UST Program - Statutes and Regulations
AB 2481 Assembly Bill - CHAPTERED
BILL NUMBER: AB 2481 CHAPTERED
BILL TEXT
CHAPTER 999
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2002
APPROVED BY GOVERNOR SEPTEMBER 27, 2002
PASSED THE ASSEMBLY AUGUST 30, 2002
PASSED THE SENATE AUGUST 29, 2002
AMENDED IN SENATE AUGUST 28, 2002
AMENDED IN SENATE AUGUST 22, 2002
AMENDED IN SENATE AUGUST 6, 2002
AMENDED IN SENATE AUGUST 5, 2002
AMENDED IN SENATE JUNE 11, 2002
AMENDED IN ASSEMBLY MAY 16, 2002
AMENDED IN ASSEMBLY APRIL 30, 2002
AMENDED IN ASSEMBLY APRIL 16, 2002
INTRODUCED BY Assembly Member Frommer
FEBRUARY 21, 2002
An act to amend Section 7058.7 of the Business and Professions
Code, to amend Section 2929.5 of the Civil Code, to amend Sections
564, 726.5, and 736 of the Code of Civil Procedure, to amend Sections
15399.15 and 15399.15.2 of the Government Code, to amend Sections
25150.1, 25187, 25262, 25281, 25281.5, 25284, 25284.1, 25284.4,
25288, 25291, 25292.4, 25297.1, 25299, 25299.4, 25299.7, 25299.36,
25299.39.2, 25299.39.3, 25299.50.1, 25299.51, 25299.53, 25299.54,
25299.55, 25299.57, 25299.58, 25299.70, 25514.5, 25540, and 33459 of,
to amend and renumber Sections 25299.37.1 and 25299.39.1 of, to
amend, repeal, and add Section 25404 of, to add Sections 25284.2,
25290.1, 25292.5, 25296.10, 25296.20, 25296.25, 25296.30, 25296.40,
25299.8, 25299.38, and 25404.1.1 to, and to add and repeal Sections
25404.1.2 and 116367 of, to repeal Sections 25299.37, 25299.37.2,
25299.38.1, 25299.39, and 25514.6 of, and to repeal and add Sections
25292.3 and 25395.44 of, the Health and Safety Code, and to amend
Sections 13269, 13285, 13323, 13365, and 13391.5 of the Water Code,
relating to the environment, and making an appropriation therefor.
LEGISLATIVE COUNSEL's DIGEST
AB 2481, Frommer. Underground storage tanks: unified program
agencies: Porter-Cologne Water Quality Control Act: administrative
civil penalties: drinking water: enforcement.
(1) Existing law generally regulates the storage of hazardous
substances in underground storage tanks and requires underground
storage tanks that are used to store hazardous substances and that
are installed after January 1, 1984, to meet certain requirements,
including that the primary containment be product tight and that the
tank's secondary containment meet specified standards. These
requirements are required to be implemented by the local agency.
Under existing law, with specified exceptions, no person may own or
operate an underground storage tank containing hazardous substances
unless a permit for its operation has been issued. Existing law
requires a permit issued for a petroleum underground storage tank
system that meets specified requirements to include an upgrade
compliance certificate and no person may deposit petroleum into an
underground storage tank system unless the underground storage tank
system meets those described requirements. A person depositing
petroleum into an underground storage tank system is required to
verify that the system meets those requirements by taking certain
actions, including viewing the upgrade compliance certificate.
Existing law defines the term "product tight," for purposes of
those requirements, as being impervious to the substance that is
contained, so as to prevent the seepage of the substance from the
primary containment and specifies that to be product tight, the tank
not be subject to physical or chemical deterioration by the substance
which it contains over the useful life of the tank. Existing law
requires all tank integrity tests conducted with regard to these
tanks to be performed by a tank tester with a valid tank testing
license. Existing law requires owners or operators of an underground
storage tank system with a single-walled component that is located
within 1,000 feet of a public drinking water well to implement a
program of enhanced leak detection or monitoring.
Under the existing Barry Keene Underground Storage Tank Cleanup
Trust Fund Act of 1989, owners and operators of petroleum underground
storage tanks are required to take corrective action to an
unauthorized release of petroleum, including requirements for the
preparation of a work plan. The act provides for the issuance of a
specified closure letter relative to the completion of an
investigation and corrective action for a petroleum underground
storage tank. The board is authorized to suspend corrective action
at a site, except for emergency sites.
This bill would revise and recast the provisions regulating the
storage of hazardous substances in underground storage tanks and
would make conforming changes in that regard. The bill would revise
the definition of "product tight" to delete the reference to seepage
from the primary containment and would delete the requirement that
the tank not be subject to physical or chemical deterioration over
the useful life of the tank. The bill would also define the term
"compatible" for purposes of that act. The bill would exclude
unburied fuel piping connected to an emergency generator tank, as
defined, from the definition of underground storage tank.
The bill would require the owner or operator of a single-walled
tank system to take appropriate actions if the results of an enhanced
leak detection test indicate that any component of the underground
storage tank system is leaking liquid or vapor, to correct the
leakage, and retest the system. The bill additionally would require
all other owners and operators of an underground storage tank system
that is located within 1,000 feet of a public drinking water well to
test the system once using enhanced leak detection before January 1,
2005, and if the results of the enhanced leak detection test indicate
that any component of the underground storage tank system is leaking
liquid or vapor, the owner or operator would be required to take
appropriate actions.
The bill would establish requirements for each underground storage
tank installed on or after July 1, 2003, including a requirement
that the system be tested utilizing a specified method when the tank
is installed. The bill would define "product tight," for purpose of
those requirements, to mean impervious to the liquid and vapor of the
substance that is contained.
The bill would delete the provisions requiring an upgraded
certificate of compliance and would instead authorize a local agency,
upon the discovery of a significant violation of any requirement
that poses an imminent threat to human health or safety, to affix a
red tag, in plain view, to the fill pipe of the noncompliant
underground storage tank system. The bill would also establish a
procedure for the issuance of a notice of significant violation by a
local agency and would allow a local agency to affix a red tag if the
owner or operator does not correct the violation, as specified. The
bill would prohibit any person from depositing petroleum into, and
would prohibit the owner or operator of a facility from depositing or
allowing the deposit of petroleum into, an underground storage tank
system that has a red tag affixed to its fill pipe. The bill would
require the owner or operator of an underground storage tank with a
specified spill containment structure to annually test the spill
containment structure to demonstrate that it is capable of containing
the substance until it is detected and cleaned up.
The bill would require a tank tester who conducts or supervises a
tank or piping integrity test to prepare a report detailing the
results of the tank test and to maintain a record of the report for
at least three years, in a specified manner.
The bill would expand the corrective action requirements and
related provisions for petroleum underground storage tanks to apply
those requirements to all underground storage tanks and would make
conforming changes. The bill would impose a civil penalty upon any
person who violates a corrective action requirement.
The bill would prohibit a person who purchases or acquires real
property on which an underground tank is located from being
reimbursed for a claim, except under specified conditions.
Since the bill would impose new requirements upon local agencies
with regard to the regulation of underground storage tanks, the bill
would impose a state-mandated local program.
(2) Existing law, until January 1, 2004, requires the Trade and
Commerce Agency to conduct a program to make loans to small
businesses to upgrade, replace, or remove petroleum underground
storage tanks to meet applicable local, state, or federal standards
and to take corrective actions, and to conduct a grant program to
assist small businesses to comply with the requirements regarding
petroleum underground storage tanks and tanks with single-walled
components that are located, as specified. Existing law specifies
eligibility requirements for grant applicants and provides that the
minimum amount of those grants is $3,000.
This bill would revise the requirements for issuance of a grant,
would increase the minimum amount of the grant to $10,000, and would
authorize the grant funds to be used for specified requirements
imposed by the bill.
(3) Under the Porter-Cologne Water Quality Control Act, the State
Water Resources Control Board and the California regional water
quality control boards are among the principal agencies with
authority over water quality. Under the act, persons discharging
waste are required to file with the appropriate regional board a
report of the discharge and the discharge is subject to waste
discharge requirements prescribed by that regional board. Under the
act, persons are prohibited from initiating a new discharge of waste,
or making any material changes in any discharge of waste, prior to
the filing of the waste discharge report, and after the filing of
that report unless waste discharge requirements have been prescribed
or, under certain circumstances, 120 days have elapsed since the
filing of that report. The act authorizes the regional boards to
waive these requirements as to a specific discharge or type of
discharge, for not more than 5 years, if the waiver is not against
the public interest. Under these provisions, a waiver that was in
effect on January 1, 2000, remains valid until January 1, 2003,
unless the regional board terminates the waiver.
This bill would instead provide that a waiver for onsite sewage
treatment systems that is in effect on January 1, 2002, shall remain
valid until June 30, 2004 unless the regional board terminates the
waiver prior to that date.
(4) Existing law authorizes the executive officer of a regional
board to issue a complaint for an administrative civil penalty under
the Porter-Cologne Water Quality Control Act. The act authorizes the
complaint to be served by personal notice or certified mail and
requires that a hearing be conducted before at least a 3-member panel
of the regional board not later than 60 days from the date the party
is served. The act requires that orders imposing administrative
civil liability be served by personal service or registered mail.
The act also authorizes the state board to issue administrative civil
liability for a violation of a waste discharge requirement.
This bill would revise the procedures for the service of a
complaint for that penalty and the conduct of a hearing by the state
board to instead require that the hearing before the regional board
be conducted not later than 90 days from the date the party is served
and would delete the requirement that the hearing be conducted
before a 3-member panel of the regional board. The bill would
instead authorize a complaint and an order to be served by certified
mail or in any manner in which a summons may be served. The bill
would require, in a proceeding before the state board to impose
administrative civil liability for a violation of a waste discharge
requirement, that the executive director of the state board issue the
complaint, and that a hearing be held within 90 days of the date the
party has been served.
(5) The existing Financial Assurance and Insurance for
Redevelopment Program (FAIR) requires the Secretary for Environmental
Protection to solicit proposals for a package of environmental
insurance products from insurance companies through a competitive
bidding process. The insurance company selected by the secretary is
required to offer a prenegotiated package of environmental insurance
products to any interested recipient of a loan under the Cleanup
Loans and Environmental Assistance to Neighborhoods (CLEAN) Program,
which provides loans to finance the performance of actions necessary
to respond to the release or threatened release of hazardous material
on an eligible property, and to any other person who conducts a
response action in the state. Existing law provides that if the
insurance company selected to provide prenegotiated environmental
insurance products under the FAIR program terminates its contract or
otherwise becomes unable to honor written policies, the FAIR program
does not require the state to honor those policies or to pay any
claims made on those policies.
This bill would, instead, provide immunity to the California
Environmental Protection Agency, the secretary, the state, their
respective employees and agents, and any of the state's other
political subdivisions or employees thereof, for acts or omissions in
implementing the FAIR program, the acts or omissions by an insurance
company selected under the FAIR program, and any acts or omissions
by any person that purchases a prenegotiated environmental insurance
product. The bill would specify that this immunity includes, but is
not limited to, immunity if the insurance company cancels, rescinds,
or otherwise terminates its contract with the secretary, fails, for
any reason, to compensate an insured for a loss covered by a policy,
or delays payment to an insured, or otherwise breaches a duty or
covenant. The bill also would provide that the agency, the
secretary, the state, their respective employees and agents, in
implementing the FAIR program, may not be construed to be an insurer,
an insurance agent, an insurance solicitor, or an insurance broker;
be construed to be transacting insurance; or be required to obtain a
license or other authorization pursuant to specified provisions
regulating insurance.
(6) Under the existing Barry Keene Underground Storage Tank
Cleanup Trust Fund Act of 1989, every owner of an underground storage
tank is required to pay a storage fee for each gallon of petroleum
placed in the tank. The fees are required to be deposited in the
Underground Storage Tank Cleanup Fund. The money in the fund may be
expended by the State Water Resources Control Board, upon
appropriation by the Legislature, for various purposes, including the
payment of claims, pursuant to a specified order of priority, to aid
owners and operators of petroleum underground storage tanks who take
corrective action to clean up unauthorized releases from those
tanks.
This bill would additionally authorize the money in the fund to be
expended to pay for expenditures by the board associated with
discovering violations of, and enforcing, or assisting in the
enforcement of, the requirements regulating petroleum underground
tanks.
(7) Existing law requires the Secretary for Environmental
Protection to adopt regulations and implement a unified hazardous
waste and hazardous materials management regulatory program. A city
or local agency that meets specified requirements is authorized to
apply to the secretary to implement the unified program, and every
county is required to apply to the secretary to be certified to
implement the unified program.
This bill would define the term "minor violation," for purposes of
the unified program, as the failure of a person to comply with any
requirement or condition of any applicable law, regulation, permit,
information request, order, variance, or other requirement, whether
procedural or substantive, of the unified program that the Unified
Program Agency (UPA) is authorized to implement or enforce pursuant
to the program, excluding certain types of violations. The bill
would repeal this definition on January 1, 2006.
This bill would authorize a unified program agency, if it
determines that a person has committed, or is committing, a violation
of any requirement that the UPA is authorized to enforce or
implement pursuant to the unified program, to issue an administrative
enforcement order requiring that the violation be corrected and
imposing an administrative penalty. The bill would specify
procedures for the conduct of a hearing, upon the request of a person
served with an order, pursuant to one of 2 specified hearing
processes, except under certain conditions. The bill would require,
if the Unified Program Agency conducts the hearing, that a decision
be issued by the Unified Program Agency within 60 days after the
hearing is conducted by the Unified Program Agency. The bill would
provide that an order issued by the Unified Program Agency setting a
penalty pursuant to the hearing by the Unified Program Agency is
final upon issuance.
This bill would require all administrative penalties collected
from actions brought by a UPA to be paid to the UPA that imposed the
penalty, and to deposit the penalties into a special account that
would be required to be expended to fund the activities of the UPA in
enforcing the unified program.
This bill would require an authorized representative of the UPA,
who, in the course of conducting an inspection, detects a minor
violation, to issue a notice to comply detailing the violation,
thereby imposing a state-mandated local program by imposing new
duties upon local agencies. The bill would require a person who
receives a notice to comply to take specified actions within 30 days
from the date of the notice and would provide that a false
certification that a violation has been corrected is punishable as a
misdemeanor, thereby imposing a state-mandated local program by
creating a new crime. The bill would provide that a notice to comply
is the only means by which a UPA may cite a minor violation.
The bill would repeal the provision requiring the enforcement of
minor violations in this manner on January 1, 2006.
(8) Existing law requires businesses that handle hazardous
materials to prepare a business plan and submit an annual inventory
form to the administering agency. Existing law specifies procedures
for the imposition of civil and administrative penalties for a
violation of those provisions and requires the civil penalties
collected to be apportioned in a specified manner, including $200 for
deposit in the Hazardous Materials Enforcement and Training Account,
75% to the administering agency, to reimburse specified local
agencies for expenses, and 25% to the principal agency that assisted
the administering agency. Existing law provides for the imposition
of civil penalties upon stationary sources with regard to the program
to prevent accidental releases of regulated substances.
This bill would require the issuance of an enforcement order or
the imposition of an administrative penalty by an administering
agency to instead be conducted using the procedures established by
the bill. The bill would also repeal those provisions requiring the
apportionment of the civil penalty. The bill would require the
issuance of enforcement orders or administrative penalties for a
violation of the accidental release prevention program to be
conducted using the procedures established by the bill.
(9) Existing law provides that the repeal of the Drinking Water
Treatment and Research Fund on January 1, 2002, did not terminate any
rights, obligations or authorities, or any provisions necessary to
carry out these rights or obligations and the filing and payment of
claims in the fund, until the moneys in the fund are exhausted.
Existing law requires the State Water Resources Control Board to
annually transfer $5,000,000 from the Underground Storage Tank
Cleanup Fund to the Drinking Water Treatment and Research Fund to be
expended for specified purposes when a public drinking water well has
been contaminated by an oxygenate and there is substantial evidence
that a release has occurred from an underground storage tank.
This bill would reestablish the Drinking Water Treatment and
Research Fund in the State Treasury and would continuously
appropriate the money in the fund to the State Department of Health
Services to make payments to public water systems for the costs of
treating contaminated groundwater and surface water for drinking
water purposes, investigating contamination, and acquiring alternate
drinking water supplies. The bill would also authorize the
department to expend not more than $1,000,000 for research into
treatment technologies and to pay the department's administrative
costs, as specified. The bill would allow the department to make
payments for treatment, investigation, or alternative water supplies
without requiring the public water system to first incur
expenditures, if the department makes a specified determination. The
bill would also specify that these payments for treatment,
investigation, or providing alternative water supplies may be made
without regard to when the contamination occurred and would require
the department, when evaluating these claims submitted for payment,
to consider the findings of a specified report. The bill would
provide for the repeal of the Drinking Water Treatment and Research
Fund, except for specified rights and obligations, on January 1,
2010.
The bill would require a public water system that determines that
an oxygenate is detected at any level in groundwater supplies
utilized by the public water system for drinking water purposes to
notify the State Department of Health Services and a California
regional water quality control board. The state department or a
regional board would be required to determine whether to shut down or
curtail the use of a well within 30 days following receipt of this
notification from a public water system.
(10) 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 specified reasons.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7058.7 of the Business and Professions Code is
amended to read:
7058.7. (a) No contractor may engage in a removal or remedial
action, as defined in subdivision (d), unless the qualifier for the
license has passed an approved hazardous substance certification
examination.
(b) (1) The Contractors\' State License Board, the Division of
Occupational Safety and Health of the Department of Industrial
Relations, and the Department of Toxic Substances Control shall
jointly select an advisory committee, which shall be composed of two
representatives of hazardous substance removal workers in California,
two general engineering contractors in California, and two
representatives of insurance companies in California who shall be
selected by the Insurance Commissioner.
(2) The Contractors\' State License Board shall develop a written
test for the certification of contractors engaged in hazardous
substance removal or remedial action, in consultation with the
Division of Occupational Safety and Health, the State Water Resources
Control Board, the Department of Toxic Substances Control, and the
advisory committee.
(c) The Contractors\' State License Board may require additional
updated approved hazardous substance certification examinations of
licensees currently certified based on new public or occupational
health and safety information. The Contractors\' State License Board,
in consultation with the Department of Toxic Substances Control and
the State Water Resources Control Board, shall approve other initial
and updated hazardous substance certification examinations and
determine whether to require an updated certification examination of
all current certificate holders.
(d) For purposes of this section "removal or remedial action" has
the same meaning as found in Chapter 6.8 (commencing with Section
25300) of Division 20 of the Health and Safety Code, if the action
requires the contractor to dig into the surface of the earth and
remove the dug material and the action is at a site listed pursuant
to Section 25356 of the Health and Safety Code or any other site
listed as a hazardous substance release site by the Department of
Toxic Substances Control or a site listed on the National Priorities
List compiled pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. Sec. 9601 et
seq.). "Removal or remedial action" does not include
asbestos-related work, as defined in Section 6501.8 of the Labor
Code, or work related to a hazardous substance spill on a highway.
(e) (1) A contractor may not install or remove an underground
storage tank, unless the contractor has passed the hazardous
substance certification examination developed pursuant to this
section.
(2) A contractor who is not certified may bid on or contract for
the installation or removal of an underground tank, if the work is
performed by a contractor who is certified pursuant to this section.
(3) For purposes of this subdivision, "underground storage tank"
has the same meaning as defined in subdivision (y) of Section 25281
of the Health and Safety Code.
SEC. 2. Section 2929.5 of the Civil Code is amended to read:
2929.5. (a) A secured lender may enter and inspect the real
property security for the purpose of determining the existence,
location, nature, and magnitude of any past or present release or
threatened release of any hazardous substance into, onto, beneath, or
from the real property security on either of the following:
(1) Upon reasonable belief of the existence of a past or present
release or threatened release of any hazardous substance into, onto,
beneath, or from the real property security not previously disclosed
in writing to the secured lender in conjunction with the making,
renewal, or modification of a loan, extension of credit, guaranty, or
other obligation involving the borrower.
(2) After the commencement of nonjudicial or judicial foreclosure
proceedings against the real property security.
(b) The secured lender shall not abuse the right of entry and
inspection or use it to harass the borrower or tenant of the
property. Except in case of an emergency, when the borrower or
tenant of the property has abandoned the premises, or if it is
impracticable to do so, the secured lender shall give the borrower or
tenant of the property reasonable notice of the secured lender's
intent to enter, and enter only during the borrower's or tenant's
normal business hours. Twenty-four hours\' notice shall be presumed
to be reasonable notice in the absence of evidence to the contrary.
(c) The secured lender shall reimburse the borrower for the cost
of repair of any physical injury to the real property security caused
by the entry and inspection.
(d) If a secured lender is refused the right of entry and
inspection by the borrower or tenant of the property, or is otherwise
unable to enter and inspect the property without a breach of the
peace, the secured lender may, upon petition, obtain an order from a
court of competent jurisdiction to exercise the secured lender's
rights under subdivision (a), and that action shall not constitute an
action within the meaning of subdivision (a) of Section 726 of the
Code of Civil Procedure.
(e) For purposes of this section:
(1) "Borrower" means the trustor under a deed of trust, or a
mortgagor under a mortgage, where the deed of trust or mortgage
encumbers real property security and secures the performance of the
trustor or mortgagor under a loan, extension of credit, guaranty, or
other obligation. The term includes any successor-in-interest of the
trustor or mortgagor to the real property security before the deed
of trust or mortgage has been discharged, reconveyed, or foreclosed
upon.
(2) "Hazardous substance" includes all of the following:
(A) Any "hazardous substance" as defined in subdivision (h) of
Section 25281 of the Health and Safety Code.
(B) Any "waste" as defined in subdivision (d) of Section 13050 of
the Water Code.
(C) Petroleum, including crude oil or any fraction thereof,
natural gas, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel, or any mixture thereof.
(3) "Real property security" means any real property and
improvements, other than a separate interest and any related interest
in the common area of a residential common interest development, as
the terms "separate interest," "common area," and "common interest
development" are defined in Section 1351, or real property consisting
of one acre or less which contains 1 to 15 dwelling units.
(4) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment, including continuing
migration, of hazardous substances into, onto, or through soil,
surface water, or groundwater.
(5) "Secured lender" means the beneficiary under a deed of trust
against the real property security, or the mortgagee under a mortgage
against the real property security, and any successor-in-interest of
the beneficiary or mortgagee to the deed of trust or mortgage.
SEC. 3. Section 564 of the Code of Civil Procedure is amended to
read:
564. (a) A receiver may be appointed, in the manner provided in
this chapter, by the court in which an action or proceeding is
pending in any case in which the court is empowered by law to appoint
a receiver.
(b) A receiver may be appointed by the court in which an action or
proceeding is pending, or by a judge thereof, in the following
cases:
(1) In an action by a vendor to vacate a fraudulent purchase of
property, or by a creditor to subject any property or fund to the
creditor's claim, or between partners or others jointly owning or
interested in any property or fund, on the application of the
plaintiff, or of any party whose right to or interest in the property
or fund, or the proceeds thereof, is probable, and where it is shown
that the property or fund is in danger of being lost, removed, or
materially injured.
(2) In an action by a secured lender for the foreclosure of a deed
of trust or mortgage and sale of property upon which there is a lien
under a deed of trust or mortgage, where it appears that the
property is in danger of being lost, removed, or materially injured,
or that the condition of the deed of trust or mortgage has not been
performed, and that the property is probably insufficient to
discharge the deed of trust or mortgage debt.
(3) After judgment, to carry the judgment into effect.
(4) After judgment, to dispose of the property according to the
judgment, or to preserve it during the pendency of an appeal, or
pursuant to the Enforcement of Judgments Law (Title 9 (commencing
with Section 680.010)), or after sale of real property pursuant to a
decree of foreclosure, during the redemption period, to collect,
expend, and disburse rents as directed by the court or otherwise
provided by law.
(5) Where a corporation has been dissolved, as provided in Section
565.
(6) Where a corporation is insolvent, or in imminent danger of
insolvency, or has forfeited its corporate rights.
(7) In an action of unlawful detainer.
(8) At the request of the Public Utilities Commission pursuant to
Section 855 or 5259.5 of the Public Utilities Code.
(9) In all other cases where necessary to preserve the property or
rights of any party.
(10) At the request of the Office of Statewide Health Planning and
Development, or the Attorney General, pursuant to Section 129173 of
the Health and Safety Code.
(11) In an action by a secured lender for specific performance of
an assignment of rents provision in a deed of trust, mortgage, or
separate assignment document. The appointment may be continued after
entry of a judgment for specific performance if appropriate to
protect, operate, or maintain real property encumbered by a deed of
trust or mortgage or to collect rents therefrom while a pending
nonjudicial foreclosure under power of sale in a deed of trust or
mortgage is being completed.
(12) In a case brought by an assignee under an assignment of
leases, rents, issues, or profits pursuant to subdivision (g) of
Section 2938 of the Civil Code.
(c) A receiver may be appointed, in the manner provided in this
chapter, including, but not limited to, Section 566, by the superior
court in an action brought by a secured lender to enforce the rights
provided in Section 2929.5 of the Civil Code, to enable the secured
lender to enter and inspect the real property security for the
purpose of determining the existence, location, nature, and magnitude
of any past or present release or threatened release of any
hazardous substance into, onto, beneath, or from the real property
security. The secured lender shall not abuse the right of entry and
inspection or use it to harass the borrower or tenant of the
property. Except in case of an emergency, when the borrower or
tenant of the property has abandoned the premises, or if it is
impracticable to do so, the secured lender shall give the borrower or
tenant of the property reasonable notice of the secured lender's
intent to enter and shall enter only during the borrower's or tenant\'
s normal business hours. Twenty-four hours\' notice shall be presumed
to be reasonable notice in the absence of evidence to the contrary.
(d) Any action by a secured lender to appoint a receiver pursuant
to this section shall not constitute an action within the meaning of
subdivision (a) of Section 726.
(e) For purposes of this section:
(1) "Borrower" means the trustor under a deed of trust, or a
mortgagor under a mortgage, where the deed of trust or mortgage
encumbers real property security and secures the performance of the
trustor or mortgagor under a loan, extension of credit, guaranty, or
other obligation. The term includes any successor in interest of the
trustor or mortgagor to the real property security before the deed
of trust or mortgage has been discharged, reconveyed, or foreclosed
upon.
(2) "Hazardous substance" means any of the following:
(A) Any "hazardous substance" as defined in subdivision (h) of
Section 25281 of the Health and Safety Code.
(B) Any "waste" as defined in subdivision (d) of Section 13050 of
the Water Code.
(C) Petroleum including crude oil or any fraction thereof, natural
gas, natural gas liquids, liquefied natural gas, or synthetic gas
usable for fuel, or any mixture thereof.
(3) "Real property security" means any real property and
improvements, other than a separate interest and any related interest
in the common area of a residential common interest development, as
the terms "separate interest," "common area," and "common interest
development" are defined in Section 1351 of the Civil Code, or real
property consisting of one acre or less that contains 1 to 15
dwelling units.
(4) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment, including continuing
migration, of hazardous substances into, onto, or through soil,
surface water, or groundwater.
(5) "Secured lender" means the beneficiary under a deed of trust
against the real property security, or the mortgagee under a mortgage
against the real property security, and any successor in interest of
the beneficiary or mortgagee to the deed of trust or mortgage.
SEC. 4. Section 726.5 of the Code of Civil Procedure is amended to
read:
726.5. (a) Notwithstanding subdivision (a) of Section 726 or any
other provision of law, except subdivision (d) of this section, a
secured lender may elect between the following where the real
property security is environmentally impaired and the borrower's
obligations to the secured lender are in default:
(1) (A) Waiver of its lien against (i) any parcel of real property
security that is environmentally impaired or is an affected parcel,
and (ii) all or any portion of the fixtures and personal property
attached to the parcels; and
(B) Exercise of (i) the rights and remedies of an unsecured
creditor, including reduction of its claim against the borrower to
judgment, and (ii) any other rights and remedies permitted by law.
(2) Exercise of (i) the rights and remedies of a creditor secured
by a deed of trust or mortgage and, if applicable, a lien against
fixtures or personal property attached to the real property security,
and (ii) any other rights and remedies permitted by law.
(b) Before the secured lender may waive its lien against any
parcel of real property security pursuant to paragraph (1) of
subdivision (a) on the basis of the environmental impairment
contemplated by paragraph (3) of subdivision (e), (i) the secured
lender shall provide written notice of the default to the borrower,
and (ii) the value of the subject real property security shall be
established and its environmentally impaired status shall be
confirmed by an order of a court of competent jurisdiction in an
action brought by the secured lender against the borrower. The
complaint for a valuation and confirmation action may include causes
of action for a money judgment for all or part of the secured
obligation, in which case the waiver of the secured lender's liens
under paragraph (1) of subdivision (a) shall result only if and when
a final money judgment is obtained against the borrower.
(c) If a secured lender elects the rights and remedies permitted
by paragraph (1) of subdivision (a) and the borrower's obligations
are also secured by other real property security, fixtures, or
personal property, the secured lender shall first foreclose against
the additional collateral to the extent required by applicable law in
which case the amount of the judgment of the secured lender pursuant
to paragraph (1) of subdivision (a) shall be limited to the extent
Section 580a or 580d, or subdivision (b) of Section 726 apply to the
foreclosures of additional real property security. The borrower may
waive or modify the foreclosure requirements of this subdivision
provided that the waiver or modification is in writing and signed by
the borrower after default.
(d) Subdivision (a) shall be inapplicable if all of the following
are true:
(1) The release or threatened release was not knowingly or
negligently caused or contributed to, or knowingly or willfully
permitted or acquiesced to, by any of the following:
(A) The borrower or any related party.
(B) Any affiliate or agent of the borrower or any related party.
(2) In conjunction with the making, renewal, or modification of
the loan, extension of credit, guaranty, or other obligation secured
by the real property security, neither the borrower, any related
party, nor any affiliate or agent of either the borrower or any
related party had actual knowledge or notice of the release or
threatened release, or if a person had knowledge or notice of the
release or threatened release, the borrower made written disclosure
thereof to the secured lender after the secured lender's written
request for information concerning the environmental condition of the
real property security, or the secured lender otherwise obtained
actual knowledge thereof, prior to the making, renewal, or
modification of the obligation.
(e) For purposes of this section:
(1) "Affected parcel" means any portion of a parcel of real
property security that is (A) contiguous to the environmentally
impaired parcel, even if separated by roads, streets, utility
easements, or railroad rights-of-way, (B) part of an approved or
proposed subdivision within the meaning of Section 66424 of the
Government Code, of which the environmentally impaired parcel is also
a part, or (C) within 2,000 feet of the environmentally impaired
parcel.
(2) "Borrower" means the trustor under a deed of trust, or a
mortgagor under a mortgage, where the deed of trust or mortgage
encumbers real property security and secures the performance of the
trustor or mortgagor under a loan, extension of credit, guaranty, or
other obligation. The term includes any successor-in-interest of the
trustor or mortgagor to the real property security before the deed
of trust or mortgage has been discharged, reconveyed, or foreclosed
upon.
(3) "Environmentally impaired" means that the estimated costs to
clean up and remediate a past or present release or threatened
release of any hazardous substance into, onto, beneath, or from the
real property security, not disclosed in writing to, or otherwise
actually known by, the secured lender prior to the making of the loan
or extension of credit secured by the real property security,
exceeds 25 percent of the higher of the aggregate fair market value
of all security for the loan or extension of credit (A) at the time
of the making of the loan or extension of credit, or (B) at the time
of the discovery of the release or threatened release by the secured
lender. For the purposes of this definition, the estimated cost to
clean up and remediate the contamination caused by the release or
threatened release shall include only those costs that would be
incurred reasonably and in good faith, and fair market value shall be
determined without giving consideration to the release or threatened
release, and shall be exclusive of the amount of all liens and
encumbrances against the security that are senior in priority to the
lien of the secured lender. Notwithstanding the foregoing, the real
property security for any loan or extension of credit secured by a
single parcel of real property which is included in the National
Priorities List pursuant to Section 9605 of Title 42 of the United
States Code, or in any list published by the Department of Toxic
Substances Control pursuant to subdivision (b) of Section 25356 of
the Health and Safety Code, shall be deemed to be environmentally
impaired.
(4) "Hazardous substance" means any of the following:
(A) Any "hazardous substance" as defined in subdivision (h) of
Section 25281 of the Health and Safety Code.
(B) Any "waste" as defined in subdivision (d) of Section 13050 of
the Water Code.
(C) Petroleum, including crude oil or any fraction thereof,
natural gas, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel, or any mixture thereof.
(5) "Real property security" means any real property and
improvements, other than a separate interest and any related interest
in the common area of a residential common interest development, as
the terms "separate interest," "common area," and "common interest
development" are defined in Section 1351 of the Civil Code, or real
property which contains only 1 to 15 dwelling units, which in either
case (A) is solely used (i) for residential purposes, or (ii) if
reasonably contemplated by the parties to the deed of trust or
mortgage, for residential purposes as well as limited agricultural or
commercial purposes incidental thereto, and (B) is the subject of an
issued certificate of occupancy unless the dwelling is to be owned
and occupied by the borrower.
(6) "Related party" means any person who shares an ownership
interest with the borrower in the real property security, or is a
partner or joint venturer with the borrower in a partnership or joint
venture, the business of which includes the acquisition,
development, use, lease, or sale of the real property security.
(7) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment, including continuing
migration, of hazardous substances into, onto, or through soil,
surface water, or groundwater. The term does not include actions
directly relating to the incorporation in a lawful manner of building
materials into a permanent improvement to the real property
security.
(8) "Secured lender" means the beneficiary under a deed of trust
against the real property security, or the mortgagee under a mortgage
against the real property security, and any successor-in-interest of
the beneficiary or mortgagee to the deed of trust or mortgage.
(f) This section shall not be construed to invalidate or otherwise
affect in any manner any rights or obligations arising under
contract in connection with a loan or extension of credit, including,
without limitation, provisions limiting recourse.
(g) This section shall only apply to loans, extensions of credit,
guaranties, or other obligations secured by real property security
made, renewed, or modified on or after January 1, 1992.
SEC. 5. Section 736 of the Code of Civil Procedure is amended to
read:
736. (a) Notwithstanding any other provision of law, a secured
lender may bring an action for breach of contract against a borrower
for breach of any environmental provision made by the borrower
relating to the real property security, for the recovery of damages,
and for the enforcement of the environmental provision, and that
action or failure to foreclose first against collateral shall not
constitute an action within the meaning of subdivision (a) of Section
726, or constitute a money judgment for a deficiency or a deficiency
judgment within the meaning of Section 580a, 580b, or 580d, or
subdivision (b) of Section 726. No injunction for the enforcement of
an environmental provision may be issued after (1) the obligation
secured by the real property security has been fully satisfied, or
(2) all of the borrower's rights, title, and interest in and to the
real property security has been transferred in a bona fide
transaction to an unaffiliated third party for fair value.
(b) The damages a secured lender may recover pursuant to
subdivision (a) shall be limited to reimbursement or indemnification
of the following:
(1) If not pursuant to an order of any federal, state, or local
governmental agency relating to the cleanup, remediation, or other
response action required by applicable law, those costs relating to a
reasonable and good faith cleanup, remediation, or other response
action concerning a release or threatened release of hazardous
substances which is anticipated by the environmental provision.
(2) If pursuant to an order of any federal, state, or local
governmental agency relating to the cleanup, remediation, or other
response action required by applicable law which is anticipated by
the environmental provision, all amounts reasonably advanced in good
faith by the secured lender in connection therewith, provided that
the secured lender negotiated, or attempted to negotiate, in good
faith to minimize the amounts it was required to advance under the
order.
(3) Indemnification against all liabilities of the secured lender
to any third party relating to the breach and not arising from acts,
omissions, or other conduct which occur after the borrower is no
longer an owner or operator of the real property security, and
provided the secured lender is not responsible for the
environmentally impaired condition of the real property security in
accordance with the standards set forth in subdivision (d) of Section
726.5. For purposes of this paragraph, the term "owner or operator"
means those persons described in Section 101(20)(A) of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. Sec. 9601, et seq.).
(4) Attorneys\' fees and costs incurred by the secured lender
relating to the breach.
The damages a secured lender may recover pursuant to subdivision
(a) shall not include (i) any part of the principal amount or accrued
interest of the secured obligation, except for any amounts advanced
by the secured lender to cure or mitigate the breach of the
environmental provision that are added to the principal amount, and
contractual interest thereon, or (ii) amounts which relate to a
release which was knowingly permitted, caused, or contributed to by
the secured lender or any affiliate or agent of the secured lender.
(c) A secured lender may not recover damages against a borrower
pursuant to subdivision (a) for amounts advanced or obligations
incurred for the cleanup or other remediation of real property
security, and related attorneys\' fees and costs, if all of the
following are true:
(1) The original principal amount of, or commitment for, the loan
or other obligation secured by the real property security did not
exceed two hundred thousand dollars ($200,000).
(2) In conjunction with the secured lender's acceptance of the
environmental provision, the secured lender agreed in writing to
accept the real property security on the basis of a completed
environmental site assessment and other relevant information from the
borrower.
(3)
The borrower did not permit, cause, or contribute to the release or
threatened release.
(4) The deed of trust or mortgage covering the real property
security has not been discharged, reconveyed, or foreclosed upon.
(d) This section is not intended to establish, abrogate, modify,
limit, or otherwise affect any cause of action other than that
provided by subdivision (a) that a secured lender may have against a
borrower under an environmental provision.
(e) This section shall apply only to environmental provisions
contracted in conjunction with loans, extensions of credit,
guaranties, or other obligations made, renewed, or modified on or
after January 1, 1992. Notwithstanding the foregoing, this section
shall not be construed to validate, invalidate, or otherwise affect
in any manner the rights and obligations of the parties to, or the
enforcement of, environmental provisions contracted before January 1,
1992.
(f) For purposes of this section:
(1) "Borrower" means the trustor under a deed of trust, or a
mortgagor under a mortgage, where the deed of trust or mortgage
encumbers real property security and secures the performance of the
trustor or mortgagor under a loan, extension of credit, guaranty, or
other obligation. The term includes any successor-in-interest of the
trustor or mortgagor to the real property security before the deed
of trust or mortgage has been discharged, reconveyed, or foreclosed
upon.
(2) "Environmental provision" means any written representation,
warranty, indemnity, promise, or covenant relating to the existence,
location, nature, use, generation, manufacture, storage, disposal,
handling, or past, present, or future release or threatened release,
of any hazardous substance into, onto, beneath, or from the real
property security, or to past, present, or future compliance with any
law relating thereto, made by a borrower in conjunction with the
making, renewal, or modification of a loan, extension of credit,
guaranty, or other obligation involving the borrower, whether or not
the representation, warranty, indemnity, promise, or covenant is or
was contained in or secured by the deed of trust or mortgage, and
whether or not the deed of trust or mortgage has been discharged,
reconveyed, or foreclosed upon.
(3) "Hazardous substance" means any of the following:
(A) Any "hazardous substance" as defined in subdivision (h) of
Section 25281 of the Health and Safety Code.
(B) Any "waste" as defined in subdivision (d) of Section 13050 of
the Water Code.
(C) Petroleum, including crude oil or any fraction thereof,
natural gas, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel, or any mixture thereof.
(4) "Real property security" means any real property and
improvements, other than a separate interest and any related interest
in the common area of a residential common interest development, as
the terms "separate interest," "common area," and "common interest
development" are defined in Section 1351 of the Civil Code, or real
property which contains only 1 to 15 dwelling units, which in either
case (A) is solely used (i) for residential purposes, or (ii) if
reasonably contemplated by the parties to the deed of trust or
mortgage, for residential purposes as well as limited agricultural or
commercial purposes incidental thereto, and (B) is the subject of an
issued certificate of occupancy unless the dwelling is to be owned
and occupied by the borrower.
(5) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment, including continuing
migration, of hazardous substances into, onto, or through soil,
surface water, or groundwater. The term does not include actions
directly relating to the incorporation in a lawful manner of building
materials into a permanent improvement to the real property
security.
(6) "Secured lender" means the beneficiary under a deed of trust
against the real property security, or the mortgagee under a mortgage
against the real property security, and any successor-in-interest of
the beneficiary or mortgagee to the deed of trust or mortgage.
SEC. 6. Section 15399.15 of the Government Code is amended to
read:
15399.15. (a) The agency shall make grant funds available from
the Petroleum Underground Storage Tank Financing Account to eligible
grant applicants who meet all of the following eligibility
requirements:
(1) The grant applicant is a small business, pursuant to the
following requirements:
(A) The grant applicant meets the conditions for a small business
as defined in Section 632 of Title 15 of the United States Code, and
in the federal regulations adopted to implement that section, as
specified in Part 121 (commencing with Section 121.101) of Chapter I
of Title 13 of the Code of Federal Regulations.
(B) The grant applicant employs fewer than 20 full-time and
part-time employees, is independently owned and operated, and is not
dominant in its field of operation.
(2) The principal office of the grant applicant is domiciled in
the state, and the officers of the grant applicant are domiciled in
this state.
(3) The grant applicant, the applicant's family, or an affiliated
entity, has owned or operated the project tank since January 1, 1997.
(4) All tanks owned and operated by the grant applicant are
subject to compliance with Chapter 6.7 (commencing with Section
25280) of Division 20 of the Health and Safety Code, and the
regulations adopted pursuant to that chapter.
(5) The facility where the project tank is located has sold at
retail less than 900,000 gallons of gasoline annually for each of the
two years preceding the submission of the grant application. The
numbers of gallons sold shall be based upon taxable sales figures
provided to the State Board of Equalization for that facility.
(6) The grant applicant owns or operates a tank that is in
compliance with Section 25290.1 or 25291 of the Health and Safety
Code, or subdivisions (d) and (e) of Section 25292 of the Health and
Safety Code, and the regulations adopted to implement those sections.
(7) The facility where the project tank is located was legally in
business retailing gasoline after January 1, 1999.
(b) Grant funds may only be used to pay the costs necessary to
comply with the requirements of Section 25284.1, 25292.4, or 25292.5
of the Health and Safety Code.
(c) If the total amount of grant requests by eligible grant
applicants to the agency pursuant to this section exceed, or are
anticipated to exceed, the amount in the Petroleum Underground
Storage Tank Financing Account, the agency may adopt a priority
ranking list to award grants based upon the level of demonstrated
financial hardship of the eligible grant applicant, or the relative
impact upon the local community where the project tank is located if
the claim is denied.
SEC. 7. Section 15399.15.2 of the Government Code is amended to
read:
15399.15.2. (a) The minimum amount that the agency may grant an
applicant is three thousand dollars ($3,000), and the maximum amount
that the agency may grant an applicant is fifty thousand dollars
($50,000).
(b) Grant funds may be used to finance up to 100 percent of the
costs necessary to comply with Sections 25284.1, 25292.4, and 25292.5
of the Health and Safety Code. No person or entity is eligible to
receive more than fifty thousand dollars ($50,000) in grant funds
pursuant to this chapter.
SEC. 8. Section 25150.1 of the Health and Safety Code is amended
to read:
25150.1. The requirements in Sections 25290.1, 25291, and 25292
apply to the construction, operation, maintenance, monitoring, and
testing of underground storage tanks, as defined in subdivision (y)
of Section 25281, that are required to obtain hazardous waste
facilities permits from the department. The department shall adopt
regulations implementing the requirements of Sections 25290.1, 25291,
and 25292, for regulating the construction, operation, maintenance,
monitoring, and testing of underground storage tanks used for the
storage of hazardous wastes that are necessary to protect against
hazards to the public health, domestic livestock, wildlife, or the
environment.
SEC. 9. Section 25187 of the Health and Safety Code is amended to
read:
25187. (a) (1) The department or a unified program agency, in
accordance with subdivision (l), may issue an order requiring that
the violation be corrected and imposing an administrative penalty,
for any violation of this chapter or any permit, rule, regulation,
standard, or requirement issued or adopted pursuant to this chapter,
whenever the department or Unified Program Agency determines that a
person has violated, is in violation of, or threatens, as defined in
subdivision (e) of Section 13304 of the Water Code, to violate, this
chapter or Chapter 6.8 (commencing with Section 25300), or any
permit, rule, regulation, standard, or requirement issued or adopted
pursuant to this chapter or Chapter 6.8 (commencing with Section
25300).
(2) In an order proposing a penalty pursuant to this section, the
department or Unified Program Agency shall take into consideration
the nature, circumstances, extent, and gravity of the violation, the
violator's past and present efforts to prevent, abate, or clean up
conditions posing a threat to the public health or safety or the
environment, the violator's ability to pay the proposed penalty, and
the prophylactic effect that the imposition of the proposed penalty
would have on both the violator and the regulated community as a
whole.
(b) The department or a unified program agency, in accordance with
subdivision (l), may issue an order requiring corrective action
whenever the department or Unified Program Agency determines that
there is or has been a release, as defined in Chapter 6.8 (commencing
with Section 25300), of hazardous waste or constituents into the
environment from a hazardous waste facility.
(1) In the case of a release of hazardous waste or constituents
into the environment from a hazardous waste facility that is required
to obtain a permit pursuant to Article 9 (commencing with Section
25200), the department shall pursue the remedies available under this
chapter, including the issuance of an order for corrective action
pursuant to this section, before using the legal remedies available
pursuant to Chapter 6.8 (commencing with Section 25300), except in
any of the following circumstances:
(A) Where the person who is responsible for the release
voluntarily requests in writing that the department issue an order to
that person to take corrective action pursuant to Chapter 6.8
(commencing with Section 25300).
(B) Where the person who is responsible for the release is unable
to pay for the cost of corrective action to address the release. For
purposes of this subparagraph, the inability of a person to pay for
the cost of corrective action shall be determined in accordance with
the policies of the Environmental Protection Agency for the
implementation of Section 9605 of Title 42 of the United States Code.
(C) Where the person responsible for the release is unwilling to
perform corrective action to address the release. For purposes of
this subparagraph, the unwillingness of a person to take corrective
action shall be determined in accordance with the policies of the
Environmental Protection Agency for the implementation of Section
9605 of Title 42 of the United States Code.
(D) Where the release is part of a regional or multisite
groundwater contamination problem that cannot, in its entirety, be
addressed using the legal remedies available pursuant to this chapter
and for which other releases that are part of the regional or
multisite groundwater contamination problem are being addressed using
the legal remedies available pursuant to Chapter 6.8 (commencing
with Section 25300).
(E) Where an order for corrective action has already been issued
against the person responsible for the release, or the department and
the person responsible for the release have, prior to January 1,
1996, entered into an agreement to address the required cleanup of
the release pursuant to Chapter 6.8 (commencing with Section 25300).
(F) Where the hazardous waste facility is owned or operated by the
federal government.
(2) The order shall include a requirement that the person take
corrective action with respect to the release of hazardous waste or
constituents, abate the effects thereof, and take any other necessary
remedial action.
(3) If the order requires corrective action at a hazardous waste
facility, the order shall require that corrective action be taken
beyond the facility boundary, where necessary to protect human health
or the environment.
(4) The order shall incorporate, as a condition of the order, any
applicable waste discharge requirements issued by the State Water
Resources Control Board or a California regional water quality
control board, and shall be consistent with 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 and 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 existing at the time of
the issuance of the order, to the extent that the department or
Unified Program Agency determines that those plans and policies are
not less stringent than this chapter and regulations adopted pursuant
to this chapter. The order may include any more stringent
requirement that the department or Unified Program Agency determines
is necessary or appropriate to protect water quality.
(5) Persons who are subject to an order pursuant to this
subdivision include present and prior owners, lessees, or operators
of the property where the hazardous waste is located, present or past
generators, storers, treaters, transporters, disposers, and handlers
of hazardous waste, and persons who arrange, or have arranged, by
contract or other agreement, to store, treat, transport, dispose of,
or otherwise handle hazardous waste.
(6) For purposes of this subdivision, "hazardous waste facility"
includes the entire site that is under the control of an owner or
operator engaged in the management of hazardous waste.
(c) Any order issued pursuant to this section shall be served by
personal service or certified mail and shall inform the person so
served of the right to a hearing. If the Unified Program Agency
issues the order pursuant to this section, the order shall state
whether the hearing procedure specified in paragraph (2) of
subdivision (f) may be requested by the person receiving the order.
(d) Any person served with an order pursuant to this section who
has been unable to resolve any violation or deficiency on an informal
basis with the department or Unified Program Agency may, within 15
days after service of the order, request a hearing pursuant to
subdivision (e) or (f) by filing with the department or Unified
Program Agency a notice of defense. The notice shall be filed with
the office that issued the order. A notice of defense shall be
deemed filed within the 15-day period provided by this subdivision if
it is postmarked within that 15-day period. If no notice of defense
is filed within the time limits provided by this subdivision, the
order shall become final.
(e) Any hearing requested on an order issued by the department
shall be conducted within 90 days after receipt of the notice of
defense by an administrative law judge of the Office of
Administrative Hearings of the Department of General Services in
accordance with Chapter 4.5 (commencing with Section 11400) of Part
1 of Division 3 of Title 2 of the Government Code, and the department
shall have all the authority granted to an agency by those
provisions.
(f) Except as provided in subparagraph (B) of paragraph (2), a
person requesting a hearing on an order issued by a unified program
agency may select the hearing process specified in either paragraph
(1) or (2) in the notice of defense filed with the Unified Program
Agency pursuant to subdivision (d). Within 90 days of receipt of the
notice of defense by the Unified Program Agency, the hearing shall
be conducted using one of the following procedures:
(1) An administrative law judge of the Office of Administrative
Hearings of the Department of General Services shall conduct the
hearing in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code.
(2) (A) A hearing officer designated by the Unified Program Agency
shall conduct the hearing in accordance with Chapter 4.5 (commencing
with Section 11400) of Part 1 of Division 3 of Title 2 of the
Government Code, and the Unified Program Agency shall have all the
authority granted to an agency by those provisions. When a hearing
is conducted by a unified program agency pursuant to this paragraph,
the Unified Program Agency shall, within 60 days of the hearing,
issue a decision.
(B) A person requesting a hearing on an order issued by a unified
program agency may select the hearing process specified in this
paragraph in a notice of defense filed pursuant to subdivision (d)
only if the Unified Program Agency has, as of the date the order is
issued pursuant to subdivision (c), selected a designated hearing
officer and established a program for conducting a hearing in
accordance with this paragraph.
(g) The hearing decision issued pursuant to subdivision (f) shall
be effective and final upon issuance. Copies of the decision shall
be served by personal service or by certified mail upon the party
served with the order and upon other persons who appeared at the
hearing and requested a copy.
(h) Any provision of an order issued under this section, except
the imposition of an administrative penalty, shall take effect upon
issuance by the department or Unified Program Agency if the
department or Unified Program Agency finds that the violation or
violations of law associated with that provision may pose an imminent
and substantial endangerment to the public health or safety or the
environment, and a request for a hearing shall not stay the effect of
that provision of the order pending a hearing decision. However, if
the department or Unified Program Agency determines that any or all
provisions of the order are so related that the public health or
safety or the environment can be protected only by immediate
compliance with the order as a whole, then the order as a whole,
except the imposition of an administrative penalty, shall take effect
upon issuance by the department or Unified Program Agency. A
request for a hearing shall not stay the effect of the order as a
whole pending a hearing decision.
(i) A decision issued pursuant to this section may be reviewed by
the court pursuant to Section 11523 of the Government Code. In all
proceedings pursuant to this section, the court shall uphold the
decision of the department or Unified Program Agency if the decision
is based upon substantial evidence in the whole record. The filing
of a petition for writ of mandate shall not stay any action required
pursuant to this chapter or the accrual of any penalties assessed
pursuant to this chapter. This subdivision does not prohibit the
court from granting any appropriate relief within its jurisdiction.
(j) All administrative penalties collected from actions brought by
the department pursuant to this section shall be placed in a
separate subaccount in the Toxic Substances Control Account and shall
be available only for transfer to the Site Remediation Account or
the Expedited Site Remediation Trust Fund and for expenditure by the
department upon appropriation by the Legislature.
(k) All administrative penalties collected from an action brought
by a unified program agency pursuant to this section shall be paid to
the Unified Program Agency that imposed the penalty, and shall be
deposited into a special account that shall be expended to fund the
activities of the Unified Program Agency in enforcing this chapter
pursuant to Section 25180.
(l) The authority granted under this section to a unified program
agency is limited to both of the following:
(1) The issuance of orders to impose penalties and to correct
violations of the requirements of this chapter and its implementing
regulations, only when the violations are violations of requirements
applicable to hazardous waste generators and persons operating
pursuant to a permit-by-rule, conditional authorization, or
conditional exemption, when the violations occur at a unified program
facility within the jurisdiction of the CUPA.
(2) The issuance of orders to require corrective action when there
has been a release of hazardous waste or constituents only when the
Unified Program Agency is authorized to do so pursuant to Section
25404.1.
(m) The CUPA shall annually submit a summary report to the
department on the status of orders issued by the unified program
agencies under this section and Section 25187.1.
(n) The CUPA shall consult with the district attorney for the
county on the development of policies to be followed in exercising
the authority delegated pursuant to this section and Section 25187.1,
as they relate to the authority of unified program agencies to issue
orders.
(o) The CUPA shall arrange to have appropriate legal
representation in administrative hearings that are conducted by an
administrative law judge of the Office of Administrative Hearings of
the Department of General Services, and when a decision issued
pursuant to this section is appealed to the superior court.
(p) The department may adopt regulations to implement this section
and paragraph (2) of subdivision (a) of Section 25187.1 as they
relate to the authority of unified program agencies to issue orders.
The regulations shall include, but not be limited to, all of the
following requirements:
(1) Provisions to ensure coordinated and consistent application of
this section and Section 25187.1 when both the department and the
Unified Program Agency have or will be issuing orders under one or
both of these sections at the same facility.
(2) Provisions to ensure that the enforcement authority granted to
the unified program agencies will be exercised consistently
throughout the state.
(3) Minimum training requirements for staff of the Unified Program
Agency relative to this section and Section 25187.1.
(4) Procedures to be followed by the department to rescind the
authority granted to a unified program agency under this section and
Section 25187.1, if the department finds that the Unified Program
Agency is not exercising that authority in a manner consistent with
this chapter and Chapter 6.11 (commencing with Section 25404) and the
regulations adopted pursuant thereto.
(q) Except for an enforcement action taken pursuant to this
chapter or Chapter 6.8 (commencing with Section 25300), this section
does not otherwise affect the authority of a local agency to take any
action under any other provision of law.
SEC. 10. Section 25262 of the Health and Safety Code is amended to
read:
25262. (a) A responsible party for a hazardous materials release
site may request the committee at any time to designate an
administering agency to oversee a site investigation and remedial
action at the site. The committee shall designate an administering
agency as responsible for the site within 45 days of the date the
request is received. A request to designate an administering agency
may be denied only if the committee makes one of the following
findings:
(1) No single agency in state or local government has the
expertise needed to adequately oversee a site investigation and
remedial action at the site.
(2) Designating an administering agency will have the effect of
reversing a regulatory or enforcement action initiated by an agency
that has jurisdiction over the site, a facility on the site, or an
activity at the site.
(3) Designating an administering agency will prevent a regulatory
or enforcement action required by federal law or regulations.
(4) The administering agency and the responsible party are local
agencies formed, in whole or in part, by the same political
subdivision.
(b) A responsible party who requests the designation of an
administering agency for a hazardous materials release site shall
provide the committee with a brief description of the site, an
analysis of the known or suspected nature of the release or
threatened release that is the subject of required site investigation
or remedial action, a description of the type of facility from which
the release occurred or the type of activity that caused the
release, a specification of the regulatory or enforcement actions
that have been taken, or are pending, with respect to the release,
and a statement of which agency the responsible party believes should
be designated as administering agency for the site.
(c) (1) The committee shall take all of the following factors into
account in determining which agency to designate as administering
agency for a site:
(A) The type of release that is the subject of site investigation
and remedial action.
(B) The nature of the threat that the release poses to human
health and safety or to the environment.
(C) The source of the release, the type of facility or activity
from which the release occurred, the regulatory programs that govern
the facility or activity involved, and the agency or agencies that
administer those regulatory programs.
(D) The regulatory history of the site, the types of regulatory
actions or enforcement actions that have been taken with respect to
the site or the facility or activity from which the release occurred,
and the experience and involvement that various agencies have had
with the site.
(E) The capabilities and expertise of the agencies that are
candidates for designation as the administering agency for the site
and the degree to which those capabilities and that expertise are
applicable to the type of release at the site, the nature of the
threat that the release poses to health and safety or the environment
and the probable remedial measures that will be required.
(2) After weighing the factors described in paragraph (1) as they
apply to the site, the committee shall use the criteria specified in
subparagraphs (A), (B), (C), and (D) as guidelines for designating
the administering agency. If more than one of the criteria apply to
the site, the committee shall use its best judgment,
taking into account the known facts
concerning the hazardous materials release at the site and its
regulatory history, in determining which agency may best serve as the
administering agency. The criteria are as follows:
(A) The administering agency shall be the Department of Toxic
Substances Control if one of the following applies:
(i) The department has issued an order, or otherwise initiated
action, with respect to the release at the site pursuant to Section
25355, 25355.5, or 25358.3.
(ii) The department has issued an order for corrective action at
the site pursuant to Section 25187.
(iii) The source of the release is a facility or hazardous waste
management unit or an activity that is, or was, regulated by the
department pursuant to Chapter 6.5 (commencing with Section 25100).
(iv) The department is conducting, or has conducted, oversight of
the site investigation and remedial action at the site at the request
of the responsible party.
(B) The administering agency shall be the California regional
water quality control board for the region in which the site is
located, if one of the following applies:
(i) The California regional water quality control board has issued
a cease and desist order pursuant to Section 13301, or a cleanup and
abatement order pursuant to Section 13304 of the Water Code in
connection with the release at the site.
(ii) The source of the release is a facility or an activity that
is subject to waste discharge requirements issued by the California
regional water quality control board pursuant to Section 13263 of the
Water Code or that is regulated by the California regional water
quality control board pursuant to Article 5.5 (commencing with
Section 25159.10) of, or Article 9.5 (commencing with Section 25208)
of, Chapter 6.5, or pursuant to Chapter 6.67 (commencing with Section
25270).
(iii) The California regional water quality control board has
jurisdiction over the site pursuant to Chapter 5.6 (commencing with
Section 13390) of Division 7 of the Water Code.
(C) The administering agency shall be the Department of Fish and
Game if the release has polluted or contaminated the waters of the
state and the department has taken action against the responsible
party pursuant to Section 2014 or 12015 of, or Article 1 (commencing
with Section 5650) of Chapter 2 of Part 1 of Division 6 of, the Fish
and Game Code, subsection (f) of Section 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended,
(42 U.S.C. Sec. 9607 (f)), or Section 311 of the Federal Water
Pollution Act, as amended (33 U.S.C. Sec. 1321).
(D) The administering agency shall be a local agency if any one of
the following circumstances is applicable:
(i) The source of the release at the site is an underground
storage tank, as defined in subdivision (y) of Section 25281, the
local agency is the agency described in subdivision (i) of Section
25281, and there is no evidence of any extensive groundwater
contamination at the site.
(ii) The local agency has accepted responsibility for overseeing
the site investigation or remedial action at the site and a state
agency is not involved.
(iii) The local agency has agreed to oversee the site
investigation or remedial action at the site and is certified, or has
been approved, by a state agency to conduct that oversight.
(d) A responsible party for a hazardous materials release site may
request the designation of an administering agency for the site
pursuant to this section only once. The action of the committee on
the request is a final action and is not subject to further
administrative or judicial review.
SEC. 11. Section 25281 of the Health and Safety Code is amended to
read:
25281. For purposes of this chapter, the following definitions
apply:
(a) "Automatic line leak detector" means any method of leak
detection, as determined in regulations adopted by the board, that
alerts the owner or operator of an underground storage tank to the
presence of a leak. "Automatic line leak detector" includes, but is
not limited to, any device or mechanism that alerts the owner or
operator of an underground storage tank to the presence of a leak by
restricting or shutting off the flow of a hazardous substance through
piping, or by triggering an audible or visual alarm, and that
detects leaks of three gallons or more per hour at 10 pounds per
square inch line pressure within one hour.
(b) "Board" means the State Water Resources Control Board.
"Regional board" means a California regional water quality control
board.
(c) "Compatible" means the ability of two or more substances to
maintain their respective physical and chemical properties upon
contact with one another for the design life of the tank system under
conditions likely to be encountered in the tank system.
(d) (1) "Certified Unified Program Agency" or "CUPA" means the
agency certified by the Secretary for Environmental Protection to
implement the unified program specified in Chapter 6.11 (commencing
with Section 25404) within a jurisdiction.
(2) "Participating Agency" or "PA" means an agency that has a
written agreement with the CUPA pursuant to subdivision (d) of
Section 25404.3, and is approved by the secretary to implement or
enforce the unified program element specified in paragraph (3) of
subdivision (c) of Section 25404, in accordance with Sections 25404.1
and 25404.2.
(3) "Unified Program Agency" or "UPA" means the CUPA, or its
participating agencies to the extent each PA has been designated by
the CUPA, pursuant to a written agreement, to implement or enforce
the unified program element specified in paragraph (3) of subdivision
(c) of Section 25404. For purposes of this chapter, a UPA has the
responsibility and authority, to the extent provided by this chapter
and Sections 25404.1 and 25404.2, to implement and enforce only those
requirements of this chapter listed in paragraph (3) of subdivision
(c) of Section 25404 and the regulations adopted to implement those
requirements. After a CUPA has been certified by the secretary, the
UPA shall be the only local agency authorized to enforce the
requirements of this chapter listed in paragraph (3) of subdivision
(c) of Section 25404 within the jurisdiction of the CUPA. This
paragraph shall not be construed to limit the authority or
responsibility granted to the board and the regional boards by this
chapter to implement and enforce this chapter and the regulations
adopted pursuant to this chapter.
(e) "Department" means the Department of Toxic Substances Control.
(f) "Facility" means any one, or combination of, underground
storage tanks used by a single business entity at a single location
or site.
(g) "Federal act" means Subchapter IX (commencing with Section
6991) of Chapter 82 of Title 42 of the United States Code, as added
by the Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616), or
as it may subsequently be amended or supplemented.
(h) "Hazardous substance" means either of the following:
(1) All of the following liquid and solid substances, unless the
department, in consultation with the board, determines that the
substance could not adversely affect the quality of the waters of the
state:
(A) Substances on the list prepared by the Director of Industrial
Relations pursuant to Section 6382 of the Labor Code.
(B) Hazardous substances, as defined in Section 25316.
(C) Any substance or material that is classified by the National
Fire Protection Association (NFPA) as a flammable liquid, a class II
combustible liquid, or a class III-A combustible liquid.
(2) Any regulated substance, as defined in subsection (2) of
Section 6991 of Title 42 of the United States Code, as that section
reads on January 1, 1989, or as it may subsequently be amended or
supplemented.
(i) "Local agency" means the local agency authorized, pursuant to
Section 25283, to implement this chapter.
(j) "Operator" means any person in control of, or having daily
responsibility for, the daily operation of an underground storage
tank system.
(k) "Owner" means the owner of an underground storage tank.
(l) "Person" means an individual, trust, firm, joint stock
company, corporation, including a government corporation,
partnership, limited liability company, or association. "Person"
also includes any city, county, district, the state, another state of
the United States, any department or agency of this state or another
state, or the United States to the extent authorized by federal law.
(m) "Pipe" means any pipeline or system of pipelines that is used
in connection with the storage of hazardous substances and that is
not intended to transport hazardous substances in interstate or
intrastate commerce or to transfer hazardous materials in bulk to or
from a marine vessel.
(n) "Primary containment" means the first level of containment,
such as the portion of a tank that comes into immediate contact on
its inner surface with the hazardous substance being contained.
(o) "Product tight" means impervious to the substance that is
contained, or is to be contained, so as to prevent the seepage of the
substance from the containment.
(p) "Release" means any spilling, leaking, emitting, discharging,
escaping, leaching, or disposing from an underground storage tank
into or on the waters of the state, the land, or the subsurface
soils.
(q) "Secondary containment" means the level of containment
external to, and separate from, the primary containment.
(r) "Single walled" means construction with walls made of only one
thickness of material. For the purposes of this chapter, laminated,
coated, or clad materials are considered single walled.
(s) "Special inspector" means a professional engineer, registered
pursuant to Chapter 7 (commencing with Section 6700) of Division 3 of
the Business and Professions Code, who is qualified to attest, at a
minimum, to structural soundness, seismic safety, the compatibility
of construction materials with contents, cathodic protection, and the
mechanical compatibility of the structural elements of underground
storage tanks.
(t) "Storage" or "store" means the containment, handling, or
treatment of hazardous substances, either on a temporary basis or for
a period of years. "Storage" or "store" does not include the
storage of hazardous wastes in an underground storage tank if the
person operating the tank has been issued a hazardous waste
facilities permit by the department pursuant to Section 25200 or
granted interim status under Section 25200.5.
(u) "Tank" means a stationary device designed to contain an
accumulation of hazardous substances which is constructed primarily
of nonearthen materials, including, but not limited to, wood,
concrete, steel, or plastic that provides structural support.
(v) "Tank integrity test" means a test method capable of detecting
an unauthorized release from an underground storage tank consistent
with the minimum standards adopted by the board.
(w) "Tank tester" means an individual who performs tank integrity
tests on underground storage tanks.
(x) "Unauthorized release" means any release of any hazardous
substance that does not conform to this chapter, including, but not
limited to, an unauthorized release specified in Section 25295.5,
unless this release is authorized by the board or a regional board
pursuant to Division 7 (commencing with Section 13000) of the Water
Code.
(y) (1) "Underground storage tank" means any one or combination of
tanks, including pipes connected thereto, that is used for the
storage of hazardous substances and that is substantially or totally
beneath the surface of the ground. "Underground storage tank" does
not include any of the following:
(A) A tank with a capacity of 1,100 gallons or less that is
located on a farm and that stores motor vehicle fuel used primarily
for agricultural purposes and not for resale.
(B) A tank that is located on a farm or at the residence of a
person, that has a capacity of 1,100 gallons or less, and that stores
home heating oil for consumptive use on the premises where stored.
(C) Structures, such as sumps, separators, storm drains, catch
basins, oil field gathering lines, refinery pipelines, lagoons,
evaporation ponds, well cellars, separation sumps, lined and unlined
pits, sumps and lagoons. A sump that is a part of a monitoring system
required under Section 25290.1, 25291, or 25292 and sumps or other
structures defined as underground storage tanks under the federal act
are not exempted by this subparagraph.
(D) A tank holding hydraulic fluid for a closed loop mechanical
system that uses compressed air or hydraulic fluid to operate lifts,
elevators, and other similar devices.
(2) Structures identified in subparagraphs (C) and (D) of
paragraph (1) may be regulated by the board and any regional board
pursuant to the Porter-Cologne Water Quality Control Act (Division 7
(commencing with Section 13000) of the Water Code) to ensure that
they do not pose a threat to water quality.
(z) "Underground tank system" or "tank system" means an
underground storage tank, connected piping, ancillary equipment, and
containment system, if any.
(aa) (1) "Unified program facility" means all contiguous land and
structures, other appurtenances, and improvements on the land that
are subject to the requirements of paragraph (3) of subdivision (c)
of Section 25404.
(2) "Unified program facility permit" means a permit issued
pursuant to Chapter 6.11 (commencing with Section 25404), and that
encompasses the permitting requirements of Section 25284.
(3) "Permit" means a permit issued pursuant to Section 25284 or a
unified program facility permit as defined in paragraph (2).
SEC. 12. Section 25281.5 of the Health and Safety Code is amended
to read:
25281.5. (a) Notwithstanding subdivision (m) of Section 25281,
for purposes of this chapter "pipe" means all parts of any pipeline
or system of pipelines, used in connection with the storage of
hazardous substances, including, but not limited to, valves and other
appurtenances connected to the pipe, pumping units, fabricated
assemblies associated with pumping units, and metering and delivery
stations and fabricated assemblies therein, but does not include any
of the following:
(1) An interstate pipeline subject to Part 195 (commencing with
Section 195.0) of Subchapter D of Chapter 1 of Title 49 of the Code
of Federal Regulations.
(2) An intrastate pipeline subject to Chapter 5.5 (commencing with
Section 51010) of Part 1 of Division 1 of Title 5 of the Government
Code.
(3) Unburied delivery hoses, vapor recovery hoses, and nozzles
that are subject to unobstructed visual inspection for leakage.
(4) Vent lines, vapor recovery lines, and fill pipes which are
designed to prevent, and do not hold, standing fluid in the pipes or
lines.
(b) In addition to the exclusions specified in subdivision (y) of
Section 25281, "underground storage tank" does not include any of the
following:
(1) Vent lines, vapor recovery lines, and fill pipes that are
designed to prevent, and do not hold, standing fluid in the pipes or
lines.
(2) Unburied fuel delivery piping at marinas if the owner or
operator conducts daily visual inspections of the piping and
maintains a log of inspection results for review by the local agency.
The exclusion provided by this paragraph shall not be applicable if
the board adopts regulations pursuant to Section 25299.3 that
address the design, construction, upgrade, and monitoring of unburied
fuel delivery piping at marinas.
(3) Unburied fuel piping connected to an emergency generator tank
system, if the owner or operator conducts visual inspections of the
piping each time the tank system is operated, but no less than
monthly, and maintains a log of inspection results for review by the
local agency. The exclusion provided by this paragraph does not
apply if the board adopts regulations pursuant to Section 25299.3
that address the design, construction, upgrade, and monitoring of
unburied fuel supply and return piping connected to emergency
generator tank systems.
(c) For purposes of this chapter, "emergency generator tank system"
means an underground storage tank system that provides power supply
in the event of a commercial power failure, stores diesel fuel, and
is used solely in connection with an emergency system, legally
required standby system, or optional standby system, as defined in
Articles 700, 701, and 702 of the National Electrical Code of the
National Fire Protection Association.
SEC. 13. Section 25284 of the Health and Safety Code is amended to
read:
25284. (a) (1) Except as provided in subdivision (c), no person
may own or operate an underground storage tank unless a permit for
its operation has been issued by the local agency to the owner or
operator of the tank, or a unified program facility permit has been
issued by the local agency to the owner or operator of the unified
program facility on which the tank is located.
(2) If the operator is not the owner of the tank, or if the permit
is issued to a person other than the owner or operator of the tank,
the permittee shall ensure that both the owner and the operator of
the tank are provided with a copy of the permit.
(3) If the permit is issued to a person other than the operator of
the tank, that person shall do all of the following:
(A) Enter into a written agreement with the operator of the tank
to monitor the tank system as set forth in the permit.
(B) Provide the operator with a copy or summary of Section 25299
in the form that the board specifies by regulation.
(C) Notify the local agency of any change of operator.
(b) Each local agency shall prepare a form that provides for the
acceptance of the obligations of a transferred permit by any person
who is to assume the ownership of an underground storage tank from
the previous owner and is to be transferred the permit to operate the
tank. That person shall complete the form accepting the obligations
of the permit and submit the completed form to the local agency
within 30 days from the date that the ownership of the underground
storage tank is to be transferred. A local agency may review and
modify, or terminate, the transfer of the permit to operate the
underground storage tank, pursuant to the criteria specified in
subdivision (a) of Section 25295, upon receiving the completed form.
(c) Any person assuming ownership of an underground storage tank
used for the storage of hazardous substances for which a valid
operating permit has been issued shall have 30 days from the date of
assumption of ownership to apply for an operating permit pursuant to
Section 25286 or, if accepting a transferred permit, shall submit to
the local agency the completed form accepting the obligations of the
transferred permit, as specified in subdivision (b). During the
period from the date of application until the permit is issued or
refused, the person shall not be held to be in violation of this
section.
(d) A permit issued pursuant to this section shall apply and
require compliance with all applicable regulations adopted by the
board pursuant to Section 25299.3.
SEC. 14. Section 25284.1 of the Health and Safety Code is amended
to read:
25284.1. (a) The board shall take all of the following actions
with regard to the prevention of unauthorized releases from petroleum
underground storage tanks:
(1) On or before June 1, 2000, initiate a field-based research
program to quantify the probability and environmental significance of
releases from underground storage tank systems meeting the 1998
upgrade requirements specified in Section 25284, as that section read
on January 1, 2002. The research program shall do all of the
following:
(A) Seek to identify the source and causes of releases and any
deficiencies in leak detection systems.
(B) Include single-walled, double-walled, and hybrid tank systems,
and avoid bias towards known leaking underground storage tank
systems by including a statistically valid sample of all operating
underground storage tank systems.
(C) Include peer review.
(2) Complete the research program on or before June 1, 2002.
(3) Use the results of the research program to develop appropriate
changes in design, construction, monitoring, operation, and
maintenance requirements for tank systems.
(4) On or before January 1, 2001, adopt regulations to do all of
the following:
(A) (i) Require underground storage tank owners, operators,
service technicians, installers, and inspectors to meet minimum
industry-established training standards and require tank facilities
to be operated in a manner consistent with industry-established best
management practices.
(ii) The board shall implement an outreach effort to educate small
business owners or operators on the importance of the regulations
adopted pursuant to this subparagraph.
(B) (i) Except as provided in clauses (ii) and (iii), require
testing of the secondary containment components, including
under-dispenser and pump turbine containment components, upon initial
installation of a secondary containment component and periodically
thereafter, to ensure that the system is capable of containing
releases from the primary containment until a release is detected and
cleaned up. The board shall consult with the petroleum industry and
local government to assess the appropriate test or tests that would
comply with this subparagraph.
(ii) Secondary containment components that are part of an
emergency generator tank system may be tested using enhanced leak
detection, if the test is performed at the frequency specified by the
board for testing of secondary containment pursuant to Section
2644.1 of Title 23 of the California Code of Regulations. If the
results of the enhanced leak detection test indicate that any
component of the emergency generator tank system is leaking liquid or
vapor, the owner or operator shall take appropriate actions to
correct the leakage, and the owner or operator shall retest the
system using enhanced leak detection until the system is no longer
leaking liquid or vapor.
(iii) Any tank or piping that is part of an emergency generator
tank system and located within a structure as described in paragraph
(2) of subdivision (a) of Section 25283.5 is exempt from the
secondary containment testing required by clause (i) of subparagraph
(B) of paragraph (4), if the owner or operator conducts visual
inspections of tank or piping each time the tank system is operated,
but no less than monthly, and maintains a log of inspection results
for review by the local agency. The provisions of this clause are
not applicable if the board adopts regulations pursuant to Section
25299.3 that address the design, construction, upgrade, and
monitoring of unburied tanks that are part of an emergency generator
tank system.
(C) Require annual testing of release detection sensors and
alarms, including under-dispenser and pump turbine containment
sensors and alarms. The board shall consult with the petroleum
industry and local government to assess the appropriate test or tests
that would comply with this subparagraph.
(5) (A) Require an owner or operator of an underground storage
tank installed after July 1, 1987, if a tank is located within 1,000
feet of a public drinking water well, as identified pursuant to the
state GIS mapping database, to have the underground storage tank
system fitted, on or before July 1, 2001, with under-dispenser
containment or a spill containment or control system that is approved
by the board as capable of containing any accidental release.
(B) Require all underground storage tanks installed after January
1, 2000, to have the tank system fitted with under-dispenser
containment or a spill containment or control system to meet the
requirements of subparagraph (A).
(C) Require an owner or operator of an underground storage tank
that is not otherwise subject to subparagraph (A), and not subject to
subparagraph (B), to have the underground storage tank system fitted
to meet the requirements of subparagraph (A), on or before December
31, 2003.
(D) On and after January 1, 2002, no person shall install, repair,
maintain, or calibrate monitoring equipment for an underground
storage tank unless that person satisfies both of the following
requirements:
(i) The person has fulfilled training standards identified by the
board in regulations adopted pursuant to this section.
(ii) The person possesses a tank testing license issued by the
board pursuant to Section 25284.4, or a Class "A" General Engineering
Contractor License, C-10 Electrical Contractor License, C-34
Pipeline Contractor License, C-36 Plumbing Contractor License, or
C-61 (D40) Limited Specialty Service Station Equipment and
Maintenance Contractor License issued by the Contractors\' State
License Board.
(E) Loans and grants for the installation of under-dispenser
containment or a spill containment or control system shall be made
available pursuant to Chapter 8.5 (commencing with Section 15399.10)
of Part 6.7 of Division 3 of Title 2 of the Government Code.
(6) Convene a panel of local agency and regional board
representatives to review existing enforcement authority and
procedures and to advise the board of any changes that are needed to
enable local agencies to take adequate enforcement action against
owners and operators of noncompliant underground storage tank
facilities. The panel shall make its recommendations to the board on
or before September 30, 2001. Based on the recommendations of the
panel, the board shall also establish effective enforcement
procedures in cases involving fraud.
(b) On or before July 1, 2001, the Contractors\' State License
Board, in consultation with the board, the petroleum industry, air
pollution control districts, air quality management districts, and
local government, shall review its requirements for petroleum
underground storage tank system installation and removal contractors
and make changes, where appropriate, to ensure these contractors are
qualified.
SEC. 15. Section 25284.2 is added to the Health and Safety Code,
to read:
25284.2. The owner or operator of an underground storage tank
with a spill containment structure designed to prevent a release in
the event of a spill or overfill while a hazardous substance is being
placed in the tank shall annually test the spill containment
structure to demonstrate that it is capable of containing the
substance until it is detected and cleaned up.
SEC. 16. Section 25284.4 of the
Health and Safety Code is amended to read:
25284.4. (a) All tank integrity tests required by this chapter or
pursuant to any local ordinance in compliance with Section 25299.1
shall be performed only by, or under the direct and personal
supervision of, a tank tester with a currently valid tank testing
license issued pursuant to this section. No person shall engage in
the business of tank integrity testing, or act in the capacity of a
tank tester, within this state without first obtaining a tank testing
license from the board. Any person who violates this subdivision is
guilty of a misdemeanor and may be subject to civil liability
pursuant to subdivision (g).
(b) Any person proposing to conduct tank integrity testing within
the state shall apply to the board for a tank testing license, and
shall pay the appropriate fee established by the board. A license
issued pursuant to this section shall expire three years after the
date of issuance and shall be subject to renewal, except as specified
in this section. If the tank tester fails to renew the tank tester\'
s license within three years of the license's expiration date, the
license shall lapse and the person shall apply for a new tank testing
license and shall meet the same requirements of this section for a
new applicant. A tank tester shall pay a fee to the board at the
time of licensing and at the time of renewal. The board shall adopt
a fee schedule for the issuance and renewal of tank testing licenses
to cover the necessary and reasonable costs of administering and
enforcing this section.
(c) (1) The board may establish any additional qualifications and
standards for the licensing of tank testers. Each applicant for
licensing as a tank tester shall pass an examination specified by the
board and shall have completed a minimum of either of the following:
(A) One year of qualifying field experience by personally testing
a number of underground storage tanks specified by the board.
(B) Completed six months of field experience by personally testing
a number of underground storage tanks specified by the board and
have successfully completed a course of study applicable to tank
testing that is satisfactory to the board.
(2) The examination required by paragraph (1) shall, at a minimum,
test the applicant's knowledge of all of the following:
(A) General principles of tank and pipeline testing.
(B) Basic understanding of the mathematics relating to tank
testing.
(C) Understanding of the specific test procedures, principles, and
equipment for which the tank tester will be qualified to operate.
(D) Knowledge of the regulations and laws governing the regulation
of underground storage tanks.
(E) Proper safety procedures.
(d) The board shall maintain a current list of all persons
licensed pursuant to this section, including a record of enforcement
actions taken against these persons. This list shall be made
available to local agencies and the public on request.
(e) A tank tester may be liable civilly in accordance with
subdivision (g) and, in addition, may be subject to administrative
sanctions pursuant to subdivision (f) for performing or causing
another to perform, any of the following actions:
(1) Willfully or negligently violating, or causing, or allowing
the violation of, this chapter or any regulations adopted pursuant to
this chapter.
(2) Willfully or negligently failing to exercise direct and
personal control over an unlicensed employee, associate, assistant,
or agent during any phase of tank integrity testing.
(3) Without regard to intent or negligence, using or permitting a
licensed or unlicensed employee, associate, assistant, or agent to
use any method or equipment that is demonstrated to be unsafe or
unreliable for tank integrity testing.
(4) Submitting false or misleading information on an application
for license.
(5) Using fraud or deception in the course of doing business as a
tank tester.
(6) Failing to use reasonable care, or judgment, while performing
tank integrity tests.
(7) Failing to maintain competence in approved tank testing
procedures.
(8) Failing to use proper tests or testing equipment to conduct
tank integrity tests.
(9) Any other action that the board may, by regulation, prescribe.
(f) (1) The board may suspend the license of a tank tester for a
period of up to one year, and may revoke, or refuse to grant or
renew, a license and may place on probation, or reprimand, the
licensee upon any reasonable ground, including, but not limited to,
those violations specified in subdivision (e). The board may
investigate any licensed tank tester after receiving a written
request from a local agency.
(2) The board shall notify the tank tester of any alleged
violations and of proposed sanctions, before taking any action
pursuant to this subdivision. The tank tester may request a hearing,
or submit a written response within 30 days of the date of notice.
Any hearing conducted pursuant to this subdivision shall be conducted
in accordance with the hearing procedure specified in subdivision
(g). After the hearing, or at a time after the 30-day response
period, the board may impose the appropriate administrative sanctions
authorized by this subdivision if it finds that the tank tester has
committed any of the alleged violations specified in the notice.
(g) (1) The board may impose civil liability for a violation of
subdivision (a) or (e) in accordance with Article 2.5 (commencing
with Section 13323) of Chapter 5 of Division 7 of the Water Code, in
an amount that shall not exceed five hundred dollars ($500) for each
day in which the violation occurs, except that the chief of the
division of water quality of the board or any other person designated
by the board shall issue the complaint to the violator. The
complaint shall be issued based on information developed by board
staff or local agencies. Any hearing on the complaint shall be made
before the board, or a panel thereof, consisting of one or more board
members. The decision of the board shall be final upon issuance and
may be reviewed pursuant to Article 3 (commencing with Section
13330) of Chapter 5 of Division 7 of the Water Code within 30 days
following issuance of the order.
(2) Civil liability for a violation of subdivision (a) or (e) may
be imposed by a superior court at the request of the board in an
amount which shall not exceed two thousand five hundred dollars
($2,500) for each day in which the violation occurs.
(h) Any fees or civil liability collected pursuant to this section
shall be deposited in the Underground Storage Tank Tester Account
which is hereby created in the General Fund. The money in this
account is available for expenditure by the board, upon appropriation
by the Legislature, for purposes of implementing the tank tester
licensing program established by this section and for repayment of
the loan made by Section 13 of Chapter 1372 of the Statutes of 1987.
(i) A tank tester who conducts or supervises a tank or piping
integrity test shall prepare a report detailing the results of the
tank test and shall maintain a record of the report for at least
three years, or as otherwise required by the board. The tank tester
shall type or print his or her name and include his or her license
number on the report and shall endorse the report under penalty of
perjury by original signature.
SEC. 17. Section 25288 of the Health and Safety Code is amended to
read:
25288. (a) The local agency shall inspect every underground tank
system within its jurisdiction at least once every year. The
purpose of the inspection is to determine whether the tank system
complies with the applicable requirements of this chapter and the
regulations adopted by the board pursuant to Section 25299.3,
including the design and construction standards of Section 25290.1,
25291, or 25292, whichever is applicable, whether the operator has
monitored and tested the tank system as required by the permit, and
whether the tank system is in a safe operating condition.
(b) After an inspection conducted pursuant to subdivision (a), the
local agency shall prepare a compliance report detailing the
inspection and shall send a copy of this report to the permitholder
and the owner or operator, if the owner or operator is not the
permitholder. Any report prepared pursuant to this section shall be
consolidated into any other inspection reports required pursuant to
Chapter 6.11 (commencing with Section 25404), the requirements listed
in subdivision (c) of Section 25404, and the regulations adopted to
implement the requirements listed in subdivision (c) of Section
25404.
(c) In lieu of the annual local agency inspections, the local
agency may require the permitholder to employ a special inspector to
conduct the annual inspection. The local agency shall supply the
permitholder with a list of at least three special inspectors that
are qualified to conduct the inspection. The permitholder shall
employ a special inspector from the list provided by the local
agency. The special inspector's authority shall be the same as that
of the local agency as set forth in subdivision (a).
(d) Within 60 days after receiving a compliance report or special
inspection report prepared in accordance with subdivision (b) or (c),
respectively, the permitholder shall file with the local agency a
plan to implement all recommendations contained in the compliance
report or shall demonstrate, to the satisfaction of the local agency,
why these recommendations should not be implemented. Any corrective
action conducted pursuant to the recommendations in the report shall
be taken pursuant to Sections 25296.10 and 25299.36.
SEC. 18. Section 25290.1 is added to the Health and Safety Code,
to read:
25290.1. (a) Notwithstanding subdivision (o) of Section 25281,
for purposes of this section, "product tight" means impervious to the
liquid and vapor of the substance that is contained, or is to be
contained, so as to prevent the seepage of the substance from the
containment.
(b) Notwithstanding Section 25291, every underground storage tank
installed on or after July 1, 2003, shall meet the requirements of
this section.
(c) The underground storage tank shall be designed and constructed
to provide primary and secondary levels of containment of the
hazardous substances stored in it in accordance with the following
performance standards:
(1) Primary containment shall be product tight and compatible with
stored product.
(2) Secondary containment shall be product tight and constructed
to prevent structural weakening as a result of contact with any
hazardous substances released from the primary containment, and also
shall be capable of storing the hazardous substances for the maximum
anticipated period of time necessary for the recovery of any released
hazardous substance.
(3) 
