
adopted pursuant to Section 25299.3. Before closing or requiring
closure of an underground storage tank case, the board shall provide
an opportunity for reviewing and providing responses to the petition
to the applicable regional board and local agency, and to the water
replenishment district, municipal water district, county water
district, or special act district with groundwater management
authority if the underground storage tank case is located in the
jurisdiction of that district.
(b) An aggrieved person may, not later than 30 days from the date
of final action by the board, pursuant to subdivision (a), file with
the superior court a petition for writ of mandate for review of the
decision. If the aggrieved person does not file a petition for writ
of mandate within the time provided by this subdivision, a board
decision shall not be subject to review by any court. Section 1094.5
of the Code of Civil Procedure shall govern proceedings for which
petitions are filed pursuant to this subdivision. For purposes of
subdivision (c) of Section 1094.5 of the Code of Civil Procedure, the
court shall uphold the decision if the decision is based upon
substantial evidence in light of the whole record.
(c) The authority provided under this section does not limit a
person's ability to petition the board for review under any other
state law.
SEC. 5. Section 25299.39.2 of the Health and Safety Code is
amended to read:
25299.39.2. (a) (1) The manager responsible for the fund shall
notify tank owners or operators who have an active letter of
commitment that has been in an active status for five years or more
and shall review the case history of their tank case on an annual
basis unless otherwise notified by the tank owner or operator within
30 days of the notification. The manager, with approval of the tank
owner or operator, may make a recommendation to the board for
closure. The board may close any tank case or require the closure of
any tank case where an unauthorized release has occurred if the board
determines that corrective action at the site is in compliance with
all of the requirements of subdivisions (a) and (b) of Section
25296.10 and the corrective action regulations adopted pursuant to
Section 25299.3. Before closing or requiring closure of an
underground storage tank case, the board shall provide an opportunity
for reviewing and providing responses to the manager's
recommendation to the applicable regional board and local agency, and
to the water replenishment district, municipal water district,
county water district, or special act district with groundwater
management authority if the underground storage tank case is located
in the jurisdiction of that district.
(2) Except as provided in paragraph (3), if the manager recommends
closing a tank case pursuant to paragraph (1), the board shall limit
reimbursement of subsequently incurred corrective action costs to
ten thousand dollars ($10,000) per year.
(3) The board may allow reimbursement of corrective action costs
in excess of the ten thousand dollar ($10,000) limit specified in
paragraph (2) if the board determines that corrective action costs
related to the closure will exceed this amount, or that additional
corrective action is necessary to meet the requirements specified in
subdivisions (a) and (b) of Section 25296.10.
(b) An aggrieved person may, not later than 30 days from the date
of final action by the board, pursuant to paragraph (1) of
subdivision (a), file with the superior court a petition for writ of
mandate for review of the decision. If the aggrieved person does not
file a petition for writ of mandate within the time provided by this
subdivision, a board decision shall not be subject to review by any
court. Section 1094.5 of the Code of Civil Procedure shall govern
proceedings for which petitions are filed pursuant to this
subdivision. For purposes of subdivision (c) of Section 1094.5 of the
Code of Civil Procedure, the court shall uphold the decision if the
decision is based upon substantial evidence in light of the whole
record.
(c) The authority provided under this section does not limit a
person's ability to petition the board for review under any other
state law.
SEC. 6. Section 25299.57 of the Health and Safety Code is amended
to read:
25299.57. (a) If the board makes the determination specified in
subdivision (d), the board may only pay for the costs of a corrective
action that exceed the level of financial responsibility required to
be obtained pursuant to Section 25299.32, but not more than one
million five hundred thousand dollars ($1,500,000) for each
occurrence. In the case of an owner or operator who, as of January 1,
1988, was required to perform corrective action, who initiated that
corrective action in accordance with Division 7 (commencing with
Section 13000) of the Water Code or Chapter 6.7 (commencing with
Section 25280), and who is undertaking the corrective action in
compliance with waste discharge requirements or other orders issued
pursuant to Division 7 (commencing with Section 13000) of the Water
Code or Chapter 6.7 (commencing with Section 25280), the owner or
operator may apply to the board for satisfaction of a claim filed
pursuant to this article. The board shall notify claimants applying
for satisfaction of claims from the fund of eligibility for
reimbursement in a prompt and timely manner and that a letter of
credit or commitment that will obligate funds for reimbursement shall
follow the notice of eligibility as soon thereafter as possible.
(b) (1) For claims eligible for reimbursement pursuant to
subdivision (c) of Section 25299.55, the claimant shall submit the
actual cost of corrective action to the board, which shall either
approve or disapprove the costs incurred as reasonable and necessary.
At least 15 days before the board proposes to disapprove the
reimbursement of corrective action costs that have been incurred on
the grounds that the costs were unreasonable or unnecessary, the
board shall issue a notice advising the claimant and the lead agency
of the proposed disallowance, to allow review and comment.
(2) The board shall not reject any actual costs of corrective
action in a claim solely on the basis that the invoices submitted
fail to sufficiently detail the actual costs incurred, if all of the
following apply:
(A) Auxiliary documentation is provided that documents to the
board's satisfaction that the invoice is for necessary corrective
action work.
(B) The costs of corrective action work in the claim are
reasonably commensurate with similar corrective action work performed
during the same time period covered by the invoice for which
reimbursement is sought.
(C) The invoices include a brief description of the work
performed, the date that the work was performed, the vendor, and the
amount.
(c) (1) For claims eligible for prepayment pursuant to subdivision
(c) of Section 25299.55, the claimant shall submit the estimated
cost of the corrective action to the board, which shall approve or
disapprove the reasonableness of the cost estimate.
(2) If the claim is for reimbursement of costs incurred pursuant
to a performance-based contract, Article 6.5 (commencing with Section
25299.64) shall apply to that claim.
(d) Except as provided in subdivision (j), a claim specified in
subdivision (a) may be paid if the board makes all of the following
findings:
(1) There has been an unauthorized release of petroleum into the
environment from an underground storage tank.
(2) The claimant is required to undertake or contract for
corrective action pursuant to Section 25296.10, under the federal
act, or under Section 6973 of Title 42 of the United States Code, or,
as of January 1, 1988, the claimant has initiated corrective action
in accordance with Division 7 (commencing with Section 13000) of the
Water Code.
(3) The claimant has complied with Section 25299.31.
(4) (A) Except as provided in subparagraphs (B), (C), and (F), the
claimant has complied with the permit requirements of Chapter 6.7
(commencing with Section 25280). A claimant shall obtain a permit
required by subdivision (a) of Section 25284 for the underground
storage tank that is the subject of the claim when the claimant
becomes subject to subdivision (a) of Section 25284 or when the
applicable local agency begins issuing permits pursuant to
subdivision (a) of Section 25284, whichever occurs later.
(B) A claimant who acquires real property on which an underground
storage tank is situated and, despite the exercise of reasonable
diligence, was unaware of the existence of the underground storage
tank when the real property was acquired, has obtained a permit
required by subdivision (a) of Section 25284 for the underground
storage tank that is the subject of the claim within a reasonable
period, not to exceed one year, from when the claimant should have
become aware of the existence of the underground storage tank, or
when the applicable local agency began issuing permits pursuant to
Section 25284, whichever occurs later.
(C) All claimants who file their claim on or after January 1,
2008, and who do not obtain a permit required by subdivision (a) of
Section 25284 in accordance with subparagraph (A) or (B) may seek a
waiver of the requirement to obtain a permit. The board shall waive
the provisions of subparagraphs (A) and (B) as a condition for
payment from the fund if the board finds all of the following:
(i) The claimant was unaware of the permit requirement, and upon
becoming aware of the permit requirement, the claimant complies with
either subdivision (a) of Section 25284 or Section 25298 and the
regulations adopted to implement those sections within a reasonable
period, not to exceed one year, from when the claimant became aware
of the permit requirement.
(ii) Prior to submittal of the application to the fund, the
claimant has complied with Section 25299.31 and has obtained and paid
for all permits currently required by this paragraph.
(iii) Prior to submittal of the application to the fund, the
claimant has paid all fees, interest, and penalties imposed pursuant
to Article 5 (commencing with Section 25299.40) of this chapter and
Part 26 (commencing with Section 50101) of Division 2 of the Revenue
and Taxation Code for the underground storage tank that is the
subject of the claim.
(D) (i) A claimant exempted pursuant to subparagraph (C) and who
has complied, on or before December 22, 1998, either with subdivision
(a) of Section 25284 or Section 25298 and the regulations adopted to
implement those sections,
shall obtain a level of financial responsibility twice as great as
the amount that the claimant is otherwise required to obtain pursuant
to subdivision (a) of Section 25299.32, but not less than ten
thousand dollars ($10,000). All other claimants exempted pursuant to
subparagraph (C) shall obtain a level of financial responsibility
that is four times as great as the amount that the claimant is
otherwise required to obtain pursuant to subdivision (a) of Section
25299.32, but not less than twenty thousand dollars ($20,000).
(ii) The board may waive the requirements of clause (i) if the
claimant can demonstrate that the conditions specified in clauses (i)
to (iii), inclusive, of subparagraph (C) were satisfied prior to the
causing of any contamination. That demonstration may be made through
a certification issued by the permitting agency based on a site
evaluation and tank tests at the time of permit application or in any
other manner acceptable to the board.
(E) All claimants who file a claim before January 1, 2008, and who
are not eligible for a waiver of the permit requirements pursuant to
applicable statutes or regulations in effect on the date of the
filing of the claim may resubmit a new claim pursuant to subparagraph
(C) on or after January 1, 2008. The board shall rank all claims
resubmitted pursuant to subparagraph (C) lower than all claims filed
before January 1, 2008, within their respective priority classes
specified in subdivision (b) of Section 25299.52.
(F) The board shall waive the provisions of subparagraph (A) as a
condition for payment from the fund for a claimant who filed his or
her claim on or after January 1, 2008, and before July 1, 2009, but
is not eligible for a waiver of the permit requirement pursuant to
the regulations adopted by the board in effect on the date of the
filing of the claim, and who did not obtain or apply for a permit
required by subdivision (a) of Section 25284, if the board finds all
of the following:
(i) The claim is filed pursuant to paragraph (2) of subdivision
(h) of Section 25299.54 and the claim otherwise satisfies the
eligibility requirements of that paragraph.
(ii) The claimant became the owner or de facto owner of an
underground storage tank prior to December 22, 1998.
(iii) The claimant did not, and does not, operate the underground
storage tank.
(iv) Within three years after becoming the owner or de facto owner
of the underground storage tank but not after December 22, 1998, the
claimant caused the underground storage tank to be removed and
closed in accordance with applicable law, and commenced no later than
December 22, 1998, to perform corrective action pursuant to Section
25296.10 of this code or pursuant to Division 7 (commencing with
Section 13000) of the Water Code.
(G) The board shall rank all claims submitted pursuant to
subparagraph (F) in their respective priority classes specified in
subdivision (b) of Section 25299.52 in the order in which the claims
are received by the board, but subsequent to any claim filed on a
previous date in each of those priority classes.
(H) For purposes of clauses (ii) and (iv) of subparagraph (F), "de
facto owner of an underground storage tank" means a person who
purchases or otherwise acquires real property, as defined in
subparagraph (D) of paragraph (5) of subdivision (h) of Section
25299.54, and has actual possession of, and control over, an
underground storage tank that has been abandoned by its previous
owner.
(5) The board has approved either the costs incurred for the
corrective action pursuant to subdivision (b) or the estimated costs
for corrective action pursuant to subdivision (c).
(6) The claimant has paid all fees, interest, and penalties
imposed pursuant to Article 5 (commencing with Section 29299.40) and
Part 26 (commencing with Section 50101) of Division 2 of the Revenue
and Taxation Code for the underground storage tank that is the
subject of the claim.
(e) The board shall provide the claimant, whose cost estimate has
been approved, a letter of commitment authorizing payment of the
costs from the fund.
(f) The claimant may submit a request for partial payment to cover
the costs of corrective action performed in stages, as approved by
the board.
(g) (1) A claimant who submits a claim for payment to the board
shall submit multiple bids for prospective costs as prescribed in
regulations adopted by the board pursuant to Section 25299.77.
(2) A claimant who submits a claim to the board for the payment of
professional engineering and geologic work shall submit multiple
proposals and fee estimates, as required by the regulations adopted
by the board pursuant to Section 25299.77. The claimant's selection
of the provider of these services is not required to be based on the
lowest estimated fee, if the fee estimate conforms with the range of
acceptable costs established by the board.
(3) A claimant who submits a claim for payment to the board for
remediation construction contracting work shall submit multiple bids,
as required in the regulations adopted by the board pursuant to
Section 25299.77.
(4) Paragraphs (1), (2), and (3) do not apply to a tank owned or
operated by a public agency if the prospective costs are for private
professional services within the meaning of Chapter 10 (commencing
with Section 4525) of Division 5 of Title 1 of the Government Code
and those services are procured in accordance with the requirements
of that chapter.
(h) The board shall provide, upon the request of a claimant,
assistance to the claimant in the selection of contractors retained
by the claimant to conduct reimbursable work related to corrective
actions. The board shall develop a summary of expected costs for
common corrective actions. This summary of expected costs may be used
by claimants as a guide in the selection and supervision of
consultants and contractors.
(i) (1) To the extent funding is available, the board shall pay,
within 60 days from the date of receipt of an invoice of
expenditures, all costs specified in the work plan developed pursuant
to Section 25296.10, and all costs that are otherwise necessary to
comply with an order issued by a local, state, or federal agency.
(2) If corrective action costs, third-party compensation costs, or
regulatory technical assistance costs submitted by a claimant are
approved for reimbursement by the board but funding is not available
for payment to the claimant at the time of approval, the board shall
reimburse carrying costs incurred by the claimant after November 7,
2008, but before June 30, 2010, subject to all of the following
limitations:
(A) The reimbursement for carrying costs shall not exceed the
carrying costs actually incurred by the claimant from the date the
corrective action costs, third-party compensation costs, or
regulatory technical assistance costs are approved for payment by the
board until the date that a check for the reimbursement request is
issued by the Controller.
(B) The reimbursement for carrying costs shall not exceed an
amount equivalent to a maximum annual percentage rate of 7 percent as
applied to the amount approved for reimbursement and for the period
calculated pursuant to subparagraph (A).
(C) The board shall not reimburse carrying costs that amount to
less than one hundred dollars ($100) per reimbursement request.
(D) The board shall not reimburse carrying costs that exceed 9
percent of the total amount of costs approved for the reimbursement
to which the carrying costs apply.
(E) A claimant may submit a request for reimbursement of carrying
costs after receipt of fund reimbursement for the corrective action
costs, third-party compensation costs, or regulatory technical
assistance costs to which the carrying costs apply. Additional
carrying costs associated with a reimbursement request for carrying
costs submitted pursuant to this paragraph are not eligible for
payment.
(F) This paragraph does not apply to tank owners or operators that
are not described in paragraphs (1), (2), or (3) of subdivision (b)
of Section 25299.52.
(3) For the purposes of paragraph (2), "carrying cost" means the
interest expense incurred by a claimant to acquire money to pay costs
approved for reimbursement by the board but for which reimbursement
is delayed because funds are unavailable.
(j) (1) The board shall pay a claim of not more than three
thousand dollars ($3,000) per occurrence for regulatory technical
assistance to an owner or operator who is otherwise eligible for
reimbursement under this chapter.
(2) For the purposes of this subdivision, regulatory technical
assistance is limited to assistance from a person, other than the
claimant, in the preparation and submission of a claim to the fund.
Regulatory technical assistance does not include assistance in
connection with proceedings under Section 25296.40, 25299.39.2, or
25299.56 or any action in court.
(k) (1) Notwithstanding any other provision of this section, the
board shall pay a claim for the costs of corrective action to a
person who owns property on which is located a release from a
petroleum underground storage tank that has been the subject of a
completed corrective action and for which additional corrective
action is required because of additionally discovered contamination
from the previous release, only if the person who carried out the
earlier and completed corrective action was eligible for, and applied
for, reimbursement pursuant to subdivision (b), and only to the
extent that the amount of reimbursement for the earlier corrective
action did not exceed the amount of reimbursement authorized by
subdivision (a). Reimbursement to a claimant on a reopened site shall
occur when funds are available, and reimbursement commitment shall
be made ahead of any new letters of commitment to be issued, as of
the date of the reopening of the claim, if funding has occurred on
the original claim, in which case funding shall occur at the time it
would have occurred under the original claim.
(2) For purposes of this subdivision, a corrective action is
completed when the local agency or regional board with jurisdiction
over the site or the board issues a closure letter pursuant to
subdivision (g) of Section 25296.10.
(l) (1) Claims for reimbursement of corrective action costs that
are received by the board more than 365 days after the date of
issuance of a closure letter issued pursuant to subdivision (g) of
Section 25296.10 or after the issuance or activation of a letter of
commitment, whichever occurs later, shall not be reimbursed unless
either of the following applies:
(A) Claims for corrective action costs are submitted to the board
pursuant to paragraph (1) of subdivision (k).
(B) The board finds that submission within the time period
specified in this paragraph was beyond the claimant's reasonable
control, ongoing work is required for closure that will result in
submission of claims beyond that time period, or that under the
circumstances of the particular case, it would be unreasonable or
inequitable to impose the time period specified in this paragraph.
(2) This section does not limit or abrogate the rights of a
claimant in disputing reimbursement determinations or suspension of
claims.
(3) For cases that have been issued a closure letter pursuant to
subdivision (g) of Section 25296.10 prior to January 1, 2012, the
board shall notify claimants of the 365-day filing deadline specified
in paragraph (1) on or before March 31, 2012, or upon issuance of a
letter of commitment, whichever occurs later.
SEC. 7. Section 25299.58 of the Health and Safety Code is amended
to read:
25299.58. (a) Except as provided in subdivision (d), if the board
makes the determination specified in subdivision (b), the board may
reimburse only those costs that are related to the compensation of
third parties for bodily injury and property damages and that exceed
the level of financial responsibility required to be obtained
pursuant to Section 25299.32, but not more than one million dollars
($1,000,000) for each occurrence.
(b) A claim may be paid if the board makes all of the following
findings:
(1) There has been an unauthorized release of petroleum into the
environment from an underground storage tank.
(2) The claimant has been ordered to pay a settlement or final
judgment for third-party bodily injury or property damage arising
from operating an underground storage tank.
(3) The claimant has complied with Section 25299.31.
(4) (A) Except as provided in subparagraphs (B) and (C), the
claimant has complied with the permit requirements of Chapter 6.7
(commencing with Section 25280). A claimant shall obtain a permit
required by subdivision (a) of Section 25284 for the underground
storage tank that is the subject of the claim when the claimant
becomes subject to subdivision (a) of Section 25284 or when the
applicable local agency begins issuing permits pursuant to
subdivision (a) of Section 25284, whichever occurs later.
(B) A claimant who acquires real property on which an underground
storage tank is situated and, despite the exercise of reasonable
diligence, was unaware of the existence of the underground storage
tank when the real property was acquired, has obtained a permit
required by subdivision (a) of Section 25284 for the underground
storage tank that is the subject of the claim within a reasonable
period, not to exceed one year, from when the claimant should have
become aware of the existence of the underground storage tank, or
when the applicable local agency began issuing permits pursuant to
Section 25284, whichever occurs later.
(C) All claimants who file their claim on or after January 1,
2008, and who do not obtain a permit required by subdivision (a) of
Section 25284 in accordance with subparagraph (A) or (B) may seek a
waiver of the requirement to obtain a permit. The board shall waive
the provisions of subparagraphs (A) and (B) as a condition for
payment from the fund if the board finds all of the following:
(i) The claimant was unaware of the permit requirement, and upon
becoming aware of the permit requirement, the claimant complies with
subdivision (a) of Section 25284 or Section 25298 and the regulations
adopted to implement those sections within a reasonable period, not
to exceed one year, from when the claimant became aware of the permit
requirement.
(ii) Prior to submittal of the application to the fund, the
claimant has complied with Section 25299.31 and has obtained and paid
for all permits currently required by this paragraph.
(iii) Prior to submittal of the application to the fund, the
claimant has paid all fees, interest, and penalties imposed pursuant
to Article 5 (commencing with Section 25299.40) of this chapter and
Part 26 (commencing with Section 50101) of Division 2 of the Revenue
and Taxation Code for the underground storage tank that is the
subject of the claim.
(D) (i) A claimant who is exempted pursuant to subparagraph (C)
and who has complied, on or before December 22, 1998, with
subdivision (a) of Section 25284 or Section 25298 and the regulations
adopted to implement those sections, shall obtain a level of
financial responsibility in an amount twice as great as the amount
that the claimant is otherwise required to obtain pursuant to
subdivision (a) of Section 25299.32, but in no event less than ten
thousand dollars ($10,000). All other claimants exempted pursuant to
subparagraph (C) shall obtain a level of financial responsibility
that is four times as great as the amount that the claimant is
otherwise required to obtain pursuant to subdivision (a) of Section
25299.32, but in no event less than twenty thousand dollars
($20,000).
(ii) The board may waive the requirements of clause (i) if the
claimant can demonstrate that the conditions specified in clauses (i)
to (iii), inclusive, of subparagraph (C) were satisfied prior to any
contamination having been caused. The demonstration may be made
through a certification issued by the permitting agency based on a
site evaluation and tank tests at the time of permit application or
in any other manner as may be acceptable to the board.
(E) All claimants who file a claim before January 1, 2008, and who
are not eligible for a waiver of the permit requirements pursuant to
applicable statutes or regulations in effect on the date of the
filing of the claim may resubmit a new claim pursuant to subparagraph
(C) on or after January 1, 2008. The board shall rank all claims
resubmitted pursuant to subparagraph (C) lower than all claims filed
before January 1, 2008, within their respective priority classes
specified in subdivision (b) of Section 25299.52.
(5) The claimant is required to undertake or contract for
corrective action pursuant to Section 25296.10, under the federal
act, or under Section 6973 of Title 42 of the United States Code, or,
as of January 1, 1988, the claimant has initiated corrective action
in accordance with Division 7 (commencing with Section 13000) of the
Water Code or Chapter 6.7 (commencing with Section 25280).
(6) The claimant has paid all fees, interest, and penalties
imposed pursuant to Article 5 (commencing with Section 29299.40) of
this chapter and Part 26 (commencing with Section 50101) of Division
2 of the Revenue and Taxation Code for the underground storage tank
that is the subject of the claim.
(c) A claimant may be reimbursed by the fund for compensation of
third parties for only the following:
(1) Medical expenses.
(2) Actual lost wages or business income.
(3) Actual expenses for remedial action to remedy the effects of
damage to the property of the third party caused by the unauthorized
release of petroleum from an underground storage tank.
(4) The fair market value of the property rendered permanently
unsuitable for use by the unauthorized release of petroleum from an
underground storage tank.
(d) The board shall pay a claim submitted by a person eligible to
submit a claim pursuant to subdivision (e) of Section 25299.54 for
the costs related to the compensation of third parties for bodily
injury and property damages that exceed the level of financial
responsibility required to be obtained pursuant to paragraph (2) of
subdivision (a) of Section 25299.32, but not more than one million
dollars ($1,000,000) for each occurrence.
SEC. 8. 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.
SEC. 9. The changes made by this act to Sections 25295, 25296.35,
25296.40, 25299.39.2, 25299.57, and 25299.58 of the Health and Safety
Code, shall only become operative if Assembly Bill 291 is chaptered
on or before January 1, 2012, and that bill relates to underground
storage tanks, and in that event, shall become operative on the date
Assembly Bill 291 is chaptered.
SEC. 10. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order to clarify as soon as possible existing oversight
authority regarding the remediation of releases from underground
storage tanks, thereby protecting public health and safety and the
environment, it is necessary that this act take effect immediately as
an urgency statute.
