January 18, 2000

Assembly Bill (AB) 387 (Wildman) and Senate Bill (SB) 162 (Escutia) became effective January 1, 2000. These two bills have made additions and changes to the Education Code related to the required assessment and remediation or clean-up of toxic contamination of school sites (i.e., hazardous materials, including those naturally occurring). Compliance with these laws, intended to help ensure that sites selected for school construction are free of significant contamination, is required to obtain funding through the State School Facilities Program. Not addressed in this advisory, but also included in these bills, are provisions for Senate Bill (SB) 50 reimbursement of hazardous materials evaluation and remediation or clean-up costs. (Refer to State Allocation Board Regulations currently being developed for further information on funding.)

Specifically addressed in this advisory are the following new procedures for both Plan and Site approvals by the California Department of Education (CDE) School Facilities Planning Division (SFPD) and the new oversight role of the Department of   Toxic Substances Control (DTSC):

• Elimination of District Self-Certification of Sites and Plans
• New Toxics Procedures for Site Approval
• New Toxics Procedures for Plan Approval
• Contingent Site Approval Required for Hazardous Materials Response Action (Including Financial and Environmental Hardship SFPD provisions)

1. ELIMINATION OF DISTRICT SELF CERTIFICATION OF SITES & PLANS
   
   Effective January 1, 2000, AB 387 amended Education Code Section 17070.50. This section now states that the State Allocation Board (SAB) shall not apportion funds unless the district has obtained written approval (SFPD 4.09 letter) from the CDE that the site selection and building plans comply with standards adopted by the CDE pursuant to Education Code Section 17251 (b) and (c). These standards are listed in Title 5 of the California Code of Regulations, sections 14001-14037. Eliminated was the provision that allowed districts to certify to the SAB through CDE that the district was in compliance with Title 5 standards. SFPD will no longer accept district self-certification requests after December 31, 1999. This applies to all sites and plans, including modernization and new construction projects.
   
   SFPD Audits
   
   SFPD will audit every previously self-certified site and selected self-certified plans that were submitted prior to January 1, 2000. Per SB 50 Administrative Regulations Section 1859.106, should CDE make a finding that a project did not meet Title 5 standards when the district self-certified that the project met those standards, the SAB may require the district to pay back the percentage of the space in the project that CDE determined did not meet those standards. Prior to the CDE audit, districts that submitted self-certified projects may withdraw their self-certification request and process the project through the normal CDE approval procedures.

2. NEW TOXICS PROCEDURES FOR SITE APPROVAL
   
   The following applies to all site acquisitions (including expansion of existing sites) for which districts are either seeking State funding pursuant to the School Facilities Program of 1998 (SFP), or which are locally funded and have requested SFPD site review. (Reference Education Code sections 17072.13, 17210, 17210.1, 17213.1, 17213.2, 17213.3, and 17268.) It should be noted that districts may elect not to pursue potential sites/projects at any time during the investigation/review process.
   
   Phase I Environmental Site Assessment
   
   Per Education Code Section 17213.1(a), prior to site acquisition, districts shall contract with a qualified environmental assessor (see later section regarding qualifications) to conduct a Phase I Environmental Assessment of the site. (Phase I's are essentially a paper/data-base and interview investigation into the current and historic uses on or near the site to determine if there has been a release of a hazardous material or if one is naturally occurring.) Phase I's shall be conducted in accordance with the American Society of Testing and Materials standards (ASTM E-1527-97). All sites with Phase I's will be reviewed to meet DTSC standards for "residential" use of land, which is DTSC's most protective standard. SFPD requires Phase I's only on the district-preferred site. However, if the district is seeking a SFPD Contingent Site Approval for Environmental or Financial Hardship funding status (see later sections) Phase I's are required on all district identified alternative sites. All prospective sites should have previously received initial SFPD site review and rankings via SFPD form 4.0.
   
   SFPD and DTSC recommend that districts not conduct soil sampling or any other Phase II type activities at this stage as DTSC may require further investigation specifically scoped for the site according to "unrestricted use" standards for schools. Under current policy, DTSC will not review recently prepared Phase II or sampling reports as part of their Phase I review. Historical data from past sampling events may be included in Phase I submittals (e.g., reports which may have been prepared as part of a larger master plan or as part of a previous real estate transaction which included the proposed site).
   
   Sites with Previous SFPD Final Approval
   
   Note that previous valid SFPD Final site approvals less than five years old for which site or construction projects have not yet received SAB approval for funding are required prior to SAB site funding to either 1) have a SFPD issued Final 4.09 form or letter indicating that a Phase I was reviewed by SFPD and the site is safe, or 2) comply with the provisions of AB 387/SB 162 and receive a DTSC determination letter. Coordination with SFPD and Office of Public School Construction (OPSC) representatives is necessary for districts which are attempting to receive, or have recently received, SFPD Final site approval without a DTSC Phase I determination letter for which an SAB apportionment funding has not yet occurred. All SFPD Final site approvals over five years old on sites which have not yet had school construction or site SAB apportionment must be renewed and require a new SFPD site approval with a Phase I and a DTSC determination letter that the site is safe prior to obtaining SAB site apportionment.
   
   Qualified Environmental Assessors
   
   Education Code Section 17210 (b) defines the qualifications of an "environmental assessor" required to prepare a Phase I and a Preliminary Endangerment Assessment. The code specifies two ways of meeting the qualifications: 1) a class II environmental assessor registered by the Office of Environmental Health Hazard Assessment (OEHHA); or 2) a licensed hazardous waste contractor certified pursuant to the Business and Professions Code and having the specified education and assessment experience. SFPD and DTSC cannot recommend consultants. OEHHA, 916-324-6881 or Registered Environmental Assessor (REA) Program Database Search (Outside Source) , maintains a list of class II-registered environmental assessors who meet the qualifications. Contact the California Contractors State License Board (Outside Source) or 800-321-2752 for further information regarding licensed contractors.
   
   Phase I finds Site is Clean - SFPD Submittal - DTSC No Action Letter
   
   If the Phase I concludes that further investigation of the site is not required (i.e., clean site), the district shall submit two copies of the Phase I to the SFPD Sacramento Office as soon as they are available. SFPD encourages districts to submit the Phase I prior to submitting the rest of the SFPD form 4.01 site approval package documents. SFPD will transmit one copy of the Phase I to the Department of Toxic Substances Control (DTSC) within 10 calendar days of receipt of a complete package. Submittals must include a $1,500 check payable to CDE to cover estimated DTSC review costs. The package is not complete without the check and SFPD will not transmit the Phase I to DTSC without the required payment. Actual DTSC review costs less than or exceeding $1,500 will be credited or added to the district's site review billing. DTSC will review the Phase I and send a determination letter to the district and SFPD within 30 calendar days of its receipt of the Phase I. If DTSC concurs with the conclusions of the Phase I that further investigation is not required and approves the Phase I, DTSC shall notify SFPD and the district by issuing a " no action" determination letter. The district may then proceed with the SFPD site approval process. (See SFPD form 4.01 and Education Code Section 17213.1(a)(2).)
   
   Preliminary Endangerment Assessment Required - DTSC VCP Agreement
   
   Per Education Code Section 17213.1(a)(3), if the Phase I concludes that a Preliminary Endangerment Assessment (PEA) is needed (e.g., potential contamination for which further investigation such as sampling and a risk assessment is required) or if after reviewing the Phase I DTSC concludes that a PEA is needed, and the district elects to pursue the site, the district shall enter into an agreement with DTSC to oversee the preparation of the PEA. This is accomplished via the Voluntary Cleanup Program (VCP) with the appropriate regional DTSC office . The district shall then contract with a qualified environmental assessor (as defined in Education Code Section 17210 (b)) to prepare a PEA. A PEA is essentially sampling and a risk assessment to determine whether a hazardous material release or one that is naturally occurring poses a threat to children's health. DTSC will assist the district and its consultant with the scoping and planning of the PEA. If the Phase I concludes that a PEA is required, one copy of the Phase I must be sent by the district to SFPD with a cover letter. In this case a $1,500 check is not required since DTSC will not have to review the Phase I to determine whether further action is needed. These Phase I's will not be sent to DTSC, but they will be made part of SFPD's site file.
   
   DTSC Review of Preliminary Endangerment Assessment - "No Further Action" Letter
   
   Per Education Code Section 17213.1(4), after the district completes the PEA, the district shall 1) submit the PEA directly to the DTSC regional office for its review and approval and 2) make the PEA available for public review for not less than 30 calendar days. (The law is silent on how this public review may be accomplished.) The district shall reimburse DTSC directly for all of its PEA review/oversight costs through the VCP agreement. DTSC shall complete its review and respond within 60 calendar days of its receipt of the PEA. If DTSC disapproves the PEA, it shall inform the district of the basis of the decision and recommend actions necessary to secure DTSC approval. If the PEA determines that a further investigation of the site is not required (i.e., no significant health risk) and DTSC approves, DTSC shall notify SFPD and the district of its approval by issuing a " no further action" letter. The district may then proceed with the SFPD site approval process (see SFPD form 4.01).
   
   PEA Determines Hazardous Materials Release - Response Action Needed
   
   Per Education Code 17213.1(8), if the PEA determines that either a release of hazardous materials has occurred, there is a threat of release, or a naturally occurring hazardous material is present that requires further investigation (i.e., a Response Action such as cleanup, removal or remediation is necessary) and DTSC approves this determination, the district may pursue the site acquisition if the district does all of the following: 1) prepares a financial analysis that estimates the cost of the required response action, 2) assesses the benefits that accrue from using the site when compared to alternatives sites, if any, 3) obtains the approval of CDE that the site meets site selection standards (Title 5) adopted pursuant to Education Code Section 17251 (b ) (i.e., satisfied via SFPD Contingent Site Approval, see later section on contingent approvals) , and 4) if the district has requested CDE assistance, evaluates the suitability of the site in light of recommended alternative locations in order of merit pursuant to Education Code Section 17251 (a) (via SFPD Site Review form 4.0 rankings) .
   
   Removal Action Workplan - Remedial Action Plan
   
   Since the PEA alone may not contain sufficient information to determine the costs of the response actions, DTSC procedures require the district to first contract with a consultant to either 1) prepare a draft Removal Action Workplan (RAW) for small and relatively non-complex clean-ups costing less than $1 million to implement, or 2) prepare a Remediation Investigation / Feasibility Study (RI/FS) leading to a draft of a more extensive Remedial Action Plan (RAP) costing $1 million or more to implement. Both require DTSC approval under a new agreement within the VCP. DTSC will determine when it is appropriate to use a RAW or a RAP. The RAW or RAP will identify cleanup options and goals. The new laws also require that DTSC follow public participation requirements for Response Actions.
   
   CEQA and Implementation of the Response Action
   
   During preparation of the draft Response Action, the district should coordinate with DTSC regarding how to complete the California Environmental Quality Act (CEQA) process allowing analysis of potential impacts of the Response Action and public review/input. The options to complete CEQA for the Response Action include: 1) the district incorporates the draft Response Action into the project description as part of the district's negative declaration or EIR for the site which is then noticed, circulated, and adopted per the requirements of the Public Resource Code (PRC); or 2) the district prepares, notices, circulates and adopts a supplement or addendum to the district's prior negative declaration or EIR to cover the Response Action; or 3) DTSC acts as lead agency and completes its own CEQA process on the Response Action; or 4) the district, with DTSC concurrence, determines that the proposed Removal Action Workplan is categorically exempt per CEQA guidelines 15330. (Note: Categorical exemptions may not be applicable in some circumstances per PRC section 21084 and Guidelines 15300.2.)
   
   Once the CEQA process, including the draft Response Action, has been completed, DTSC will finalize the Response Action. Once the district obtains a SFPD Contingent Site Approval (see later section on contingent approvals) the district may, if necessary, acquire the site and then implement the approved Response Action under DTSC oversight. DTSC shall notify SFPD, the Division of State Architect (DSA), and the Office of Public School Construction (OPSC) when DTSC certifies that all necessary Response Actions have been completed and cleanup goals are achieved at the school site. The district may then proceed with the SFPD Final site/plan approval processes. The district must also notify SFPD if there is a significant increase above the estimated cost of the Response Action. If previously unidentified contamination is discovered during construction, the district is required to promptly notify DTSC and stop construction until DTSC determines it is safe to proceed. The district may not occupy a school building following construction until it obtains DTSC certification that all response actions, except for operation and maintenance activities, have been completed.
   
   Significant Risk Disclosed and the District Owns the Proposed Site
   
   Per Education Code Section 17213.2 (a), if the PEA discloses the presence of a hazardous material release, or threat of release, or presence of naturally occurring hazardous materials at the proposed schoolsite at concentrations that could pose a significant risk to children or adults, and the district owns the proposed site, the district shall enter into an agreement with DTSC to oversee response action at the site and shall take action required by DTSC. DTSC shall notify the District, SFPD, the Division of State Architect (DSA) and OPSC when DTSC certifies that all necessary response actions have been completed at the school site. The district may then proceed with the SFPD Final site/plan approval processes.
   
   Environmental Hardship
   
   Per Education Code Section 17072.13 and draft SAB Regulations1859.75.1, districts may seek Environmental Hardship status for a separate SAB site apportionment prior to site acquisition and SFPD Final plan approval, if 1) DTSC estimates that the necessary Remedial Action Plan will take at least six months to complete and 2) SFPD has determined that the site is the best available alternative site. SFPD will, in part, use its form 4.0 Site Review relative ranking of alternative sites and other information as described in the required Contingent Site Approval process (see later section on contingent approvals) for this determination.
   
   Financial Hardship
   
   Per draft SAB Regulations 1859.81.1, districts may also seek SB 50 SFP Financial Hardship status for a separate SAB site apportionment prior to site acquisition and SFPD Final plan approval, if SFPD has determined that the site is the best available alternative site. SFPD will, in part, use its form 4.0 Site Review relative ranking of alternative sites and other information as described in the required Contingent Site Approval process (see later section on contingent approvals) for this determination.
   
   Other SFPD Requirements
   
   As part of the SFPD form 4.0 (Site Review), districts must advise SFPD if they plan to apply for Financial Hardship under SB 50. Districts must also indicate on SFPD form 4.02 (School Site Report) their compliance with AB 387/SB 162, and certify on SFPD form 4.03 (School Site Certification) that they have complied with AB 387/SB 162 before receiving Final Site approval through a SFPD 4.09 letter. (See amended SFPD forms available at www.cde.ca.gov/ls/fa/sf/index.asp).
   
3. NEW TOXICS PROCEDURES FOR NEW CONSTRUCTION PLAN APPROVAL
   
   The SFPD toxic procedures for plan approval will be the same as described in the previous section for site approvals, except for the differences specified below.
   
   The following applies to all new school building construction projects (including major additions not exempt from CEQA as described below), for which districts are either seeking State funding pursuant to the School Facilities Program of 1998 (SFP), or are locally funded and have requested SFPD Plan review. (Reference Education Code sections 17210, 17210.1, 17213.1, 17213.2, 17213.3, and 17268.) It should be noted that districts may elect not to pursue potential sites/projects at any time during the investigation/review process.
   
   Phase I Environmental Site Assessment
   
   Per Education Code Section 17213.1(a), prior to acceptance of construction bids/construction of a project, and prior to SFPD issuing a Final Plan approval for new construction, districts shall contract with a qualified environmental assessor (as defined in Education Code Section 17210 (b)) to conduct a Phase I Environmental Assessment of the proposed site in accordance with ASTM E-1527-97.
   
   Minor Addition and Modernization Exemptions from Phase I DTSC Review
   
   Per Education Code Section 17268 (c), Minor Additions at existing district owned or leased school sites which are eligible for a Statutory or Categorical Exemption under CEQA and CEQA Guidelines ( Public Resource Code 21083, Guidelines 15260 & 15300 et. seq.) are not subject to Phase I studies and DTSC determinations. On the SFPD form 4.07B required for Preliminary/Final Plan submittal and approval, the district-authorized representative must sign and indicate if the new construction project is a categorical/statutory exemption under CEQA.
   
   By definition, all SFP Modernization projects, including replacement area and/or new area required by the Americans with Disabilities Act or by DSA handicapped access requirements, will not require a Phase I or DTSC determination for SFPD Final plan approval.
   
   Previous Phase I and SFPD Final Approvals
   
   If the site of the proposed new construction project has, within the last five years, had either 1) a Phase I or a PEA prepared for which DTSC has issued a "no action" or "no further action" letter, or certified that all Response Actions have been completed; or 2) a SFPD Final site or plan approval letter which included a SFPD review of a Phase I indicating the site was safe; and 3) conditions have not changed which would affect the DTSC determination or SFPD approval, a new Phase I will not be required.
   
   If a SFPD Final plan approval has been previously issued for a site that has not had a Phase I either determined by SFPD as safe or received a DTSC Final determination letter, both a current Phase I and a DTSC determination will be required prior to SAB funding of the new construction project. However, all SFPD Final site approvals over five years old for which new school construction has not yet occurred must be renewed. A new SFPD Final site approval with a current Phase I and DTSC determination are required prior to obtaining SAB funding for a new construction project.
   
   SFPD Submittals
   
   Refer to the previously described Site Approval procedures section for Phase I submittals including payment of CDE fees necessary for DTSC review costs. Note that districts may submit the Phase I prior to submitting the rest of the documents required for Final approval of construction plans. SFPD encourages submittal of Phase I's as soon as possible, but will continue to provide Preliminary Plan reviews without a Phase I. SFPD form 4.07 describes the requirements for submittal of construction plans and is available at the SFPD Web site.
   
   Environmental and Financial Hardship
   
   Per Education Code Section 17072.13, Environmental and/or Financial Hardship funding status related to hazardous materials are available only for site acquisition and not for new construction plan approval only projects.
   
   New Construction Plan Approval - Toxics Process Flow Chart (PDF; 11.6KB; 2pp)
   
4. CDE CONTINGENT SITE APPROVAL REQUIRED PRIOR TO IMPLEMENTING HAZARDOUS MATERIAL RESPONSE ACTION
   
   The following applies to districts electing to pursue acquisition of a school site or construction of a school project for which a Department of Toxic Substances Control (DTSC) -approved Preliminary Endangerment Assessment (PEA) has determined that there are hazardous materials requiring further investigation (i.e., a Response Action such as toxic cleanup or remediation). Prior to SAB funding, site acquisition and/or acceptance of construction bids, and prior to implementation of the Response Action, the district shall obtain the approval of CDE that the proposed school site meets the site selection standards (as described in Title 5 of the California Code of Regulations section 14000 et. seq.) adopted pursuant to Education Code 17251 (b). (See SB162, Education Code Section 17213.1(a)(8).)
   
   As of January 1, 2000, SFPD will use a "Contingent Site Approval " letter to notify the district that the site meets the site selection standards other than the DTSC approval. A Contingent Site Approval will be required for all sites or construction projects for which DTSC has recommended a Response Action, regardless of standard grant, Financial Hardship, or Environmental Hardship funding status under the State School Facilities Program. The contingent site approval requirements also apply to locally funded projects for which the district intends to request State reimbursement. SFPD will not provide a Final Plan approval letter on sites for which DTSC has required a Response Action until the district has obtained either a Contingent or Final Site approval.
   
   Submittal Requirements/Exceptions
   
   In order to obtain a Contingent Site Approval, the district must submit to SFPD 1) a letter requesting Contingent Site Approval, 2) the DTSC-approved PEA requiring a Response Action, and 3) all documents normally required to obtain a SFPD Final site approval (refer to current SFPD form 4.01 for a list of required submittals) except 1) the district-adopted CEQA documents, 2) the DTSC letter certifying completion of the Response Action, and 3) SFPD form 4.03.
   
   Submittal of any previously completed or draft CEQA documents is also highly encouraged to assist SFPD's review of the site. In addition, SFPD will check for submittal of documents and satisfaction of any other conditions that were made on Form 4.0 as part of the SFPD review of the site, e.g., railroad risk assessment, noise study, traffic study, electric transmission line or flood information, etc.
   
   Education Code Section 17213.1(a)(8) also requires the district to: (A) prepare a financial analysis that estimates the cost of the response action that will be required at the proposed school site, (B) assess the benefits that accrue from using the proposed schoolsite when compared to the use of the alternative schoolsites, if any, and (D) evaluate the suitability of the proposed schoolsite in light of the recommended alternative schoolsite locations in order of merit if the school district has requested the assistance of CDE based upon CDE site selection standards.
   
   Although not required by Education Code Section 17213 (a) (8), the district may also send these district prepared documents to SFPD .
   
   Submittal of all documents is encouraged as soon as they are available, and these may be submitted incrementally. After review and determination of compliance with Title 5 site-criteria and SFPD site review conditions, if any, SFPD will issue a Contingent Site Approval letter to the district and to OPSC. The district/DTSC may then complete the CEQA process (see prior Plan approval process section on CEQA), acquire the site (if necessary), and complete the Response Actions under DTSC oversight.
   
   SFPD Final Site Approval
   
   SFPD Final Site Approval will be considered only when SFPD receives all of the following: 1) the Final adopted CEQA documents; 2) the DTSC letter that certifies the Response Action has been completed; and 3) the SFPD form 4.03 (in addition to all other information required per SFPD form 4.01 for Contingent site approval) . SFPD Final Site Approval will be required (among other items specified in SAB regulations) in order for OPSC / SAB to complete the final adjusted apportionment for the site/project, and/or to help certify that substantial progress has been made toward acquisition of the site within one year, which may allow a time extension of the site funding apportionment.
   
   "Best Available Alternative Site" for Environmental Hardship and/or Financial Hardship Status
   
   Education Code Section 17072.13 and draft SAB Regulations 1859.81.1 and 1859.75.1 allow districts to apply for Financial Hardship and/or Environmental Hardship status related to contaminated sites. This status allows districts to seek a separate site acquisition SAB apportionment prior to the district acquiring the site and prior to SFPD's Final plan approval for new construction and SAB apportionment. For districts seeking Environmental Hardship and/or Financial Hardship status for site acquisition funding, in addition to the district obtaining the Contingent Site Approval indicating that the site meets site selection standards, SFPD must determine that the site is the best available alternative site. In order to obtain this determination, the district must also indicate in its Contingent Site Approval request letter that it is seeking Financial Hardship and/or Environmental Hardship site funding. The district must submit the specified SFPD form 4.01 documents for a Contingent Site Approval (with the three previously noted exceptions) plus a preliminary site appraisal providing the estimated value of the site.
   
   In making its "best available alternative site" determination, SFPD will examine 1) all SFPD form 4.0 Site Reviews for alternative sites, if any, the district's financial analysis and benefit assessment as described in Education Code Section 17213.1(a)(8); 2) the preliminary site appraisal; and 3) any other information that SFPD determines relevant and reasonably available. As part of a "Contingent Site Approval", SFPD then has the ability to indicate if it has determined that the proposed project site is the best available alternative site.
   
   For the Environmental Hardship qualification only, DTSC must be able to provide to the district an estimate that the Remedial Action Plan (a specific type of Response Action defined by DTSC as costing more than $1 million to implement) will take six months or more to complete. The DTSC time estimate and the SFPD "best available alternative site" determination may be sought via a Contingent Site Approval request letter as soon as DTSC approves the PEA and is able to provide cost and time estimates. However, SFPD will only provide a "best available alternative" determination as part of a Contingent Site Approval letter.
   
   Per Education Code Section 17072.13, (c)(1) (A), Environmental Hardships are only available for sites requiring Remedial Action Plans and not for Removal Action Workplans (Response Action defined by DTSC as costing less than $1 million to implement). For districts qualifying for SFP Financial Hardship, site funding is available for all Response Actions, including either a Removal Action Workplan or a Remedial Action Plan as required by DTSC.
   
   Currently under AB387 and draft SAB regulations, Financial Hardship and Environmental Hardship site funding status are available only for site acquisitions requiring a DTSC-approved Response Action and is not available for new construction-only projects which may also require a Response Action.
   
   New Construction Plan Approvals Which Require a Response Action
   
   The following applies to district's seeking only new construction SFPD Final plan approvals or "major" addition Final plan approval (projects not exempt from CEQA, thus requiring a negative declaration or EIR) separate from a SFPD site approval on existing schoolsites or already owned vacant sites for which DTSC has required a Response Action. Districts may use a prior valid SFPD Final Site Approval ( not more than five years old if no construction has occurred ) and demonstrate satisfaction of all SFPD site review conditions in order to request a "Contingent Site Approval".
   
   To obtain SFPD Final Plan approval for a new school or major addition construction project on district owned sites which lack a valid SFPD Final Site Approval and which require a Response Action, compliance with the above described Contingent Site Approval procedure is required. This will also require scheduling a SFPD site review. SFPD will continue to process Preliminary Plan reviews without submittal of Contingent Site Approval documentation.