Existing law requires that actions for civil penalties or punitive damages under specified provisions relating to hazardous waste and hazardous substances be commenced within 5 years after the discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.

This bill would include actions relating to aboveground storage of petroleum within the 5-year limitations period.

Existing law requires that actions for civil penalties or punitive damages under specified provisions relating to hazardous waste and hazardous substances be commenced within 5 years after the discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.

This bill would include actions relating to aboveground storage of petroleum within the 5-year limitations period.

Existing law requires that actions for civil penalties or punitive damages under specified provisions relating to hazardous waste and hazardous substances be commenced within 5 years after the discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.

This bill would include actions relating to aboveground storage of petroleum within the 5-year limitations period.

 THIRD READING  

Bill No: AB 1980

Author:

:

Vote:

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-0, 6/6/18

AYES: Wieckowski, Stone, Gaines, Hill, Skinner

NO VOTE RECORDED: Lara, Stern

SENATE JUDICIARY COMMITTEE: 5-1, 6/12/18

AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski

NOES: Anderson

NO VOTE RECORDED: Moorlach

ASSEMBLY FLOOR: 68-1, 4/26/18 - See last page for vote

SUBJECT:

SOURCE: Alameda County District Attorney’s Office

DIGEST:

This bill extends the statute of limitations for commencing civil enforcement actions for Aboveground Petroleum Storage Act (APSA) violations from one to five years.

ANALYSIS: Existing federal law requires, pursuant to the federal Spill Prevention Control and Countermeasure (SPCC) rule (40 CFR Part 112), owners and operators of tank facilities to prepare and implement an SPCC Plan which is enforceable by Certified Unified Program Agencies (CUPAs).

Existing state law:

1. Enacts the APSA (Health and Safety Code §25270 et seq.), which:
   1. Defines “aboveground storage tank” (AST) as a “tank that has the capacity to store 55 gallons or more of petroleum and that is substantially or totally above the ground,” except as specified.
   2. Defines “petroleum” as “crude oil, or a fraction thereof, that is liquid at 60 degrees Fahrenheit temperature and 14.7 pounds per square inch absolute pressure.”
   3. Defines “tank facility” as one or more ASTs, including any piping integral to the tanks, that contain petroleum and that are used by the owner or operator at a single location or site.
   4. Requires CUPAs to implement APSA.
   5. Requires tank facilities with storage capacity between 1,320 gallons and 10,000 gallons to be subject to the requirements of APSA.
   6. Requires the owner or operator of an AST to prepare a spill prevention control and countermeasure plan, periodically inspect the AST, and allow the CUPA to inspect as well.
   7. Requires CUPAs to inspect tank facilities with a 10,000 gallon minimum total storage capacity at least once every three years.
   8. Requires the owner or operator to pay a fee to cover implementation costs of APSA.
   9. Authorizes the State Water Resources Control Board (SWRCB) and regional water quality control boards (RWQCBs) to oversee cleanup or abatement efforts of unauthorized releases from ASTs.
2. Requires the Department of Forestry and Fire Protection (CAL FIRE)–Office of the State Fire Marshal (OSFM) to adopt regulations and provide guidance and oversight to CUPAs implementing APSA.
3. Allows money in the Waste Discharge Permit Fund to be used by a regional board to remedy a significant unforeseen water pollution problem and other specified actions.
4. Authorizes CUPAs to assess administrative penalties on an owner or operator for failing to meet the requirements of APSA and provides that violations of specified APSA requirements are a misdemeanor.
5. Allows local tank ordinances to be more stringent than state or federal requirements, but since SB 1147 would allow more stringent requirements with an approved ordinance, there does not appear to be a conflict of language.
6. Provides a one-year statute of limitations for commencing civil enforcement actions in the case of APSA violations. (Code of Civil Procedure (CCP) §340)
7. Provides a five-year statute of limitations for commencing civil enforcement actions in the case of violations for the following environmental laws:
   1. Hazardous waste control;
   2. Underground storage of hazardous substances;
   3. Response to hazardous substance releases; and,
   4. Hazardous material release response plans

This bill extends the statute of limitations for commencing civil enforcement actions for APSA violations from one to five years.

Background

1. APSA. APSA regulates facilities with aggregate aboveground petroleum storage capacities of 1,320 gallons or more, which include aboveground storage containers or tanks with petroleum storage capacities of 55 gallons or greater. These facilities typically include large petroleum tank facilities, aboveground fuel tank stations and vehicle repair shops with aboveground petroleum storage tanks. APSA does not regulate non-petroleum products.

Facilities with total petroleum storage quantities at or above 10,000 gallons are inspected at least once every three years by a CUPA and have reporting and fee requirements, while facilities with petroleum storage quantities equal to or greater than 1,320 gallons but less than 10,000 gallons have reporting and fee requirements only.

All regulated facilities must meet the federal SPCC rule requirements and must develop a spill prevention, control, and countermeasure plan that meets federal requirements.

APSA was established following a major spill event in Martinez, California, in April 1988, during which an estimated 400,000 gallons of crude oil spilled into sensitive marshes, the Suisun Bay and the Bay Delta Estuary.

APSA required the RWQCBs to oversee inspections of AST facilities to ensure that a federally mandated SPCC plan was in place, that tanks were not leaking, and that a monitoring program was undertaken, if necessary. It also required owners and operators of ASTs, which at the time was approximately 4,500 fee-paying AST facilities, to file a storage statement and submit a biennial registration fee to the SWRCB. SWRCB was then required to use these fees to support the inspection program. The APSA also required CUPAs to enforce the requirements of the APSA regarding the SPCCs.

According to the SWRCB, in Fiscal Year 2002-03, due to the state’s fiscal crisis, the funding authority and positions for the AST inspection program were eliminated from SWRCB’s and regional boards’ budgets (Budget Act of 2002-03, Control Section 31.60). As a result, the SWRCB and the regional boards discontinued the AST inspection program. The owners and operators of AST facilities continued to pay the biennial fee into the Fund, which eventually obtained a balance of approximately $7.5 million.

AB 1130 (Laird, Chapter 626, Statutes of 2007) transferred the responsibility for the implementation, enforcement, and administration of the APSA from the SWRCB and RWQCBs to the CUPAs. In addition to other technical changes to the program, the bill deleted the existing fee structure and in its place authorized the CUPAs to collect a fee, beginning January 1, 2010, to cover reasonable and necessary program costs.

AB 1566 (Wieckowski, Chapter 532, Statutes of 2012) delegated state oversight responsibility to the OSFM effective January 1, 2013, and required regulations be adopted for state oversight of APSA implementation.

According to CAL FIRE, there are currently approximately 14,930 facilities regulated under the APSA requirement.

1. CUPA inspections. When a CUPA discovers an APSA violation, the CUPA may give the entity in violation an opportunity to correct the problem. However CUPAs are only required to inspect every three years. If they do not have the resources to inspect more often, they may not discover that the entity has not come into compliance until after the one-year clock has run out. In such a case, prosecution of potentially hundreds of days of violations would be barred by the one-year statute of limitations.
2. CUPA enforcement. With the exception of APSA, the laws authorizing the programs under the Unified Program are listed in CCP §338.1, affording them a five-year statute of limitations for commencing civil enforcement actions.

Comments

1. Purpose of Bill. According to the bill’s sponsor, the Alameda County District Attorney’s Office, it typically takes a year or more to investigate and prepare a case for these types of environmental violations. When a CUPA discovers an APSA violation, they may refer it to the district attorney (DA), city attorney, or Attorney General for prosecution. If the prosecutors take the case, they thoroughly investigate all potential violations. Where applicable, these include potential underground storage tank and hazardous material violations in addition to APSA violations. The investigations are complex and can require coordination throughout the state. As an example, a case settled in 2018 involved prosecution of environmental violations by eight California DA offices, including Alameda County’s, against operators of 57 AutoNation owned California dealerships. The case began in 2013, when Santa Clara CUPA inspectors noticed hazardous waste violations in several AutoNation locations. The resulting DA investigation included undercover inspection of dealerships’ trashcans and CUPA inspection reports in locations throughout the state. In addition to APSA, the final complaint included allegations of violations of two of the four CUPA-enforced provisions currently listed in CCP §338.1- hazardous waste control and hazardous material release response plans.
2. Consistent Enforcement. There is no clear reason why APSA’s statute of limitations should be one year compared to the five years afforded other programs enforced by CUPAs. APSA’s goal is primarily the same as the other laws in CCP §338.1– to prevent the unlawful release or spill of hazardous materials into the environment to protect the public and our natural resources.

Related/Prior Legislation

SB 1147 (Galgiani, 2016) would have prohibited a city, county, or city and county from enforcing standards for aboveground storage tanks that are more stringent than state or federal standards for aboveground storage tanks unless the city, county, or city and county first adopts an ordinance establishing those standards. The bill was held in the Assembly Committee on Environmental Safety and Toxic Materials.

AB 1566 (Wieckowski, Chapter 532, Statutes of 2012) transferred oversight responsibility of the CUPAs from the SWRCB to CAL FIRE-OSFM. It also revised the definition of "aboveground storage tank" to include tanks in underground areas, such as basements.

AB 305 (Nava, Chapter 429, Statutes of 2009) extended from one to five years the statute of limitations for commencing civil enforcement actions in the case of violations of hazardous material release response plans. (HSC §25500) The bill also increased penalties for violations.

AB 1946 (Nava, 2008) would have allowed DAs, upon request of the SWRCB or a RWQCB, to petition the superior court to recover civil penalties for violations of the Porter-Cologne Water Quality Control Act. In addition, the bill would have increased from one to five years the statute of limitations for commencing civil enforcement actions in the case of violations of hazardous material release response plans. (HSC §25500) The bill was vetoed by Governor Schwarzenegger.

AB 1130 (Laird, Chapter 626, Statutes of 2007) transferred the responsibility for the implementation, enforcement, and administration of APSA from the SWRCB and RWQCBs to the CUPAs.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 6/15/18)

Alameda County District Attorney’s Office (source)

California Association of Environmental Health Administrators

California District Attorney Association

Consumer Attorneys of California

OPPOSITION: (Verified 6/15/18)

American Pistachio Growers

California Citrus Mutual

California Cotton Ginners and Growers Association

California Fresh Fruit Association

California Independent Oil Marketers Association

California Independent Petroleum Association

Western Plant Health Association

ASSEMBLY FLOOR: 68-1, 4/26/18

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Daly, Eggman, Flora, Frazier, Friedman, Eduardo Garcia, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Weber, Wood, Rendon

NOES: Brough

NO VOTE RECORDED: Travis Allen, Bigelow, Dahle, Fong, Gallagher, Cristina Garcia, Gipson, Rodriguez, Waldron

Prepared by:

6/15/18 15:19:06

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 1980 (Author:Quirk)

Version: January 31, 2018

Hearing Date: June 12, 2018

Fiscal: No

Urgency: No

Consultant: CK

SUBJECT

Statute of limitations: hazardous materials

DESCRIPTION

This bill would extend the statute of limitations for violations of the Aboveground Petroleum Storage Act from one year to five years from the date of discovery of the relevant violation.

BACKGROUND

The Aboveground Petroleum Storage Act (APSA) subjects specified petroleum storage facilities to various statutory and regulatory requirements. (Health & Saf. Code Sec. 25270 et seq.) APSA was enacted in order to protect California’s residents and natural resources from aboveground petroleum storage tank spills. APSA is implemented by certified uniform program agencies (CUPAs) in accordance with regulations adopted by the Office of the State Fire Marshal.

Owners and operators of facilities subject to APSA must prepare a spill prevention control and countermeasure plan applying good engineering practices to prevent petroleum releases. They are also required to conduct periodic inspections, file specified statements, submit fees, timely report spills, and otherwise comply with applicable regulations. (Health & Saf. Code Secs. 25270.4.5, 25270.6, 25270.8.)

This bill would extend the statute of limitations for violations of APSA from one year to five years from the date of discovery of the relevant violation.

This bill passed out of the Senate Environmental Quality Committee 5-0.

CHANGES TO EXISTING LAW

Existing law establishes the Aboveground Petroleum Storage Act (APSA), which is implemented by Certified Unified Program Agencies (CUPAs), in accordance with regulations adopted by the Office of the State Fire Marshal. (Health & Saf. Code Sec. 25270 et seq.)

Existing law requires the owner or operator of a petroleum storage tank at a tank facility subject to APSA to prepare a spill prevention control and countermeasure plan applying good engineering practices to prevent petroleum releases. Such owners and operators are also required to conduct regular inspections and comply with applicable regulations. (Health & Saf. Code Sec. 25270.4.5.) APSA also requires these owners and operators to file specified statements, submit fees, and timely report spills. (Health & Saf. Code Secs. 25270.6, 25270.8.)

Existing law provides that an owner or operator’s failure to comply with APSA may be subject to a civil penalty of not more than $5,000 for each day on which the violation continues. If the owner or operator commits a second or subsequent violation, a civil penalty of not more than $10,000 for each day on which the violation continues may be imposed. These penalties may be assessed and recovered in a civil action brought by a city attorney, district attorney, or the Attorney General. The city attorney, district attorney, or the Attorney General may seek to enjoin, in any court of competent jurisdiction, any person believed to be in violation of APSA. (Health & Saf. Code Sec. 25270.12.)

Existing law prescribes the periods for the commencement of civil actions. (Code Civ. Proc. Sec. 335 et seq.) Civil actions, without exception, can only be commenced within those periods prescribed, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute. (Code Civ. Proc. Sec. 312.)

Existing law provides that specified actions upon a statute for a forfeiture or penalty must be commenced within one year. (Code Civ. Proc. Sec. 340.)

Existing law provides that an action for civil penalties or punitive damages authorized under Chapter 6.5 (commencing with Section 25100), Chapter 6.7 (commencing with Section 25280), Chapter 6.8 (commencing with Section 25300), or Chapter 6.95 (commencing with Section 25500) of Division 20 of the Health and Safety Code shall be commenced within five years after the discovery by the agency bringing the action of the facts constituting the grounds for commencing the action. (Code Civ. Proc. Sec. 338.1.)

This bill would extend the statute of limitations for violations of APSA from one year to five years from the date of discovery of the relevant violation.

COMMENT

1. Stated need for the bill

According to the author:

Spills from petroleum storage tanks can lead to a host of problems – from contaminated soil and drinking water to increased fire risk. The Aboveground Petroleum Storage Act (APSA) was enacted in 1990 as a direct response to the spill of over 400,000 gallons of petroleum from the Shell Oil Refinery in the City of Martinez into sensitive marshes, the Suisun Bay, and the Bay Delta Estuary. Under APSA, owners and operators of aboveground storage tank facilities are required to take comprehensive steps to prevent, mitigate, and control any release from these tanks. Currently, there is a one-year statute of limitations for APSA but a five-year statute of limitations for hazardous material and underground storage tank violations. If the one-year clock has run out by the time an investigation is complete, the APSA violation component of a case cannot be fully prosecuted. AB 1980 extends the statute of limitations for APSA from one year to five years. This parity will enable prosecutors to effectively enforce these important laws in the same manner they currently enforce other areas of environmental law.

2. Ensuring adequate enforcement of the Aboveground Petroleum Storage Act

A statute of limitations is a requirement to commence legal proceedings (either civil or criminal) within a specific period of time. Statutes of limitations are tailored to the cause of action at issue – for example, cases involving injury must be brought within two years from the date of injury, cases relating to written contracts must be brought four years from the date the contract was broken, and, as commonly referenced in the media, there is no statute of limitations for murder. Although it may appear unfair to bar actions after the statute of limitations has elapsed, that limitations period serves important policy goals that help to preserve both the integrity of our legal system and the due process rights of individuals.

For example, one significant reason that a limitations period is necessary in many cases is that evidence may disappear over time – paperwork gets lost, witnesses forget details or pass away, and physical locations that may be critical to a case change over time. Limitations periods also promote finality by encouraging an individual who has been wronged to bring an action sooner rather than later – timely actions arguably ensure that the greatest amount of evidence is available to all parties.

In general, California law requires all civil actions be commenced within applicable statutes of limitations. (Code Civ. Proc. Sec. 312.) Under existing law, the general statute of limitations in California to bring an action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another, is two years. (Code Civ. Proc. Sec. 335.1) Relevant here, the law provides that, unless otherwise provided, specified actions upon a statute for a forfeiture or penalty must be commenced within one year. (Code Civ. Proc. Sec. 340.)

This bill would extend the relevant statute of limitations for violations of the Aboveground Petroleum Storage Act (APSA) from one year to five years. Furthermore, the relevant causes of action would not accrue until discovery by the agency bringing the action of the facts constituting the grounds for commencing the action, thereby applying the so-called “discovery rule.”

Currently, APSA violations are subject to a one-year statute of limitations pursuant to Code of Civil Procedure Section 340. APSA provides for specified civil penalties that may be assessed and recovered in a civil action brought by a city attorney, district attorney, or the Attorney General. (Health & Saf. Code Sec. 25270.12.) The city attorney, district attorney, or the Attorney General may also seek to enjoin any person believed to be in violation of APSA.

The Alameda County District Attorney’s Office, the sponsor of this bill, contends that the current statute of limitations “does not provide investigators and prosecutors with sufficient time to initiate civil enforcement actions for APSA violations.” The author also points out that the certified uniform program agencies (CUPAs) responsible for implementing APSA are only required to conduct inspections every three years, increasing the likelihood that violations will have timed out before an investigation and case can be carried out.

Existing law currently establishes a five-year statute of limitations starting from the date of discovery by the agency bringing the action of the facts constituting the grounds for commencing the action for violations of various statutes. (Code Civ. Proc. Sec. 338.1.) These include actions for civil penalties or punitive damages authorized under the following provisions of the Health and Safety Code:

• Chapter 6.5 (commencing with Section 25100), which involves the control of hazardous waste;
• Chapter 6.7 (commencing with Section 25280), which involves the underground storage of hazardous substances;
• Chapter 6.8 (commencing with Section 25300), which involves releases of hazardous substances; and,
• Chapter 6.95 (commencing with Section 25500), which involves the release of hazardous materials.

This bill would simply apply this same limitations period to violations of APSA, providing consistency among these various statutes that involve the control of hazardous substances and materials.

3. Effect of an extended statute of limitations

The California Supreme Court has held:

The Legislature has authority to establish—and to enlarge—limitations periods. . . . [H]owever, legislative enlargement of a limitations period does not revive lapsed claims in the absence of express language of revival. This rule of construction grows out of an understanding of the difference between prospective and retroactive application of statutes. . . . As long as the former limitations period has not expired, an enlarged limitations period ordinarily applies and is said to apply prospectively to govern cases that are pending when, or instituted after, the enactment took effect. This is true even though the underlying conduct that is the subject of the litigation occurred prior to the new enactment. . . . However, when it comes to applying amendments that enlarge the limitations period to claims as to which the limitations period has expired before the amendment became law—that is, claims that have lapsed—the analysis is different. Once a claim has lapsed (under the formerly applicable statute of limitations), revival of the claim is seen as a retroactive application of the law under an enlarged statute of limitations. Lapsed claims will not be considered revived without express language of revival.

(Quarry v. Doe I (Quarry) (2012) 53 Cal.4th 945, 955-957, internal citations omitted.)

In summary, an extension of a limitations period, as this bill would effectuate, automatically extends the applicable period for conduct that occurred before the effective date of the change in law, but for which the limitations period has not expired. Claims are not revived if the previously-applicable period has expired unless there is express language in the relevant statute providing for such revival.

As this bill does not contain such express language, the new limitations period that would be created by this bill would only apply to violations for which the previously-applicable, one-year statute of limitations had not lapsed upon the effective date of this legislation.

4. Support

Writing in support, the California District Attorneys Association states: “In many instances it can take some time before environmental violations are discovered by regulators or law enforcement, fully investigated and then referred to the District Attorney for enforcement. By increasing the statute of limitations, prosecutors have more time to investigate these cases and hold polluters accountable.”

The Consumer Attorneys of California write in support:

Leaks and spills from aboveground petroleum storage can have severe consequences, including increased risk of fires and contamination of soil and drinking water. Under current law, there is a one year statute of limitations for APSA claims, however, investigations concerning leaks and spills are often time-consuming and complicated. Civil enforcement actions often take longer than a year to prepare due to the complex nature of these investigations, thereby barring APSA violations from ever being prosecuted.

By increasing APSA’s statute of limitations to 5 years, AB 1980 will help to ensure that prosecutors can effectively enforce these important environmental protections.

The California Association of Environmental Health Associates supports the bill arguing that “APSA is equally important as the environmental protection laws currently included in [Code of Civil Procedure Section] 338.1.”

Support: California Association of Environmental Health Associates; California District Attorneys Association; Consumer Attorneys of California

Opposition: None Known

HISTORY

Source: Alameda County District Attorney’s Office

Related Pending Legislation: None Known

Prior Legislation:

AB 1566 (Wieckowski, Ch. 532, Stats. 2012) transferred oversight responsibility of the CUPAs from the State Water Board to the Office of the State Fire Marshal. It also revised the definition of “aboveground storage tank.”

AB 305 (Nava, Ch. 429, Stats. 2009) extended from one to five years the statute of limitations for commencing civil enforcement actions in the case of violations of hazardous material release response plans, Chapter 6.95 (commencing with Section 25500) of the Health and Safety Code. It also increased penalties for violations.

AB 1130 (Laird, Ch. 626, Stats. 2007) transferred the responsibility for the implementation, enforcement, and administration of APSA from the State and Regional Water Boards to the CUPAs.

Prior Vote:

Senate Environmental Quality Committee (Ayes 5, Noes 0)

Assembly Floor (Ayes 68, Noes 1)

Assembly Judiciary Committee (Ayes 10, Noes 0)

Assembly Environmental Safety and Toxic Materials Committee (Ayes 6, Noes 0)

**************

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2017 - 2018 Regular

Bill No: AB 1980

SUBJECT: Statute of limitations: hazardous materials

ANALYSIS:

Existing federal law:

1. Pursuant to the federal Spill Prevention Control and Countermeasure (SPCC) rule (40 CFR Part 112), requires owners and operators of tank facilities to prepare and implement an SPCC Plan which is enforceable by Certified Unified Program Agencies (CUPAs).

Existing California law:

1. Under the Aboveground Petroleum Storage Act (APSA) (Health and Safety Code §25270 et seq.):
   
   1. Defines “aboveground storage tank” (AST) as a “tank that has the capacity to store 55 gallons or more of petroleum and that is substantially or totally above the ground,” except as specified.
      
   2. Defines “petroleum” as “crude oil, or a fraction thereof, that is liquid at 60 degrees Fahrenheit temperature and 14.7 pounds per square inch absolute pressure.”
   3. Defines “tank facility” as one or more ASTs, including any piping integral to the tanks, that contain petroleum and that are used by the owner or operator at a single location or site.
   4. Requires the Certified Unified Program Agencies (CUPAs) to implement APSA.
   5. Requires tank facilities with storage capacity between 1,320 gallons and 10,000 gallons to be subject to the requirements of APSA.
      
   6. Requires the owner or operator of an AST to prepare a spill prevention control and countermeasure plan, periodically inspect the AST, and allow the CUPA to inspect as well.
   7. Requires CUPAs to inspect tank facilities with a 10,000 gallon minimum total storage capacity at least once every three years.
   8. Requires the owner or operator to pay a fee to cover implementation costs of APSA.
   9. Authorizes the State Water Resources Control Board (SWRCB) and regional water quality control boards (RWQCBs) to oversee cleanup or abatement efforts of unauthorized releases from ASTs.
2. Requires the Department of Forestry and Fire Protection (CAL FIRE) – Office of the State Fire Marshal (OSFM) to adopt regulations and provide guidance and oversight to CUPAs implementing APSA.
   
3. Allows money in the Waste Discharge Permit Fund to be used by a regional board to remedy a significant unforeseen water pollution problem and other specified actions.
   
4. Authorizes CUPAs to assess administrative penalties on an owner or operator for failing to meet the requirements of APSA and provides that violations of specified APSA requirements are a misdemeanor.
5. Allows local tank ordinances to be more stringent than state or federal requirements, but since SB 1147 would allow more stringent requirements with an approved ordinance, there does not appear to be a conflict of language.
6. Provides a one-year statute of limitations for commencing civil enforcement actions in the case of APSA violations. (Code of Civil Procedure (CCP) §340)
7. Provides a five-year statute of limitations for commencing civil enforcement actions in the case of violations for the following environmental laws:
   1. Hazardous waste control;
   2. Underground storage of hazardous substances;
   3. Response to hazardous substance releases; and,
   4. Hazardous material release response plans

This bill: Extends the statute of limitations for commencing civil enforcement actions for APSA violations from one to five years.

Background

1. APSA. APSA regulates facilities with aggregate aboveground petroleum storage capacities of 1,320 gallons or more, which include aboveground storage containers or tanks with petroleum storage capacities of 55 gallons or greater. These facilities typically include large petroleum tank facilities, aboveground fuel tank stations and vehicle repair shops with aboveground petroleum storage tanks.

APSA does not regulate non-petroleum products.

Facilities with total petroleum storage quantities at or above 10,000 gallons are inspected at least once every three years by a Certified Unified Program Agency and have reporting and fee requirements, while facilities with petroleum storage quantities equal to or greater than 1,320 gallons but less than 10,000 gallons have reporting and fee requirements only.

All regulated facilities must meet the federal SPCC rule requirements and must develop a spill prevention, control, and countermeasure plan that meets federal requirements.

APSA was established following a major spill event in Martinez, California in April 1988, during which an estimated 400,000 gallons of crude oil spilled into sensitive marshes, the Suisun Bay and the Bay Delta Estuary.

APSA required the Regional Water Quality Control Boards (regional boards) to oversee inspections of AST facilities to ensure that a federally mandated SPCC plan was in place, that tanks were not leaking, and that a monitoring program was undertaken, if necessary. It also required owners and operators of ASTs, which at the time was approximately 4,500 fee-paying AST facilities, to file a storage statement and submit a biennial registration fee to the State Water Resources Control Board (SWRCB). SWRCB was then required to use these fees to support the inspection program. The APSA also required CUPAs to enforce the requirements of the APSA regarding the SPCCs.

According to the SWRCB, in Fiscal Year 2002-03, due to the state’s fiscal crisis, the funding authority and positions for the AST inspection program were eliminated from SWRCB’s and regional boards’ budgets (Budget Act of 2002-03, Control Section 31.60). As a result, the SWRCB and the regional boards discontinued the AST inspection program. The owners and operators of AST facilities continued to pay the biennial fee into the Fund, which eventually obtained a balance of approximately $7.5 million.

AB 1130 (Laird, Chapter 626, Statutes of 2007) transferred the responsibility for the implementation, enforcement, and administration of the APSA from the SWRCB and regional boards to the CUPAs. In addition to other technical changes to the program, the bill deleted the existing fee structure and in its place authorized the CUPAs to collect a fee, beginning January 1, 2010, to cover reasonable and necessary program costs.

AB 1566 (Wieckowski, Chapter 532, Statutes of 2012) delegated state oversight responsibility to the OSFM effective January 1, 2013 and required regulations be adopted for state oversight of APSA implementation.

According to CAL FIRE, there are currently approximately 14,930 facilities regulated under the APSA requirement.

1. CUPA inspections. When a CUPA discovers an APSA violation, the CUPA may give the entity in violation an opportunity to correct the problem. However CUPAs are only required to inspect every three years. If they do not have the resources to inspect more often, they may not discover that the entity has not come into compliance until after the one-year clock has run out. In such a case, prosecution of potentially hundreds of days of violations would be barred by the one-year statute of limitations.
2. CUPA enforcement. With the exception of APSA, the laws authorizing the programs under the Unified Program are listed in CCP §338.1, affording them a five-year statute of limitations for commencing civil enforcement actions.

Comments

1. Purpose of Bill. According to the bill’s sponsor, the Alameda County District Attorney’s Office, it typically takes a year or more to investigate and prepare a case for these types of environmental violations. When a CUPA discovers an APSA violation, they may refer it to the district attorney (DA), city attorney, or Attorney General for prosecution. If the prosecutors take the case, they thoroughly investigate all potential violations. Where applicable, these include potential underground storage tank and hazardous material violations in addition to APSA violations. The investigations are complex and can require coordination throughout the state. As an example, a case settled in 2018 involved prosecution of environmental violations by eight California DA offices, including Alameda County’s, against operators of 57 AutoNation owned California dealerships. The case began in 2013, when Santa Clara CUPA inspectors noticed hazardous waste violations in several AutoNation locations. The resulting DA investigation included undercover inspection of dealerships’ trashcans and CUPA inspection reports in locations throughout the state. In addition to APSA, the final complaint included allegations of violations of two of the four CUPA-enforced provisions currently listed in CCP §338.1- hazardous waste control and hazardous material release response plans.
2. Consistent Enforcement. There is no clear reason why APSA’s statute of limitations should be one year compared to the five years afforded other programs enforced by CUPAs. APSA’s goal is primarily the same as the other laws in CCP §338.1– to prevent the unlawful release or spill of hazardous materials into the environment to protect the public and our natural resources.

Related/Prior Legislation

SB 1147 (Galgiani, 2016). This bill would have prohibited a city, county, or city and county from enforcing standards for aboveground storage tanks that are more stringent than state or federal standards for aboveground storage tanks unless the city, county, or city and county first adopts an ordinance establishing those standards. The bill was held in the Assembly Committee on Environmental Safety and Toxic Materials.

AB 1566 (Wieckowski, Chapter 532, Statutes of 2012). This bill transferred oversight responsibility of the CUPAs from the State Water Board to CAL FIRE-Office of the State Fire Marshall. It also revised the definition of "aboveground storage tank" to include tanks in underground areas, such as basements.

AB 305 (Nava, Chapter 429, Statutes of 2009). This bill extended from one to five years the statute of limitations for commencing civil enforcement actions in the case of violations of hazardous material release response plans. (HSC §25500) The bill also increased penalties for violations.

AB 1946 (Nava, 2008). This bill would have allowed DAs, upon request of the State Water Board or a Regional Water Board, to petition the superior court to recover civil penalties for violations of the Porter-Cologne Water Quality Control Act. In addition, the bill would have increased from one to five years the statute of limitations for commencing civil enforcement actions in the case of violations of hazardous material release response plans. (HSC §25500) This bill was vetoed by Governor Schwarzenegger.

AB 1130 (Laird, Chapter 626, Statutes of 2007). This bill transferred the responsibility for the implementation, enforcement, and administration of APSA from the State and Regional Water Boards to the CUPAs.

SOURCE:

Alameda County District Attorney’s Office

SUPPORT:

California Association of Environmental Health Administrators

California District Attorney Association

Consumer Attorneys of California

OPPOSITION:

None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 1980

Author:(Quirk)

As Introduced Ver:January 31, 2018

Majority vote

SUMMARY: Extends the statute of limitations for commencing civil enforcement actions for Aboveground Petroleum Storage Act (APSA) violations from one to five years.

EXISTING LAW:

1. Governs the management of aboveground petroleum storage through the Aboveground Petroleum Storage Act (APSA). Provides a one-year statute of limitations for commencing civil enforcement actions in the case of APSA violations.
2. Provides a five-year statute of limitations for commencing civil enforcement actions in the case of violations for the following environmental laws:
   1. Hazardous waste control;
   2. Underground storage of hazardous substances;
   3. Response to hazardous substance releases; and,
   4. Hazardous material release response plans.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: According to the author, "Spills from petroleum storage tanks can lead to a host of problems–from contaminated soil and drinking water to increased fire risk. The Aboveground Petroleum Storage Act (APSA) was enacted in 1990 as a direct response to the spill of over 400,000 gallons of petroleum from the Shell Oil Refinery in the City of Martinez into sensitive marshes, the Suisun Bay, and the Bay Delta Estuary. Under APSA, owners and operators of aboveground storage tank facilities are required to take comprehensive steps to prevent, mitigate, and control any release from these tanks. Currently, there is a one-year statute of limitations for APSA but a five-year statute of limitations for hazardous material and underground storage tank violations. If the one-year clock has run out by the time an investigation is complete, the APSA violation component of a case cannot be fully prosecuted. AB 1980 extends the statute of limitations for APSA from one year to five years. This parity will enable prosecutors to effectively enforce these important laws in the same manner they currently enforce other areas of environmental law."

Storage tank facilities: Typical storage tank facilities regulated by APSA include large petroleum tank facilities, such as those operated by petroleum wholesalers; aboveground fuel tank stations, such as those operated for airports or light rail; and, vehicle repair shops with aboveground petroleum storage tanks.

Certified Unified Program Agencies (CUPAs): The Unified Program unifies administration, permitting, inspection, and enforcement of hazardous waste and hazardous materials management programs across the state. Hazardous materials include petroleum. There are currently 81 CUPAs in California. The Unified Program manages the following programs:

1. Hazardous Materials Release Response Plans and Inventories;
2. California Accidental Release Prevention Program;
3. Underground Storage Tank Program;
4. APSA;
5. Hazardous Waste Generator and Onsite Hazardous Waste Treatment Programs; and,
6. California Uniform Fire Code: Hazardous Material Management Plans and Hazardous Material Inventory Statements.

With the exception of APSA, the laws authorizing the programs under the Unified Program are listed in Code of Civil Procedure Section (CCP) 338.1, affording them a five-year statute of limitations for commencing civil enforcement actions.

Investigating APSA violations: After discovering a violation, a CUPA may work with the entity in violation to give them an opportunity to come back into compliance before referring a case for prosecution. According to the bill's sponsor, the Alameda County District Attorney's Office, it typically takes a year or more to fully investigate and prepare such cases. All potential violations are thoroughly investigated, including, where applicable, potential underground storage tank and hazardous material violations in addition to APSA violations. Furthermore, cases can require coordination throughout the state.

Example of a recent APSA violation case: A case settled in 2018 involved prosecution of environmental violations by eight California District Attorney (DA) offices, including Alameda County's, against operators of 57 AutoNation owned California dealerships. The case began in 2013, when Santa Clara CUPA inspectors noticed hazardous waste violations in several AutoNation locations. The resulting DA investigation included undercover inspection of dealerships' trashcans and CUPA inspection reports in locations throughout the state. In addition to APSA, the final complaint included allegations of violations of two of the four CUPA-enforced provisions currently listed in CCP 338.1- hazardous waste control and hazardous material release response plans.

No justification identified: Research yielded no justification for why APSA's statute of limitations should be one year compared to the five years afforded other programs enforced by CUPAs. APSA's goal is primarily the same as the other laws in CCP 338.1– to prevent the unlawful release or spill of hazardous materials into the environment to protect the public and our natural resources.

Analysis Prepared by: Amy Gilson / E.S. & T.M. / (916) 319-3965 FN: 0002704

Date of Hearing: April 17, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1980

Author:(Quirk) – As Introduced Ver:January 31, 2018

SUBJECT: STATUTE OF LIMITATIONS: HAZARDOUS MATERIALS

KEY ISSUE: SHOULD THE STATUTE OF LIMITATIONS FOR COMMENCING CIVIL ACTIONS IN ABOVEGROUND PETROLEUM STORAGE ACT (APSA) VIOLATIONS BE INCREASED FROM ONE YEAR TO FIVE YEARS?

SYNOPSIS

Existing law provides a one-year statute of limitations for aboveground petroleum storage tank spills, but specifies a five-year statute of limitations for commencing civil actions for other hazardous material violations. This measure would extend the statute of limitations for aboveground petroleum storage act violations from one to five years, allowing more time for investigation and prosecution of cases. This bill is sponsored by the Alameda County District Attorney and is supported by the Consumer Attorneys of California and the California Association of Environmental Health Administrators. It previously passed out of the Assembly Environmental Safety and Toxic Materials Committee by a vote of 6-0.

SUMMARY: Increases the statute of limitations for commencing civil enforcement actions for Aboveground Petroleum Storage Act (APSA) violations from one to five years.

EXISTING LAW:

1. Specifies a one-year statute of limitations for commencing civil enforcement actions related to APSA violations. (Code of Civil Procedure (CCP) section 340.)
2. Provides a five-year statute of limitations for commencing civil enforcement actions following violations involving:
3. Hazardous waste control;
4. Underground storage of hazardous substances;
5. Response to hazardous substance releases; and,
6. Hazardous material release response plans. (CCP Section 338.1.)
7. Directs the management of aboveground petroleum storage tanks with a capacity of 55 gallons under the APSA. (Health and Safety Code (HSC) Section 25270 et seq.)
   1. Defines an "aboveground storage tank" as a tank that has the capacity to store 55 gallons or more of petroleum and that is substantially or totally above the surface of the ground or in an underground area, such as a basement. (HSC Section 25270.2 (a).)
   2. Requires an owner or operator of a facility with aboveground petroleum storage capacity above 1,320 gallons to prepare and implement a spill prevention control and countermeasure (SPCC) plan. (HSC Section 25270.3.)
   3. Mandates periodic inspections of aboveground petroleum storage tank(s). (HSC Section 25270.4.5.)
   4. Provides that Certified Unified Program Agencies (CUPA) are designated to enforce APSA. (HSC Section 25270.2.)
   5. Requires CUPAs to inspect facilities with a storage capacity of 10,000 gallons or more of petroleum at least once every three years to ensure the owner or operator is in compliance with their SPCC plan. (HSC Section 25270.5.)
   6. Directs the Office of the State Fire Marshall to adopt regulations implementing APSA and overseeing the CUPAs. (HSC Section 25270.4.1.)
   7. Authorizes the State Water Resources Control Board and Regional Water Quality Control Boards to oversee cleanup or abatement efforts resulting from a release from an aboveground petroleum storage tank. (HSC Section 25270.9.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: This bill seeks to increase the statute of limitations for commencing civil enforcement actions for APSA violations. According to the author:

Spills from petroleum storage tanks can lead to a host of problems–from contaminated soil and drinking water to increased fire risk. The Aboveground Petroleum Storage Act (APSA) was enacted in 1990 as a direct response to the spill of over 400,000 gallons of petroleum from the Shell Oil Refinery in the City of Martinez into sensitive marshes, the Suisun Bay, and the Bay Delta Estuary. Under APSA, owners and operators of aboveground storage tank facilities are required to take comprehensive steps to prevent, mitigate, and control any release from these tanks. Currently, there is a one-year statute of limitations for APSA but a five-year statute of limitations for hazardous material and underground storage tank violations. If the one-year clock has run out by the time an investigation is complete, the APSA violation component of a case cannot be fully prosecuted. AB 1980 extends the statute of limitations for APSA from one year to five years. This parity will enable prosecutors to effectively enforce these important laws in the same manner they currently enforce other areas of environmental law.

Certified Unified Program Agencies (CUPAs). The Unified Program was created by SB 1082 in 1993 (Calderon, Ch. 418, Stats. of 1993) to unify administration, permits, inspections, and enforcement of hazardous waste and hazardous materials management programs across the state. Hazardous materials include petroleum. Local Certified Unified Program Agencies (CUPAs) implementing these programs are certified by the California Environmental Protection Agency. The Unified Program manages the following programs:

1. Hazardous Materials Release Response Plans and Inventories;
2. California Accidental Release Prevention Program;
3. Underground Storage Tank Program;
4. Aboveground Petroleum Storage Act;
5. Hazardous Waste Generator and Onsite Hazardous Waste Treatment Programs; and,
6. Hazardous Material Management Plans and Hazardous Material Inventory Statements.

Background on Statutes of Limitations for CUPA Programs. Statutes of limitations specify how long a party has to bring legal action. According to Witkin, they "are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and the right to be free of stale claims in time comes to prevail over the right to prosecute them." (3 Witkin, Cal. Procedure (5^th ed. 2008) Meritorious or Favored Defense Sec. 433, p. 551.)

Under Code of Civil Procedure Section 338.1, civil actions to enforce non-APSA hazardous material violations that are overseen by CUPAs “shall be commenced within five years after the discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.” However, despite the fact that APSA has the same underlying goal – preventing unlawful releases or spills of hazardous materials into the environment – current law provides only a one-year statute of limitations for bringing civil actions based upon violations related to aboveground petroleum storage. Recent cases (detailed below) demonstrate that the current one-year statute of limitations for APSA violations may not provide adequate time for investigation, especially given the potential need for multiple agencies in separate jurisdictions to coordinate on complex cases.

Additionally, if evidence cannot be gathered in the one-year time period after the violation as allowed under current law, the existing statute of limitations may preclude the filing of charges or cause the premature filing of charges due to inadequate time for investigation. And, since oversight of APSA violations is completed by CUPAs, the one-year statute of limitations for civil actions based upon aboveground petroleum storage violations could theoretically detract from the entity’s ability to adequately regulate non-APSA violations, since resources may be focused on addressing the issue with the shorter statute of limitations. Additionally, the author notes that when prosecutors need more time for an investigation, they must negotiate a Tolling Agreement in order to freeze the clock on the statute of limitations. However, in cases where no agreement can be reached, APSA violations would be unable to be prosecuted due to expiration of the statute of limitations.

Example of a Recent APSA Violation Case. A case settled in 2018 that involved prosecution of environmental violations by eight California district attorneys, including Alameda County’s (the sponsor of this measure), against operators of 57 AutoNation dealerships. The case began in 2013, when Santa Clara CUPA inspectors noticed hazardous waste violations in several AutoNation facilities. The resulting DA investigation included undercover inspection of dealerships’ trashcans and CUPA inspection reports across the state. In addition to APSA violations, the final complaint included allegations of violations of two of the four CUPA-enforced violations -- hazardous waste control and hazardous material release response plans – both of which fell under longer five-year statute of limitations afforded to these types of hazardous material violations.

According to the Alameda County District Attorney’s Office, it typically takes a year or more to investigate and prepare cases involving these types of environmental violations. When a CUPA discovers an APSA violation, they may refer it to the district attorney, city attorney, or Attorney General for prosecution. If the prosecutors take the case, they thoroughly investigate all potential violations. Where applicable, this may include looking into potential underground storage tank and hazardous material violations in addition to APSA violations. The investigations are complex and can require coordination of law enforcement resources throughout the state.

ARGUMENTS IN SUPPORT: Supporters of the bill argue that the current statute of limitations for APSA violations does not provide sufficient time for investigation of the violation and referral to the relevant agency for enforcement. Additionally, the Association of Environmental Health Administrators contends that APSA has equal importance to other environmental protection laws that currently have a five-year statute of limitations. By extending the statute of limitations, supporters argue that this measure will give prosecutors more time to investigate possible violations and hold polluters accountable.

Prior Legislation. AB 1566 (Wieckowski, Ch. 532, Stats. of 2012) transferred oversight responsibility of the CUPAs from the State Water Board to CAL FIRE-Office of the State Fire Marshall. It also revised the definition of "aboveground storage tank" to include tanks in underground areas, such as basements.

AB 305 (Nava, Ch. 429, Stats. of 2009) extended from one to five years the statute of limitations for commencing civil enforcement actions in the case of violations of hazardous material release response plans. (HSC section 25500.) The bill also increased penalties for violations.

AB 1946 (Nava, 2008) would have allowed DAs, upon request of the State Water Board or a Regional Water Board, to petition the superior court to recover civil penalties for violations of the Porter-Cologne Water Quality Control Act. In addition, the bill would have increased from one to five years the statute of limitations for commencing civil enforcement actions in the case of violations of hazardous material release response plans. (HSC section 25500.) This bill was vetoed by then-Governor Schwarzenegger.

AB 1130 (Laird, Ch. 626, Stats. of 2007) transferred the responsibility for the implementation, enforcement, and administration of APSA from the State and Regional Water Boards to the CUPAs.

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda County District Attorney (sponsor)

California Association of Environmental Health Administrators

California District Attorneys Association

Consumer Attorneys of California

Opposition

None on file

Analysis Prepared by: Sandra Nakagawa / JUD. / (916) 319-2334

Date of Hearing: March 20, 2018

ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS

Bill Quirk, Chair

ABPCA Bill Id:AB 1980 (

Author:Quirk) – As Introduced Ver:January 31, 2018

SUBJECT: Statute of limitations: hazardous materials

SUMMARY: Extends the statute of limitations for commencing civil enforcement actions for Aboveground Petroleum Storage Act (APSA) violations from one to five years.

EXISTING LAW:

1. Governs the management of aboveground petroleum storage through the Aboveground Petroleum Storage Act (APSA). (Health and Safety Code (HSC) §25270 et seq.)
   1. Requires each owner or operator of a facility with aboveground petroleum storage capacities above 1,320 gallons to prepare and implement a spill prevention control and countermeasure (SPCC) plan that is consistent with existing regulations. Requires owners or operators to conduct periodic inspections of the storage tank(s). (HSC §25270.4.5(a))
   2. Defines an "aboveground storage tank" as a tank that has the capacity to store 55 gallons or more of petroleum and that is substantially or totally above the surface of the ground or in an underground area, such as a basement. (HSC §25270.2(a))
   3. Identifies Certified Unified Program Agencies (CUPA) as the only bodies authorized to enforce APSA (HSC §25270.2) and requires CUPAs to inspect facilities with a storage capacity of 10,000 gallons or more of petroleum at least once every three years to ensure the owner or operator is in compliance with their SPCC plan. (HSC §25270.5)
   4. Directs the Office of the State Fire Marshall to adopt regulations implementing APSA and oversee the implementation of APSA by the CUPAs. (HSC §25270.4.1)
   5. Authorizes the State Water Resources Control Board (State Water Board) and Regional Water Quality Control Boards (Regional Water Boards) to oversee cleanup or abatement efforts resulting from a release from a petroleum storage tank. (HSC §25270.9)
2. Provides a one-year statute of limitations for commencing civil enforcement actions in the case of APSA violations. (Code of Civil Procedure (CCP) §340)
3. Provides a five-year statute of limitations for commencing civil enforcement actions in the case of violations for the following environmental laws:
4. Hazardous waste control;
5. Underground storage of hazardous substances;
6. Response to hazardous substance releases; and,
7. Hazardous material release response plans. (CCP §338.1)

FISCAL EFFECT: Unknown.

COMMENTS:

Need for the bill: According to the author, "Spills from petroleum storage tanks can lead to a host of problems–from contaminated soil and drinking water to increased fire risk. The Aboveground Petroleum Storage Act (APSA) was enacted in 1990 as a direct response to the spill of over 400,000 gallons of petroleum from the Shell Oil Refinery in the City of Martinez into sensitive marshes, the Suisun Bay, and the Bay Delta Estuary. Under APSA, owners and operators of aboveground storage tank facilities are required to take comprehensive steps to prevent, mitigate, and control any release from these tanks. Currently, there is a one-year statute of limitations for APSA but a five-year statute of limitations for hazardous material and underground storage tank violations. If the one-year clock has run out by the time an investigation is complete, the APSA violation component of a case cannot be fully prosecuted. AB 1980 extends the statute of limitations for APSA from one year to five years. This parity will enable prosecutors to effectively enforce these important laws in the same manner they currently enforce other areas of environmental law."

Storage tank facilities: Typical storage tank facilities regulated by APSA include large petroleum tank facilities, such as those operated by petroleum wholesalers; aboveground fuel tank stations, such as those operated for airports or light rail; and, vehicle repair shops with aboveground petroleum storage tanks.

Certified Unified Program Agencies: The Unified Program was created by SB 1082 (Calderon 1993), to unify administration, permits, inspections, and enforcement of hazardous waste and hazardous materials management programs across the state. Hazardous materials include petroleum. Local agencies (CUPAs) implementing these programs are certified by the California Environmental Protection Agency. Currently, there are 81 CUPAs in California. The Unified Program manages the following programs:

1. Hazardous Materials Release Response Plans and Inventories;
2. California Accidental Release Prevention Program;
3. Underground Storage Tank Program;
4. Aboveground Petroleum Storage Act;
5. Hazardous Waste Generator and Onsite Hazardous Waste Treatment Programs; and,
6. California Uniform Fire Code: Hazardous Material Management Plans and Hazardous Material Inventory Statements.
   

Statutes of limitations for CUPA programs: With the exception of APSA, the laws authorizing the programs under the Unified Program are listed in CCP §338.1, affording them a five-year statute of limitations for commencing civil enforcement actions.

History of APSA enforcement: Initially, the State Water Board was tasked with administering APSA, Regional Water Boards were responsible for conducting inspections, and, once created, CUPAs ensured completion of SPCCs plans, referring noncompliance to the State Water Board. However, all inspection and enforcement activities were stopped after the State Water Board’s resources for the program were cut during the 2002-2003 financial crisis.

The aboveground storage tank compliance program was reactivated in 2008 when responsibility for administration, implementation, and enforcement of APSA was transferred from the State Water Board and Regional Water Boards to the CUPAs (AB 1130 (Laird, Chapter 626, Statutes of 2007)). In 2013, California Department of Forestry and Fire Protection (CAL FIRE)-Office of the State Fire Marshal assumed regulatory authority and oversight responsibility of APSA to provide statewide consistency in implementation (AB 1566 (Wieckowski, Chapter 532, Statutes of 2012)).

CUPA inspections: When a CUPA discovers an APSA violation, the CUPA may give the entity in violation an opportunity to correct the problem. However CUPAs are only required to inspect every three years. If they do not have the resources to inspect more often, they may not discover that the entity has not come into compliance until after the one-year clock has run out. In such a case, prosecution of potentially hundreds of days of violations would be barred by the one-year statute of limitations.

Investigating APSA violations: According to the bill’s sponsor, the Alameda County District Attorney’s Office, it typically takes a year or more to investigate and prepare a case for these types of environmental violations. When a CUPA discovers an APSA violation, they may refer it to the district attorney (DA), city attorney, or Attorney General for prosecution. If the prosecutors take the case, they thoroughly investigate all potential violations. Where applicable, these include potential underground storage tank and hazardous material violations in addition to APSA violations. The investigations are complex and can require coordination throughout the state. As an example, a case settled in 2018 involved prosecution of environmental violations by eight California DA offices, including Alameda County’s, against operators of 57 AutoNation owned California dealerships. The case began in 2013, when Santa Clara CUPA inspectors noticed hazardous waste violations in several AutoNation locations. The resulting DA investigation included undercover inspection of dealerships’ trashcans and CUPA inspection reports in locations throughout the state. In addition to APSA, the final complaint included allegations of violations of two of the four CUPA-enforced provisions currently listed in CCP §338.1- hazardous waste control and hazardous material release response plans.

No justification identified: Research yielded no justification for why APSA’s statute of limitations should be one year compared to the five years afforded other programs enforced by CUPAs. APSA’s goal is primarily the same as the other laws in CCP §338.1– to prevent the unlawful release or spill of hazardous materials into the environment to protect the public and our natural resources.

Related legislation:

1. SB 1147 (Galgiani, 2016). This bill would have prohibited a city, county, or city and county from enforcing standards for aboveground storage tanks that are more stringent than state or federal standards for aboveground storage tanks unless the city, county, or city and county first adopts an ordinance establishing those standards. The bill was held in the Assembly Committee on Environmental Safety and Toxic Materials.
   
2. AB 1566 (Wieckowski, Chapter 532, Statutes of 2012). This bill transferred oversight responsibility of the CUPAs from the State Water Board to CAL FIRE-Office of the State Fire Marshall. It also revised the definition of "aboveground storage tank" to include tanks in underground areas, such as basements.
3. AB 305 (Nava, Chapter 429, Statutes of 2009). This bill extended from one to five years the statute of limitations for commencing civil enforcement actions in the case of violations of hazardous material release response plans. (HSC §25500) The bill also increased penalties for violations.
   
4. AB 1946 (Nava, 2008). This bill would have allowed DAs, upon request of the State Water Board or a Regional Water Board, to petition the superior court to recover civil penalties for violations of the Porter-Cologne Water Quality Control Act. In addition, the bill would have increased from one to five years the statute of limitations for commencing civil enforcement actions in the case of violations of hazardous material release response plans. (HSC §25500) This bill was vetoed by Governor Schwarzenegger.
   
5. AB 1130 (Laird, Chapter 626, Statutes of 2007). This bill transferred the responsibility for the implementation, enforcement, and administration of APSA from the State and Regional Water Boards to the CUPAs.

Double-referral: Should this bill pass the Assembly Environmental Safety and Toxic Materials Committee, it will be re-referred to the Assembly Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda County District Attorney’s Office (Sponsor)

California Association of Environmental Health Administrators

Opposition

None on record

Analysis Prepared by: Amy Gilson / E.S. & T.M. /