BILL NUMBER: AB 2669 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 31, 2012
PASSED THE ASSEMBLY AUGUST 31, 2012
AMENDED IN SENATE JUNE 21, 2012
AMENDED IN SENATE JUNE 11, 2012
INTRODUCED BY Committee on Natural Resources (Assembly Members
Chesbro (Chair), Brownley, Dickinson, Halderman, Huffman, Monning,
and Skinner)
MARCH 5, 2012
An act to amend Sections 21080, 21080.5, 21080.23, 21080.24,
21083.05, 21084, 21091, 21092.6, 21094, 21151.1, 21159.9, and
21167.10 of, and to repeal Sections 21172, 21172.5, 21175, and 21176
of, the Public Resources Code, relating to environmental quality.
LEGISLATIVE COUNSEL'S DIGEST
AB 2669, Committee on Natural Resources. Environmental quality:
California Environmental Quality Act.
The California Environmental Quality Act (CEQA) requires a lead
agency, as defined, to prepare, or cause to be prepared, and certify
the completion of, an environmental impact report (EIR) on a project
that it proposes to carry out or approve that may have a significant
effect on the environment or to adopt a negative declaration if it
finds that the project will not have that effect. CEQA also requires
a lead agency to prepare a mitigated negative declaration for a
project that may have a significant effect on the environment if
revisions in the project would avoid or mitigate that effect and
there is no substantial evidence that the project, as revised, would
have a significant effect on the environment. CEQA requires the
Secretary of the Natural Resources Agency, by July 1, 2004, to
develop a protocol for reviewing prospective application of certified
regulatory programs to evaluate the consistency of those programs
with the requirements of CEQA and requires the secretary, in
developing the protocol, hold at least 2 public meetings and provide
to a person who files a written request for a notice 10 days prior to
the meeting (10 days notice).
This bill would authorize the secretary to update the protocol.
The bill would require the secretary, in updating the protocol, to
hold at least 2 public meetings and to provide the 10-days notice to
a person who files a written request for the notice and to specified
committees of the Legislature. The bill would repeal obsolete and
duplicative provisions from CEQA.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21080 of the Public Resources Code is amended
to read:
21080. (a) Except as otherwise provided in this division, this
division shall apply to discretionary projects proposed to be carried
out or approved by public agencies, including, but not limited to,
the enactment and amendment of zoning ordinances, the issuance of
zoning variances, the issuance of conditional use permits, and the
approval of tentative subdivision maps unless the project is exempt
from this division.
(b) This division does not apply to any of the following
activities:
(1) Ministerial projects proposed to be carried out or approved by
public agencies.
(2) Emergency repairs to public service facilities necessary to
maintain service.
(3) Projects undertaken, carried out, or approved by a public
agency to maintain, repair, restore, demolish, or replace property or
facilities damaged or destroyed as a result of a disaster in a
disaster-stricken area in which a state of emergency has been
proclaimed by the Governor pursuant to Chapter 7 (commencing with
Section 8550) of Division 1 of Title 2 of the Government Code.
(4) Specific actions necessary to prevent or mitigate an
emergency.
(5) Projects which a public agency rejects or disapproves.
(6) Actions undertaken by a public agency relating to any thermal
powerplant site or facility, including the expenditure, obligation,
or encumbrance of funds by a public agency for planning, engineering,
or design purposes, or for the conditional sale or purchase of
equipment, fuel, water (except groundwater), steam, or power for a
thermal powerplant, if the powerplant site and related facility will
be the subject of an environmental impact report, negative
declaration, or other document, prepared pursuant to a regulatory
program certified pursuant to Section 21080.5, which will be prepared
by the State Energy Resources Conservation and Development
Commission, by the Public Utilities Commission, or by the city or
county in which the powerplant and related facility would be located
if the environmental impact report, negative declaration, or document
includes the environmental impact, if any, of the action described
in this paragraph.
(7) Activities or approvals necessary to the bidding for, hosting
or staging of, and funding or carrying out of, an Olympic games under
the authority of the International Olympic Committee, except for the
construction of facilities necessary for the Olympic games.
(8) The establishment, modification, structuring, restructuring,
or approval of rates, tolls, fares, or other charges by public
agencies which the public agency finds are for the purpose of (A)
meeting operating expenses, including employee wage rates and fringe
benefits, (B) purchasing or leasing supplies, equipment, or
materials, (C) meeting financial reserve needs and requirements, (D)
obtaining funds for capital projects necessary to maintain service
within existing service areas, or (E) obtaining funds necessary to
maintain those intracity transfers as are authorized by city charter.
The public agency shall incorporate written findings in the record
of any proceeding in which an exemption under this paragraph is
claimed setting forth with specificity the basis for the claim of
exemption.
(9) All classes of projects designated pursuant to Section 21084.
(10) A project for the institution or increase of passenger or
commuter services on rail or highway rights-of-way already in use,
including modernization of existing stations and parking facilities.
(11) A project for the institution or increase of passenger or
commuter service on high-occupancy vehicle lanes already in use,
including the modernization of existing stations and parking
facilities.
(12) Facility extensions not to exceed four miles in length which
are required for the transfer of passengers from or to exclusive
public mass transit guideway or busway public transit services.
(13) A project for the development of a regional transportation
improvement program, the state transportation improvement program, or
a congestion management program prepared pursuant to Section 65089
of the Government Code.
(14) Any project or portion thereof located in another state which
will be subject to environmental impact review pursuant to the
National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et
seq.) or similar state laws of that state. Any emissions or
discharges that would have a significant effect on the environment in
this state are subject to this division.
(15) Projects undertaken by a local agency to implement a rule or
regulation imposed by a state agency, board, or commission under a
certified regulatory program pursuant to Section 21080.5. Any
site-specific effect of the project which was not analyzed as a
significant effect on the environment in the plan or other written
documentation required by Section 21080.5 is subject to this
division.
(c) If a lead agency determines that a proposed project, not
otherwise exempt from this division, would not have a significant
effect on the environment, the lead agency shall adopt a negative
declaration to that effect. The negative declaration shall be
prepared for the proposed project in either of the following
circumstances:
(1) There is no substantial evidence, in light of the whole record
before the lead agency, that the project may have a significant
effect on the environment.
(2) An initial study identifies potentially significant effects on
the environment, but (A) revisions in the project plans or proposals
made by, or agreed to by, the applicant before the proposed negative
declaration and initial study are released for public review would
avoid the effects or mitigate the effects to a point where clearly no
significant effect on the environment would occur, and (B) there is
no substantial evidence, in light of the whole record before the lead
agency, that the project, as revised, may have a significant effect
on the environment.
(d) If there is substantial evidence, in light of the whole record
before the lead agency, that the project may have a significant
effect on the environment, an environmental impact report shall be
prepared.
(e) (1) For the purposes of this section and this division,
substantial evidence includes fact, a reasonable assumption
predicated upon fact, or expert opinion supported by fact.
(2) Substantial evidence is not argument, speculation,
unsubstantiated opinion or narrative, evidence that is clearly
inaccurate or erroneous, or evidence of social or economic impacts
that do not contribute to, or are not caused by, physical impacts on
the environment.
(f) As a result of the public review process for a mitigated
negative declaration, including administrative decisions and public
hearings, the lead agency may conclude that certain mitigation
measures identified pursuant to paragraph (2) of subdivision (c) are
infeasible or otherwise undesirable. In those circumstances, the lead
agency, prior to approving the project, may delete those mitigation
measures and substitute for them other mitigation measures that the
lead agency finds, after holding a public hearing on the matter, are
equivalent or more effective in mitigating significant effects on the
environment to a less than significant level and that do not cause
any potentially significant effect on the environment. If those new
mitigation measures are made conditions of project approval or are
otherwise made part of the project approval, the deletion of the
former measures and the substitution of the new mitigation measures
shall not constitute an action or circumstance requiring
recirculation of the mitigated negative declaration.
(g) Nothing in this section shall preclude a project applicant or
any other person from challenging, in an administrative or judicial
proceeding, the legality of a condition of project approval imposed
by the lead agency. If, however, any condition of project approval
set aside by either an administrative body or court was necessary to
avoid or lessen the likelihood of the occurrence of a significant
effect on the environment, the lead agency's approval of the negative
declaration and project shall be invalid and a new environmental
review process shall be conducted before the project can be
reapproved, unless the lead agency substitutes a new condition that
the lead agency finds, after holding a public hearing on the matter,
is equivalent to, or more effective in, lessening or avoiding
significant effects on the environment and that does not cause any
potentially significant effect on the environment.
SEC. 2. Section 21080.5 of the Public Resources Code is amended to
read:
21080.5. (a) Except as provided in Section 21158.1, when the
regulatory program of a state agency requires a plan or other written
documentation containing environmental information and complying
with paragraph (3) of subdivision (d) to be submitted in support of
an activity listed in subdivision (b), the plan or other written
documentation may be submitted in lieu of the environmental impact
report required by this division if the Secretary of the Resources
Agency has certified the regulatory program pursuant to this section.
(b) This section applies only to regulatory programs or portions
thereof that involve either of the following:
(1) The issuance to a person of a lease, permit, license,
certificate, or other entitlement for use.
(2) The adoption or approval of standards, rules, regulations, or
plans for use in the regulatory program.
(c) A regulatory program certified pursuant to this section is
exempt from Chapter 3 (commencing with Section 21100), Chapter 4
(commencing with Section 21150), and Section 21167, except as
provided in Article 2 (commencing with Section 21157) of Chapter 4.5.
(d) To qualify for certification pursuant to this section, a
regulatory program shall require the utilization of an
interdisciplinary approach that will ensure the integrated use of the
natural and social sciences in decisionmaking and that shall meet
all of the following criteria:
(1) The enabling legislation of the regulatory program does both
of the following:
(A) Includes protection of the environment among its principal
purposes.
(B) Contains authority for the administering agency to adopt rules
and regulations for the protection of the environment, guided by
standards set forth in the enabling legislation.
(2) The rules and regulations adopted by the administering agency
for the regulatory program do all of the following:
(A) Require that an activity will not be approved or adopted as
proposed if there are feasible alternatives or feasible mitigation
measures available that would substantially lessen a significant
adverse effect that the activity may have on the environment.
(B) Include guidelines for the orderly evaluation of proposed
activities and the preparation of the plan or other written
documentation in a manner consistent with the environmental
protection purposes of the regulatory program.
(C) Require the administering agency to consult with all public
agencies that have jurisdiction, by law, with respect to the proposed
activity.
(D) Require that final action on the proposed activity include the
written responses of the issuing authority to significant
environmental points raised during the evaluation process.
(E) Require the filing of a notice of the decision by the
administering agency on the proposed activity with the Secretary of
the Resources Agency. Those notices shall be available for public
inspection, and a list of the notices shall be posted on a weekly
basis in the Office of the Resources Agency. Each list shall remain
posted for a period of 30 days.
(F) Require notice of the filing of the plan or other written
documentation to be made to the public and to a person who requests,
in writing, notification. The notification shall be made in a manner
that will provide the public or a person requesting notification with
sufficient time to review and comment on the filing.
(3) The plan or other written documentation required by the
regulatory program does both of the following:
(A) Includes a description of the proposed activity with
alternatives to the activity, and mitigation measures to minimize any
significant adverse effect on the environment of the activity.
(B) Is available for a reasonable time for review and comment by
other public agencies and the general public.
(e) (1) The Secretary of the Resources Agency shall certify a
regulatory program that the secretary determines meets all the
qualifications for certification set forth in this section, and
withdraw certification on determination that the regulatory program
has been altered so that it no longer meets those qualifications.
Certification and withdrawal of certification shall occur only after
compliance with Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code.
(2) In determining whether or not a regulatory program meets the
qualifications for certification set forth in this section, the
inquiry of the secretary shall extend only to the question of whether
the regulatory program meets the generic requirements of subdivision
(d). The inquiry may not extend to individual decisions to be
reached under the regulatory program, including the nature of
specific alternatives or mitigation measures that might be proposed
to lessen any significant adverse effect on the environment of the
activity.
(3) If the secretary determines that the regulatory program
submitted for certification does not meet the qualifications for
certification set forth in this section, the secretary shall adopt
findings setting forth the reasons for the determination.
(f) After a regulatory program has been certified pursuant to this
section, a proposed change in the program that could affect
compliance with the qualifications for certification specified in
subdivision (d) may be submitted to the Secretary of the Resources
Agency for review and comment. The scope of the secretary's review
shall extend only to the question of whether the regulatory program
meets the generic requirements of subdivision (d). The review may not
extend to individual decisions to be reached under the regulatory
program, including specific alternatives or mitigation measures that
might be proposed to lessen any significant adverse effect on the
environment of the activity. The secretary shall have 30 days from
the date of receipt of the proposed change to notify the state agency
whether the proposed change will alter the regulatory program so
that it no longer meets the qualification for certification
established in this section and will result in a withdrawal of
certification as provided in this section.
(g) An action or proceeding to attack, review, set aside, void, or
annul a determination or decision of a state agency approving or
adopting a proposed activity under a regulatory program that has been
certified pursuant to this section on the basis that the plan or
other written documentation prepared pursuant to paragraph (3) of
subdivision (d) does not comply with this section shall be commenced
not later than 30 days from the date of the filing of notice of the
approval or adoption of the activity.
(h) (1) An action or proceeding to attack, review, set aside,
void, or annul a determination of the Secretary of the Resources
Agency to certify a regulatory program pursuant to this section on
the basis that the regulatory program does not comply with this
section shall be commenced within 30 days from the date of
certification by the secretary.
(2) In an action brought pursuant to paragraph (1), the inquiry
shall extend only to whether there was a prejudicial abuse of
discretion by the secretary. Abuse of discretion is established if
the secretary has not proceeded in a manner required by law or if the
determination is not supported by substantial evidence.
(i) For purposes of this section, a county agricultural
commissioner is a state agency.
(j) For purposes of this section, an air quality management
district or air pollution control district is a state agency, except
that the approval, if any, by a district of a nonattainment area plan
is subject to this section only if, and to the extent that, the
approval adopts or amends rules or regulations.
(k) (1) The secretary, by July 1, 2004, shall develop a protocol
for reviewing the prospective application of certified regulatory
programs to evaluate the consistency of those programs with the
requirements of this division. Following the completion of the
development of the protocol, the secretary shall provide a report to
the Senate Committee on Environmental Quality and the Assembly
Committee on Natural Resources regarding the need for a grant of
additional statutory authority authorizing the secretary to undertake
a review of the certified regulatory programs.
(2) The secretary may update the protocol, and may update the
report provided to the legislative committees pursuant to paragraph
(1) and provide, in compliance with Section 9795 of the Government
Code, the updated report to those committees if additional statutory
authority is needed.
(3) The secretary shall provide a significant opportunity for
public participation in developing or updating the protocol described
in paragraph (1) or (2) including, but not limited to, at least two
public meetings with interested parties. A notice of each meeting
shall be provided at least 10 days prior to the meeting to a person
who files a written request for a notice with the agency and to the
Senate Committee on Environmental Quality and the Assembly Committee
on Natural Resources.
SEC. 3. Section 21080.23 of the Public Resources Code is amended
to read:
21080.23. (a) This division does not apply to any project which
consists of the inspection, maintenance, repair, restoration,
reconditioning, relocation, replacement, or removal of an existing
pipeline, as defined in subdivision (a) of Section 51010.5 of the
Government Code, or any valve, flange, meter, or other piece of
equipment that is directly attached to the pipeline, if the project
meets all of the following conditions:
(1) (A) The project is less than eight miles in length.
(B) Notwithstanding subparagraph (A), actual construction and
excavation activities undertaken to achieve the maintenance, repair,
restoration, reconditioning, relocation, replacement, or removal of
an existing pipeline are not undertaken over a length of more than
one-half mile at any one time.
(2) The project consists of a section of pipeline that is not less
than eight miles from any section of pipeline that has been subject
to an exemption pursuant to this section in the past 12 months.
(3) The project is not solely for the purpose of excavating soil
that is contaminated by hazardous materials, and, to the extent not
otherwise expressly required by law, the party undertaking the
project immediately informs the lead agency of the discovery of
contaminated soil.
(4) To the extent not otherwise expressly required by law, the
person undertaking the project has, in advance of undertaking the
project, prepared a plan that will result in notification of the
appropriate agencies so that they may take action, if determined to
be necessary, to provide for the emergency evacuation of members of
the public who may be located in close proximity to the project.
(5) Project activities are undertaken within an existing
right-of-way and the right-of-way is restored to its condition prior
to the project.
(6) The project applicant agrees to comply with all conditions
otherwise authorized by law, imposed by the city or county planning
department as part of any local agency permit process, that are
required to mitigate potential impacts of the proposed project, and
to otherwise comply with the Keene-Nejedly California Wetlands
Preservation Act (Chapter 7 (commencing with Section 5810) of
Division 5), the California Endangered Species Act (Chapter 1.5
(commencing with Section 2050) of Division 3 of the Fish and Game
Code), and other applicable state laws, and with all applicable
federal laws.
(b) If a project meets all of the requirements of subdivision (a),
the person undertaking the project shall do all of the following:
(1) Notify, in writing, any affected public agency, including, but
not limited to, any public agency having permit, land use,
environmental, public health protection, or emergency response
authority of the exemption of the project from this division by
subdivision (a).
(2) Provide notice to the public in the affected area in a manner
consistent with paragraph (3) of subdivision (b) of Section 21092.
(3) In the case of private rights-of-way over private property,
receive from the underlying property owner permission for access to
the property.
(4) Comply with all conditions otherwise authorized by law,
imposed by the city or county planning department as part of any
local agency permit process, that are required to mitigate potential
impacts of the proposed project, and otherwise comply with the
Keene-Nejedly California Wetlands Preservation Act (Chapter 7
(commencing with Section 5810) of Division 5), the California
Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of
Division 3 of the Fish and Game Code), and other applicable state
laws, and with all applicable federal laws.
(c) This section does not apply to either of the following:
(1) A project in which the diameter of the pipeline is increased.
(2) A project undertaken within the boundaries of an oil refinery.
SEC. 4. Section 21080.24 of the Public Resources Code is amended
to read:
21080.24. This division does not apply to the issuance,
modification, amendment, or renewal of a permit by an air pollution
control district or air quality management district pursuant to Title
V, as defined in Section 39053.3 of the Health and Safety Code, or
pursuant to a district Title V program established pursuant to
Sections 42301.10, 42301.11, and 42301.12 of the Health and Safety
Code, unless the issuance, modification, amendment, or renewal
authorizes a physical or operational change to a source or facility.
SEC. 5. Section 21083.05 of the Public Resources Code is amended
to read:
21083.05. The Office of Planning and Research and the Natural
Resources Agency shall periodically update the guidelines for the
mitigation of greenhouse gas emissions or the effects of greenhouse
gas emissions as required by this division, including, but not
limited to, effects associated with transportation or energy
consumption, to incorporate new information or criteria established
by the State Air Resources Board pursuant to Division 25.5
(commencing with Section 38500) of the Health and Safety Code.
SEC. 6. Section 21084 of the Public Resources Code is amended to
read:
21084. (a) The guidelines prepared and adopted pursuant to
Section 21083 shall include a list of classes of projects that have
been determined not to have a significant effect on the environment
and that shall be exempt from this division. In adopting the
guidelines, the Secretary of the Natural Resources Agency shall make
a finding that the listed classes of projects referred to in this
section do not have a significant effect on the environment.
(b) A project's greenhouse gas emissions shall not, in and of
themselves, be deemed to cause an exemption adopted pursuant to
subdivision (a) to be inapplicable if the project complies with all
applicable regulations or requirements adopted to implement
statewide, regional, or local plans consistent with Section 15183.5
of Title 14 of the California Code of Regulations.
(c) A project that may result in damage to scenic resources,
including, but not limited to, trees, historic buildings, rock
outcroppings, or similar resources, within a highway designated as an
official state scenic highway, pursuant to Article 2.5 (commencing
with Section 260) of Chapter 2 of Division 1 of the Streets and
Highways Code, shall not be exempted from this division pursuant to
subdivision (a). This subdivision does not apply to improvements as
mitigation for a project for which a negative declaration has been
approved or an environmental impact report has been certified.
(d) A project located on a site that is included on any list
compiled pursuant to Section 65962.5 of the Government Code shall not
be exempted from this division pursuant to subdivision (a).
(e) A project that may cause a substantial adverse change in the
significance of an historical resource, as specified in Section
21084.1, shall not be exempted from this division pursuant to
subdivision (a).
SEC. 7. Section 21091 of the Public Resources Code is amended to
read:
21091. (a) The public review period for a draft environmental
impact report may not be less than 30 days. If the draft
environmental impact report is submitted to the State Clearinghouse
for review, the review period shall be at least 45 days, and the lead
agency shall provide a sufficient number of copies of the document
to the State Clearinghouse for review and comment by state agencies.
(b) The public review period for a proposed negative declaration
or proposed mitigated negative declaration may not be less than 20
days. If the proposed negative declaration or proposed mitigated
negative declaration is submitted to the State Clearinghouse for
review, the review period shall be at least 30 days, and the lead
agency shall provide a sufficient number of copies of the document to
the State Clearinghouse for review and comment by state agencies.
(c) (1) Notwithstanding subdivisions (a) and (b), if a draft
environmental impact report, proposed negative declaration, or
proposed mitigated negative declaration is submitted to the State
Clearinghouse for review and the period of review by the State
Clearinghouse is longer than the public review period established
pursuant to subdivision (a) or (b), whichever is applicable, the
public review period shall be at least as long as the period of
review and comment by state agencies as established by the State
Clearinghouse.
(2) The public review period and the state agency review period
may, but are not required to, begin and end at the same time. Day one
of the state agency review period shall be the date that the State
Clearinghouse distributes the CEQA document to state agencies.
(3) If the submittal of a CEQA document is determined by the State
Clearinghouse to be complete, the State Clearinghouse shall
distribute the document within three working days from the date of
receipt. The State Clearinghouse shall specify the information
that will be required in order to
determine the completeness of the submittal of a CEQA document.
(d) (1) The lead agency shall consider comments it receives on a
draft environmental impact report, proposed negative declaration, or
proposed mitigated negative declaration if those comments are
received within the public review period.
(2) (A) With respect to the consideration of comments received on
a draft environmental impact report, the lead agency shall evaluate
comments on environmental issues that are received from persons who
have reviewed the draft and shall prepare a written response pursuant
to subparagraph (B). The lead agency may also respond to comments
that are received after the close of the public review period.
(B) The written response shall describe the disposition of each
significant environmental issue that is raised by commenters. The
responses shall be prepared consistent with Section 15088 of Title 14
of the California Code of Regulations.
(3) (A) With respect to the consideration of comments received on
a draft environmental impact report, proposed negative declaration,
proposed mitigated negative declaration, or notice pursuant to
Section 21080.4, the lead agency shall accept comments via email and
shall treat email comments as equivalent to written comments.
(B) Any law or regulation relating to written comments received on
a draft environmental impact report, proposed negative declaration,
proposed mitigated negative declaration, or notice received pursuant
to Section 21080.4, shall also apply to email comments received for
those reasons.
(e) (1) Criteria for shorter review periods by the State
Clearinghouse for documents that must be submitted to the State
Clearinghouse shall be set forth in the written guidelines issued by
the Office of Planning and Research and made available to the public.
(2) Those shortened review periods may not be less than 30 days
for a draft environmental impact report and 20 days for a negative
declaration.
(3) A request for a shortened review period shall only be made in
writing by the decisionmaking body of the lead agency to the Office
of Planning and Research. The decisionmaking body may designate by
resolution or ordinance a person authorized to request a shortened
review period. A designated person shall notify the decisionmaking
body of this request.
(4) A request approved by the State Clearinghouse shall be
consistent with the criteria set forth in the written guidelines of
the Office of Planning and Research.
(5) A shortened review period may not be approved by the Office of
Planning and Research for a proposed project of statewide, regional,
or areawide environmental significance as determined pursuant to
Section 21083.
(6) An approval of a shortened review period shall be given prior
to, and reflected in, the public notice required pursuant to Section
21092.
(f) Prior to carrying out or approving a project for which a
negative declaration has been adopted, the lead agency shall consider
the negative declaration together with comments that were received
and considered pursuant to paragraph (1) of subdivision (d).
SEC. 8. Section 21092.6 of the Public Resources Code is amended to
read:
21092.6. (a) The lead agency shall consult the lists compiled
pursuant to Section 65962.5 of the Government Code to determine
whether the project and any alternatives are located on a site which
is included on any list. The lead agency shall indicate whether a
site is on any list not already identified by the applicant. The lead
agency shall specify the list and include the information in the
statement required pursuant to subdivision (f) of Section 65962.5 of
the Government Code, in the notice required pursuant to Section
21080.4, a negative declaration, and a draft environmental impact
report. The requirement in this section to specify any list shall not
be construed to limit compliance with this division.
(b) If a project or any alternatives are located on a site which
is included on any of the lists compiled pursuant to Section 65962.5
of the Government Code and the lead agency did not accurately specify
or did not specify any list pursuant to subdivision (a), the
California Environmental Protection Agency shall notify the lead
agency specifying any list with the site when it receives notice
pursuant to Section 21080.4, a negative declaration, and a draft
environmental impact report. The California Environmental Protection
Agency shall not be liable for failure to notify the lead agency
pursuant to this subdivision.
SEC. 9. Section 21094 of the Public Resources Code, as amended by
Section 3.5 of Chapter 496 of the Statutes of 2010, is amended to
read:
21094. (a) (1) If a prior environmental impact report has been
prepared and certified for a program, plan, policy, or ordinance, the
lead agency for a later project that meets the requirements of this
section shall examine significant effects of the later project upon
the environment by using a tiered environmental impact report, except
that the report on the later project is not required to examine
those effects that the lead agency determines were either of the
following:
(A) Mitigated or avoided pursuant to paragraph (1) of subdivision
(a) of Section 21081 as a result of the prior environmental impact
report.
(B) Examined at a sufficient level of detail in the prior
environmental impact report to enable those effects to be mitigated
or avoided by site-specific revisions, the imposition of conditions,
or by other means in connection with the approval of the later
project.
(2) If a prior environmental impact report has been prepared and
certified for a program, plan, policy, or ordinance, and the lead
agency makes a finding of overriding consideration pursuant to
subdivision (b) of Section 21081, the lead agency for a later project
that uses a tiered environmental impact report from that program,
plan, policy, or ordinance may incorporate by reference that finding
of overriding consideration if all of the following conditions are
met:
(A) The lead agency determines that the project's significant
impacts on the environment are not greater than or different from
those identified in the prior environmental impact report.
(B) The lead agency incorporates into the later project all the
applicable mitigation measures identified by the prior environmental
impact report.
(C) The prior finding of overriding considerations was not based
on a determination that mitigation measures should be identified and
approved in a subsequent environmental review.
(D) The prior environmental impact report was certified not more
than three years before the date findings are made pursuant to
Section 21081 for the later project.
(E) The lead agency has determined that the mitigation measures or
alternatives found to be infeasible in the prior environmental
impact report pursuant to paragraph (3) of subdivision (a) of Section
21081 remain infeasible based on the criteria set forth in that
section.
(b) This section applies only to a later project that the lead
agency determines is all of the following:
(1) Consistent with the program, plan, policy, or ordinance for
which an environmental impact report has been prepared and certified.
(2) Consistent with applicable local land use plans and zoning of
the city, county, or city and county in which the later project would
be located.
(3) Not subject to Section 21166.
(c) For purposes of compliance with this section, an initial study
shall be prepared to assist the lead agency in making the
determinations required by this section. The initial study shall
analyze whether the later project may cause significant effects on
the environment that were not examined in the prior environmental
impact report.
(d) All public agencies that propose to carry out or approve the
later project may utilize the prior environmental impact report and
the environmental impact report on the later project to fulfill the
requirements of Section 21081.
(e) (1) If a lead agency determines pursuant to this subdivision
that a cumulative effect has been adequately addressed in a prior
environmental impact report, that cumulative effect is not required
to be examined in a later environmental impact report, mitigated
negative declaration, or negative declaration for purposes of
subparagraph (B) of paragraph (1) of subdivision (a).
(2) When assessing whether there is new significant cumulative
effect, the lead agency shall consider whether the incremental
effects of the project are cumulatively considerable.
(3) (A) For purposes of paragraph (2), if the lead agency
determines the incremental effects of the project are significant
when viewed in connection with the effects of past, present, and
probable future projects, the incremental effects of a project are
cumulatively considerable.
(B) If the lead agency determines incremental effects of a project
are cumulatively considerable, the later environmental impact
report, mitigated negative declaration, or negative declaration shall
examine those effects.
(4) If the lead agency makes one of the following determinations,
the cumulative effects of a project are adequately addressed for
purposes of paragraph (1):
(A) The cumulative effect has been mitigated or avoided as a
result of the prior environmental impact report and findings adopted
pursuant to paragraph (1) of subdivision (a) of Section 21081 as a
result of the prior environmental impact report.
(B) The cumulative effect has been examined at a sufficient level
of detail in the prior environmental impact report to enable the
effect to be mitigated or avoided by site-specific revisions, the
imposition of conditions, or by other means in connection with the
approval of the later project.
(f) If tiering is used pursuant to this section, an environmental
impact report prepared for a later project shall refer to the prior
environmental impact report and state where a copy of the prior
environmental impact report may be examined.
(g) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 10. Section 21151.1 of the Public Resources Code is amended
to read:
21151.1. (a) Notwithstanding paragraph (6) of subdivision (b) of
Section 21080, or Section 21080.5 or 21084, or any other provision of
law, except as provided in this section, a lead agency shall prepare
or cause to be prepared by contract, and certify the completion of,
an environmental impact report or, if appropriate, a modification,
addendum, or supplement to an existing environmental impact report,
for a project involving any of the following:
(1) The burning of municipal wastes, hazardous waste, or
refuse-derived fuel, including, but not limited to, tires, if the
project is either of the following:
(A) The construction of a new facility.
(B) The expansion of an existing facility that burns hazardous
waste that would increase its permitted capacity by more than 10
percent.
(2) The initial issuance of a hazardous waste facilities permit to
a land disposal facility, as defined in subdivision (d) of Section
25199.1 of the Health and Safety Code.
(3) The initial issuance of a hazardous waste facilities permit
pursuant to Section 25200 of the Health and Safety Code to an offsite
large treatment facility, as defined pursuant to subdivision (d) of
Section 25205.1 of the Health and Safety Code.
(4) A base reuse plan as defined in Section 21083.8.1. The
Legislature hereby finds that no reimbursement is required pursuant
to Section 6 of Article XIII B of the California Constitution for an
environmental impact report for a base reuse plan if an environmental
impact report is otherwise required for that base reuse plan
pursuant to any other provision of this division.
(b) For purposes of clause (ii) of subparagraph (A) of paragraph
(1) of subdivision (a), the amount of expansion of an existing
facility shall be calculated by comparing the proposed facility
capacity with whichever of the following is applicable:
(1) The facility capacity authorized in the facility's hazardous
waste facilities permit pursuant to Section 25200 of the Health and
Safety Code or its grant of interim status pursuant to Section
25200.5 of the Health and Safety Code, or the facility capacity
authorized in a state or local agency permit allowing the
construction or operation of a facility for the burning of hazardous
waste, granted before January 1, 1990.
(2) The facility capacity authorized in the facility's original
hazardous waste facilities permit, grant of interim status, or a
state or local agency permit allowing the construction or operation
of a facility for the burning of hazardous waste, granted on or after
January 1, 1990.
(c) For purposes of paragraphs (2) and (3) of subdivision (a), the
initial issuance of a hazardous waste facilities permit does not
include the issuance of a closure or postclosure permit pursuant to
Chapter 6.5 (commencing with Section 25100) of Division 20 of the
Health and Safety Code.
(d) Paragraph (1) of subdivision (a) does not apply to a project
that does any of the following:
(1) Exclusively burns digester gas produced from manure or any
other solid or semisolid animal waste.
(2) Exclusively burns methane gas produced from a disposal site,
as defined in Section 40122, that is used only for the disposal of
solid waste, as defined in Section 40191.
(3) Exclusively burns forest, agricultural, wood, or other biomass
wastes.
(4) Exclusively burns hazardous waste in an incineration unit that
is transportable and that is either at a site for not longer than
three years or is part of a remedial or removal action. For purposes
of this paragraph, "transportable" means any equipment that performs
a "treatment" as defined in Section 66216 of Title 22 of the
California Code of Regulations, and that is transported on a vehicle
as defined in Section 66230 of Title 22 of the California Code of
Regulations, as those sections read on June 1, 1991.
(5) Exclusively burns refinery waste in a flare on the site of
generation.
(6) Exclusively burns in a flare methane gas produced at a
municipal sewage treatment plant.
(7) Exclusively burns hazardous waste, or exclusively burns
hazardous waste as a supplemental fuel, as part of a research,
development, or demonstration project that, consistent with federal
regulations implementing the Resource Conservation and Recovery Act
of 1976, as amended (42 U.S.C. Sec. 6901 et seq.), has been
determined to be innovative and experimental by the Department of
Toxic Substances Control and that is limited in type and quantity of
waste to that necessary to determine the efficacy and performance
capabilities of the technology or process. However, a facility that
operated as a research, development, or demonstration project and for
which an application is thereafter submitted for a hazardous waste
facility permit for operation other than as a research, development,
or demonstration project shall be considered a new facility for the
burning of hazardous waste and shall be subject to subdivision (a) of
Section 21151.1.
(8) Exclusively burns soils contaminated only with petroleum fuels
or the vapors from these soils.
(9) Exclusively treats less than 3,000 pounds of hazardous waste
per day in a thermal processing unit operated in the absence of open
flame, and submits a worst-case health risk assessment of the
technology to the Department of Toxic Substances Control for review
and distribution to the interested public. This assessment shall be
prepared in accordance with guidelines set forth in the Air Toxics
Assessment Manual of the California Air Pollution Control Officers
Association.
(10) Exclusively burns less than 1,200 pounds per day of medical
waste, as defined in Section 117690 of the Health and Safety Code, on
hospital sites.
(11) Exclusively burns chemicals and fuels as part of firefighter
training.
(12) Exclusively conducts open burns of explosives subject to the
requirements of the air pollution control district or air quality
management district and in compliance with OSHA and Cal-OSHA
regulations.
(13) Exclusively conducts onsite burning of less than 3,000 pounds
per day of fumes directly from a manufacturing or commercial
process.
(14) Exclusively conducts onsite burning of hazardous waste in an
industrial furnace that recovers hydrogen chloride from the flue gas
if the hydrogen chloride is subsequently sold, distributed in
commerce, or used in a manufacturing process at the site where the
hydrogen chloride is recovered, and the burning is in compliance with
the requirements of the air pollution control district or air
quality management district and the Department of Toxic Substances
Control.
(e) Paragraph (1) of subdivision (a) does not apply to a project
for which the State Energy Resources Conservation and Development
Commission has assumed jurisdiction under Chapter 6 (commencing with
Section 25500) of Division 15.
(f) Paragraphs (2) and (3) of subdivision (a) do not apply if the
facility only manages hazardous waste that is identified or listed
pursuant to Section 25140 or 25141 of the Health and Safety Code on
or after January 1, 1992, but not before that date, or only conducts
activities that are regulated pursuant to Chapter 6.5 (commencing
with Section 25100) of Division 20 of the Health and Safety Code on
or after January 1, 1992, but not before that date.
(g) This section does not exempt a project from any other
requirement of this division.
(h) For purposes of this section, offsite facility means a
facility that serves more than one generator of hazardous waste.
SEC. 11. Section 21159.9 of the Public Resources Code is amended
to read:
21159.9. The Office of Planning and Research shall implement,
utilizing existing resources, a public assistance and information
program, to ensure efficient and effective implementation of this
division, to do all of the following:
(a) Establish a public education and training program for
planners, developers, and other interested parties to assist them in
implementing this division.
(b) Establish and maintain a database to assist in the preparation
of environmental documents.
(c) Establish and maintain a central repository for the
collection, storage, retrieval, and dissemination of notices of
exemption, notices of preparation, notices of determination, and
notices of completion provided to the office, and make the notices
available through the Internet. The office may coordinate with
another state agency for that agency to make the notices available
through the Internet.
(d) Provide to the California State Library copies of documents
submitted in electronic format to the Office of Planning and Research
pursuant to this division. The California State Library shall be the
repository for those electronic documents, which shall be made
available for viewing by the general public upon request.
SEC. 12. Section 21167.10 of the Public Resources Code is amended
to read:
21167.10. (a) Within five business days of the filing of a notice
required by subdivision (a) or (b) of Section 21108, or subdivision
(a) or (b) of Section 21152 by the lead agency, a person wishing to
bring an action or a proceeding pursuant to Section 21167, 21168, or
21168.5 may file with the lead agency and the real party in interest
a notice requesting mediation.
(b) Within five business days of the receipt of the notice
requesting mediation, a lead agency may respond to the person by
accepting the request for mediation and proceed with mediation.
(c) The request for mediation is deemed denied if the lead agency
fails to respond within five business days of receiving the request
for mediation.
(d) The limitation periods provided pursuant to this chapter shall
be tolled until the completion of the mediation conducted pursuant
to this section.
(e) This section does not apply in cases where the lead agency has
not filed the notice required by subdivision (a) or (b) of Section
21108, or subdivision (a) or (b) of Section 21152.
(f) (1) Except as set forth in paragraph (2), this section shall
remain in effect only until January 1, 2016, and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2016, deletes or extends that date.
(2) Notwithstanding paragraph (1), the tolling of the limitation
periods provided pursuant to subdivision (d) shall apply if a
mediation conducted pursuant to this section is completed on or after
January 1, 2016.
SEC. 13. Section 21172 of the Public Resources Code is repealed.
SEC. 14. Section 21172.5 of the Public Resources Code is repealed.
SEC. 15. Section 21175 of the Public Resources Code is repealed.
SEC. 16. Section 21176 of the Public Resources Code is repealed.