Bill Text: CA AB1318 | 2009-2010 | Regular Session | Chaptered
Bill Title: South Coast Air Quality Management District: emission
Spectrum: Bipartisan Bill
Status: (Passed) 2009-10-11 - Chaptered by Secretary of State - Chapter 285, Statutes of 2009. [AB1318 Detail]
Download: California-2009-AB1318-Chaptered.html
BILL NUMBER: AB 1318 CHAPTERED
BILL TEXT
CHAPTER 285
FILED WITH SECRETARY OF STATE OCTOBER 11, 2009
APPROVED BY GOVERNOR OCTOBER 11, 2009
PASSED THE SENATE SEPTEMBER 11, 2009
PASSED THE ASSEMBLY SEPTEMBER 11, 2009
AMENDED IN SENATE SEPTEMBER 11, 2009
AMENDED IN SENATE SEPTEMBER 11, 2009
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 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.
LEGISLATIVE COUNSEL'S DIGEST
AB 1318, 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 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 CEQA certain actions of the district undertaken pursuant to the
bill. These provisions would be repealed on January 1, 2012.
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.
(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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares all of the
following:
(1) Sufficient rotating electrical generation capacity is required
within the Los Angeles Basin Local Reliability Area to ensure stable
operation of the power grid.
(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.
(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.
(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.
(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.
(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.
(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 Public Utilities Commission, 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.
(f) The resource adequacy requirements for load-serving entities
established by the Public Utilities Commission pursuant to Section
380 of the Public Utilities Code.
SEC. 3. Section 40440.14 is added to the Health and Safety Code,
to read:
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 in the full amounts needed to
issue permits for eligible electrical generating facilities to meet
requirements for sulfur oxides (SOx) and particulate matter (PM2.5
and PM10) emissions.
(b) (1) In implementing subdivision (a), the south coast district
shall rely on the offset tracking system used prior to the adoption
of Rule 1315 of the South Coast District 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.
(2) In addition to using the prior offset tracking system, the
district shall also make use of any emission credits that have
resulted from emission reductions and shutdowns from minor sources
since 1990. The district shall make any necessary submissions to the
United States Environmental Protection Agency with regard to the
crediting and use of emission reductions and shutdowns from minor
sources.
(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 Energy Resources Conservation and
Development Commission the emission credits to be credited and
transferred pursuant to subdivision (a). The State Energy Resources
Conservation and Development Commission shall determine whether the
emission credits to be credited and transferred satisfy all
applicable legal requirements. 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 it determines that the credit and transfer by the south
coast district do not satisfy all applicable legal requirements.
(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 to an electrical generating facility 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) 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.).
(g) This section shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, 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) 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. 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. 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.
