21189.70.6. (a) The draft and final environmental impact report for the transit and transportation facilities project shall include a notice in not less than 12-point type stating the following:
THIS ENVIRONMENTAL IMPACT REPORT (EIR) IS SUBJECT TO CHAPTER 6.9 (COMMENCING WITH SECTION 21189.70) OF DIVISION 13 OF THE PUBLIC RESOURCES CODE, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE LEAD AGENCY NEED NOT CONSIDER CERTAIN COMMENTS FILED AFTER THE CLOSE OF THE PUBLIC COMMENT PERIOD FOR THE DRAFT EIR. ANY JUDICIAL ACTION CHALLENGING THE CERTIFICATION OF THE EIR OR THE APPROVAL OF THE PROJECT DESCRIBED IN THE EIR IS SUBJECT TO THE PROCEDURES SET FORTH IN CHAPTER 6.9 (COMMENCING WITH SECTION 21189.70) OF DIVISION 13 OF THE PUBLIC RESOURCES CODE. A COPY OF CHAPTER 6.9 (COMMENCING WITH SECTION 21189.70) OF DIVISION 13 OF THE PUBLIC RESOURCES CODE IS INCLUDED IN THE APPENDIX TO THIS EIR.
(b) The draft environmental impact report and final environmental impact report shall contain, as an appendix, the full text of this section.
(c) Within 10 days after the release of the draft environmental impact report, the lead agency shall conduct an informational workshop to inform the public of the key analyses and conclusions of that report.
(d) Within 10 days before the close of the public comment period, the lead agency shall hold a public hearing to receive testimony on the draft environmental impact report. A transcript of the hearing shall be included as an appendix to the final environmental impact report.
(e) (1) Within five days following the close of the public comment period, a commenter on the draft environmental impact report may submit to the lead agency a written request for nonbinding mediation. The lead agency and transit and transportation facilities project proponent shall participate in nonbinding mediation with all commenters who submitted timely comments on the draft environmental impact report and who requested the mediation. Mediation conducted pursuant to this paragraph shall end no later than 35 days after the close of the public comment period.
(2) A request for mediation shall identify all areas of dispute raised in the comment submitted by the commenter that are to be mediated.
(3) The lead agency shall select one or more mediators who shall be retired judges or recognized experts with at least five years of experience in land use and environmental law or science, or mediation. The transit and transportation facilities project proponent shall bear the costs of mediation.
(4) A mediation session shall be conducted on each area of dispute with the parties requesting mediation on that area of dispute.
(5) The lead agency shall adopt, as a condition of approval, any measures agreed upon by the lead agency, the transit and transportation facilities project proponent, and any commenter who requested mediation. A commenter who agrees to a measure pursuant to this paragraph shall not raise the issue addressed by that measure as a basis for an action or proceeding challenging the lead agency’s decision to certify the environmental impact report or to grant one or more initial transit and transportation facilities project approvals.
(f) The lead agency need not consider written comments submitted after the close of the public comment period, unless those comments address any of the following:
(1) New issues raised in the response to comments by the lead agency.
(2) New information released by the public agency subsequent to the release of the draft environmental impact report, such as new information set forth or embodied in a staff report, proposed permit, proposed resolution, ordinance, or similar documents.
(3) Changes made to the transit and transportation facilities project after the close of the public comment period.
(4) Proposed conditions for approval, mitigation measures, or proposed findings required by Section 21081 or a proposed reporting or monitoring program required by paragraph (1) of subdivision (a) of Section 21081.6, where the lead agency releases those documents subsequent to the release of the draft environmental impact report.
(5) New information that was not reasonably known and could not have been reasonably known during the public comment period.
(g) (1) The lead agency shall file the notice required by subdivision (a) of Section 21152 within five days after the last initial transit and transportation facilities project approval.
(2) (A) The lead agency shall prepare and certify the record of proceedings in accordance with this subdivision and in accordance with Rule 3.1365 of the California Rules of Court. The transit and transportation facilities project proponent shall pay the lead agency for all costs of preparing and certifying the record of proceedings.
(B) No later than three business days following the date of the release of the draft environmental impact report, the lead agency shall make available to the public in a readily accessible electronic format the draft environmental impact report and all other documents submitted to or relied on by the lead agency in the preparation of the draft environmental impact report. A document prepared by the lead agency or submitted by the transit and transportation facilities project proponent after the date of the release of the draft environmental impact report that is a part of the record of proceedings shall be made available to the public in a readily accessible electronic format within five business days after the document is prepared or received by the lead agency.
(C) Notwithstanding subparagraph (B), documents submitted to or relied on by the lead agency that were not prepared specifically for the transit and transportation facilities 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 impact report, or within five business days if the document is received or relied on by the lead agency after the release of the draft environmental impact report. The index must specify the libraries or lead agency offices in which hardcopies of the copyrighted materials are available for public review.
(D) The lead agency shall encourage written comments on the transit and transportation facilities project to be submitted in a readily accessible electronic format, and shall make any such comment available to the public in a readily accessible electronic format within five days of its receipt.
(E) 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.
(F) The lead agency shall indicate in the record of proceedings comments received that were not considered by the lead agency pursuant to subdivision (f) and need not include the content of the comments as a part of the record of proceedings.
(G) Within five days after the filing of the notice required by subdivision (a) of Section 21152, the lead agency shall certify the record of proceedings for the approval or determination and shall provide an electronic copy of the record of proceedings to a party that has submitted a written request for a copy. The lead agency may charge and collect a reasonable fee from a party requesting a copy of the record of proceedings for the electronic copy, which shall not exceed the reasonable cost of reproducing that copy.
(3) Within 10 days after being served with a complaint or a petition for a writ of mandate, the lead agency shall lodge a copy of the certified record of proceedings with the superior court.
(4) Any dispute over the content of 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 of proceedings shall file a motion to augment the record of proceedings at the time it files its initial brief.
(5) The contents of the record of proceedings shall be as set forth in subdivision (e) of Section 21167.6.
(h) Except as provided in subdivision (c) of Section 21189.70.5, the approval of a transit and transportation facilities project shall be preceded by the certification of a project-level environmental impact report.
(Added by Stats. 2020, Ch. 291, Sec. 2. (AB 2731) Effective January 1, 2021. Conditionally inoperative January 1, 2025. Repealed on January 1 following inoperative date, pursuant to Section 21189.70.5.)
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