CALIFORNIA ABOVEGROUND PETROLEUM STORAGE ACT (APSA)

PROGRAM IMPLEMENTATION & COMPLIANCE

DISCLAIMER

This Frequently Asked Questions (FAQ) document provides guidance to UPA staff and inspectors, as well as to owners and operators of facilities that may be subject to the requirements of the Aboveground Petroleum Storage Act (APSA). The statutory provisions described in this document contain legally binding requirements. This document does not substitute for those provisions or regulations, nor is it a regulation itself. In the event of a conflict between the discussion in this document and any statute or regulation, this document would not be controlling. Thus, it does not impose legally binding requirements on the State, UPAs or the regulated community, and might not apply to a particular situation based upon certain circumstances. The word “should” as used in this document is intended solely to recommend or suggest, in contrast to “must” or “shall” which are used when restating regulatory requirements. While this guidance document indicates the State’s strongly preferred approach to assure effective implementation of legal requirements, the State retains the discretion to adopt approaches on a case-by-case basis that differ from this guidance where appropriate. Any decisions regarding a particular facility will be made based on the statute. This is a living document and may be revised periodically without public notice. This document will be revised, as necessary, to reflect any relevant future statutory amendments.

This document does not intend to give guidance on the U.S. EPA Spill Prevention Control and Countermeasure (SPCC) requirements. Any questions or clarifications on the SPCC program should be directed to the U. S. EPA. website.

II.  Applicability

1. Who is subject to the requirements of APSA?

A tank facility is subject to APSA if:

• the “tank facility” is subject to the oil pollution prevention regulations specified in part 112 (commencing with section 112.1) of subchapter D of chapter I of title 40 of the Code of Federal Regulations; or
• the tank facility has a storage capacity of 1,320 gallons or more of petroleum.

Important Note: The California APSA only regulates tank facilities that store petroleum and not other oils, as does the federal SPCC Rule (subject to 40CFR112). The Act’s definition of petroleum and tank facility must first be applied before considering the first applicability criteria above.

2. What is a tank facility?

For the purposes of APSA, a “tank facility” is defined as any one, or combination of, 55-gallon or greater aboveground storage containers or tanks, including any piping that is integral to the tank, that contains petroleum and that is used by a single business entity at a single location or site.
Aboveground storage containers or tanks include oil-filled equipment (such as hydraulic systems/reservoirs and heat transfer systems) which have a petroleum storage capacity of 55 gallons or greater.

3. What is petroleum?

The Act defines “petroleum” to mean crude oil, or a fraction thereof, that is liquid at 60 degrees Fahrenheit temperature and 14.7 pounds per square inch absolute pressure (normal atmospheric pressure at sea level). Some examples of petroleum products that would be subject to APSA if stored in aboveground storage tanks are as follows:

• Petroleum-based liquid fuels, including:

• Aviation fuels (including jet, turbine, and piston fuels)
• Automotive and other petroleum-based internal combustion engine fuels
• Fuel oils and distillate fuels (turbine, boiler, and other types)
• Heating oil and distillates
• Illuminating (e.g., lamp) oils

• Gasoline and other fuel blending stocks
• Petroleum-based lubricating, tapping, seal, penetrating, machining, and road oils and greases (including waste oils)
• Petroleum distillates
• Petroleum- or petroleum-distillate based additives (including fuel, oil, ink and paint additives)
• Petroleum solvents
• Petroleum spirits (e.g., mineral spirits, Stoddard solvent, paint thinners, etc.)
• Hydrocarbon liquids
  Naphthas and naphthalenes of all types
• Olefins, alkanes, alkylates, aromatics
• Petroleum-based inks and ink extenders
• Oil-based paints, coatings, thinners and solvents
• Petroleum extender oils
• Mineral oils (derived from petroleum)
• Crude oil

4. Is biodiesel regulated under APSA?

Yes. However, 100 percent biodiesel is not considered petroleum and, therefore, is not regulated under APSA.

5. Is propane, liquefied petroleum gas, or liquefied natural gas regulated under APSA?

No. Propane or natural gas, including LNG and LPG, is not a liquid at 60 degrees Fahrenheit temperature and 14.7 pounds per square inch absolute pressure (normal atmospheric pressure at sea level) and is therefore not regulated under APSA.

6. What tank facilities are conditionally exempt from the APSA requirement to prepare and implement an SPCC Plan?

A tank facility located on a farm, nursery, logging site, or construction site, while still regulated under APSA, is conditionally exempt from the APSA requirement to prepare and implement an SPCC Plan if:

• no storage tank at the location exceeds 20,000 gallons; and,
• the cumulative storage capacity of the tank facility does not exceed 100,000 gallons.

The owner or operator of an exempted tank facility located on a farm, nursery, logging site, or construction site, is required to take the following actions:

• Conduct a daily visual inspection of any aboveground tank storing petroleum.
• Allow the UPA to conduct a periodic inspection of the tank facility.
• If the UPA determines installation of secondary containment is necessary for the protection of the waters of the state, install a secondary means of containment for each tank or group of tanks where the secondary containment will, at a minimum, contain the entire contents of the largest tank protected by the secondary containment plus precipitation.

These APSA-regulated tank facilities, while conditionally exempt from the APSA requirement to prepare and implement an SPCC Plan, are still subject to APSA program fees, Tank Facility Statement/Business Plan submission, and UPA inspection.

If the farm, nursery, logging or construction site does not meet the conditions of the exemption (and has a facility aggregate petroleum storage capacity of 1,320 gallons or greater in tanks or containers 55 gallons or greater capacity), an SPCC Plan must be prepared and implemented.

Please note that while farms, nurseries, logging sites, or construction sites are conditionally exempt from the requirement to prepare an SPCC Plan under APSA, these facilities are not exempt from federal SPCC requirements enforced by US EPA.

7. Does the federal SPCC exemption for wastewater treatment systems/facilities apply to tank facilities regulated under APSA?

No. APSA provides no exemptions for wastewater treatment systems or facilities similar to the exemption contained in the federal SPCC regulations. Aboveground wastewater treatment systems (such as oil/water separators and other oil filled equipment) with a petroleum storage capacity of 55 gallons or greater are APSA regulated aboveground storage tanks.

For your information, the federal SPCC rule contains two types of exemptions for wastewater treatment:

• According to U.S. EPA, wastewater treatment facilities are facilities that treat wastewater and discharge the treated effluent under an NPDES or similar state permit (such as an RWQCB Waste Discharge Requirements (WDR) permit). An example would be a County Sanitation District treatment plant. Although this exemption is broad and appears to be facility wide, EPA has stated that it does not apply to the recovery or recycling of oil, or the portions of the facility used to store oil, such as fuel tanks, generator tanks, waste oil tanks, etc., used for facility operations or maintenance. Under the federal exemption, only the actual wastewater treatment system itself would be excluded from EPA SPCC capture, including oil/water separators or retention basins used for oil separation prior to wastewater discharge.
• The federal SPCC regulations also state that the capacity of tanks used exclusively for wastewater treatment does not count toward oil storage capacity determination

8. What tanks are excluded from the definition of “aboveground storage tank?”

There are several tanks and structures excluded from the definition of "aboveground storage tank." These include:

• An aboveground oil production tank subject to section 3106 of the California Public Resources Code. The oil production tank issue is further discussed in FAQ Section II #12;
• Oil-filled electrical equipment, including, but not limited to, transformers, circuit breakers, or capacitors, if the oil-filled electrical equipment meets either of the following conditions:
  • The equipment contains less than 10,000 gallons of dielectric fluid.
  • The equipment contains 10,000 gallons or more of dielectric fluid with PCB levels less than 50 parts per million, appropriate containment or diversionary structures or equipment are employed to prevent discharged oil from reaching a navigable water course, and the electrical equipment is visually inspected in accordance with the usual routine maintenance procedures of the owner or operator.
• A tank regulated as an underground storage tank under chapter 6.7 of the HSC and chapter 16 of division 3 of title 23 of the California Code of Regulations (CCR);
• Any transportation-related tank facility, subject to the authority and control of the U.S. Department of Transportation as defined in the 1971 Memorandum of Understanding in appendix A to part 112 of subchapter D of chapter I of title 40 of the Code of Federal Regulations. Transportation related facilities are further discussed in FAQ Section II #25.

9. Does any percentage of petroleum oil content in a mixture (no matter how small) bring the mixture into APSA regulation as 'petroleum?'

Yes, all mixtures that contain any amount of petroleum are considered to be petroleum and therefore must be included when determining the tank facility’s total storage capacity.

10. Are hazardous waste tanks regulated under APSA?

It depends on whether the aboveground tank or container containing waste petroleum is specifically listed or included on the permit or authorization. As previously stated in FAQ Section II #8, APSA excludes tanks containing hazardous waste as defined in H&SC 25316(g), if DTSC has issued the owner/operator a hazardous waste facilities permit. Waste tanks are excluded from APSA only if they are specifically included in the DTSC/UPA grant of authorization (hazardous waste facility permit or the “Permit by Rule” tier of the Tiered Permit program). Other aboveground tanks containing petroleum at DTSC permitted facilities or lower tiered facilities (Conditional Authorization or Conditional Exempt), such as fuel tanks or tanks not listed on the permit/authorization, are regulated under APSA.

11. Are businesses with aboveground storage tanks containing vegetable and/or animal oil, which are regulated under the federal SPCC plan rule, also included under the APSA program?

No. The California APSA program only regulates petroleum and only applies to tank facilities that have ASTs that contain petroleum products. For empty containers/tanks refer to FAQ Section III #11. Facilities should be aware, however, that EPA’s SPCC rule regulates facilities with ASTs that contain other non-petroleum based oils, and that although the non-petroleum oils are not captured under APSA, they may be subject to federal regulation and US EPA oversight. For tank facilities with both petroleum and non-petroleum oils subject to both APSA and the federal SPCC rule, a single integrated SPCC Plan can be prepared; a separate SPCC Plan is not required for ASPA.

12. Are aboveground petroleum storage tanks located at oil production facilities exempt from APSA?

Not all tanks at oil production facilities are excluded. APSA specifically excludes an aboveground oil production tank subject to section 3106 of the California Public Resources Code. Therefore, only those tanks or that portion of a tank facility directly associated with the production of oil are exempt if those tanks are under the supervision of the California Division of Oil, Gas and Geothermal Resources (DOGGR) within the Department of Conservation. These include the tanks holding or transferring the crude oil or crude products or used in the treatment or separation of the crude oil; such tanks are not subject to the APSA requirements.
However, aboveground tanks used for refined petroleum product storage and supporting use at an oil production facility (such as fuel tanks, generator tanks, solvent tanks and containers) are defined as aboveground storage tanks under APSA and are not exempt.

13. Does the phrase “construction site” as used in section 25270.4.5 (b) of the Health and Safety code include quarries and construction “yards?”

No, quarries and construction “yards” are not considered to be included in the meaning of a “construction site.” Although not specifically defined in APSA, with the aid of reference to the Code of Federal Regulations, the phrase “construction site” should be construed as “any site involving the erection of buildings, roads, and other discrete structures and the installation of support facilities necessary for construction and utilization of such structures.” A yard is a place where construction equipment is stored and maintained and is subject to the requirements of APSA.

14. Construction activities are being performed on a portion of a manufacturing, commercial or maintenance facility with aboveground tanks. Is the entire facility considered a “construction site?”

No, only the portion of the facility actually undergoing construction would be considered a “construction site.”

15. Are federal facilities regulated under APSA?

Yes. Per APSA, all (petroleum) tank facilities subject to 40 CFR part 112 are subject to the requirements of APSA. 40 CFR part 112.1 (c) states “as provided in section 313 of the Clean Water Act (CWA), departments, agencies, and instrumentalities of the Federal government are subject to this part to the same extent as any person.”

16. Could circumstances exist that would cause a UST to be regulated under APSA?

We believe that it is the intent of the legislature that petroleum tanks be regulated as either a UST or an AST. If the tank is permitted or otherwise regulated as a UST, it is considered a UST and is not covered under APSA. If the tank is not permitted or regulated as a UST, then it is covered under APSA.
US EPA excludes from the federal SPCC rule only ‘completely buried’ underground storage tanks (that are compliant with all federal and state UST regulations).  If not completely buried, the tank is regulated under the federal SPCC regulations.

17. Should farms follow California law?

Under APSA, farms are conditionally excluded from the APSA requirement for tank facilities to prepare an SPCC Plan. However, APSA-excluded farms are not exempt or excluded from regulation under federal SPCC rules. In both the December 2006 and December 2008 amendments to the Federal SPCC rule, EPA has provided specific instructions to farms in complying with the SPCC Plan requirements, which are:

Specific information on the federal SPCC rule, including fact sheets for farms, can be found at: http://www.epa.gov/emergencies/content/spcc/index.htm

18. Does the term “farm,” as used in Health and Safety Code section 25270.4.5 (b) include dairies?

Yes. Although not specifically defined in APSA, the term “farm” may be construed, with the aid of reference to the Food and Agricultural Code, as including dairies. According to the California Seed Law, section 52262 of the Food and Agricultural Code defines a “farm” as a place of agricultural production that has annual sales of agricultural products of one thousand dollars ($1,000) or more. The Food and Agricultural Code does not contain a specific definition of the terms “agricultural production” or “agricultural products” that are used in the definition of the word “farm.” Section 54004 of the Food and Agricultural Code, however, has a section dealing with the marketing of agricultural products, and the definition of “product” includes any horticultural, viticulture, forestry, dairy, livestock, poultry, bee, or farm product. Therefore, a dairy would be included in the definition of farm and would be regulated as a farm under APSA.

19. If a tank facility has multiple ASTs that are owned and operated by different persons, and if the total capacity of the tank(s) for each business is less than 1,320 gallons, but the total for all tanks at this single location exceeds 1,320 gallons, is each business subject to APSA?

No. HSC section 25270.3 states that a “tank facility” that has a storage capacity of 1,320 gallons or more of petroleum is subject to regulation under APSA. However, section 25270.2 of the HSC defines “tank facility” as a single business entity at a single location or site. Therefore, the storage capacity would not be the cumulative amount of petroleum on site, but rather the cumulative amount of petroleum that is owned or operated by the same business entity.
Accordingly, a site with multiple ASTs that are owned and operated by different persons may be considered to be several different individual ‘tank facilities.’ Please see the examples provided after question #II-20.

20. If a single location houses multiple ASTs that are owned by different businesses but operated by the same business, and if the total capacity of the tank(s) owned by each business is less than 1,320 gallons, but the aggregate total for all tanks operated by the same operator at this single location exceeds 1,320 gallons, is each business subject to APSA?

No. Because each individual business owner does not exceed the 1,320 gallon threshold, no single business owner meets the threshold and therefore is not subject to APSA. However, the business that operates the site would be subject to APSA since the total storage capacity of the tanks operated by that business exceeds the 1,320 gallon threshold. Please see the following examples.

Example 1 / Example 2 / Example 3 / Example 4

21. The revised definition of “facility” in the December 2008 EPA amendments to the federal SPCC rule is far more flexible than the definition of “tank facility” under APSA. Can I follow the federal definition in determining whether I am regulated as a tank facility under APSA?

No. HSC section 25270.2(m) defines “tank facility” as any one or more aboveground storage tanks that contains petroleum and that are used by a single business entity at a single location or site, and HSC section 25270.4.5 requires that (unless otherwise exempted or excluded) each owner or operator of a storage tank at a tank facility subject to APSA prepare an SPCC Plan. Tank owners and/or operators must follow California law for determining whether they are regulated under APSA. The federal definition of facility should only be used for determining whether a “facility” is federally regulated under federal SPCC rules by US EPA.

22. When a tank subject to the APSA requirements is owned and operated by two different entities, who do we charge for enforcement purposes, for example when they have not submitted a storage statement or completed an SPCC plan? Do we take enforcement against both the owner and the operator?

Enforcement may be taken on either the owner, or the operator, or both the owner and operator.

23. Is the term “logging site” defined?

No. The term “logging site” is not defined in APSA. Since the statute uses the term “logging site,” the Legislature apparently intended to limit the term to the actual location where timber is harvested.

24. Would “sawmills” and logging truck operations (yards and shops) fit the meaning of logging site?

No, since the term “logging site” refers to the actual location where the timber is harvested, sawmills and logging truck operations (yards and shops) would not be considered a logging site.

25. What types of ASTs are included under the transportation-related tank facilities exclusion as referenced in HSC section 25270.2(a)(6)?

The term ‘transportation-related tank facilities’ is somewhat of a misnomer. The term and exclusion applies to not only certain types of facilities as a whole, but also to specific types of tanks/containers – depending upon how those tanks/containers are used.
The following types of facilities as a whole can be considered “transportation-related” and therefore excluded from APSA and SPCC regulation:

• Breakout facilities for US DOT-regulated interstate pipelines (with no transfer into cargo tankers [trucks] or rail cars);

• If transfer into cargo tankers or railcars occurs, the transfer and loading racks and directly associated product tanks would be regulated and are not considered “transportation-related”.

• The tanks, internal piping, and loading racks, and operations that are completely within the non-transportation part of the terminal facility are regulated under APSA and SPCC.

Except as noted above, for other facilities the “transportation-related” exemption is applicable to individual tanks, containers and other equipment (i.e., cargo vehicles and mobile tankers, etc.) operating at the facility - not the facility as a whole.
Transportation-related (and therefore excluded from counting or capture under APSA or in an SPCC Plan) would include:

• Fuel or oil trucks/cargo tankers (such as from fueling or product vendors/ contractors) who drive into the facility and fill up one or more fixed fuel or oil tanks, or fill the fuel tanks of vehicles on the facility and then drive out when done;
• Highway vehicles (including cargo tankers) engaged primarily in highway or over-the-public road transportation activities;
• Waste oil or other hazardous waste haulers driving into the facility to pick up, load or pump on board wastes, and then drive out when done;
• The fuel tanks (i.e., saddle tanks) used for motive power on vehicles or equipment;
• Aircraft at an airport;
• Railroad cars from the time the oil is offered for transportation to a carrier until the time it reaches its destination and is accepted by the consignee; and
• Railroad cars located on a siding, but not at their final destination location

Non-transportation (and therefore regulated under APSA and for SPCC purposes) include:

• Fuel trucks/oil cargo tankers and portable tanks which are generally used for in-facility operation (such as a facility-owned/operated fueler or oiler which mainly drives around and is used inside the facility, and usually is parked at the facility overnight), and not primarily used for over-the-road use (regardless of whether the vehicles are licensed to do so);
• Airport mobile fuelers which are staged at the airport on the ramp area;
• The fixed petroleum-containing aboveground tanks at the facility - even if the general facility ‘use’ is associated with transportation (such as a bus yard or terminal, bulk cargo loading terminal, airport, mobile equipment storage or maintenance yard, vehicle or other transportation equipment maintenance or storage yard, etc.);
• The loading/unloading area at the fixed fuel/oil tanks where the transportation-exempt cargo trucks unload into the fixed tanks or airport fuelers;
• Railroad cars located at their destination facility after the cargo has been accepted by the consignee or those staged at the shipping facility prior to being offered in transportation to a carrier.

26. Are tank facilities regulated under APSA exempt from federal (EPA) regulation under federal SPCC rules?

No. There is no federal delegation of the federal SPCC program, and APSA has no impact on federal regulation or enforcement of SPCC requirements at California facilities.