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AB-34 State Energy Resources Conservation and Development Commission: audit.(2001-2002)

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AB34:v98#DOCUMENT

Amended  IN  Assembly  March 13, 2001

CALIFORNIA LEGISLATURE— 2001–2002 1st Ext.

Assembly Bill
No. 34


Introduced  by  Assembly Member La Suer

February 06, 2001


An act to amend Sections 65922, 65928, 65930, and 65943.5 of the Government Code, to amend Section 42301.14 of the Health and Safety Code, and to amend Sections 21080, 25506, 25541.5, 25550, and 25552 of, and to add Sections 25135.5, 25214.5, 25513.5, and 25519.5 to, the Public Resources Code, relating to energy resources, and declaring the urgency thereof, to take effect immediately. An act relating to energy.


LEGISLATIVE COUNSEL'S DIGEST


AB 34, as amended, La Suer. Powerplant siting State Energy Resources Conservation and Development Commission: audit.
The existing Warren-Alquist State Energy Conservation and Development Act requires the State Energy Resources Conservation and Development Commission to certify all sites and related facilities for thermal powerplants in the state, whether a new site and related facility or a change or addition to an existing facility. Existing law requires any person proposing to construct a thermal powerplant site and related facilities to submit to the commission a notice of intention to file an application for certification and the application for certification of the thermal powerplant site and related facilities. The commission is required to prepare a final report and written decision after a public hearing on the application.
This bill would require the Technology, Trade, and Commerce Agency, and a panel of 6 members of the Legislature, to contract with an independent consulting firm that will submit to the Governor, the panel, the agency, and the Legislature on or before September 30, 2001, a process audit of the commission’s notice and certification procedures for approving the siting and construction of thermal powerplants.

(1)The Warren-Alquist State Energy Resources Conservation and Development Act authorizes the State Energy Resources Conservation and Development Commission, upon a declaration by the Governor or by an act of the Legislature that a threat to public health, safety, and welfare exists and requires immediate action, to determine that all reasonable conservation, allocation, and service restriction measures may not alleviate any energy supply emergency, and to authorize the construction and use of generating facilities under the terms and conditions as specified by the commission to protect the public interest.

This bill would make a legislative declaration that a threat to the public health, safety, and welfare exists that requires immediate action and that all reasonable conservation, allocation, and service restriction measures have not alleviated the energy supply emergency. The bill would require the commission to authorize the construction and use of generating facilities under the terms and conditions deemed necessary by the commission to protect the public interest.

This bill would require the Secretary of the Resources Agency, in consultation with the commission, to submit a report to the Legislature and the Governor assessing any legislative or regulatory limitations on the full utilization of existing powerplant capacity within the state, any limitation on increasing powerplant capacity at existing sites within the state, and any proposals for elimination or reduction of these limitations.

(2)Under the existing Permit Streamlining Act, a state or local agency and a public agency that is the lead agency for a development project are required to act upon an application for a development project within specified time periods prescribed by the act. The act provides that it does not apply to the activities of the commission. The act defines “development project” as meaning any project undertaken for the purpose of development, including a project involving the issuance of a permit for construction or reconstruction, but excludes a permit to operate. The act also defines the term “local agency” as any public agency other than a state agency.

The act requires an appeal of a decision by a public agency to be made to the Secretary for Environmental Protection, if the appeal involves a permit application to a board, office, or department within the California Environmental Protection Agency or if the appeal involves an environmental permit application that is determined not to be complete.

This bill would delete the exclusion of the activities of the commission from the act and would revise the definition of the term “development project” to include a permit to operate. The bill would also additionally include, as a local agency, a state agency for purposes of siting energy facilities and energy-related facilities identified in an emergency needs assessment.

The bill would require the Secretary for Environmental Protection to resolve any appeal involving a permit application to a board, office, or department within the California Environmental Protection Agency within 30 calendar days after the appeal is received by the secretary.

(3)Existing law authorizes air pollution control districts and air quality management districts to issue temporary, expedited consolidated permits for thermal powerplants, under specified conditions, until January 1, 2004.

This bill would extend that authority until January 1, 2006.

(4)The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare and certify an environmental impact report on a project that it intends to carry out or approve that may have a significant effect on the environment, as defined, or to adopt a negative declaration if it finds that the project will not have that effect either as proposed or as mitigated.

This bill would exempt from that act any repowering project, as defined. The bill would designate any condition proposed or recommended by a local, regional, or state agency, which, but for the exclusive jurisdiction of the commission would have permit authority of a thermal powerplant, to be conclusively presumed to mitigate all potential environmental impacts over which that agency normally would have authority or expertise.

(5)Existing law requires the commission to request the appropriate local, regional, state, and federal agencies to make comments and recommendations regarding the design, operation, and location of electric transmission lines and thermal powerplants that are designated in the notice of intention of an applicant to file an application for certification of any site and related facility.

This bill would require each local jurisdiction, as defined, responding to the request to file a preliminary list of issues regarding the design, operation, location, and financial impacts of the facility with the commission no later than 30 days after the filing of an application for certification and to provide a final list with the commission no later than 45 days after the filing of an application for certification. By imposing these requirements, the bill would impose a state-mandated local program. The bill would require the commission to be the final decisionmaker of any disagreement between the applicant and the local jurisdiction.

(6)Existing law prescribes the procedure for the approval of facility and site certification, including a final report to be prepared by the commission on the matter no later than 300 days after the filing of the notice of intention to file an application.

This bill would require that any decision of the commission that will delay, or have the potential to delay, the issuance of a final report by more than 15 calendar days be documented as such and transmitted to the Governor.

(7)Under existing law, the commission is required to conduct a public hearing on an application for a thermal powerplant or for electric transmission lines and to prepare a written decision that includes, among other things, provisions relating to the environmental impacts of the proposed project. CEQA provides that when the regulatory program of a state agency requires a plan or other written documentation containing environmental information to be submitted in support of certain activities, the plan or other written documentation may be submitted in lieu of an environmental impact report if the Secretary of the Resources Agency has previously certified the regulatory program as essentially imposing the same requirements as those imposed by CEQA. Pursuant to these provisions, the secretary certified the regulatory program of the commission. Existing law requires the secretary to review that regulatory program by January 1, 2001, and determine whether to continue the certification.

This bill would nullify that certification effective January 1, 2002, and would instead require the commission to comply with the environmental impact report requirements of CEQA when reviewing the environmental impacts of a proposed thermal powerplant or electric transmission line project. The bill would also require the commission to encourage public comment on the environmental review of, and to incorporate those comments into, the commission’s review of those proposed projects.

(8)Existing law requires the commission to establish a process for the expedited review of applications to construct and operate powerplants and thermal powerplants and related facilities. These provisions are repealed as of January 1, 2004.

This bill would extend this requirement to repowering projects, as defined, and extend the operation of this requirement until January 1, 2006. (9)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.

(10)The bill would declare that it is to take effect immediately as an urgency statute.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

(a)The Legislature finds and declares that all

SECTION 1.

 The Legislature finds and declares that all reasonable conservation, allocation, and service restriction measures have not alleviated the current energy supply emergency and that a generation capacity shortfall exists and may exist for several years.

SEC. 2.

 (a) On or before 90 days after the effective date of the act adding this section, the Technology, Trade, and Commerce Agency, in consultation with a panel of six Members of the Legislature, selected by the leadership of each house, to be evenly divided between the majority party and the minority party, or designees of those six members, shall contract with an independent consulting firm to conduct a process audit of the State Energy Resources Conservation and Development Commission’s notice and certification procedures, as defined by subdivision (d).
(b) The process audit shall evaluate, at a minimum, all of the following:
(1) A comparison of the time limits for completing the notice and certification procedures under Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code with the time limits that would be required under the Permit Streamlining Act (Article 3 (commencing with Section 65940) of Chapter 4.5 of Division 1 of Title 7 of the Government Code).
(2) The appropriateness of the procedure and time limits for the issuance of a written decision on the notice of intention pursuant to subdivision (a) of Section 25516.6 of the Public Resources Code.
(3) The appropriateness of the procedure and time limits for response to the application for certification pursuant to Sections 25519 to 25523, inclusive, of the Public Resources Code.
(4) The appropriateness of the procedure and time limits for the determination of the completeness of the notice of intention, including the finding of sufficient data, pursuant to subdivision (b) of Section 25516.6 of the Public Resources Code.
(5) The availability of dispute resolution mechanisms and administrative and other civil remedies.
(6) The appropriateness and timeliness of an independent review of the proposed thermal powerplant and related facilities by the commission pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code), which may be in addition to the notice and certification procedures.
(7) The purpose, applicability, and benefit, if any, of the adjudicated hearing process pursuant to Section 25513 of the Public Resources Code.
(8) The applicability and appropriateness of the concurrent processing of all permits and entitlements as contemplated by the Permit Streamlining Act (Article 3 (commencing with Section 65940) of Chapter 4.5 of Division 1 of Title 7 of the Government Code) compared to the notice and certification procedures in Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code in existence on the effective date of the act adding this section.
(9) The viability of the application of the expedited permitting process pursuant to Chapter 6.5 (commencing with Section 25550) of Division 15 of the Public Resources Code to a repowering project and mechanisms to apply that process to a repowering project.
(10) The appropriateness of continuing the policy of certifying the regulatory program established by the State Energy Resources Conservation and Development Commission for powerplant siting and certification as the functional equivalent of an environmental impact report pursuant to CEQA.
(11) The average length of time required for completion of the notice and certification procedures and the average total length of time required for development of a powerplant, from proposal to completion of construction.
(c) On or before September 30, 2001, the independent consulting firm shall submit the process audit to the Governor, the panel, the agency, and the Legislature. The independent consulting firm may also submit to the Legislature recommendations for appropriate legislation concerning those notice and certification procedures.
(d) For purposes of this section, “notice and certification procedures” means the procedures established for the notice of intention to file an application for certification, and the application for certification, of a thermal powerplant site and related facilities pursuant to Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code.

reasonable conservation, allocation, and service restriction measures have not alleviated the current energy supply emergency and that a threat to the public health, safety, and welfare exists that requires immediate action.

(b)In accordance with Section 25705 of the Public Resources Code, the State Energy Resources Conservation and Development Commission shall authorize the repowering and subsequent use of existing generating facilities under the terms and conditions deemed necessary by the commission to protect the public interest.

SEC. 2.

Not later than 30 days from the effective date of the act adding this section, the Secretary of the Resources Agency, in consultation with the State Energy Resources Conservation and Development Commission, shall submit a report to the Legislature and the Governor assessing all of the following:

(a)Any legislative or regulatory limitations on the full utilization of existing powerplant capacity within the state.

(b)Any proposal for the immediate, temporary, or permanent elimination or reduction of any limitations on the full utilization of existing powerplant capacity within the state.

(c)Any legislative or regulatory limitations that restrict increasing powerplant capacity at an existing site within the state.

(d)Any proposals for the immediate, temporary, or permanent elimination or reduction of any limitations on increasing powerplant capacity at an existing site within the state.

SEC. 3.Section 65922 of the Government Code is amended to read:
65922.

This chapter does not apply to administrative appeals within a state or local agency or to a state or local agency.

SEC. 4.Section 65928 of the Government Code is amended to read:
65928.

“Development project” means any project undertaken for the purpose of development. “Development project” includes a project involving the issuance of a permit for construction or reconstruction and includes a permit to operate. “Development project” does not include any ministerial projects proposed to be carried out or approved by public agencies.

SEC. 5.Section 65930 of the Government Code is amended to read:
65930.

“Local agency” means any public agency other than a state agency. For purposes of this chapter, a redevelopment agency is a local agency and is not a state agency. For purposes of this chapter, a local agency includes a state agency for purposes of siting energy facilities and energy-related facilities identified in an emergency needs assessment.

SEC. 6.Section 65943.5 of the Government Code is amended to read:
65943.5.

(a)Notwithstanding any other provision of this chapter, any appeal pursuant to subdivision (c) of Section 65943 involving a permit application to a board, office, or department within the California Environmental Protection Agency shall be made to the Secretary for Environmental Protection.

(b)Notwithstanding any other provision of this chapter, any appeal pursuant to subdivision (c) of Section 65943 involving an application for the issuance of an environmental permit from an environmental agency shall be made to the Secretary for Environmental Protection under either of the following circumstances:

(1)The environmental agency has not adopted an appeals process pursuant to subdivision (c) of Section 65943.

(2)The environmental agency declines to accept an appeal for a decision pursuant to subdivision (c) of Section 65943.

(c)The Secretary for Environmental Protection shall resolve any appeal made pursuant to this section within 30 calendar days after the appeal is received by the secretary.

(d)For purposes of subdivision (b), “environmental permit” has the same meaning as defined in Section 71012 of the Public Resources Code, and “environmental agency” has the same meaning as defined in Section 71011 of the Public Resources Code, except that “environmental agency” does not include the agencies described in subdivisions (c) and (i) of Section 71011 of the Public Resources Code.

SEC. 7.Section 42301.14 of the Health and Safety Code is amended to read:
42301.14.

(a)To the extent permitted by the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.), and notwithstanding Section 65950 of the Government Code, a district may issue a temporary, expedited, consolidated permit, as provided by Sections 42300.1 and 42301.3, for a powerplant within 60 days after the date of certification of an environmental impact report, within 30 days after the adoption of a negative declaration, or within 30 days after the date of a determination that the project is exempt from Division 13 (commencing with Section 21000) of the Public Resources Code, if all of the following conditions are met:

(1)The powerplant will emit less than 5 parts per million of oxides of nitrogen averaged over a three-hour period.

(2)The powerplant will operate exclusively under the terms of a contract entered into with the Independent System Operator and approved by the Electricity Oversight Board established pursuant to Article 2 (commencing with Section 334) of Chapter 2.3 of Part 1 of Division 1 of the Public Utilities Code.

(3)The owner or operator of the powerplant shall demonstrate that the powerplant, on average, will displace electrical generation that produces greater air emissions in the same air basin or in a basin that causes air pollution transport into that basin.

(4)The powerplant will be interconnected to the grid in a manner that the Public Utilities Commission, in consultation with the Electricity Oversight Board, has determined will allow the powerplant to provide service to a geographical area of the state that is urgently in need of generation in order to provide reliable electric service. However, nothing in this paragraph affects the authority of the Energy Resources Conservation and Development Commission over powerplants pursuant to Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code.

(5)The powerplant will be operated at a location that has the necessary fueling and electrical transmission and distribution infrastructure for its operation.

(6)The owner or operator of the powerplant enters into a binding and enforceable agreement with the district, and where applicable, with the State Energy Resources Conservation and Development Commission, which demonstrates either of the following:

(A)That the powerplant will cease to operate and the permit will terminate within three years.

(B)That the powerplant will be modified, replaced, or removed within a period of three years with a combined-cycle powerplant that uses best available control technology and offsets, as determined at the time the combined-cycle plant is permitted, and that complies with all other applicable laws and regulations.

(7)Where applicable, the owner or operator of the powerplant will obtain offsets prior to operation or, where offsets are unavailable, pay an air emissions mitigation fee to the district based upon the actual emissions from the powerplant for expenditure by the district pursuant to Chapter 9 (commencing with Section 44275) of Part 5, to mitigate the emissions from the plant.

(8)It is the intent of the Legislature in this section to encourage the expedited siting of cleaner generating units to address base load and peaking power needs. It is further the intent of the Legislature to require local air quality management districts and air pollution control districts to recognize the critical need for these facilities in exercising their discretionary authority to not apply more restrictive air quality regulations than would otherwise be required by law.

(b)This section may be utilized for the purpose of expediting the siting of electrical generating facilities pursuant to Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code.

(c)This section shall remain in effect only until January 1, 2006, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2006, deletes or extends that date.

SEC. 8.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)Any repowering project that the State Energy Resources Conservation and Development Commission has determined meets the definition of Section 25135.5.

(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. 9.Section 25135.5 is added to the Public Resources Code, to read:
25135.5.

(a)“Repowering project” means an application for certification of a thermal powerplant and related facilities that is filed on or after January 31, 2001, and that meets all of the following requirements, as determined by the commission:

(1)The project is located at the site of an existing thermal powerplant.

(2)The project would not require substantial new electric or natural gas transmission facilities.

(3)The project would not expand the powerplant beyond the boundaries of the existing powerplant and related facilities.

(4)The project would not significantly alter the vertical footprint of the existing facility.

(5)The project would not significantly increase the average use in time or quantity of natural gas, water, and other natural resources for the production of a kilowatt hour of electricity at the site compared to the existing thermal powerplant.

(b)“Repowering project” includes the scheduled conversion from a simple cycle to a combined cycle powerplant.

SEC. 10.Section 25214.5 is added to the Public Resources Code, to read:
25214.5.

(a)Notwithstanding any other provision of law, the commission shall conduct an environmental review in accordance with Section 21100 for all projects that are subject to Sections 25520 to 25523, inclusive, and Section 25530.

(b)Notwithstanding any other provision of law, as an element of the environmental review performed pursuant to subdivision (a), the commission shall solicit and encourage public comment, but shall not require any comment made by the public, staff, or applicant to be given under oath or to be subject to cross-examination.

(c)Any public comment received by the commission shall be incorporated into the environmental review required by Section 15202 of Title 14 of the California Code of Regulations.

SEC. 11.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 30 days after the filing of an application for certification and shall provide a final list with the commission no later than 45 days after the filing of an application for certification. The local jurisdiction shall clearly identify in the lists the nexus between the claimed impacts and the attributes of the project and shall provide evidence demonstrating that nexus. The commission shall be the final decisionmaker for any disagreement between the applicant and the local jurisdiction.

(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. 12.Section 25513.5 is added to the Public Resources Code, to read:
25513.5.

Any decision of the commission that will delay, or have the potential to delay, the issuance of a final report by more than 15 calendar days shall be documented as such and transmitted to the Governor.

SEC. 13.Section 25519.5 is added to the Public Resources Code, to read:
25519.5.

Notwithstanding any other provision of law, any condition proposed or recommended by a local, regional, or state agency, which, but for the commission’s jurisdiction under Section 25550 would have permit authority of a thermal powerplant, is conclusively presumed to mitigate all potential environmental impacts over which that agency normally would have authority or expertise.

SEC. 14.Section 25541.5 of the Public Resources Code is amended to read:
25541.5.

(a)On or before January 1, 2001, the Secretary of the Resources Agency shall review the regulatory program conducted pursuant to this chapter that was certified pursuant to subdivision (k) of Section 15251 of Title 14 of the California Code of Regulations, to determine whether the regulatory program meets the criteria specified in Section 21080.5. If the Secretary of the Resources Agency determines that the regulatory program meets those criteria, the secretary shall continue the certification of the regulatory program.

(b)If the Secretary of the Resources Agency continues the certification of the regulatory program, the commission shall amend the regulatory program from time to time, as necessary to permit the secretary to continue to certify the program.

(c)This section does not invalidate the certification of the regulatory program, as it existed on January 1, 2000, pending the review required by subdivision (a).

(d)Notwithstanding any other provision of this section, on the effective date of the act amending this section, any certificate issued pursuant to this section shall be deemed null and void. Any project for which environmental review has commenced under a regulatory program certified pursuant to this section that is commenced prior to the effective date of the act amending this section may be completed and shall not be subject to this subdivision.

SEC. 15.Section 25550 of the Public Resources Code is amended to read:
25550.

(a)Notwithstanding subdivision (a) of Section 25522, and Section 25540.6 the commission shall establish a process to issue its final certification for any thermal powerplant and related facilities within six months 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 and will comply with all applicable standards, ordinances, regulations, or statutes. Any repowering project, as defined in Section 25135.5 and categorically exempt from Division 13 (commencing with Section 21000) pursuant to paragraph (16) of subdivision (b) of Section 21080, shall be eligible for expedited certification under this section.

(b)Thermal powerplants 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 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 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, regulations, or statutes. 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, all local, regional, and state agencies that would have had jurisdiction over the proposed thermal powerplant and related facilities, but for the exclusive jurisdiction of the commission, shall provide their final comments, determinations, or opinions within 100 days after the filing of the application. The regional water quality control boards, 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)Thermal powerplants and related facilities that demonstrate superior environmental or efficiency performance shall receive priority in review.

(f)With respect to a thermal powerplant and related facilities reviewed under the process established by this chapter, it shall be shown that 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 plant.

(g)With respect to 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)This section shall remain in effect until January 1, 2006, and as of that date is repealed unless a later enacted statute, that is enacted before January 1, 2006, deletes or extends that date.

SEC. 16.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. Sec. 7401 et seq.), for an expedited decision on a repowering project and simple cycle thermal powerplants and related facilities that can be put into service on or before January 1, 2004, 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 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 days of determining that an application is complete, 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.

(d)The commission shall issue a decision granting a license to a repowering project or a simple cycle thermal powerplant and related facilities pursuant to this section if the commission finds all of the following:

(1)Either of the following:

(A)The repowering project 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.

(B)The simple cycle thermal powerplant is not a major stationary source or a modification to a major stationary source, as defined by the “Prevention of Significant Deterioration Regulations” implementing 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 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 January 1, 2006, 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 January 1, 2010.

(5)A binding and enforceable agreement with the commission, that demonstrates either of the following:

(A)That the simple cycle thermal powerplant will cease to operate and the permit will terminate within three years.

(B)That the simple cycle thermal powerplant will be modified, replaced, or removed within a period of three years with a 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 prior to operation 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 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, 2006, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2006, deletes or extends that date except that the binding commitments in paragraph (5) of subdivision (e) shall remain in effect after that date.

SEC. 17.

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. 18.

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 assess any limitation on the full utilization of existing powerplant capacity and to authorize the State Energy Resources Conservation and Development Commission to authorize the construction and use of repowered generating facilities as soon as possible, it is necessary that this act take effect immediately.