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AB-281 Transmission and distribution lines: undergrounding and fire hardening: CEQA: administrative and judicial streamlining.(2019-2020)

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Date Published: 03/21/2019 09:00 PM
AB281:v98#DOCUMENT

Amended  IN  Assembly  March 21, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill No. 281

Introduced by Assembly Member Frazier

January 28, 2019

An act to add Section 21168.6.13 to the Public Resources Code, and to add Section 8390 761.2 to the Public Utilities Code, relating to electricity.


LEGISLATIVE COUNSEL'S DIGEST


AB 281, as amended, Frazier. Transmission and distribution lines: undergrounding. undergrounding and fire hardening: CEQA: administrative and judicial streamlining.

Existing law requires electrical corporations and local publicly owned electric utilities to construct, maintain, and operate their electrical lines and equipment in a manner that will minimize the risk of catastrophic wildfire posed by those electrical lines and equipment. Existing law requires electrical corporation and local publicly owned electric utilities to prepare annually a wildfire mitigation plan.

This bill would state the intent of the Legislature to enact legislation to require electrical corporations and local publicly owned electric utilities to take certain actions related to electric transmission and distribution lines and equipment in high fire risk areas.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA.
This bill would establish procedures for the administrative and judicial review of the environmental review and approvals granted for fire hardening projects, as defined, located in high fire threat districts, as determined by the Public Utilities Commission. Because a public agency would be required to comply with those new procedures, this bill would impose a state-mandated local program. The bill would require the Judicial Council to adopt rules of court applicable to a CEQA challenge to a fire hardening project approval that would require the challenge, including any appeals therefrom, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court.
Under existing law, the Public Utilities Commission has jurisdiction over public utilities, including electrical corporations. Under its existing authority, the commission requires electrical corporations to implement the California Overhead Conversion Program to provide financial assistance to local governments to facilitate projects that are in the public interest and that remove overhead infrastructure, replacing it with infrastructure in underground trenches.
This bill would require the commission to require electrical corporations to develop and administer programs to replace overhead electric facilities along public streets and roads, and on other public or private properties in high fire threat districts, as determined by the commission, with underground electric facilities.
Under existing law, a violation of the Public Utilities Act or any rule, order, decision, or direction of the commission is a crime.
Because certain of the above provisions would be in the act, a violation of an order by the commission implementing the above provisions would be a crime, and therefore this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for specified reasons.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

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


SECTION 1.

 The Legislature finds and declares the following:
(a) It is the consensus of the scientific community that global warming is contributing to changing climate conditions within the State of California, specifically the presence of drier and hotter conditions that are favorable to the start, spread, and longevity of destructive wildfires.
(b) These changing climate conditions are a departure from California’s historical climate norms, creating additional hazards that are difficult to predict and worsening the fire risks inherent to the state.
(c) The dramatic increase in fire risk is embodied by the horrific costs of the 2017 fire season, when nearly 9,000 wildfires burned 1.2 million acres of land, destroying 11,000 structures and killing at least 47 people.
(d) The increase increasing peril facing California is further exemplified by the terrible damage wrought during the 2018 fire season, when more than 8,500 wildfires burned 1.9 million acres of land, destroying more than 20,000 structures and killing at least 104 people.
(e) The loss of lives is inexcusable and demands a response to limit the growing risks of wildfire to the lives of Californians.
(f) The enormous fiscal costs and risks associated with wildfires are imperiling the future of California’s citizens by threatening unsustainable financial burdens for ratepayers and taxpayers.
SEC. 2.Section 8390 is added to the Public Utilities Code, to read:
8390.

It is the intent of the Legislature to enact legislation to do all of the following:

(a)Require electrical corporations and local publicly owned electric utilities to relocate electric transmission and distribution lines and equipment outside of high fire risk areas, if feasible.

(b)Require electrical corporations and local publicly owned electric utilities, for overhead electric transmission and distribution lines and equipment as to which the requirement of subdivision (a) is not feasible, to relocate those lines and that equipment underground.

(c)Require electrical corporations and local publicly owned electric utilities, for electric transmission and distribution lines and equipment as to which the requirements of subdivisions (a) and (b) are not feasible, to make improvements to those lines and that equipment to prevent, and minimize the risk of, fire ignition events.

SEC. 2.

 Section 21168.6.13 is added to the Public Resources Code, to read:

21168.6.13.
 (a) For purposes of this section, the following definitions apply:
(1) “Environmental review document” means any of the following:
(A) A determination that a project is exempt from this division.
(B) A negative declaration or mitigated negative declaration.
(C) An environmental impact report.
(2) “Fire hardening project” means a project for the replacement or relocation of electric distribution or transmission lines in high fire threat districts, as determined by the Public Utilities Commission, to reduce the risk of wildfire posed by the electric distribution or transmission lines.
(b) On or before September 1, 2020, the Judicial Council shall adopt rules of court that apply to an action or proceeding to attack, review, set aside, void, or annul the certification or adoption of an environmental review document for a fire hardening project that meets the requirements of subdivision (c), or the granting of any approval for the fire hardening project, to require the action or proceeding, including any potential appeals therefrom, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court.
(c) (1) The draft environmental review document and final environmental review document for a fire hardening project shall include a notice in not less than 12-point type stating the following:
THIS ENVIRONMENTAL REVIEW DOCUMENT IS SUBJECT TO SECTION 21168.6.13 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE LEAD AGENCY NEED NOT CONSIDER CERTAIN COMMENTS FILED AFTER THE CLOSE OF THE PUBLIC COMMENT PERIOD, IF ANY, FOR THE DRAFT ENVIRONMENTAL REVIEW DOCUMENT. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OR ADOPTION OF THE ENVIRONMENTAL REVIEW DOCUMENT OR THE APPROVAL OF A PROJECT SUBJECT TO SECTION 21168.6.13 OF THE PUBLIC RESOURCES CODE IS SUBJECT TO THE PROCEDURES SET FORTH IN THAT SECTION. A COPY OF SECTION 21168.6.13 OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS ENVIRONMENTAL REVIEW DOCUMENT.
(2) The draft environmental review document and final environmental review document shall contain, as an appendix, the full text of this section.
(3) Within 10 days after the release of the draft environmental review document, if any, the lead agency shall conduct an informational workshop to inform the public of the key analyses and conclusions of that document.
(4) Within 10 days before the close of the public comment period, the lead agency shall hold a public hearing to receive testimony on the draft environmental review document. A transcript of the hearing shall be included as an appendix to the final environmental review document.
(5) (A) Within five days following the close of the public comment period, a commenter on the draft environmental review document may submit to the lead agency a written request for nonbinding mediation. The lead agency and applicant shall participate in nonbinding mediation with all commenters who submitted timely comments on the draft environmental review document and who requested the mediation. Mediation conducted pursuant to this paragraph shall end no later than 35 days after the close of the public comment period.
(B) A request for mediation shall identify all areas of dispute raised in the comment submitted by the commenter that are to be mediated.
(C) The lead agency shall select one or more mediators who shall be retired judges or recognized experts with at least five years’ experience in land use and environmental law or science, or mediation. The applicant shall bear the costs of mediation.
(D) A mediation session shall be conducted on each area of dispute with the parties requesting mediation on that area of dispute.
(E) The lead agency shall adopt, as a condition of approval, any measures agreed upon by the lead agency, the applicant, and any commenter who requested mediation. A commenter who agrees to a measure pursuant to this subparagraph shall not raise the issue addressed by that measure as a basis for an action or proceeding challenging the lead agency’s decision to certify or to adopt the environmental review document or to grant project approval.
(6) The lead agency need not consider written comments submitted after the close of the public comment period, unless those comments address any of the following:
(A) New issues raised in the response to comments by the lead agency.
(B) New information released by the public agency subsequent to the release of the draft environmental review document, such as new information set forth or embodied in a staff report, proposed permit, proposed resolution, ordinance, or similar document.
(C) Changes made to the project after the close of the public comment period.
(D) Proposed conditions for approval, mitigation measures, or proposed findings required by Section 21081 or a proposed reporting and monitoring program required by paragraph (1) of subdivision (a) of Section 21081.6, if the lead agency releases those documents subsequent to the release of the draft environmental review document.
(E) New information that was not reasonably known and could not have been reasonably known during the public comment period.
(7) The lead agency shall file the notice required by subdivision (a) of Section 21152 within five days after the last initial project approval.
(d) (1) The lead agency shall prepare and certify the record of the proceedings in accordance with this subdivision and in accordance with Rule 3.2205 of the California Rules of Court. The applicant shall pay the lead agency for all costs of preparing and certifying the record of proceedings.
(2) No later than three business days following the date of the release of the draft environmental review document, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental review document and all other documents submitted to or relied on by the lead agency in the preparation of the draft environmental review document. A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental review document that is a part of the record of the proceedings shall be made available to the public in a readily accessible electronic format within five business days after the document is prepared or received by the lead agency.
(3) Notwithstanding paragraph (2), documents submitted to or relied on by the lead agency that were not prepared specifically for the project and are copyright protected are not required to be made readily accessible in an electronic format. For those copyright protected documents, the lead agency shall make an index of the documents available in an electronic format no later than the date of the release of the draft environmental review document, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental review document. The index shall specify the libraries or lead agency offices in which hardcopies of the copyrighted materials are available for public review.
(4) The lead agency shall encourage written comments on the project to be submitted in a readily accessible electronic format, and shall make those comments available to the public in a readily accessible electronic format within five days of their receipt.
(5) Within seven business days after the receipt of any comment that is not in an electronic format, the lead agency shall convert that comment into a readily accessible electronic format and make it available to the public in that format.
(6) The lead agency shall indicate in the record of the proceedings comments received that were not considered by the lead agency pursuant to paragraph (6) of subdivision (c) and need not include the content of the comments as a part of the record.
(7) Within five days after the filing of the notice required by subdivision (a) or (b) of Section 21108 or subdivision (a) or (b) of Section 21152, the lead agency shall certify the record of the proceedings for the approval or determination and shall provide an electronic copy of the record to a party that has submitted a written request for a copy. The lead agency may charge and collect a reasonable fee from a party requesting a copy of the record for the electronic copy, which shall not exceed the reasonable cost of reproducing that copy.
(8) Within 10 days after being served with a complaint or a petition for a writ of mandate, the lead agency shall lodge a copy of the certified record of proceedings with the superior court.
(9) Any dispute over the content of the record of the proceedings shall be resolved by the superior court. Unless the superior court directs otherwise, a party disputing the content of the record shall file a motion to augment the record at the time it files its initial brief.
(10) The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.
(e) Subdivision (c) and paragraphs (2) and (3) of subdivision (d) do not apply to a determination that the project is exempt from this division.

SEC. 3.

 Section 761.2 is added to the Public Utilities Code, to read:

761.2.
 As a part of the Electric Rule 20 program, the commission, in a new or existing proceeding, shall require electrical corporations to develop and administer programs to replace overhead electric facilities along public streets and roads, and on other public or private properties in high fire threat districts, as determined by the commission, with underground electric facilities.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act or because costs that may be incurred by a local agency or school district will be incurred because 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 XIII B of the California Constitution.