Existing law, the County Water District Law, provides for the formation and operation of county water districts, and specifies the powers and purposes of those districts.

Existing law provides for the regulation by the State Water Resources Control Board of underground storage tanks, as defined, designed to contain an accumulation of hazardous substances. The Aboveground Petroleum Storage Act generally regulates aboveground storage tanks, as defined, that contain petroleum and that meet certain requirements.

This bill would specifically authorize the Sierra Lakes County Water District, in order to regulate, prohibit, or control the discharge of pollutants, waste, or other materials in groundwater or surface waters, (1) to adopt by ordinance requirements relating to the installation and use of small aboveground or small underground tanks, as defined, designed to contain an accumulation of hazardous substances, and (2) to prohibit by ordinance the installation of new small underground tanks or new underground storage tanks, as defined, for the storage of petroleum within the tributary watershed of Lakes Serena and Dulzura. The bill would authorize an adopted ordinance to provide that a violation of the ordinance is an infraction, constitutes a nuisance, or both. The bill would authorize an adopted ordinance to provide that a violation of the ordinance may be redressed by a civil action brought by the district and to provide that each day of the violation constitutes a separate offense.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Sierra Lakes County Water District.

Existing law, the County Water District Law, provides for the formation and operation of county water districts, and specifies the powers and purposes of those districts.

Existing law provides for the regulation by the State Water Resources Control Board of underground storage tanks, as defined, designed to contain an accumulation of hazardous substances. The Aboveground Petroleum Storage Act generally regulates aboveground storage tanks, as defined, that contain petroleum and that meet certain requirements.

This bill would specifically authorize the Sierra Lakes County Water District, in order to regulate, prohibit, or control the discharge of pollutants, waste, or other materials in groundwater or surface waters, (1) to adopt by ordinance requirements relating to the installation and use of small aboveground or small underground tanks, as defined, designed to contain an accumulation of hazardous substances, and (2) to prohibit by ordinance the installation of new small underground tanks or new underground storage tanks, as defined, for the storage of petroleum within the tributary watershed of Lakes Serena and Dulzura. The bill would authorize an adopted ordinance to provide that a violation of the ordinance is an infraction, constitutes a nuisance, or both. The bill would authorize an adopted ordinance to provide that a violation of the ordinance may be redressed by a civil action brought by the district and to provide that each day of the violation constitutes a separate offense.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Sierra Lakes County Water District.

Existing law, the County Water District Law, provides for the formation and operation of county water districts, and specifies the powers and purposes of those districts.

Existing law provides for the regulation by the State Water Resources Control Board of underground storage tanks, as defined, designed to contain an accumulation of hazardous substances. The Aboveground Petroleum Storage Act generally regulates aboveground storage tanks, as defined, that contain petroleum and that meet certain requirements.

This bill would specifically authorize the Sierra Lakes County Water District, in order to regulate, prohibit, or control the discharge of pollutants, waste, or other materials in groundwater or surface waters, (1) to adopt by ordinance requirements relating to the installation and use of small aboveground or small underground tanks, as defined, designed to contain an accumulation of hazardous substances, and (2) to prohibit by ordinance the installation of new small underground tanks or new underground storage tanks, as defined, for the storage of petroleum within the tributary watershed of Lakes Serena and Dulzura. The bill would authorize the violation of an adopted ordinance to be provide that a violation of the ordinance is an infraction and to constitute infraction, constitutes a nuisance. nuisance, or both. The bill would authorize a violation of an adopted ordinance to provide that a violation of the ordinance may be redressed by a civil action brought by the district and would to provide that each day of the violation would constitute constitutes a separate offense.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Sierra Lakes County Water District.

Existing law, the County Water District Law, provides for the formation and operation of county water districts, and specifies the powers and purposes of those districts.

Existing law provides for the regulation by the State Water Resources Control Board of underground storage tanks, as defined, designed to contain an accumulation of hazardous substances. The Aboveground Petroleum Storage Act generally regulates aboveground storage tanks, as defined, that contain petroleum and that meet certain requirements.

This bill would specifically authorize the Sierra Lakes County Water District, in order to regulate, prohibit, or control the discharge of pollutants, waste, or other materials in groundwater or surface waters, (1) to adopt by ordinance requirements relating to the installation and use of aboveground or underground tanks, as defined, designed to contain an accumulation of hazardous substances. substances, and (2) to prohibit by ordinance the installation of new underground tanks or new underground storage tanks, as defined, for the storage of petroleum within the tributary watershed of Lakes Serena and Dulzura. The bill would authorize the violation of an adopted ordinance to be an infraction and to constitute a nuisance. The bill would authorize a violation of an adopted ordinance to be redressed by a civil action brought by the district and would provide that each day of the violation would constitute a separate offense.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Sierra Lakes County Water District.

Existing law, the County Water District Law, provides for the formation and operation of county water districts, and specifies the powers and purposes of those districts.

This bill would specifically authorize the Sierra Lakes County Water District District, in order to regulate, prohibit, or control the discharge of pollutants, waste, or other materials in groundwater or surface waters, to adopt by ordinance specified requirements relating to the installation and use of tanks used for the storage of petroleum. aboveground or underground tanks, as defined, designed to contain an accumulation of hazardous substances. The bill would authorize the violation of the specified ordinances an adopted ordinance to be an infraction and to constitute a nuisance. The bill would authorize a violation of the an adopted ordinance to be redressed by a civil action brought by the district, and district and would provide that each day of the violation would constitute a separate offense.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Sierra Lakes County Water District.

Existing law, the County Water District Law, provides for the formation and operation of county water districts, and specifies the powers and purposes of those districts.

This bill would specifically authorize the Sierra Lakes County Water District to adopt by ordinance specified requirements relating to the installation and use of tanks used for the storage of petroleum. The bill would authorize the violation of the specified ordinances to be an infraction and constitute a nuisance. The bill would authorize a violation of the ordinance to be redressed by a civil action brought by the district, and each day of the violation would constitute a separate offense.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Sierra Lakes County Water District.

Existing law, the County Water District Law, provides for the formation and operation of county water districts, and specifies the powers and purposes of those districts.

This bill would specifically authorize the Sierra Lakes County Water District to adopt by ordinance specified requirements relating to the installation and use of tanks used for the storage of petroleum. The bill would authorize the violation of the specified ordinances to be an infraction and constitute a nuisance. The bill would authorize a violation of the ordinance to be redressed by a civil action brought by the district, and each day of the violation would constitute a separate offense.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Sierra Lakes County Water District.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 619

Author:(Dahle)

As Amended Ver:June 27, 2017

Majority vote

Original Committee Reference: E.S. & T.M.

SUMMARY: Authorizes the Sierra Lakes County Water District (District) to adopt, by ordinance, requirements relating to the installation and use of small tanks used for the storage of petroleum in order to regulate or control the discharge of pollutants from those tanks into groundwater or surface water.

The Senate amendments

1. Clarify that the District is authorized to regulate the discharge of pollutants from small aboveground and small underground tanks, including the prohibition of installing new small aboveground or underground tanks.
2. Defines a "small aboveground tank" as a tank that is substantially or totally above the surface of the ground with a capacity of 550 gallons or less.
3. Defines a "small underground tank" as a tank 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 with a capacity of 1,100 gallons or less.

EXISTING LAW:

1) Authorizes county water districts to take any action to furnish water, store and conserve water, sell water, operate water rights, establish rules for the sale or distribution of water, restrict the use of water during an emergency caused by drought or other shortage and prescribe and define by ordinance restrictions, prohibitions, and exclusions. (Water Code (WC) Section 31020-31027)

2) Finds and declares that underground tanks used for the storage of hazardous substances and wastes are potential sources of contamination of the ground and underlying aquifers, and may pose other dangers to public health and the environment. (Health and Safety Code (HSC) Section 25280 (a))

3) Defines "underground storage tank" as 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. States that an underground storage tank does not include a tank with a capacity of 1,100 gallons or less that is located on a farm or at a residence of a person and that stores motor vehicle fuel used primarily for agricultural purposes on a farm or stores home heating oil at a residence. (HSC Section 25281 (y)(1))

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

COMMENTS: Sierra Lakes County Water District (District): The District is a county water district supplying water and sewer services. It serves the Serene Lakes Community just outside of Soda Springs, California, on Donner Summit, at 7,000 feet of elevation. Water for residential use is drawn from Lake Serena. Human and animal contact (wading or swimming) is prohibited at all times and gasoline powered vehicles and boats are also prohibited on Lake Serena.

Currently, the District is in a difficult situation. It is required to protect its water sources; however, it lacks the authority to regulate smaller petroleum tanks, which could pollute the water sources within the District, and which are also outside the regulatory authority of the state's underground storage tank program due to their small size. In order to better protect the water resources within the District, this bill provides the District with the authority to regulate smaller underground and aboveground storage tanks not regulated under current law.

Analysis Prepared by: Josh Tooker / E.S. & T.M. / (916) 319-3965 FN: 0001081

 CONSENT  

Bill No: AB 619

Author:

:

Vote:

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 7-0, 6/7/17

AYES: Wieckowski, Stone, Gaines, Hill, Lara, Skinner, Stern

SENATE JUDICIARY COMMITTEE: 7-0, 6/20/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 77-0, 5/8/17 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill authorizes the Sierra Lakes County Water District, in order to regulate, prohibit, or control the discharge of pollutants, waste, or other materials in groundwater or surface waters, to adopt by ordinance requirements relating to the installation and use of aboveground or underground tanks, as defined.

ANALYSIS:

Existing law:

1. Provides, under the County Water District Law, for the formation and operation of county water districts, and specifies the powers and purposes of those districts.
2. Provides for the regulation by the State Water Resources Control Board (SWRCB) of underground storage tanks, as defined, designed to contain an accumulation of hazardous substances.
3. Regulates, generally, under the Aboveground Petroleum Storage Act, aboveground storage tanks, as defined, that contain petroleum and that meet certain requirements.

This bill:

1. Authorizes the Sierra Lakes County Water District, in order to regulate, prohibit, or control the discharge of pollutants, waste, or other materials in groundwater or surface waters, to adopt by ordinance requirements relating to the installation and use of aboveground or underground tanks, as defined, designed to contain an accumulation of hazardous substances.
2. Provides that the violation of an adopted ordinance is an infraction, constitutes nuisance or both.
3. Authorizes a violation of an adopted ordinance to be redressed by a civil action brought by the district and provides that each day of the violation would constitute a separate offense.

Background

1. Sierra Lakes County Water District: The Sierra Lakes County Water District is a county water district supplying water and sewer services. It serves the Serene Lakes Community just outside of Soda Springs, California, on Donner Summit, at 7,000 feet of elevation. Water for residential use is drawn from Lake Serena. Human and animal contact (wading or swimming) is prohibited at all times and gasoline powered vehicles and boats are also prohibited on Lake Serena.
2. Regulation of Underground Storage Tanks (USTs): SWRCB has established regulations governing the prevention of leaks from USTs. There are standards and requirements for installation, tank construction, tank testing, leak detection, spill containment, and overfill protection. California UST laws and regulations give local agencies (counties, cities, or other local agencies) authority throughout the state to issue permits for tank operation and to enforce tank testing requirements within their jurisdiction.

The purpose of the UST program is to protect public health and safety and the environment from releases of petroleum and other hazardous substances from tanks. Leaking underground storage tanks are a significant source of petroleum impacts to groundwater and may pose the following potential threats to health and safety: exposure from impacts to soil and/or groundwater, contamination of drinking water aquifers, contamination of public or private drinking water wells, and inhalation of vapors.

1. Regulation of aboveground storage tanks: The CAL FIRE-Office of the State Fire Marshal is responsible for the implementation of the Aboveground Petroleum Storage Act (APSA) program. 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. The Act 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 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.

AB 619 provides the District with the authority to regulate smaller underground and aboveground storage tanks not covered under current law. Currently, the District is in a difficult situation, it is required to protect its water sources; however, it lacks the authority to regulate these smaller tanks, which are also outside the regulatory authority of the state’s UST program. It is likely the District will tap the expertise of Placer County who has familiarity with the state’s UST program.

Comments

1. Purpose of Bill. According to the author, “AB 619 will allow the District to adopt by ordinance specific testing and construction requirements related to the use of small underground tanks for the storage of heating oil…

“The District’s primary drinking water source was not available for three weeks in 2016 due to a spill caused by a leaking underground heating oil tank. The fuel spill could have been catastrophic because the tank was located less than 200 feet from the shore of Lake Serene, the District’s water source, and very near the intake pipe. Lake Serene is located at nearly 7000 feet of elevation and feeds into the American River. Clean up costs of the oil spill have been significant and water monitoring is ongoing…

“State and federal regulations of underground fuel storage tanks apply only to tanks with capacity greater than 1,100 gallons. Additional state regulations also apply to underground fuel storage tanks but only when located within 1,000 feet of public drinking water wells.

“In the case of the District, an unknown number of aging underground heating oil tanks below the 1,100 gallon regulatory threshold exist in the community and any discharge would flow into the Lake.

“Because of these unique circumstances the District has no ability to inspect, monitor or regulate aging underground heating oil tanks that may leak into the community’s primary water source.

“AB 619 will allow the District to adopt by ordinance requirements relating to the installation and use of tanks used for the storage of petroleum heating oil. It will also authorize the prohibition of new underground storage tanks for petroleum based heating oil. AB 619 does not apply to the use or storage of propane gas.”

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/28/17)

Association of California Water Agencies

Placer County Health and Human Services Department

Serene Lakes Property Owners Association

Truckee Donner Land Trust

Truckee Fire Protection District

OPPOSITION: (Verified 6/28/17)

None received

ASSEMBLY FLOOR: 77-0, 5/8/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Medina, Patterson, Ting

Prepared by:

6/28/17 15:16:18

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 619 (Author:Dahle)

Version: June 5, 2017

Hearing Date: June 20, 2017

Fiscal: No

Urgency: No

Consultant: TSG

SUBJECT

Sierra Lakes County Water District

DESCRIPTION

This bill would permit the Sierra Lakes County Water District to adopt an ordinance regarding the use, monitoring, and installation of petroleum heating oil storage tanks, both above and below ground.

BACKGROUND

The Sierra Lakes County Water District serves approximately 600 residences high in the Sierra Nevada Mountains near Donner Summit. Its main source of potable water is Lake Serene.

In 2016, a leak was discovered in an underground heating oil tank located less than 200 feet from the edge of the lake and not far from the intake pipe through which the Water District draws the water for its customers. Although this particular leak was eventually contained and no contamination of the water supply has been detected to date, the incident highlighted the potential danger stemming from an unknown number of additional storage tanks, both buried and aboveground, that are believed to be present throughout the Serene Lake watershed.

The Sierra Lakes County Water District would like to take action to mitigate the risk that these storage tanks pose to its water supply. Specifically, the District would like to adopt an ordinance requiring regular testing of existing storage tanks within its jurisdiction and regulating future storage tank installation. To give its desired ordinance mechanisms for enforcement, the District would like to include consequences for violations, including summary abatement authority.

County water districts possess the power to adopt ordinances governing many aspects of the water delivery systems they oversee. (Wat. Code Sec. 31027.) County water districts are also empowered with legal tools to enforce their ordinances, including the right to enter onto private property of anyone within the district for enforcement purposes. (Wat. Code Sec. 31016.) However, existing law does not endow water districts with the legal authority to regulate petroleum storage tanks.

State law provides for some regulation of storage tanks, but in the unique case of Lake Serene, existing laws have not proven sufficient to respond to the unique threats that the watershed and community face. This bill would provide rule-making authority that the Sierra Lakes County Water District currently lacks, thus allowing it to address the unique threat to its water supply that it confronts: the possibility of further leaks from petroleum storage tanks in the Serene Lake watershed.

This bill passed out of the Senate Committee on Environmental Quality on a 7-0 vote.

CHANGES TO EXISTING LAW

Existing law authorizes county water districts generally to take any action to furnish water, store and conserve water, sell water, operate water rights, establish rules for the sale or distribution of water, restrict the use of water during an emergency caused by drought or other shortage and prescribe and define by ordinance restrictions, prohibitions, and exclusions. (Wat. Code Secs. 31020-31027.)

Existing law authorizes County Water Districts to enter upon private property of any person within the jurisdiction of the district in order to investigate the possible violation of an ordinance of the district. It requires the investigation to be made with consent of the owner or tenant of the property or, if consent is refused, with a warrant duly issued pursuant to the procedures set forth in Title 13 (commencing with Section 1822.50) of Part 3 of the Code of Civil Procedure. (Wat. Code Sec. 31016.)

Existing law prohibits the Sierra Lakes County Water District from exercising the authority in state law associated with fire protection, recreation, and sanitation. (Wat. Code Sec. 31015.)

Existing law finds and declares that underground tanks used for the storage of hazardous substances and wastes are potential sources of contamination of the ground and underlying aquifers, that such tanks may pose other dangers to public health and the environment, and that it is in the public interest to establish a continuing program for the purpose of preventing contamination from, and improper storage of, hazardous substances stored underground. (Health & Saf. Code Sec. 25280 (a).)

Existing law defines “underground storage tank” as one or more 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, but not a tank with a capacity of 1,100 gallons or less that is located on a farm or at a residence of a person and the tank stores motor vehicle fuel used primarily for agricultural purposes on a farm or stores home heating oil at a residence. (Health & Saf. Code Sec. 25281 (y)(1).)

Existing law defines “aboveground storage tank” as a tank that has the capacity to store 55 gallons or more of petroleum that is substantially or totally above the surface of the ground. (Health & Saf. Code Sec. 25270.2 (a).)

Existing law provides that violation of a city ordinance is a misdemeanor unless the ordinance makes it an infraction, and allows such a violation to be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action. (Gov. Code Sec. 36900 (a).)

Existing law provides that every violation determined to be an infraction is punishable by: (1) a fine not exceeding one hundred dollars ($100) for a first violation; (2) a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year; (3) a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year. (Gov. Code Sec. 36900(b).)

This bill would authorize the District to adopt, by ordinance, the following requirements relating to the installation and use of aboveground or underground tanks, in order to regulate or control the discharge of pollutants in groundwater or surface water:

• that an existing underground tank used for the storage of petroleum located within the tributary watershed of Lakes Serena and Dulzura be tested annually in accordance with the Non-Visual Monitoring/Quantitative Release Detection Methods provided in Section 2643 of Title 23 of the California Code of Regulations;
• that no new underground storage tank, as defined, may be installed within the tributary watershed of Lakes Serena and Dulzura; and
• that existing aboveground tanks or new aboveground tanks within the tributary watershed of Lakes Serena and Dulzura must include secondary containment that meets specified criteria in the California Fire Code.

This bill would allow the District to adopt an ordinance with provisions that make any violation of the ordinance an infraction, constituting a nuisance.

This bill would permit the District to adopt an ordinance that includes authorization for the District to bring a civil action to redress a violation of the ordinance.

This bill would permit the District to adopt an ordinance that provides that if a violation is determined to be an infraction, the violation may be punishable by: (1) a fine not exceeding one hundred dollars ($100) for a first violation; (2) a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year; (3) a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year, with each day of the violation constituting a separate offense.

This bill would authorize the District to adopt an ordinance with provisions for the summary abatement of the nuisance and for the initiation of civil proceedings to abate the nuisance.

This bill would allow the District to adopt an ordinance with provisions holding any person committing a nuisance liable for the costs incurred by the District to abate the nuisance, including, but not limited to, the costs of investigation, costs of time and materials expended to eliminate or mitigate the nuisance, court costs, attorney’s fees, and costs of monitoring compliance.

This bill would permit the District to adopt an ordinance that establishes that a court may assess civil penalties against persons that the court finds to have committed a nuisance.

This bill would specify key definitions, including but not limited to the following:

• “aboveground tank” means a tank that is substantially or totally above the surface of the ground, with a capacity of 500 gallons or less and not subject to Chapter 6.67 (commencing with Section 25270) of Division 20 of the Health and Safety Code; and
• “underground storage tank” means any one or combination of tanks, including pipes connected thereto, that is used for storage of hazardous substances and that is substantially or totally beneath the surface of the ground with a capacity of 1,100 gallons or less.

This bill would declare this act a special statute not generally applicable because of the Sierra Lakes County Water District’s dependence on a single groundwater source for its residents that is at a substantial and imminent risk of toxic contamination from existing underground petroleum storage tanks.

COMMENT

1. Stated need for the bill

According to the author:

The Sierra Lakes County Water District serves approximately 600 homes on Donner Summit at nearly 7,000 feet of elevation, and its primary drinking water source is Lake Serene. In 2016 a spill caused by a leaking underground heating oil tank reached the lake. The fuel spill could have been catastrophic because the tank was located less than 200ft. from the lake and the district’s intake pipe. Clean up costs of the oil spill have been significant and water monitoring is ongoing.

AB 619 will allow the Sierra Lakes County Water District to adopt by ordinance requirements relating to the installation and use of tanks used for the storage of petroleum heating oil. It will also authorize the prohibition of new underground storage tanks for petroleum based heating oil. AB 619 does not apply to the use or storage of propane gas. Regulation of these small petroleum storage tanks is critical in order for the Sierra Lakes County Water District to protect the community’s source of drinking water.

In support, the Serene Lakes Property Owners Association writes:

Critically, both the water district and our community remain concerned that many more underground heating oil tanks remain, and pose a serious risk to Serene Lake’s drinking water.

2. The need for state action

The concerns addressed by this bill are highly localized to a relatively small area high in the Sierra Nevada mountains. State legislative action is nonetheless necessary because a county water district is not empowered to regulate the sorts of petroleum storage tanks that have caused the concern at the Sierra Lakes Water District. These are precisely the sort of tanks that give rise to the concern about risk of water contamination in the Lake Serena and Lake Dulzera watershed. This bill would give the Sierra Lakes Water District the authority to adopt an ordinance with petroleum storage testing, regulatory, and enforcement features that do not otherwise exist in law.

3. Enforcement mechanisms authorized by this bill

This bill would provide legal authority to the Sierra Lakes Water District to adopt a locally applicable ordinance regulating petroleum heating oil storage tanks. Specifically, the bill would allow the District to adopt an ordinance that includes annual testing requirements for existing tanks, restrictions, and conditions on the installation of new tanks, and an enforcement mechanism for addressing violations of the ordinance.

With regard to that enforcement mechanism specifically, the terms of this bill are not crystal clear. The Committee may wish to encourage the author to amend the bill as suggested in Comment 4, below, in order to provide for greater clarity. As currently written, however, the bill appears to permit an ordinance to allow for the following structure. First, the District would be empowered to redress any violation of the ordinance by bringing a civil action in court. Violations of the ordinance would fall into two categories: infractions and nuisances. For those violations that are infractions, the District would have the ability to seek (1) a fine not exceeding one hundred dollars ($100) for a first violation; (2) a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year; (3) a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year. For those violations constituting a nuisance under the ordinance, the District would be empowered to carry out summary abatement of the nuisance or initiate civil proceedings to abate it. In addition, the person committing the nuisance would be liable to the District for the cost of the abatement, including, but not limited to, the costs of investigation, the costs of time and materials expended to eliminate or mitigate the nuisance, court costs, attorney’s fees and costs of monitoring compliance. Finally, the ordinance could include the possibility of civil penalties to be imposed by the court against anyone found to have committed the nuisance. The two possible enforcement mechanisms would not necessarily be mutually exclusive; the District could pursue a violation as both an infraction and a nuisance. In fact, in its analysis of this bill, the Assembly Committee on the Judiciary reported that: “[a]ccording to the author, it is anticipated that the District would, in most instances, consider a violation to be both an infraction and a nuisance.”

There is precedent for the Legislature to endow a county water district with enforcement powers of this nature. Indeed, the enforcement mechanisms proposed by this bill appear to be modeled off of Water Code Section 31029.1, which was enacted by Senate Bill 1599. (Committee on Local Government, Ch. 1020, Stats. 1992.) Those laws permit any county water district with territory in Monterey County to adopt an ordinance that makes it an infraction or a nuisance to violate its terms. While the subject of any such ordinance was, in that case, water conservation, there is no apparent reason why the Legislature could not authorize a similar enforcement structure for the particular problem that the Sierra Lakes County Water District confronts with regard to petroleum storage tanks.

4. Proposed amendments

The Committee may wish to consider making two mostly technical changes to the bill. First, the Senate Committee on Environmental Quality analysis of this bill pointed out that the existence of references to “aboveground tank” and “underground tank” elsewhere in the codes could breed some confusion, since this bill defines those terms in a unique way. With that in mind, the Senate Committee on Environmental Quality analysis suggested modifying those terms with the adjective “small” where applicable throughout this bill. The author declined to adopt that amendment in the Committee on Environmental Quality, but it would improve this bill and this Committee may wish to revisit the idea.

Second, as noted in Comment 3, above, the enforcement mechanisms set forth in the bill for when people violate the ordinance could be clearer. The Committee may therefore wish to alter the structure of that part of the bill to give those mechanisms greater clarity.

The resulting proposed amendments are as follows:

Amendment 1

On page 2, in line 14, after “of” insert:

small

Amendment 2

On page 2, on line 14, after “or” insert:

small

Amendment 3

On page 2, in line 17, after “existing” insert:

small

Amendment 4

On page 3, in line 2, after “existing” insert:

small

Amendment 5

On page 3, in line 2, after “new” insert:

small

Amendment 6

On page 3, in line 10, after the first “new” insert:

small

Amendment 7

On page 3, in line 15, strike out “(1)”

Amendment 8

On page 3, in line 16, strike out “that a violation of the ordinance is an infraction and”, strike out line 17 and insert:

that:

1. a violation of the ordinance is an infraction, constitutes a nuisance, or both.

Amendment 9

On page 3, strike out lines 18 to 23, inclusive, and insert:

1. The district may seek redress for violations of the ordinance by bringing a civil action against the violator.
2. If the violation is an infraction, the district may request that the court impose punishment consistent with the provisions of subdivision (b) of Section 36900 of the Government Code. For purposes of calculating the punishment, each day of the violation shall constitute a separate offense.

Amendment 10

On page 3, in line 24, strike out “For any” and insert:

If the

Amendment 11

On page 3, in line 24, strike out “declared to be” and insert:

constitutes

Amendment 12

On page 3, in lines 24 and 25, strike out “ordinance may provide for the” and insert:

district may pursue

Amendment 13

On page 3, in lines 25 and 26, strike out “and may provide for the initiation of” and insert:

or initiate

Amendment 14

On page 3, in line 27, strike out “The ordinance may provide that any person committing a” and insert:

Any person found by the court to have committed the

Amendment 15

On page 3, in line 32, strike out “The ordinance may further establish” and insert:

The court may also assess any

Amendment 16

On page 3, in line 33, strike out “that may be assessed by a court” and insert:

established in the ordinance

Amendment 17

On page 3, strike out lines 38 and 39, on page 4, strike out lines 1 and 2, in line 3, strike out “(2)” and insert:

(1)

Amendment 18

On page 4, between lines 7 and 8, insert:

(2) “Small aboveground tank” means a tank that is substantially or totally above the surface of the ground with a capacity of 550 gallons or less and not subject to Chapter 6.67 (commencing with Section 25270) of Division 20 of the Health and Safety Code.

(3) “Small underground tank” means any one or combination of tanks, including pipes connected thereto, that is used for storage of hazardous substances and that is substantially or totally beneath the surface of the ground with a capacity of 1,100 gallons or less.

Amendment 19

On page 4, in line 8, strike out “(3)” and insert:

(4)

Amendment 20

On page 4, strike out lines 12 to 15, inclusive

Support: Association of California Water Agencies; Placer County Health and Human Services Department; Serene Lakes Property Owners Association; Truckee Donor Land Trust; Truckee Fire Protection District

Opposition: None known

HISTORY

Source: Sierra Lakes County Water District

Related Pending Legislation: None known

Prior Legislation: SB 1599 (Committee on Local Government, Chapter 1020, Statutes of 1992) authorized any county water district with property in Monterey County to adopt an ordinance relating to water conservation, to make it an infraction or a nuisance to violate the ordinance, and to implement mechanisms for enforcement.

Prior Vote:

Senate Environmental Quality Committee (Ayes 7, Noes 0)

Assembly Floor (Ayes 77, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

Assembly Environmental Safety and Toxic Materials Committee (Ayes 7, Noes 0)

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

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2017 - 2018 Regular

Bill No: AB 619

SUBJECT: Sierra Lakes County Water District

ANALYSIS:

Existing law:

1. Under the County Water District Law, provides for the formation and operation of county water districts, and specifies the powers and purposes of those districts.
2. Provides for the regulation by the State Water Resources Control Board (SWRCB) of underground storage tanks, as defined, designed to contain an accumulation of hazardous substances.
3. Under the Aboveground Petroleum Storage Act generally regulates aboveground storage tanks, as defined, that contain petroleum and that meet certain requirements.

This bill:

1. Authorizes the Sierra Lakes County Water District, in order to regulate, prohibit, or control the discharge of pollutants, waste, or other materials in groundwater or surface waters, to adopt by ordinance requirements relating to the installation and use of aboveground or underground tanks, as defined, designed to contain an accumulation of hazardous substances.
2. Provides that the violation of an adopted ordinance is an infraction and constitutes a nuisance.
3. Authorizes a violation of an adopted ordinance to be redressed by a civil action brought by the district and would provide that each day of the violation would constitute a separate offense.

Background

1. Sierra Lakes County Water District: The Sierra Lakes County Water District is a county water district supplying water and sewer services. It serves the Serene Lakes Community just outside of Soda Springs, CA, on Donner Summit, at 7,000 feet of elevation. Water for residential use is drawn from Lake Serena. Human and animal contact (wading or swimming) is prohibited at all times and gasoline powered vehicles and boats are also prohibited on Lake Serena.
2. Regulation of Underground Storage Tanks (USTs): SWRCB has established regulations governing the prevention of leaks from USTs. There are standards and requirements for installation, tank construction, tank testing, leak detection, spill containment, and overfill protection. California UST laws and regulations give local agencies (counties, cities, or other local agencies) authority throughout the state to issue permits for tank operation and to enforce tank testing requirements within their jurisdiction.

The purpose of the UST program is to protect public health and safety and the environment from releases of petroleum and other hazardous substances from tanks. Leaking underground storage tanks are a significant source of petroleum impacts to groundwater and may pose the following potential threats to health and safety: exposure from impacts to soil and/or groundwater, contamination of drinking water aquifers, contamination of public or private drinking water wells, and inhalation of vapors.

1. Regulation of aboveground storage tanks: The CAL FIRE-Office of the State Fire Marshal is responsible for the implementation of the Aboveground Petroleum Storage Act (APSA) program. 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. The Act 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 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.

AB 619 provides the District with the authority to regulate smaller underground and aboveground storage tanks not covered under current law. Currently, the District is in a difficult situation, it is required to protect its water sources; however, it lacks the authority to regulate these smaller tanks, which are also outside the regulatory authority of the state’s UST program. It is likely the District will tap the expertise of Placer County who has familiarity with the state’s UST program.

Comments

1. Purpose of Bill. According to the author, “AB 619 will allow the District to adopt by ordinance specific testing and construction requirements related to the use of small underground tanks for the storage of heating oil…

“The District’s primary drinking water source was not available for three weeks in 2016 due to a spill caused by a leaking underground heating oil tank. The fuel spill could have been catastrophic because the tank was located less than 200 feet from the shore of Lake Serene, the District’s water source, and very near the intake pipe. Lake Serene is located at nearly 7000 feet of elevation and feeds into the American River. Clean up costs of the oil spill have been significant and water monitoring is ongoing…

“State and federal regulations of underground fuel storage tanks apply only to tanks with capacity greater than 1,100 gallons. Additional state regulations also apply to underground fuel storage tanks but only when located within 1,000 feet of public drinking water wells.

“In the case of the District, an unknown number of aging underground heating oil tanks below the 1,100 gallon regulatory threshold exist in the community and any discharge would flow into the Lake.

“Because of these unique circumstances the District has no ability to inspect, monitor or regulate aging underground heating oil tanks that may leak into the community’s primary water source.

“AB 619 will allow the District to adopt by ordinance requirements relating to the installation and use of tanks used for the storage of petroleum heating oil. It will also authorize the prohibition of new underground storage tanks for petroleum based heating oil. AB 619 does not apply to the use or storage of propane gas.”

1. Suggested amendments. The bill defines “underground storage tank” and “aboveground tank” specific to this section of law as follows:

• “Aboveground tank” means a tank that is substantially or totally above the surface of the ground with a capacity of 500 gallons or less and not subject to Chapter 6.67 (commencing with Section 25270) of Division 20 of the Health and Safety Code.
• “Underground tank” means any one or combination of tanks, including pipes connected thereto, that is used for storage of hazardous substances and that is substantially or totally beneath the surface of the ground with a capacity of 1,100 gallons or less.

Because “underground storage tank” and “aboveground storage tank” have meanings elsewhere in code, differentiating between aboveground tank and aboveground storage tank or underground tank and underground storage tank could be confusing, the committee may wish to amend to add the qualifier of “small” to the term to make it easier to differentiate (i.e. small underground tank and small aboveground storage tank).

DOUBLE REFERRAL:

If this measure is approved by the Senate Environmental Quality Committee, the do pass motion must include the action to re-refer the bill to the Senate Judiciary Committee.

SOURCE:

The Sierra Lakes County Water District

SUPPORT:

Association of California Water Agencies

Placer County Health and Human Services Department

Serene Lakes Property Owners Association

Truckee Donner Land Trust

Truckee Fire Protection District

OPPOSITION:

None received

-- END --

Date of Hearing: May 2, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 619

Author:(Dahle) – As Amended Ver:April 6, 2017

PROPOSED CONSENT

SUBJECT: SIERRA LAKES COUNTY WATER DISTRICT: NUISANCE ABATEMENT: CIVIL ACTION

KEY ISSUE: should a special law be passed to authorize the sierra lakes county water district to adopt, by ordinance, certain protective requirements for the installation and use of above-ground or underground petroleum storage tanks, and make violations of these requirements enforceable by a nuisance abatement civil action brought by the district, as specified?

SYNOPSIS

According to the author, last year an aging residential underground heating oil tank leaked an unknown amount of oil into Lake Serena, a local lake that is the primary, nearly exclusive source of drinking water for 800 connections serviced by the Sierra Lakes County Water District. The District was unable to use the lake for 21 days until extensive water quality testing and removal of the tank were completed, and troublingly, the District believes there are other buried heating oil tanks in the vicinity of its drinking water source. Short of a leak, however, the District reports it currently lacks the authority to take proactive measures regarding any other heating oil tanks in its service area.

In order to prevent possible recurrences of this near catastrophe, this bill seeks to allow the District to adopt by ordinance certain requirements regarding the installation and use of tanks for the storage of petroleum heating oil, as well as a prohibition on new underground storage tanks for petroleum heating oil. For example, the ordinance may permit annual inspections of existing storage tanks; prohibit installation of new underground storage tanks; and require secondary containment systems for existing storage tanks. To enforce these requirements, the bill authorizes the District to bring a civil action for nuisance abatement, and to collect administrative penalties, specified costs, and attorney's fees. The bill allows some violations to be punished as infractions, with accumulating fines starting at up to $100 for a first violation, with each day of a violation constituting a separate offense. The bill only applies to the Sierra Lakes County Water District (the sponsor of this bill), and not to any other water agency in California. The bill is supported by local property owners, fire protection officials and water agencies from the area, and has received no opposition. The bill previously passed the Assembly Environmental Safety and Toxics Materials Committee by a 7-0 vote.

SUMMARY: Authorizes the Sierra Lakes County Water District (District) to adopt, by ordinance, requirements relating to the installation and use of aboveground or underground tanks, and to enforce them through a civil nuisance abatement action. Specifically, this bill:

1. Authorizes the District to adopt, by ordinance, the following requirements relating to the installation and use of aboveground or underground tanks, in order to regulate or control the discharge of pollutants in groundwater or surface water:

a) A requirement that an existing underground tank used for the storage of petroleum located within the tributary watershed of Lakes Serena and Dulzura to be annually tested in accordance with the Non-Visual Monitoring/Quantitative Release Detection Methods provided in Section 2643 of Title 23 of the California Code of Regulations;

b) A requirement that prohibits the installation of a new underground storage tank, as defined, within the tributary watershed of Lakes Serena and Dulzura; and,

c) A requirement that existing aboveground tanks or new aboveground tanks within the tributary watershed of Lakes Serena and Dulzura must include secondary containment that meets specified criteria in the California Fire Code.

2) Allows an ordinance adopted by the District pursuant to 1), above, to make any violation of the ordinance an infraction, constituting a nuisance. Further authorizes the District to bring a civil action to redress a violation of the ordinance.

1. Provides that if a violation is determined to be an infraction, the violation may be punishable by: (1) a fine not exceeding one hundred dollars ($100) for a first violation; (2) a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year; (3) a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year. Further provides that each day of the violation constitutes a separate offense.
2. Authorizes the ordinance to provide for the summary abatement of the nuisance and for the initiation of civil proceedings to abate the nuisance. Allows the ordinance to hold any person committing a nuisance to be liable for the costs incurred by the district to abate the nuisance, including, but not limited to, the costs of investigation, costs of time and materials expended to eliminate or mitigate the nuisance, court costs, attorney’s fees, and costs of monitoring compliance. Further allows the ordinance to establish civil penalties that may be assessed by a court against persons found by the court to have committed a nuisance.
3. Specifies key definitions, including but not limited to the following:
   1. "Aboveground tank" means as a tank that is substantially or totally above the surface of the ground, with a capacity of 500 gallons or less and not subject to Chapter 6.67 (commencing with Section 25270) of Division 20 of the Health and Safety Code.
   2. "Underground storage tank" means any one or combination of tanks, including pipes connected thereto, that is used for storage of hazardous substances and that is substantially or totally beneath the surface of the ground with a capacity of 1,100 gallons or less.
4. Declares this act a special statute not generally applicable because of the Sierra Lakes County Water District’s dependence on a single groundwater source for its residents that is at a substantial and imminent risk of toxic contamination from existing underground petroleum storage tanks.

EXISTING LAW:

1. Authorizes county water districts generally to take any action to furnish water, store and conserve water, sell water, operate water rights, establish rules for the sale or distribution of water, restrict the use of water during an emergency caused by drought or other shortage and prescribe and define by ordinance restrictions, prohibitions, and exclusions. (Water Code Sections 31020 to 31027.)
2. Authorizes County Water Districts to enter upon private property of any person within the jurisdiction of the district in order to investigate the possible violation of an ordinance of the district. Requires the investigation to be made with consent of the owner or tenant of the property or, if consent is refused, with a warrant duly issued pursuant to the procedures set forth in Title 13 (commencing with Section 1822.50) of Part 3 of the Code of Civil Procedure. (Water Code Section 31016.)
3. Prohibits the Sierra Lakes County Water District from exercising the authority in state law associated with fire protection, recreation, and sanitation. (Water Code Section 31015.)
4. Finds and declares that underground tanks used for the storage of hazardous substances and wastes are potential sources of contamination of the ground and underlying aquifers, and may pose other dangers to public health and the environment. Declares that it is in the public interest to establish a continuing program for the purpose of preventing contamination from, and improper storage of, hazardous substances stored underground. (Health and Safety Code (HSC) Section 25280 (a).)
5. Defines "underground storage tank" as 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. States that an underground storage tank does not include a tank with a capacity of 1,100 gallons or less that is located on a farm or at a residence of a person and that stores motor vehicle fuel used primarily for agricultural purposes on a farm or stores home heating oil at a residence. (HSC Section 25281 (y)(1).)
6. Defines "aboveground storage tank" as a tank that has the capacity to store 55 gallons or more of petroleum that is substantially or totally above the surface of the ground. (HSC Section 25270.2 (a).)
7. Provides that violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction, and allows such a violation to be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action. (Government Code Section 36900 (a).)
8. Provides that every violation determined to be an infraction is punishable by (1) a fine not exceeding one hundred dollars ($100) for a first violation; (2) a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year; (3) a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year. (Government Code Section 36900 (b).)

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

COMMENTS: This bill, sponsored by the Sierra Lakes County Water District (District), seeks to allow the District to adopt, by ordinance, certain requirements regarding the installation and use of tanks for the storage of petroleum heating oil, as well as a prohibition on new underground storage tanks for petroleum heating oil. To enforce these requirements, the bill authorizes the District to bring a civil action for nuisance abatement, and to collect specified costs, administrative and/or civil penalties, and attorney's fees.

According to the Sierra Lakes County Water District:

In 2016, an aging residential underground heating oil tank leaked an unknown amount of oil into a local lake that serves as the source of the District’s drinking water supply for 800 connections. The District was unable to use the lake for 21 days until extensive water quality testing and removal of the tank were completed.

The District believes that there are other buried heating oil tanks in the vicinity of its drinking water source. However, short of a leak, the District currently does not have the authority to take proactive measures regarding any other heating oil tanks in its service area. Under existing state law, heating oil tanks are exempt from regulation as an underground storage tank.

AB 619 would specifically authorize the District to adopt by ordinance specified requirements relating to the installation and use of tanks used for the storage of petroleum heating oil tanks.

Regulation of underground storage tanks (USTs). The California State Water Resources Control Board (State Water Board) has established regulations governing the prevention of leaks from USTs. There are standards and requirements for installation, tank construction, tank testing, leak detection, spill containment, and overfill protection. California UST laws and regulations give local agencies (counties, cities, or other local agencies) authority throughout the state to issue permits for tank operation and enforce tank testing requirements within their jurisdiction.

The purpose of the UST Program is to protect public health and safety and the environment from releases of petroleum and other hazardous substances from tanks. Leaking underground storage tanks are a significant source of petroleum contamination of groundwater and may pose the following potential threats to health and safety: exposure from impacts to soil and/or groundwater, contamination of drinking water aquifers, contamination of public or private drinking water wells, and inhalation of vapors.

Regulation of above-ground storage tanks. The CAL FIRE-Office of the State Fire Marshal is responsible for the implementation of the Aboveground Petroleum Storage Act (APSA) program. 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. The Act 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 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.

Revised definitions authorize the District to regulate smaller storage tanks not currently regulated because of their size. This bill provides the District with the authority to regulate smaller underground and above-ground storage tanks that are not covered under definitions within current law. According to the author, the District is in a difficult situation because it is required to protect its water sources, but lacks the authority to regulate smaller storage tanks—one of which almost caused a catastrophe last year--which are also outside the regulatory authority of the state’s UST program.

Recent amendments to the bill seek to address this problem by revising key definitions, for the specific purpose of bringing smaller storage tanks under regulation by the District. For example, the term "underground storage tank" has been revised to include smaller tanks –namely those with a capacity of 500 gallons or less. Also, the term "above-ground storage tank" has also been revised to include smaller tanks –namely those with a 1,100 gallon capacity or less.

Summary of remedies and enforcement options under this bill. As described previously, this bill allows the District to adopt, by ordinance, a number of new requirements designed to protect the public and the water supply from pollution and contamination by above-ground and underground tanks. To redress violations of the ordinance, the bill authorizes the District to bring a civil action and collect costs, administrative and/or civil penalties, and attorney's fees, as specified. The bill authorizes the ordinance to deem any violation of the ordinance to be an infraction and/or a nuisance. According to the author, it is anticipated that the District would, in most instances, consider a violation to be both an infraction and a nuisance.

Under this bill, not all violations of an ordinance would necessarily be considered equal. The bill contemplates that some presumably less serious violations of the ordinance could be treated by the District as infractions. In those cases, a violation determined to be an infraction would be punishable consistent with the provisions of Government Code Section 36900 (b). Under that subdivision, an infraction is punishable by: (1) a fine not exceeding one hundred dollars ($100) for a first violation; (2) a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year; (3) a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year.

For any violation declared to be a nuisance, the bill authorizes the District to adopt an ordinance that provides for the summary abatement of the nuisance and allows for the initiation of civil proceedings to abate the nuisance. This applies whether the violation is considered an infraction, or rises to a level higher than an infraction. As long as the violation is considered a nuisance, the ordinance may provide that any person committing nuisance shall be liable for the costs incurred by the district to abate the nuisance, including, but not limited to, the costs of investigation, costs of time and materials expended to eliminate or mitigate the nuisance, court costs, attorney’s fees, and costs of monitoring compliance. Lastly, the ordinance may further establish civil penalties that may be assessed by a court against persons found by the court to have created a nuisance. In short, the bill permits an ordinance providing a robust set of administrative penalties plus costs and fees that are enforceable through a civil action to abate nuisance violations that arise from storage tanks threatening the water supply and public health.

REGISTERED SUPPORT / OPPOSITION:

Support

Sierra County Lakes Water District (sponsor)

Association of California Water Agencies (ACWA)

Placer County Health and Human Services Department

Serene Lakes Property Owners Association

Truckee Donner Land Trust

Truckee Fire Protection District

Opposition

None on file

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334

Date of Hearing: April 4, 2017

ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS

Bill Quirk, Chair

ABPCA Bill Id:AB 619 (

Author:Dahle) – As Amended Ver:March 20, 2017

SUBJECT: Sierra Lakes County Water District

SUMMARY: Authorizes the Sierra Lakes County Water District (District) to adopt, by ordinance, requirements relating to the installation and use of tanks used for the storage of petroleum in order to regulate or control the discharge of pollutants in groundwater or surface water. Specifically, this bill:

1) Authorizes the District to adopt, by ordinance, the following requirements relating to the installation and use of tanks used for the storage of petroleum in order to regulate or control the discharge of pollutants in groundwater or surface water:

a) Require an existing underground tank used for the storage of petroleum with a capacity of 1,100 gallons or less located within the tributary watershed of Lakes Serena and Dulzura to be annually tested in accordance with the Non-Visual Monitoring/Quantitative Release Detection Methods provided in Section 2643 of Title 23 of the California Code of Regulations;

b) Prohibit the installation of a new underground storage tank within the tributary watershed of Lakes Serena and Dulzura; and,

c) Require existing aboveground tanks or new aboveground tanks within the tributary watershed of Lakes Serena and Dulzura to include secondary containment that meets the criteria within in the California Fire Code.

2) Provides that a violation of an ordinance adopted by the District to regulate the use of tanks used for the storage of petroleum is an infraction and constitutes a nuisance and may be redressed by civil action brought by the District.

3) Provides that for a violation of an ordinance adopted by the District regulating the use of tanks used for the storage of petroleum to be declared a nuisance, the ordinance may provide for the summary abatement of the nuisance and for the initiation of civil proceedings to abate the nuisance.

4) Defines "aboveground storage tank" as a tank that is substantially or totally above the surface of the ground.

5) Defines "petroleum" as including crude oil, including heating oil, or any fraction thereof that is liquid at standard conditions of temperature and pressure.

6) Defines "tank" as a stationary device designed to contain an accumulation of hazardous substances which is constructed primarily of non-earthen materials, including, but not limited to, wood, concrete, steel, or plastic that provides structural support.

7) Defines "underground storage tank" as any one or combination of tanks, including pipes connected thereto, that is used for storage of hazardous substances and that is substantially or totally beneath the surface of the ground.

EXISTING LAW:

1) Authorizes county water districts generally to take any action to furnish water, store and conserve water, sell water, operate water rights, establish rules for the sale or distribution of water, restrict the use of water during an emergency caused by drought or other shortage and prescribe and define by ordinance restrictions, prohibitions, and exclusions. (Water Code (WC) § 31020-31027)

2) Authorizes County Water Districts to enter upon private property of any person within the jurisdiction of the district in order to investigate the possible violation of an ordinance of the district. Requires the investigation to be made with consent of the owner or tenant of the property or, if consent is refused, with a warrant duly issued pursuant to the procedures set forth in Title 13 (commencing with section 1822.50) of Part 3 of the Code of Civil Procedure. (WC § 31016)

3) Prohibits the Sierra Lakes County Water District from exercising the authority in state law associated with fire protection, recreation, and sanitation. (WC § 31015)

4) Finds and declares that underground tanks used for the storage of hazardous substances and wastes are potential sources of contamination of the ground and underlying aquifers, and may pose other dangers to public health and the environment. Declares that it is in the public interest to establish a continuing program for the purpose of preventing contamination from, and improper storage of, hazardous substances stored underground. (Health and Safety Code (HSC) § 25280 (a))

5) Defines "tank" to mean a stationary device designed to contain an accumulation of hazardous substances which is constructed primarily of non-earthen materials, including, but not limited to, wood, concrete, steel, or plastic that provides structural support. (HSC § 25281 (u))

6) Defines "underground storage tank" as 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. States that an underground storage tank does not include a tank with a capacity of 1,100 gallons or less that is located on a farm or at a residence of a person and that stores motor vehicle fuel used primarily for agricultural purposes on a farm or stores home heating oil at a residence. (HSC § 25281 (y)(1))

7) Defines "aboveground storage tank" as a tank that has the capacity to store 55 gallons or more of petroleum that is substantially or totally above the surface of the ground. (HSC § 25270.2 (a))

FISCAL EFFECT: Unknown.

COMMENTS:

Need for the bill: According to the author, "AB 619 will allow the District to adopt by ordinance specific testing and construction requirements related to the use of small underground tanks for the storage of heating oil…

The District’s primary drinking water source was not available for three weeks in 2016 due to a spill caused by a leaking underground heating oil tank. The fuel spill could have been catastrophic because the tank was located less than 200 feet from the shore of Lake Serene, the District’s water source, and very near the intake pipe. Lake Serene is located at nearly 7000 feet of elevation and feeds into the American River. Clean up costs of the oil spill have been significant and water monitoring is ongoing…

State and federal regulations of underground fuel storage tanks apply only to tanks with capacity greater than 1,100 gallons. Additional state regulations also apply to underground fuel storage tanks but only when located within 1,000 feet of public drinking water wells.

In the case of the District, an unknown number of aging underground heating oil tanks below the 1,100 gallon regulatory threshold exist in the community and any discharge would flow into the Lake…

Because of these unique circumstances the District has no ability to inspect, monitor or regulate aging underground heating oil tanks that may leak into the community’s primary water source…

AB 619 will allow the District to adopt by ordinance requirements relating to the installation and use of tanks used for the storage of petroleum heating oil. It will also authorize the prohibition of new underground storage tanks for petroleum based heating oil. AB 619 does not apply to the use or storage of propane gas."

Sierra Lakes County Water District: The Sierra Lakes County Water District is a county water district supplying water and sewer services. It serves the Serene Lakes Community just outside of Soda Springs, CA, on Donner Summit, at 7,000 feet of elevation. Water for residential use is drawn from Lake Serena. Human and animal contact (wading or swimming) is prohibited at all times and gasoline powered vehicles and boats are also prohibited on Lake Serena.

Regulation of Underground Storage Tanks (USTs): The California State Water Resources Control Board (State Water Board) has established regulations governing the prevention of leaks from USTs. There are standards and requirements for installation, tank construction, tank testing, leak detection, spill containment, and overfill protection. California UST laws and regulations give local agencies (counties, cities, or other local agencies) authority throughout the state to issue permits for tank operation and to enforce tank testing requirements within their jurisdiction.

The purpose of the UST Program is to protect public health and safety and the environment from releases of petroleum and other hazardous substances from tanks. Leaking underground storage tanks are a significant source of petroleum impacts to groundwater and may pose the following potential threats to health and safety: exposure from impacts to soil and/or groundwater, contamination of drinking water aquifers, contamination of public or private drinking water wells, and inhalation of vapors.

Regulation of above ground storage tanks: The CAL FIRE-Office of the State Fire Marshal is responsible for the implementation of the Aboveground Petroleum Storage Act (APSA) program. 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. The Act 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 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.

AB 619 provides the District with the authority to regulate smaller underground and above ground storage tanks not covered under current law. Currently, the District is in a difficult situation, it is required to protect its water sources; however, it lacks the authority to regulate these smaller tanks, which are also outside the regulatory authority of the state’s UST program. It is likely the District will tap the expertise of Placer County who has familiarity with the state’s UST program.

Technical amendments: The goal of the bill is to provide authority to the District for small, currently unregulated above and underground storage tanks. However, the bill’s definitions could apply to all storage tanks and potentially overlap with the current regulatory program for larger above and underground storage tanks. Therefore, the author and Committee may wish to amend the bill to specify that the District’s authority is for the smaller, currently unregulated tanks.

1) On page 2, lines 7-14

31142.50. (a) In addition to the other powers provided by law, the Sierra Lakes County Water District shall have, but is not limited to, the authority to prevent nuisance, pollution, waste, and contamination of its drinking water source. To regulate, prohibit, or control the discharge of pollutants, waste, or other materials in groundwater or surface waters, the district may adopt by ordinance the following requirements relating to the installation and use of above or underground tanks, including but not limited to the following: used for the storage of petroleum:

2) On page 2, lines 23-25

(2) The installation of new underground tanks, including underground storage tanks as defined in 25281 of HSC, for the storage of petroleum shall be prohibited within the tributary watershed of Lakes Serena and Dulzura.

3) On page 3, lines 16-17

(1) "Aboveground storage tank" means a tank is substantially or totally above the surface of the ground with a capacity of less than 500 gallons and not regulated under the Above Ground Petroleum Storage Act.

4) On page 3, lines 29-32

(4) "Underground storage tank" means any one or combination of tanks, including pipes connected thereto, that is used for storage of hazardous substances and that is substantially or totally beneath the surface of the ground with a capacity of less than 1,100 gallons.

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

REGISTERED SUPPORT / OPPOSITION:

Support

Placer County Health and Human Services Department

Serene Lakes Property Owners Association

Sierra County Lakes Water District

Truckee Donner Land Trust

Truckee Fire Protection District

Opposition

None on file.

Analysis Prepared by: Josh Tooker / E.S. & T.M. /

Date of Hearing: April 4, 2017

ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS

Bill Quirk, Chair

ABPCA Bill Id:AB 619 (

Author:Dahle) – As Amended Ver:March 20, 2017

SUBJECT: Sierra Lakes County Water District

SUMMARY: Authorizes the Sierra Lakes County Water District (District) to adopt, by ordinance, requirements relating to the installation and use of tanks used for the storage of petroleum in order to regulate or control the discharge of pollutants in groundwater or surface water. Specifically, this bill:

1) Authorizes the District to adopt, by ordinance, the following requirements relating to the installation and use of tanks used for the storage of petroleum in order to regulate or control the discharge of pollutants in groundwater or surface water:

a) Require an existing underground tank used for the storage of petroleum with a capacity of 1,100 gallons or less located within the tributary watershed of Lakes Serena and Dulzura to be annually tested in accordance with the Non-Visual Monitoring/Quantitative Release Detection Methods provided in Section 2643 of Title 23 of the California Code of Regulations;

b) Prohibit the installation of a new underground storage tank within the tributary watershed of Lakes Serena and Dulzura; and,

c) Require existing aboveground tanks or new aboveground tanks within the tributary watershed of Lakes Serena and Dulzura to include secondary containment that meets the criteria within in the California Fire Code.

2) Provides that a violation of an ordinance adopted by the District to regulate the use of tanks used for the storage of petroleum is an infraction and constitutes a nuisance and may be redressed by civil action brought by the District.

3) Provides that for a violation of an ordinance adopted by the District regulating the use of tanks used for the storage of petroleum to be declared a nuisance, the ordinance may provide for the summary abatement of the nuisance and for the initiation of civil proceedings to abate the nuisance.

4) Defines "aboveground storage tank" as a tank that is substantially or totally above the surface of the ground.

5) Defines "petroleum" as including crude oil, including heating oil, or any fraction thereof that is liquid at standard conditions of temperature and pressure.

6) Defines "tank" as a stationary device designed to contain an accumulation of hazardous substances which is constructed primarily of non-earthen materials, including, but not limited to, wood, concrete, steel, or plastic that provides structural support.

7) Defines “underground storage tank” as any one or combination of tanks, including pipes connected thereto, that is used for storage of hazardous substances and that is substantially or totally beneath the surface of the ground.

EXISTING LAW:

1) Authorizes county water districts generally to take any action to furnish water, store and conserve water, sell water, operate water rights, establish rules for the sale or distribution of water, restrict the use of water during an emergency caused by drought or other shortage and prescribe and define by ordinance restrictions, prohibitions, and exclusions. (Water Code (WC) § 31020-31027)

2) Authorizes County Water Districts to enter upon private property of any person within the jurisdiction of the district in order to investigate the possible violation of an ordinance of the district. Requires the investigation to be made with consent of the owner or tenant of the property or, if consent is refused, with a warrant duly issued pursuant to the procedures set forth in Title 13 (commencing with section 1822.50) of Part 3 of the Code of Civil Procedure. (WC § 31016)

3) Prohibits the Sierra Lakes County Water District from exercising the authority in state law associated with fire protection, recreation, and sanitation. (WC § 31015)

4) Finds and declares that underground tanks used for the storage of hazardous substances and wastes are potential sources of contamination of the ground and underlying aquifers, and may pose other dangers to public health and the environment. Declares that it is in the public interest to establish a continuing program for the purpose of preventing contamination from, and improper storage of, hazardous substances stored underground. (Health and Safety Code (HSC) § 25280 (a))

5) Defines "tank" to mean a stationary device designed to contain an accumulation of hazardous substances which is constructed primarily of non-earthen materials, including, but not limited to, wood, concrete, steel, or plastic that provides structural support. (HSC § 25281 (u))

6) Defines "underground storage tank" as 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. States that an underground storage tank does not include a tank with a capacity of 1,100 gallons or less that is located on a farm or at a residence of a person and that stores motor vehicle fuel used primarily for agricultural purposes on a farm or stores home heating oil at a residence. (HSC § 25281 (y)(1))

7) Defines "aboveground storage tank" as a tank that has the capacity to store 55 gallons or more of petroleum that is substantially or totally above the surface of the ground. (HSC § 25270.2 (a))

FISCAL EFFECT: Unknown.

COMMENTS:

Need for the bill: According to the author, "AB 619 will allow the District to adopt by ordinance specific testing and construction requirements related to the use of small underground tanks for the storage of heating oil…

The District’s primary drinking water source was not available for three weeks in 2016 due to a spill caused by a leaking underground heating oil tank. The fuel spill could have been catastrophic because the tank was located less than 200 feet from the shore of Lake Serene, the District’s water source, and very near the intake pipe. Lake Serene is located at nearly 7000 feet of elevation and feeds into the American River. Clean up costs of the oil spill have been significant and water monitoring is ongoing…

State and federal regulations of underground fuel storage tanks apply only to tanks with capacity greater than 1,100 gallons. Additional state regulations also apply to underground fuel storage tanks but only when located within 1,000 feet of public drinking water wells.

In the case of the District, an unknown number of aging underground heating oil tanks below the 1,100 gallon regulatory threshold exist in the community and any discharge would flow into the Lake…

Because of these unique circumstances the District has no ability to inspect, monitor or regulate aging underground heating oil tanks that may leak into the community’s primary water source…

AB 619 will allow the District to adopt by ordinance requirements relating to the installation and use of tanks used for the storage of petroleum heating oil. It will also authorize the prohibition of new underground storage tanks for petroleum based heating oil. AB 619 does not apply to the use or storage of propane gas."

Sierra Lakes County Water District: The Sierra Lakes County Water District is a county water district supplying water and sewer services. It serves the Serene Lakes Community just outside of Soda Springs, CA, on Donner Summit, at 7,000 feet of elevation. Water for residential use is drawn from Lake Serena. Human and animal contact (wading or swimming) is prohibited at all times and gasoline powered vehicles and boats are also prohibited on Lake Serena.

Regulation of Underground Storage Tanks (USTs): The California State Water Resources Control Board (State Water Board) has established regulations governing the prevention of leaks from USTs. There are standards and requirements for installation, tank construction, tank testing, leak detection, spill containment, and overfill protection. California UST laws and regulations give local agencies (counties, cities, or other local agencies) authority throughout the state to issue permits for tank operation and to enforce tank testing requirements within their jurisdiction.

The purpose of the UST Program is to protect public health and safety and the environment from releases of petroleum and other hazardous substances from tanks. Leaking underground storage tanks are a significant source of petroleum impacts to groundwater and may pose the following potential threats to health and safety: exposure from impacts to soil and/or groundwater, contamination of drinking water aquifers, contamination of public or private drinking water wells, and inhalation of vapors.

Regulation of above ground storage tanks: The CAL FIRE-Office of the State Fire Marshal is responsible for the implementation of the Aboveground Petroleum Storage Act (APSA) program. 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. The Act 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 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.

AB 619 provides the District with the authority to regulate smaller underground and above ground storage tanks not covered under current law. Currently, the District is in a difficult situation, it is required to protect its water sources; however, it lacks the authority to regulate these smaller tanks, which are also outside the regulatory authority of the state’s UST program. It is likely the District will tap the expertise of Placer County who has familiarity with the state’s UST program.

Technical amendments: The goal of the bill is to provide authority to the District for small, currently unregulated above and underground storage tanks. However, the bill’s definitions could apply to all storage tanks and potentially overlap with the current regulatory program for larger above and underground storage tanks. Therefore, the author and Committee may wish to amend the bill to specify that the District’s authority is for the smaller, currently unregulated tanks.

1) On page 2, lines 7-14

31142.50. (a) In addition to the other powers provided by law, the Sierra Lakes County Water District shall have, but is not limited to, the authority to prevent nuisance, pollution, waste, and contamination of its drinking water source. To regulate, prohibit, or control the discharge of pollutants, waste, or other materials in groundwater or surface waters, the district may adopt by ordinance the following requirements relating to the installation and use of above or underground tanks, including but not limited to the following: used for the storage of petroleum:

2) On page 2, lines 23-25

(2) The installation of new underground tanks, including underground storage tanks as defined in 25281 of HSC, for the storage of petroleum shall be prohibited within the tributary watershed of Lakes Serena and Dulzura.

3) On page 3, lines 16-17

(1) “Aboveground storage tank” means a tank is substantially or totally above the surface of the ground with a capacity of less than 500 gallons and not regulated under the Above Ground Petroleum Storage Act.

4) On page 3, lines 29-32

(4)“Underground storage tank” means any one or combination of tanks, including pipes connected thereto, that is used for storage of hazardous substances and that is substantially or totally beneath the surface of the ground with a capacity of less than 1,100 gallons.

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

REGISTERED SUPPORT / OPPOSITION:

Support

Placer County Health and Human Services Department

Serene Lakes Property Owners Association

Sierra County Lakes Water District

Truckee Donner Land Trust

Truckee Fire Protection District

Opposition

None on file.

Analysis Prepared by: Josh Tooker / E.S. & T.M. /