Bill Text: CA SB574 | 2013-2014 | Regular Session | Amended
Bill Title: Underground storage tanks: corrective action.
Spectrum: Moderate Partisan Bill (Republican 4-1)
Status: (Introduced - Dead) 2014-02-03 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB574 Detail]
Download: California-2013-SB574-Amended.html
BILL NUMBER: SB 574 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 17, 2013
AMENDED IN SENATE APRIL 11, 2013
INTRODUCED BY Senator Nielsen
(Coauthors: Senators Evans and Gaines)
(Coauthors: Assembly Members Dahle and Logue)
FEBRUARY 22, 2013
An act to amend Section 25299.57 of the Health and Safety Code,
relating to underground storage tanks.
LEGISLATIVE COUNSEL'S DIGEST
SB 574, as amended, Nielsen. Underground storage tanks: corrective
action.
Under existing law, 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 of
up to $1,500,000 per occurrence, as defined, to aid owners and
operators of petroleum underground storage tanks who take corrective
action to clean up unauthorized releases from those tanks and the
payment of claims for certain 3rd-party injuries and damages.
Existing law requires the board to pay a claim for the costs of
corrective action to a person who owns property on which is located a
release from a petroleum underground storage tank that has been the
subject of a corrective action, and for which additional corrective
action is required because of additionally discovered contamination
from the previous release, if the person who carried out the earlier
and completed corrective action was eligible for, and applied for,
reimbursement pursuant to specified provisions, only to the extent
that the amount of reimbursement for the earlier corrective action
did not exceed the amount of $1,500,000.
This bill would additionally impose as a requirement for that
reimbursement that the subject tank has been removed. The bill would
also require the board to pay a claim for the costs of corrective
action to a person who owns property on which is located a release
from a petroleum underground storage tank that has been removed if
the site has been the subject of a corrective action, additional
corrective action is required because of additionally discovered
contamination from the previous release, the person who
owns the property meets specified requirements and is
required to perform corrective action pursuant to those provisions
because of additionally discovered contamination, and the person who
carried out the earlier and completed corrective action did not apply
for reimbursement, as prescribed.
This bill would become operative only if legislation is enacted in
the 2013-14 Regular Session and becomes operative that extends the
January 1, 2014, reversion date in a specified provision of the
Health and Safety Code to a date that is after January 1, 2014,
relative to petroleum underground storage tank fees.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25299.57 of the Health and Safety Code is
amended to read:
25299.57. (a) If the board makes the determination specified in
subdivision (d), the board may only pay for the costs of a corrective
action that exceed the level of financial responsibility required to
be obtained pursuant to Section 25299.32, but not more than one
million five hundred thousand dollars ($1,500,000) for each
occurrence. In the case of an owner or operator who, as of January 1,
1988, was required to perform corrective action, who initiated that
corrective action in accordance with Division 7 (commencing with
Section 13000) of the Water Code or Chapter 6.7 (commencing with
Section 25280), and who is undertaking the corrective action in
compliance with waste discharge requirements or other orders issued
pursuant to Division 7 (commencing with Section 13000) of the Water
Code or Chapter 6.7 (commencing with Section 25280), the owner or
operator may apply to the board for satisfaction of a claim filed
pursuant to this article. The board shall notify claimants applying
for satisfaction of claims from the fund of eligibility for
reimbursement in a prompt and timely manner and that a letter of
credit or commitment that will obligate funds for reimbursement shall
follow the notice of eligibility as soon thereafter as possible.
(b) (1) For claims eligible for reimbursement pursuant to
subdivision (c) of Section 25299.55, the claimant shall submit the
actual cost of corrective action to the board, which shall either
approve or disapprove the costs incurred as reasonable and necessary.
At least 15 days before the board proposes to disapprove the
reimbursement of corrective action costs that have been incurred on
the grounds that the costs were unreasonable or unnecessary, the
board shall issue a notice advising the claimant and the lead agency
of the proposed disallowance, to allow review and comment.
(2) The board shall not reject any actual costs of corrective
action in a claim solely on the basis that the invoices submitted
fail to sufficiently detail the actual costs incurred, if all of the
following apply:
(A) Auxiliary documentation is provided that documents to the
board's satisfaction that the invoice is for necessary corrective
action work.
(B) The costs of corrective action work in the claim are
reasonably commensurate with similar corrective action work performed
during the same time period covered by the invoice for which
reimbursement is sought.
(C) The invoices include a brief description of the work
performed, the date that the work was performed, the vendor, and the
amount.
(c) (1) For claims eligible for prepayment pursuant to subdivision
(c) of Section 25299.55, the claimant shall submit the estimated
cost of the corrective action to the board, which shall approve or
disapprove the reasonableness of the cost estimate.
(2) If the claim is for reimbursement of costs incurred pursuant
to a performance-based contract, Article 6.5 (commencing with Section
25299.64) shall apply to that claim.
(d) Except as provided in subdivision (j), a claim specified in
subdivision (a) may be paid if the board makes all of the following
findings:
(1) There has been an unauthorized release of petroleum into the
environment from an underground storage tank.
(2) The claimant is required to undertake or contract for
corrective action pursuant to Section 25296.10, under the federal
act, or under Section 6973 of Title 42 of the United States Code, or,
as of January 1, 1988, the claimant has initiated corrective action
in accordance with Division 7 (commencing with Section 13000) of the
Water Code.
(3) The claimant has complied with Section 25299.31.
(4) (A) Except as provided in subparagraphs (B), (C), and (F), the
claimant has complied with the permit requirements of Chapter 6.7
(commencing with Section 25280). A claimant shall obtain a permit
required by subdivision (a) of Section 25284 for the underground
storage tank that is the subject of the claim when the claimant
becomes subject to subdivision (a) of Section 25284 or when the
applicable local agency begins issuing permits pursuant to
subdivision (a) of Section 25284, whichever occurs later.
(B) A claimant who acquires real property on which an underground
storage tank is situated and, despite the exercise of reasonable
diligence, was unaware of the existence of the underground storage
tank when the real property was acquired, has obtained a permit
required by subdivision (a) of Section 25284 for the underground
storage tank that is the subject of the claim within a reasonable
period, not to exceed one year, from when the claimant should have
become aware of the existence of the underground storage tank, or
when the applicable local agency began issuing permits pursuant to
Section 25284, whichever occurs later.
(C) All claimants who file their claim on or after January 1,
2008, and who do not obtain a permit required by subdivision (a) of
Section 25284 in accordance with subparagraph (A) or (B) may seek a
waiver of the requirement to obtain a permit. The board shall waive
the provisions of subparagraphs (A) and (B) as a condition for
payment from the fund if the board finds all of the following:
(i) The claimant was unaware of the permit requirement, and upon
becoming aware of the permit requirement, the claimant complies with
either subdivision (a) of Section 25284 or Section 25298 and the
regulations adopted to implement those sections within a reasonable
period, not to exceed one year, from when the claimant became aware
of the permit requirement.
(ii) Prior to submittal of the application to the fund, the
claimant has complied with Section 25299.31 and has obtained and paid
for all permits currently required by this paragraph.
(iii) Prior to submittal of the application to the fund, the
claimant has paid all fees, interest, and penalties imposed pursuant
to Article 5 (commencing with Section 25299.40), and Part 26
(commencing with Section 50101) of Division 2 of the Revenue and
Taxation Code, for the underground storage tank that is the subject
of the claim.
(D) (i) A claimant exempted pursuant to subparagraph (C) and who
has complied, on or before December 22, 1998, either with subdivision
(a) of Section 25284 or Section 25298 and the regulations adopted to
implement those sections, shall obtain a level of financial
responsibility twice as great as the amount that the claimant is
otherwise required to obtain pursuant to subdivision (a) of Section
25299.32, but not less than ten thousand dollars ($10,000). All other
claimants exempted pursuant to subparagraph (C) shall obtain a level
of financial responsibility that is four times as great as the
amount that the claimant is otherwise required to obtain pursuant to
subdivision (a) of Section 25299.32, but not less than twenty
thousand dollars ($20,000).
(ii) The board may waive the requirements of clause (i) if the
claimant can demonstrate that the conditions specified in clauses (i)
to (iii), inclusive, of subparagraph (C) were satisfied prior to the
causing of any contamination. That demonstration may be made through
a certification issued by the permitting agency based on a site
evaluation and tank tests at the time of permit application or in any
other manner acceptable to the board.
(E) All claimants who file a claim before January 1, 2008, and who
are not eligible for a waiver of the permit requirements pursuant to
applicable statutes or regulations in effect on the date of the
filing of the claim may resubmit a new claim pursuant to subparagraph
(C) on or after January 1, 2008. The board shall rank all claims
resubmitted pursuant to subparagraph (C) lower than all claims filed
before January 1, 2008, within their respective priority classes
specified in subdivision (b) of Section 25299.52.
(F) The board shall waive the provisions of subparagraph (A) as a
condition for payment from the fund for a claimant who filed his or
her claim on or after January 1, 2008, and before July 1, 2009, but
is not eligible for a waiver of the permit requirement pursuant to
the regulations adopted by the board in effect on the date of the
filing of the claim, and who did not obtain or apply for a permit
required by subdivision (a) of Section 25284, if the board finds all
of the following:
(i) The claim is filed pursuant to paragraph (2) of subdivision
(h) of Section 25299.54 and the claim otherwise satisfies the
eligibility requirements of that paragraph.
(ii) The claimant became the owner or de facto owner of an
underground storage tank prior to December 22, 1998.
(iii) The claimant did not, and does not, operate the underground
storage tank.
(iv) Within three years after becoming the owner or de facto owner
of the underground storage tank but not after December 22, 1998, the
claimant caused the underground storage tank to be removed and
closed in accordance with applicable law, and commenced no later than
December 22, 1998, to perform corrective action pursuant to Section
25296.10 of this code or pursuant to Division 7 (commencing with
Section 13000) of the Water Code.
(G) The board shall rank all claims submitted pursuant to
subparagraph (F) in their respective priority classes specified in
subdivision (b) of Section 25299.52 in the order in which the claims
are received by the board, but subsequent to any claim filed on a
previous date in each of those priority classes.
(H) For purposes of clauses (ii) and (iv) of subparagraph (F), "de
facto owner of an underground storage tank" means a person who
purchases or otherwise acquires real property, as defined in
subparagraph (D) of paragraph (5) of subdivision (h) of Section
25299.54, and has actual possession of, and control over, an
underground storage tank that has been abandoned by its previous
owner.
(5) The board has approved either the costs incurred for the
corrective action pursuant to subdivision (b) or the estimated costs
for corrective action pursuant to subdivision (c).
(6) The claimant has paid all fees, interest, and penalties
imposed pursuant to Article 5 (commencing with Section 25299.40), and
Part 26 (commencing with Section 50101) of Division 2 of the Revenue
and Taxation Code, for the underground storage tank that is the
subject of the claim.
(e) The board shall provide the claimant, whose cost estimate has
been approved, a letter of commitment authorizing payment of the
costs from the fund.
(f) The claimant may submit a request for partial payment to cover
the costs of corrective action performed in stages, as approved by
the board.
(g) (1) A claimant who submits a claim for payment to the board
shall submit multiple bids for prospective costs as prescribed in
regulations adopted by the board pursuant to Section 25299.77.
(2) A claimant who submits a claim to the board for the payment of
professional engineering and geologic work shall submit multiple
proposals and fee estimates, as required by the regulations adopted
by the board pursuant to Section 25299.77. The claimant's selection
of the provider of these services is not required to be based on the
lowest estimated fee, if the fee estimate conforms with the range of
acceptable costs established by the board.
(3) A claimant who submits a claim for payment to the board for
remediation construction contracting work shall submit multiple bids,
as required in the regulations adopted by the board pursuant to
Section 25299.77.
(4) Paragraphs (1), (2), and (3) do not apply to a tank owned or
operated by a public agency if the prospective costs are for private
professional services within the meaning of Chapter 10 (commencing
with Section 4525) of Division 5 of Title 1 of the Government Code
and those services are procured in accordance with the requirements
of that chapter.
(h) The board shall provide, upon the request of a claimant,
assistance to the claimant in the selection of contractors retained
by the claimant to conduct reimbursable work related to corrective
actions. The board shall develop a summary of expected costs for
common corrective actions. This summary of expected costs may be used
by claimants as a guide in the selection and supervision of
consultants and contractors.
(i) (1) To the extent funding is available, the board shall pay,
within 60 days from the date of receipt of an invoice of
expenditures, all costs specified in the work plan developed pursuant
to Section 25296.10, and all costs that are otherwise necessary to
comply with an order issued by a local, state, or federal agency.
(2) If corrective action costs, third-party compensation costs, or
regulatory technical assistance costs submitted by a claimant are
approved for reimbursement by the board but funding is not available
for payment to the claimant at the time of approval, the board shall
reimburse carrying costs incurred by the claimant after November 7,
2008, but before June 30, 2010, subject to all of the following
limitations:
(A) The reimbursement for carrying costs shall not exceed the
carrying costs actually incurred by the claimant from the date the
corrective action costs, third-party compensation costs, or
regulatory technical assistance costs are approved for payment by the
board until the date that a check for the reimbursement request is
issued by the Controller.
(B) The reimbursement for carrying costs shall not exceed an
amount equivalent to a maximum annual percentage rate of 7 percent as
applied to the amount approved for reimbursement and for the period
calculated pursuant to subparagraph (A).
(C) The board shall not reimburse carrying costs that amount to
less than one hundred dollars ($100) per reimbursement request.
(D) The board shall not reimburse carrying costs that exceed 9
percent of the total amount of costs approved for the reimbursement
to which the carrying costs apply.
(E) A claimant may submit a request for reimbursement of carrying
costs after receipt of fund reimbursement for the corrective action
costs, third-party compensation costs, or regulatory technical
assistance costs to which the carrying costs apply. Additional
carrying costs associated with a reimbursement request for carrying
costs submitted pursuant to this paragraph are not eligible for
payment.
(F) This paragraph does not apply to tank owners or operators that
are not described in paragraph (1), (2), or (3) of subdivision (b)
of Section 25299.52.
(3) For the purposes of paragraph (2), "carrying cost" means the
interest expense incurred by a claimant to acquire money to pay costs
approved for reimbursement by the board but for which reimbursement
is delayed because funds are unavailable.
(j) (1) The board shall pay a claim of not more than three
thousand dollars ($3,000) per occurrence for regulatory technical
assistance to an owner or operator who is otherwise eligible for
reimbursement under this chapter.
(2) For the purposes of this subdivision, regulatory technical
assistance is limited to assistance from a person, other than the
claimant, in the preparation and submission of a claim to the fund.
Regulatory technical assistance does not include assistance in
connection with proceedings under Section 25296.40, 25299.39.2, or
25299.56 or any action in court.
(k) (1) Notwithstanding any other provision of this section, the
board shall pay a claim pursuant to this subdivision for a claim
subject to paragraph (2) or (3) for the costs of corrective
action to a person who owns property on which is located a release
from a petroleum underground storage tank that has been removed,
if the site has been the subject of a completed corrective
action, and for which additional corrective action is required
because of additionally discovered contamination from the previous
release as follows: release:
(A) If
(2) (A) The board
shall pay a claim pursuant to this paragraph, if
the person who carried out the earlier and completed corrective
action was eligible for, and applied for, reimbursement pursuant to
subdivision (b), reimbursement (b).
(B) Reimbursement for additional
corrective action shall be available only to the extent that the
amount of reimbursement for the earlier corrective action did not
exceed the amount of reimbursement authorized by subdivision (a).
Reimbursement
(C) Reimbursement to a claimant
on a reopened site pursuant to this paragraph shall occur
when funds are available, and the reimbursement commitment
shall be made ahead of any new letters of commitment to be issued,
as of the date of the reopening of the claim, if funding has occurred
on the original claim, in which case claim.
(D) If funding has not occurred on the
original claim, funding shall occur at the time it would have
occurred under the original claim.
(B) If the
(3) (A) The board may reimburse a claim pursuant to this
paragraph, if all of the following conditions are satisfied:
(i) The person who carried out
the earlier and completed corrective action did not apply for
reimbursement pursuant to subdivision (b), the
(b).
(ii) The person who owns the
property and is required to perform corrective
action because of additionally discovered contamination may
be reimbursed for incurred corrective action costs that are
reasonable and necessary. The contamination.
(iii) The person who owns the property is the owner or operator of
an underground storage tank located on the property at the time of
the application to the fund.
(iv) The person who owns the property is in compliance with the
requirements to pay the fee pursuant to Article 5 (commencing with
Section 25299.41).
(v) The person who owns the property is in compliance with the
requirements to obtain a permit pursuant to Chapter 6.7 (commencing
with Section 25280).
(B) The board shall assign the
person submitting a claim pursuant to this paragraph a
priority ranking consistent with the categories described in Section
25299.52, notwithstanding the requirement to be an owner or
operator. Reimbursement shall be limited to the amounts described in
Section 25299.59. 25299.52.
(C) The board shall limit reimbursement for a claim pursuant to
this paragraph to the amounts described in Section 25299.59 and for
the incurred corrective action costs that are necessary and
reasonable.
(2)
(4) For purposes of this subdivision, a corrective
action is completed when the local agency or regional board with
jurisdiction over the site or the board issues a closure letter
pursuant to subdivision (g) of Section 25296.10.
(l) (1) Claims for reimbursement of corrective action costs that
are received by the board more than 365 days after the date of
issuance of a closure letter issued pursuant to subdivision (g) of
Section 25296.10 or after the issuance or activation of a letter of
commitment, whichever occurs later, shall not be reimbursed unless
either of the following applies:
(A) Claims for corrective action costs are submitted to the board
pursuant to paragraph (1) of subdivision (k).
(B) The board finds that submission within the time period
specified in this paragraph was beyond the claimant's reasonable
control, ongoing work is required for closure that will result in
submission of claims beyond that time period, or that under the
circumstances of the particular case, it would be unreasonable or
inequitable to impose the time period specified in this paragraph.
(2) This section does not limit or abrogate the rights of a
claimant in disputing reimbursement determinations or suspension of
claims.
(3) For cases that have been issued a closure letter pursuant to
subdivision (g) of Section 25296.10 prior to January 1, 2012, the
board shall notify claimants of the 365-day filing deadline specified
in paragraph (1) on or before March 31, 2012, or upon issuance of a
letter of commitment, whichever occurs later.
SEC. 2. This act shall become operative only if legislation is
enacted in the 2013-14 Regular Session and becomes operative that
extends the January 1, 2014, reversion date in subdivision (f) of
Section 25299.43 of the Health and Safety Code to a date that is
after January 1, 2014.
