SFPD Memo 01-01 Assembly Bill 2644
SFPD MEMO 01-01
To: County and District Superintendents
Subject: Assembly Bill (AB) 2644 - Changes to Department of Toxic Substances Control (DTSC) Phase I/PEA Review Approval Procedures
AB 2644 (Calderon), Chapter 443, Statutes of 2000, was signed by the Governor on September 13, 2000, and became effective on September 14, 2000, as an urgency measure. This bill made several additions and changes to California Education Code sections (ECS) 17072.18, 17210, 17210.1, 17213.1 and 17213.2. These modifications primarily relate to school district compliance with assessment of school sites through the DTSC. Among provisions significantly affected is the public review and approval process of Preliminary Endangerment/Environmental Assessments (PEAs). This memo provides a summary of the modifications made pursuant to AB 2644, and updates procedures which were previously described in School Facilities Planning Division (SFPD) Advisory 00-01 dated January 18, 2000, related to 1999 legislation, AB 387 and Senate Bill (SB) 162.
Also provided are summaries and discussions of some California Environmental Quality Act (CEQA) provisions that are not detailed in AB 2644, but which relate to possible implementation scenarios of the bill's requirements. Please note that districts should always consult with their own legal counsel regarding specific requirements and interpretations of the Education Code, Public Resource Code (PRC), and Health and Safety Code.
For questions regarding DTSC related California Department of Education (CDE) site or plan approval issues, please contact Michael O'Neill of our office at 916-322-1463, e-mail at email@example.com or your assigned consultant from the School Facilities Planning Division (SFPD) Website for a list of consultants by county).
Duwayne Brooks, Director
School Facilities Planning Division
Assistant Superintendent of Public Instruction
Summary of SFPD Memo 01-01 on AB 2644
1) The State Allocation Board may now provide funding for Response Action (hazardous material cleanup) costs for districts that have not applied for or received funds for acquisition of a school site, for which they have or will incur these costs necessary for development of the site and which is otherwise eligible.
2) The definition of who is qualified to conduct a Phase I and a Preliminary Endangerment Assessment (PEA) has been expanded to include California registered professional engineers, geologists, and certified engineering geologists.
3) Phase I reports must be prepared to American Society for Testing and Materials (ASTM) standards (unless and until DTSC regulations are adopted) and contain a review of reasonably available information on current and prior gas/oil wells and naturally occurring hazardous materials.
4) District notification to immediate area residents (approved in form by DTSC) is now required prior to starting work on a PEA.
5) Environmental Assessors are only required to supervise the preparation of Phase I and PEA reports and are also required to sign the reports.
6) Phase I submittals to CDE shall include a fee to be forward by CDE to DTSC, and include sufficient information to allow DTSC to confirm the qualifications of the assessor. If additional Phase I information is then requested by DTSC, DTSC shall conduct its review and approval within 30 calendar days after receiving it.
7) If DTSC disapproves the Phase I or determines that is incomplete,
the district may take actions to secure the approval or may elect
to pursue a PEA.
8) The Agreement between the district and DTSC to oversee the preparation of a PEA may be titled an Environmental Oversight Agreement (EOA). With the concurrence of DTSC, districts may skip a Phase I and proceed directly to a PEA.
9) Districts may request DTSC to exercise its authority to designate a person to enter and work on a site, if DTSC determines this will assist in completing a PEA.
10) A Preliminary Endangerment Assessment may be titled a Preliminary Environmental Assessment, if it refers to and meets the same requirements.
11) Districts are not liable for making a Phase I Report available for public review.
12) DTSC shall notify the Division of State Architect (DSA) whenever a Response Action has an impact on the design of a school and the specific conditions that must be met to protect the integrity of the Response Action.
13-15) Districts shall make the DTSC approved Final Draft PEA available on the same time and basis as the project's draft CEQA document and conduct a hearing. If the district has previously complied with CEQA, the district must reconsider and hold a hearing on the adequacy of its approved document as if it were a draft CEQA document. All comments received by the district must be immediately submitted to DTSC who may then provide a Final PEA approval after the district's CEQA approval. The district shall consider if changes are required in its determination and may not file a Notice of Determination until after Final PEA approval. If a Response Action is required, the district shall also conduct DTSC's Public Participation Plan.
16) DTSC Contacts
17) Flow Charts
- Allowing Toxic Remediation Funding
For School Construction Projects Not Involving State Funded Site
California Education Code Section (ECS) 17072.18 was added which states that the State Allocation Board (SAB) may provide funding for Response Costs for hazardous waste/substance removal or other remedial action that has or will occur at a school site to a district that has not applied for or received funds from the SAB for the acquisition of that school site. Essentially this may affect major new construction projects on existing school sites for which no SAB site acquisition funding has been sought. Should DTSC determine that a Response Action is required in these cases, the SAB may provide otherwise eligible funding for this Response Action in the same manner as described in ECS 17072.13. Previously, clean up funding was restricted to projects for which SAB site acquisition funding was sought. Districts will need to refer to SAB regulations and the Office of Public School Construction (OPSC) with regards to funding eligibility.
- Expanded Definition
of Environmental Assessor Qualified to Prepare Phase I or Preliminary
Endangerment/Environmental Assessment (PEA)
ECS 17210(b) was amended to add a "professional engineer", "geologist" and a "certified engineering geologist," all registered in California, to the list of persons qualified to prepare a Phase I and a Preliminary Endangerment/Environmental Assessment (PEA). Previously, this list included only class II environmental assessors (REA II) registered by the Office of Environmental Health Hazard Assessment and licensed hazardous substance contractors certified according to the Business and Profession Code and with specified education and experience requirements. This section also now clarifies that any person who conducts a Phase I shall have at least two years experience in the preparation of Phase I Reports, and any person conducting a PEA shall have at least three years experience in conducting PEAs. Therefore, Phase I reports and PEAs submitted to CDE and DTSC should contain proper documentation to allow DTSC determination of the required qualifications. DTSC has indicated it will not approve these documents without being able to determine the required qualifications.
- Phase I Reports
Conducted To ASTM Standards And Other Mandatory Content For Gas
and Oil, And Naturally Occurring Hazardous Materials
ECS 17210(g) was amended to specify that a Phase I Report is to be conducted pursuant to the requirements adopted by the American Society for Testing and Materials (ASTM) for due diligence for commercial real estate transactions. In addition, the Phase I must include all reasonably available records and data bases regarding current and prior gas or oil wells and naturally occurring hazardous materials. The latest version (ASTM-E 1527-00) was approved in June of 2000. This will satisfy the Phase I requirements unless and until DTSC adopts final regulations that establish different guidelines. Note that DTSC is preparing a separate advisory which will provide additional recommendations for consultants conducting Phase I reports.
To Residents Prior To Commencement Of Work On PEA
ECS 17210.1(b) was added which in summary requires that a district shall provide a notice to residents in the immediate area of a site subject to a PEA, prior to the commencement of work on that PEA. The code also specifies that the form of the notice must first be approved by DTSC. The code does not specify how far in advance of the commencement of PEA work the notice must be provided, what is meant by "immediate area," nor the method of notification. DTSC suggests that "immediate area" be considered as the area in the line of sight of the proposed project site. DTSC is interpreting the intent of this requirement is to provide residents in the vicinity of the proposed project with advance notice of field work such as drilling, sampling, and other environmental data collection activities. DTSC suggests that the notice should be mailed so that it is received by the residents no less than 3-5 days in advance of field work. DTSC will typically coordinate with the district in determining the level of community interest and notification warranted or appropriate and will make available an approved generic notice upon request.
- Supervision Of
Phase I Preparation And Signature
ECS 17213.1(a) has been amended to state that the district's governing board shall contract with an environmental assessor "to supervise the preparation of and sign" a Phase I. ECS 17213(a)(4) also states the same requirements for PEAs. This clarifies that the qualified assessor need not actually prepare the Phase I as long as they supervise the preparation and sign the report. This code section requires a Phase I to be prepared unless the district's governing board decides to skip the Phase I to proceed directly with a PEA, in which case it shall comply with ECS 17213.1(a)(4), as discussed in section 8 below.
- Phase I Review
Fee, Assessor Qualifications Documentation And DTSC Review Timeframe
After Additional Information Requests/Receipt
ECS 17213.1(a)(2) has been amended to state that within 10 calendar days of receipt of the Phase I and of the fee to be forwarded to DTSC for review of the Phase I, CDE shall transmit the Phase I to DTSC. This fee is currently $1,500. Although CDE does not retain any of the fee, for accounting purposes the checks are to be made payable to the California Department of Education (CDE). Without receipt of this fee CDE will not transmit the Phase I to DTSC. Also added is the requirement of "sufficient information to allow DTSC to confirm that the environmental assessor signing the assessment meets the qualifications." Essentially this means there must be sufficient documentation, e.g., registration stamp and signature, resume or statement of qualifications, etc., included with the Phase I submittal to CDE.
In addition, the ECS now states that in those instances when DTSC requests additional information after receipt of the Phase I from CDE, DTSC will have up to 30 calendar days to conduct its review and approval, after its receipt of the requested additional information.
- Securing Approval
Of Phase I Or Proceeding Directly To PEA
ECS 17213.1(a)(3) was amended which now states that if DTSC determines that the Phase I is not complete or disapproves the Phase I, DTSC shall inform the district of the basis for its decision and actions necessary to secure approval. The district shall then either elect to: a) take actions necessary to secure approval of the Phase I; b) elect to conduct a PEA (thus skipping completion of an approvable Phase I); or c) not pursue the acquisition or construction project. This section also provides that information required by DTSC in these cases may be provided to DTSC via telephonic or electronic means.
- Name Of DTSC
PEA Oversight Agreement And Option To Skip Phase I
ECS 17213.1(a)(4) was amended to state that the agreement entered into with DTSC to oversee the preparation of a PEA may be entitled an "Environmental Oversight Agreement" (EOA). Previously these have been referred to as Voluntary Cleanup Program (VCP) agreements. This code section also now states that with the concurrence of DTSC, a district may enter into such an environmental oversight agreement without having first prepared a Phase I. Districts wishing to skip a Phase I to directly pursue a PEA should first consult with DTSC on a case-by-case basis. Note that a well-documented Phase I may negate the need to prepare a more expensive and time-consuming PEA.
- Authority To
Enter Sites To Conduct PEA
ECS 17213.1(a)(4) was also amended to state that upon the school district request, DTSC shall exercise its authority to designate a person to enter the site, inspect, and obtain samples per Health and Safety Code Section 25358.1, if DTSC determines that this will assist in expeditiously completing a PEA. This means that should the district be denied access to a site to complete a PEA, they can request that DTSC exercise its authority to gain access to the site. DTSC has indicated that exercising this authority will be considered only after DTSC has received a written request from the district documenting that a reasonable effort has been made by the district to gain site access.
Alternative Name For PEA
ECS 17213.1(a)(5) was amended to state that a district may entitle a PEA a "preliminary environmental assessment" (instead of preliminary endangerment assessment) if the document specifically refers to the statutory provisions and meets the requirements of the PEA as specified.
- District Liability
Exemption When Phase I Released For Public Review
ECS 17213.1(c) was amended to state that when a district releases a Phase I, (as well as a Preliminary Endangerment/Environmental Assessment, or information concerning either of these assessments), it may not be held liable in any action filed against the district for making either of these assessments available for public review. Previously this liability exemption applied only to the release of a PEA.
- DTSC Notifying
DSA Of Facility Design Conditions Related To Response Actions
ECS 17213.2(g) was modified to state that DTSC shall notify the Division of State Architect (DSA) whenever a Response Action has an impact on the design of a school facility. DTSC shall specify the conditions that must be met in the design of the facility in order to protect the integrity of the Response Action.
- DTSC Review
Of PEA, Notification And Public Comment Period/Hearing Concurrent
With CEQA Documents
ECS 17213.1(a)(6) has been substantially amended, the details of which are described in the sections below. This code section now describes the public review process to be used by the district and DTSC instead of procedures set forth in the Health and Safety Code with respect to PEAs. If DTSC requires Response Actions beyond a PEA, and the district elects to proceed with the site acquisition or construction project, the district shall also comply with Health and Safety Code sections 25358.7 and 25358.7.1 ( meaning DTSC Public Participation Plan activities ) with respect to those Response Actions under a Voluntary Cleanup Agreement. Note that Response Actions are projects that are also subject to the California Environmental Quality Act (CEQA) process which may be concurrent with the Public Participation Plan and the CEQA process for the site acquisition/new construction project.
- PEAs For Which
No Response Action Is Required
The following summary is a programmatic interpretation, not a legal interpretation regarding CEQA and AB 2644 requirements. School districts should seek local legal counsel review and coordinate with DTSC with regards to compliance with CEQA and/or DTSC public participation plans. Districts should also refer to the appropriate code/guideline sections and the Governor's Office of Planning and Research - State Clearinghouse at 916-445-0613, to ensure compliance.
A) Preliminary Draft PEA Review And DTSC Approval Or Request For Modifications
Per ECS 17213.1(a)(5&6), in cases where a PEA is prepared under an EOA, districts shall now submit a "Preliminary Draft" PEA to DTSC for review, and to CDE for its files (CDE prefers just the executive summary). DTSC will then have up to 60 calendar days after receipt to complete its review of the Preliminary Draft PEA. DTSC shall then either return the Preliminary Draft PEA with comments and request for modifications/further assessments, or approve the document as a "Final Draft" PEA. If modifications are requested by DTSC, these must be submitted prior to DTSC approval.
B) Making Final Draft PEA Available On The Same Basis/Time As CEQA Documents
Per ECS 17213.1(a)(6), if the Final Draft PEA is approved by DTSC, and the district elects to proceed with the site acquisition or school construction project, the district shall make the Final Draft PEA available to the public on the same basis and time as it makes available the draft CEQA document for the site (e.g., draft initial study-proposed negative declaration or draft Environmental Impact Report-(DEIR) for the site acquisition) . It would be reasonable to assume that this provision would also apply to construction only projects not involving site acquisitions. It would also seem reasonable to assume that the district will be required to "notice" the public availability of this Final Draft PEA as it would for its draft CEQA document comment period and public hearing(s).
C) Requirements For CEQA Document Public Review Period & Notice Of Intent To Adopt
Note that per California Code of Regulations, Title 5 Section 14011(h), districts pursuing state funded facility projects shall prepare an EIR or a negative declaration in compliance with CEQA as part of CDE approval before acquiring title to property for school use. The following notice requirements for negative declarations and EIRs are summarized from CEQA, per the Public Resource Code (PRC 21000) and its Guidelines (California Code of Regulations, Title 14, Division 6, Chapter 3, Sections 15000-15387) .
Among other information, the notice must contain the starting and ending dates for the review period and the location of where the documents are available for review (see PRC 21092 and Guidelines 15072 and 15087) .
The CEQA requirements for a notice of intent to adopt a negative declaration or an EIR (allowing public review and comment period) are summarized as follows:
- Notice shall be given to all organizations and individuals who have previously requested notice, and to responsible and trustee agencies, and the county clerk (see PRC 21092 and 21092.2, and Guidelines 15072, 15087) and;
- Notice shall be given by at least one of the following procedures
(see PRC 21092(b)(3) and Guidelines 15072, 15087)
- Publication at least once in a newspaper of general circulation in the area affected,
- Posting of notice on and off-site in the area of the project, or
- Direct mailing to owners and occupants of contiguous property shown on the latest tax assessment roll.
D) Notice For Public Hearings
CEQA also requires that the above described notice for the public comment period shall also include notice of any lead agency public hearings on the proposed project, if they are known at the time of the notice (see PRC section 21092.3 and Guidelines 15072,15087) . ECS 17213.1(a)(6) states the district shall hold a public hearing on the Final Draft PEA and the draft CEQA document for the project at the same time pursuant to the PRC. However, CEQA Guidelines section 15202 and 15087 state that CEQA does not require formal public hearings at any stage of the environmental review process as public comments may be restricted to written communication. Thus, if the district elects to conduct a hearing on the CEQA document or project approval (which would be the normal practice for school districts), it would also seem reasonable to notice the same hearing on the Final Draft PEA. PRC 15202 also states that if conducting a public hearing on project approval, it should include environmental review as one of the subjects for the hearing, and that to the extent possible, the public agency notice should be made available on its internet web site.
E) Draft CEQA Document Circulation Through State Clearinghouse- Length Of Comment Period
As required per CEQA Guidelines 15205 and 15085, draft EIRs and proposed negative declarations with a Notice of Completion (NOC) shall be submitted to the Governor's Office of Planning and Research (OPR)-State Clearinghouse (SCH) for circulation to public agencies for review and comment. CEQA Guidelines 15205(b)(2) regarding required OPR SCH submittals generally state that draft negative declarations and draft EIRs shall be submitted to the SCH for review by public agencies when either: 1) the draft EIR or negative declaration is prepared by a state agency where such agency is a lead agency (such as DTSC) , or 2) the draft is prepared by a public agency (such as school district) where a state agency is a responsible agency, trustee agency or otherwise has jurisdiction by law with respect to the project, or 3) for projects identified in Guidelines section 15206 as being of statewide, regional or areawide significance, or 4) draft assessments are prepared pursuant to Federal Guidelines under the National Environmental Policy Act.
Thus, essentially for all projects involving district school site acquisition (and major school construction projects not exempt from CEQA), distribution of the draft CEQA document through OPR SCH would seem necessary because state agencies such as CDE, Division of State Architect (DSA), Office of Public School Construction (OPSC), SAB, and DTSC will have some jurisdiction by law with respect to the project.
CEQA also requires that this noticed draft CEQA document public review period shall be at least as long as the public agency comment period (normally at least 30 days if a negative declaration and at least 45 if an EIR) initiated via circulation of the draft CEQA document through the State Clearinghouse (see PRC 21091(c), Guidelines 15072, 15073, 15085, 15105, 15205) . Note that PRC 21091(e) and Guidelines 15105 also provide the opportunity for a requested shortened SCH review period for projects meeting certain criteria. These shortened reviews shall not be less than 20 days for a negative declaration and not less than 30 days for a draft EIR. Thus, districts will need to coordinate their noticed public comment periods and SCH circulation review periods.
F) CEQA Document Not Available Until More Than 90 Days After Final Draft PEA Approval
Pursuant to ECS 17213.1(a)(6), if the district's CEQA document will not be made available until more than 90 days (assume calendar days) after the Final Draft PEA is approved by DTSC, the district shall within 60 days (assume calendar days) of DTSC's approval of the Final Draft PEA, separately publish a notice of availability of the Final Draft PEA in a local newspaper of general circulation. This would seem to imply that the district must be able to make a projection as to when the CEQA document will be available in order to comply with the publication requirements. The district would still then need to comply with notification/hearing requirements and take an approval action on its draft CEQA document when it is available and before DTSC's approval of the Final PEA. Although no time frame requirements are specified in the ECS, it would seem reasonable that the district would conduct the normal notification/hearing simultaneously for the Final Draft PEA and the draft CEQA document.
G) Comments On Final Draft PEA/Draft CEQA Document Immediately Sent To DTSC
Per ECS 17213.1(a)(6), all comments received by the district pertaining to the Final Draft PEA and draft negative declaration or draft EIR shall be forwarded to DTSC immediately. It would seem to be in the district's interest if it also immediately provided notification to DTSC of any district approval action taken on its CEQA document. DTSC will then consider these comments before approving or disapproving the Final PEA within 30 days (assume calendar days) of the district's approval on their CEQA document. DTSC has indicated that if no comments are received by the district, their Final PEA determination should occur very quickly.
H) Projects For Which CEQA Has Already Been Completed Prior To Initiating PEA
Per ECS 17213.1(a)(6), if the district has already complied with CEQA for the project site prior to initiating the PEA (i.e., already adopted a negative declaration or final EIR), the district shall reconsider the adequacy of its approved negative declaration or final EIR in light of the approved Final Draft PEA and determine whether a further environmental document is necessary. The district shall hold a public hearing on the Final Draft PEA and its determination on the adequacy of the existing environmental documents at the same time and in the same manner as it would for a draft negative declaration or draft EIR . As previously discussed, CEQA does not require a public hearing. However, if a public hearing is held, this provision would appear to require prior notification as described above in section 3, including the county clerk and either posting, mailing or newspaper publication including information for both the public comment period and public hearing. At this hearing the district may then determine, considering the Final Draft PEA and any comments received, if their previously approved negative declaration or EIR is adequate. In cases where supplemental or new CEQA documents will be needed, it would seem practical for the district to come to this conclusion during the initial study phase and to then prepare these documents before waiting until a hearing to formally reach this conclusion.
Per the same ECS, the district shall forward any comments received on the CEQA or Final Draft PEA documents immediately to DTSC. Again it would also seem to be in the district's interest to also notify DTSC immediately of any district action taken to determine the adequacy of its previously adopted CEQA document. DTSC will then consider these comments before approving or disapproving the Final PEA within 30 days (assume calendar days) of the district's approval on their CEQA document. In cases where the district's governing board has also previously approved the project and filed a notice of determination with the SCH and the County Clerk, it would not appear to be required to re-approve the project nor refile a notice of determination. If the district determines that a further environmental document is necessary, it may be assumed that the district will need to prepare this document which may require re-notification, SCH circulation, public hearing and adoption (as noted above, this decision would seem to be more appropriately made at the initial study phase).
I) DTSC Final PEA Approval And District Approval Of Project
Per ECS 17213(a)(6), within 30 days (assume calendar days) of the district's approval action on its CEQA document, DTSC shall approve or disapprove the Final PEA and shall issue notice of its determination (e.g. "no further action" or Response Action required, and whether any changes are needed to approve the PEA) accompanied by a statement of the basis of the decision. The district shall then consider whether changes between the Final and Final Draft PEA (if any) require any change in its CEQA determination. There are no notice or hearing requirements specified for districts to make this consideration and it would appear to be rare that changes between the Final and Final Draft PEA would require changes in the CEQA determination. Note that typically the district's governing board will approve a school project at a noticed public meeting.
Per the same ECS, the district shall not file its CEQA notice of determination (NOD) on the school project approval until after DTSC has approved the Final PEA. PRC 21152 and CEQA Guidelines 15075 and 15094 state that the lead agency shall file the NOD with the county clerk and OPR-SCH within five working days after the project approval by the lead agency. Since DTSC will have up to 30 days to make a Final PEA determination after the district approves its CEQA document and the district must file a NOD within five working days after it approves the project, it is reasonable that the district should: a) at first only take action approving its CEQA document, b) wait until DTSC approves the Final PEA, c) then the district may approve the project (assuming that it considers its CEQA document still to be adequate), and then d) file a NOD. Should the district approve the CEQA document and the construction project simultaneously, it runs the risk of not receiving DTSC's Final PEA approval in time to allow the district to file its NOD within 5 workings days of the project approval. This sequence may then trigger a longer legal challenge period for CEQA. Should changes in the DTSC approved Final versus Draft Final PEA require changes in the district's CEQA document, the district will need to determine what revisions (e.g., substitution of mitigation measures, addendum, or supplemental document), notification or even recirculation of this document are required prior to approving the CEQA document and project. After district approval of the school project and filing of the NOD, the district may proceed with CDE final site or plan approval. Districts should also refer to OPSC and SAB regulations regarding requirements for advanced site and construction grant planning funding for "environmental" or "financial" hardship cases.
- Projects For
Which Response Action Is Required
A) DTSC Public Participation Plan Activities Pursuant To Health And Safety Code
For projects in which DTSC approves the Final Draft PEA and determines that a Response Action is required, and the district elects to pursue the site acquisition/construction project, according to ECS 17213.1(a)(6), the district shall also comply with the Public Participation requirements of sections 25358.7 and 25358.7.1 of the Health and Safety Code (and other applicable provisions) with respect to those response actions. DTSC has interpreted this to mean that: 1) the above described AB 2644 procedures for PEA reviews shall still apply through the Final PEA approval, and 2) the district will also need to coordinate with DTSC on a case-by-case basis for the Response Action additional Public Participation Plan activities, portions of which may be concurrent with CEQA compliance activities (and the PEA review/hearing process).
Per DTSC policies and procedures, the specific compliance with these Health and Safety Code sections will depend upon the type of Response Action(s) and level of community interest. For example, the less extensive Removal Action Workplan (RAW) may include only mailed community surveys, fact sheets, and noticed informational meetings. If the response action involves a more extensive Remedial Action Plan (RAP) the public participation plan may involve more detailed demographics, land use information, community and local official interviews, fact sheets, and noticed public meetings. Many of the Public Participation Plan activities may be concurrent with the PEA/CEQA review and hearing process to the extent possible. In many cases the district may choose to first prepare the draft Response Action and its CEQA document for simultaneous public comment and hearing with the Final Draft PEA. In other cases the district may choose to first conduct a separate comment period and hearing on the Final Draft PEA and CEQA document, and then after Final PEA approval conduct the Response Action Public Participation Plan and its CEQA process. For further information on the Public Participation activities contact DTSC (see DTSC contact information at the bottom).
Note that there has been no change in the ECS requirement for CDE Site Approval (implemented by CDE as a Contingent Site Approval) for all projects requiring a Response Action that the district elects to pursue. This Contingent Site Approval may be sought as soon as DTSC approves the Final Draft PEA requiring a further action. Districts that have qualified for financial hardship per SAB/OPSC regulations, however, may seek CDE Contingent Site Approval at any time. Districts seeking CDE contingent site approval (and CDE determination that the site is the best available site, as required for advanced hardship funding) should also refer to the additional studies required per ECS 17213.1(a)(9)(A), (B) and (D) related to estimated costs of cleanup, and benefits and suitability of the proposed site.
B) Options For Compliance With CEQA And Public Notification In cases where the district elects to pursue sites for which DTSC has recommended further action in an approved Final PEA, the district must prepare a draft Response Action under a Voluntary Cleanup Agreement (VCA) with DTSC. This Response Action is a project subject to CEQA document approval. In order to satisfy this requirement, it would seem reasonable that the district may either: 1) incorporate the Response Action into the total school project description for simultaneous CEQA analysis with the site acquisition/project construction, or 2) prepare an addendum or supplement to the district's previously adopted CEQA document, or 3) either the district or DTSC, as lead agency, may prepare a separate additional CEQA document for the response action only. In either case the district shall notice the public comment period for the Final Draft PEA, and the draft CEQA document (which may include analysis of the draft response action) according to CEQA and its Guidelines (e.g., notice for comment period and public hearings, filing with the County Clerk, and circulation to the State Clearinghouse, etc.) . Although not specified in the ECS, it may be reasonable and more time efficient for the district to choose to first prepare the Response Action and its CEQA analysis before simultaneously conducting the noticed Final Draft PEA/draft CEQA document public availability comment period/hearing, and Public Participation Plan for the Response Action. However, the district could also choose to compete the noticed availability of only the Final Draft PEA/draft CEQA document comment period/hearing and then separately conduct the preparation of the Response Action and its CEQA document and DTSC's Public Participation Plan activities after DTSC's approval of the Final PEA.
After the CEQA document is approved by the lead agency and the Final PEA is approved by DTSC, the district may then approve the school project and the DTSC approved Response Action and file a Notice of Determination with the County Clerk and the State Clearinghouse within five working days of the approval. After DTSC certifies completion of the Response Action under their oversight, the district may then seek CDE final site or plan approval.
Note that in some Response Actions, DTSC may be the lead agency and that certain Removal Action Workplans (RAWs) may be eligible for a Categorical Exemption (see CEQA Guidelines section 15330) in which case a Notice of Exemption may be filed with the County Clerk.
C) Option For Site Acquisition Phase, In Advance Of School Construction/Response Action Project Approvals
Districts may also consider an option not described in AB 2644 in which they process and approve the site acquisition separately and in advance of approval of the Response Action and school construction project. This may be preferred by districts in cases where projects are to be completed in phases, or if site acquisition needs to be accomplished as soon as possible, instead of waiting for Final PEA approval, and separate preparation and approval of the Response Action and its CEQA document. Site acquisition in advance of final DTSC approval may also be necessary to accomplish demolition of existing buildings and/or removal of soil to allow confirmation sampling for lead-based paint.
Per ECS 17213.1(a)(9), After DTSC approves the Final Draft PEA which determines that further investigation (a Response Action) is required, the district (assuming they wish to pursue the project) must seek and obtain SFPD Contingent Site Approval (assuming the site meets all of the other site selection criteria as described on SFPD 4.01) . If pursuing the advanced acquisition option, districts will most likely be conducting the public comment period and hearing on the Final Draft PEA and draft CEQA document (or reconsideration of the adequacy of previously adopted CEQA document) without the specifics for a Response Action. Per CEQA Guidelines 15075, for projects approved in phases, the lead agency shall file a notice of determination after deciding to carry out or approve each phase (e.g., acquisition, response action, construction) . In order to meet the intent of CEQA, districts should to the largest degree possible, consider the whole of the known project and not conduct piecemeal analysis.
In these cases, the district will also need to pursue separately the preparation of a Response Action under DTSC oversight, and conduct CEQA review and project approval as previously described for both the construction project and the Response Action. The required Public Participation Plan activities may be conducted concurrently with the CEQA process on the Response Action to the extent possible as coordinated with DTSC.
- DTSC Contacts
To learn more about the California Department of Toxic Substances Control visit their Web site or to initiate an oversight agreement, please contact:
Glendale and Sacramento Offices
Sacramento Unit Chief - Chein Koa, 916-255-6422, firstname.lastname@example.org
8800 Cal Center Drive
Sacramento, CA 95826
Glendale Unit Chief - Javier Hinojosa, 818-551-2172, email@example.com
1011 North Grandview Avenue
Glendale, CA 91201
Cypress and San Diego Offices
Branch Chief - Peter Garcia, 714-484-5310, firstname.lastname@example.org
Cypress Unit Chief - Triss Chesney, 714-484-5447, email@example.com
5796 Corporate Avenue
Cypress, CA 90603
- Flow Charts
Attached are three flow charts to help follow the
The first chart is a composite of the CDE/DTSC total review and approval process for site approvals (PDF). (Accessible version)
Note that the process for CDE plan approvals on existing school sites may have slightly different or additional requirements.
The second detailed chart summarizes only the PEA/CEQA public review/project approval process for projects for which no response action is required (PDF). (Accessible version)
The third chart shows the PEA/CEQA process details for projects for which a Response Action is required (PDF). (Accessible Version)