Cal CUPA Conference, San Francisco February 2010 Eric Maher, DTSC

1. Cal CUPA Conference, San Francisco February 2010Eric Maher, DTSC INTRODUCTION to the CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)

2. CEQA Roles for CUPA�s Regarding Hazardous Waste Not Tiered Permitting, This is Ministerial Not Inspections, These are Not Projects Not Shut Downs or Denials, These are Not Projects Therefore: Mostly Corrective Action Cleanups Also Commenting on Brownfields Development Projects that Need Cleanup

3. CEQA�s Basic Statutory Premises 3 One Sentence Nutshells: Decision Makers Must Consider the Impacts of a Project on the Environment Prior to Approving It If Significant Impacts Exist, Attempts Must be Made to Mitigate or Alternatives to the Project Considered Inform the Public and Allow Comment on this Evaluation

4. CEQA Law Sources Statute � now included in: Public Resources Code 21000 et seq. Regulation �CEQA Guidelines� Title 14 Cal. Code Regs. 15000 et seq. (regulations of the Resources Agency) Legal Decisions (largely in guidelines as well) Agency Guidance and Policy Thresholds, procedures, forms, manuals

5. Are You the Lead Agency ? Prepares the CEQA Document Defined as the First Permitting Agency or the Agency with the Primary Overall Authority Must consult with Responsible Agencies to Avoid Multiple CEQA Documents for one Project Must consider Trustee Agency Authority Address Comment of Other Agencies

6. Responsible vs. Commenting Agency Roles A Responsible Agency is one that will use the Proposed CEQA Document of Another Agency to make a Discretionary Decision Process is Laid Out in Title 14. CCR Section 15096 Commenting Agencies May have Expertise or Authority but will not be approving the Project or Using the CEQA Document

7. Trustee Agencies Must be consulted when projects impact their jurisdiction of resources held in trust for the people of California. Fish and Game: fish and wildlife, rare or endangered species, game refuges, ecological reserves State Lands Commission: state owned �sovereign� lands Parks and Recreation: units of state park system University of California: natural land and water reserves system

8. The Procedural Hierarchy Is it project that triggers CEQA? (discretionary) Is Subject to an Exemption? Categorical General Rule Statutory

9. The Procedural Hierarchy Are there Significant Impacts based on Analysis? (typical tool is an Initial Study) Can they be Mitigated? Does Remaining Impact Require an Environment Impact Report for: Further Analysis, Alternatives, or Overriding Findings

10. What is a Notice of Exemption (NOE) ? Not a CEQA Get Out of Jail Free Card NOE Serves as a Surrogate for Both: The Initial Study and The Notice of Determination Not Technically a CEQA Document, It is Both: An Environmental Analysis Summary and A Legal Defense of Your Conclusions

11. CEQA Exemptions PREMISE: No Environmental Impact is not Implicit for Hazardous Waste Projects But Hazardous Waste Projects Typically Already Have Considerable Operational Controls on Their Activities by Lead and Other Agencies QUESTION: With These Controls in Place, is the Potential Impact Controlled?

12. Benefits of an Exemption Process  Requires Careful Description of Controls for Relevant Potential Impacts but Avoids the Least Relevant Parts of the Initial Study Checklist Also Avoids: Mitigation Measures Where Controls Are Already in Place and Monitored through the Permit or the Corrective Action Work Plan

13. Benefits of an Exemption Process Also Avoids: Separate CEQA Comment Period, CEQA Public Notice and Response to Comments (Draft NOE Documents are Supporting Evidence During Comment Period Instead) Fish and Game Code De Minimus Impact Finding or Fees Discussion of Cumulative Effects

14. Risks of an Exemption Must Meet Higher Standard Limited Opportunity for Impact Assessment: Conclusions Must be Readily Explainable Without New Lengthy or Detailed Analysis Supporting Evidence Must Preclude: A Fair Argument of Significant Effect or Need for Additional Mitigation Measures

15. Risks of an Exemption Exemptions are One Agency, One Use They are not a CEQA Document that Other Agencies Can Use No Comment Period May Mean Greater Potential for Legal Challenge (partially ameliorated by DTSC�s NOE placement in public notice and repository during the project comment period)

16. CEQA Exemptions When Filed, the Notice of Exemption is Your Statute of Limitations Notice Starts a 35 Day Legal Challenge Period So Treat Them As: Freestanding A Chance to Convince People not to Review the Full Project File Your First Line of Legal Defense Draft it as You Will File It Content Should not Change Substantially Following Project Comment Period

17. CEQA Exemptions Three Key Parts of the Notice of Exemption Project Description Exempt Status and Title Reasons Why Exempt

18. Project Description Content Who, What, When, Where, Why and How Including Levels, Standards, Controls State Project Objectives Indicate Results of the Project and its Control Measures Needs to be Written as Freestanding Document Your Challenge: A Lay Person�s Level of Technical Knowledge, but Sufficient Detail

19. CEQA Exemptions For Corrective Measures: Remedy Selection Is Part of the Decision Basis for No Further Action Can Be An Important Part of the Decision and Project Description Especially If Health Risk Standards Are the Remedy Basis So Can Land Use Covenants/ Restrictions

20. CEQA Exemptions The Basis for Your Exemption and What You Must Justify Four Types: A. Statutory - Limited in Scope and Targeted B. Regulatory Categories - from the Title 14 CEQA Regulations 33 Categories Available - We Use Only 3 or 4 Others Don�t Fit or Have Additional Restrictions C. Emergency (Title 14) - Narrow Under CEQA D. General Rule (Title 14) - Broad Scope - High Standard

21. Categorical Exemptions in the CEQA Guidelines (Title 14) Minor Modifications to Existing Facilities (15301) Investigative Activities (15306) Regulatory Actions to Protect the Environment (15308) Small Site Cleanups (15330)

22. Small and Medium CleanupsClass 30 (15330 ) DTSC Defined and Uses Frequently Remediation of Hazardous Waste or Substances Project Less Than $1 Million Sites Cannot be on the Cortese List Limits on Thermal Treatment Limits on Relocation Other Section 15300.2 limits apply

23.  Title 14, section 15061 (b) (3) Known as General Rule Mostly Used for Sites on the Cortese List or �Misfits� A Higher Hurdle: With Certainty No Possibility of a Significant Effect

24. CEQA Exemptions Emergency Exemption (Title 14, Cal. Code Regs., section 15269) Narrow Emergency Definition in CEQA (Title 14, Cal. Code Regs., section 15359)

25. CEQA Exemptions Reasons Why Exempt Use the Initial Study Checklist as Guidance for Relevant Questions Consider Offsite Impact Issues as Well as On-Site Controls (Receptors, Land Use, Transportation, Upset) For the Categoricals, Describe How the 15300.2 Limits Don�t Apply (Rule out Biological and Cultural Resource Areas, Scenic Highways and Cortese List)

26. Reasons Why Exempt Writing Style Tips Treat as your First Line of Legal Defense Be Assertive and Don�t Equivocate Make Your Strongest Argument Use Existing Controls Don�t Assume Public Knowledge of the Permit or Work Plan Reasons Can Be Brief, If Concise Lists and Bullets Are Good Tools

27. CEQA Exemptions If you Point to Another Supporting Document, Tell Them What Is In It, What It Does, and How It Protects Examples: Health Risk Assessment Transportation Plan Health and Safety Plan Dust Control Plan Air Permit

28. CEQA Exemptions DTSC�s PROCESS: Draft NOE Serves In Lieu Of Initial Study During Comment Period NOE Is Draft, Unsigned in Repository and the Public Notice During Comment Period NOE Is Signed When Permit or Work Plan Is Approved, Filed Thereafter

29. Preparing CEQA Documents �CEQA is not an Independent Process, but rather Must be Integrated into Project Planning and Decision Making� (Title 14 Cal Code Regs., Section15004 (c))

30. Preparing CEQA Documents An Initial Study will help determine the Appropriate CEQA Document: - A Negative Declaration where either no significant environmental effects - A Mitigated Negative Declaration where they can be mitigated or - An Environmental Impact Report

31. Negative Declarations  What�s An Initial Study?  Definition: A Preliminary Analysis Prepared by the Lead Agency to Determine if the Project may have a Significant Effect on the Environment 

32. Initial Study Purpose (s) Facilitate environmental assessment early in the design of a project. Provide information to use as the basis for deciding whether to prepare: ND, MND, or EIR Document the Factual Basis for Findings in a Negative Declaration that: The project will not have a significant effect on the environment.

33. Contents of Initial Study Project description Environmental setting Potential environmental impacts Mitigation measures for any significant effect

34. The Initial Study Checklist Evaluation of Potential Impacts OPR Checklist has 17 Categories Is Development Project Oriented Most HW Projects only AFFECT: AIR QUALITY WATER QUALITY TRANPORTATION HUMAN HEALTH

35. The Initial Study Checklist MUST ALSO RULE OUT: Biological Cultural Resources HAZARDS (Earthquake, Flood) if long term or construction Land Use Conflicts ( if Residual Health Risk is not Unrestricted Use)

36. The Initial Study Checklist If Redevelopment Project: Consider Whether the Brownfield Cleanup is Separable from the Construction or Land Use Permits Usually the Cleanup itself is not a cause of Population Growth, Utility Demand, Facility Public Services Needs or Construction Impacts

37. State CEQA Comment Periods Negative Declaration 30-days (PRC 21092.3) Environmental Impact Report Notice of Preparation - 30 days Draft Environmental Impact Report - 45 days If Applicable, File 15 Copies with Governor�s Office of Planning and Research, State Clearinghouse, for Circulation to State Agencies

38. CEQA Comment Periods Local Government Process Varies if Project is not Sent to State Clearinghouse (e.g. 20 days for Negative Declaration) Local Governments Can Have their Own CEQA Guidance, Processes and Forms as long as consistent with Title 14.

39. OPR Contact Information Governor�s Office of Planning and Research State Clearinghouse 1400 Tenth Street, Room 212 Sacramento, CA 95814 Scott Morgan, Acting Director (916) 445-0613

40. Initial Study Tips Accurately Describe the Project What Are You Being Asked to Approve? Describe the discretionary action Permit, permit modification, corrective action Describe all proposed activities Operation Construction Modifications Cleanup goal Forms the basis for determining potential impacts Prepare a summary list in bullet form Easy to transfer to affected area in Initial Study

41. Initial Study Identify Activities Likely to Create an Impact Based on activities listed in the Project Description Narrows the scope of analysis to affected areas List in bullet form within each affected section before conducting analysis

42. Initial Study Identify Activities Not Likely To Create an Impact Declare �NONE� Provide a brief explanation that supports the finding �For these reasons, no further analysis of impacts to this resource category is deemed necessary� Proceed to the next environmental resource category

43. Initial Study Describe Baseline Environmental Conditions Existing Physical Characteristics Resources at and near the project site Conditions as they exist at the time of the decision Helps to establish what will be impacted e.g., Air Quality - Level of Attainment/ Non-Attainment with Criteria Pollutants (PM 10, PM 2.5, ozone precursors, etc.) e.g., Traffic/ Circulation - Level of service (LOS), preferred routes

44. Initial Study Describe Existing Ordinances, Regulations, or Standards that Apply to Project Establishes Mitigation or Controls Already in Place e.g., Hydrology/ Water Quality-allowable discharge levels, frequency of monitoring e.g., Land Use/ Planning � zoning, allowed uses, restrictions Defines Potential Exceedances that may Create an Impact

45. Initial Study Thoroughly Analyze All Potential Impacts Bullet items under each category must be examined to determine if potential impacts are �significant�. They establish minimum threshold levels of significance Look for physical changes (e.g., dust, noise, and traffic of heavy equipment)

46. Initial Study Provide evidence to substantiate findings Must be based on substantial evidence in the record Must be based to the extent possible on scientific & factual data Speculation and hearsay are no substitute Not: �I�ve been to the site, and didn�t see squirrels�

47. Initial Study Properly Document References Identify the source document (person) used in the analysis of impacts for each bullet item Allow Sufficient Amount of Time for Preparation and Approval Don�t wait until just before decision has to be made Avoid the Naked Checklist � A checklist with out explanation or reference is a target for comment and challenge

48. Other CEQA Forms Draft Negative Declaration Notice of Completion County Clerk Notice DFG Code Finding of Deminimus or fee ($2,010.25) Decision Document (ND MND or EIR Certification) Notice of Determination following Public Comment and Approval

49. Negative Declaration vs. Mitigated Negative Declaration If Mitigation can be built into the Project prior to Public Notice, DTSC would use a Negative Declaration Avoids a separate Mitigation Monitoring Plan Other Factors to Consider: Third Party Enforcing/ Implementing Agency? Jurisdiction (e.g., endangered species) Result Mitigation Monitoring Plan - benefit?

50. Notice of Determination (NOD) Filing (NOD) with County Clerk or State Clearinghouse Triggers the 30 day Statute of Limitations on Legal Challenges via Superior Court Civil Suit

51. EIR Content Index & summary Project description, location Environmental setting Significant environmental impacts Alternatives (no-project, environmentally superior) Areas of known controversy Mitigation measures Growth inducing impacts Significant irreversible changes (plans, policies, joint NEPA documents)

52. Notice of Preparation Description of Project List of Potential Impacts If Focused EIR, �Expanded� Analysis of Those Impacts Not Significant and will not be Carried Forward to Focused EIR 30 day Comment Period (Local or State Circulation) Scoping Meetings ( Public, Agency )

53. Environmental Impact Report More Detailed Analysis of Significant Subjects Consideration of Alternatives to Avoid Impacts Allows Findings to Approve Project if Mitigation or Alternatives Are Not Feasible or Benefit Exceeds Burden �Statement of Overriding Findings�

54. Environmental Impact Report Contract for EIR preparation Agency and Public scoping meetings Public hearings on Draft EIR EIR Certification that final EIR reflects Lead Agency�s Independent Judgment/Analysis

55. Environmental Impact Report Draft Comment Period: 30 days if local only 45 days if State Clearinghouse Review of Administrative Final EIR 10 days by Responsible Agencies

56. Environmental Impact Report Certification (approval) Findings of Fact Mitigation Monitoring Plan NOD (30 days) Fish and Game finding or fee (currently $2,792.25)

57. EIR Findings Project changed to avoid or substantially reduce magnitude of impact Changes needed to project to avoid impact are in another agency�s jurisdiction and have been or should be adopted Specific economic, social, legal, technical or other considerations make alternative measure or alternative infeasible (Statement of Overriding Considerations)

58. Types of Environmental Impact Reports Focused Supplemental Subsequent Addendum Program Master General Plan Combined