BILL ANALYSIS Ó
AB 2564
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 2564
AUTHOR: Ma
AMENDED: August 21, 2012
FISCAL: Yes HEARING DATE: August 30,
2012
URGENCY: Urgency CONSULTANT: Randy Pestor
SUBJECT : NATURAL GAS PIPELINE APPROVALS
SUMMARY :
Existing law , under the California Environmental Quality Act
(CEQA):
1) Requires lead agencies with the principal responsibility
for carrying out or approving a proposed discretionary
project to prepare a negative declaration, mitigated
declaration, or environmental impact report (EIR) for this
action, unless the project is exempt from CEQA (CEQA
includes various statutory exemptions, as well as
categorical exemptions in the CEQA guidelines). (Public
Resources Code §21000 et seq.). Exemptions relating to
pipelines include:
a) A project of less than one mile in length within a
public street or highway, or another public right-of-way
for the installation of a new pipeline or the
maintenance, repair, restoration, reconditioning,
relocation, replacement, removal, or demolition of an
existing pipeline. "Pipeline" includes "subsurface
facilities but does not include any surface facility
related to the operation of the underground facility."
(§21080.21).
b) The inspection, repair, restoration, reconditioning,
relocation, replacement, or removal of an existing
pipeline less than eight miles in length, or any valve,
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flange, meter, or other equipment directly attached to
the pipeline if certain conditions are met (e.g.,
"pipeline" is covered under the Elder California
Pipeline Safety Act of 1981 (for transporting hazardous
liquid substances or highly volatile liquid substances),
project is not less than eight miles from any section of
pipeline that has been subject to this exemption in the
past 12 months, certain notice is provided, project is
located within an existing right-of-way and restored to
its condition prior to the project, notice
requirements). (§21080.23).
c) For purposes of the §21080.23 pipeline exemption,
until January 1, 2013, "pipeline" also means a pipeline
located in Fresno, Kern, Kings, or Tulare County used to
transport biogas, meeting the requirements of that
section and all local, state, and federal laws; and
defines "biogas" as a natural gas meeting certain
requirements and derived from anaerobic digestion of
dairy animal waste. (§21080.23.5).
d) Operation, repair, maintenance, or minor alteration
of existing private or public structures involving
negligible or no expansion, including existing
facilities of both investor and publicly owned utilities
used to provide electric power, natural gas, sewerage,
or other public utility services. (CEQA Guidelines
§15301(b)).
e) Replacement or reconstruction of existing structures
and facilities where the new structure will be located
on the same site as the structure replaced and will have
substantially the same purpose and capacity, including
replacement or reconstruction of existing utility
systems or facilities involving negligible or no
expansion of capacity. (CEQA Guidelines §15302(c)).
2) Requires state lead agencies to establish specified time
limits for completing and certifying environmental impact
reports, and completing and adopting negative declarations.
This bill :
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1) Under the §21080.21 exemption (1 a above):
a) Changes the definition of "pipeline" to mean
"subsurface pipelines and subsurface or surface
accessories or appurtenances to a pipeline, such as
mains, traps, vents, cables, conduits, vaults, valves,
flanges, manholes and meters."
b) Requires a resource agency to consider only the
length of pipeline that is within its legal jurisdiction
in determining the applicability of this exemption to a
natural gas pipeline safety enhancement activity under
review by the resource agency.
c) Defines "natural gas pipeline" to mean a public
utility activity as part of a program to enhance the
safety of intrastate natural gas pipelines in accordance
with a decision, rule, or regulation adopted by the
Public Utilities Commission;" and defines "resource
agency" to mean the State Lands Commission, California
Coastal Commission, Department of Fish and Game, or the
State Water Resources Control Board, and local or
regional agencies with permitting authority under the
California Coastal Act of 1976 or regional water quality
control board requirements.
2) Revises the CEQA time limit provisions to:
a) Allow a public agency to establish a process allowing
an applicant for a natural gas pipeline safety
enhancement activity to pay additional fees to be used
by the public agency in determining whether to approve a
natural gas pipeline safety enhancement activity by
entering into a contract with one or more parties to
assist the public agency to perform the analysis.
b) Conditions the amount of fees charged by the public
agency for the above process to the amount agreed to by
the applicant.
3) Contains related legislative intent.
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4) Adds an urgency clause.
COMMENTS :
1) Purpose of Bill . According to the legislative intent of AB
2564, this bill is in response to the September 9, 2010,
pipeline rupture in San Bruno that "caused an explosion and
fire devastating a community and igniting a call to
action." The legislative intent also asserts that this
matter is a "matter of statewide concern to achieve the
timely completion of natural gas pipeline safety
enhancements, including programs for maintenance and
operation enhancements, and to contribute to the public's
confidence in the safety of natural gas pipelines and their
ongoing operation and maintenance."
2) More coordination at the front end ? As noted in the
analysis for AB 2559 (Buchanan) a recent bill relating to
pipeline permitting and recently heard and approved by the
Committee, a lengthy pipeline project can adversely affect
roads and may cause conflicts with entrances to homes,
businesses, schools, and other uses. There may also be
adverse noise and air quality impacts for area residents,
or sensitive uses such as schools, senior centers, and
hospitals.
Like AB 2559, this bill lacks necessary procedures for
coordination before the permitting process begins. Public
utilities should, for example, notify public agencies with
jurisdiction over a project at least 90 days prior to
submitting an application for such a pipeline project, and
provide specific information about the project (e.g., brief
project description, project timing and phasing), and
cities and counties should be given the opportunity to
submit comments to the public utility. In this way, the
public utility would have comments and an opportunity to
respond to public concerns before submitting an
application.
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It would also be appropriate to require pipeline project
scoping meetings under CEQA for a discretionary pipeline
project.
Rather than focusing on rapid CEQA review and permitting -
which can often result in unintended adverse effects -
improved public dialogue at the front end is likely to be
far more effective.
3) Potential segmenting concerns . Under CEQA, "project" means
the whole of an action. An agency cannot segment a project
into several pieces. While one could argue that AB 2564
encourages "segmenting" or "piecemealing" a project, the
whole of an action in this case is limited to a natural gas
pipeline enhancement project less than one mile in length.
4) Outstanding issues . If the Committee believes AB 2564 is
needed, it would be appropriate to add a sunset (e.g.,
January 1, 2018) since this bill is allegedly in response
to the need for "timely completion of natural gas pipeline
safety enhancements" and the Legislature should review the
bill's effect. A sunset is also appropriate since state
law should not have an unintended consequence of
encouraging bad behavior (e.g., encouraging public
utilities to allow their infrastructure to deteriorate so
they can be advantaged by state laws addressing emergencies
that are not the result of neglect).
Also, since the applicant under this bill must request to pay
additional fees to enable a public agency to contract with
third parties, that applicant should not be required to
agree with the amount that the agency subsequently expends
for those third party services. This is also a concern
with the Senate Appropriations Committee, and the author
wishes to thereby strike lines 18 to 22 on page 5.
1) Related legislation . AB 2559 (Buchanan) amends the Permit
Streamlining Act to: a) require a city or county to act on
an application by a gas corporation that is a public
utility for a ministerial pipeline project permit within a
public street, highway, or any other public right-of-way
within 10 business days of determining that an application
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for the pipeline project is complete; b) require the city
or county to provide the gas corporation with a written
timeline indicating the time by which the city or county
will, as soon as possible, act on the application if the
city or county cannot act on the application within the
above 10-business-day period; and c) define certain terms
(e.g., "pipeline integrity management plan," "pipeline
project").
AB 2559 was approved by the Senate Environmental Quality
Committee July 2, 2012 (7-0) and the Senate August 23, 2012
(37-0), and the Assembly concurred in Senate amendments
August 28, 2012.
SOURCE : Sempra Energy Utilities
SUPPORT : American Council of Engineering Companies, Burn
Institute, California Chamber of Commerce,
California Council for Environmental and
Economic Balance, California Fire Chiefs
Association, California Public Utilities
Commission, Carlsbad Fire Department, Chino
Valley Fire District, Glendale Fire Department,
Montclair Fire Department, El Monte/South El
Monte Chamber of Commerce, Greater Bakersfield
Chamber of Commerce, Kings County Fire
Department, Pacific Gas and Electric Company,
San Diego County Fire Chiefs Association, San
Diego Gas & Electric Company, Southern
California Gas Company, Tulare County Fire
Department, Visalia Fire Department
OPPOSITION : California Native Plant Society, Central Valley
Air Quality Coalition, Clean Water Action,
Planning and Conservation League, Sierra Club
California