BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                               Senator Wieckowski, Chair
                                 2015 - 2016  Regular 
           
          Bill No:            SB 1008
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          |Author:    |Lara                                                 |
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          |Version:   |3/28/2016              |Hearing      |4/6/2016        |
          |           |                       |Date:        |                |
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          |Urgency:   |No                     |Fiscal:      |Yes             |
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          |Consultant:|Joanne Roy                                           |
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          SUBJECT:  California Environmental Quality Act:  Los Angeles  
          Regional Interoperable Communications System:  exemption

            ANALYSIS:
          
          Existing law:  
          
          1) Under the California Environmental Quality Act (CEQA), requires  
             lead agencies with the principal responsibility for carrying out  
             or approving a proposed discretionary project to prepare a  
             negative declaration, mitigated negative declaration, or  
             environmental impact report (EIR) for this action, unless the  
             project is exempt from CEQA (CEQA includes various statutory  
             exemptions, as well as categorical exemptions in the CEQA  
             Guidelines).   (Public Resources Code (PRC) §21000 et seq.)

          2) Exempts the design, site acquisition, construction, operation or  
             maintenance of certain Los Angeles Regional Interoperable  
             Communications System (LA-RICS) equipment and structures, if  
             specified criteria are met.  This provision sunsets January 1,  
             2017.  (PRC §21080.25).

          This bill:  

          1) Exempts from CEQA the design, site acquisition, construction,  
             operation or maintenance of certain structures and equipment of  
             LA-RICS, consisting of long-term evolution (LTE) broadband  
             mobile data system and a land mobile radio (LMR) system, if  
             specified criteria are met.








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          2) Requires each LA-RICS project exempted from CEQA to meet  
             specified criteria, including:

             a)    The project site is publicly owned and already contains  
                antennas and/or equipment enclosures.

             b)    The construction and implementation at the project site  
                would not substantially adversely impact wetlands, riparian  
                areas, or habitat of significant value, and would not harm  
                any protected species.

             c)    The construction and implementation of the project at the  
                site would not substantially adversely impact historical  
                resources.

             d)    Operation of the project would not exceed the maximum  
                permissible exposure standards established by the Federal  
                Communications Commission.

             e)    A new LTE antenna support structure or LMR antenna support  
                structure would comply with applicable height restrictions;  
                and certain equipment may not exceed specified height limits.

             f)    A new central system switch must be located within an  
                existing enclosed structure at a publicly owned project site  
                or housed at an existing private communications facility.

          3) Specifies that this exemption does not apply if the project site  
             is located on a school site, or cultural or sacred site.

          4) Prior to determining whether this exemption may apply to a  
             project, requires the LA-RICS Joint Powers Authority (Authority)  
             to do the following:

             a)    Hold noticed public hearings in areas affected by the  
                project to hear and respond to public comments.

             b)    Provide public notice in a newspaper of general  
                circulation in the area affected by the project.

          5) For an exempted project, requires the Authority to file a notice  
             of exemption (NOE) with the Office of Planning and Research and  
             the county clerk in the county in which the project is located  
             as well as post the NOE on its website.

          6) Requires the Authority to post on its website information  







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             related to environmental reviews of LA-RICS projects. 

          7) Requires the Authority and its member agencies to approve use  
             agreements for the LA-RICS in an open and noticed public  
             meeting.

          8) Extends the sunset for this exemption from January 1, 2017 to  
             January 1, 2020.  

            
          Background
          
          1) CEQA:  Environmental review process.  

          CEQA provides a process for evaluating the environmental effects of  
             a project, and includes statutory exemptions as well as  
             categorical exemptions in the CEQA guidelines.  If a project is  
             not exempt from CEQA, an initial study is prepared to determine  
             whether a project may have a significant effect on the  
             environment.  If the initial study shows that there would not be  
             a significant effect on the environment, the lead agency must  
             prepare a negative declaration.  If the initial study shows that  
             the project may have a significant effect on the environment,  
             then the lead agency must prepare an EIR.

          Generally, an EIR must accurately describe the proposed project,  
             identify and analyze each significant environmental impact  
             expected to result from the proposed project, identify  
             mitigation measures to reduce those impacts to the extent  
             feasible, and evaluate a range of reasonable alternatives to the  
             proposed project.  Prior to approving any project that has  
             received an environmental review, an agency must make certain  
             findings.  If mitigation measures are required or incorporated  
             into a project, the agency must adopt a reporting or monitoring  
             program to ensure compliance with those measures.

          If a mitigation measure would cause one or more significant effects  
             in addition to those that would be caused by the proposed  
             project, the effects of the mitigation measure must be discussed  
             but in less detail than the significant effects of the proposed  
             project.
          
          2) What is analyzed in an environmental review? 

          Pursuant to CEQA, an environmental review analyzing the significant  
             direct and indirect environmental impacts of a proposed project,  







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             may include water quality, surface and subsurface hydrology,  
             land use and agricultural resources, transportation and  
             circulation, air quality and greenhouse gas emissions,  
             terrestrial and aquatic biological resources, aesthetics,  
             geology and soils, recreation, public services and utilities  
             such as water supply and wastewater disposal, cultural  
             resources, and tribal cultural resources. 

          The analysis must also evaluate the cumulative impacts of any past,  
             present, and reasonably foreseeable projects/activities within  
             study areas that are applicable to the resources being  
             evaluated.  A study area for a proposed project must not be  
             limited to the footprint of the project because many  
             environmental impacts of a development extend beyond the  
             identified project boundary.  Also, CEQA stipulates that the  
             environmental impacts must be measured against existing physical  
             conditions within the project area, not future, allowable  
             conditions.

          1) LA-RICS.

          According to the Authority:

               [LA-RICS] will provide improved radio and broadband  
               communication for the public safety providers of the greater  
               Los Angeles region.  LA-RICS is comprised of two distinct, but  
               compatible projects:  a [LMR] communications and a [LTE]  
               broadband communications system.  Covering 88 cities and the  
               unincorporated area of Los Angeles County within a 4.084  
               square mile area, LA-RICS will provide integrated  
               communications for over 50 law enforcement agencies, 31 fire  
               departments as well as Emergency Medical Services (EMS),  
               transportation, and education agencies.  The LMR communication  
               system will provide day-to-day voice and narrowband data radio  
               communications service for individual public safety agencies,  
               enable interoperability and interagency communications among  
               member agencies and mutual aid providers, and support  
               communications with regional, state, and federal agencies  
               during disaster events?The LTE wireless network technology  
               will provide day-to-day broadband data communications service  
               for individual public safety agencies, provide emergency  
               responders high speed access to lifesaving multimedia  
               information, and support the National Public Safety Broadband  
               Network (NPSBN) initiative.  

            Comments







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          2) Purpose of Bill.  

          According to the author:

               [LA-RICS] is the single greatest emergency preparedness and  
               homeland security need in the Los Angeles region.  The system  
               will provide direct communication interoperability between law  
               enforcement, fire, Federal, State and military agencies in  
               major disasters, such as floods, fires, earthquakes, and  
               terrorist incidents.  The LA-RICS Project is especially  
               critical given the tragic event of September 11th, which  
               demonstrated the necessity of an interoperable communications  
               system that would assist first-responders in saving lives.  SB  
               1008 would extend the current CEQA exemption deadline for the  
               LA-RICS project for three additional years, from January 1,  
               2017, to January 1, 2020.

               The extension of the current CEQA exemption is needed to  
               continue to build out the LA-RICS LTE broadband system and LMR  
               system, and would facilitate the timely environmental review  
               and construction of sites that would be used for this  
               important project.  The Federal environmental review process,  
               under the National Environmental Policy Act, for the LA-RICS  
               Project sites, which is still required for the CEQA-exempt  
               sites, has taken longer than previously anticipated.

               The proposed extension is especially essential for the  
               continued build out of the LA-RICS system which is funded by  
               the critical Federal Broadband Technology Opportunities  
               Program (BTOP) grant awarded to the LA-RICS Authority by the  
               U.S. Department of Commerce.  Recently enacted Federal  
               legislation provided a five-year extension for BTOP grant  
               recipients, including LA-RICS, through Federal Fiscal Year  
               2020.  The extension would allow much needed additional time  
               for LA-RICS to construct additional sites to increase coverage  
               and capacity of the LTE broadband system, and ensure that  
               these sites are streamlined for environmental review,  
               constructed and completed on time to enable first responders  
               to communicate in all emergencies and major disasters.

               The exemption will not apply to undeveloped land or  
               privately-owned land.  It will only apply to sites on  
               publicly-owned land where telecommunication infrastructure is  
               already located such as on existing police, sheriff or fire  
               station sites which already contain existing antenna support  







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               structure.

               Sites will not be located in environmentally sensitive areas,  
               such as wetlands, riparian areas, or habitat of significant  
               value, and would not adversely affect historical resources.

          3) AB 1486 (Lara) Letter to the Journal.

          On August 24, 2012, AB 1486 (Lara, Chapter 690, Statutes of 2012)  
             was amended to exempt from CEQA certain LA-RICS projects and was  
             passed by the Legislature on August 31, 2012.  Because of AB  
             1486's rush through the legislative process, some requirements  
             did not make it into the final version of the bill.  However, in  
             order to stay true to commitments made on AB 1486, the author  
             wrote a Letter to the Journal on August 31, 2012, stating his  
             intent that the bill include additional, specified requirements  
             in order for the LA-RICS exemption in AB 1486 to apply to a  
             project.  SB 1008 includes those requirements specified in the  
             author's Letter to the Journal so as to ensure that the  
             exemption more accurately reflects AB 1486 requirements in their  
             entirety. 

          4) What is lost with a CEQA exemption?

          It is not unusual for certain interests to assert that a particular  
             exemption will expedite construction of a particular type of  
             project and reduce costs.  This, however, frequently overlooks  
             the benefits of adequate environmental review where lead and  
             responsible agencies are legally accountable for their actions  
             to: 

                 Inform decisionmakers and the public about project impacts;  

                 Identify ways to avoid or significantly reduce  
               environmental damage; 
                 Prevent environmental damage by requiring feasible  
               alternatives or mitigation measures; 
                 Disclose to the public reasons why an agency approved a  
               project if significant environmental effects are involved; 
                 Involve public agencies in the process; and, 
                 Increase public participation in the environmental review  
               and the planning processes.

             If a project is exempt from CEQA, certain issues should be  
             addressed.  For example:








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                 How can decisionmakers and the public be aware of impacts,  
               mitigation measures, and alternatives of a project because of  
               the exemption?

                 Is it appropriate for the public to live with the  
               consequences when a project is exempt and impacts may not be  
               mitigated and alternatives may not be considered regarding  
               certain matters, such as air quality, water quality, and noise  
               impacts?

                 Because adverse project impacts do not disappear when they  
               are not identified and mitigated, does an exemption result in  
               a direct transfer of responsibility for mitigating impacts  
               from the applicant to the public (i.e., taxpayers) if impacts  
               are ultimately addressed after completion of the project?

                 If taxpayers, rather than the project applicant, are  
               ultimately responsible for mitigating certain impacts of such  
               a project after project completion, what assessments or taxes  
               will be increased to fund mitigation or pay for alternatives  
               at a later date?

             It is also not unusual for certain interests to blame CEQA  
             lawsuits.  However, the total number of CEQA cases filed  
             averages about 200 cases per year statewide and make up  
             approximately 0.02% of 1,100,000 civil cases filed annually in  
             California.  The California Attorney General's office conducted  
             a case study of CEQA challenges in the City and County of San  
             Francisco from July 2011 through December 2011 and found that 18  
             lawsuits were filed out of 5,203 projects considered under CEQA.  
              CEQA litigation is low considering the thousands of projects  
             subject to CEQA each year as well as for the volume of civil  
             litigation in general statewide.

             In addition, those citing CEQA and CEQA litigation as a problem  
             do not indicate the result of that litigation.  Were significant  
             impacts that were not evaluated in the initial document  
             ultimately addressed?  What would have been the result if those  
             impacts had not been mitigated (e.g., flooding, exposure of  
             people to hazards, inadequate public services, congestion)?

          1) LA-RICS past issues.

          LA-RICS has not been without its share of problems such as labor  
             disputes, environmental concerns, and public protests.  Some  
             issues that have arisen over the last year include:







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             a)    By mid-February 2015, 13 of the 86 cities dropped out of  
                LA-RICS, which leaves those remaining to carry a larger  
                portion of the costs.  Also, some cities refused to approve  
                sites, which reduced the number of sites for the LTE network.  
                 

             b)    In March 2015, the Los Angeles County Board of Supervisors  
                ordered a halt to the construction of towers at county fire  
                stations citing a lack of transparency and complaints that  
                the project was moving forward without adequate notice to  
                residents.  Firefighters raised concern about radio frequency  
                emissions causing the potential health hazards to them and  
                neighboring residents.  

             c)    On April 1, 2015, the Los Angeles City Council members  
                voted to stop build-out of the LTE system as well, citing  
                potential financial burdens on the city.

             d)    On April 3, 2015, the National Telecommunications and  
                Information Administration (NTIA) suspended a $154 million  
                grant to the Authority for LA-RICS, noting the project was  
                "severely behind schedule."  Federal officials ordered  
                communications project managers to "stop all work  
                immediately" and directed LA-RICS authority to submit an  
                amended LTE network plan by April 13, 2015 that was  
                acceptable to the Los Angeles City Council, the Los Angeles  
                County Board of Supervisors, and NTIA.  

             The LTE network plan began with potentially 232 sites; when the  
                suspension occurred, the number of sites had decreased to  
                177; the revised LTE network plan reduced the number to 82  
                sites.

             e)    In November 2015, the Los Angeles City Council members  
                unanimously voted to opt out of its membership to LA-RICS  
                citing potential cost advantage of deploying a new city-owned  
                LMR network.  According to a city report, if the city had  
                remained a member of LA-RICS after November 24, 2015, the  
                city would have been liable for 29%-33% of all LA-RICS costs.

             f)    The LA-RICS projects subject to this bill require an  
                environmental review under the National Environmental  
                Protection Act (NEPA).  According to the author, the federal  
                environmental review process for the LA-RICS project sites  
                has taken longer than previously expected - In fact, the  







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                closing date for the public review period for the Draft  
                Programmatic Environmental Assessment (DPEA) for the LA-RICS  
                LMR project is April 5, 2016.  The Authority complied with  
                CEQA for the LMR sites that were not exempt pursuant to PRC  
                §21080.25; and issued the Final EIR for the LA-RICS LMR  
                System on March 21, 2016.  

             The author states, "The Authority approved sites in the LTE  
             project in 2014 and 2015 and determined that all LTE sites were  
             exempt from review under CEQA pursuant to PRC §21080.25, the  
             statutory CEQA exemption specifically adopted for LA-RICS."  A  
             question arises as to whether some of these issues could have  
             been avoided or mitigated through the CEQA process such as  
             providing transparency and a forum to address public concerns  
             about health risks to firefighters and local residents, which as  
             noted above, were serious enough concerns to make both the City  
             of Los Angeles and the Los Angeles County Board of Supervisors  
             halt construction in March 2015. 

             Also, considering that the NEPA review has yet to be completed  
             for the LMR project and the CEQA review is done, a question  
             arises as to how much time the CEQA exemption actually saved.

            Related/Prior Legislation

          AB 1486 (Lara, Chapter 690, Statutes of 2012) exempted the design,  
          site acquisition, construction, operation or maintenance of certain  
          LA-RICS equipment, and sunsets January 1, 2017.
           
          SOURCE:                    County of Los Angeles
          County of Los Angeles Sheriff's Department
           
           SUPPORT:               California Chamber of Commerce
                         California State Sheriffs' Association  

           OPPOSITION:    California League of Conservation Voters
                         Sierra Club California  

                                        -- END --