Article 3.9. Regional Railroad Accident Preparedness And Immediate Response of California Government Code >> Division 1. >> Title 2. >> Chapter 7. >> Article 3.9.
For purposes of this article, the following terms have the
following meanings:
(a) "Board" means the State Board of Equalization.
(b) "Director" means the Director of Emergency Services.
(c) "Fund" means the Regional Railroad Accident Preparedness and
Immediate Response Fund established pursuant to Section 8574.44.
(d) "Hazardous material" means a material that the United States
Department of Transportation has designated as a hazardous material
for purposes of transportation in Part 172 of Title 49 of the Code of
Federal Regulations.
(e) "Office" means the Office of Emergency Services.
(f) "Owner" means the person who has the ultimate control over,
and the right to use or sell, the hazardous material being shipped.
There is a rebuttable presumption that the shipper, consignor, or
consignee of the hazardous material is the owner of the hazardous
material. This presumption may be overcome by showing that ownership
of the hazardous material rests with someone other than the shipper,
consignor, or consignee. Evidence to rebut the presumption may
include, but is not limited to, documentation, including a bill of
lading, shipping document, bill of sale, or other medium, that shows
the ownership of the hazardous material rests in a person other than
the shipper, consignor, or consignee.
(g) "Person" means an individual, trust, firm, joint stock
company, other entity, or corporation, including, but not limited to,
a government corporation, partnership, limited liability company, or
association. "Person" also includes any city, county, city and
county, district, commission, the state or any department, agency, or
political subdivision thereof, and the United States and agencies
and instrumentalities, to the extent permitted by law.
(h) "Railroad" has the same meaning as defined in Section 229 of
the Public Utilities Code.
(i) "Rail car" means a loaded or unloaded railroad car or rolling
stock designated to transport hazardous material commodities, and
includes, but is not limited to, those railroad cars subject to the
requirements of Part 179 (commencing with Section 179.1) of Title 49
of the Code of Federal Regulations, or successor regulations adopted
by the United States Department of Transportation.
(a) (1) The director shall establish a schedule of fees,
to be paid by each person owning any of the 25 most hazardous
material commodities, as identified in regulations adopted by the
office, that are transported by rail in California, that shall be
sufficient to fund the appropriation from the fund pursuant to
Section 8574.44, to reimburse the California High-Cost Fund-B
Administrative Committee Fund for any moneys loaned, and to maintain
a reserve for operating costs. The fee shall be based on each loaded
rail car as described in subdivision (b).
(2) Prior to the adoption of regulations identifying the 25 most
hazardous material commodities, the fee shall apply to the top 25
hazardous material commodities identified by the Association of
American Railroads Bureau of Explosives' Annual Report of
Non-Accident Releases of Hazardous Materials Transported by Rail,
published in August, 2013.
(b) (1) Within six months of the director establishing a schedule
of fees pursuant to subdivision (a), the fee shall be imposed on a
person owning hazardous material at the time that hazardous material
is transported by loaded rail car. The fee shall be based on each
loaded rail car.
(A) If the loaded rail car enters the state from outside this
state, the fee shall be imposed on the owner of the hazardous
material at the time the loaded rail car enters this state. The
person operating the train containing the rail car shall collect the
fee from the owner of the hazardous material and shall pay the fee to
the board. The fee shall be collected consistent with the
requirements of the commerce clause of the United States
Constitution.
(B) If the rail car is loaded within this state, the fee shall be
imposed upon the loading of hazardous material into or onto the rail
car for transport in or through this state. The person operating the
train containing the rail car shall collect the fee from the owner of
the hazardous material at the time the rail car is loaded and shall
pay the fee to the board. The fee shall be collected consistent with
the requirements of the commerce clause of the United States
Constitution.
(2) The fee shall be paid to the board by the person operating the
train containing the rail car at the time the return is required to
be filed, as specified in Section 8574.38, based on the number of
loaded hazardous material rail cars transported within the state.
(3) Any fee collected from an owner of hazardous materials
pursuant to this section that has not been remitted to the board
shall be deemed a debt owed to the state by the person required to
collect and remit the fee.
(4) (A) The owner of the hazardous material is liable for the fee
until it has been paid to the board, except that payment to a person
operating the train containing the rail car registered under this
article is sufficient to relieve the owner from further liability for
the fee.
(B) The railroad shall be entitled to collect an amount not to
exceed 5 percent of the fee collected pursuant to this section to
offset the administrative cost to collect the fee.
(5) Any owner or railroad that has paid the fee pursuant to this
section shall not be assessed any additional fee under this section
for further transporting the same hazardous materials in the same
rail cars on a different railroad within the state.
(c) The fee shall be fair, as required by subsection (f) of
Section 5125 of Title 49 of the United States Code and subsection (c)
of Section 107.202 of Title 49 of the Code of Federal Regulations.
It is the intent of the Legislature that: (1) the fee shall reflect
the cost of preparations to respond to the release of hazardous
materials from a rail car or a railroad accident involving a rail
car, (2) these preparations shall help contain the damage to railroad
systems and operations within the state caused by the release of
hazardous materials and better enable owners of hazardous materials
to expeditiously transport their materials using the railroad after
the release of hazardous materials, and (3) these preparations shall
mitigate the exposure of the owners of hazardous materials to
compensable damages caused by the release of hazardous materials. The
director may exempt from the fee those shipments of hazardous
materials that do not merit inclusion in the state regional railroad
accident preparedness and immediate response plan developed pursuant
to Section 8574.48, and those shipments of hazardous materials that
do not merit additional governmental preparation to respond to their
release in the event of a railroad accident.
(d) The fee shall not result in the collection of moneys that
exceed the reasonable regulatory costs to the state for the purposes
specified in subdivision (e) of Section 8574.44. The director shall
set the fee consistent with Section 3 of Article XIII A of the
California Constitution.
(e) The director shall be responsible for reporting fee
information to the federal Secretary of Transportation pursuant to
paragraph (2) of subsection (f) of Section 5125 of Title 49 of the
United States Code.
(f) The director may authorize payment of a portion, but not the
entire amount, of fees owed through contributions in kind of
equipment, materials, or services.
(g) The director shall create an industry advisory committee to
advise the director on setting the fee and on other policy matters
related to industry-based shipment of hazardous materials and private
sector-based accident response. The committee shall consist of
representatives from the following:
(1) Hazardous materials specialist from the railroad industry.
(2) Operation specialist from the railroad industry.
(3) Fire and safety specialist from refinery industry.
(4) Chemical hazardous materials specialists.
(5) Agricultural chemical industry.
(6) Firefighting Resources of California Organized for Potential
Emergencies (FIRESCOPE).
(7) Local emergency preparedness commissions (LEPCs).
(8) California Fire Chiefs Association.
(9) California Professional Firefighters.
(10) California State Firefighters Association.
(11) California Emergency Services Association.
(12) Fire Districts Association of California.
(13) The public.
(h) (1) The director shall reconsider the amount of the fee, and
adjust the fee if appropriate, not less frequently than every three
years, with due consideration for existing and expected operational
and continued resource requirements.
(2) The director shall conduct an analysis of industry
capabilities and resource requirements to assist in the
reconsideration of the amount of the established fee. The director
may arrange for the analysis to be performed by a third party that is
either a public or private entity. Upon finalization of the
analysis, the analysis shall be delivered as a report to the
Department of Finance, the Legislature, and the Legislative Analyst's
Office.
(3) The submission of the analysis to the Legislature shall be
submitted in compliance with Section 9795 of the Government Code.
Every person who operates a railroad that transports
hazardous materials by rail car shall register with the board
pursuant to Section 55021 of the Revenue and Taxation Code.
The fee imposed pursuant to Section 8574.32 shall be
administered and collected by the board in accordance with the Fee
Collection Procedures Law (Part 30 (commencing with Section 55001) of
Division 2 of the Revenue and Taxation Code). For purposes of this
section, the references in the Fee Collection Procedures Law to "fee"
shall include the fee imposed by this article, and references to
"feepayer" shall include a person required to pay the fee imposed by
this article.
The return required to be filed pursuant to Section 55040
of the Revenue and Taxation Code shall be prepared and filed by the
person required to register with the board, in the form prescribed by
the board, and shall contain that information the board deems
necessary or appropriate for the proper administration of this
article and the Fee Collection Procedures Law. The return shall be
filed on or before the last day of the calendar month following the
calendar quarter to which it relates, together with a remittance
payable to the board for the fee amount due for that period. Returns
shall be authenticated in a form, or pursuant to methods, as may be
prescribed by the board.
Notwithstanding the petition for redetermination and claim
for refund provisions of the Fee Collection Procedures Law (Article
3 (commencing with Section 55081) of Chapter 3 of, and Article 1
(commencing with Section 55221) of Chapter 5 of, Part 30 of Division
2 of the Revenue and Taxation Code), the board shall not:
(a) Accept or consider a petition for redetermination of fees
determined under this article if the petition is founded upon the
grounds that the rail car content is or is not a hazardous material.
The board shall forward to the director any appeal of a determination
that is based on the grounds that the rail car content is or is not
a hazardous material.
(b) Accept or consider a claim for refund of fees paid pursuant to
this chapter if the claim is founded upon the grounds that the rail
car content is or is not a hazardous material. The board shall
forward to the director any claim for refund that is based on the
grounds that the rail car content is or is not a hazardous material.
(a) The board may prescribe, adopt, and enforce
regulations relating to the administration and enforcement of this
article.
(b) The board may prescribe, adopt, and enforce any emergency
regulations, as necessary, to implement this article. Except as
provided in Section 8574.44, any emergency regulation prescribed,
adopted, or enforced pursuant to this article shall be adopted
pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 and, for purposes of that article, including
Section 11349.6, the adoption of the regulation is an emergency and
shall be considered by the Office of Administrative Law as necessary
for the immediate preservation of the public peace, health and
safety, and general welfare.
(a) The Regional Railroad Accident Preparedness and
Immediate Response Fund is hereby created in the State Treasury.
(b) All revenues, interest, penalties, and other amounts collected
pursuant to this article shall be deposited into the fund, less
refunds and reimbursement to the board for expenses incurred in the
administration and collection of the fee.
(c) The adoption of regulations pursuant to this section shall be
considered by the Office of Administrative Law as an emergency and
necessary for the immediate preservation of the public peace, health
and safety, and general welfare. Notwithstanding Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2,
emergency regulations adopted by the director and the board pursuant
to this section shall be filed with, but not repealed by, the Office
of Administrative Law and shall remain in effect until revised or
repealed by the director.
(d) The fund shall be used to reimburse the California High-Cost
Fund-B Administrative Committee Fund for any moneys loaned from the
California High-Cost Fund-B Administrative Committee Fund to the fund
to pay for the Office of Emergency Service's administrative costs
associated with implementation of the fee pursuant to this article.
(e) All moneys remaining in the fund after reimbursement of the
California High-Cost Fund-B Administrative Committee Fund pursuant to
subdivision (d) shall, upon appropriation by the Legislature, be
used by the director to pay for the following purposes related to the
transportation of hazardous materials:
(1) Planning, developing, and maintaining a capability for
large-scale hazardous materials releases emergency response relating
to railroad accidents involving rail cars carrying hazardous
materials, including the risks of explosions and fires.
(2) Planning, developing, and maintaining a capability for
large-scale hazardous materials releases emergency response relating
to releases of hazardous materials from rail cars, including reducing
the harmful effects of exposure of those materials to humans and the
environment.
(3) Creation, support, maintenance, and implementation of the
Regional Railroad Accident Preparedness and Immediate Response Force
created by Section 8574.48.
(4) Acquisition and maintenance of specialized equipment and
supplies used to respond to a hazardous materials release from a rail
car or a railroad accident involving a rail car.
(5) Support of specialized regional training facilities to prepare
for and respond to a hazardous materials release from a rail car or
a railroad accident involving a rail car.
(6) Creation and support of a regional, state level, and local
emergency response team to provide immediate onsite response
capabilities in the event of large-scale releases of hazardous
materials from a rail car or a railroad accident involving a rail
car.
(7) Support for specialized training for state and local emergency
response officials in techniques for prevention of, and response to,
release of hazardous materials from a rail car or a railroad
accident involving a rail car.
(f) For each of the 2015-2016 and 2016-2017 fiscal years, the
amount available for appropriation from the fund shall not exceed
twenty million dollars ($20,000,000). For the 2017-18 fiscal year and
each fiscal year thereafter, the amount available for appropriation
from the fund shall not exceed ten million dollars ($10,000,000).
(g) (1) For the 2016 calendar year, the director shall have the
authority to collect an amount not to exceed twenty million dollars
($20,000,000) for deposit into the fund, which shall be used, upon
appropriation by the Legislature, for repayment of loans provided
from the California High Cost Fund B Administrative Committee and for
purposes related to the transportation of hazardous materials by
rail cars pursuant to subdivision (e).
(2) For the calendar year 2017, the director shall have the
authority to collect an amount not to exceed twenty million dollars
for deposit into the fund, which shall be used, upon appropriation by
the Legislature, for purposes related to the transportation of
hazardous materials by rail cars pursuant to subdivision (e).
(3) (A) Commencing on January 1, 2018, and following an initial
review of the amount of the fee by the industry advisory committee
established pursuant to subdivision (g) of Section 8574.32 and an
initial reconsideration of the amount of the fee by the director
pursuant to paragraph (1) of subdivision (h) of Section 8574.32, the
director shall have the authority to collect an amount not to exceed
ten million dollars ($10,000,000) annually for deposit into the fund.
(B) For calendar years subsequent to the 2018 calendar year, the
director shall reconsider the amount of the fee pursuant to paragraph
(1) of subdivision (h) of Section 8574.32.
(h) The board shall inform the director if the amount of fees
collected reaches the amount specified in subdivision (g) in each
calendar year.
(i) Reimbursement to the state for equipment funded by moneys in
the fund that are used for emergency response activities unrelated to
regional railroad accident preparedness and immediate response as
described in this article shall be made pursuant to the state fire
service and rescue emergency mutual aid plan adopted pursuant to
Section 8619.5 and deposited into the fund.
(a) (1) The director shall contract with the Department of
Finance for the preparation of a detailed report on the financial
basis and programmatic effectiveness of the regional railroad
accident preparedness and immediate response plan and the Regional
Railroad Accident Preparedness and Immediate Response Fund.
(2) The report shall include an analysis of the fund's major
expenditures, fees, interest, and penalties collected, staffing and
equipment levels, moneys used for coordinated training and response
under the emergency mutual aid plan, spills responded to, and other
relevant issues.
(3) The report shall recommend measures to improve the efficiency
and effectiveness of the program and fund, including, but not limited
to, ensuring fair and equitable funding from the fees and measures
to modify or improve the implementation of the regional railroad
accident preparedness and immediate response plan for release of
hazardous materials from a rail car or a railroad accident involving
a rail car.
(b) (1) On or before January 1, 2019, and every three years
thereafter, the director shall submit the report to the Governor and
the Legislature.
(2) The report submitted to the Legislature shall be submitted in
compliance with Section 9795.
(a) The Regional Railroad Accident Preparedness and
Immediate Response Force is hereby created in the Office of Emergency
Services. The force shall be responsible for providing regional and
onsite response and mitigation capabilities in the event of a release
of hazardous materials from a rail car or a railroad accident
involving a rail car and for implementing the state regional railroad
accident preparedness and immediate response plan for releases of
hazardous materials from a rail car or a railroad accident involving
a rail car. The force shall act cooperatively and in concert with
existing local emergency response units pursuant to Article 9.5
(commencing with Section 8607). The force shall be established and
operate as outlined in, and as a component of, the state fire service
and rescue mutual aid plan adopted pursuant to Section 8619.5. The
force shall consist of representatives of all of the following:
(1) Department of Fish and Wildlife.
(2) California Environmental Protection Agency.
(3) State Air Resources Board.
(4) Department of Resources Recycling and Recovery.
(5) California regional water quality control boards.
(6) Department of Toxic Substances Control.
(7) Department of Pesticide Regulation.
(8) Office of Environmental Health Hazard Assessment.
(9) State Department of Public Health.
(10) Department of the California Highway Patrol.
(11) Department of Food and Agriculture.
(12) Department of Forestry and Fire Protection.
(13) Department of Parks and Recreation.
(14) Public Utilities Commission.
(15) State Fire Marshal.
(16) Emergency Medical Services Authority.
(17) California National Guard.
(18) Any other potentially affected or participating state, local,
or federal agency, as determined by the director.
(b) (1) The Office of Emergency Services, in cooperation with all
of the entities listed in paragraphs (1) to (18), inclusive, of
subdivision (a), shall develop a state regional railroad accident
preparedness and immediate response plan that operates in
coordination with the state fire service and rescue emergency mutual
aid plan.
(2) The state regional railroad accident preparedness and
immediate response plan shall be an annex to the State Emergency
Plan.
(c) (1) The Legislature finds and declares that the state has a
comprehensive program through the Office of Spill Prevention and
Response to prevent and prepare for the risk of a significant
discharge of petroleum into state waters, including a discharge
caused by the transportation of petroleum by rail. The Legislature
further finds and declares that the Regional Accident Preparedness
and Immediate Response Force is focused on the emergency response for
railroad accidents and rail car discharges involving all designated
hazardous materials regardless of where the accident or discharge
takes place.
(2) The Regional Accident Preparedness and Immediate Response
Force and Office of Spill Prevention and Response shall coordinate in
their respective authorities and responsibilities pursuant to
Article 9.5 (commencing with Section 8607), to avoid any duplication
of effort, ensure cooperation, and promote the sharing of information
regarding the risk of discharge of petroleum by rail into state
waters.