BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: SB 1018 ----------------------------------------------------------------- |Author: |Liu | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |2/11/2016 |Hearing |4/6/2016 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |Yes |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Joanne Roy | | | | ----------------------------------------------------------------- SUBJECT: California Environmental Quality Act: State Route 710 North Study ANALYSIS: Existing law: 1) Pursuant to the National Environmental Policy Act, a) Provides that "[i]f a cost-benefit analysis is relevant to the choice among environmentally different alternatives being considered for the proposed action, it shall be incorporated by reference of appended to the statement as an aid in evaluating the environmental consequences?." (40 Code of Federal Regulations (CFR) 1502.23). 2) Under the California Environmental Quality Act (CEQA), a) 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 §21000 et seq.) b) Authorizes economic or social information to be included in an EIR or presented in whatever form the agency desires, but specifies that economic or social effects of a project SB 1018 (Liu) Page 2 of ? may not be treated as significant effects on the environment. (CEQA Guidelines §15131). c) Requires the lead agency to evaluate comments on environmental issues received from persons who reviewed the draft EIR (DEIR) and prepare a written response; and specifies that the written response must describe the disposition of significant environmental issues raised (e.g. revisions to the proposed project to mitigate anticipated impacts or objections). (CEQA Guidelines §15088). This bill: 1) Deems a specified cost-benefit analysis (CBA) prepared for the State Route 710 North Study to be a technical study and requires the CBA to be included in the draft environmental impact report/environmental impact statement (DEIR/DEIS). 2) Requires the lead agency to consider and respond to comments regarding the CBA submitted during the public comment period for the DEIR/DEIS. 3) Requires the comments on the CBA and the lead agency's responses to be deemed part of the record of proceedings for purposes of CEQA. 4) Deems this bill an urgency statute. 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 SB 1018 (Liu) Page 3 of ? 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, 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. 3) CEQA: Economic and social effects not considered unless they relate to physical changes. CEQA analysis looks at physical changes in the environment caused by a project. Economic and social effects are not considered environmental effects but may be used to determine the SB 1018 (Liu) Page 4 of ? significance of physical changes caused by the project. When an economic or social effect is not related to a physical change in the environment, the evaluation of that effect is generally treated as optional - agencies may, but are not required to, evaluate them. 4) CEQA: Public review period. Public participation is one of the fundamental purposes of CEQA. The public review period is an opportunity for public involvement in the environmental review process of a project and serves several goals, including: sharing expertise, disclosing agency analysis, checking for accuracy, detecting omissions, discovering public concerns, and soliciting counter proposals. The lead agency must respond to comments pertaining to environmental issues in the draft environmental review document. Comments submitted orally or in writing become part of the administrative record for the project and are responded to in writing in the response to comments in the final environmental review document. In general, the minimum public review period for a DEIR is 30 days, and the maximum is 60 days; but may be extended for a longer amount of time by the lead agency. 5) North State Route 710 (SR-710) project. SR-710 is a major north-south transportation link through Los Angeles County. SR-710 terminates at Valley Boulevard, and the traffic coming off SR-710 continues on local streets within the cities of Alhambra, South Pasadena, and Los Angeles causing major traffic congestion. The extension of the SR-710 project has been in the planning stages for several decades. A surface freeway had been proposed, which led to the issuance of a Record of Decision in 1998 by the Federal Highway Administration (FHWA), but was rescinded by FHWA 2003 citing changes in project circumstances such as funding uncertainty and the opening of the Metro Gold line in Pasadena. In 2006, Caltrans and Metro conducted two tunnel feasibility assessments to evaluate the feasibility of constructing a tunnel to complete the planned SR-710 freeway route that would lessen the potential impacts associated with a surface route. The assessments showed that a tunnel could be a feasible solution and would warrant more detailed evaluation. In March 2011, Caltrans published a Notice of Intent pursuant to SB 1018 (Liu) Page 5 of ? NEPA and a Notice of Preparation under CEQA to initiate the environmental review process for the "Interstate 710 North Gap Closure" project. For purposes of NEPA, the California Department of Transportation (Caltrans) is the lead agency; and, for purposes of CEQA, the Los Angeles County Metropolitan Transportation Authority (Metro) is the lead agency for this project. An environmental review must describe a reasonable range of alternatives to the project that could feasibly attain most of the basic objectives and would avoid or substantially lessen any of the significant environmental impacts of the proposed projects. The five alternatives being considered for this project include: a) No Build option that would leave conditions as they are. b) A traffic management system to upgrade and synchronize signals and improvements to local street intersections to more quickly move traffic. c) A rapid bus line featuring high frequency service with minimal stops and potentially a dedicated bus lane. The proposed route is approximately 12 miles. d) A 7.5-mile light rail line, including 3 miles of aerial segments and 4.5 miles of bored tunnel segments, to carry passengers between East Los Angeles and Pasadena. e) A 6.3-mile freeway tunnel, of which 4.2 miles would be completely underground, that would extend the SR-710. On March 6, 2015, the DEIR/DEIS was released and the public review period for the document commenced. On June 19, 2015, Caltrans and Metro extended the public comment period for the DEIR/DEIS until August 5, 2015. By mid-August 2015, Caltrans had received more than 2,500 letters. The Final EIR/EIS has yet to be certified. In June 2010, the Metro Board directed the chief executive officer to conduct a parallel CBA concurrently with the DEIR/DEIS. The purpose of the CBA is to apply economic value to each alternative in order to compare them in terms of monetary costs and benefits. On June 19, 2015, the CBA for the SR-710 North study alternatives was released. Caltrans states SB 1018 (Liu) Page 6 of ? that the CBA will be considered in conjunction with the information provided in the DEIR/DEIS during identification of the preferred alternative. Comments 1) Purpose of Bill. According to the author: The saga of the highly controversial North State Route 710 project transcends over 50 years. Caltrans, the lead agency for NEPA, and Metro, the lead agency for CEQA, are trying to conclude the long process of producing a joint EIR/EIS evaluating construction of a tunnel and alternatives including light rail, express bus, and transportation demand management to address the local congestion, air quality, and mobility issues the project is intended to relieve. The project study area includes Pasadena, South Pasadena, Alhambra and the City of Los Angeles community of El Sereno. There has been significant confusion surrounding the process including confusion over the status of the Cost Benefit Analysis (CBA) which has bearing on the feasibility of the tunnel but is asserted by Metro to not be part of the EIR/EIS. SB 1018 is designed to bring clarity to the legal status of the CBA so the public can meaningfully participate in the Final EIR/EIS development and final decision processes and be assured that their comments on the CBA will be substantially addressed and considered. 2) The Cost-Benefit Analysis (CBA). The "Analysis of Costs and Benefits for the State Route 710 North Study Alternatives" (June 19, 2015) evaluates the following factors: travel time benefits, capital expenditures (construction and right-of-way costs), vehicle operating costs, system operations and maintenance costs, safety effects, emissions effects, employment benefits, and residual values that have a life of more than 20 years (the residual value for assets such as tunnels and right-of-way). Concerns have been raised about the adequacy of the CBA such as the CBA may overvalue and underprice the project. As noted by the lead agency, the CBA will be considered in conjunction with the information provided in the DEIR/DEIS SB 1018 (Liu) Page 7 of ? during identification of the preferred alternative. 3) Is the CEQA review process the appropriate forum to address the CBA? The purpose of CEQA is not to analyze economic effects or considerations, but to analyze impacts on the physical environment. Comments and responses should focus on the sufficiency of the document regarding the identification of environmental impacts and methods to avoid or mitigate those environmental impacts. The author is concerned that without the bill, Metro and Caltrans could disregard the cost-benefit aspects of the tunneling alternative, stating, "It is possible they will not respond to public comments on it, which were substantial." However, CEQA Guidelines specifies that the lead agency must evaluate and respond to comments on environmental issues in the environmental review. For comments related to the CBA, the lead agency would be required to respond to those comments only to the extent that they relate to environmental issues; otherwise, the comments are outside the scope of CEQA and would be inappropriate to address in the environmental review. In addition, in a staff report, Metro states, "Metro and Caltrans are committed to responding to comments on the CBA. Metro is committed to an open and transparent process in its decision making and we believe the CBA has a role in the fund decision making process." A question arises as to whether the environmental review process is the appropriate means for ensuring that Metro responds to all comments related to the CBA. 4) Too late in the environmental review process? This bill requires the lead agency to respond to comments regarding the CBA submitted during the public comment period for the DEIR/DEIS. The comment period for the Draft EIR closed approximately 8 months ago. Is it reasonable to require the lead agency to respond to oral comments in public hearings that took place almost a year ago? What if there are no recordings of those hearings? This bill limits responses to only comments received during that SB 1018 (Liu) Page 8 of ? time. The CBA was released in the middle of the comment period and was not part of the DEIR/DEIS. This bill would not provide the same amount of time for public review and comment on the CBA even though the bill would deem the CBA as part of the DEIR/DEIS. Also, is it fair to the public who did not provide comment on the CBA during the public comment period knowing the CBA was not part of the DEIR/DEIS at the time; and then change the rules almost eight months after the opportunity to comment has closed? A question arises as to whether this bill provides the public adequate opportunity to be heard after the fact. 5) A different option to ensure that public concern about the CBA is addressed. Public participation is an important element of governmental decisionmaking. The author seeks to make sure that public comments to the CBA are responded to by Metro. However, this bill cannot fully realize this intent because CEQA limits comments and responses to environmental issues - a CBA considers economic concerns, not environmental effects of a project. Also, this bill does not provide the public adequate or reasonable opportunity to comment on the CBA. In order to ensure that Metro responds to comments on the CBA, and due to the issues raised above, it would be prudent to address this issue outside of CEQA and have a separate process for addressing public comments on the CBA. The Committee may wish to consider replacing the contents of SB 1018 with amendments to require Metro to provide opportunities for public comment on the CBA such as hold three noticed public hearings and provide a 90-day, noticed public comment period. The Committee may also wish to require Metro to respond to those comments on the CBA in a stand-alone document, which must be posted on its website and considered by Metro prior to making a final decision on the SR-710 project. DOUBLE REFERRAL: If this measure is approved by the Senate Environmental Quality Committee, the do pass motion must include the action to re-refer SB 1018 (Liu) Page 9 of ? the bill to the Senate Transportation and Housing Committee. SOURCE: Author SUPPORT: None received OPPOSITION: City of Monterey Park City of Rosemead City of San Gabriel City of San Marino -- END --