SFPD Memo 02-02 Assembly Bill 14

November 27, 2002

To: County and District Superintendents, Attention: Facility Directors and Chief Business Officials

From: Duwayne Brooks, Director, School Facilities Planning Division

Subject: Assembly Bill (AB) 14 and Other Recent Changes Related to the Toxic Review Process and the State Funding Program for School Projects

The following information is provided to update districts on new procedures and state funding program changes related to toxic evaluation and cleanup of school sites.

AB 14 was approved by the Governor on September 26, 2002, and will become effective January 1, 2003. Along with making numerous changes to other code sections and programs, this bill amended several Department of Toxic Substances Control (DTSC) and California Department of Education (CDE) procedures including the following:

Submittal of Phase I Reports and $1,500 Directly to DTSC

Under amended Education Code Section 17213.1 effective January 1, 2003 , if the Phase I Report concludes that further investigation is not required, districts seeking state facilities funding shall submit one copy of the signed Phase I, proof of assessor qualifications, and the review fee (check for $1,500 payable to DTSC) directly to DTSC .

Districts are required to send one copy of these Phase I reports (and any addenda) to CDE, but they may be submitted anytime prior to obtaining final CDE site or plan approval. Districts will no longer be required to send checks or two copies of the reports to CDE. It should be noted that the revised code mistakenly uses the term "renewal" fee instead of the correct term "review" fee.

Upon receipt of the above items, DTSC will have 30 calendar days to notify the district and CDE in writing that DTSC either: 1) concurs with the conclusion that further investigation is not required (no action), or 2) determines that the Phase I is incomplete and provide the basis for the decision and the actions necessary to secure DTSC approval, or 3) concludes that a Preliminary Endangerment Assessment (PEA) is needed and provides the basis for that decision.

DTSC has requested that all mail and in-person deliveries of Phase I Reports and Phase I review fee checks (currently $1,500) be sent to:

Ellen DelMar
Phase 1 and Agreement Coordinator
Brownfields & Environmental Restoration Program
Department of Toxic Substances Control
5796 Corporate Avenue
Cypress, CA 90630
714-484-5482
ellen.delmar@dtsc.ca.gov

All Phase 1 review fee checks (currently $1,500) be sent to:

Department of Toxic Substances Control
Accounting/Cashier
1001 I Street, 21st Floor
P.O. Box 806
Sacramento, CA 95812

Increase in the State Funding Cap for Response Actions

Under amended Education Code Section 17072.13, for sites for which DTSC has required a response action (cleanup), the State Allocation Board (SAB) may provide, in addition to the amounts provided under the new construction grant or site development and acquisition grant, funding for up to 50% of the total costs for evaluation and response action, as determined by DTSC. (These costs include the costs to prepare the cleanup plan, DTSC oversight costs, and the cost to implement the cleanup, excluding ongoing maintenance and operation.)

The amended code establishes a new, higher funding cap of 50% of one and one-half times the appraised value of the uncontaminated site. Under the new law, the SAB may exceed this maximum for projects that demonstrate circumstances of extreme need.

For financial hardship qualified districts, the SAB may provide funding up to 100% of the total evaluation and response action costs. The total state share of the site acquisition costs for financial hardship districts, including evaluation and response action, shall not exceed a new cap of 100% of one and one-half times the appraised value of the uncontaminated site. The SAB may exceed this maximum for projects that demonstrate circumstances of extreme need. The revised code also states that the SAB shall develop regulations that allow financial hardship district funding for evaluation and response action prior to ownership of the site or evidence that the site is in escrow.

The Office of Public School Construction (OPSC) is developing SAB regulations, which when adopted, will implement these and other related new provisions of AB14.

CDE "Best Available Site" Certification Criteria Specified for Financial Hardships

Per amended Education Code Section 17072.13, the SAB may provide funding to financial hardship districts up to 100% of the costs of the response action only if CDE certifies that the site is the best available site considering all of the following factors:

1. total costs of the project, including but not limited to costs of the response action; and
2. desirability of the site considering proximity to pupils and suitability for meeting educational and safety needs of the district; and
3. the time required to complete the project in relation to current and projected need for facilities.

CDE will provide the certification in the final site approval letter.

Preparation and Implementation of "Response Action" Instead of "Remedial Action Plan" for an Environmental Hardship

Education Code Section 17072.13 was revised to use the term "response action" instead of "remedial action plan" and specifies what is considered when qualifying for an environmental hardship, i.e., when DTSC estimates that the preparation and implementation of the required cleanup will take at least six months to complete and CDE certifies that the site is the best available alternative site. The use of the term response action means that both the more expensive and extensive "remedial action plans" (RAPs) as well as the less expensive "removal action workplans" (RAWs) will be considered when attempting to qualify for environmental hardship funding. The revised code also states that extensions to a site specific reservation of funds may be approved by the SAB upon demonstration to the SAB of progress towards acquisition, including but not limited to evaluation or response, as the case may be.

Use of New Construction Grant for Response Action at New or Existing School Sites

Amended Education Code Section 17072.35 specifies that a new construction grant may be used for evaluation and response action costs related to hazardous substances at a new or existing school site. In addition, revised Section 17072.18 states that the SAB may provide evaluation and response action funding at an existing school site in the same manner as provided in Section 17072.13, as long as the district has not applied for or received SAB new site acquisition funds and is otherwise eligible. The same Education Code Section specifies that a district may apply for this funding prior to having construction plans approved by the Division of State Architect (DSA) or CDE.

LEAD-BASED PAINT AND POLYCHLORINATED BIPHENYLS

DTSC Emergency Regulations

As of September 3, 2002, DTSC Emergency Regulations (California Code of Regulations Title 22, Division 4.5, Chapter 51.5) are in effect. These regulations primarily describe new procedures and options for evaluating sites for which the potential for lead-based paint and/or polychlorinated biphenyls (PBCs) from electrical transformers are, or may be, the only DTSC issues that need to be resolved.

These regulations state that districts may choose to submit limited lead-based paint and/or PCB soil sampling data with a Phase I Report, or they may submit samplings as part of a latter Phase I addendum. These samplings may be conducted before or after demolition of existing buildings, but prior to grading.

This means that the requirement for some PEAs, focused only on lead-based paint and/or PCBs, might be avoided. Where DTSC has previously determined the need for a lead-based paint and/or PCB focused PEA, the district may be able to now choose to prepare a Phase I Addendum instead. For sites in which a previous PEA determined that further investigation or a response action was required for only lead-based paint or PCBs, a Supplemental Site Investigation (SSI) should be completed, the outcome of which may allow DTSC to issue a "no further action" letter.

CDE Policy for Final Approvals for Sites Involving Lead-Based Paint and/or PCBs

In concert with the DTSC Emergency Regulations, CDE's policy is to provide final site or plan approval for projects that involve only lead-based paint and/or PCB issues as follows:

1. DTSC approves the Phase I and determines that no action is required; or
2. DTSC approves the Phase I and determines that further investigation is required for only lead-based paint and/or PCBs via a Phase I Addendum, and the district commits in writing to do such an addendum; or
3. DTSC determines that the Phase I is equivalent to a lead-based paint and/or PCB only PEA and the district commits in writing to conduct the PEA, or after further investigation DTSC determines that no action or no further action is required; or
4. DTSC determines that a PEA is required for only lead-based paint and/or PCBs, and the district commits in writing to conduct the PEA, or DTSC reviews further investigation and determines that no action or no further action is required; or
5. DTSC approves a PEA and determines that no further action is required; or
6. DTSC approves a PEA and requires a further action for only lead-based paint and/or PCBs, and the district commits in writing to conduct a response action, or after further investigation DTSC determines that no action or no further action is required; or
7. DTSC approves a response action cleanup plan for lead-based paint and/or PCBs and other hazardous substances.

See the attached flow chart (PDF) (accessible version) on DTSC determinations necessary for CDE final approval. For those projects that have prior DTSC determination requiring a PEA or a response action for only lead-based paint and/or PCBs, districts should contact DTSC to discuss how further lead-based paint and/or PCB investigation should be conducted.

SENTATE BILL (SB) 21 (ESCUTIA) - LEAD-CONTAINING BUILDING MATERIALS IN MODERNIZATION AND DEFERRED MAINTENANCE PROJECTS

SB 21 (Escutia), which added Education Code sections 17074.27 and 17074.30, was signed by the Governor and will require districts applying for state modernization funding after January 1, 2004, to certify that the district has considered the potential for lead-containing building materials in those projects and agrees to follow all relevant federal, state and local standards for the management of any identified lead. The code authorizes districts to use modernization apportionments for the control, management, or abatement of lead. Education Code Section 17584.2 was also added to require districts to address at a public hearing the use of deferred maintenance funds for the inspection, identification, sampling and analysis of building materials to determine the presence of lead and the control, management and removal of lead. Education Code Section 17582 was amended to authorize use of district deferred maintenance funds for such purposes.

CDE FINAL APPROVALS FOR SITES REQUIRING RESPONSE ACTIONS

The following clarifies when CDE may issue final site or plan approvals for sites that DTSC has determined require a response action. (See the attached flow chart (PDF) (accessible version) for entire CDE site approval - DTSC review process.)

CDE Final Approval at DTSC Approval of Clean Up Plan

Except for special cases described in sections B and C below and for lead-based paint and/or PCB cases as described above, for sites that DTSC has determined that a response action is required, CDE may provide final site and/or plan approvals when DTSC provides a letter approving the plan (RAW or RAP) to clean up the site under a VCA, and DTSC does not object to CDE issuing final approval. Previous CDE policy required DTSC to certify completion of the response action before issuing CDE final approval.

Response Action Implemented in the Design and Construction of the Project

In cases where the required response action can only be implemented in the design and construction of the proposed school project, CDE may provide final approval when DTSC provides a letter indicating the response action must be implemented in the design and construction of the school project and DTSC does not object to CDE issuing final approval, and the district commits in writing to do the response action.

Construction and Response Action On Different Portions of the Same Site

In cases where a response action is required by DTSC on only a portion of a proposed school project site, CDE may provide final approval of the entire site and/or project when the district commits in writing to do the response action and DTSC provides a letter stating that DTSC does not object to CDE issuing final approval and DTSC has determined all of the following:

1. the proposed school construction project will not interfere with any response actions necessary; and
2. construction may proceed at any portion of the site DTSC determines is not affected by hazardous materials; and
3. the site conditions will not pose a significant threat to the health and safety of workers involved with construction; and
4. the site has been fully characterized.

For further information on the above topics, please contact the School Facilities and Transportation Services Division (SFTSD) at 916-322-2470 or sftsd@cde.ca.gov .