BILL NUMBER: AB 1318 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JULY 6, 2009
AMENDED IN ASSEMBLY MAY 14, 2009
AMENDED IN ASSEMBLY MAY 4, 2009
INTRODUCED BY Assembly Member V. Manuel Perez
(Principal coauthors: Senators Ducheny and Benoit)
(Coauthor: Assembly Member Nestande)
FEBRUARY 27, 2009
An act to add and repeal Section 40453 of the Health and
Safety Code, relating to air pollution, and declaring the urgency
thereof, to take effect immediately. An act to add and
repeal Sections 40453 and 40453.1 of the Health and Safety Code, and
to amend Section 21080 of the Public Resources Code, relating to the
South Coast Air Quality Management District, and declaring the
urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 1318, as amended, V. Manuel Perez. South Coast Air Quality
Management District: emission reduction credits for
electrical generating facilities. : California
Environmental Quality Act.
(1) Under existing law, every air pollution control district or
air quality management district governing board, except as specified,
is required to establish by regulation a system by which all
reductions in the emission of air contaminants that are to be used to
offset certain future increases in the emission of air contaminants
are required to be banked prior to use to offset future increases in
emissions, as provided.
The California Environmental Quality Act (CEQA) requires a lead
agency, as defined, to prepare, or cause to be prepared, and certify
the completion of, an environmental impact report (EIR) on a project
that it proposes to carry out or approve that may have a significant
effect on the environment or to adopt a negative declaration if it
finds that the project will not have that effect. CEQA also requires
a lead agency to prepare a mitigated negative declaration for a
project that may have a significant effect on the environment if
revisions in the project would avoid or mitigate that effect and
there is no substantial evidence that the project, as revised, would
have a significant effect on the environment. CEQA exempts certain
specified projects from its requirements.
This bill would require the executive officer of the South Coast
Air Quality Management District, upon making a specified finding, to
transfer a specified quantity of emission reduction credits for
certain pollutants from the south coast district's internal emission
credit accounts to eligible electrical generating facilities, as
described , thereby imposing a state-mandated local program
. These provisions would be repealed on January 1, 2013.
This bill would require the executive officer of the South Coast
Air Quality Management District, upon a finding that an essential
public service facility has complied with applicable district rules,
to credit and transfer as many internal emission credits as are
needed to grant a permit to the essential public service facility.
These provisions would be repealed on January 1, 2013.
By imposing these duties on the South Coast Air Quality Management
District, the bill would impose a state-mandated local program.
The bill would state that the holdings of the superior court in
the case of Natural Resources Defense Council v. South Coast Air
Quality Management District are abrogated to the extent to which they
are inconsistent with these provisions. The bill would also state
that no provision of the act will be given effect if any provision is
held invalid.
The bill would exempt from the California Environmental Quality
Act actions of the district undertaken pursuant to the bill.
The bill would state the findings and declarations of the
Legislature concerning the need for special legislation.
(2) 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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
(3) The bill would declare that it is to take effect immediately
as an urgency statute.
Vote: 2/3. Appropriation: no. 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 all of the
following:
(a) Sufficient rotating electrical generation capacity is required
within the Los Angeles Basin Local Reliability Area to ensure stable
operation of the power grid.
(b) Energy efficiency and renewable resources, which are primarily
located outside of the Los Angeles Basin Local Reliability Area, may
not be sufficient to satisfy the in-basin rotating electrical
generation capacity need.
(c) In October 2005, the Public Utilities Commission and the State
Energy Resources Conservation and Development Commission
(commission) adopted the Energy Action Plan II, which establishes a
policy that the state will rely on clean and efficient fossil
fuel-fired generation to the extent energy efficiency and renewable
resources are unsuitable.
(d) The Energy Action Plan II establishes a policy that the state
will encourage the development of cost-effective, highly efficient,
and environmentally sound supply resources to provide reliability and
consistency with the state's energy priorities.
(e) Executive Order S-14-08, signed by the Governor on November
17, 2008, calls for a new, more aggressive renewable energy target,
increasing the current goal of obtaining 20 percent of the energy
used by electrical corporations from clean, renewable sources by the
year 2010 to 33 percent by the year 2020.
(f) New electrical generating capacity in the Los Angeles Basin
Local Reliability Area is required to meet best available control
technology (BACT) standards and is required to fully offset any
remaining emissions of nonattainment pollutants, including sulfur
oxides and particulate matter with emission credits.
(g) Emission credits available in the air basins regulated by the
South Coast Air Quality Management District may be insufficient to
allow new electrical generating capacity to be constructed.
(h) The South Coast Air Quality Management District maintains
internal emission credit accounts that it uses to permit, among other
things, small and essential public services.
(i) The South Coast Air Quality Management District has adopted
Rule 1302(m) which defines an "essential public service" to include
sewage treatment facilities, prisons, police facilities, fire
fighting facilities, schools, hospitals, construction and operation
of a landfill gas control or processing facility, water delivery
operations, and public transit.
SEC. 2. Section 40453 is added to the Health and Safety Code, to
read:
40453. (a) The executive officer of the south coast district
, upon finding that the eligible electrical generating
facility proposed for certification by the State Energy Resources
Conservation and Development Commission meets the requirements of the
applicable new source review rule and all other applicable district
regulations that must be met under Section 1744.5 of Title 20 of the
California Code of Regulations, shall credit to the south coast
district's internal emission credit accounts and transfer from the
south coast district's internal emission credit accounts to eligible
electrical generating facilities emission credits up to the following
aggregate amounts:
(1) Sulfur oxides (SOx) in the amount of 0.1 tons per day.
(2) Fine particulate Particulate
matter (PM10) in the amount of 0.6 tons per day.
(b) The south coast district may rely on the south coast district'
s Rule 1315, as adopted on August 3, 2007, or as amended as
required by the United States Environmental Protection Agency,
to credit emission credits to its internal emission credit accounts
to carry out the obligations of subdivision (a).
(c) The emission reduction credits in subdivision (a) shall
satisfy all state and south coast district requirements related to
the provision of credits or offsets for new electrical generating
facilities.
(d) In order to be eligible for emission reduction credits
pursuant to this section, an electrical generating facility shall
meet all of the following requirements:
(1) Be subject to the permitting jurisdiction of the State Energy
Resources Conservation and Development Commission.
(2) Have a purchase agreement, executed on or before December 31,
2008, to provide electricity to a public utility, as defined in
Section 216 of the Public Utilities Code, subject to regulation by
the Public Utilities Commission, for use within the Los Angeles Basin
Local Reliability Area.
(3) Be under the jurisdiction of the south coast district, but not
within the South Coast Air Basin.
(e) The executive officer shall not transfer emission reduction
credits pursuant to this section until the receipt of payment of the
mitigation fees set forth in the south coast district's Rule 1309.1,
as adopted on August 3, 2007. The mitigation fees shall only be used
for emission reduction purposes. The south coast district shall
ensure that at least 30 percent of the fees are used for emission
reductions in areas within close proximity to the electrical
generating facility and at least 30 percent are used for emission
reductions in areas designated as "Environmental Justice Areas" in
Rule 1309.1.
(f) The executive officer's authority to transfer emission
reduction credits pursuant to this section shall terminate when the
executive officer has transferred emission reduction credits in
amounts that are equal to the aggregate amounts set forth in
subdivision (a).
(g) This section shall be implemented in a manner consistent with
federal law, including the Clean Air Act (42 U.S.C. Sec. 7401 et
seq.).
(h) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 3. Section 40453.1 is added to the
Health and Safety Code , to read:
40453.1. (a) The executive officer of the south coast district,
upon finding that an essential public service facility, as defined in
subdivision (m) of south coast district Rule 1302, has complied with
all applicable district rules including paragraph (3) of subdivision
(b) of Rule 1309.1, as adopted on August 3, 2007, shall credit and
transfer to the south coast district's internal emission credit
accounts and transfer from the south coast district's internal
emission accounts those emission credits that are needed to grant a
permit to the essential public service facility.
(b) To carry out subdivision (a), the south coast district may
rely on the south coast district's Rule 1315, as adopted August 3,
2007, or as amended as required by the United States Environmental
Protection Agency, to credit emission credits to its internal
emission credit accounts.
(c) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 4. Section 21080 of the Public
Resources Code is amended to read:
21080. (a) Except as otherwise provided in this division, this
division shall apply to discretionary projects proposed to be carried
out or approved by public agencies, including, but not limited to,
the enactment and amendment of zoning ordinances, the issuance of
zoning variances, the issuance of conditional use permits, and the
approval of tentative subdivision maps unless the project is exempt
from this division.
(b) This division does not apply to any of the following
activities:
(1) Ministerial projects proposed to be carried out or approved by
public agencies.
(2) Emergency repairs to public service facilities necessary to
maintain service.
(3) Projects undertaken, carried out, or approved by a public
agency to maintain, repair, restore, demolish, or replace property or
facilities damaged or destroyed as a result of a disaster in a
disaster-stricken area in which a state of emergency has been
proclaimed by the Governor pursuant to Chapter 7 (commencing with
Section 8550) of Division 1 of Title 2 of the Government Code.
(4) Specific actions necessary to prevent or mitigate an
emergency.
(5) Projects which a public agency rejects or disapproves.
(6) Actions undertaken by a public agency relating to any thermal
powerplant site or facility, including the expenditure, obligation,
or encumbrance of funds by a public agency for planning, engineering,
or design purposes, or for the conditional sale or purchase of
equipment, fuel, water (except groundwater), steam, or power for a
thermal powerplant, if the powerplant site and related facility will
be the subject of an environmental impact report, negative
declaration, or other document, prepared pursuant to a regulatory
program certified pursuant to Section 21080.5, which will be prepared
by the State Energy Resources Conservation and Development
Commission, by the Public Utilities Commission, or by the city or
county in which the powerplant and related facility would be located
if the environmental impact report, negative declaration, or document
includes the environmental impact, if any, of the action described
in this paragraph.
(7) Activities or approvals necessary to the bidding for, hosting
or staging of, and funding or carrying out of, an Olympic games under
the authority of the International Olympic Committee, except for the
construction of facilities necessary for the Olympic games.
(8) The establishment, modification, structuring, restructuring,
or approval of rates, tolls, fares, or other charges by public
agencies which the public agency finds are for the purpose of (A)
meeting operating expenses, including employee wage rates and fringe
benefits, (B) purchasing or leasing supplies, equipment, or
materials, (C) meeting financial reserve needs and requirements, (D)
obtaining funds for capital projects necessary to maintain service
within existing service areas, or (E) obtaining funds necessary to
maintain those intracity transfers as are authorized by city charter.
The public agency shall incorporate written findings in the record
of any proceeding in which an exemption under this paragraph is
claimed setting forth with specificity the basis for the claim of
exemption.
(9) All classes of projects designated pursuant to Section 21084.
(10) A project for the institution or increase of passenger or
commuter services on rail or highway rights-of-way already in use,
including modernization of existing stations and parking facilities.
(11) A project for the institution or increase of passenger or
commuter service on high-occupancy vehicle lanes already in use,
including the modernization of existing stations and parking
facilities.
(12) Facility extensions not to exceed four miles in length which
are required for the transfer of passengers from or to exclusive
public mass transit guideway or busway public transit services.
(13) A project for the development of a regional transportation
improvement program, the state transportation improvement program, or
a congestion management program prepared pursuant to Section 65089
of the Government Code.
(14) Any project or portion thereof located in another state which
will be subject to environmental impact review pursuant to the
National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et
seq.) or similar state laws of that state. Any emissions or
discharges that would have a significant effect on the environment in
this state are subject to this division.
(15) Projects undertaken by a local agency to implement a rule or
regulation imposed by a state agency, board, or commission under a
certified regulatory program pursuant to Section 21080.5. Any
site-specific effect of the project which was not analyzed as a
significant effect on the environment in the plan or other written
documentation required by Section 21080.5 is subject to this
division.
(16) Actions undertaken by the South Coast Air Quality Management
District pursuant to Sections 40453 and 40453.1 of the Health and
Safety Code.
(c) If a lead agency determines that a proposed project, not
otherwise exempt from this division, would not have a significant
effect on the environment, the lead agency shall adopt a negative
declaration to that effect. The negative declaration shall be
prepared for the proposed project in either of the following
circumstances:
(1) There is no substantial evidence, in light of the whole record
before the lead agency, that the project may have a significant
effect on the environment.
(2) An initial study identifies potentially significant effects on
the environment, but (A) revisions in the project plans or proposals
made by, or agreed to by, the applicant before the proposed negative
declaration and initial study are released for public review would
avoid the effects or mitigate the effects to a point where clearly no
significant effect on the environment would occur, and (B) there is
no substantial evidence, in light of the whole record before the lead
agency, that the project, as revised, may have a significant effect
on the environment.
(d) If there is substantial evidence, in light of the whole record
before the lead agency, that the project may have a significant
effect on the environment, an environmental impact report shall be
prepared.
(e) (1) For the purposes of this section and this division,
substantial evidence includes fact, a reasonable assumption
predicated upon fact, or expert opinion supported by fact.
(2) Substantial evidence is not argument, speculation,
unsubstantiated opinion or narrative, evidence that is clearly
inaccurate or erroneous, or evidence of social or economic impacts
that do not contribute to, or are not caused by, physical impacts on
the environment.
(f) As a result of the public review process for a mitigated
negative declaration, including administrative decisions and public
hearings, the lead agency may conclude that certain mitigation
measures identified pursuant to paragraph (2) of subdivision (c) are
infeasible or otherwise undesirable. In those circumstances, the lead
agency, prior to approving the project, may delete those mitigation
measures and substitute for them other mitigation measures that the
lead agency finds, after holding a public hearing on the matter, are
equivalent or more effective in mitigating significant effects on the
environment to a less than significant level and that do not cause
any potentially significant effect on the environment. If those new
mitigation measures are made conditions of project approval or are
otherwise made part of the project approval, the deletion of the
former measures and the substitution of the new mitigation measures
shall not constitute an action or circumstance requiring
recirculation of the mitigated negative declaration.
(g) Nothing in this section shall preclude a project applicant or
any other person from challenging, in an administrative or judicial
proceeding, the legality of a condition of project approval imposed
by the lead agency. If, however, any condition of project approval
set aside by either an administrative body or court was necessary to
avoid or lessen the likelihood of the occurrence of a significant
effect on the environment, the lead agency's approval of the negative
declaration and project shall be invalid and a new environmental
review process shall be conducted before the project can be
reapproved, unless the lead agency substitutes a new condition that
the lead agency finds, after holding a public hearing on the matter,
is equivalent to, or more effective in, lessening or avoiding
significant effects on the environment and that does not cause any
potentially significant effect on the environment.
SEC. 5. The holdings of the Superior Court in
Natural Resources Defense Council v. South Coast Air Quality
Management District (2007 Superior Court of Los Angeles County Case
No. BS 110792) are hereby abrogated to the extent to which they are
inconsistent with the provisions of this act.
SEC. 6. The provisions of this act are not
severable. If any provision of this act is held invalid, no provision
can be given effect.
SEC. 3. SEC. 7. Due to unique
circumstances concerning the South Coast Air Quality Management
District, the Legislature finds and declares that a general statute
cannot be made applicable within the meaning of Section 16 of Article
IV of the California Constitution.
SEC. 4. SEC. 8. If the Commission on
State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.
SEC. 5. SEC. 9. This act is an
urgency statute necessary for the immediate preservation of the
public peace, health, or safety within the meaning of Article IV of
the Constitution and shall go into immediate effect. The facts
constituting the necessity are:
In order to maintain essential public services and help
create sufficient electrical generating capacity in southern
California to meet the current and future needs of the region and to
prevent rolling blackouts during peak demand periods, thereby
preserving the public peace, health, and safety, and to provide the
necessary infrastructure to support increased reliance on renewable
sources of energy, it is necessary that this statute take effect
immediately.