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Letter Head: Jack O'Connell, State Superintendent of Public Instruction, Phone number 916-319-0800

March 11, 2004

Dear County and District Superintendents:

SENATE BILL 352 - NEW DETERMINATIONS AND FINDINGS REQUIRED FOR CALIFORNIA DEPARTMENT OF EDUCATION SITE APPROVAL RELATED TO AIR EMISSIONS

Purpose
The purpose of this memo is to:

  1. inform local school districts of the enactment of Senate Bill 352, Chapter 668, Statutes of 2003
  2. provide a summary of changes in the School Facilities Planning Division's (SFPD's) review of proposed school sites based on new requirements established by Senate Bill 352, Chapter 668, Statutes of 2003, and
  3. provide sources of information available to help school districts comply with the requirements of Senate Bill 352, Chapter 668, Statutes of 2003.

This memo does not provide a comprehensive list of specific statutory requirements or SFPD policies and procedures. It is not to be considered legal advice, and the SFPD recommends that districts seek their own legal counsel's advice when interpreting, implementing, and complying with statutes.

Senate Bill 352, Chapter 668, Statutes of 2003, Is Now Effect For School Site Acquisitions

Senate Bill 352, Chapter 668, Statutes of 2003, and amends both Education Code Section 17213 and Public Resources Code Section 21151.8. These amendments change certain procedures school districts must follow and add additional determinations and findings that school districts must make prior to approving the acquisition of a new school site or when approving a California Environmental Quality Act (CEQA) document for a school site acquisition or new school construction project.

Summary of Primary Changes

Senate Bill 352, Chapter 668, Statutes of 2003, expands the requirements school districts must follow in identifying and reviewing the impacts of hazardous air emitters and hazardous material handlers within 1/4 mile of a new school site, and creates new requirements if the site is within 500 feet of a busy freeway or traffic corridor (defined in Senate Bill 352, Chapter 668, Statutes of 2003, as averaging more than 50,000 vehicles per day in rural areas and 100,00 vehicles per day in urban areas). If a proposed site boundary is within 500 feet of such roadway, the district must determine, through analysis as specified in Senate Bill 352, Chapter 668, Statutes of 2003, if air quality at the site poses a significant health risk to pupils. Under certain conditions, Senate Bill 352, Chapter 668, Statutes of 2003, also provides school districts the ability to use CEQA Statements of Overriding Considerations.

For purposes of identifying "facilities" within 1/4 mile and making the appropriate board findings, Senate Bill 352, Chapter 668, Statutes of 2003, has broadened the term "facilities" to mean "both permitted and non-permitted facilities, including but not limited to freeways, busy traffic corridors, large agricultural operations, and rail yards." The definition of facilities has also been revised to include facilities "whose process or operation is identified as an emission source pursuant to the most recent list of source categories published by the California Air Resources Board."

New SFPD Site Approval Requirements

Regardless of the date a complete site approval request (SFPD Form 4.01 package) is submitted to the SFPD, if the district's governing board approved the site's acquisition, or if the site acquisition or new school construction project's CEQA document was approved on or after January 1, 2004, the SFPD will require submittal of documentation indicating the district's compliance with Senate Bill 352, Chapter 668, Statutes of 2003, as part of the site approval request.

Specifically, the SFPD will require the school district to certify on SFPD Form 4.03 compliance with the current statutes by submitting all of the following:

  1. A school district governing board-adopted determination, as supported by information included in the project's adopted CEQA document (or other document adopted by reference in the CEQA document) stating whether the site boundary is within 500 feet of the edge of the closest traffic lane of a freeway or other busy traffic corridor (as defined in Senate Bill 352, Chapter 668, Statutes of 2003).

(Note that other code specified determinations required prior to Senate Bill 352, Chapter 668, Statutes of 2003, stating that the site is not a waste disposal site, a hazardous substance release site, or a site that contains pipelines that carry hazardous substances must also be submitted).

  1. A school district governing board-adopted finding(s) stating that based upon written notice to and consultation with the administering agency (i.e., for hazardous material handlers) and the appropriate air pollution control district or air quality management district to identify permitted and non-permitted "facilities" within 1/4 mile of the proposed school site, that either:
  2. Consultation identified none of the facilities or other significant pollution sources specified in Education Code Section 17213 or Public Resources Code Section 21151.8, or
  3. The facilities or other pollution sources specified in Education Code Section 17213 or Public Resources Code Section 21151.8 exist, but either:
    1. The health risks from the facilities or other pollution sources do not and will not constitute an actual or potential endangerment of public health to persons who would attend or be employed at the school, or
    2. Corrective measures required under an existing order by another governmental entity that has jurisdiction over the facilities or other pollution sources will, before the school is occupied, result in the mitigation of all chronic or accidental hazardous air emissions to levels that do not constitute an actual or potential endangerment of public health to persons who would attend or be employed at the school.
  4. If the site boundary is determined by the school district governing board to be within 500 feet of a freeway or busy traffic corridor, the school district is required to submit the school district's governing board-adopted finding that states:

    "The school district governing board determines through analysis pursuant to paragraph two of Health and Safety Code Section 44360(b), based upon appropriate air dispersion modeling, and after considering any potential mitigation measures, that the air quality at the proposed site is such that neither short-term nor long-term exposure poses significant health risks to pupils."

  5. If the applicable code conditions listed in 2a, b, or c above cannot be met (e.g., the site is within 1/4 mile of a pollution source(s) and/or is within 500 feet of a freeway or traffic corridor, and either source will be a significant health risk), the district may instead submit the following school district governing board-adopted findings stating that:
    1. the pollution sources exist, but specified code conditions cannot e met,
    2. the district is unable to locate an alternative site due to a severe shortage of sites that meet the requirements of Education Code Section 17213(a), and
    3. the district board has adopted a Statement of Overriding Consideration as part of the project's Environmental Impact Report (EIR) pursuant to CEQA Guidelines Section 15093.
Contingent Site Approval

While SFPD contingent site approval requests do not require the submittal of the board-adopted final CEQA document and board-adopted determinations and findings, the draft CEQA documents and/or the written reports or documentation, and analysis containing these determinations or findings must be submitted for contingent approval. The final CEQA document and board-adopted determinations will need to be submitted as part of the request for final site approval.

Additional Resources

Listed below are additional sources of information available on the Internet that may be useful in a district's evaluation of the requirements established by Senate Bill 352, Chapter 352, Statutes 2003.

Traffic count information for state maintained roads is available from the California Department of Transportation (Outside Source).Cities and counties can provide traffic counts for their non-state maintained roads.

The Office of Environmental Health Hazard Assessment (OEHHA) Air Toxics Hot Spots Program Guidance Manual for Preparation of Health Risk Assessments (Outsdie Source).

The air dispersion compute model known as Hotspots Analysis and Report Program (HARP) (Outside Source), developed by the California Air Resources Board (ARB) is a tool to implement the OEHHA guidance manual. The ARB referenced list of emission source categories (Outside Source) is also available.

The list of local Air Quality Management Districts (AQMD) and Air Pollution Control Districts (APCD) (Outside Source).

The list of administering agencies or Certified Unified Program Agencies (CUPAs) for hazardous material handlers (Outside Source).

SFPD Contacts

Please contact the SFPD consultant assigned to your county regarding the SFPD review process.

Questions regarding board findings, air-modeling requirements, and CEQA determinations should be directed to the district's legal or environmental consultant.

Sincerely,

 

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

DB:mo

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