State Water Resource Control Board

State Water Resource Control Board

Emergency, Abandoned, Recalcitrant Account

Administrative Procedures Manual

Page 1

01/12/2019

STATE WATER RESOURCES CONTROL BOARD

ADMINISTRATIVE PROCEDURES MANUAL

WATER QUALITY

CHAPTER 19

PETROLEUM UNDERGROUND STORAGE TANK (UST) CLEANUP FUND

EMERGENCY, ABANDONED, RECALCITRANT (EAR) ACCOUNT

This chapter details the process used by the State Water Resources Control Board (SWRCB), Petroleum UST Cleanup Fund Program to provide funding to Regional Water Quality Control Boards (RWQCBs) and Local Implementing Agencies (LIAs) for taking corrective action at emergency or abandoned petroleum UST sites or petroleum UST sites where the responsible party (RP) is either unable or unwilling to implement the required corrective action to protect human health, safety and the environment.

GENERAL

This chapter establishes the authorities and responsibilities for administering the Petroleum UST Emergency, Abandoned, Recalcitrant (EAR) Account. The purpose of the EAR Account is to provide funding to RWQCBs and LIAs to initiate corrective action at petroleum UST sites which have had an unauthorized release and which require either:

1)an immediate or prompt action response to protect human health, safety and the environment; or

2)action at a site where a RP can not be identified or located (abandoned site); or

3)the identified RP is either unable or unwilling to take the required corrective action (recalcitrant site).

AUTHORITY

Authority for creating and administering the EAR Account and pursuing cost recovery is authorized in accordance with the California Health and Safety Code, Chapter 6.75, Division 20, Article 4 § 25299.36 and 25299.37, Article 6 § 25299.50, 25299.51(c)(d)(e)(h), and 25299.53. Any costs incurred and payable from the Cleanup Fund shall be recovered by the Attorney General upon request by the SWRCB pursuant to California Health and Safety Code, Chapter 6.75, Division 20, Article 7 § 25299.70, 25299.72, 25299.73, 25299.74 and 25299.75.

RESPONSIBILITIES

Accounting Office: Responsible for the fiscal administration of the EAR Account, which includes reimbursement of costs incurred by RWQCBs or LIAs.

Budget Office: Coordinates the preparation of budgetary documents necessary to expend funds and submits required documentation to the Department of Finance.

Contracts Office: Assists in the preparation and administration of contracts.

Division of Administrative Services (DAS): Assists Chief of Division of Clean Water Programs and Cleanup Fund in managing the EAR Account.

Division of Clean Water Programs (DCWP), Cleanup Fund: Responsible for establishing procedures and administration of EAR Account.

EAR Account Contract Manager: Responsible for management of the EAR Account. Approves, modifies or disapproves sites nominated for the EAR Account Annual Site List, emergency funding and prompt action requests. Determines appropriate funding levels.

LIAs: Identifies high priority sites in their area and submits a list of nominated sites to the appropriate RWQCB for consideration of EAR Account funding for the EAR Account Annual Site List. May directly request corrective action funding for emergency or prompt action sites from EAR Account Contract Manager for eligible petroleum UST sites. May be responsible for project management of approved EAR sites.

Office of Chief Counsel (OCC): Assists Chief of Division of Clean Water Programs and Cleanup Fund in management of the EAR Account and provides guidance on legal issues.

RWQCBs: Upon request (annually) by the EAR Account Contract Manager, requests LIAs to nominate sites for consideration of EAR Account funding. Prioritizes and submits the list of nominated sites to the Cleanup Fund Section Chief for consideration of EAR Account funding for the EAR Account Annual Site List. May request corrective action funding for emergency or prompt action sites from the EAR Account Contract Manager for eligible petroleum UST sites. May be responsible for project management of approved EAR sites.

FORMS

Approval for Emergency Funding Form (Appendix A) : After verbal approval from DCWP Chief for emergency funding, the EAR Account Contract Manager completes three copies (original signatures) of Appendix A and forwards to DCWP Chief for signature. The EAR Account Contract Manager then forwards all three copies (original signatures) to the Accounting Office. A copy of the completed Appendix A is forwarded to the RWQCB or LIA for confirmation of funding.

Request for Funds Form (Appendix B): Three copies (original signatures) of Appendix B are completed by the RWQCB or LIA Director (or their designee) and submitted to the EAR Account Contract Manager as part of a package for prompt action or abandoned, recalcitrant site funding requests. The EAR Account Contract Manager then forwards all three copies to the Accounting Office.

Request for Payment Form (Appendix C): Three copies (original signatures) of Appendix C are completed by the RWQCB or LIA and submitted with each invoice package to the EAR Account Contract Manager, at the time of payment request. The EAR Account Contract Manager will forward approved invoice packages to the Accounting Office for payment.

PRIMARY USE OF THE EAR ACCOUNT

The EAR Account is to be used primarily to:

1)Provide funding to RWQCBs or LIAs to initiate emergency response for corrective action at petroleum UST sites where immediate action is required and any delay would endanger human health, safety and the environment (emergency sites).

2)Provide funding to RWQCBs or LIAs to initiate prompt corrective action at petroleum UST sites where such prompt action is required to protect human health, safety and the environment, and the RP has failed to comply with a corrective action order (prompt action sites). A corrective action order is a written order issued by a RWQCB or LIA, in accordance with the California Health and Safety Code, Chapter 6.75, Division 20, Article 4 § 25299.37, which clearly states the required corrective action directives, time schedule for completion of specific directives, and enforcement actions and liabilities which may be imposed if the RP fails to comply with the corrective action order.

Prompt action requests shall be limited to those sites where the required corrective action can not wait until the next EAR Account Annual Site List is developed. (Refer to Schedule for Processing EAR Account Annual Site List Section of this Administrative Procedures Manual (APM) for more information.)

3)Provide funding to RWQCBs or LIAs to initiate corrective action at petroleum UST sites where no RP has been identified or located (abandoned sites).

4)Provide funding to RWQCBs and LIAs to initiate corrective action at petroleum UST sites where the RP is either unable or unwilling to take the required corrective action in response to a RWQCB or LIA corrective action order issued (recalcitrant sites).

5)Pay for LIA oversight costs directly associated with the required corrective action.

6)Pay appropriate costs associated with administration of the EAR Account and recovery of costs from the RP.

7)The following may utilize the EAR Account:

A)SWRCB,

B)RWQCBs,

C)LIAs (responsible for oversight of corrective action at UST release sites).

MANAGEMENT OF THE EAR ACCOUNT

The management of the EAR Account is the responsibility of the Division of Clean Water Programs (DCWP), Cleanup Fund Unit. The Cleanup Fund Section Chief oversees the work conducted by the EAR Account Contract Manager. The EAR Account Contract Manager performs the following functions:

1)Receives and processes all requests for emergency corrective action funds, after verbal approval from DCWP Chief;

2)Receives all requests for prompt action funding;

3)Presents prompt action requests to the SWRCB for their review and approval;

4)Surveys the RWQCBs and LIAs to obtain an annual list of abandoned and recalcitrant sites;

5)Establishes an annual statewide priority list based on RWQCB recommendations and availability of funds;

6)Requests a copy of the Resolution used by the RWQCBs to adopt their annual prioritized list of sites;

7)Establishes funding amounts to be allocated to approved abandoned and recalcitrant sites and presents the annual statewide priority list at the SWRCB Workshop and Board Meeting, with recommendations;

8)Develops contracts between the SWRCB and a LIA who has been granted funding to take required corrective action at prompt action, abandoned or recalcitrant sites;

9)Provides technical and contractual assistance to RWQCBs and LIAs upon request;

10)Reviews the SWRCBs procedures for use of the EAR Account and updates those procedures as necessary;

11)Reviews progress reports and final reports for funded UST sites;

12)Reviews costs and activities at funded UST sites to determine if reasonable and necessary;

Any disputes related to costs or activities will be negotiated between the Cleanup Fund Section Chief, and the appropriate RWQCB or LIA and any other person required to resolve the conflict. If an agreement can not be reached, the DCWP Chief and RWQCB Executive Officer, RWQCB will attempt to resolve the dispute. The DCWP Chief will make the final decision.

13)Conducts site inspections, if necessary; and

14)Pursues cost recovery from RP.

EAR ACCOUNT MANAGEMENT REPORT

DAS, Accounting Office distributes a monthly cash management report which provides cash status, by quarter, for the fiscal year, and includes EAR Account expenditures. In addition, the DCWP receives a monthly listing of expenditures from the State Controller, which can be used to monitor the status of EAR Account payments.

ALLOCATION OF FUNDS

The EAR Account is funded by an annual Budget Act appropriation from the Petroleum UST Cleanup Fund. The EAR Account receives a five million dollar ($5,000,000.00) annual appropriation. The SWRCB distributes EAR Account funds as follows:

1)Up to $100,000.00 per occurrence will be available to RWQCBs and LIAs for immediate emergency response and will be allocated on a case-by-case basis. If additional funding is required, a request can be made for either prompt action funds and/or the site can be listed on the EAR Account Annual Site List;

2)Up to $200,000.00 per occurrence will be available to RWQCBs and LIAswhen prompt action and initial site hazard mitigation is required to protect human health, safety and the environment. Funds will be allocated on a case-by-case basis, provided there are sufficient funds in the EAR Account. Allocations for prompt action cases will not be limited by any previous allocations for immediate emergency response, and may receive additional funding, not to exceed $1,000,000.00 per occurrence, and the site can be listed on the EAR Account Annual Site List;

3)Provided there are sufficient funds in the EAR Account, RWQCBs and LIAs will be surveyed annually to obtain a list of eligible abandoned and recalcitrant UST sites where corrective action funds are necessary. Up to $1,000,000.00 per occurrence may be allocated for payment of corrective action and LIA staff costs, less any amounts previously allocated for emergency or prompt action costs;

4)The SWRCB will attempt to retain an annual minimum reserve of $500,000.00 in the EAR Account for emergency and prompt action cases.

EMERGENCY REQUESTS FOR IMMEDIATE FUNDING

RWQCB Executive Officers and LIA Directors (or their designee), may verbally request emergency funds for amounts up to $100,000.00 to be used for emergency response, if immediate action is required. Approval of these requests will be limited to those sudden cases where a crisis situation, caused by an unauthorized release of petroleum from a petroleum UST, poses an immediate threat to human health, safety and the environment. The following are a two examples of emergency situations:

1)A petroleum UST or its associated piping has ruptured and free product is flowing directly into surface water or a source of drinking water, or

2)Free product is flowing beneath a building which poses an immediate threat of fire or explosion.

In these cases, emergency funding can be requested to take immediate action to stop the flow of petroleum and to abate the immediate threat to human health, safety and the environment. Any occurrence caused by gross negligence or the intentional or reckless acts of the UST owner or operator or any spills or overfills (i.e., from tank trucks during the filling of a petroleum UST or spills occurring during automobile fueling) would not be eligible for emergency funding from the EAR Account.

Requests for emergency funding shall be directed to the DCWP Chief. In the absence of that individual, other designated staff should be called in the order listed:

1)DCWP Chief

2)Chief, DAS

3)Executive Director, SWRCB

4)Chief Counsel, OCC

Any of these four individuals may review and approve the request. (Refer to Appendix D of this APM for a list of names and telephone numbers.)

After verbal approval from DCWP Chief for emergency funding, the EAR Account Contract Manager completes three copies (original signatures) of Appendix A and forwards to DCWP Chief for signature. The Contract Manager then forwards all three copies (original signatures) to the Accounting Office. A copy of the completed Appendix A is forwarded to the RWQCB or LIA for confirmation of funding. Emergency response may be initiated immediately following receipt of faxed confirmation.

Following receipt of the completed Appendix A, the RWQCB or LIA shall submit the information specified in the Site Specific Information Section of this APM. This information must be submitted to the EAR Account Contract Manager within one week of receipt of the written approval. In addition, a written confirmation of any oral agreement for emergency funding, must be submitted to the EAR Account Contract Manager before any payments can be made. When submitting invoices for payment to the EAR Account Contract Manager three copies (original signatures) of Appendix C must be completed by the RWQCB or LIA and submitted with each invoice package. The EAR Account Contract Manager will forward approved invoice packages to Accounting for payment.

REQUESTS FOR PROMPT ACTION FUNDING

RWQCB Executive Officers, and LIA Directors (or their designee), may request up to $200,000.00 if prompt action is required to protect human health, safety and the environment and the RP, if any, is either unable or unwilling to comply with a written corrective action order requiring such prompt action and where the required corrective action can not wait until the next EAR Account Annual Site List is developed. Approval of these requests will be limited to those cases where a situation poses a threat to human health, safety and the environment and prompt action is required. To be considered for prompt action funding, the following information must be submitted to the EAR Account Contract Manager:

1)Three completed copies of EAR Account Request for Funds Form (Appendix B) with original signatures,

2)Information specified in the Site Specific Information Section of this APM,

3)RWQCB or LIA Resolution authorizing funding (see Funding Criteria Section of this APM), and

4)A copy of the final corrective action order issued to the RP.

If the EAR Account Contract Manager determines that the request is eligible for consideration, it will be presented to the SWRCB Workshop and Board Meeting within 60 calendar days of receipt of the request with a recommendation. All prompt action requests must be approved by the State Water Resources Control Board.

REQUESTS FOR ANNUAL ABANDONED AND RECALCITRANT SITE FUNDING

The EAR Account Contract Manager requests all RWQCBs and LIAs to nominate sites for consideration of EAR Account funding. The LIAs submit their lists to the RWQCBs . The RWQCBs will establish priorities within their regions and submit a prioritized list of proposed sites recommended for the EAR Account Annual Site List to the Cleanup Fund Section Chief. The EAR Account Contract Manager will establish a statewide priority list of proposed UST leak sites and establish annual amounts to be allocated to approved sites contained on the prioritized list. The Cleanup Fund Section Chief will establish statewide priorities if funding requests exceed the available resources. The relative priority for each proposed site will be established to direct limited resources to the highest priority water quality needs. The EAR Account Contract Manager will then present this list to the SWRCB Workshop and Board Meeting with recommendations.

SCHEDULE FOR PROCESSING EAR ACCOUNT ANNUAL SITE LIST

January 1st - The EAR Account Contract Manager sends a request to all RWQCBs and LIAs which contains information needed for the RWQCBs to recommend and prioritize LIA and RWQCB abandoned and recalcitrant sites within their region for EAR Account funding. LIAs should contact the appropriate RWQCB if they have any high priority abandoned or recalcitrant UST sites which they want considered for inclusion on the EAR Account Annual Site List by March 1st. The prioritized RWQCB list must be submitted along with information specified in the Site Specific Information of this APM, RWQCB Resolution (see Funding Criteria Section of this APM) authorizing funding, and a copy of the final corrective action order issued to the RP, to the Cleanup Fund Section Chief by May 1st to be considered on the EAR Account Annual Site List.