BILL NUMBER: AB 2912 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 1, 2008
INTRODUCED BY Assembly Members Wolk and Nava
(Coauthors: Assembly Members Beall, DeSaulnier, Hancock, Huffman,
Leno, Lieber, Mullin, Ruskin, Swanson, and Torrico)
FEBRUARY 22, 2008
An act to amend Section 12017 of the Fish and Game Code, and to
amend Sections 8670.3, 8670.5, 8670.7, 8670.8.5, 8670.12, 8670.25,
8670.25.5, 8670.29, 8670.48, 8670.64, 8670.66, 8670.67, and 8670.70
of, and to add Sections 8670.67.3 and 8670.75 to, the Government
Code, relating to oil spills, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 2912, as amended, Wolk. Oil spill prevention and response:
nonmarine waters.
(1) The Lempert-Keene-Seastrand Oil Spill Prevention and Response
Act, among other things, governs the prevention of and response to
oil spills into marine waters, as defined. Existing law defines
various terms for purposes of the act. A "spill" or "discharge" is
defined to mean any unauthorized release of at least one barrel (42
gallons) of oil into marine waters.
This bill would define a "spill" or "discharge" instead
to mean to also include any release of at
least one barrel (42 gallons) of oil into marine
waters or into waters , of the state
other than marine waters without specifying a minimum amount
of oil . The bill would make other related
changes. The bill would define the term "waters of the state" for
purposes of the act, and for purposes of spills or discharges of oil
into nonmarine waters of the state, the bill would limit the
definition of the term "person" under the act to specified owners and
operators.
(2) Under existing law, it is a crime to, among other things,
knowingly engage in or cause the discharge or spill of at least one
barrel (42 gallons) of oil into marine waters, and the intentional or
negligent discharge or spill of that quantity of oil into marine
waters is also subject to specified civil penalties, as prescribed.
Existing law imposes civil and civil administrative penalties upon
persons who fail to comply with specified plans, orders, or
notification requirements with regard to discharges or spills.
This bill, on or after January 1, 2009, would make a discharge or
spill of any amount of oil into marine or nonmarine waters of the
state or noncompliance with the plans, orders, or notification
requirements subject to those criminal, civil, and civil
administrative penalties. The bill would therefore impose a
state-mandated local program by creating a new crime. The bill would
also require specified factors to be considered in determining the
amount of criminal, civil, or civil administrative penalties to be
imposed for a discharge or spill into waters of the state other than
marine waters.
(3) Under existing law, penalties collected under the act are
deposited into the Environmental Enhancement Fund, except as
specified. The Fish and Wildlife Pollution Account in the Fish and
Game Preservation Fund is continuously appropriated to the Department
of Fish and Game for specified purposes, including, but not limited
to, pollution abatement, injury determination, and resource
restoration.
This bill would require that the penalties collected or derived
from discharges or spills into nonmarine waters of the state be
deposited in the Fish and Wildlife Pollution Account in the Fish and
Game Preservation Fund, and be available for expenditure upon
appropriation by the Legislature.
(4) The act requires an owner or operator of specified marine
facilities and an owner or operator of certain vessels to prepare and
implement an oil spill contingency plan containing specified
provisions that has been submitted to, and approved by, the
administrator.
This bill would require the administrator to report to the
Legislature by July 1, 2009, with recommendations on specific actions
that should be taken to prevent, prepare for, and respond to oil
spills in waters of the state other than marine waters, including
, among other things, the requirement of a contingency
plan.
(5) The act imposes a uniform oil spill response fee on specified
owners of petroleum products, operators of a pipeline, operators of a
refinery, and marine terminal operators, and that fee is deposited
into the Oil Spill Response Trust Fund. The money
moneys in the fund is are
continuously appropriated for specified purposes.
This bill would additionally permit that fee to be used for
response and cleanup costs from oil spills into waters of the state
other than marine waters, thereby making an appropriation.
(6) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares as follows:
(a) Each year, billions of gallons of crude oil and petroleum
products are stored or transported by pipeline or other means across
and adjacent to inland waters of the state. The risk of spills from
these sources poses a significant threat to the environment, to state
water supplies, and to public health and safety.
(b) Oil spills affecting the state's inland waters occur three
times as frequently as marine spills and account for approximately
three-fourths of all oil spills in California, yet the state responds
to less than one-third of the oil spills affecting inland waters of
the state.
(c) The Office of Oil Spill Prevention and Response within the
Department of Fish and Game has a well-funded and formalized process
for preventing and responding to marine oil spills, but such a
process and dedicated funding source are lacking for oil spills
affecting inland waters of the state.
(d) The Department of Fish and Game has no permanent funding
source for responding to inland oil spills and relies on criminal
fines and penalties and limited cost recovery , which are
insufficient to encourage some operators to take substantive oil
spill prevention measures, especially when compared to the
considerably higher fines and penalties that may be assessed for
similar oil spills or discharges into marine waters.
(e) Because of current staffing and funding shortfalls, the state'
s failure to prevent and respond effectively to inland oil spills
will likely continue to worsen without action by the Legislature.
SEC. 2. Section 12017 of the Fish and Game Code is amended to
read:
12017. (a) Notwithstanding Section 13001, any recovery or
settlement of money moneys received
pursuant to the following sections shall be deposited in the Fish and
Wildlife Pollution Account:
(1) Section 2014.
(2) Article 1 (commencing with Section 5650) of Chapter 2 of Part
1 of Division 6.
(3) Section 12015 or 12016.
(4) Chapter 4 (commencing with Section 151) of Division 1.5 of the
Harbors and Navigation Code.
(5) Section 13442 of the Water Code.
(6) Proceeds or recoveries from pollution and abatement actions.
(7) Section 8670.75 of the Government Code.
(b) Moneys in the account are continuously appropriated to the
department, except as provided in Section 13230 of this code and
Section 8670.75 of the Government Code.
(c) Funds in the account shall be expended for the following
purposes:
(1) Abatement, cleanup, and removal of pollutants from the
environment.
(2) Response coordination, planning, and program management.
(3) Resource injury determination.
(4) Resource damage assessment.
(5) Economic valuation of resources.
(6) Restoration or rehabilitation at sites damaged by pollution.
(d) Notwithstanding subdivision (c), funds in the account in
excess of one million dollars ($1,000,000) as of July 1 of each year
may also be expended for the preservation of California plants,
wildlife, and fisheries.
(e) Funds in the account may be expended for cleanup and abatement
if a reasonable effort has been made to have the responsible party
pay cleanup and abatement costs and funds are not available for
disbursement from the emergency reserve account of the Toxic
Substances Control Account in the General Fund pursuant to Section
25354 of the Health and Safety Code.
(f) The department may use funds in the account to pay the costs
of consultant contracts for resource injury determination or damage
assessment during hazardous material or oil spill emergencies. These
contracts are not subject to Part 2 (commencing with Section 10100)
of Division 2 of the Public Contract Code.
SEC. 3. Section 8670.3 of the Government Code is amended to read:
8670.3. Unless the context requires otherwise, the following
definitions shall govern the construction of this chapter:
(a) "Administrator" means the administrator for oil spill response
appointed by the Governor pursuant to Section 8670.4.
(b) (1) "Best achievable protection" means the highest level of
protection that can be achieved through both the use of the best
achievable technology and those manpower levels, training procedures,
and operational methods that provide the greatest degree of
protection achievable. The administrator's determination of which
measures provide the best achievable protection shall be guided by
the critical need to protect valuable coastal resources and marine
waters, while also considering all of the following:
(A) The protection provided by the measure.
(B) The technological achievability of the measure.
(C) The cost of the measure.
(2) The administrator shall not use a cost-benefit or
cost-effectiveness analysis or any particular method of analysis in
determining which measures provide the best achievable protection.
The administrator shall instead, when determining which measures
provide best achievable protection, give reasonable consideration to
the protection provided by the measures, the technological
achievability of the measures, and the cost
costs of the measures when establishing the requirements to
provide the best achievable protection for coastal and marine
resources.
(c) (1) "Best achievable technology" means that technology that
provides the greatest degree of protection, taking into consideration
both of the following:
(A) Processes that are being developed, or could feasibly be
developed anywhere in the world, given overall reasonable
expenditures on research and development.
(B) Processes that are currently in use anywhere in the world.
(2) In determining what is the best achievable technology pursuant
to this chapter, the administrator shall consider the effectiveness
and engineering feasibility of the technology.
(d) "Dedicated response resources" means equipment and personnel
committed solely to oil spill response, containment, and cleanup that
are not used for any other activity that would adversely affect the
ability of that equipment and personnel to provide oil spill response
services in the timeframes for which the equipment and personnel are
rated.
(e) "Environmentally sensitive area" means an area defined
pursuant to the applicable area contingency plans, as created and
revised by the Coast Guard and the administrator.
(f) "Local government" means a chartered or general law city, a
chartered or general law county, a city, or a
or a city and county.
(g) (1) "Marine facility" means any facility of any kind, other
than a tank ship or tank barge, that is or was used for the purposes
of exploring for, drilling for, producing, storing, handling,
transferring, processing, refining, or transporting oil and is
located in marine waters, or is located where a discharge could
impact marine waters unless the facility is either of the following:
(A) Subject to Chapter 6.67 (commencing with Section 25270) or
Chapter 6.75 (commencing with Section 25299.10) of Division 20 of the
Health and Safety Code.
(B) Placed on a farm, nursery, logging site, or construction site
and does not exceed 20,000 gallons in a single storage tank.
(2) For the purposes of this chapter, "marine facility" includes a
drill ship, semisubmersible drilling platform, jack-up type drilling
rig, or any other floating or temporary drilling platform.
(3) For the purposes of this chapter, "marine facility" does not
include a small craft refueling dock.
(h) (1) "Marine terminal" means any marine facility used for
transferring oil to or from a tank ship or tank barge.
(2) "Marine terminal" includes, for purposes of this chapter, all
piping not integrally connected to a tank facility, as defined in
subdivision (m) of Section 25270.2 of the Health and Safety Code.
(i) "Marine waters" means those waters subject to tidal influence,
and includes the waterways used for waterborne commercial vessel
traffic to the Port of Sacramento and the Port of Stockton.
(j) "Mobile transfer unit" means a small marine fueling facility
that is a vehicle, truck, or trailer, including all connecting hoses
and piping, used for the transferring of oil at a location where a
discharge could impact marine waters.
(k) "Nondedicated response resources" means those response
resources identified by an Oil Spill Response Organization for oil
spill response activities that are not dedicated response resources.
() "Nonpersistent oil" means a petroleum-based oil, such as
gasoline, diesel, or jet fuel, that evaporates relatively quickly and
is an oil with hydrocarbon fractions, at least 50 percent of which,
by volume, distills at a temperature of 645* Fahrenheit, and at least
95 percent of which, by volume, distills at a temperature of 700*
Fahrenheit.
(m) "Nontank vessel" means a vessel of 300 gross tons or greater
that carries oil, but does not carry that oil as cargo.
(n) "Oil" means any kind of petroleum, liquid hydrocarbons, or
petroleum products or any fraction or residues therefrom, including,
but not limited to, crude oil, bunker fuel, gasoline, diesel fuel,
aviation fuel, oil sludge, oil refuse, oil mixed with waste, and
liquid distillates from unprocessed natural gas.
(o) "Oil spill cleanup agent" means a chemical, or any other
substance, used for removing, dispersing, or otherwise cleaning up
oil or any residual products of petroleum in, or on, any of the
waters of the state.
(p) "Oil spill contingency plan" or "contingency plan" means the
oil spill contingency plan required pursuant to Article 5 (commencing
with Section 8670.28).
(q) (1) "Oil Spill Response Organization" or "OSRO" means an
individual, organization, association, cooperative, or other entity
that provides, or intends to provide, equipment, personnel, supplies,
or other services directly related to oil spill containment,
cleanup, or removal activities.
(2) A "rated OSRO" means an OSRO that has received a satisfactory
rating from the administrator for a particular rating level
established pursuant to Section 8670.30.
(3) "OSRO" does not include an owner or operator with an oil spill
contingency plan approved by the administrator or an entity that
only provides oil spill management services, or who
provides services or equipment that are only ancillary to
containment, cleanup, or removal activities.
(r) "Onshore facility" means any facility of any kind that is
located entirely on lands not covered by marine waters.
(s) (1) "Owner" or "operator" means any of the following:
(A) In the case of a vessel, any person who owns, has an ownership
interest in, operates, charters by demise, or leases the vessel.
(B) In the case of a marine facility, any person who owns, has an
ownership interest in, or operates the marine facility.
(C) Except as provided in subparagraph (D), in the case of any
vessel or marine facility, where title or control was conveyed due to
bankruptcy, foreclosure, tax delinquency, abandonment, or similar
means to an entity of state or local government, a person who owned,
held an ownership interest in, operated, or otherwise controlled
activities concerning the vessel or marine facility immediately
beforehand.
(D) An entity of the state or local government that acquired
ownership or control of a vessel or marine facility, when the entity
of the state or local government has caused or contributed to a spill
or discharge of oil into marine waters.
(2) "Owner" or "operator" does not include a person who, without
participating in the management of a vessel or marine facility, holds
indicia of ownership primarily to protect the person's security
interest in the vessel or marine facility.
(3) "Operator" does not include a person who owns the land
underlying a marine facility or the facility itself if the person is
not involved in the operations of the facility.
(t) (1) "Person" means an individual, trust, firm, joint stock
company, or corporation, including, but not limited to, a government
corporation, partnership, and association. "Person" also includes a
city, county, city and county, district, and the state or any
department or agency thereof, and the federal government, or any
department or agency thereof, to the extent permitted by law.
(2) For the purposes of spills or discharges of oil or petroleum
products into waters of the state other than marine waters, "person"
means an owner or operator of any of the following:
(A) A pipeline under the jurisdiction of the Office of the State
Fire Marshal, as described in Chapter 5.5 (commencing with Section
51010) of Division 1 of Title 5, or the United States Department of
Transportation, as described in Title 49 (commencing with Section
2001) of the United States Code.
(B) Oil field production facilities, whether active, inactive, or
abandoned, and the gathering lines, pipelines, and flow lines
associated therewith, under the jurisdiction of the Division of Oil,
Gas, and Geothermal Resources of the Department of Conservation.
(C) A railroad.
(D) A refinery.
(E) A vessel to be used, or designed to be used, for the
commercial transport of oil or petroleum products.
(F) A tank farm or similar storage facility.
(u) "Pipeline" means any pipeline used at any time to transport
oil.
(v) "Reasonable worst case spill" means, for the purposes of
preparing contingency plans for a nontank vessel, the total volume of
the largest fuel tank on the nontank vessel.
(w) "Responsible party" or "party responsible" means any of the
following:
(1) The owner or transporter of oil or a person or entity
accepting responsibility for the oil.
(2) The owner, operator, or lessee of, or a person that charters
by demise, any vessel or marine facility, or a person or entity
accepting responsibility for the vessel or marine facility.
(x) "Small craft" means any vessel, other than a tank ship or tank
barge, that is less than 20 meters in length.
(y) "Small craft refueling dock" means a waterside operation that
dispenses only nonpersistent oil in bulk and small amounts of
persistent lubrication oil in containers primarily to small craft and
meets both of the following criteria:
(1) Has tank storage capacity not exceeding 20,000 gallons in any
single storage tank or tank compartment.
(2) Has total usable tank storage capacity not exceeding 75,000
gallons.
(z) "Small marine fueling facility" means either of the following:
(1) A mobile transfer unit.
(2) A fixed facility that is not a marine terminal, that dispenses
primarily nonpersistent oil, that may dispense small amounts of
persistent oil, primarily to small craft, and that meets all of the
following criteria:
(A) Has tank storage capacity greater than 20,000 gallons but not
more than 40,000 gallons in any single storage tank or storage tank
compartment.
(B) Has total usable tank storage capacity not exceeding 75,000
gallons.
(C) Had an annual throughput volume of over-the-water transfers of
oil that did not exceed 3,000,000 gallons during the most recent
preceding 12-month period.
(aa) "Spill" or "discharge" means any release of at least one
barrel (42 gallons) of oil into marine waters or into waters
of the state other than marine waters, that is not authorized by any
federal, state, or local government
governmental entity.
(ab) "State Interagency Oil Spill Committee" means the committee
established pursuant to Article 3.5 (commencing with Section 8574.1)
of Chapter 7.
(ac) "California oil spill contingency plan" means the California
oil spill contingency plan prepared pursuant to Article 3.5
(commencing with Section 8574.1) of Chapter 7.
(ad) "Tank barge" means any vessel that carries oil in commercial
quantities as cargo but is not equipped with a means of
self-propulsion.
(ae) "Tank ship" means any self-propelled vessel that is
constructed or adapted for the carriage of oil in bulk or in
commercial quantities as cargo.
(af) "Tank vessel" means a tank ship or tank barge.
(ag) "Vessel" means any watercraft or ship of any kind, including
every structure adapted to be navigated from place to place for the
transportation of merchandise or persons.
(ah) "Vessel carrying oil as secondary cargo" means any vessel
that does not carry oil as a primary cargo, but does carry oil in
bulk as cargo or cargo residue.
(ai) "Waters of the state" means any water, surface or
underground, including saline waters, within the boundaries of the
state.
SEC. 4. Section 8670.5 of the Government Code is amended to read:
8670.5. The Governor shall ensure that the state fully and
adequately responds to all oil spills in marine waters and in waters
of the state other than marine waters. The administrator, acting at
the direction of the Governor, shall implement activities relating to
oil spill response, including drills and preparedness and oil spill
containment and cleanup. The administrator shall also represent the
state in any coordinated response efforts with the federal
government.
SEC. 5. Section 8670.7 of the Government Code is amended to read:
8670.7. (a) The administrator, subject to the Governor, has the
primary authority to direct prevention, removal, abatement, response,
containment, and cleanup efforts with regard to all aspects of any
oil spill in the marine waters of the state, in accordance with any
applicable marine facility or vessel contingency plan and the
California oil spill contingency plan. The administrator shall
cooperate with any federal on-scene coordinator, as specified in the
National Contingency Plan.
(b) The administrator shall also have authority to direct removal,
abatement, response, containment, and cleanup efforts with regard to
oil spills in waters of the state other than marine waters.
(c) The administrator shall implement the California oil spill
contingency plan, required pursuant to Section 8574.1, to the fullest
extent possible.
(d) The administrator shall do both of the following:
(1) Be present at the location of any oil spill of more than
100,000 gallons in marine waters and in waters of the state other
than marine waters, as soon as possible after notice of the
discharge.
(2) Ensure that persons trained in oil spill response and cleanup,
whether employed by the responsible party, the state, or another
private or public person or entity, are onsite to respond to,
contain, and clean up any oil spill in marine waters or in waters of
the state other than marine waters, as soon as possible after notice
of the discharge.
(e) Throughout the response and cleanup process, the administrator
shall apprise the members of the State Interagency Oil Spill
Committee, the air quality management district or air pollution
control district having jurisdiction over the area in which the oil
spill occurred, and the local government
governmental entities that are affected by the spill.
(f) The administrator, with the assistance of the State Fire
Marshal, the State Lands Commission, and the federal on-scene
coordinator, shall determine the cause and amount of the discharge.
(g) The administrator shall have the state authority over the use
of all response methods, including, but not limited to, in situ
burning, dispersants, and any oil spill cleanup agents in connection
with an oil discharge. The administrator shall consult with the
federal onscene on-scene coordinator
prior to exercising authority under this subdivision.
(h) (1) The administrator shall conduct workshops, consistent with
the intent of this chapter, with the participation of appropriate
local, state, and federal agencies, including the State Air Resources
Board, air pollution control districts, and air quality management
districts, and affected private organizations, on the subject of oil
spill response technologies, including in situ burning. The workshops
shall review the latest research and findings regarding the efficacy
and toxicity of oil spill cleanup agents and other technologies,
their potential public health and safety and environmental impacts,
and any other relevant factors concerning their use in oil spill
response. In conducting these workshops, the administrator shall
solicit the views of all participating parties concerning the use of
these technologies, with particular attention to any special
considerations that apply to coastal areas and marine waters of the
state.
(2) The administrator shall publish guidelines and conduct
periodic reviews of the policies, procedures, and parameters for the
use of in situ burning, which may be implemented in the event of an
oil spill.
(i) (1) The administrator shall ensure that, as part of the
response to any significant spill, biologists or other personnel are
present and provided any support and funding necessary and
appropriate for the assessment of damages to natural resources and
for the collection of data and other evidence that may help in
determining and recovering damages.
(2) (A) The administrator shall coordinate all actions required by
state or local agencies to assess injury to, and provide full
mitigation for injury to, or to restore, rehabilitate, or replace,
natural resources, including wildlife, fisheries, wildlife or
fisheries habitat, and beaches and other coastal areas, that are
damaged by an oil spill. For purposes of this subparagraph, "actions
required by state or local agencies" include, but are not limited to,
actions required by state trustees under Section 1006 of the Oil
Pollution Act of 1990 (33 U.S.C. Sec. 2706) and actions required
pursuant to Section 8670.61.5.
(B) The responsible party shall be liable for all coordination
costs incurred by the administrator.
(3) This subdivision does not give the administrator authority to
administer state or local laws or to limit the authority of another
state or local agency to implement and enforce state or local laws
under its jurisdiction, nor does this subdivision limit the authority
or duties of the administrator under this chapter or limit the
authority of an agency to enforce existing permits or permit
conditions.
(j) (1) The administrator shall enter into a memorandum of
understanding with the executive director of the State Water
Resources Control Board, acting for the State Water Resources Control
Board and the California regional water quality control boards, and
with the approval of the State Water Resources Control Board, to
address discharges, other than dispersants, that are incidental to,
or directly associated with, the response, containment, and cleanup
of an existing or threatened oil spill conducted pursuant to this
chapter.
(2) The memorandum of understanding entered into pursuant to
paragraph (1) shall address any permits, requirements, or
authorizations that are required for the specified discharges. The
memorandum of understanding shall be consistent with requirements
that protect state water quality and beneficial uses and with any
applicable provisions of the Porter-Cologne Water Quality Control Act
(Division 7 (commencing with Section 13000) of the Water Code) or
the federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.), and shall
expedite efficient oil spill response.
SEC. 6. Section 8670.8.5 of the Government Code is amended to
read:
8670.8.5. The administrator may use volunteer workers in
response, containment, restoration, wildlife rehabilitation, and
cleanup efforts for oil spills in marine waters or in waters of the
state other than marine waters. The volunteers shall be deemed
employees of the state for the purpose of workers' compensation under
Article 2 (commencing with Section 3350) of Chapter 2 of Part 1 of
Division 4 of the Labor Code. Any payments for workers' compensation
pursuant to this section shall be made from the Oil Spill Response
Trust Fund created pursuant to Section 8670.46.
SEC. 7. Section 8670.12 of the Government Code is amended to read:
8670.12. (a) The administrator shall conduct studies and
evaluations necessary for improving oil spill response, containment,
and cleanup and oil spill wildlife rehabilitation in marine
water sand waters and marine oil transportation
systems, and in waters of the state other than marine waters. The
administrator may expend moneys from the Oil Spill Prevention and
Administration Fund created pursuant to Section 8670.38, enter into
consultation agreements, and acquire necessary equipment and services
for the purpose of carrying out these studies and evaluations.
(b) The administrator shall study the use and effects of
dispersants, incineration, bioremediation, and any other methods used
to respond to a spill. The study shall periodically be updated to
ensure the best achievable protection from the use of those methods.
Based upon substantial evidence in the record, the administrator may
determine in individual cases that best achievable protection is
provided by establishing requirements which provide the greatest
degree of protection achievable without imposing costs which
significantly outweigh the incremental protection that would
otherwise be provided. The studies shall do all of the following:
(1) Evaluate the effectiveness of dispersants and other chemical
agents in oil spill response under varying environmental conditions.
(2) Evaluate potential adverse impacts on the environment and
public health including, but not limited to, adverse toxic impacts on
water quality, fisheries, and wildlife with consideration to
bioaccumulation and synergistic impacts, and the potential for human
exposure, including skin contact and consumption of contaminated
seafood.
(3) Recommend appropriate uses and limitations on the use of
dispersants and other chemical agents to ensure they are used only in
situations where the administrator determines they are effective and
safe.
(c) The administrator shall evaluate the feasibility of using
commercial fishermen and other mariners for oil spill containment and
cleanup. The study shall examine all of the following:
(1) Equipment and technology needs.
(2) Coordination with private response personnel.
(3) Liability and insurance.
(4) Compensation.
(d) The studies shall be performed in conjunction with any studies
performed by federal, state, and international entities. The
administrator may enter into contracts for the studies.
SEC. 8. Section 8670.25 of the Government Code is amended to read:
8670.25. (a) A person who, without regard to intent or
negligence, causes or permits any oil to be discharged in or on the
marine waters or other waters of the state shall
immediately contain, cleanup, and remove the oil in the most
effective manner that minimizes environmental damage and in
accordance with the
applicable contingency plans, unless ordered otherwise by the Coast
Guard, or in the case of waters of the state other than marine
waters, by the United States Environmental Protection Agency, or the
administrator.
(b) If there is a spill, an owner or operator shall comply with
the applicable oil spill contingency plan approved by the
administrator.
SEC. 9. Section 8670.25.5 of the Government Code is amended to
read:
8670.25.5. (a) Without regard to intent or negligence, any party
responsible for the discharge or threatened discharge of oil in
marine waters or waters of the state other than marine waters shall
report the discharge immediately to the Office of Emergency Services
pursuant to Section 25507 of the Health and Safety Code.
(b) Immediately upon receiving notification pursuant to
subdivision (a), the Office of Emergency Services shall notify the
administrator, the State Lands Commission, the California Coastal
Commission, the California regional water quality control board
having jurisdiction over the location of the discharged oil, and take
the actions required by subdivision (d) of Section 8589.7. If the
spill has occurred within the jurisdiction of the San Francisco Bay
Conservation and Development Commission, the Office of Emergency
Services shall notify that commission. Each public agency specified
in this subdivision shall adopt an internal protocol over
communications regarding the discharge of oil and file the internal
protocol with the Office of Emergency Services.
(c) The 24-hour emergency telephone number of the Office of
Emergency Services shall be posted at every terminal, at the area of
control of every marine facility, and on the bridge of every tank
ship in marine waters.
(d) This section does not apply to discharges, or potential
discharges, of less than one barrel (42 gallons) of oil unless a more
restrictive reporting standard is adopted in the California oil
spill contingency plan prepared pursuant to Section 8574.1.
(d)
(e) Except as otherwise provided in this section and
Section 8589.7, a notification made pursuant to this section shall
satisfy any immediate notification requirement contained in any
permit issued by a permitting agency.
SEC. 10. Section 8670.29 of the Government Code is amended to
read:
8670.29. (a) In accordance with the rules, regulations, and
policies established by the administrator pursuant to Section
8670.28, an owner or operator of a marine facility, small marine
fueling facility, or mobile transfer unit, prior to operating in the
marine waters of the state or where an oil spill could impact marine
waters; and an owner or operator of a tank vessel, nontank vessel, or
vessel carrying oil as secondary cargo before operating in the
marine waters of the state, shall prepare and implement an oil spill
contingency plan that has been submitted to, and approved by, the
administrator pursuant to Section 8670.31. The oil spill contingency
plan shall ensure the undertaking of prompt and adequate response and
removal action in case of an oil spill, shall be consistent with the
California oil spill contingency plan, and shall not conflict with
the National Contingency Plan.
(b) A oil spill contingency plan shall, at a minimum, meet all of
the following requirements:
(1) Be a written document, reviewed for feasibility and
executability, and signed by the owner or operator, or their
designee.
(2) Provide for the use of an incident command system to be used
during a spill.
(3) Provide procedures for reporting oil spills to local, state,
and federal agencies, and include a list of contacts to call in the
event of a drill, threatened spill, or spill.
(4) Describe the communication plans to be used during a spill.
(5) Describe the strategies for the protection of environmentally
sensitive areas.
(6) Identify at least one rated OSRO for each rating level
established pursuant to Section 8670.30. Each identified rated OSRO
shall be directly responsible by contract, agreement, or other
approved means to provide oil spill response activities pursuant to
the oil spill contingency plan. A rated OSRO may provide oil spill
response activities individually, or in combination with another
rated OSRO, for a particular owner or operator.
(7) Identify a qualified individual.
(8) Provide the name, address, telephone,
and telephone and facsimile numbers for an agent for service of
process, located within the state and designated to receive legal
documents on behalf of the owner or operator.
(c) An oil spill contingency plan for a vessel shall also include,
but is not limited to, all of the following requirements:
(1) The plan shall be submitted to the administrator at least
seven days prior to the vessel entering waters of the state.
(2) The plan shall provide evidence of compliance with the
International Safety Management Code, established by the
International Maritime Organization, as applicable.
(3) If the oil spill contingency plan is for a tank vessel, the
plan shall include both of the following:
(A) The plan shall specify oil and petroleum cargo capacity.
(B) The plan shall specify the types of oil and petroleum cargo
carried.
(4) If the oil spill contingency plan is for a nontank vessel, the
plan shall include both of the following:
(A) The plan shall specify the type and total amount of fuel
carried.
(B) The plan shall specify the capacity of the largest fuel tank.
(d) An oil spill contingency plan for a marine facility shall also
include, but is not limited to, all of the following provisions:
(1) Provisions for site security and control.
(2) Provisions for emergency medical treatment and first aid.
(3) Provisions for safety training, as required by state and
federal safety laws for all personnel likely to be engaged in oil
spill response.
(4) Provisions detailing site layout and locations of
environmentally sensitive areas requiring special protection.
(5) Provisions for vessels that are in the operational control of
the facility for loading and unloading.
(6) Provisions for training and drills on elements of the plan at
least annually.
(7) Provisions for subjecting all elements of the plan to drills
or tests, as specified by the administrator, at least once every
three years.
(e) The oil spill contingency plan shall be available to response
personnel and to relevant state and federal agencies for inspection
and review.
(f) The oil spill contingency plan shall be reviewed periodically
and updated as necessary. All updates shall be submitted to the
administrator pursuant to this article.
(g) In addition to the regulations adopted pursuant to Section
8670.28, the administrator shall adopt regulations and guidelines to
implement this section. The regulations and guidelines shall provide
for the best achievable protection of coastal and marine resources.
The administrator may establish additional oil spill contingency plan
requirements, including, but not limited to, requirements based on
the different geographic regions of the state. All regulations and
guidelines shall be developed in consultation with the State
Interagency Oil Spill Committee and the Oil Spill Technical Advisory
Committee.
(h) On or befere July 1, 2009, the administrator shall report to
the Legislature with recommendations on specific actions that should
be taken to prevent, prepare for, and respond to, oil spills in
waters of the state other than marine waters. The recommendations may
include, but are not limited to, all of the following:
(1) Whether a state inland oil spill contingency planning section
should be added to the California oil spill contingency plan
specified in Section 8574.1, and if so, what specific elements should
be included in the plan.
(2) Whether a contingency plan should be required to be prepared
by an owner or operator of a vessel, facility, pipeline, railroad,
or refinery refinery, or tank farm for
oil spills in waters of the state other than marine waters, and if
so, what the minimum requirements should be for those plans.
(3) How the Oiled Wildlife Care Network can be expanded to meet
the best achievable treatment standard for oiled wildlife in inland
spills and the types of wildlife that should be covered.
(3)
(4) Other necessary tasks for oversight and control of
cleanup, abatement, and removal activities associated with oil spills
in waters of the state other than marine waters.
SEC. 11. Section 8670.48 of the Government Code is amended to
read:
8670.48. (a) (1) A uniform oil spill response fee in an amount
not exceeding twenty-five cents ($0.25) for each barrel of petroleum
products, as set by the administrator pursuant to subdivision (f),
shall be imposed upon a person owning petroleum products at the time
the petroleum products are received at a marine terminal within this
state by means of a vessel from a point of origin outside this state.
The fee shall be remitted to the State Board of Equalization by the
terminal operator on the 25th day of each month based upon the number
of barrels of petroleum products received during the preceding
month.
(2) An owner of petroleum products is liable for the fee until it
has been paid to the state, except that payment to a marine terminal
operator registered under this chapter is sufficient to relieve the
owner from further liability for the fee.
(b) An operator of a pipeline shall also pay a uniform oil spill
response fee in an amount not exceeding twenty-five cents ($0.25) for
each barrel of petroleum products, as set by the administrator
pursuant to subdivision (f), transported into the state by means of a
pipeline operating across, under, or through the marine waters of
the state. The fee shall be paid on the 25th day of each month based
upon the number of barrels of petroleum products so transported into
the state during the preceding month.
(c) (1) An operator of a refinery shall pay a uniform oil spill
response fee in an amount not exceeding twenty-five cents ($0.25) for
each barrel of crude oil, as set by the administrator pursuant to
subdivision (f), received at a refinery within the state. The fee
shall be paid on the 25th day of each month based upon the number of
barrels of crude oil so received during the preceding month.
(2) The fee shall not be imposed by a refiner, or a person or
entity acting as an agent for a refiner, on crude oil produced by an
independent crude oil producer as defined in paragraph (3). The board
shall not identify a company as exempt from the fee requirements of
this section if that company was reorganized, sold, or otherwise
modified with the intent of circumventing the requirements of this
section.
(3) For purposes of this chapter, "independent crude oil producer"
means a person or entity producing crude oil within this state who
does not refine crude oil into product and who does not possess or
own a retail gasoline marketing facility.
(d) A marine terminal operator shall pay a uniform oil spill
response fee in an amount not exceeding twenty-five cents ($0.25), in
accordance with subdivision (g), for each barrel of crude oil, as
set by the administrator pursuant to subdivision (f), that is
transported from within this state by means of marine vessel to a
destination outside this state.
(e) A operator of a pipeline shall pay a uniform oil spill
response fee in an amount not exceeding twenty-five cents ($0.25), in
accordance with subdivision (g), for each barrel of crude oil, as
set by the administrator pursuant to subdivision (f), transported out
of the state by pipeline.
(f) (1) The fees required pursuant to this section shall be
collected during a period for which the administrator determines that
collection is necessary for any of the following reasons:
(A) The amount in the fund is less than or equal to 95 percent of
the designated amount specified in subdivision (a) of Section 46012
of the Revenue and Taxation Code.
(B) Additional money is required to pay for the purposes specified
in subdivision (k).
(C) The revenue is necessary to repay a draw on a financial
security obtained by the Treasurer pursuant to subdivision (o) or
borrowing by the Treasurer pursuant to Article 7.5 (commencing with
Section 8670.53.1) including any principal, interest, premium, fees,
charges, or costs of any kind incurred in connection with those
borrowings or financial security.
(2) The administrator, in consultation with the State Board of
Equalization, and with the approval of the Treasurer, may direct the
State Board of Equalization to cease collecting the fee when the
administrator determines that further collection of the fee is not
necessary for the purposes specified in paragraph (1).
(3) The administrator, in consultation with the State Board of
Equalization, shall set the amount of the oil spill response fees.
The oil spill response fees shall be imposed on all feepayers in the
same amount. The administrator shall not set the amount of the fee at
less than twenty-five cents ($0.25) for each barrel of petroleum
products or crude oil, unless the administrator finds that the
assessment of a lesser fee will cause the fund to reach the
designated amount specified in subdivision (a) of Section 46012 of
the Revenue and Taxation Code within four months. The fee shall not
be less than twenty-five cents ($0.25) for each barrel of petroleum
products or crude oil if the administrator has drawn upon the
financial security obtained by the Treasurer pursuant to subdivision
(o) or if the Treasurer has borrowed money pursuant to Article 7.5
(commencing with Section 8670.53.1) and principal, interest, premium,
fees, charges, or costs of any kind incurred in connection with
those borrowings remain outstanding or unpaid, unless the Treasurer
has certified to the administrator that the money in the
fund is moneys in the fund are not necessary for
the purposes specified in paragraph (1).
(g) The fees imposed by subdivisions (d) and (e) shall be imposed
in any calendar year beginning the month following the month when the
total cumulative year-to-date barrels of crude oil transported
outside the state by all feepayers by means of vessel or pipeline
exceeds 6 percent by volume of the total barrels of crude oil and
petroleum products subject to oil spill response fees under
subdivisions (a), (b), and (c) for the prior calendar year.
(h) For purposes of this chapter, "designated amount" means the
amounts specified in Section 46012 of the Revenue and Taxation Code.
(i) The administrator, in consultation with the State Board of
Equalization and with the approval of the Treasurer, shall authorize
refunds of any money collected that is not necessary for the purposes
specified in paragraph (1) of subdivision (f). The State Board of
Equalization, as directed by the administrator, and in accordance
with Section 46653 of the Revenue and Taxation Code, shall refund the
excess amount of fees collected to each feepayer who paid the fee to
the state, in proportion to the amount that each feepayer paid into
the fund during the preceding 12 monthly reporting periods in which
there was a fee due, including the month in which the fund exceeded
the specified amount. If the total amount of money in the
fund exceeds moneys in the fund exceed the
amount specified in this subdivision by 10 percent or less, refunds
need not be ordered by the administrator. This section dos
does not require the refund of excess fees as
provided in this subdivision more frequently than once each year.
(j) The State Board of Equalization shall collect the fee and
adopt regulations implementing the fee collection program. All fees
collected pursuant to this section shall be deposited in the Oil
Spill Response Trust Fund.
(k) The fee described in this section shall be collected solely
for any of the following purposes:
(1) To provide funds to cover promptly the costs of response,
containment, and cleanup of oil spills into marine waters or into
waters of the state other than marine waters, including damage
assessment costs and wildlife rehabilitation as provided in Section
8670.61.5.
(2) To cover response and cleanup costs and other damages suffered
by the state or other persons or entities from oil spills into
marine waters or into waters of the state other than marine waters,
which cannot otherwise be compensated by responsible parties or the
federal government.
(3) To pay claims for damages pursuant to Section 8670.51.
(4) To pay claims for damages, except for damages described in
paragraph (7) of subdivision (h) of Section 8670.56.5, pursuant to
Section 8670.51.1.
(5) To pay for the cost of obtaining financial security in the
amount specified in subdivision (b) of Section 46012 of the Revenue
and Taxation Code, as authorized by subdivision (o).
(6) To pay indemnity and related costs and expenses as authorized
by Section 8670.56.6.
(7) To pay principal, interest, premium
premiums , if any, and fees, charges, and costs of any kind
incurred in connection with moneys drawn by the administrator on the
financial security obtained by the Treasurer pursuant to subdivision
(o) or borrowed by the Treasurer pursuant to Article 7.5 (commencing
with Section 8670.53.1).
(8) To pay for the costs of rescue, medical treatment,
rehabilitation, and disposition of oiled wildlife, as incurred by the
network of oiled wildlife rescue and rehabilitation stations created
pursuant to Section 8670.37.5.
() (1) The interest that the state earns on the funds deposited
into the Oil Spill Response Trust Fund shall be deposited in the fund
and shall be used to maintain the fund at the designated amount
specified in subdivision (a) of Section 46012 of the Revenue and
Taxation Code. Interest earned until July 1, 1998, on funds deposited
pursuant to subdivision (a) of Section 46012 of the Revenue and
Taxation Code, as determined jointly by the Controller and the
Director of Finance, shall be available upon appropriation by the
Legislature in the Budget Act to establish, equip, operate, and
maintain the network of rescue and rehabilitation stations for oiled
wildlife as described in Section 8670.37.5 and to support technology
development and research related to oiled wildlife care. Interest
earned on the financial security portion of the fund, required to be
accessible pursuant to subdivision (b) of Section 46012 of the
Revenue and Taxation Code shall not be available for that purpose. If
the amount in the fund exceeds that designated amount, the interest
not needed to equip, operate, and maintain the network of rescue and
rehabilitation stations, or for appropriate technology development
and research regarding oiled wildlife care, shall be deposited into
the Oil Spill Prevention and Administration Fund, and shall be
available for the purposes authorized by Article 6 (commencing with
Section 8670.38).
(2) (A) For each fiscal year, consistent with this article, the
administrator shall submit, as a proposed appropriation in the
Governor's Budget, an amount up to one million five hundred thousand
dollars ($1,500,000) , of the interest earned on
the funds deposited into the Oil Spill Response Trust Fund, for the
purpose of equipping, operating, and maintaining the network of oiled
wildlife rescue and rehabilitation stations established pursuant to
Section 8670.37.5 and for support of technology development and
research related to oiled wildlife care. The remaining interest shall
be deposited into the Oil Spill Prevention and Administration Fund
pursuant to paragraph (1).
(B) The administrator shall report to the Legislature not later
than June 30, 2002, on the progress and effectiveness of the network
of oiled wildlife rescue and rehabilitation stations established
pursuant to Section 8670.37.5 and the adequacy of the Oil Spill
Response Trust Fund to meet the purposes for which it was
established.
(C) At the administrator's request, the funds made available
pursuant to this paragraph may be directly appropriated to a suitable
program for oiled wildlife health and rehabilitation
within a school of veterinary medicine within this state, provided
that an agreement exists, consistent with this chapter, between the
administrator and an appropriate representative of the program for
carrying out that purpose. The administrator shall attempt to have an
agreement in place at all times. The agreement shall ensure that the
training of, and the care provided by, the program staff are at
levels that are consistent with those standards generally accepted
within the veterinary profession.
(D) The funds made available pursuant to this paragraph shall not
be considered an offset to any other state funds appropriated to the
program, the program's associated school of veterinary medicine, or
the program's associated college or university and the funds shall
not be used for any other purpose. If an offset does occur or the
funds are used for an unintended purpose, expenditure of any
appropriation of funds pursuant to this paragraph may be terminated
by the administrator and the administrator may request a
reappropriation to accomplish the intended purpose. The administrator
shall annually review and approve the proposed uses of any funds
made available pursuant to this paragraph.
(m) The Legislature finds and declares that effective response to
oil spills requires that the state have available sufficient funds in
a response fund. The Legislature further finds and declares that
maintenance of that fund is of utmost importance to the state and
that the money moneys in the fund shall
be used solely for the purposes specified in subdivision (k).
(n) It is the intent of the Legislature, in enacting this section,
that the fee shall not be imposed by a refiner, or a person or
entity acting as an agent for a refiner, on crude oil produced by an
independent crude oil producer.
(o) The Treasurer shall obtain financial security, in the
designated amount specified in subdivision (b) of Section 46012 of
the Revenue and Taxation Code, in a form which, in the event of an
oil spill, may be drawn upon immediately by the administrator upon
making the determinations required by paragraph (2) of subdivision
(a) of Section 8670.49. The financial security may be obtained in any
of the forms described in subdivision (b) of Section 8670.53.3, as
determined by the Treasurer.
(p) This section does not limit the authority of the administrator
to raise oil spill response fees pursuant to Section 8670.48.5.
SEC. 12. Section 8670.64 of the Government Code is amended to
read:
8670.64. (a) A person who commits any of the following acts,
shall, upon conviction, be punished by imprisonment in the county
jail for not more than one year or by imprisonment in the state
prison:
(1) Except as provided in Section 8670.27, knowingly fails to
follow the directions or orders of the administrator in connection
with an oil spill.
(2) Knowingly fails to notify the Coast Guard that a vessel is
disabled within one hour of the disability and the vessel, while
disabled, causes a discharge of oil which enters marine waters. For
the purposes of this paragraph, "vessel" means a vessel, as defined
in Section 21 of the Harbors and Navigation Code, of 300 gross
registered tons or more.
(3) Knowingly engages in or causes the discharge or spill of oil
into marine waters, or into waters of the state other than marine
waters, or a person who reasonably should have known that he or she
was engaging in or causing the discharge or spill of oil into marine
waters, or into waters of the state other than marine waters, unless
the discharge is authorized by the United States, the state, or
another agency with appropriate jurisdiction.
(4) Knowingly fails to begin cleanup, abatement, or removal of
spilled oil as required in Section 8670.25.
(b) The court shall also impose upon a person convicted of
violating subdivision (a), a fine of not less than five thousand
dollars ($5,000) or more than five hundred thousand dollars
($500,000) for each violation. For purposes of this subdivision, each
day or partial day that a violation occurs is a separate violation.
(c) (1) A person who knowingly does any of the acts specified in
paragraph (2) shall, upon conviction, be punished by a fine of not
less than two thousand five hundred dollars ($2,500) or more than two
hundred fifty thousand dollars ($250,000), or by imprisonment in a
county jail for not more than one year, or by both the fine and
imprisonment. For purposes of this subdivision, each day or partial
day that a violation occurs is a separate violation. If the
conviction is for a second or subsequent violation of this
subdivision, the person shall be punished by imprisonment in the
state prison or in a county jail for not more than one year, or by a
fine of not less than five thousand dollars ($5,000) or more than
five hundred thousand dollars ($500,000), or by both the fine and
imprisonment:
(2) The acts subject to this subdivision are all of the following:
(A) Fails to notify the Office of Emergency Services in violation
of Section 8670.25.5.
(B) Continues operations for which an oil spill contingency plan
is required without an oil spill contingency plan approved pursuant
to Article 5 (commencing with Section 8670.28).
(C) Except as provided in Section 8670.27, knowingly fails to
follow the material provisions of an applicable oil spill contingency
plan.
SEC. 13. Section 8670.66 of the Government Code is amended to
read:
8670.66. (a) A person who intentionally or negligently does any
of the following acts shall be subject to a civil penalty of not less
than twenty-five thousand dollars ($25,000) or more than five
hundred thousand dollars ($500,000) for each violation, and each day
or partial day that a violation occurs is a separate violation:
(1) Except as provided in Section 8670.27, fails to follow the
directions or orders of the administrator in connection with an oil
spill.
(2) Fails to notify the Coast Guard that a vessel is disabled
within one hour of the disability and the vessel, while disabled,
causes a discharge of oil which enters marine waters. For the
purposes of this paragraph, "vessel" means a vessel, as defined in
Section 21 of the Harbors and Navigation Code, of 300 gross
registered tons or more.
(3) Discharges or spills oil into marine waters or into waters of
the state other than marine waters, unless the discharge is
authorized by the United States, the state, or other agency with
appropriate jurisdiction.
(4) Fails to begin cleanup, abatement, or removal of spilled
oil as required in Section 8670.25.
(b) Except as provided in subdivision (a), a person who
intentionally or negligently violates any provision of this chapter,
or Division 7.8 (commencing with Section 8750) of the Public
Resources Code, or any permit, rule, regulation, standard, or
requirement issued or adopted pursuant to those provisions, shall be
liable for a civil penalty not to exceed two hundred fifty thousand
dollars ($250,000) for each violation of a separate provision, or,
for continuing violations, for each day that violation continues.
(c) A person shall not be liable for a civil penalty imposed under
this section and for a civil penalty imposed pursuant to Section
8670.67 for the same act or failure to act.
SEC. 14. Section 8670.67 of the Government Code is amended to
read:
8670.67. (a) A person who intentionally or negligently does any
of the following acts shall be subject to an administrative civil
penalty not to exceed one hundred thousand dollars ($100,000) for
each violation as imposed by the administrator pursuant to Section
8670.68, and each day or partial day that a violation occurs is a
separate violation:
(1) Except as provided in Section 8670.27, fails to follow the
applicable contingency plans or the directions or orders of the
administrator in connection with an oil spill.
(2) Fails to notify the Coast Guard that a vessel is disabled
within one hour of the disability and the vessel, while disabled,
causes a discharge of oil which enters marine waters. For the
purposes of this paragraph, "vessel" means a vessel, as defined in
Section 21 of the Harbors and Navigation Code, of 300 gross
registered tons or more.
(3) Discharges or spills oil into marine waters or into waters of
the state other than marine waters, unless the discharge is
authorized by the United States, the state, or other
another agency with appropriate jurisdiction.
(4) Fails to begin cleanup, abatement, or removal of spilled oil
as required by Section 8670.25.
(b) Except as provided in subdivision (a), a person who
intentionally or negligently violates any provision of this chapter,
or Division 7.8 (commencing with Section 8750) of the Public
Resources Code, or any permit, rule, regulation, standard, cease and
desist order, or requirement issued or adopted pursuant to those
provisions, shall be liable for an administrative civil penalty as
imposed by the administrator pursuant to Section 8670.68, not to
exceed one hundred thousand dollars ($100,000) for each violation of
a separate provision, or, for continuing violations, for each day
that violation continues.
(c) A person shall not be liable for a civil penalty imposed under
this section and for a civil penalty imposed pursuant to Section
8670.66 for the same act or failure to act.
SEC. 15. Section 8670.67.3 is added to the Government Code, to
read:
8670.67.3. In determining the amount of criminal, civil, or civil
administrative penalties to impose, for a discharge or spill into
the waters of the state other than marine waters, the court or
administrator shall take into consideration all relevant
circumstances including, but not limited to, all of the following:
(a) The nature, circumstance, extent, and gravity of the
violation.
(b) The extent of harm caused.
(c) Any voluntary cleanup efforts undertaken by the defendant.
(d) The degree of culpability of the defendant.
(e) Any prior history of spills, discharges, or other violations,
by the defendant.
(f) The economic benefit, if any, to the defendant from the
violation.
(g) Whether or not the defendant has been diligent in implementing
practices to reduce the possibility of an oil spill into the surface
water.
(h) Any other factors the interests of justice may require.
SEC. 16. Section 8670.70 of the Government Code is amended to
read:
8670.70. The Environmental Enhancement Fund is hereby created in
the State Treasury. All penalties collected under Article 9
(commencing with Section 8670.57) shall be deposited in the
Environmental Enhancement Fund, except as specified in Sections
8670.68.5 and 8670.75. The money moneys
in the fund shall only be used for environmental enhancement
projects and shall not be used for the cleanup of an oil spill or the
restoration required after an oil spill. The money
moneys in the fund shall be available to the
administrator for environmental enhancement projects, upon
appropriation therefor by the Legislature.
SEC. 17. Section 8670.75 is added to the Government Code, to read:
8670.75. (a) All penalties collected under Article 9 (commencing
with Section 8670.57) that are derived from spills or discharges into
the waters of the state other than marine waters shall be deposited
in the Fish and Wildlife Pollution Account in the Fish and Game
Preservation Fund and be available for expenditure in accordance with
Section 12017 of the Fish and Game Code upon appropriation by the
Legislature.
(b) With respect to discharges or spills of oil into the waters of
the state other than marine waters all of the following conditions
shall apply:
(1) This chapter shall not be construed to prevent the Attorney
General, a district attorney, or city attorney from filing a criminal
or civil action for a violation arising from the same discharge or
spill under any other law that may apply. This chapter shall also not
be construed to prohibit the Attorney General, a district attorney,
or a city attorney from seeking a criminal fine or civil penalty, or
both, under this chapter and, in addition, seeking any other legal or
equitable remedy, other than a criminal fine or civil penalty,
pursuant to any other law for the same violation including, but not
limited to, injunctive relief, restitution, damages, recovery of
cleanup costs, environmental restoration, or an award of attorney
fees and court costs, if applicable.
(2) If, in the same proceeding, the Attorney General, a district
attorney, or a city attorney seeks a criminal fine or civil penalty,
or both, under both this chapter and any other applicable law, a
criminal fine or civil penalty shall not be imposed for violations
arising from the same discharge or spill under both this chapter and
that other law. This paragraph does not affect the right of the
people to seek a criminal fine or civil penalty, or both, under this
chapter and other legal or equitable relief for violations arising
from the same discharge or spill, as described in paragraph (1).
(3) If a criminal fine or civil penalty, or both, has been imposed
for a violation arising from the same discharge or spill in another
action pursuant to another law, the maximum criminal fine or civil
penalty for which the defendant is liable under Section 8670.64 or
Section 8670.66 shall be reduced by the amount of the criminal fine
or civil penalty imposed in the other action. This paragraph does not
require a reduction in the maximum criminal fine or civil penalty
under this chapter if other legal or equitable relief is sought for a
violation arising from the same discharge or spill, as described in
paragraph (1).
(4) If a civil administrative penalty is imposed pursuant to
Section 8670.67, the maximum civil administrative penalty that may be
imposed pursuant to that section shall be reduced by the amount of
the civil administrative penalty imposed under any other law for a
violation arising from the same discharge or spill. This paragraph
does not require a reduction in a maximum civil administrative
penalty that may be imposed under Section 8670.67 for any relief
other than a civil administrative penalty ordered by an
administrative agency for a violation arising from the same discharge
or spill, including, but not limited to, orders related to cleanup,
abatement, environmental restoration, recovery of damages,
restitution, and costs.
(5) Except as otherwise expressly provided in this chapter, this
chapter does not add to or reduce the rights or liabilities of person
under any other law.
SEC. 18. The changes in the Lempert-Keene-Seastrand Oil Spill
Prevention and Response Act, Chapter 7.4 (commencing with Section
8670.1) of Division 1 of Title 2 of the Government Code, made by this
act shall apply to violations of Sections 8670.64, 8670.66, and
8670.67 of the Government Code that occur on or after January 1,
2009.
SEC. 19. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.