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AB-621 California Environmental Quality Act: streamlined environmental review: standard of review: hospitals.(2021-2022)

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Date Published: 04/21/2021 09:00 PM
AB621:v97#DOCUMENT

Amended  IN  Assembly  April 21, 2021
Amended  IN  Assembly  March 25, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 621


Introduced by Assembly Member Robert Rivas

February 12, 2021


An act to add and repeal Chapter 6.10 (commencing with Section 21189.80) of Division 13 of the Public Resources Code, relating to environmental quality.


LEGISLATIVE COUNSEL'S DIGEST


AB 621, as amended, Robert Rivas. California Environmental Quality Act: streamlined environmental review: standard of review: hospitals.
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 (EIR) on a project that the lead agency 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 establishes a procedure by which a person may seek judicial review of the decision of the lead agency made pursuant to CEQA. Under existing law, a lead agency’s decision to adopt a negative declaration or mitigated negative declaration is reviewed by the courts under the fair argument standard while the lead agency’s decision to certify an EIR is reviewed under the substantial evidence standard.
This bill would authorize the Governor to certify a new hospital project or hospital expansion or modernization project as an environmental leadership hospital project if the project meets certain requirements. The bill would require the project applicant to certify compliance with certain labor standards in regards to the implementation of the project. The bill would require the lead agency to concurrently prepare the record of proceedings for a project certified by the Governor, as applicable. By requiring the concurrent preparation of the record of proceedings, this bill would impose a state-mandated local program. The bill would require certain California Rules of Court to apply to any action or proceeding brought to challenge a lead agency’s adoption or certification of an environmental review document, as defined, for a project certified by the Governor, including the rule that requires an action or proceeding, including any appeals therefrom, brought to challenge the lead agency’s decision for a certified project to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court. The bill would specify that the review of a lead agency’s decision to adopt or certify an environmental review document, as defined, for a certified project is the substantial evidence standard. The bill would provide that, if the lead agency fails to adopt or certify an environmental review document on or before June 1, 2028, for a certified project, the provisions of the bill do not apply to that project. The provisions of the bill would be repealed by their own terms on January 1, 2029.
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.

 Chapter 6.10 (commencing with Section 21189.80) is added to Division 13 of the Public Resources Code, to read:
CHAPTER  6.10. Environmental Leadership Hospital Project.

21189.80.
 (a) For purposes of this chapter, the following definitions apply:
(1) “Applicant” means a public or not-for-profit entity or its affiliates that proposes a project and its successors, heirs, and assignees.
(2) (A) “Environmental leadership hospital project,” “leadership project,” or “project” means any new hospital project or hospital expansion or modernization project that may include a wellness center, including overnight stay facilities, outpatient clinics, medical clinics, birthing centers, mental health clinics, assisted living facilities, behavioral health facilities, laboratories, and related operations and facilities.
(B) An environmental leadership hospital project may include residential uses if at least 10 percent of the residential units, onsite or offsite, are dedicated as housing that is affordable to lower income households, as defined in Section 50079.5 of the Health and Safety Code.
(3) “Environmental review document” means a negative declaration, mitigated negative declaration, sustainable communities environmental assessment, environmental impact report, or addendum.

21189.80.1.
 (a) A person proposing to construct a leadership project may apply to the Governor for certification that the leadership project is eligible for streamlining provided by this chapter. The person shall supply evidence and materials that the Governor deems necessary to make a decision on the application. Any evidence or materials shall be made available to the public at least 15 days before the Governor certifies a project pursuant to this chapter.
(b) The Office of Planning and Research may charge a fee on an applicant seeking certification pursuant to this chapter for the costs incurred by the Governor’s office in the implementation of this chapter.

21189.80.2.
 The Governor may certify a leadership project for streamlining pursuant to this chapter if all the following conditions are met:
(a) (1) Except as provided in paragraph (2), if the project is in an urbanized area, as defined in Section 15387 of Title 14 of the California Code of Regulations, the project will result in a minimum investment of one hundred million dollars ($100,000,000) in California upon completion of construction, or, if the project is not in an urbanized area, the project will result in a minimum investment of fifty million dollars ($50,000,000) in California upon completion of construction.
(2) Notwithstanding paragraph (1), if the project contains a behavioral health facility, the project will result in a minimum investment of thirty million dollars ($30,000,000) in California upon completion of construction.
(b) The project applicant provides health care services to communities with underserved patient populations.
(c) The project development site does not contain tribal cultural resources.
(d) (1) Except as provided in paragraph (2), the project shall meet the following net zero greenhouse gas criteria, as determined by the State Air Resources Board:
(A) The net additional emissions of the project shall be zero or, at the election of the applicant, may be less than zero.
(B) The project applicant commits to use 100 percent renewable power, if available, including either of the following:
(i) Onsite wind and solar power generation, including through a microgrid.
(ii) The purchase of renewable power through a utility, community choice aggregation program, or a direct access agreement and the energy is sourced in California.
(C) All remaining additional emissions from the project shall be mitigated, reduced, eliminated, or sequestered as a result of any of the following types of measures:
(i) Measures implemented on the project site or associated with activities resulting from the project, including energy efficiency programs, electric vehicle charging stations, and other measures to reduce transportation emissions.
(ii) Measures that provide for direct investments in emission reduction or sequestration implemented outside the project’s site that give, to the extent reasonably feasible, (I) priority to measures that confer benefits to disadvantaged communities within the air pollution control district or air quality management district where the project is located and thereafter in disadvantaged communities elsewhere in the state and (II) consideration to reductions in criteria air pollutant and toxic air contaminants or other cobenefits in disadvantaged communities. Measures may include rooftop solar photovoltaic systems or cool roofs, energy efficiency improvements, electric vehicle charging stations, electric vehicle programs, water heater conversion projects, transit, school bus and truck conversion programs, and other project types as may be accepted by the State Air Resources Board.
(iii) Not more than 15 percent of the project’s additional emissions may be mitigated by a cobenefit accelerator investment payment by the project applicant to the Strategic Growth Council that is designated to accelerate investments in measures that reduce emissions of greenhouse gases and create cobenefits in disadvantaged communities, including through the programs adopted pursuant to Part 1 (commencing with Section 75200) of, or Part 4 (commencing with Section 75240) of, Division 44. If the Strategic Growth Council is terminated, the Governor shall designate a new agency or program to receive the cobenefit accelerator investment payment. The cobenefit accelerator investment payment per metric ton of carbon dioxide equivalent shall be set at the auction reserve price set for the ____ auction administered pursuant to market-based compliance mechanism adopted pursuant to the California Global Warming Solutions Act of 2006 (Division 25.5 (commencing with Section 38500) of the Health and Safety Code), multiplied by 150 percent. The cobenefit accelerator investment payment shall increase annually by the rate of inflation as measured by the most recently available 12 months of the Consumer Price Index for All Urban Consumers. The State Air Resources Board shall calculate and publish the cobenefit accelerator investment payment on an annual basis.
(2) Paragraph (1) is deemed satisfied if a mitigated emission program has been previously approved by the State Air Resources Board in connection with the certification of an environmental impact report for the project before January 1, 2022.
(3) For purposes of this subdivision, the following definitions apply:
(A) “Additional emissions” means the project’s projected emissions of greenhouse gases less the baseline emissions and shall not include the emissions associated with the provision of emergency backup power for the project.
(B) “Baseline emissions” means the direct and indirect emissions of greenhouse gases, including emissions from transportation and power consumption, associated with the activities occurring at the project site within one year before the application is submitted.
(C) “Mitigated emissions” mean the emissions of greenhouse gases mitigated, reduced, eliminated, or sequestered in accordance with subparagraphs (B) and (C) of paragraph (1).
(D) “Net additional emissions” mean the project’s additional emissions less the mitigated emissions.
(e) (1) The project site does not contain wetlands or riparian areas and does not have habitats of significant value. The project does not harm any species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code), or the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code). The project does not cause the destruction or removal of any species protected by a local ordinance in effect at the time the application for the project was deemed complete.
(2) For the purposes of this subdivision:
(A) “Habitat of significant value” includes wildlife habitat of national, statewide, regional, or local importance; habitat for species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code); habitat identified as candidate, fully protected, sensitive, or species of special status by local, state, or federal agencies; or habitat essential to the movement of resident or migratory wildlife.
(B) “Riparian areas” means those areas transitional between terrestrial and aquatic ecosystems and that are distinguished by gradients in biophysical conditions, ecological processes, and biota. A riparian area is an area through which surface and subsurface hydrology connect waterbodies with their adjacent uplands. A riparian area includes those portions of terrestrial ecosystems that significantly influence exchanges of energy and matter with aquatic ecosystems. A riparian area is adjacent to perennial, intermittent, and ephemeral streams, lakes, and estuarine-marine shorelines.
(C) “Wetlands” has the same meaning as in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).
(D) “Wildlife habitat” means the ecological communities upon which wild animals, birds, plants, fish, amphibians, and invertebrates depend for their conservation and protection.
(f) The project applicant does all of the following:
(1) Certify to the lead agency that either of the following is true:
(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, 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, then, for those portions of the project that are not a public work, all of the following shall apply:
(i) The project applicant shall ensure that the prevailing wage requirement is included in all contracts for the performance of the project.
(ii) All contractors and subcontractors at every tier shall pay to all construction workers employed in the execution of the project 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) (I) Except as provided in subclause (III), all contractors and subcontractors at every tier 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 by that section.
(II) Except as provided in subclause (III), the obligation of the contractors and subcontractors at every tier 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 through 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.
(III) Subclauses (I) and (II) do not apply if all contractors and subcontractors at every tier 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.
(iv) 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) Certify to the lead agency that a skilled and trained workforce will be used to perform all construction work on the project. All of the following requirements shall apply to the project:
(A) The project applicant 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.
(B) Every contractor and subcontractor at every tier shall use a skilled and trained workforce to complete the project.
(C) (i) Except as provided in clause (ii), the developer of the project shall provide to the lead 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 l of Division 2 of the Public Contract Code. A monthly report provided to the lead 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. If the developer 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, the developer 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 same procedures for issuance of civil wage and penalty assessments pursuant to Section 1741 of the Labor Code, and may be reviewed pursuant to the same procedures in Section 1742 of the Labor Code. Penalties shall be paid to the State Public Works Enforcement Fund.
(ii) Clause (i) does not apply if all contractors and subcontractors at every tier 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.
(g) The project applicant has entered into a binding and enforceable agreement that all mitigation measures required pursuant to this division to certify the project under this chapter shall be conditions of approval of the project, and those conditions will be fully enforceable by the lead agency or another agency designated by the lead agency. In the case of environmental mitigation measures, the project applicant agrees, as an ongoing obligation, that those measures will be monitored and enforced by the lead agency for the life of the obligation.
(h) The project applicant agrees to pay the costs of the trial court and the court of appeal in hearing and deciding any case, including payment of the costs for the appointment of a special master if deemed appropriate by the court, in a form and manner specified by the Judicial Council, as provided in the California Rules of Court adopted by the Judicial Council.
(i) The project applicant agrees to pay the costs of preparing the record of proceedings for the project concurrent with review and consideration of the project pursuant to this division, in a form and manner specified by the lead agency for the project.

21189.80.3.
 (a) (1) Before certifying a project, the Governor shall make a determination that each of the conditions specified in Section 21189.80.2 have been met. These findings are not subject to judicial review.
(2) If the Governor determines that a leadership project is eligible for streamlining pursuant to this chapter, the Governor shall submit that determination, and any supporting information, to the Joint Legislative Budget Committee for review and concurrence or nonconcurrence.
(3) Within 30 days of receiving the determination, the Joint Legislative Budget Committee shall concur or nonconcur in writing on the determination.
(4) If the Joint Legislative Budget Committee fails to concur or nonconcur on a determination by the Governor within 30 days of the submittal, the leadership project is deemed to be certified.
(b) The Governor may issue guidelines regarding application and certification of projects pursuant to this chapter. Any guidelines issued pursuant to this subdivision are not subject to the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).

21189.80.4.
 Notwithstanding other law, the environmental review document prepared for a leadership project certified by the Governor under this chapter shall not be required to reference, describe, or discuss any of the following:
(a) Growth inducing impacts.
(b) Aesthetic or parking impacts.
(c) Project-specific or cumulative impacts from vehicle trips generated on emissions of greenhouse gases, vehicle miles traveled, or energy impacts.
(d) Population impacts, if the project causes no net loss in the number of housing units within the project site or the project includes residential units within the project site.
(e) Agriculture, forestry, or mineral resources impacts, if the project is within an urban area.

21189.80.5.
 (a) Within 10 business days of the certification of a leadership project under this chapter, a lead agency shall, at the applicant’s expense, issue a public notice in no less than 12-point type stating the following:
“THE APPLICANT HAS ELECTED TO PROCEED UNDER CHAPTER 6.10 (COMMENCING WITH SECTION 21189.80) OF DIVISION 13 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OF THE ENVIRONMENTAL REVIEW DOCUMENT OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE ENVIRONMENTAL REVIEW DOCUMENT IS SUBJECT TO THE PROCEDURES SET FORTH IN SECTIONS 21189.80.7 AND 21189.80.8 SECTION 21189.80.7 OF THE PUBLIC RESOURCES CODE, AS APPLICABLE. A COPY OF CHAPTER 6.10 (COMMENCING WITH SECTION 21189.80) OF DIVISION 13 OF THE PUBLIC RESOURCES CODE IS INCLUDED BELOW.”
(b) The public notice shall be distributed by the lead agency as required for public notices issued under paragraph (3) of subdivision (b) of Section 21092.

21189.80.6.
 Notwithstanding any other law, the lead agency’s adoption or certification of the environmental review document for, and the approval of, a project certified under this chapter shall be reviewed under the substantial evidence standard.

21189.80.7.

(a)Notwithstanding any other law, the procedures set forth in subdivision (b) shall apply to any action or proceeding brought to attack, review, set aside, void, or annul the approval of any environmental determination for a project or the granting of any project approvals.

(b)Rules 3.2220 to 3.2237, inclusive, of the California Rules of Court, as may be amended by the Judicial Council, shall apply to any action or proceeding brought to attack, review, set aside, void, or annul the approval of any environmental determination for the project or granting of any project approvals to require the action or proceeding, including any potential appeals therefrom, to be resolved, to the extent feasible, within 270 days of the filing of the certified record of proceedings with the court. The Judicial Council shall amend the California Rules of Court to implement this subdivision.

21189.80.8.21189.80.7.
 Notwithstanding any other law, in connection with any environmental review pursuant to this section, the preparation and certification of the record or proceedings for a project shall be performed in the following manner:
(a) The lead agency for the project shall prepare the record of proceedings pursuant to this division concurrently with the administrative process.
(b) All documents and other materials placed in the record of proceedings after the date of the lead agency approval shall be posted on, and be downloadable from, an internet website maintained by the lead agency commencing with the date of the release of the draft environmental review document or other environmental determination for the project.
(c) The lead agency shall make available to the public in a readily accessible electronic format the draft environmental review document or other environmental determination for the project and all other documents submitted to, or relied on by, the lead agency in the preparation of the draft environmental review document or other environmental determination for the project.
(d) A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental review document or other environmental determination for the project that is a part of record of proceedings shall be made available to the public in a readily accessible electronic format within five business days after the document is released or received by the lead agency.
(e) The lead agency shall encourage written comments on the project to be submitted in a readily accessible electronic format, and shall make any comment available to the public in a readily accessible electronic format within five business days of its receipt.
(f) Within seven business days after the receipt of any comment that is not in an electronic format, the lead agency shall convert that comment into a readily accessible electronic format and make it available to the public in that format.
(g) Notwithstanding subdivisions (b) to (f), inclusive, documents submitted to or relied on by the lead agency that were not prepared specifically for the project and are copyright protected are not required to be made readily accessible in an electronic format. For those copyright-protected documents, the lead agency shall make an index of these documents available in an electronic format no later than the date of the release of the draft environmental review document or other environmental determination for the project, or within five business days if the document is received or relied on by the lead agency after the release of the draft review document or environmental determination for the project. The index shall specify the libraries or lead agency offices in which hardcopies of the copyrighted materials are available for public review.
(h) The lead agency shall certify the final record of proceedings within five days after the filing of the notice required by subdivision (a) of Section 21152.
(i) Any dispute arising from the record of proceedings shall be resolved by the superior court. Unless the superior court directs otherwise, a party disputing the content of the record shall file a motion to augment the record at the time it files its initial brief.
(j) The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.

21189.80.9.21189.80.8.
 The Governor may certify a project under this chapter for which an environmental impact report has been certified before January 1, 2022, if the project meets the requirements of Section 21189.80.2.

21189.80.10.21189.80.9.
 If a lead agency fails to adopt a negative declaration, mitigated negative declaration, or sustainable communities environmental assessment, or to certify an environmental impact report, for a leadership project certified under this chapter on or before June 1, 2028, this chapter shall not apply to that project.

21189.80.11.21189.80.10.
 This chapter shall remain in effect only until January 1, 2029, and as of that date is repealed.

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.