BILL ANALYSIS �
AB 1486
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2011-2012 Regular Session
BILL NO: AB 1486
AUTHOR: Lara
AMENDED: August 24, 2012
FISCAL: Yes HEARING DATE: August 30, 2012
URGENCY: Yes CONSULTANT: Randy Pestor
SUBJECT : CALIFORNIA ENVIRONMENTAL QUALITY ACT
SUMMARY :
Existing law , 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 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.).
This bill provides legislative intent to enact statutory
changes relating to the Budget Act of 2012.
Amendments taken on the Senate Floor (August 24, 2012 version
of the bill) and subsequently referred to the Committee on
Environmental Quality pursuant to Senate Rule 29.10:
1) Exempt the design, site acquisition, construction,
operation, or maintenance of certain elements of the Los
Angeles Regional Interoperable Communications System
(LA-RICS) structures from CEQA if certain conditions are met
(e.g., project site is publicly owned and includes certain
improvements; project would not have a substantial adverse
impact on wetlands, riparian areas, or historical areas;
operation of the project would not exceed certain Federal
Communications Commission exposure standards).
2) Define various terms (e.g., "riparian area," "wetlands,"
"wildlife habitat").
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3) Contain an urgency clause.
4) Sunset January 1, 2017.
COMMENTS :
1) Purpose of Bill . According to the purpose for the urgency
clause in this bill, this bill is needed "In order to ensure
that the �LA-RICS] is able to meet strict deadlines that are
required to access millions of dollars in federal grants
that have been awarded to the LA-RICS . . ."
According to the LA-RICS website, "�LA-RICS] is a modern,
integrated wireless voice and data communication system
designed and built to serve law enforcement, fire service
and health service professionals throughout Los Angeles
County. The new system will provide day-to-day
communications within agencies and allow seamless
interagency communications for responding to routine,
emergency and catastrophic events."
LA-RICS is composed of 85 member agencies covering 4,000 square
miles. The LA-RICS Authority was formed pursuant to a joint
powers agreement and is administered by a board of directors
consisting of 8 directors and no more than 17 members
identified by specified appointing authorities.
2) Brief background on CEQA . 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, 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
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extent feasible, and evaluate a range of reasonable
alternatives to the proposed project. Prior to approving
any project that has received 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.
3) How many towers ? The AB 1486 exemption applies to: a)
approximately 80 land mobile radio (LMR) system 180-foot 3
or 4 legged towers with antennas, microwave dishes, and
other components (up to 33 of these may be colocation
sites); and 2) approximately 255 long-term evolution (LTE)
broadband mobile data system 70-foot tapered monopoles with
antennas, microwave dishes, and other components
(approximately 33 of these may be collocation sites).
At some location sites, existing infrastructure may be
"leveraged" so not all components would be installed at
every site. Additionally, some of the new towers may
replace or upgrade existing towers.
According to LA-RICS, a majority of LMR sites and about 239 LTE
sites are potentially eligible for the AB 1486 CEQA
exemption , although a more precise number cannot be known
because detailed system design is pending.
4) LA-RICS information on environmental review process . The
following "frequently asked question" and response is on the
LA-RICS website:
Will a new tower be constructed in my neighborhood as a
result of LA-RICS?
Maybe. The network will be designed with the needs of
first responders and the safety of the public first and
foremost, which may call for additional tower locations.
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LA-RICS will not know the specific location of new towers
until a system provider is selected and the environmental
assessment is finished. While this system will inevitably
result in the construction of new towers, there are clear
economic, environmental and social benefits to using as
many existing towers as possible.
While this response is not clear on the CEQA process,
according to LA-RICS, an environmental assessment (EA) is
being prepared in accordance with the federal National
Environmental Policy Act (NEPA), with the National
Telecommunications & Information Administration (NTIA) as
the lead agency.
5) Any agenda or minutes relating to a CEQA exemption ?
According to agendas and minutes for the LA-RICS Authority
meetings available from the LA-RICS website relating to CEQA:
January 5, 2012, minutes , under administrative matters, Approve
Contract for Environmental Documentation Services - Pat
Mallon (pgs. 3-4): includes approval of contract with
Utrasystems for environmental documentation services, and
amended the 2011-2012 budget allocation for environmental
services from the original $800,000 to $1.976 million.
Under "items for future discussion and/or action by the board;"
pg. 5: "Chair Fujioka stated that there may be a special
meeting regarding CEQA legislation."
February 2, 2012, minutes , under Director's Report - Pat Mallon;
pg. 2: "Environmental Services - Environmental Services
contract has commenced and staff has visited 160 in the last
three weeks. Staff is also conducting weekly conference
calls with NTIA regarding CEQA/NEPA process."
March 29, 2012, agenda , under Administrative Matters; pg. 2:
included a recommendation to delegate authority to the
Executive Director to execute a contract with Jacobs Project
Management Co. (Jacobs). The scope of work for Jacobs
included the following items relating to CEQA: a)
coordinating implementation of CEQA mitigation monitoring and
reporting program (pg. A-2; b) assisting in environmental
documentation preparation and processing in conformance with
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CEQA and NEPA (pg. A-7); c) preconstruction activities
including CEQA/NEPA studies (pg. A-10); d) compliance with
CEQA and NEPA regulations during design review activities for
each subsystem (pg. A-18); and e) implementation of CEQA/NEPA
mitigation measures (pg. A-23).
March 29, 2012, minutes , under Administrative Matters/Action
Items (pgs. 2-3): Motion to approve the Jacobs contract was
approved.
July 11, 2012, minutes , under Director's Report - Pat Mallon;
pg. 2: "Executive Director Mallon reported that they were
working with Sacramento on the CEQA legislation. The trailer
bill did not make it to the final version of the budget that
was approved by the Senate and Assembly. The legislature is
on break until August and the bill may be introduced as
another trailer bill or as a stand-alone bill."
Based on the Ultrasystems and Jacobs contracts referenced
above, one would assume that LA-RICS is proceeding with CEQA
and NEPA documentation for the project rather than seeking a
CEQA exemption. According to LA-RICS, Ultrasystems will be:
a) providing environmental documentation necessary for
notices of exemptions that would be filed in accordance with
AB 1486, b) preparing environmental documentation for LMR
and LTE towers that do not meet the AB 1486 exemption
conditions, and c) preparing the federal NEPA environmental
assessment to be approved by NTIA.
6) Status of funding . According to Pat Mallon, LA-RICS
Executive Director, as of August 29, 2012, approximately $80
million in funding is available for the LMR system, with
certain portions of that amount expiring each year. For
example, $23 million must be expended by September 2012, but
LA-RICS is expected to get an extension to spend that
amount.
For the LTE system, $154.6 million is available from NTIA, with
$70 million for equipment being temporarily suspended. The
remaining $84.6 million must be expended by August 31, 2013.
7) Blaming CEQA . It is not unusual for certain interests to
assert that a particular exemption will expedite
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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:
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, according to a study on the issue,
"Despite criticisms that CEQA often results in litigation,
CEQA-related litigation is relatively rare." The study
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noted that the number of lawsuits to the number of CEQA
reviews "yields an estimate of one lawsuit per 354 CEQA
reviews." A review of CEQA challenges in the City of Los
Angeles from January 2011 through July 20, 2012, shows that
of 1182 projects reviewed under CEQA, 18 were challenged. A
2012 Office of Planning and Research survey of planning
directors regarding barriers to infill, with an 87%
response, shows that CEQA is not even ranked in the top ten
barriers - planning directors ranked it 12th.
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)?
When some suggest that CEQA "reforms" may be needed, others
note various provisions of CEQA that already provide
streamlined approaches, including master and focused EIRs;
transit priority and residential project streamlining
(enacted by SB 375 (Steinberg, Ducheny) Chapter 728,
Statutes of 2008); expedited review for environmental
mandated projects; special procedures for various types of
housing projects (enacted by SB 1925 (Sher, Polanco) Chapter
1039, Statutes of 2002); various litigation, mediation,
tiering, and other revisions (SB 1456 (Simitian) Chapter
496, Statutes of 2010); amendments to procedures relating to
findings of overriding consideration (AB 231 (Huber) Chapter
432, Statutes of 2010); infill project and other
streamlining provisions (SB 226 (Simitian) Chapter 469,
Statutes of 2011); and several categorical exemptions
contained in the CEQA Guidelines. Challenges to CEQA
determinations must be commenced within an unusually short
30 days of an agency's filing of a notice of determination.
Also, no later than 20 days from the date of service upon a
public agency, the public agency must file a notice with the
court setting a time and place for all parties to meet and
attempt to settle the litigation.
1) Support and opposition concerns . According to the Los
Angeles County Fire Department (LAFD), "LA-RICS is a
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collaborative effort of law enforcement, fire service, and
health service professionals with elected and appointed
officials working towards the goal of providing a voice and
data communication platform for regional public safety
agencies." LAFD asserts that "Earlier this year, the
Federal government passed legislation that impacted both LTE
and LMR systems requiring LA-RICS to significantly change
course in order to address such legislation. Given the
current grant deadlines and unanticipated Federal action,
LA-RICS faces significant challenges and uncertainty
regarding the ability to complete environmental review
required under CEQA prior to spending the grant as
required."
According to opponents, "The LA-RICS project would involve
multiple 180-foot high microwave towers, bristling with
transmitters and antennae, on public property across the
fence line from private homes or businesses. This
large-scale project is exactly the kind of project that
needs environmental review and cannot reasonably bypass the
standard environmental process due to pressing deadline.
The fact that the LA-RICS project must be substantially
complete by August 2013 under the Broadband Technology
Opportunities Program (BTOP) grant is an inadequate
justification for CEQA exemption, especially when the
funding for such an expansive project hasn't yet been
granted. Delays in the project are the result of
mismanagement, not CEQA."
2) Any transparency ? Because of concerns over the need for
transparency and public involvement, the Committee required
a noticed public hearing process prior to a lead agency
using an exemption for a bicycle transportation plan (SB
1380 (Rubio)), bicycle lanes consistent with a bicycle
transportation plan (AB 2245 (Smyth)), and certain roadway
improvements (AB 890 (Olsen)).
According to LA-RICS, a use agreement is required with each
public agency where a tower will be located and there will
be a public process for each of those entities when they
approve a tower site. Additionally, according to LA-RICS
staff: a) the LA-RICS board will take action at a noticed
public meeting prior to submitting the EA to NTIA; and b)
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LA-RICS will include the following information on its
Internet website: i) draft and final environmental
documentation in compliance with CEQA and NEPA, ii) the date
of filing required CEQA notices, and iii) all NTIA notice
and hearing information regarding approval of the EA
pursuant to NEPA. The author has agreed to submit a letter
to the Journal regarding compliance with the above LA-RICS
procedures if this bill is approved by the Committee.
SOURCE : LA-RICS, Los Angeles County, Los Angeles County
Sheriff Lee Baca
SUPPORT : California Professional Firefighters, Health
Services Los Angeles County, Paramount
OPPOSITION : California Coastal Protection Network,
California League of Conservation Voters,
California Native Plant Society, Natural
Resources Defense Council, Planning and
Conservation League, Sierra Club California