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.

V.  APSA Fees

1. Are federal facilities required to pay the APSA fee set forth in section 25270.6 of the Health and Safety Code?

Yes. Under California state law, the definition of a “business” includes the federal government, “to the extent authorized by law” (Health and Safety Code, section 25501.4). Therefore, federal facilities are regulated under APSA. Additionally, federal facilities are required to pay the APSA fee. Under section 313 of the Clean Water Act, federal agencies are subject to state requirements related to the control of water pollution including any requirement to pay reasonable fees. Section 313 of the Clean Water Act (33 U.S.C.A. 1323) provides that “(a) each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property of facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, … shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges.” The UPAs are required to establish a fee for APSA that is “sufficient to pay the necessary and reasonable costs incurred by the” UPA to implement APSA. The fees are permissible service charges rather than non-permissible taxes. Also, the fees are clearly non-discriminatory. Therefore, based on the three-prong Massachusettstest, the fees are unquestionably permissible service charges rather than non-permissible taxes.

2. Are tank facilities with an aggregate total of petroleum equal to or greater than 1,320 gallons but less than 10,000 gallon still subject to an UPA’s APSA fees?

Yes, these facilities are still subject to the requirements of APSA and therefore subject to the fees established by an UPA’s governing body. The UPA, in implementing and enforcing the requirements of APSA on these facilities, will most likely incur some level of costs that are to be recovered through the single fee system.

3. Do UPAs base fees on the categories as shown on the State AST List? How about spending fees in these categories?

Not necessarily. The UPAs need to look at all necessary and reasonable costs they will incur as they administer, implement, and enforce the requirements of the Act. This will include direct and indirect costs, level of services to be provided, etc.

4. We currently charge a fee for ASTs that meet the 1,320-gallon aggregate total. That fee was part of our approved single fee program approved by Cal/EPA. Do we have to stop charging that fee effective January 1, 2008?

Yes. Fees can be charged starting on January 1, 2010.

5. Is there a surcharge on this program for oversight?

Not at this time.