BILL NUMBER: SBX1 28 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Sher
FEBRUARY 5, 2001
An act to add Section 42301.15 to, and to add Chapter 7
(commencing with Section 39910) to Part 2 of Division 26 of, the
Health and Safety Code, and to amend Sections 25506, 25514, 25523,
25531, and 25552 of, to add Sections 25526.1 and 25544 to, and to add
and repeal Section 25550.5 of, the Public Resources Code, relating
to energy resources, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 28, as introduced, Sher. Powerplant siting.
(1) Existing law contains various provisions relative to air
pollution control.
This bill would require the State Air Resources Board, in
consultation with air districts and the State Energy Resources
Conservation and Development Commission, to implement a program for
the expedited retrofit of electrical generating facilities to ensure
that the facilities are permitted to operate in a manner that
complies with law. The bill also would require the state board to
implement a program for the identification of emission reduction
credits for electrical generating facilities and make that
information available to the public and interested parties.
The bill would require each air pollution control district or air
quality management district to adopt an expedited program for the
permitting of standby electrical generation facilities and
distributed generation facilities and an expedited program for the
air pollution retrofit of existing electrical generation facilities,
thereby imposing a state-mandated local program.
(2) Existing law provides for the restructuring of California's
electric power industry so that the price for the generation of
electricity is determined by a competitive market.
Existing law requires the State Energy Resources Conservation and
Development Commission to certify all sites and related facilities
for thermal powerplants in the state, including a new site and
related facility or a change or addition to an existing facility.
The commission is required to prepare a final report and written
decision after a public hearing on the application for the
powerplant.
Existing law requires the commission to request the appropriate
local, regional, state, and federal agencies to make comments and
recommendations about the design, operation, and location of
facilities.
This bill would require a local jurisdiction, as defined, to file
a preliminary list of issues regarding the design, operation,
location, and financial impact of the facility with the commission
within 45 days of the filing of the application for certification.
The bill would require the local jurisdiction to provide a final list
of those issues within 90 days. To the extent that the bill would
require the local jurisdiction to provide a new program or higher
level of service, it would impose a state-mandated local program.
This bill would require the final report prepared by the
commission to additionally include findings and conclusions as to
whether increased property taxes due to the construction of the
project are sufficient to support needed local improvements and
public services required to serve the project.
This bill would require the written decision prepared by the
commission after the public hearing to include a discussion of any
public benefits from the project including, but not limited to,
economic benefits, environmental benefits, and electricity
reliability benefits, resulting from modernization of the state's
electric generation infrastructure.
This bill would require the commission to adopt a regulation
governing ex parte contacts applicable to an adjudicatory proceeding,
as specified.
This bill would clarify that decisions of the commission are
subject to judicial review by the Supreme Court of California.
The bill would specify that no owner of a facility has standing to
challenge a decision made by the commission unless the owner also
owns transmission or fueling facilities adjacent to the facility.
(3) Existing law authorizes the commission to establish a process
for the expedited review of applications to construct and operate
powerplants and thermal powerplants and related facilities.
This bill would require the commission, until January 1, 2004,
also to establish a process for the expedited review of a repowering
project.
This bill would additionally delete the deadline for completed
applications for an expedited decision on simple cycle thermal
powerplants.
(4) 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, 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.
(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. Chapter 7 (commencing with Section 39910) is added to
Part 2 of Division 26 of the Health and Safety Code, to read:
CHAPTER 7. EXPEDITED AIR QUALITY IMPROVEMENT PROGRAM FOR
ELECTRICAL GENERATION
39910. The Legislature finds and declares that it is in the
interests of the people of the State of California to ensure that the
state board establish an expedited process to assist in the
permitting, retrofit, and operation of electrical generating
facilities in a manner that protects public health and air quality.
39915. The state board, in consultation with the districts and
the State Energy Resources Conservation and Development Commission,
shall implement a program for the expedited retrofit of electrical
generating facilities to ensure that those facilities operate, by
permit, in a manner that complies with applicable statutes and
regulations.
39920. The state board shall implement a program for the
identification of emission reduction credits for electrical
generating facilities and make that information available to the
public and interested parties.
SEC. 2. Section 42301.15 is added to the Health and Safety Code,
to read:
42301.15. (a) Each district shall adopt an expedited program for
the permitting of standby electrical generation facilities and
distributed generation facilities which ensures that those facilities
may operate in compliance with applicable air quality standards,
statutes, and regulations.
(b) Each district shall adopt an expedited program for the
retrofit of existing electrical generation facilities so that those
facilities may operate in compliance with applicable air quality
standards, statutes, and regulations. Each district shall consult
with the Independent System Operator, the Public Utilities
Commission, and the State Energy Resources Conservation and
Development Commission to ensure that the program is coordinated with
efforts to ensure electrical grid reliability.
SEC. 3. Section 25506 of the Public Resources Code is amended to
read:
25506. (a) The commission shall request the
appropriate local, regional, state, and federal agencies to make
comments and recommendations regarding the design, operation, and
location of the facilities designated in the notice, in relation to
environmental quality, public health and safety, and other factors on
which they may have expertise.
(b) Each local jurisdiction responding to the request shall file a
preliminary list of issues regarding the design, operation,
location, and financial impacts of the facility with the commission
no later than 45 days after the filing of an application for
certification and shall provide a final list of those issues with the
commission no later than 90 days after the filing of an application
for certification.
(c) "Local jurisdiction," for purposes of this section, means any
city, county, city and county, or regional planning agency, or any
combination thereof formed for the joint exercise of any power.
SEC. 4. Section 25514 of the Public Resources Code is amended to
read:
25514. After conclusion of the hearings held pursuant to Section
25513 and no later than 300 days after the filing of the notice, a
final report shall be prepared and distributed. The final report
shall include, but not be limited to, all of the following:
(a) The findings and conclusions of the commission regarding the
conformity of alternative sites and related facilities designated in
the notice or considered in the notice of intention proceeding with
both of the following:
(1) The 12-year forecast of statewide and service area electric
power demands adopted pursuant to subdivision (e) of Section 25305,
except as provided in Section 25514.5.
(2) Applicable local, regional, state, and federal standards,
ordinances, and laws, including any long-range land use plans or
guidelines adopted by the state or by any local or regional planning
agency, which would be applicable but for the exclusive authority of
the commission to certify sites and related facilities; and the
standards adopted by the commission pursuant to Section 25216.3.
(b) Any findings and comments submitted by the California Coastal
Commission pursuant to Section 25507 and subdivision (d) of Section
30413.
(c) Any findings and comments submitted by the San Francisco Bay
Conservation and Development Commission pursuant to Section 25507 of
this code and subdivision (d) of Section 66645 of the Government
Code.
(d) The commission's findings on the acceptability and relative
merit of each alternative siting proposal designated in the notice or
presented at the hearings and reviewed by the commission. The
specific findings of relative merit shall be made pursuant to
Sections 25502 to 25516, inclusive. In its findings on any
alternative siting proposal, the commission may specify modification
in the design, construction, location, or other conditions which will
meet the standards, policies, and guidelines established by the
commission.
(e) Findings and conclusions with respect to the safety and
reliability of the facility or facilities at each of the sites
designated in the notice, as determined by the commission pursuant to
Section 25511, and any conditions, modifications, or criteria
proposed for any site and related facility proposal resulting from
the findings and conclusions.
(f) Findings and conclusions as to whether increased property
taxes due to the construction of the project are sufficient to
support needed local improvements and public services required to
serve the project.
SEC. 5. Section 25523 of the Public Resources Code is amended to
read:
25523. The commission shall prepare a written decision after the
public hearing on an application, which includes all of the
following:
(a) Specific provisions relating to the manner in which the
proposed facility is to be designed, sited, and operated in order to
protect environmental quality and assure public health and safety.
(b) In the case of a site to be located in the coastal zone,
specific provisions to meet the objectives of Division 20 (commencing
with Section 30000) as may be specified in the report submitted by
the California Coastal Commission pursuant to subdivision (d) of
Section 30413, unless the commission specifically finds that the
adoption of the provisions specified in the report would result in
greater adverse effect on the environment or that the provisions
proposed in the report would not be feasible.
(c) In the case of a site to be located in the Suisun Marsh or in
the jurisdiction of the San Francisco Bay Conservation and
Development Commission, specific provisions to meet the requirements
of Division 19 (commencing with Section 29000) of this code or Title
7.2 (commencing with Section 66600) of the Government Code as may be
specified in the report submitted by the San Francisco Bay
Conservation and Development Commission pursuant to subdivision (d)
of Section 66645 of the Government Code, unless the commission
specifically finds that the adoption of the provisions specified in
the report would result in greater adverse effect on the environment
or the provisions proposed in the report would not be feasible.
(d) (1) Findings regarding the conformity of the proposed site and
related facilities with standards adopted by the commission pursuant
to Section 25216.3 and subdivision (d) of Section 25402, with public
safety standards and the applicable air and water quality standards,
and with other relevant local, regional, state, and federal
standards, ordinances, or laws. If the commission finds that there
is noncompliance with any state, local, or regional ordinance or
regulation in the application, it shall consult and meet with the
state, local, or regional governmental agency concerned to attempt to
correct or eliminate the noncompliance. If the noncompliance cannot
be corrected or eliminated, the commission shall inform the state,
local, or regional governmental agency if it makes the findings
required by Section 25525.
(2) The commission may not find that the proposed facility
conforms with applicable air quality standards pursuant to paragraph
(1) unless the applicable air pollution control district or air
quality management district certifies that complete emissions offsets
for the proposed facility have been identified and will be obtained
by the applicant prior to the commission's licensing of the project,
to the extent that the proposed facility requires emission offsets to
comply with local, regional, state, or federal air quality
standards.
(e) Provision for restoring the site as necessary to protect the
environment, if the commission denies approval of the application.
(f) In the case of a site and related facility using resource
recovery (waste-to-energy) technology, specific conditions requiring
that the facility be monitored to ensure compliance with paragraphs
(1), (2), (3), and (6) of subdivision (a) of Section 42315 of the
Health and Safety Code.
(g) In the case of a facility, other than a resource recovery
facility subject to subdivision (f), specific conditions requiring
the facility to be monitored to ensure compliance with toxic air
contaminant control measures adopted by an air pollution control
district or air quality management district pursuant to subdivision
(d) of Section 39666 or Section 41700 of the Health and Safety Code,
whether the measures were adopted before or after issuance of a
determination of compliance by the district.
(h) A discussion of any public benefits from the project
including, but not limited to, economic benefits, environmental
benefits, and electricity reliability benefits, resulting from
modernization of the state's electric generation infrastructure.
SEC. 6. Section 25526.1 is added to the Public Resources Code, to
read:
25526.1. The commission shall adopt a regulation, applicable to
any adjudicatory proceeding before the commission, governing ex parte
contacts. The regulation shall provide for prompt disclosure of any
ex parte contact. The rule shall apply to any contact regarding a
substantive, nonprocedural matter at issue in the adjudicatory
proceeding between any party to the proceeding and commission staff,
and any commissioner, commissioner's advisor, or hearing officer.
The regulation shall not restrict exchanges of information among the
public and any parties to the proceeding, including contacts between
parties and commission staff, other than a commissioner, commissioner'
s advisor, or hearing officer. The commission staff shall docket a
written summary of the substance of any ex parte contact between
staff and a party.
SEC. 7. Section 25531 of the Public Resources Code is amended to
read:
25531. (a) The decisions of the commission on any application of
any electric utility for certification of a site and related facility
are subject to judicial review in the same manner as the
decisions of the Public Utilities Commission on the application for a
Certificate of Public Convenience and Necessity for the same site
and related facility by the Supreme Court of
California .
(b) No new or additional evidence may be introduced upon review
and the cause shall be heard on the record of the commission as
certified to by it. The review shall not be extended further than to
determine whether the commission has regularly pursued its
authority, including a determination of whether the order or decision
under review violates any right of the petitioner under the United
States Constitution or the California Constitution. The findings and
conclusions of the commission on questions of fact are final and are
not subject to review, except as provided in this article. These
questions of fact shall include ultimate facts and the findings and
conclusions of the commission. A report prepared by, or an approval
of, the commission pursuant to Section 25510, 25514, 25516, or
25516.5, or subdivision (b) of Section 25520.5, shall not constitute
a decision of the commission subject to judicial review.
(c) Subject to the right of judicial review of decisions of the
commission, no court in this state has jurisdiction to hear or
determine any case or controversy concerning any matter which was, or
could have been, determined in a proceeding before the commission,
or to stop or delay the construction or operation of any thermal
powerplant except to enforce compliance with the provisions of a
decision of the commission.
(d) Notwithstanding Section 1250.370 of the Code of Civil
Procedure:
(1) If the commission requires, pursuant to subdivision (a) of
Section 25528, as a condition of certification of any site and
related facility, that the applicant acquire development rights, that
requirement conclusively establishes the matters referred to in
Sections 1240.030 and 1240.220 of the Code of Civil Procedure in any
eminent domain proceeding brought by the applicant to acquire the
development rights.
(2) If the commission certifies any site and related facility,
that certification conclusively establishes the matters referred to
in Sections 1240.030 and 1240.220 of the Code of Civil Procedure in
any eminent domain proceeding brought to acquire the site and related
facility.
(e) No decision of the commission pursuant to Section 25516,
25522, or 25523 shall be found to mandate a specific supply plan for
any utility as prohibited by Section 25323.
SEC. 8. Section 25544 is added to the Public Resources Code, to
read:
25544. Notwithstanding any other provision of law, no owner of a
facility shall have standing to challenge a decision made by the
commission pursuant to this chapter unless that owner also owns
transmission or fueling facilities adjacent to the facility.
SEC. 9. Section 25550.5 is added to the Public Resources Code, to
read:
25550.5. (a) Notwithstanding subdivision (a) of Section 25522 and
Section 25540.6, the commission shall establish a process to issue
its final certification for the repowering of a thermal powerplant
and related facilities within 180 days after the filing of the
application for certification that, on the basis of an initial
review, shows that there is substantial evidence that the project
will not cause a significant adverse impact on the environment or
electrical system, that the project will comply with all applicable
standards, ordinances, regulations, or statutes, and that electrical
output from the project will be made available to serve electrical
customers located within the state. For purposes of this section,
filing has the same meaning as in Section 25522.
(b) The repowering of a thermal powerplant and related facilities
reviewed under this process shall satisfy the requirements of Section
25520 and other necessary information required by the commission by
regulation, including the information required for permitting by each
local, state, and regional agency that would have jurisdiction over
the proposed repowering of a thermal powerplant and related
facilities but for the exclusive jurisdiction of the commission and
the information required for permitting by each federal agency that
has jurisdiction over the proposed repowering of a thermal powerplant
and related facilities.
(c) After acceptance of an application under this section, the
commission shall not be required to issue a six-month final decision
on the application if it determines there is substantial evidence in
the record that the thermal powerplant and related facilities may
result in a significant adverse impact on the environment or
electrical system or does not comply with an applicable standard,
ordinance, regulation, or statute. Under this circumstance, the
commission shall make its decision in accordance with subdivision (a)
of Section 25522 and Section 25540.6, and a new application shall
not be required.
(d) For an application that the commission accepts under this
section, any local, regional, or state agency that would have had
jurisdiction over the proposed thermal powerplant and related
facilities, but for the exclusive jurisdiction of the commission,
shall provide its final comments, determinations, or opinions within
100 days after the filing of the application. The regional water
quality control board, as established pursuant to Chapter 4
(commencing with Section 13200) of Division 7 of the Water Code,
shall retain jurisdiction over any applicable water quality standard
that is incorporated into any final certification issued pursuant to
this chapter.
(e) The repowering of a thermal powerplant and related facilities
that demonstrate superior environmental or efficiency performance
improvement shall receive first priority in review by the commission.
(f) With respect to the repowering of a thermal powerplant and
related facilities reviewed under the process established by this
chapter, it shall be shown that the applicant has contracted for an
adequate supply of skilled labor to construct, operate, and maintain
the plant.
(g) With respect to a repowering of a thermal powerplant and
related facilities reviewed under the process established by this
chapter, it shall be shown that the thermal powerplant and related
facilities complies with all regulations adopted by the commission
that ensure that an application addresses disproportionate impacts in
a manner consistent with Section 65040.12 of the Government Code.
(h) This section shall not apply to an application filed with the
commission on or before August 1, 1999.
(i) To implement this section, the commission may adopt emergency
regulations in accordance with Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code. For
purposes of that chapter, including, without limitation, Section
11349.6 of the Government Code, the adoption of the regulations shall
be considered by the Office of Administrative Law to be necessary
for the immediate preservation of the public peace, health, safety,
and general welfare.
(j) For purposes of this section, "repowering" means a project for
the modification of an existing thermal powerplant that meets all of
the following criteria:
(1) The project complies with all applicable requirements of
federal, state, and local laws.
(2) The project is located on the site of, and within the existing
boundaries of, an existing thermal facility.
(3) The project will not require significant additional electrical
or fuel-related transmission facilities.
(4) The project will result in significant and substantial
increases in the efficiency of the production of electricity,
including, but not limited to, reducing the heat rate, reducing the
use of natural gas, reducing the use and discharge of water, and
reducing air pollutants emitted by the project.
(k) This section shall remain in effect only until January 1, 2004,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2004, deletes or extends that date.
SEC. 10. Section 25552 of the Public Resources Code is amended to
read:
25552. (a) The commission shall implement a procedure, consistent
with Division 13 (commencing with Section 21000) and with the
federal Clean Air Act (42 U.S.C.A. U.S.C.
Sec. 7401 et seq.), for an expedited decision on simple cycle
thermal powerplants and related facilities that can be put into
service on or before August 1, 2001 2002
, including a procedure for considering amendments to a pending
application if the amendments specify a change from a combined cycle
thermal powerplant and related facilities to a simple cycle thermal
powerplant and related facilities.
(b) The procedure shall include all of the following:
(1) A requirement that, within 15 30
days of receiving the application or amendment to a pending
application, the commission shall determine whether the application
is complete.
(2) A requirement that, within 25 30
days of determining that an application is complete, the commission
, or a committee of the commission, shall determine
whether the application qualifies for an expedited decision pursuant
to this section. If an application qualifies for an expedited
decision pursuant to this section, the commission shall provide the
notice required by Section 21092.
(c) The commission shall issue its final decision on an
application, including an amendment to a pending application, within
four months from the date on which it deems the application or
amendment complete, or at any later time mutually agreed upon by the
commission and the applicant, provided that the thermal powerplant
and related facilities remain likely to be in service before or
during August 2001 2002 .
(d) The commission shall issue a decision granting a license to a
simple cycle thermal powerplant and related facilities pursuant to
this section if the commission finds all of the following:
(1) The thermal powerplant is not a major stationary source or a
modification to a major stationary source, as defined by the federal
Clean Air Act, and will be equipped with best available control
technology, in consultation with the appropriate air pollution
control district or air quality management district and the State Air
Resources Board.
(2) The thermal powerplant and related facilities will not have a
significant adverse effect on the environment or the electrical
system as a result of construction or operation.
(3) With respect to a project for a thermal powerplant and related
facilities reviewed under the process established by this section,
the applicant has a contract with a general contractor and
has contracted for an adequate supply of skilled labor to
construct, operate, and maintain the thermal powerplant.
(e) In order to qualify for the procedure established by this
section, an application or an amendment to a pending
application shall be complete by October 31, 2000,
satisfy the requirements of Section 25523, and include a
description of the proposed conditions of certification that will do
all of the following:
(1) Assure that the thermal powerplant and related facilities will
not have a significant adverse effect on the environment as a result
of construction or operation.
(2) Assure protection of public health and safety.
(3) Result in compliance with all applicable federal, state, and
local laws, ordinances, and standards.
(4) A reasonable demonstration that the thermal powerplant and
related facilities, if licensed on the expedited schedule provided by
this section, will be in service before August 1, 2001
2002 .
(5) A binding and enforceable agreement with the commission, that
demonstrates either of the following:
(A) That the thermal powerplant will cease to operate and the
permit will terminate within three years.
(B) That the thermal powerplant will be recertified,
modified, replaced, or removed within a period of three years with a
cogeneration or combined-cycle thermal powerplant that
uses best available control technology and obtains necessary offsets,
as determined at the time the combined-cycle thermal powerplant is
constructed, and that complies with all other applicable laws,
ordinances, and standards.
(6) Where applicable, that the thermal powerplant will obtain
offsets or, where offsets are unavailable, pay an air emissions
mitigation fee to the air pollution control district or air quality
management district based upon the actual emissions from the thermal
powerplant, to the district for expenditure by the district pursuant
to Chapter 9 (commencing with Section 44275) of Part 5 of Division 26
of the Health and Safety Code, to mitigate the emissions from the
plant. To the extent consistent with federal law and regulation, any
offsets required pursuant to this paragraph shall be based upon a
1:1 ratio, unless, after consultation with the applicable air
pollution control district or air quality management district, the
commission finds that a different ratio should be required.
(7) Nothing in this section shall affect the ability of an
applicant that receives approval to install simple cycle thermal
powerplants and related facilities as an amendment to a pending
application to proceed with the original application for a combined
cycle thermal powerplant or related facilities.
(f) This section shall remain in effect only until January 1,
2003, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2003, deletes or extends
that date except that the binding commitments in paragraph (5) of
subdivision (e) shall remain in effect after that date.
SEC. 11. Notwithstanding Section 17610 of the Government Code, 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. 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.
SEC. 12. 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 address the rapid, unforeseen shortage of electric
supply and energy available in the state, which endangers the health,
welfare, and safety of the people of this state, it is necessary for
this act to take effect immediately.