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AB-3030 California Environmental Quality Act: exemption: qualified opportunity zones.(2017-2018)

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Date Published: 08/06/2018 09:00 PM
AB3030:v95#DOCUMENT

Amended  IN  Senate  August 06, 2018
Amended  IN  Senate  June 14, 2018
Amended  IN  Assembly  April 18, 2018
Amended  IN  Assembly  March 22, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill
No. 3030

Introduced by Assembly Member Caballero
(Coauthor: Assembly Member Holden)

February 16, 2018

An act to add Section 21080.48 to the Public Resources Code, relating to environmental quality.


LEGISLATIVE COUNSEL'S DIGEST


AB 3030, as amended, Caballero. California Environmental Quality Act: exemption: qualified opportunity zones.
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 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 exempts certain projects from its requirements.
Existing federal law authorizes the governor of a state to nominate a specified number of census tracts that meet certain requirements as a qualified opportunity zone and authorizes the Treasury Secretary to designate those tracts as qualified opportunity zones. Existing federal law provides certain federal tax incentives to a taxpayer who invests in a qualified opportunity fund, which is an investment vehicle organized for the purpose of investing in qualified opportunity zone property, as prescribed.
This bill would exempt a project that is financed by a qualified opportunity fund and that meets certain requirements from CEQA. The bill would require the project proponent to make certain certifications regarding the project. The bill would require a lead agency, before making a determination that the project is exempt from CEQA, to hold a noticed public hearing on the project, as specified. The bill would require the lead agency, if it determines that a project is exempt from CEQA under the above exemption and determines to approve or carry out the project, to file a specified notice with the Office of Planning and Research. Because a lead agency would have to determine the applicability of the exemption, to take certain specified action before determining that a project is exempt, and to file a notice with the Office of Planning and Research, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 21080.48 is added to the Public Resources Code, to read:

21080.48.
 (a) For purposes of this section, the following definitions apply:
(1) “Qualified opportunity fund” has the same meaning as defined in subsection (d) of Section 1400Z-2 of Title 26 of the United States Code.
(2) “Skilled and trained workforce” has the same meaning as provided in Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code.
(b) This division does not apply to a project that meets all of the following requirements:
(1) Is financed by a qualified opportunity fund.
(2) At least 50 percent of the project is affordable housing and at least two-thirds of the development’s square footage is designated residential.
(3) Is not located on a site requiring demolition of affordable housing or conversion of rental units to for-sale units, or a site with mobilehomes or other special occupancies.
(4) Is consistent with the general plan land use designation and policies, zoning and municipal or county ordinances, policies, and mitigation. and the housing element that is adopted within 10 years of the date of the project application for which an environmental impact report has been certified.
(5) Complies with previously approved applicable mitigation measures and standards.

(6)Does not require a water supply assessment.

(7)

(6) Has available existing utilities and schools to serve the project.

(8)Does not have any risk of exposure to hazardous substances that exceed local, state, or federal standards.

(7) Satisfies the following environmental assessment and mitigation requirements, as applicable:
(A) The site of the project shall be subject to a phase I environmental assessment conducted in a manner that meets the most current requirements adopted by ASTM International for Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.
(B) If the results of a phase I environmental assessment conducted pursuant to subparagraph (A) conclude that further investigation is required, the site of the project shall be subject to a phase II environmental assessment conducted in a manner that meets the most current requirements adopted by ASTM International for Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process.
(C) (i) If the results of a phase II environmental assessment conducted pursuant to subparagraph (B) conclude that further investigation is required, the site of the project shall be subject to a preliminary endangerment assessment prepared by an environmental assessor to determine the existence of any release of a hazardous substance on the site and to determine the potential for exposure of future occupants to significant health hazards from any nearby property or activity.
(ii) If a release of a hazardous substance is found to exist on the site, the release shall be removed, or any significant effects of the release shall be mitigated to a level of insignificance in compliance with state and federal requirements, as determined by the Department of Toxic Substances Control.
(iii) If a potential for exposure to significant health hazards from surrounding properties or activities is found to exist, the effects of the potential exposure shall be mitigated to a level of insignificance in compliance with state and federal requirements, as determined by the Department of Toxic Substances Control.

(9)

(8) Is not located on a site that has culture or historic resources.

(10)

(9) Is not located on a site that is in or on any of the following:
(A) Farmland.
(B) Wetland.
(C) Flood area.
(D) A site that is included on any list of facilities or sites compiled pursuant to Section 65962.5 of the Government Code.

(D)

(E) Land subject to ground failure or designated for protection of natural resources.

(E)

(F) Land under a conservation easement.

(11)

(10) Does not have any significant impacts that have not been publicly disclosed, analyzed, and mitigated.
(c) The proponent of a project described in subdivision (b) shall do both of the following, as applicable:
(1) Certify to the local agency that either of the following is true, as applicable:
(A) The entirety of the project is a public work for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code.
(B) If the project is not in its entirety a public work, that all construction workers employed in the execution of the project will be paid at least the general prevailing rate of per diem wages for the type of work and geographic area, as determined by the Director of Industrial Relations pursuant to Sections 1773 and 1773.9 of the Labor Code, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate. If the project is subject to this subparagraph, for those portions of the project that are not a public work, all of the following shall apply:
(i) The project proponent shall ensure that the prevailing wage requirement is included in all contracts for the performance of the work.
(ii) All contractors and subcontractors shall pay to all construction workers employed in the execution of the work at least the general prevailing rate of per diem wages, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate.
(iii) Except as provided in clause (v), all contractors and subcontractors shall maintain and verify payroll records pursuant to Section 1776 of the Labor Code and make those records available for inspection and copying as provided in therein.
(iv) Except as provided in clause (v), the obligation of the contractors and subcontractors to pay prevailing wages may be enforced by the Labor Commissioner through the issuance of a civil wage and penalty assessment pursuant to Section 1741 of the Labor Code, which may be reviewed pursuant to Section 1742 of the Labor Code within 18 months after the completion of the project by an underpaid worker through an administrative complaint or civil action, or by a joint labor-management committee though a civil action under Section 1771.2 of the Labor Code. If a civil wage and penalty assessment is issued, the contractor, subcontractor, and surety on a bond or bonds issued to secure the payment of wages covered by the assessment shall be liable for liquidated damages pursuant to Section 1742.1 of the Labor Code.
(v) Clauses (iii) and (iv) shall not apply if all contractors and subcontractors performing work on the project are subject to a project labor agreement that requires the payment of prevailing wages to all construction workers employed in the execution of the project and provides for enforcement of that obligation through an arbitration procedure. For purposes of this clause, “project labor agreement” has the same meaning as set forth in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.
(vi) Notwithstanding subdivision (c) of Section 1773.1 of the Labor Code, the requirement that employer payments not reduce the obligation to pay the hourly straight time or overtime wages found to be prevailing shall not apply if otherwise provided in a bona fide collective bargaining agreement covering the worker. The requirement to pay at least the general prevailing rate of per diem wages does not preclude use of an alternative workweek schedule adopted pursuant to Section 511 or 514 of the Labor Code.
(2) (A) Certify to the local agency that a skilled and trained workforce will be used to complete the project.
(B) If the project proponent has certified that a skilled and trained workforce will be used to complete the project, the following shall apply:
(i) The project proponent shall require in all contracts for the performance of work that every contractor and subcontractor at every tier will individually use a skilled and trained workforce to complete the project.
(ii) Every contractor and subcontractor shall use a skilled and trained workforce to complete the project.
(iii) Except as provided in clause (iv), the project proponent shall provide to the local agency, on a monthly basis while the project or contract is being performed, a report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code. A monthly report provided to the local agency pursuant to this clause shall be a public record under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and shall be open to public inspection. A project proponent that fails to provide a monthly report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code shall be subject to a civil penalty of ten thousand dollars ($10,000) per month for each month for which the report has not been provided. Any contractor or subcontractor that fails to use a skilled and trained workforce shall be subject to a civil penalty of two hundred dollars ($200) per day for each worker employed in contravention of the skilled and trained workforce requirement. Penalties may be assessed by the Labor Commissioner within 18 months of completion of the project using the procedures for issuance of civil wage and penalty assessments set forth in Section 1741 of the Labor Code, and may be reviewed pursuant to the procedures set forth in Section 1742 of the Labor Code. Penalties shall be paid to the State Public Works Enforcement Fund.
(iv) Clause (iii) shall not apply if all contractors and subcontractors performing work on the project are subject to a project labor agreement that requires compliance with the skilled and trained workforce requirement and provides for enforcement of that obligation through an arbitration procedure. For purposes of this clause, “project labor agreement” has the same meaning as set forth in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.
(d) Prior to determining that a project is exempt pursuant to this section, the lead agency shall do all of the following:
(1) Ensure that the project proponent has met the requirements of subdivision (c).
(2) Issue and publish a draft determination that the project is exempt pursuant to this section.
(3) (A) Hold a noticed public hearing no earlier than 30 days following the publication of the draft determination and at least 30 days prior to the issuance of a final determination in areas affected by the project to hear and respond to public comments.
(B) Publication of the notice shall be no fewer times than required by Section 6061 of the Government Code, by the lead agency in a newspaper of general circulation in the area affected by the proposed project. If more than one area will be affected, the notice shall be published in the newspaper with the largest circulation from among the newspapers of general circulation in those areas.
(e) If the lead agency determines that a project is not subject to this division pursuant to this section and it determines to approve or carry out the project, the lead agency shall file a notice with the Office of Planning and Research in the manner specified in subdivisions (b) and (c) of Section 21152 at least 30 days following the noticed public hearing.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.