BILL NUMBER: AB 1318 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 1, 2009
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 Sections 40453 and 40453.1 of
An act to add Section 39619.8 to, and to add and
repeal Section 40440.14 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: 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. By imposing these duties on
the South Coast Air Quality Management District, the bill would
impose a state-mandated local program. The bill would
exempt from the California Environmental Quality Act certain actions
of the district undertaken pursuant to the bill. These
provisions would be repealed on January 1, 2013
2012 .
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
The bill would require the State Air Resources Board, in
consultation with specified agencies, to prepare and submit to the
Governor and the Legislature a report that evaluates the electrical
system reliability needs of the South Coast Air Basin and recommends
the most effective and efficient means of meeting those needs while
ensuring compliance with state and federal law.
(2) This 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 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 no reimbursement is required by this
act for a specified reason.
(3)
(4) 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. (a) The Legislature finds and
declares all of the following:
(a)
(1) Sufficient rotating electrical generation capacity
is required within the Los Angeles Basin Local Reliability Area to
ensure stable operation of the power grid.
(b)
(2) 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)
(3) 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)
(4) 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)
(5) 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)
(6) 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, 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.
(b) The South Coast Air Quality Management District shall have the
full authority to carry out the provisions of this act.
SEC. 2. Section 39619.8 is added to the
Health and Safety Code , to read:
39619.8. On or before July 1, 2010, the state board, in
consultation with the State Energy Resources Conservation and
Development Commission, the State Water Resources Control Board, and
the Independent System Operator, shall prepare and submit to the
Governor and the Legislature a report that evaluates the electrical
system reliability needs of the South Coast Air Basin and recommends
the most effective and efficient means of meeting those needs while
ensuring compliance with state and federal law, including, but not
limited to, all of the following policies and requirements:
(a) The California Global Warming Solutions Act of 2006 (Division
25.5 (commencing with Section 38500)).
(b) Section 316(b) of the federal Clean Water Act, and any
policies and regulations adopted by the State Water Resources Control
Board as these regulations applied to thermal powerplants within the
basin.
(c) State and federal air pollution laws and regulations,
including, but not limited to, any requirements for emission
reductions credits for new and modified sources of air pollution.
(d) Renewable energy and energy efficiency requirements adopted
pursuant to Division 1 (commencing with Section 201) of the Public
Utilities Code and Division 15 (commencing with Section 25000) of the
Public Resources Code.
(e) Division 13 (commencing with Section 21000) of the Public
Resources Code.
SEC. 2. SEC. 3. Section
40453 40440.14 is added to the Health and Safety
Code, to read:
40453. 40440.14. (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) 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.
in the full amounts needed to issue permits for eligible electrical
generating facilities to meet requirements for sulfur oxides (SO
x ) and particulate matter (PM2.5 and PM10) emissions.
(b) In implementing subdivision (a), the south coast district
shall rely on the emission reduction credit tracking system used
prior to the adoption of the south coast district's Rule 1315, until
a new tracking system is approved by the United States Environmental
Protection Agency and is in effect, at which point that new system
shall be used by the south coast district in implementing subdivision
(a).
(c) Within 60 days of the effective date of this section, for each
eligible electrical generating facility, the south coast district
shall report to the state board the emission credits to be credited
and transferred pursuant to subdivision (a). The state board shall
determine whether the emission credits to be credited and transferred
satisfy the standard for reductions in clause (iii) of subparagraph
(C) of paragraph (1) of subdivision (d) of Section 42504. In the
exercise of its regulatory responsibilities under its power facility
and site certification authority, the State Energy Resources
Conservation and Development Commission shall not certify an eligible
electrical generation facility if the state board has determined
that the credit and transfer by the south coast district does not
satisfy the standard for reductions in clause (iii) of subparagraph
(C) of paragraph (1) of subdivision (d) of Section 42504.
(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 to an
electrical generating facility pursuant to the south coast district's
Rule 1309.1, as adopted August 3, 2007, 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)
(f) 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)
(g) This section shall remain in effect only until
January 1, 2013 2012 , and as of that
date is repealed, unless a later enacted statute, that is enacted
before January 1, 2013 2012 , 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.
(16) The selection, credit, and transfer of emission credits by
the South Coast Air Quality Management District pursuant to Section
40440.14 of the Health and Safety Code, until the repeal of that
section on January 1, 2012, or a later date.
(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. 7. SEC. 5. 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. 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. 6. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because a local agency or school district has the
authority to levy service charges, fees, or assessments sufficient to
pay for the program or level of service mandated by this act, within
the meaning of Section 17556 of the Government Code.
SEC. 9. SEC. 7. 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.