SFPD Memo 01-02 Assembly Bill 972

November 30, 2001

Dear County and District Superintendents:

Assembly Bill (AB) 972 (Calderon), Chapter 965, Statutes of 2001, was approved by the Governor on October 13, 2001, and became effective as an urgency statute on October 14, 2001. This bill made several changes to the California Education Code sections 17210.1 and 17213.1. Along with some minor clarifications, these modifications primarily relate to school district and Department of Toxic Substances Control (DTSC) options for conducting public review and approvals of Preliminary Endangerment Assessments (PEA)s.

Except for those projects meeting the specified grand-fathering provisions, districts will now have an option 'A' for PEA public review for which there is no longer a mandated link with the school project's California Environmental Quality Act (CEQA) document; as well as an option 'B' that provides for a PEA review still linked with the project's CEQA document review, but modified from that previously utilized.

This memo should not be considered legal advice. Consultation with your legal counsel is always recommended. For questions regarding California Department of Education (CDE) related site or plan approval issues, please contact your assigned consultant from the School Facilities and Transportation Services Division (SFTSD). Visit the School Facilities Web page for a list of consultants by county and to review previous CDE memos which address DTSC and SFTSD procedures not amended by AB 972. Also visit the DTSC Web site to review DTSC Fact Sheets.

Sincerely,



Duwayne Brooks, Director
School Facilities Planning Division
Assistant Superintendent of Public Instruction

DB:mo

Attachments

Content of SFTSD Memo 01-02 on AB972

1. Notice to Residents Prior to Commencing Work on a Preliminary endangerment Assessment
   
   
2. Submittal of Proof that the District's Environmental Assessor Meets Qualifications
   
   
3. Options for Conducting PEA Public Review
   
   
4. Option A PEA Review - DeLinked From CEQA Review
   
   
5. Option B PEA Review - Revised Linkage with CEQA Review
   
   
6. PEA Approval/Disapproval
   
   
7. Response Actions and Compliance with DTSC Public Participation Requirements
   
   
8. Grand-fathering Provisions
   
   
9. Lead-Based Paint Focused PEA
   
   
10. Construction on Portions of Sites Not Affected by Response Action
    
    
11. Flow Charts and CDE Approval
    
    
12. DTSC Contacts
    
    

1) Notice to Residents Prior to Commencing Work on a Preliminary Endangerment Assessment

Education Code Section (ECS) 17210.1(b) was slightly amended to state that a school district shall provide a notice to residents in the immediate area prior to the commencement of work on a Preliminary Endangerment Assessment (PEA) utilizing a format developed by the Department of Toxic Substances Control (DTSC). Previously this section required the notice to be "approved in form " by DTSC. Districts can obtain from any of the DTSC offices a sample notice that can be used on district letterhead.

2) Submittal of Proof that the District's Environmental Assessor Meets Qualifications

ECS 17213.1(a)(2) was slightly amended to state that districts may submit a Phase I environmental assessment and proof that the environmental assessor meets the qualifications specified in subdivision (b) of Section 17210 to the California Department of Education (CDE). The assessment and the proof shall then be transmitted to DTSC within 10 calendar days of CDE's receipt for DTSC review and approval within 30 calendar days of their receipt of the assessment and the proof. Previously the code referred only to CDE transmitting to DTSC "sufficient information to allow DTSC to confirm that the environmental assessor signing the assessment meets the qualifications."

DTSC has indicated that "proof" of qualifications will typically consist of a stamp indicating the State of California registration/certification number, including expiration date, of the assessor signing the report (e.g., a class II environmental assessor registered by the Office of Environmental Health Hazard Assessment, professional engineer [restricted to "civil" engineer pursuant to the Business and Professions Code], geologist, certified engineering geologist, or licensed hazardous substance contractor). To show proof of the minimum required experience , the assessor should include a statement of their qualifications indicating at least two years experience preparing Phase I reports (for PEAs, the minimum is three years of experience preparing PEAs ). For licensed hazardous substance contractors, a statement showing the minimum educational requirements should also be submitted (see ECS 17210(b)). If necessary, DTSC will contact the assessor regarding any questions on the proof of qualifications submitted.

3) Options for Conducting PEA Public Review

ECS 17213.1(a)(5), (6), and (7) have been amended to remove prior code references to a "preliminary draft," "final draft," or "final" PEA. Section (6) has been significantly revised to now describe two options for conducting public review of PEAs. Option 'A' ( 17213.1(a)(6) subparagraph A ) provides for PEA review that is no longer mandated to be linked with the California Environmental Quality Act (CEQA) document review for the school project. Option 'B' (17213.1(a)(6) subparagraph B ) now describes a PEA public review that is still linked with the school project's CEQA document, but with some changes to help simplify district compliance.

4) Option A PEA Review - DeLinked From CEQA Review

Submittal of PEA to DTSC and Public Notice for Public Review

The revised ECS 17213.1(a)(6) now states that at the same time the district submits a PEA to DTSC, the district shall publish a notice in a local newspaper of general circulation and post the notice in a prominent manner at the proposed school site. Although the code is silent on the issue, it may be reasonably assumed that this newspaper notice requirement can be met with only one publication. So that DTSC will know to consider their review pursuant to Option A timelines, the district should either provide a copy of the public notice to DTSC along with the PEA, or otherwise advise DTSC that the district has chosen Option A.

Notice Content & Public Hearing

Per the new Option A requirements, the above required notice shall state the district's determination to make the PEA available for public review and comment pursuant to subparagraph A 17213.1(a)(6) ( i.e., Option A ). Option A provides that the district shall offer to receive written comments for at least 30 calendar days after the assessment is submitted to DTSC, commencing on the date the notice is originally published, and shall hold a public hearing to receive further comments.

The code also states the notice of the public hearing shall include date and location of the hearing, the location where the public may review the PEA and changes requested by DTSC of the PEA, if any, and any correspondence between the district and DTSC that relates to the PEA.

It would be reasonable to assume that the notice should specify the starting and ending dates of the public review period and the date and location of the public hearing. Option A is silent on when the PEA public hearing should occur. Thus, the district would seem to have the ability to conduct the hearing anytime during or even after the noticed comment period. However, because of another Option A requirement that the district shall make the PEA available to the public through the time of the public hearing, it would seem reasonable that the hearing would be held at the very end of or immediately after the comment period. In addition, it would seem prudent that the public be given a reasonable amount of time between the publication/posting of the notice of hearing and the actual hearing, and that all PEA documents should still be made available to the public even after the hearing.

Documents Made Available For Public Review

Per Option A, the district shall make all of the following documents available to the public upon request through the time of the public hearing: (i) the PEA, (ii) the changes requested by DTSC for the PEA, if any, and (iii) any correspondence between the district and DTSC that relates to the PEA. In addition, if the PEA is revised or altered following the public hearing, the district shall make those revisions or changes available to the public.

It would seem reasonable that any PEA changes, not just those requested by DTSC or those made to the PEA after the public hearing, should also be made available to the public. It would be typical for districts to keep these documents at a public location and available for review during normal business hours.

District Transmits Comments Received to DTSC

Per Option A, the district shall transmit a copy of all public comments received by the district on the PEA to DTSC. Previously, comments on the districts draft CEQA document would also be sent to DTSC, but this has been eliminated in the new code provisions. It would seem clear that all written comments received by the district during the public review period and at the district's public hearing would be sent to DTSC. It may also be reasonable to assume that since the code specifies all comments, that any verbal comments made at the public hearing may also need to be transmitted to DTSC, probably as written minutes from the hearing. In order to allow DTSC sufficient time to review any comments after the close of the public review period, all comments should be sent to DTSC as soon as possible. DTSC prefers that these comments be sent all at once rather than incrementally. (Also see discussion in section E below on when comments are transmitted to DTSC and possible effects on DTSC's response.) In addition, since any changes made to the PEA after the public hearing are required by Option A to be made available to the public, the district could also receive comments on these post hearing changes and then be required to transmit them to DTSC.

DTSC Informs District if Likely to Disapprove PEA Prior to Receipt of Comments

Per the new Option A, if DTSC determines that it is likely to disapprove the assessment prior to its receipt of public comments, it shall inform the district of that determination and of any action that the district is required to take for DTSC to approve the assessment. While the code is silent on when the district shall transmit to DTSC the written public comments received (Option B and the previous code stated " transmit comments immediately "), it may be reasonable to assume that the district should wait until the close of the public review period ( and after the public hearing if held at the end of or immediately after the review period ) before transmitting all of the documents to DTSC. If the district were to incrementally send comments as they are received to DTSC, this would appear to shorten the period that DTSC has to determine that it is "likely to disapprove" the PEA "prior" to its receipt of the comments. However, it would also seem reasonable that even after receipt of comments as transmitted by the district, DTSC could still notify the district that it is likely to disapprove the PEA and/or request modifications.

Although not mentioned in Option A, notification of a determination that DTSC is likely to disapprove the PEA would seem to suggest that the district could either take actions necessary to prepare and submit a revised PEA to DTSC, or elect not to pursue the project. If the district makes revisions to the PEA prior to its hearing, the new Option A does not state that a new or longer public comment period is required on the revised PEA. However, if the district at this point elects not to pursue the project, the new Option A appears to still require the district to conduct a public hearing on the PEA, although the code does not require an additional public comment period or hearing if the district submits changes to the PEA to DTSC after its public hearing.

Option A does not require DTSC to provide comment on the submitted PEA unless it is likely to disapprove the PEA. However, DTSC will typically comment and/or request modifications to the submitted PEA, regardless of whether they are likely to disapprove or approve the PEA. DTSC may provide these comments/requests for modifications before or after receipt of comments as transmitted by the district. It can then be assumed that the district can prepare and submit these revisions either before or after the comment period or public hearing, or elect to not pursue the project.

DTSC Review/Approval of PEA

Under the new Option A, DTSC shall review the PEA and public comments received and shall either approve or disapprove the PEA within 30 calendar days of the close of the public review period by the district. Previously the code stated DTSC shall approve/disapprove the PEA within 30 days of the district's " approval action on the CEQA document ," but the new Option A is silent on the district's CEQA actions. Thus it appears the district may conduct a separate noticed public comment period and public hearing on its draft CEQA document, take an approval action on its CEQA document, approve the project, and file a Notice of Determination with the County Clerk and State Clearinghouse without linkage to the PEA review or approval timeframe. The district could choose Option A PEA review for a project for which the CEQA process has either previously been completed, is being completed concurrently with (although not necessarily linked with) the PEA review, or is completed after the PEA approval.

Although not specified under Option A or B, if the district has already completed its CEQA process on the project prior to completing the PEA review/approval, it would appear that Option A would be the logical review procedure to follow. However, the new code does not appear to prohibit using the Option B linked CEQA review for projects for which CEQA has already been completed. It would seem reasonable that the district should consider the information contained in the PEA (even before DTSC approval) and then decide on whether an additional CEQA course of action on the project is required under either Option A or B. If necessary, the district could then prepare the appropriate "subsequent," "supplemental" or "addendum" documents to the previously adopted CEQA negative declaration or EIR and circulate if necessary. ( Refer to CEQA Guidelines sections 15073.5, 15088.5 for pre-CEQA approval and sections 15162, 15163 and 15164 for post-CEQA approval). Although unlikely, if DTSC were to disapprove the PEA after the district had approved its CEQA document and the project, the district may wish to consider rescinding the approval and if a subsequent or supplemental CEQA document and circulation is necessary.

It would also seem reasonable that the district should notify DTSC of the close of its PEA public review period as soon as possible so that DTSC will be aware that the 30-day clock for their review has started. ( See section 6 below regarding DTSC approval/disapproval of PEAs ).

5) Option B PEA Review - Revised Linkage with CEQA Document

Submittal of PEA to DTSC and Public Notice for Public Review at the Same Time

Per ECS 17213.1(a)(6), at the same time the district submits a PEA to DTSC, the district shall publish a notice in a local newspaper of general circulation, and post the notice in a prominent manner at the proposed school site. Although the code is silent on the issue, it may be reasonably assumed that the newspaper notice requirement can be met with only one publication and that this notice should also be provided to DTSC with the PEA so DTSC will know to consider their review pursuant to Option B timelines.

Notice Content & Public Hearing

Per the same ECS, the notice shall state the district's determination to make the PEA available for public review and comment pursuant to subparagraph B (Option B) of Section 17213.1(a)(6) ( i.e., on the same time and basis as the project's CEQA document is made available for public review ).

Unless the dates for public review and hearing of the CEQA document are known at the time of this initial notice, it may be reasonable that this initial notice state that at some future point an additional notice will be provided with that information.

Initial DTSC Concurrence of PEA Adequacy

Option B states that DTSC shall complete its review of the PEA within 60 calendar days of receipt and shall either return the PEA to the district with comments and requested modifications or concur with the adequacy of the PEA, pending its review of public comment. It is assumed that if DTSC requests modifications that the district may choose to prepare and submit the modifications to DTSC in order to obtain concurrence of adequacy or elect to not pursue the project. If the district submits requested PEA modifications, there is no timeframe requirement for DTSC to further respond or concur with adequacy.

Availability of PEA and Draft CEQA Document

Under Option B, if DTSC concurs with the adequacy of the PEA, and the district proposes to proceed with the site acquisition or construction project, the district shall make the PEA available to the public on the same basis and time it makes available the draft environmental impact report (EIR) or negative declaration for the site, pursuant to CEQA.

Although silent on details, the Option B requirements might reasonably be interpreted to mean the district would normally provide one notice for both the PEA and the draft CEQA document public review period that would be simultaneous with the circulation of the draft CEQA document through the State Clearinghouse (SCH). Unless a SCH shortened review period is granted, the public and state agency review period would normally be 30 days for a negative declaration and 45 days for a draft Environmental Impact Report (EIR) (see Public Resource Code Section 21091 and CEQA Guidelines 15105 ).

CEQA provides options for noticing the intent to adopt a draft CEQA document to allow public and responsible agency comment, by at least one of the following: 1) publication at least once in a newspaper of general circulation in the area affected by the proposed project, 2) posting of notice on and off site in the area where the project is to be located, or 3) direct mailing to owners and occupants of contiguous property to the site. In addition, CEQA requires this Notice to be filed with the County Clerk and the State Clearinghouse and to be sent to those who have previously requested notice (see Public Resource Code sections 21092 and 21092.3 and Guidelines 15072 and 15073).

The new Option B provision also retains a procedure described in the prior code, i.e., if the draft CEQA document will not be made available until more than 90 days after the PEA is approved (assume approval means DTSC concurrence of adequacy), the district shall within 60 days (assume calendar days) of DTSC approval (assume concurrence of adequacy) of the PEA, separately publish a notice of availability of the PEA for public review in a local newspaper of general circulation. The code does not specify how long the PEA should be made available in this case. This notice would appear to be in addition to the eventual public notice for the simultaneous PEA and the draft CEQA document public review and hearing. If PEA public comments are received during this period, it would appear reasonable that these also should be sent to DTSC.

Public Hearing on the PEA and Draft CEQA Document

Per Option B, the district shall hold a public hearing on the PEA and the draft CEQA document at the same time, pursuant to CEQA. Although CEQA does not require a public hearing on draft CEQA documents, this provision would seem to require a simultaneous hearing on the PEA and draft CEQA document. CEQA provisions also require that the notice of intent to adopt a CEQA document allowing public comment shall also contain the date and location of any known public hearings on the project.

While the Option B is silent on this issue, it would appear that immediately or any time after the district's CEQA approval action, the district may then approve the school project and file its Notice of Determination (NOD) with the County Clerk and SCH within five working days of the project approval (see CEQA Guidelines 15094 ). Under the previous code provisions the district would have been hesitant to approve the project at the same hearing because the code prohibited the district from filing a NOD on its approval action until after receiving final PEA approval from DTSC. Under Option B, this restriction is now removed.

Under previous code provisions now removed by AB972, if the District had completed its CEQA process prior to starting the PEA, the district was required to reconsider the adequacy of its prior CEQA approval action in light of the PEA, in the same time and manner as if it were a draft CEQA document. Although not described in the new code provision, it appears that if the district has already completed CEQA prior to the PEA, it may decide that, based upon the PEA or DTSC comments, a subsequent or supplemental CEQA document is necessary. In this case the district could, if required, conduct this additional CEQA document review and approval on the same time and basis with the PEA. The district may wish to obtain DTSC approval of the PEA prior to approving the project. Although unlikely, if DTSC were to disapprove the PEA after the district had approved its CEQA document and the project, the district may then need to rescind that approval and consider if a subsequent or supplemental CEQA document and circulation is necessary.

30 Day DTSC Review of Comments and PEA Approval/Disapproval

Under Option B, all public comments pertaining to the PEA shall be forwarded by the district to DTSC immediately. DTSC shall review the public comments forwarded and shall approve or disapprove the PEA within 30 ( assume calendar ) days of the district's approval action of the EIR or negative declaration. Although not specified in code, the district may want to notify DTSC as soon as possible after their CEQA approval action so that DTSC is aware that the 30-day clock has started. It may also be reasonable to interpret that "immediately" means that as comments are received by the district they should be sent to DTSC as soon as possible rather than waiting until the end of the review period. In addition, if there are any verbal comments at the public hearing, minutes of these comments should also be sent to DTSC.

6) PEA Approval/Disapproval

Per ECS 17213.1(a)(8), if DTSC disapproves the PEA (within 30 days of close of public review under Option A and within 30 days of district's CEQA approval under Option B), DTSC shall inform the district of actions necessary to secure approval. The district shall then take actions necessary to secure PEA approval (i.e., prepare and submit modifications/further investigation) or elect not to pursue the project. At this point in the process, there is no time frame requirement for DTSC to respond to PEA modifications submitted or approve the PEA based upon these modifications.

DTSC has indicated that they may provide comments during this review period that may require only non-substantive modifications of the PEA document. DTSC may approve the PEA with the requirement that these modifications are to be added to the document after their approval.

Per ECS 17213.1(a)(9), if DTSC approves the PEA with "No Further Action/Investigation" required, DTSC shall notify the district and CDE, and the district may proceed to seek CDE's final site/plan approvals, which also require completion of the project's CEQA process.

If the PEA requires a Response Action/Further Investigation , DTSC has indicated under Option B after DTSC concurs with PEA adequacy, that under their oversight, some or all of the required Public Participation Plan activities (see ECS 17213.1(a)(7) and section 7 below) could be conducted in coordination with the PEA and CEQA reviews and hearings. The district could also choose to complete the PEA process before completing the Response Action requirements (i.e., completing cost/benefit studies per ECS 17213.1(a)(10), obtaining CDE's Contingent Site Approval, and completing CEQA on the response action). Normally the district may seek CDE final site/plan approvals after DTSC certifies the Response Action is complete and the project's CEQA process is complete. If necessary, the district may acquire the site and/or obtain a CDE final site/plan approval if DTSC concurs that the project construction is necessary to implement the Response Action (e.g., gas venting system). DTSC will also notify the Division of State Architect if there are any facility design conditions necessary to protect the integrity of the Response Action.

7) Response Actions and Compliance With DTSC Public Participation Requirements

Revised ECS 17213.1(a)(7) also slightly modified prior code language. The new code essentially states the same requirement that the district shall comply with public participation requirements of sections 25358.7 and 25358.7.1 of the Health and Safety Code and other applicable provisions of the state act with respect to those response actions only if further response actions beyond a PEA are required and the district determines that it will proceed with the acquisition or construction project. DTSC has indicated that it is possible that under their oversight, some or all of the Response Action Public Participation Plan activities could be conducted in coordination with the PEA and CEQA reviews and hearings, if any. The district could also choose to complete the PEA process before completing the Response Action requirements (i.e., completing cost/benefit studies per ECS 17213.1(a)(10), obtaining CDE's Contingent Site Approval, and completing CEQA on the response action).

8) Grand-fathering Provisions

ECS 17213.1(d) also now states that changes made to this ECS by this act do not apply to a school site acquisition project or a school construction project, if either the following occurred on or before the effective date of the act amending this ECS: (1) the final PEA for the project was approved by DTSC pursuant to this ECS as this ECS read on the date of the approval; or (2) the school district seeking state funding for the project completed a public hearing for the project pursuant to this ECS as this ECS read on the date of the hearing. The effective date of AB 972 is October 14, 2001.

Thus it would appear that for draft PEAs already submitted to DTSC after September 14, 2000 (effective date of the old code provisions under AB 2644) for which no school district public hearing for the project pursuant to the code in effect at that time has been held or DTSC final PEA approval has been given, the district would need to initiate new review timeframes and notification procedures as described either in Option A or B. Districts in these situations should contact DTSC to coordinate review and approval.

9) Lead-Based Paint Focused PEA

Although not discussed in AB 972, CDE and DTSC have by policy agreed that if DTSC determines that a focused PEA is required due to lead-based paint being the only potential issue on a site, the district may seek CDE final site and/or plan approvals once the district has applied for an agreement with DTSC to conduct the lead investigation.

10) Construction on Portions of Sites Not Affected By Response Actions

Although not affected by AB 972, pursuant to ECS 17213.2(f) DTSC has indicated that construction may proceed on portions of a site, if DTSC determines: 1) that those portions have been fully characterized and are not affected by the contaminated portions where a Response Action is required; 2) site conditions will not pose a significant threat to the health and safety of construction workers; and 3) that construction will not interfere with the Response Action. In addition, a district may not occupy a school building until DTSC certifies that the Response Action has been completed.

11) Flow Charts and CDE Approval

Three flow charts are attached to help understand the changes of AB 972. One chart shows the overall DTSC process needed for CDE final site approval from Phase I to PEA to Response Action (PDF) (accessible version of CDE Site Approval - DTSC Review Process). The remaining two charts summarize only the more detailed PEA/CEQA review process under AB 972 Option A (DOC) (accessible version of Option A) and Option B (DOC) (accessible version of Option B). Note that these charts contain program interpretations and suggestions that may not be in code. Normally, final CDE approvals will be given only after a DTSC approves a Phase I with a "No Action" determination, or after DTSC has given final approval of a PEA with a "No Further Action" determination, or after DTSC certifies that a Response Action has been completed.

12) DTSC Contacts

See DTSC Fact Sheets on AB 972 and other related topics. For further information contact the following DTSC offices:

Jose Salcedo, Chief
School Evaluation and Brownfields Outreach
Sacramento Office
8800 Cal Center Drive
Sacramento, CA 95826
916-255-3732
jose.salcedo@dtsc.ca.gov

Shahir Haddad, Chief
Schools Unit - Office Cypress
Brownfields & Environmental Restoration Program
5796 Corporate Avenue
Cypress, CA 90630
714-484-5368
shahir.haddad@dtsc.ca.gov