ABX2 28 Assembly Bill, 2nd Extraordinary Session

BILL NUMBER: ABX2 28	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JULY 12, 2001
	AMENDED IN SENATE  JUNE 21, 2001

INTRODUCED BY   Assembly Members Migden, Oropeza, and Diaz
   (Coauthor:  Assembly Member Cohn)

                        MAY 17, 2001

   An act to amend Section 335 of, and to add  Sections
341.6, 342, and 342.5 to   and repeal Sections 341.6,
342, and 9613 of  , the Public Utilities Code, relating to
public utilities.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 28, as amended, Migden.  Electrical restructuring:  Oversight
Board:  Independent System Operator.
   (1) The existing restructuring of the electrical services industry
within the Public Utilities Act provides for the establishment of an
Independent System Operator and a Power Exchange as separately
incorporated public benefit nonprofit corporations.  An Electricity
Oversight Board (Oversight Board) is also established to oversee the
Independent System Operator and the Power Exchange in order to ensure
the success of electric industry restructuring and to ensure a
reliable supply of electricity in the transition to a new market
structure.  The Oversight Board is granted various powers in order to
carry out these purposes.
   This bill would  , until the occurrence of a specified event,
 expand the authority of the Oversight Board to  act on
any matters made subject to the approval or determination by the
Oversight Board under law, and to  investigate any matter
 and otherwise act consistent with these provisions 
 related to the wholesale market for electricity  to ensure
that the interests of California's citizens and consumers are
served, protected, and represented in relation to the 
availability of  electric transmission  grid 
and generation  system   ,  and related
costs,  during periods of peak demand,  including provisions
for the  production   inspection and
reproduction  of  certain  information.   The bill
would enact confidentiality requirements and procedures applicable to
information provided in this regard. 
   The bill would  , until the occurrence of a specified event,
 require that electric generation and transmission facilities be
subject to various  prescribed availability 
standards  related to their availability  .  The bill would
 , until the occurrence of a specified event,  require the
Oversight Board, in consultation with the  Public Utilities
Commission and the  Independent System Operator, to prepare and
adopt protocols for the scheduling of transmission and generation
equipment outages for the purpose of maintenance, repair, or upgrade
and to prepare and adopt a schedule of outages in accordance with
those protocols.  The bill would require the Oversight Board to
direct the Independent System Operator to develop and submit to the
board and the commission proposed generation facility maintenance,
operating, and availability standards  for generator units with a
certain capacity  .  The bill would authorize the commission to
adopt those standards and ensure compliance with those standards.
The bill would require entities that own or operate certain electric
generating  facilities   units  to provide
reports on a monthly basis to the Independent System Operator that
identify any periods the  facilities   units
 were unavailable to produce electricity or were available at
reduced capacity.  The bill would require the Independent System
Operator to transmit that information to the Oversight Board and the
commission.
   The bill would also impose certain requirements on electrical
corporations having contracts with certain qualifying facilities or
cogeneration facilities.  The bill would require a report of the
operational status and availability of the facility to be provided to
the Oversight Board  and the commission  on a daily basis.
The bill would provide for the assessment of penalties by the
commission for violations of these provisions.  Because a violation
of the Public Utilities Act is a crime under existing provisions of
law, the bill would create a state-mandated local program by
expanding the definition of a crime.
   The bill would impose various duties on local publicly owned
electric utilities  and certain other local public entities 
relative to maintenance of  certain  generation and
transmission facilities, and reporting of actual planned and
nonplanned outages of facilities, thereby imposing a state-mandated
local program.  
   The bill would require the Oversight Board to report to the
Legislature in writing on a quarterly basis on its progress in
implementing the provisions of this bill.
   The bill would enact other related provisions. 
  (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, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
   This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 335 of the Public Utilities Code is amended to
read:
   335.  In order to ensure that the interests of the people of
California are served, a five-member Electricity Oversight Board is
hereby created as provided in Section 336.  For purposes of this
chapter, any reference to the Oversight Board shall mean the
Electricity Oversight Board.  Its functions shall be all of the
following:
   (a) To oversee the Independent System Operator and the Power
Exchange.
   (b) (1) To exercise the exclusive right to decline to confirm the
appointments of members of the governing board of the Independent
System Operator.
   (2) To determine the composition and terms of service and to
exercise the exclusive right to decline to confirm the appointments
of specific members of the governing board of the Power Exchange.
   (c) To serve as an appeal board for majority decisions of the
Independent System Operator governing board, as they relate to
matters subject to exclusive state jurisdiction, as specified in
Section 339.
   (d) Those members of the Power Exchange governing board whose
appointments the Oversight Board has the exclusive right to decline
to confirm include proposed governing board members representing
agricultural end users, industrial end users, commercial end users,
residential end users, end users at large, nonmarket participants,
and public interest groups.  
   (e) To act on any matters made subject to approval or
determination by the Oversight Board under law.
   (f) To investigate any matter and otherwise act consistent with
this chapter to ensure that the interests of California's citizens
and consumers are served, protected, and represented in relation to
the electric transmission grid and generation system and related
costs.  
   (e) To investigate any matter related to the wholesale market for
electricity to ensure that the interests of California's citizens and
consumers are served, protected, and represented in relation to the
availability of electric transmission and generation and related
costs, during periods of peak demand. 
  SEC. 2.  Section 341.6 is added to the Public Utilities Code, to
read:
   341.6.  (a)  With the consent of the Oversight Board, an
authorized officer of the Oversight Board may direct the inspection
or production   The Oversight Board may direct the
inspection or reproduction  of records, data, accounts, books,
or documents of the Independent System Operator or the Power Exchange
that are reasonably related to the public interest of the people of
California, including, but not limited to, the reliability,
availability, and cost of electric service to California consumers.

   (b) With the consent of the Oversight Board, an authorized officer
of the Oversight Board may direct the production of information from
an entity that owns or operates generation or transmission
facilities located in California or that engages in the sale of
electricity in California, related to the reliability, availability,
or cost of electric service to California consumers.
   (c) An entity providing information to the Oversight Board may
request confidential treatment for specific information that it
provides, which request shall be made at the time the request for
information is received.  The request for confidentiality shall
specifically identify the information for which confidentiality is
sought and the justification for that treatment. No information
submitted under a request for confidentiality shall be open to public
inspection or made public except pursuant to an order of the
Oversight Board finding that confidential treatment is not warranted,
which order shall be made after notice and opportunity for hearing.
The Oversight Board may adopt orders governing the handling of
information as appropriate to protect legitimate confidentiality.
   (d)  
   (b)  The Oversight Board may direct the Independent System
Operator to report to the Oversight Board on those matters and at
those times as the Oversight Board determines are necessary and
appropriate to the exercise of its public oversight duties.  
   (c) Any person required to present information pursuant to this
section to the Independent System Operator that may be requested by
the Oversight Board may request that specific information be held in
confidence.
   (d) Information received by the Oversight Board pursuant to this
section shall be held in confidence by the Oversight Board or
aggregated to the extent necessary to assure confidentiality if
public disclosure of the specific information or data would result in
unfair competitive disadvantage to the person supplying the
information.
   (e) (1) Whenever the Oversight Board receives a request to
publicly disclose unaggregated information, notice of the request or
proposal shall be provided to the person submitting the information
to the Oversight Board through the Independent System Operator.  The
notice shall indicate the form in which the information is to be
released.  Upon receipt of notice, the person submitting the
information shall have 10 working days in which to respond to the
notice to justify the claim of confidentiality on each specific item
of information covered by the notice on the basis that public
disclosure of the specific information would result in unfair
competitive disadvantage to the person supplying the information.
   (2) The Oversight Board shall consider the respondent's submittal
in determining whether to publicly disclose the information submitted
to it for which a claim of confidentiality is made.  The Oversight
Board shall issue a written decision that sets forth its reasons for
making the determination whether each item of information for which a
claim of confidentiality is made shall remain confidential or shall
be publicly disclosed.
   (f) The Oversight Board may not make public disclosure of
information submitted to it pursuant to this section until 10 working
days after the Oversight Board has issued its written decision
required in this section.
   (g) No information submitted to the Oversight Board pursuant to
this section shall be deemed confidential if the person submitting
the information or data has made it public.
   (h) Information submitted by the Independent System Operator to
the Oversight Board pursuant to this section that has been determined
to be confidential by the Federal Energy Regulatory Commission
pursuant to federal law shall be deemed confidential by the Oversight
Board.
   (i) With respect to information submitted by the Independent
System Operator to the Oversight Board pursuant to this section,
neither the Oversight Board nor any employee of the Oversight Board
shall do any of the following:
   (1) Use the information furnished to the Oversight Board for any
purpose other than the purpose for which it is supplied.
   (2) Make any publication whereby the information furnished by any
particular entity or individual to the Independent System Operator
can be identified.
   (3) Permit anyone other than members or employees of the Oversight
Board to examine the information.
   (j) The Oversight Board shall disclose to the commission any
information requested by the commission if the commission agrees to
keep the information confidential.  With respect to the information
it receives, the commission shall be subject to all pertinent
provisions of this section.
   (k) The Oversight Board may adopt emergency regulations to
implement this section in accordance with the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code).  The adoption of
emergency regulations pursuant to this section shall be deemed an
emergency and considered by the Office of Administrative Law as
necessary for the immediate preservation of the public peace, health,
and safety, or general welfare.
   (l) (1) This section shall remain in effect only until a
determination is made and notice thereof is provided pursuant to
paragraph (2), and as of that date is repealed.
   (2) Upon a determination by the Attorney General that the
Oversight Board has been abolished, or merged with, or replaced by,
another agency, or that the functions of the Oversight Board have
been duplicated by statute, executive order, or otherwise, the
chairperson of the commission shall submit a notice of that
determination to the Secretary of State, and this section shall be
repealed upon the receipt of that notice by the Secretary of State.

  SEC. 3.  Section 342 is added to the Public Utilities Code, to
read:
   342.  (a) The Legislature finds and declares that electric
generation and transmission facilities are critical infrastructure
and their predictable availability is essential to the public
welfare.
   (b) Electric generation and transmission facilities shall be
subject to standards related to their availability, in accordance
with this section.
   (c) Owners or operators of electric generating facilities in the
State of California shall comply with all protocols and standards
approved or established pursuant to this chapter.
   (d) On or before March 1, 2002, the Oversight Board, in
consultation with the  commission and the  Independent
System Operator, shall prepare and adopt protocols for the scheduling
of transmission and generation equipment outages for the purposes of
maintenance, repair, or upgrade.
   (e) The Oversight Board, in consultation with the  commission
and the  Independent System Operator, shall prepare and adopt a
schedule of transmission and generation equipment outages according
to the protocols adopted pursuant to subdivision (d).
   (f) The Oversight Board shall direct the Independent System
Operator to develop and submit to the Oversight Board and the
commission proposed generation facility maintenance, operating, and
availability standards  for generator units with a rated maximum
capacity of 10 megawatts or greater  .  The Oversight Board
shall adopt and may, as necessary, make revisions to, the standards.
In developing standards, the Oversight Board and the Independent
System Operator shall take into consideration generation facilities
scheduled for retirement and valid warranties on generation
facilities.  The commission may adopt these standards and ensure
compliance with these standards of owners and operators of generation
facilities subject to its jurisdiction.   Nothing in this
subdivision shall be construed to limit the commission's authority to
develop facility maintenance, operating, and availability standards
for generation facilities under the commission's jurisdiction. 

   (g) Nothing in this section is intended to modify or delay
retrofit of electrical generating facilities pursuant to Chapter 7
(commencing with Section 39910) of Part 2 of Division 26 of the
Health and Safety Code.  
   (g) Nothing in this section shall result in the modification,
delay, or abrogation of any deadline, standard, rule, or regulation
adopted by a federal, state, or local agency for the purposes of
protecting public health or the environment, including, but not
limited to, any requirements imposed by the State Air Resources Board
or by an air pollution control district or an air quality management
district pursuant to Division 26 (commencing with Section 39000) of
the Health and Safety Code.  The Oversight Board shall consult
with the State Air Resources Board and the appropriate local air
pollution control districts and air quality management districts to
coordinate scheduled outages to provide for compliance with those
retrofits.
   (h) The Independent System Operator shall maintain records of
generation facility outages and shall provide those records, and any
additional information as determined by the Oversight Board, to the
Oversight Board  and the commission  on a daily basis.  Each
entity that owns or operates an electric generating 
facility   unit  in California with a rated maximum
 combined  capacity of 10 megawatts or greater
 for all units at a single location  , shall provide
a monthly report to the Independent System Operator that identifies
any periods during the preceding month when the  facility
  unit  was unavailable to produce electricity or
was available only at reduced capacity.  The report shall identify
the reasons for any such unscheduled unavailability or reduced
capacity.  The Independent System Operator shall immediately transmit
the information to the Oversight Board and the commission.
   (i) The commission, in consultation with the Oversight Board,
shall adopt a penalty schedule applicable to any person or entity who
is in violation of any provision of this article.
   (j) Upon request of the Oversight Board, the commission may
undertake proceedings related to assessing monetary penalties for
noncompliance.   Nothing in this subdivision shall be construed
to limit the commission's authority to initiate its own action for
noncompliance.  
   (k) A court may provide injunctive relief to compel compliance
with plans, standards, or protocols established pursuant to this
section.
   (l) This section does not apply to a local publicly owned electric
utility, as defined in subdivision (d) of Section 9604, or a city
and county operating as a public utility, furnishing electric service
as provided in Section 10001.  
   (k) The Oversight Board, in consultation with the commission, may
seek an injunction from a court of competent jurisdiction to require
compliance with this section.  This subdivision shall not limit any
authority of the commission to seek injunctions within its
jurisdiction.
   (l) Except as provided in Section 9613, notwithstanding any other
provision of law, neither the provisions of this section, nor any
rules, regulations, standards, or protocols issued in furtherance of
this section, nor the penalties described in subdivisions (i) and
(j), shall apply to any of the following:
   (1) A local publicly owned electric utility, as defined in
subdivision (d) of Section 9604.
   (2) Any public agency that may generate electricity incidental to
the provision of water or water treatment. 
   (m) (1) Except as otherwise provided in this subdivision, this
section shall not apply to nuclear powered generating facilities that
are federally regulated and subject to standards developed by the
Nuclear Regulatory Commission, and that participate as members of the
Institute of Nuclear Power Operations.
   (2) The owner or operator of a nuclear powered generating facility
shall file with the Oversight Board  and the commission  an
annual schedule of maintenance, including repairs and upgrades,
updated quarterly, for each generating facility.  The owner or
operator of a nuclear powered generating facility shall make good
faith efforts to conduct its maintenance in compliance with its filed
plan and shall report to the Oversight Board any significant
variations from its filed plan.
   (3) The owner or operator of a nuclear powered generating facility
shall report on a monthly basis to the Oversight Board  and the
commission  all actual planned and unplanned outages of each
facility during the preceding month. The owner or operator of a
nuclear powered generating facility shall report on a daily basis to
the Oversight Board the daily operational status and availability of
each facility.
   (n) (1) Except as otherwise provided in this subdivision, this
section shall not apply to a qualifying small power production
facility or a qualifying cogeneration facility within the meaning of
Sections 201 and 210 of Title II of the federal Public Utility
Regulatory Policies Act of 1978 (16 U.S.C.A. Secs. 796(17), 796(18),
and 824a-3), and the regulations adopted pursuant to those sections
by the Federal Energy Regulatory Commission (18 C.F.R. Secs.  292.101
to 292.602, inclusive)  , nor shall this section apply to other
generation units installed, operated, and maintained at a customer
site exclusively to serve that customer's load  .
   (2) An electrical corporation that has a contract with a
qualifying small power production facility, or a qualifying
cogeneration facility,  with a name plate rating  of 10
megawatts or greater shall report to the Oversight Board  and the
commission  maintenance schedules for each facility, including
all actual planned and unplanned outages of the facility and the
daily operational status and availability of the facility.  Each
facility  with a name plate rating of 10 megawatts or greater
 shall be responsible for directly reporting to the Oversight
Board maintenance schedules for each facility, including all actual
planned and unplanned outages of the facility and the daily
operational status and availability of the facility, if that
information is not provided to the electrical corporation pursuant to
a contract.  
  SEC. 4.  Section 342.5 is added to the Public Utilities Code to
read:
   342.5.  (a) Each local publicly owned electric utility that owns
or operates generation or transmission facilities shall file with the
Oversight Board an annual schedule of maintenance, updated
quarterly, for all generation facilities of 10 megawatts or greater
and all transmission facilities.  A local publicly owned electric
utility shall make good faith efforts to conduct its maintenance in
compliance with its filed plan and shall report to the Oversight
Board any significant variations from its filed plan.
   (b) Each local publicly owned electric utility that owns or
operates generation facilities of 10 megawatts or greater or
transmission facilities shall report on a monthly basis to the
Oversight Board all actual planned and unplanned outages of those
facilities during the preceding month.
   (c) Each local publicly owned electric utility that owns or
operates generation facilities of 10 megawatts or greater or
transmission facilities shall adopt standards for the maintenance of
those facilities.  Each local publicly owned electric utility shall
file its standards with the Oversight Board.  Each local publicly
owned electric utility shall report the daily operational status and
availability of its generation facilities to the Oversight Board on a
daily basis.  
   (o) (1) This section shall remain in effect only until a
determination is made and notice thereof is provided pursuant to
paragraph (2), and as of that date is repealed.
   (2) Upon a determination by the Attorney General that the
Oversight Board has been abolished, or merged with, or replaced by,
another agency, or that the functions of the Oversight Board have
been duplicated by statute, executive order, or otherwise, the
chairperson of the commission shall submit a notice of that
determination to the Secretary of State, and this section shall be
repealed upon the receipt of that notice by the Secretary of State.
  SEC. 4.  Section 9613 is added to the Public Utilities Code, to
read:
   9613.  (a) Each local publicly owned electric utility, or public
agency that may generate electricity incidental to the provision of
water or water treatment, shall file with the Oversight Board an
annual schedule of maintenance, updated quarterly, for all generation
units with a rated maximum capacity of 10 megawatts or greater and
all transmission facilities.  A local publicly owned electric
utility, or public agency that may generate electricity incidental to
the provision of water or water treatment, shall make good faith
efforts to conduct its maintenance in compliance with its filed plan
and shall report to the Oversight Board any significant variations
from its filed plan.
   (b) Each local publicly owned electric utility, or public agency
that may generate electricity incidental to the provision of water or
water treatment that owns or operates generation units with a rated
maximum of 10 megawatts or greater or transmission facilities shall
report on a monthly basis to the Oversight Board all actual planned
and unplanned outages of those generating units and transmission
facilities during the preceding month.
   (c) Each local publicly owned electric utility, or public agency
that may generate electricity incidental to the provision of water or
water treatment, that owns or operates generation units with a rated
maximum of 10 megawatts or greater or transmission facilities shall
adopt standards for the maintenance of those generating units and
transmission facilities.  Each local publicly owned electric utility,
or public agency that may generate electricity incidental to the
provision of water or water treatment, shall file its standards with
the Oversight Board.  Each local publicly owned electric utility, or
public agency that may generate electricity incidental to the
provision of water or water treatment, shall report the daily
operational status and availability of its generation units with a
rated maximum of 10 megawatts and its transmission facilities to the
Oversight Board on a daily basis.
   (d) (1) This section shall remain in effect only until a
determination is made and notice thereof is provided pursuant to
paragraph (2), and as of that date is repealed.
   (2) Upon a determination by the Attorney General that the
Oversight Board has been abolished, or merged with, or replaced by,
another agency, or that the functions of the Oversight Board have
been duplicated by statute, executive order, or otherwise, the
chairperson of the commission shall submit a notice of that
determination to the Secretary of State, and this section shall be
repealed upon the receipt of that notice by the Secretary of State.

  SEC. 5.   The Oversight Board shall report in writing to the
appropriate policy committees of the Legislature on a quarterly basis
on its progress in implementing this act.  The report shall include,
but need not be limited to, information concerning outage scheduling
and coordination, compliance with standards by owners of generating
and transmission facilities, and wholesale price fluctuations.
  SEC. 6.   No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for
certain costs  that may be incurred by a local agency or school
district because in that regard this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIIIB of the California Constitution.

   However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other 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.  If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.