Antioch City Council
November 4, 2025

was not known at the time the EIR was certified, are determined to have a more severe adverse impact than discussed in the prior EIR.”
29 However, SWAPE's analysis fails to establish grounds for further review under Section 15183(b)(4). First, SWAPE's analysis is admittedly intentional in its overstatement of potential health risks. As SWAPE acknowledges in its report, its assessment was intentionally “conservative” and that such “ screening-level analyses warrant further evaluation in a refined modeling approach.” Second, SWAPE's analysis overlooks that the Project will implement Mitigation Measure AIR -3a, which requires use of Tier 4 off -road diesel equipment and preparation of a Construction Emissions Mitigation Plan. As the City stated in its consistency memorandum, “Implementation of Mitigation Measure AIR-3a would ensure the proposed project would not result in a significant impact that is peculiar to the project. ” Third, SWAPE's analysis overlooks applicable regulatory controls that reduce DPM emissions, including California Air Resources Board regulations that ban high-polluting construction vehicles, which were identified in the Housing Element EIR. The Housing Element EIR expressly analyzed health risks from construction equipment emissions of TACs and PM2.5 from housing developments like this Project, and Mitigation Measure AIR-3a was specifically designed to address these impacts. The Labor Unions have not provided substantial new information showing that impacts would be more severe than analyzed in the Housing Element EIR, particularly given that the Project will implement the very mitigation measures the EIR determined would substantially mitigate such impacts.

Nor can the Labor Unions establish that any of the other grounds permitting additional review are present. They do not and cannot identify any DPM-related impacts that are “peculiar to the project or the parcel on which the project would be located,”
30 because nothing about the Project’s use of
construction equipment distinguishes it in any way from any other housing project analyzed in the Housing Element EIR. The Labor Unions cannot identify any DPM -related impacts that “were not analyzed as significant effects in a prior EIR on the zoning action, general plan or community plan with which the project is consistent ,”
31 because the Housing Element EIR did analyze such
impacts, and required implementation of Mitigation Measure AIR -3a to address those impacts .32 And, the Labor Unions cannot identify any “potentially significant off-site impacts and cumulative

29 Cal. Code Regs., Tit. 14, § 15183(b)(4).
30 Cal. Code Regs., Tit. 14, § 15183(b)(1).
31 Cal. Code Regs., Tit. 14, § 15183(b)(2).
32 City of Antioch, “Antioch Housing, Environmental Hazards, and Environmental Justice (EJ) Elements, Draft Environmental Impact Report” (Sept. 2022), at IV.C-22-23 (https://www.antiochca.gov/fc/community- development/planning/housing-element/DHEEIR-DEIR_22_0902.pdf).

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September 23, 2025

impacts which were not discussed in the prior EIR prepared for the general plan, community plan or zoning action,”
33 because the Housing Element EIR again analyzed those impacts.34 Finally, the August 19, 2025 Comment Letter states that its purported “evidence precludes the City from relying on the CEQA exemption [and that] in order to comply with CEQA, the City must prepare an EIR that analyzes the Project’s potentially significant and peculiar [air quality] impacts.”
35 Even assuming that the Comment Letter had identified air quality impacts beyond those studied in the Housing Element EIR, its proposed solution – denial of the CEQA exemption, and preparation of an EIR – is contrary to law. Courts have expressly rejected the notion that the Section 15183 “exemption applies only if there are no impacts that are peculiar to the project or its site.”
36 Rather, the Section 15183 exemption applies automatically when a project is “consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified[,]” and any further analysis must be limited to ascertaining whether peculiar project-specific impacts exist.
37 Because the Project is consistent with the density
set forth in the Housing Element and analyzed in the Housing Element EIR, the Project qualifies for the Section 15183 exemption, and an EIR may not be lawfully required.

B. Noise Impacts.

With respect to noise impacts, the Labor Unions assert that construction activities could exceed applicable noise and vibration standards , and the Project’s nighttime ambient operational noise will exceed the City’s significance threshold.
38 The Housing Element EIR analyzes each of these
areas, concluding that any project-specific impacts relating to noise and vibrations will be less than significant in view of compliance with the City ’s Code of Ordinance s (“City Code”) noise restrictions and General Plan Policy 11.8.2.39
With respect to operational noise impacts, City staff explained that the Project “does not include any operational noise -generating uses outside of typical residential uses [such as] heating,

33 Cal. Code Regs., Tit. 14, § 15183(b)(3).
34 City of Antioch, “Antioch Housing, Environmental Hazards, and Environmental Justice (EJ) Elements, Draft Environmental Impact Report” (Sept. 2022), at IV.C-23-24 (https://www.antiochca.gov/fc/community- development/planning/housing-element/DHEEIR-DEIR_22_0902.pdf). 35 August 19, 2025 Comment Letter at 5-6.
36 Hilltop Group, Inc. v. County of San Diego (2024) 99 Cal.App.5th 890, 914 (“We disagree with such a narrow interpretation of Guidelines section 15183 in which the exemption is entirely inapplicable if there are any peculiar project-specific environmental impacts.”).
37 Hilltop Group, Inc. v. County of San Diego (2024) 99 Cal.App.5th 890, 914. 38 July 15, 2025 Comment Letter at 12-15.
39 City of Antioch, “Antioch Housing, Environmental Hazards, and Environmental Justice (EJ) Elements, Draft Environmental Impact Report” (Sept. 2022), at IV.L-12-15 (https://www.antiochca.gov/fc/community- development/planning/housing-element/DHEEIR-DEIR_22_0902.pdf).

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ventilation, and air conditioning units [,]” and that noise levels associated with potential HVAC units “would reasonably not be expected to result in a substantial increase in noise levels in the project vicinity.”
40 Staff also noted that the Project will be subject to the City’s Multi- family Residential Objective Design Standards, which require shielding HVAC units to decrease noise, as well as to General Plan Policy 11.8.2, “a uniformly applicable development policy identified by the Housing Element EIR as being sufficient to substantially mitigate impacts associated with the buildout of the Housing Element related to noise.”
41 Similarly, with respect to construction-related noise impacts, the Housing Element EIR states that any impacts from construction-related noise would be mitigated to less than significant, where a project adheres to City Code § 5-17.04 and § 5-17.05, which generally restrict construction hours to 7 am to 6 pm on weekdays and 9 am to 5 pm on weekends. 42 In order to mitigate construction
noise to less than significant, the Housing Element EIR also states a project would have to implement a construction -related noise mitigation plan requiring the use of noise -reduction methods and limitations on haul truck deliveries to and from the Project site, consistent with General Plan Policy 11.8.2.
43 As City staff explained, Project approval is conditioned on compliance with Policy 11.8.2.44
In the August 19, 2025 Comment Letter, the Labor Unions state: “While the Housing Element EIR generally found that compliance with these standards could mitigate impacts, the City has not demonstrated that it is complying with these policies. Specifically, it has failed to prepare the noise attenuation study required by Policy 11.8.2(f), nor has it provided any site-specific analysis or data to justify its conclusion that the study is unnecessary.” 45 Policy 11.8.2 only requires a noise
attenuation study “[f]or developments in areas exceeding the noise levels identified in the General Plan noise objectives, or where the development of proposed uses could result in a significant increase in noise[.]”
46 But, as City staff have explained, “the project is not located in an area exceeding the General Plan noise standards.”
47 The objective noise level identified in the General Plan for multi- family

40 Response to Comment 1-10, Responses to Comments, page 33. 41 Response to Comment 1-10, Responses to Comments, page 33. 42 Id. at IV.L-7-8, 12.
43 Id. at IV.L-7-8, 12.
44 Response to Comment 1-11, Responses to Comments, page 34. Conditions of Approval #50. 45 August 19, 2025 Comment Letter, at 9.
46 City of Antioch, “Antioch Housing, Environmental Hazards, and Environmental Justice (EJ) Elements, Draft Environmental Impact Report” (Sept. 2022), at IV.L-13 (https://www.antiochca.gov/fc/community- development/planning/housing-element/DHEEIR-DEIR_22_0902.pdf). 47 Response to Comment 1-8, Responses to Comments, page 33.

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September 23, 2025

residential uses, like the Project here, is “60 dBA CNEL within interior open space.” 48 However,
the Labor Unions claim the Project has the “potential” for operational noise levels of 53 dBA, calculated based on a number of acknowledged assumptions. 49 Thus, the Labor Unions’ own
“evidence” fails to rebut the City’s sound conclusion that the Project is not in an area exceeding the noise levels identified in the General Plan noise objectives. Further, City staff explained with specificity why the HVAC-related noise cited by the Labor Unions would not cause a substantial operational noise increase, in view of the Project’s location. 50 As such, the conditions requiring
preparation of a noise attenuation study under Policy 11.8.2(f) are not triggered.

Finally, with respect to vibration-related impacts, City staff explained that “the requirement for a screening level vibration analysis is based specifically on the use of impact pile drivers during construction. … Pile drivers are not typically used for standard residential developments[.]” 51 In view of this fact, the Labor Unions appear to have dropped their allegations that the Project is required to undertake a vibration analysis.

Because the Project will comply with all applicable standards and criteria regarding construction- related and operational noise, any noise and vibration-related impacts are coextensive with those analyzed in the Housing Element EIR, and none of the Section 15183(b) criteria for further analysis are implicated.

IV. The Project Is Separately Entitled to Proceed as a CEQA-Exempt Project Pursuant to Recently-Enacted Assembly Bill 130.

Separate and apart from the CEQA exemption provided by Guidelines Section 15183, the Project is separately entitled to proceed as a CEQA -exempt project pursuant to AB 130. AB 130 was signed into law on June 30, 2025, and its provisions are effective as of that date.

In relevant part, AB 130 provides that CEQA “does not apply to any aspect of a housing development project, as defined in subdivision (b) of Section 65905.5 of the Government Code, including any permits, approvals, or public improvements required for the housing development project, as may be required by this division, if the housing development project meets” AB 130’s qualifying criteria.
52 48 City of Antioch, “Antioch Housing, Environmental Hazards, and Environmental Justice (EJ) Elements, Draft Environmental Impact Report” (Sept. 2022), at IV.L-6 (https://www.antiochca.gov/fc/community- development/planning/housing-element/DHEEIR-DEIR_22_0902.pdf). 49 July 15, 2025 Comment Letter at 14; July 15, 2025 Comment Letter, Ex. A at 5-6. 50 Response to Comment 1-10, Responses to Comments, page 33. 51 Response to Comment 1-12, Responses to Comments, page 35. 52 Pub. Res. Code § 21080.66(a).

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September 23, 2025

The Project meets these criteria. The Project Site is 10.35 acres, and so meets AB 130’s acreage limitations.
53 The Project Site is within the boundaries of the City of Antioch, which is an incorporated municipality.54 At least 75 percent of the perimeter of the Project Site adjoins parcels that are developed with urban uses. 55 The Project is consistent with all applicable general plan, specific plan, and zoning ordinances, as the Staff Report acknowledges. 56 The Project’s density of 20.05 du/acre is “at least one -half of” the density “appropriate to accommodate housing for lower income households” in the City, which is 30 du/acre. 57 The Project Site is not among the categories of sites excluded from the CEQA exemption due to particular environmental sensitivities.
58 The Project does not require the demolition of a historic structure. 59 And, no portion of the Project will be designated for hotel uses or similar uses.60 As such, the Project is separately CEQA -exempt under AB 130. Because the City has already confirmed that the Project is CEQA-exempt under Guidelines Section 15183, it is unnecessary to rely on this additional exemption. However, even if there were any issue with respect to the Project’s entitlement to the Section 15183 exemption, the Project would remain exempt from CEQA pursuant to AB 130.61

53 Pub. Res. Code § 21080.66(a)(1).
54 Pub. Res. Code § 21080.66(a)(2).
55 Pub. Res. Code § 21080.66(a)(3); see Pub. Res. Code §§ 21080.66(f)(1) (““Adjoins” includes parcels that are only separated by a street, pedestrian path, or bicycle path.”), (f)(3) (“Urban use” means any current or previous residential or commercial development, public institution, or public park that is surrounded by other urban uses, parking lot or structure, transit or transportation passenger facility, or retail use, or any combination of those uses.”). 56 Pub. Res. Code § 21080.66(a)(4); see July 16, 2025 Planning Commission Staff Report, Agenda Item 6-1, at 3-4. 57 Pub. Res. Code § 21080.66(a)(5); see Dept. of Housing & Comm. Dev., “Default Density Standard Option – 2020 Census Update” (Mar. 21, 2022), at 7 (https://www.hcd.ca.gov/community-development/housing-element/housing- element-memos/docs/defaultdensity2020censusupdate.pdf). 58 Pub. Res. Code § 21080.66(a)(6).
59 Pub. Res. Code § 21080.66(a)(7).
60 Pub. Res. Code § 21080.66(a)(8).
61 Pub. Res. Code § 21080.66(b)(1)(A)(ii).

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September 23, 2025

V. Conclusion
For the foregoing reasons, we respectfully request that City Council reject the arguments set forth in the Comment Letter and approve the Project pursuant to the Section 15183 CEQA exemption.

Sincerely,

Daniel R. Golub
William E. Sterling
Scott L. Gesundheit

HOLLAND & KNIGHT

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Exhibit A
H13
Housing Element EIR Certification
Letter (Oct. 12, 2023)
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STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov

October 12, 2023 ********CORRECTED********

Kwame Reed, Acting City Manager
City of Antioch
200 H Street
Antioch, CA 94531

Dear Kwame Reed:

RE: City of Antioch’s 6
th Cycle (2023-2031) Adopted Housing Element

Thank you for submitting the City of Antioch’s housing element, which was adopted January 24, 2023, with technical modifications received on August 15, 2023 and October 12, 2023. All technical modifications were authorized by Resolution Number 2023/16 and were made available to the public for seven days before HCD’s review.

The City confirmed the technical modifications are consistent with the direction and authority granted by Resolution Number. Pursuant to Government Code section 65585, the California Department of Housing and Community Development (HCD) is reporting the results of its review.

HCD is pleased to find the adopted housing element, including all technical modifications, in substantial compliance with State Housing Element Law (Gov. Code, § 65580 et seq) as of the date of this letter. The adopted element, including all technical modifications, meets the requirements described in HCD’s April 4, 2023, review.

Additionally, the City must continue timely and effective implementation of all programs including but not limited to the following:

• Program 2.1.7 (Support Non-Profit Housing Sponsors)
• Program 2.1.9 (Resources for Individuals Experiencing Homelessness) • P rogram 2.1.11 (Missing Middle Housing)
• Program 3.1.1 (Extremely Low-Income and Special Needs Groups) • Program 3.1.5 (Emergency Shelters, Supportive and Transitional Housing) • Program 4.1.3 (Density Bonus Ordinance)
• Program 4.1.7 (Streamlined Approvals)
• Program 4.1.13 (Multifamily Objective Design Standards) • Program 5.1.4 (Environmental Justice)
• Program 5.1.7 (Economic Development in Environmental Justice Neighborhoods)

H15
Kwame Reed, Acting City Manager

The City must monitor and report on the results of these and other programs through the annual progress report, required pursuant to Government Code section 65400.

Please be aware, Government Code section 65585, subdivision (i) grants HCD authority to review any action or failure to act by a local government that it determines is inconsistent with an adopted housing element or housing element law. This includes failure to implement program actions included in the housing element. HCD may revoke housing element compliance if the local government’s actions do not comply with state law.

For your information, pursuant to Assembly Bill 1398 (Chapter 358, Statutes of 2021), as the City failed to adopt a compliant housing element within 120 days of the statutory deadline (January 31, 2023), Program A6.1-2 (Prior Identified Sites) to make prior identified sites available must be completed no later than one year from the statutory deadline. Otherwise, the local government’s housing element will no longer comply with State Housing Element Law, and HCD may revoke its finding of substantial compliance pursuant to Government Code section 65585, subdivision (i)

Several federal, state, and regional funding programs consider housing element compliance as an eligibility or ranking criteria. For example, the CalTrans Senate Bill (SB) 1 Sustainable Communities grant, the Strategic Growth Council and HCD’s Affordable Housing and Sustainable Communities program, and HCD’s Permanent Local Housing Allocation consider housing element compliance and/or annual reporting requirements pursuant to Government Code section 65400. With a compliant housing element, the City now meets housing element requirements for these and other funding sources.

HCD appreciates the dedication and hard work put into the housing element update and review process. HCD wishes the City of Antioch success in implementing its housing element and looks forward to following its progress through the General Plan annual progress reports pursuant to Government Code section 65400. If you have any questions or need additional technical assistance, please contact Melissa Vasquez, of our staff, at [email protected].

Sincerely,

Paul McDougall
Senior Program Manager
H16
NOD for the Antioch Housing,
Environmental Hazards, and
Environmental Justice Elements
Project EIR (Jan. 25, 2023)
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Notice of Determination (NOD) ANTIOCH

CALIFORNIA
FROM: City of Antioch TO: Contra Costa County Clerk-Recorder County Clerk-Recorder
555 Escobar Street
Community Development Dept, Planning Division
PO Box 5007
Martinez, CA 94553
Cc: Office of Planning & Research, via
CEQAsubmit
Antioch, CA 94531-5007
Contact: Anne Hersch, Planning Manager
(925) 779-6141
SUBJECT: Filing of Notice of Determination in compliance with Section 21108 or 21152 of the Public Resources Code
State Clearinghouse Number: 2021110146
Project Title/ Project Name: Antioch Housing, Environmental Hazards, and Environmental Justice (EJ) Elements Project EIR
Project Reference Number(s): N/A
Project Applicant/ Name: City of Antioch
• Applicant Address: PO Box 5007, Antioch, CA 94531-5007 • Applicant Phone No.: (925) 779-6141
Project Location / Address: City of Antioch
• APN(s): Citywide
Project Description: The Project is being proposed by the City of Antioch (City), California to comply with California Government Code Sections 65580-65589.8, which requires local jurisdictions to update the Housing Element of their General Plans every eight (8) years to adequately plan for the regional housing needs of residents of all income groups. The Project will include (1) adoption and implementation of the City's 6th Cycle Housing Element Update (2023-2031) (2) adoption and implementation of related updates to the City's Environmental Hazards Element (3) development and adoption of associated Environmental Justice Policies per Senate Bill (SB) 1000 and (4) adoption of rezonings and specific plan amendments necessary to accommodate the City's Regional Housing Needs Allocation (RHNA).

This is to advise that the City of Antioch(~ LEAD AGENCY or O RESPONSIBLE AGENCY) has approved the above referenced project on 01/24/2023 has made the following determinations regarding the project:

1. The Project [[:gjwill □ will not] have a significant effect on the environment.

2. The following Environmental Document was prepared for this project pursuant to the provisions of CEQA:

IZJEnvironmental Impact Report (EIR)
D Negative Declaration {ND)

3. Mitigation Measures [~were □ were not] incorporated as conditions of approval for this project.

4. A Mitigation Monitoring/ Reporting Plan (MMRP) [IZ!was □ was not] adopted for this project.

5. A Statement of Overriding Considerations [IZ!was □ was not] adopted for this project.

6. Findings [i;gJ were □ were not] made pursuant to the provision of CEQA.

This is to certify that the final EIR or Negative Declaration with comments and responses and record of project approval (as applicable) is available to the General Public at; www.antiochca .gov/ EnvironmentalDocs SIGNATURE: ~ L
NAME, TITLE: Anne Hersch, AICP Planning Manager
DATE: January 25, 2023
Authority cited: Sections 21083 Public Resources Code
Reference Section 21000-21174, Public Resources Code
Rev.2021
H18
Appeal to City Council re
1750 Broadway (Apr. 1, 2019)
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4218-002j
DANIEL L. CARDOZO
CHRISTINA M. CARO

YAIR CHAVER
SARA F. DUDLEY
THOMAS A. ENSLOW
TANYA A. GULESSERIAN
KYLE C. JONES
RACHAEL E. KOSS

NIRIT LOTAN
MILES F. MAURINO
MARC D. JOSEPH
Of Counsel

SACRAMENTO OFFICE
520 CAPITOL MALL, SUITE 350
SACRAMENTO, CA 95814-4721
TEL: (916) 444-6201
FAX: (916) 444-6209

ADAMS BROADWELL JOSEPH & CARDOZO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
601 GATEWAY BOULEVARD, SUITE 1000

SOUTH SAN FR
ANCISCO, CA 94080-7037
___________
TEL: (650) 589-1660
FAX: (650) 589-5062
[email protected]

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April 1, 2019
Via Email and Han
d Delivery
Mike Rivera, Project Planner
City of Oakland, Bureau of Planning
250 Frank H. Ogawa, Suite 2114
Oakland, CA 94612
Email: mrivera@oakl
andnet.com
City Clerk
City of Oakland
1 Frank H. Ogawa Plaza
1st and 2nd Floors
Oakland, CA 94612
Email: [email protected]
Re: Appeal to City Council re 17 50 Broadway (Application Number:

PLN18369; APN: 008 062301300)
Dear Mr. Rivera, City Clerk:

We write o
n behalf of East Bay Residents for Responsible Development (“East Bay Residents”) to appeal the Oakland Planning Commission’s March 20, 2019 approval of the 1750 Broadway Project (Application Number: PLN18369; APN:
008 062301300) (“Project”), and the CEQA Checklist/Exemption Report (“CEQA Analysis”) prepared for the Project by the City of Oakland (“City”) pursuant to the California Environmental Quality Act (“CEQA”).
1 This Appeal is taken from the
following Planning Commission actions:
1 Pub. Resources Code (“PRC”) §§ 21000 et seq.; 14 Cal. Code Regs. (“CCR” or “CEQA Guidelines”) §§ 15000 et seq.
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1. Adoption/approval of the CEQA Findings.

2. Approval of the Project, including Major Conditional Use Permit (“Major CUP”) and Regular Design Review, subject to the Findings, Conditions of Approval (“Conditions”), and Mitigation Monitoring and Reporting Program (“MMRP”) that were attached to the Planning Commission Staff Report.

3. The approval of an additional Condition of Approval (#24) imposed at the Planning Commission hearing to consider the feasibility of adding a new lightwell on the north side of the new building.
2 The Project includes the proposed construction of a 37-story building consisting of 307 market-rate residential units, approximately 5,000 square feet of retail space, and a five-level parking garage for 170 parking spaces. The Project site is located at 1750 Broadway, between 17th and 19th Streets (APN: 008 062301300), and is proposed by Applicant Rubicon Point Partners (“Applicant”).3

This Appeal letter demonstrates that the Planning Commission’s decision to approve the Project was not supported by substantial evidence in the record. 4 Specifically, our prior comments, as well as the comments of several local residents and other members of the public that were submitted to the Planning Commission, identified several flaws in the City’s analysis, and provided new information and substantial evidence demonstrating that the Project will have new and more severe impacts than previously analyzed in the City’s General Plan Land Use and Transportation Element and its Environmental Impact Report (“LUTE EIR”), the 2007-2014 Housing Element, 2015-2023 Housing Element and their EIRs (“Housing Element EIRs”), and the City’s 2011 Renewal Plan Amendments / Redevelopment Plan and EIR (“Redevelopment Plan”).5 These issues were not resolved by the Commission prior to approval.

The City’s CEQA Analysis purports to evaluate the Project’s potential environmental impacts and consistency with these prior EIRs, and erroneously

2 March 22, 2019 Planning Commission Decision Letter for Application Number: PLN18369; Property Location: 1750 Broadway; APN: 008 062301300 (“Decision Letter”), p. 1. 3 March 20, 2019 Planning Commission Staff Report (“Staff Report”), p. 1. 4 This Appeal is also accompanied with payment of the appeal fee of $1,891.08 in accordance with the City of Oakland Master Fee Schedule.
5 CEQA Analysis, p. 3.
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asserts that the Project is exempt from further CEQA review pursuant to a number of CEQA exemptions, including the Class 32 infill exemption under CEQA Guidelines Section 15332, the streamlining exemptions for urban infill development projects under CEQA Guidelines Sections 15183 and 15183.3. In the alternative, the CEQA Analysis asserts that it is a CEQA Addendum prepared pursuant to CEQA Guidelines Sections 15162, 15163, and 15164 to address minor technical changes and additions in the prior analysis that do not trigger the need for subsequent environmental review.6 However, as explained more fully below, and in the comments of other local residents and members of the public that were presented to the Planning Commission, the CEQA Analysis fails to disclose, analyze, and mitigate the Project’s new, significant, and more severe impacts on air quality, public health, and construction noise that will occur during the Project’s minimum 28-month construction period,
7 and fails to disclose, analyze, and mitigate
the Project’s new, significant, and more severe impacts on public transit which are likely to occur, and potentially escalate, throughout the life of the Project.

The CEQA Analysis failed to adequately disclose and mitigate these impacts, in violation of CEQA and local land use requirements. The Commission failed to resolve these deficiencies, and failed to remand the Project to Staff to prepare an EIR, prior to approving the Project. The Planning Commission therefore lacked substantial evidence to support its decision to approve the Project and its adoption of CEQA findings for the Project. As explained herein, the City Council should vacate the Planning Commission’s approvals and remand the Project to Staff to prepare a legally adequate EIR, before the Project can be presented to City decision makers for approval.
8 This appeal letter and attachments raises each and every issue that is contested, and addresses “issues and/or evidence” that was previously presented to the Planning Commission prior to its approval of the Project, as specified Sections

17.134.070 and 17.136.090 of the Oakland Planning Code and allowed pursuant to

6 CEQA Analysis, p. 3.
7 CEQA Analysis, p. 51.
8 PRC § 21094.5(a); 14 CCR § 15164(e); see Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506, 515.
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CEQA.9 We previously filed comments on the Project on March 20, 2019 with the assistance of traffic engineer Daniel T. Smith Jr., P.E.10 Local residents and members of the public submitted oral and written comments to the Planning Commission regarding the Project’s significant construction noise impacts.11 We also prepared this Appeal with the assistance of noise consultant Derek Watry, whose comments address the Project’s construction noise impacts and need for additional mitigation identified by residents of 1770 Broadway,12 and air quality and hazardous resources expert James J.J. Clark, PhD, whose comments address the issues previously raised by East Bay Residents regarding the CEQA Analysis’ failure to accurately disclose and mitigate the Project’s individual and cumulative public health risks to the surrounding community from exposure to toxic air contaminants (“TACs”) during Project construction, and improper reliance on non- binding mitigation to reduce those impacts to less than significant levels.13

East Bay Residents urges the City Council to grant this Appeal and remand the Project to City Staff to prepare an EIR for the Project. The Project should not be rescheduled for a further public hearing until these issues have been addressed.

East Bay Residents reserves the right to submit supplemental comments at any later hearings and proceedings related to the Project.
14 I. STATEMENT OF INTEREST

East Bay Residents is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards and environmental and public service impacts of the

9 Oak. Planning Code §§ 17.134.070.A; 17.136.090; PRC § 21177(a) (allowing members of the public to submit additional evidence to the lead agency regarding a project’s CEQA compliance “until the close of the final hearing on the Project.”).
10 East Bay Residents’ March 20, 2019 written comments to the Planning Commission are attached hereto as Exhibit A and incorporate by reference.
11 Exemplary comments from residents of 1770 Broadway addressing construction noise impacts are attached hereto as Exhibit B and incorporated by reference. 12 Mr. Watry’s comments and curriculum vitae are attached hereto as Exhibit C and incorporated by reference.
13 Dr. Clark’s technical comments and curriculum vitae are attached hereto as Exhibit D 14 Gov. Code § 65009(b); PRC § 21177(a); Bakersfield Citizens for Local Control v. Bakersfield (“Bakersfield”) (2004) 124 Cal. App. 4th 1184, 1199-1203; see Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal. App. 4th 1109, 1121.
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Project. The association includes City of Oakland residents Jason Gumataotao, Kal Karn, and James O’Brien, labor organizations UA Plumbers and Pipefitters Local 342, International Brotherhood of Electrical Workers Local 595, Sheet Metal Workers Local 104, Sprinkler Fitters Local 483, their members and families, and other individuals that live and/or work in the City of Oakland and Alameda County.

Individual members of East Bay Residents and the its affiliated labor organizations live, work, recreate and raise their families in Alameda County, including the City of Oakland. They would be directly affected by the Project’s environmental and health and safety impacts. Individual members may also work on the Project itself. Accordingly, they will be first in line to be exposed to any health and safety hazards that exist onsite. East Bay Residents has an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for its members. Environmentally detrimental projects can jeopardize future jobs by making it more difficult and more expensive for business and industry to expand in the region, and by making it less desirable for businesses to locate and people to live there.

II. LEGAL BACKGROUND

CEQA has two basic purposes, neither of which is satisfied by the CEQA Analysis. First, CEQA is designed to inform decision makers and the public about the potential, significant environmental impacts of a project before harm is done to the environment.
15 The EIR is the “heart” of this requirement.16 The EIR has been described as “an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.”17

To fulfill this function, the discussion of impacts in an EIR must be detailed, complete, and “reflect a good faith effort at full disclosure.” 18 An adequate EIR

15 14 Cal. Code Regs. § 15002(a)(1) (“CEQA Guidelines”); Berkeley Keep Jets Over the Bay v. Bd. of Port Comm’rs. (2001) 91 Cal.App.4th 1344, 1354 (“Berkeley Jets”); County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810.
16 No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 84. 17 County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810. 18 CEQA Guidelines § 15151; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 721-722.
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must contain facts and analysis, not just an agency’s conclusions.19 CEQA requires an EIR to disclose all potential direct and indirect, significant environmental impacts of a project.20

Second, CEQA directs public agencies to avoid or reduce environmental damage when possible by requiring imposition of mitigation measures and by requiring the consideration of environmentally superior alternatives. 21 If an EIR
identifies potentially significant impacts, it must then propose and evaluate mitigation measures to minimize these impacts.22 CEQA imposes an affirmative obligation on agencies to avoid or reduce environmental harm by adopting feasible project alternatives or mitigation measures.23 Without an adequate analysis and description of feasible mitigation measures, it would be impossible for agencies relying upon the EIR to meet this obligation.

Under CEQA, an EIR must not only discuss measures to avoid or minimize adverse impacts, but must ensure that mitigation conditions are fully enforceable through permit conditions, agreements or other legally binding instruments.24 A CEQA lead agency is precluded from making the required CEQA findings unless the record shows that all uncertainties regarding the mitigation of impacts have been resolved; an agency may not rely on mitigation measures of uncertain efficacy or feasibility.25 This approach helps “insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug.”26

Following preliminary review of a project to determine whether an activity is subject to CEQA, a lead agency is required to prepare an initial study to determine

19 See Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 568. 20 Pub. Resources Code § 21100(b)(1); CEQA Guidelines § 15126.2(a). 21 CEQA Guidelines § 15002(a)(2) and (3); Berkeley Jets, 91 Cal.App.4th at 1354; Laurel Heights Improvement Ass’n v. Regents of the University of Cal. (1998) 47 Cal.3d 376, 400. 22 Pub. Resources Code §§ 21002.1(a), 21100(b)(3).
23 Id., §§ 21002-21002.1.
24 CEQA Guidelines § 15126.4(a)(2).
25 Kings County Farm Bur. v. County of Hanford (1990) 221 Cal.App.3d 692, 727-28 (a groundwater purchase agreement found to be inadequate mitigation because there was no record evidence that replacement water was available).
26 Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935. c:=
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whether to prepare an EIR or negative declaration, identify whether tiering or another appropriate process can be used for analysis of the project’s environmental effects, or determine whether a previously prepared CEQA document could be used for the project, among other purposes.27 The initial study must accurately describe the project, identify the environmental setting, identify environmental effects and show “some evidence” to support those conclusions, and a discussion of ways to mitigate the significant effects of the project, if any.28 CEQA requires an agency to analyze the potential environmental impacts of its proposed actions in an EIR except in certain limited circumstances.
29 A negative declaration may be prepared
instead of an EIR when, after preparing an initial study, a lead agency determines that a project “would not have a significant effect on the environment.”30 If the project has potentially significant environmental effects but those effects can be reduced to a level of insignificance by mitigation measures that the project's proponent has agreed to undertake, the lead agency may prepare a mitigated negative declaration (“MND”).31

A. Subsequent CEQA Review.

When a previously approved project for which an EIR or an MND has been prepared is modified, CEQA requires the lead agency to conduct subsequent or supplemental environmental review when one or more of the following events occur:

(a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report; (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report; or
(c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.
32 27 CEQA Guidelines §§ 15060, 15063(c).
28 CEQA Guidelines § 15063(d) (emphasis added).
29 See, e.g., Pub. Resources Code § 21100.
30 Quail Botanical Gardens v. City of Encinitas (1994) 29 Cal.App.4th 1597; Pub. Resources Code § 21080(c).
31 PRC § 21080 (c)(2); 14 CCR § 15064(f)(2).
32 Pub. Resources Code § 21166; CEQA Guidelines § 15162. c:=
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In assessing the need for subsequent or supplemental environmental review, the lead agency must determine, on the basis of substantial evidence in light of the whole record, if one or more of the following events have occurred:

(1) Substantial changes are proposed in the project which will require major revisions of the previous EIR due to the
involvement of new significant effects or a substantial increase in the severity of previously identified effects;
(2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following:
(A) The project will have one or more significant effects not discussed in the previous EIR or negative
declaration;
(B) Significant effects previously examined will be
substantially more severe than shown in the previous
EIR;
(C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or
(D) Mitigation measures or alternatives which are
considerably different from those analyzed in the
previous EIR would substantially reduce one or more
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proponents decline to adopt the mitigation measure or
alternative.33

Only where none of the conditions described above calling for preparation of a subsequent or supplemental EIR have occurred may the lead agency consider preparing a subsequent negative declaration, an addendum or no further documentation.
34 In any case, the decision must be supported by substantial evidence.35 Here, the County’s decision not to prepare a subsequent CEQA document for the Project is not supported by substantial evidence.

B. CEQA Infill Streamlining Exemptions

The City seeks to rely on narrow CEQA exemptions that allow approval of projects without an EIR in very narrow circumstances, CEQA Section 21094.5 36 and
CEQA Guidelines Sections 15183 and 15183.3 (Qualified Infill)37 (collectively, the “Infill Exemption”). The Infill Exemption provides that, if an EIR was previously certified for a planning level decision of a city or county, subsequent CEQA review may be limited to evaluating a project’s effects on the environment that are either (A) specific to the project or to the project site and were not addressed as significant effects in the prior environmental impact report or (B) where substantial new information shows the effects will be more significant than described in the prior environmental impact report.
38 The Infill Exemption allows a lead agency to forego preparation of an EIR if neither of these situations occur, or if the lead agency determines that uniformly applicable development policies or standards adopted by the agency will substantially mitigate the new effects. A lead agency’s determination pursuant to this section must be supported by substantial evidence.39

33 CEQA Guidelines §§ 15162(a)(1)-(3).
34 CEQA Guidelines § 15162(b).
35 Id. §§ 15162 (a), 15164(e), and 15168(c)(4).
36 Pub. Res. Code § 21094.5.
37 14 Cal. Code Regs. § 15183.3.
38 Pub. Res. Code § 21094.5(a); 14 Cal. Code Regs. § 15183.3(a), (c). 39 Pub. Res. Code § 21094.5(a).
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C. Categorical Exemptions.

CEQA identifies certain classes of projects which are exempt from the provisions of CEQA called categorical exemptions.40 Categorical exemptions apply to certain classes of activities that generally do not have a significant effect on the environment.41 Public agencies utilizing such exemptions must support their determination with substantial evidence.42 CEQA exemptions are narrowly construed and “[e]xemption categories are not to be expanded beyond the reasonable scope of their statutory language.”43 Erroneous reliance by a lead agency on a categorical exemption constitutes a prejudicial abuse of discretion and a violation of CEQA.44 “[I]f the court perceives there was substantial evidence that the project might have an adverse impact, but the agency failed to secure preparation of an EIR, the agency’s action must be set aside because the agency abused its discretion by failing to follow the law.”45

CEQA contains several exceptions to categorical exemptions. In particular, a categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to “unusual circumstances,”46 or where there is a reasonable possibility that the activity will have a significant effect on the environment, including (1) when “the cumulative impact of successive projects of the same type in the same place, over time is significant.”47 An agency may not rely on a categorical exemption if to do so would require the imposition of mitigation measures to reduce potentially significant effects.
48 40 PRC § 21084(a); 14 CCR §§ 15300, 15354.
41 Id.
42 PRC § 21168.5.
43 Mountain Lion Found. v. Fish & Game Com. (1997) 16 Cal.4th 105, 125; McQueen, 2 Cal.App.3d at 1148.
44 Azusa, 52 Cal.App.4th at 1192.
45 Dunn-Edwards Corp. v. Bay Area Air Quality Mgmt. Dist. (1992) 9 Cal.App.4th 644, 656). 46 14 CCR § 15300.2(c).
47 14 CCR § 15300.2(b).
48 Salmon Pro. & Watershed Network v. County of Marin (“SPAWN”) (2004) 125 Cal.App.4th 1098, 1198-1201.
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III. THE COMMISSION’S RELIANCE ON PREVIOUS

ENVIRONMENTAL ANALYSIS AND EXEMPTIONS VIOLATED
CEQA

A. The Project is Not Consistent with CEQA Addendum and Infill Streamlining Exemption Requirements.

The City’s reliance on CEQA Addendum and Infill Streamlining Exemptions to approve the Project without preparing an EIR is misplaced for several reasons.

First, the CEQA Analysis does not simply consist of “minor changes or additions are necessary” as is allowed under the Addendum provision. Rather, it includes an entirely new substantive analysis for a large development project which was not specifically analyzed in the LUTE EIR, Housing Element EIR, or Redevelopment Plan. The City must discontinue this practice, which clearly violates CEQA.

Moreover, as explained further below, the Project will result in new or more severe significant impacts than analyzed in the previous EIRs that require mitigation that is not included in the CEQA Analysis or the City’s Standard Conditions of Approval (“SCAs”) and MMRP. CEQA requires that the City’s decision to forego preparation of an EIR, and reliance on an Addendum, must be supported by substantial evidence.49 In this case, the City’s decision not to prepare a subsequent or supplemental EIR for the Project is not supported by substantial evidence because of these unanalyzed and/or unmitigated impacts.

The City also relies on narrow CEQA exemptions that are inapplicable or not supported by substantial evidence. Specifically, the City relies on CEQA Guidelines Sections 15183 (Community Plan)
50 and 15183.3 (Qualified Infill)51 for Project
approval. The exemptions apply only when a Project does not have impacts peculiar to the proposed project that are new or more significant than previously analyzed or can be substantially mitigated by uniformly applicable development policies or standards.

The Project fails to meet these requirements for three key reasons. First, the Project’s health risks to local sensitive receptors from exposure during construction

49 Id. §§ 15162 (a), 15164(e), and 15168(c)(4).
50 CEQA Guidelines Section 15183.
51 CEQA Guidelines Section 15183.3.
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to diesel particulate matter (“DPM”) emissions, a TAC, constitute significant impacts, and the Commission failed to require binding mitigation to reduce these impacts to less than significant levels. Second, the Project will have significant construction noise impacts on local sensitive receptors that the CEQA Analysis fails to disclose, and fails to adequately mitigate. Finally, the City also failed to analyze the Project’s impacts on public transit, in violation of CEQA and local land use requirements, and failed to disclose the Project’s new and more severe impacts on local transit systems than the impacts previously envisioned in the LUTE EIR, Housing Element EIR, or Redevelopment Plan.

For these reasons, the Commission lacked substantial evidence to support its findings that the Project would not have any significant, unmitigated impacts on the urban environment and the health and welfare of local residents. The City Council cannot uphold the Commission’s unsupported findings. The City Council should vacate the Commission approvals and require the City to provide detailed analysis of the Project’s impacts in a subsequent or supplemental EIR.

A. The Project Has Significant, Unmitigated Health Risks from Construction Emissions.

The CEQA Analysis includes a health risk assessment (“HRA”) which admits that the Project will have potentially significant individual and cumulative impacts during Project construction from cancer risk to nearby sensitive receptors, as follows:
52 52 CEQA Analysis, HRA, p. C-7.
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Apri l 1, 2019
P age 13

MAXIMUM HEALTH RISK S FROM PROJECT CONSTRUCTIO N
H ealth Risk at M EIR
Un con troll ed Scen ari o
Residential Receptor - Infant
Residential Receptor - Child
Residential Receptor - Adul t
With Ti er 4 Equipment
Residential Receptor - Infant
Residential Receptor - Child
Residential Receptor - Adul t
Project-leve l Thresho ld
Signific ant ?
Maximum Cance r Risk
(in a milli on)
114
23 3

4.5 0.9

0.13 10
No
Chronic Risk (Hazard Maximum PMi.s
Inde x) concentration

0.073 0.337

0.073 0.337

0.073 0.337

0.003 0.014

0.003 0.014

0.003 0.014

1.0 0.3
No N o
Th e C EQA Ana lysis demons tr ates t hat t he Pr oject's unm iti ga t ed TA C em iss ions w ill exceed BAAQMD's C EQA s ignificance t hr eshold of 10 in one milli on for Pr oject imp acts fo r b oth childr en (23 in one milli on) a nd in fa nts ( 114 in one milli on). Th e imp act on infan t s a lso excee ds BAAQMD's cumul ative cance r risk thr eshold of 100 in one milli on .53 Th ese are s ignificant imp act s w hi ch req uir e miti ga ti on un der CEQA.

The C EQA Ana lysis re lies e nt ir ely on t he use of Tier 4 construc ti on equipm ent to reduce the Pr oject significan t const ru ction hea lth ri sks to less th an signifi can t l eve ls. Howeve r, th e C EQA An alysis fa ils to ade quate ly miti gate t hese risks because the C ity's reliance on Ti er 4 const ru ction eq uip men t i s not express ly req uir ed by eith er SC A AIR- 3 or Conditi ons of Approva l No. 13, th e C ons tru ction Mit igat ion Pl an ("CMP ").

SCA AIR -3 conta in s two se para t e tr acks w hi ch allow a pr oject appli cant to select e ith er pre para ti on of an HRA (SCA AIR- 3.a .i) or agree to use Ve rified Di ese l 53 See CEQA Ana lysis , p . 48 (citing BAAQMD significance thresholds for TACs); see a lso BAAQMD California Environ ment al Qualit y Act Air Quality Guidelines (May 2017 ), at p . 2-2, available a t https ://www. google.com/search ?sour ce=hp&ei =ITyiXJutENL 7- gSjn7aQCg&q=baagmd+cega +&btnK=Google +Sea rch&oq=baagmd+cega +&gs l=psy- ab.3 .. 012j0i22i3013. l 123.7295 .. 7757 ... 0.0 .. 0.7 4.747 .12 ...... 0 .... 1. .gws-wiz ..... 0 .. 0il31.9isGEbDCY gA 42 18-002j
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Emission Control Strategies (“VDECS”) for construction equipment, which may include, but does not require, Tier 4 engines (SCA AIR-3.a.ii).54 Pursuant to SCA AIR-3.a.i, if the HRA concludes that the health risk exceeds acceptable levels, DPM reduction measures are then identified to reduce the health risk to “acceptable levels” as set forth under SCA AIR-3.a.ii. As explained by Dr. Clark, however, SCA AIR-3.a.ii’s requirement to use VDECS does not bind the Applicant to the use of Tier 4 equipment. Rather, it simply offers the Applicant the opportunity to use the “most effective VDECS” available.55 As Dr. Clark explains, “the wording of the SCA allows the Applicant, rather than the City, to determine whether ‘available’ equipment could include certified equipment that does not meet the Tier 4 requirement.”56 Condition No. 13 similarly requires preparation of a CMP, but does not expressly require the use of Tier 4 equipment.

Tier 4 equipment is not the only type of VDECS available. 57 There are also two levels of Tier 4 equipment currently available on the construction market – Tier 4 Interim and Tier 4 Final.58 The CEQA Analysis assumes, with no supporting evidence, that the Project will use the most stringent Tier 4 Final equipment, which has limited availability and is harder to procure.59 There is also no evidence in the record demonstrating that the Applicant has procured, or even committed to procure, the Tier 4 Final equipment. SCA AIR-3.a.ii requires that the Applicant’s commitment to use VDECS “shall be verified through an equipment Inventory submittal and Certification Statement that the Contractor agrees to compliance.” 60 However, neither the CEQA Analysis nor the Planning Commission Staff Report contain any such documentation.

54 See CEQA Analysis, Attachment C, SCA AIR-3.
55 See Exhibit C, Clark Comments, p. 1.
56 Id.
57 See Emission Standards, Nonroad Diesel Engines, available at:
https:ljwww.dieselnet.com/standards/us/nonroad.phQ#tier3. 58 Id.
59 See CEQA Analysis, Appendix C, Health Risk Analysis, CalEEMod Modeling, p. 2 (“All construction equipment used assumed to meet Tier 4 Final standards.”). On limited availability of Tier 4 equipment, see "White Paper: An Industry Perspective on the California Air Resources Board Proposed Off-Road Diesel Regulations."Construction Industry Air Quality Coalition, available at:
http://www.agc-ca.org/uploadedFiles/Member Services/Regulatory-Advocacy-Page- PDFs/White Paper CARB OffRoad.pdf .
60 SCA AIR-3.a.ii.
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Dr. Clark explains that the reduction in DPM assumed by use of Tier 4 equipment includes reductions of emissions of up to 93% during the construction phase (0.26 tons to 0.019 tons of DPM emitted).61 This assumption is entirely unsupported. The CEQA Analysis and Conditions of Approval fail to include a condition requiring Tier 4 engines, and the record fails to contain any evidence demonstrating that the Applicant will procure Tier 4 equipment for the Project. As a result, the City cannot rely on SCA AIR-3 to conclude that the Project’s construction health risk would be reduced to below levels of significance, and there is currently no binding mitigation required for the Project that will effectively mitigate its significant cancer risks to less than significant levels. The City’s significance conclusions regarding health risk are therefore unsupported, and the impact remains significant and unmitigated, and the City’s approach to its health risk analysis fails to ensure that the public health will be protected.

B. The Project Is Likely to Have Significant, Unmitigated Noise Impacts on Local Receptors during Project Construction.

Several members of the public commented to the Planning Commission that the Project is likely to have significant impacts on neighboring residents from construction noise during the Project’s 2-3 year construction period, resulting in more severe impacts on neighboring residents than analyzed by the City. Residents also expressed concerns that these impacts will not be mitigated to less than significant levels by the City’s proposed SCAs. In particular, residents of 1770 Broadway, the neighboring property to the Project site, submitted both oral and written comments explaining that “construction [of 1750 Broadway] is scheduled to last 28-36 months…The noise from this co nstruction will render our apartments unlivable during that period.”
62 The CEQA Analysis incorrectly concludes that the Project will have less than significant construction noise impacts based on two unsupported assumptions.

First, the CEQA Analysis assumes that, because the Project would be required to comply with various land use regulations, including the City’s Noise Ordinance, Municipal Code nuisance standards, California Noise Insulation Standards, and Oakland General Plan, that noise impacts would necessarily be less than

61 See Exhibit C, Clark Comments, p. 1.
62 See Exhibit B, March 8, 2019 comments of 1770 Broadway resident J. Hornoff, p. 1. c:=
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significant.63 Second, the CEQA Analysis assumes that implementation of SCA’s NOI-1 though NOI-8 would reduce otherwise-significant construction noise impacts to a less than significant levels.64 The City’s reliance on these assumptions is unsupported and contrary to CEQA. By contrast, there is substantial evidence from local neighbors and noise consultant Mr. Watry demonstrating that the Project is likely to generate a substantial increase in ambient noise levels during Project construction that exceed noise levels existing without the Project, and that this increase remains substantial notwithstanding application of the SCAs to the Project.

1. Compliance With Noise Regulations Is Not Substantial Evidence of Less Than Significant Impacts.

The City relies on the Project’s anticipated compliance with various land use regulations related to noise to conclude that the Project will not cause significant noise impacts in the first place. However, the City’s reliance on compliance with regulations does not obviate the need for further analysis of noise impacts, nor does compliance with regulations provide any substantial evidence that the Project will not have significant noise impacts on surrounding sensitive receptors. The courts have held that compliance with noise regulations alone is insufficient to conclude that a project will not have significant noise impacts.

In Keep our Mountains Quiet v. County of Santa Clara,
65 neighbors of a
wedding venue sued over the County of Santa Clara’s failure to prepare an EIR for a proposed project to allow use permits for wedding and other party events at a residential property abutting an open space preserve. Neighbors and their noise expert contended that previous events at the facility had caused significant noise impacts that reverberated in neighbors’ homes and disrupted the use and enjoyment of their property.66 Similar to the CEQA Analysis in this case, the County had prepared a mitigated negative declaration (“MND”), which employed the noise standards set forth in the County’s noise ordinance and general plan as

63 CEQA Analysis, pp. 39-41. The City relies on these “maximum” noise code violation standards as its significance thresholds to evaluate the severity of the Project’s construction noise impacts 64 CEQA Analysis, p. 47.
65 Keep our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714. 66 Id. at 724.
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the County’s thresholds for significant noise exposure from the project, deeming any increase to be insignificant so long as the absolute noise level did not exceed those standards.67

The Court examined a long line of CEQA cases which have uniformly held that conformity with land use regulations is not conclusive of whether or not a project has significant noise impacts.68 In particular, citing Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs., the Court explained that “the fact that residential uses are considered compatible with a [County noise ordinance maximum] noise level of 65 decibels for purposes of land use planning is not determinative in setting a threshold of significance under CEQA.” 69 The Court
further explained that, as required by CEQA Guidelines Appendix G, § XII, subd. (d), the CEQA lead agency is required to “consider both the increase in noise level and the absolute noise level associated with a project” in evaluating whether a project has significant noise impacts. The Court held that the evidence submitted by local residents and their expert attesting to significant noise impacts felt directly on their residences amounted to substantial evidence demonstrating that the project would have potentially significant noise impacts. The Court also held that the County’s reliance on the project’s compliance with noise regulations did not constitute substantial evidence supporting the County’s finding of no significant impacts.
70 Similarly here, the CEQA Analysis relies on the Project’s purported compliance with local and State noise regulations to conclude that the Project will not result in significant construction noise impacts, and requires the Applicant to prepare a plan to have the Project maintain noise levels that do not exceed these

67 Id. at 732.
68 Id., citing Citizens for Responsible & Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1338; Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872, 881–882; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1416 (project’s effects can be significant even if “they are not greater than those deemed acceptable in a general plan”); Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354, (“CEQA nowhere calls for evaluation of the impacts of a proposed project on an existing general plan”).
69 Id., citing (2001) 91 Cal.App.4th 1344, 1381, 111 Cal.Rptr.2d 598 (“Berkeley Jets”). 70 Id. at 732-734.
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regulatory standards.71 As in Keep Our Mountains Quiet, the City’s reliance on compliance with noise regulations does not provide substantial evidence to support the City’s conclusion that the Project will not have significant noise impacts.

Indeed, even more egregious than the MND in Keep Our Mountains Quiet, the CEQA Analysis does not even contain a project-specific noise study on which the City purports to rely to support its contention that the Project will comply with these noise regulations.72 Thus, the City has no evidence that the Project will not exceed regulatory standards, let alone substantial evidence that compliance with the standards alone would reduce potentially significant noise increases from Project construction to less than significant levels.

By contrast, residents of 1770 Broadway have commented that construction noise from the nearby 1900 Broadway Project, located a block from the Project site, has already had significant impacts on their residences, and that they expect construction of the adjacent 1750 Broadway Project will have even more significant impacts due to the fact that 1750 Broadway is closer to their homes than 1900 Broadway.
73 Mr. Watry explains that the City’s own evidence regarding noise impacts from the Housing Element EIR and the Renewal EIR demonstrated that “Typical Construction Noise Levels” range from 77 to 89 dBAs.74 As Mr. Watry explains, the City’s own noise estimates for construction equipment therefore exceed the City’s “Maximum Allowable Noise Level” standards of 60 to 85 dBAs which the CEQA Analysis claims will not be violated by the Project.75

The CEQA Analysis contains no study or analysis demonstrating that Project construction equipment would be any quieter than the “Typical Construction Noise Levels” cited in the Housing Element EIR and the Renewal EIR on which the CEQA Analysis relies. Mr. Watry also independently opines that the Project will have significant, unmitigated construction noise impacts on sensitive receptors at 1770 Broadway because the maximum allowable construction noise level “will be on the

71 CEQA Analysis, pp. 39-41, 46.
72 Keep our Mountains Quiet, 236 Cal.App.4th at 732-733; Sierra Club v. County of Fresno, (2018) 6 Cal.5th 502, 521 (EIR’s cursory analysis of health risk from ozone exposure was “patently inadequate” because “the reader had no idea” whether the amount of ozone produced by the project would result in health risks).
73 See Exhibit B, pp. 1-2.
74 See Exhibit C, Watry Comments, p. 3.
75 See Exhibit C, Watry Comments, p. 3; CEQA Analysis, pp. 39-41. c:=
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order of 10 to 15 dBA higher at the property line,” which he explains “will likely exceed the standard by 20 to 30 dB.”76 Mr. Watry’s comments, the comments of Project neighbors, and the evidence of “typical” construction noise cited in the City’s own prior CEQA documents, constitute substantial evidence demonstrating that the Project is likely to have significant construction noise impacts that the CEQA Analysis entirely fails to disclose.77

2. The SCAs Fail to Provide Binding, Effective Mitigation for Construction Noise.

The CEQA Analysis attempts to justify the omission of a Project-specific noise study by stating that the Project is subject to the City’s SCAs related to construction noise levels.
78 Similar to its argument regarding compliance with
noise regulations, the CEQA Analysis concludes that, because the Project will be required to comply with various mitigation measures and conditions set forth in SCA NOI-1 through SCA NOI-8, the Project “would not result in significant effects related to noise and vibration.”79 This conclusion is unsupported.

As discussed above, compliance with generally applicable standards, including the SCAs, does not, by itself, provide substantial evidence supporting a conclusion that construction noise impacts will be reduced to less than significant levels. Moreover, as explained by Mr. Watry, SCAs NOI-1 to NOI-8 include vague, uncertain, outdated and, in some instances, wholly inapplicable mitigation measures which may have little or no impact on reducing actual Project construction noise.
80 Additionally, some of the SCA noise mitigations are only vaguely required “where feasible.”81 Neither the City nor the Applicant has provided any evidence to the public demonstrating that the Applicant will “feasibly” be able to obtain the construction equipment specified by SCA NOI-2 prior to commencing construction. Thus, there is no substantial evidence in the record demonstrating that the “where feasible” mitigations will actually be applied to the

76 See Exhibit C, Watry Comments, p. 3.
77 Keep our Mountains Quiet, 236 Cal.App.4th at 733-734. 78 CEQA Analysis, p. 41.
79 CEQA Analysis, p. 41.
80 See Exhibit C, Watry Comments, pp. 3-4.
81 Id; see SCA NOI-2a and b.
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Project. The “where feasible” noise mitigation is therefore uncertain and ineffective, in violation of CEQA.82 The City’s conclusion that SCAs NOI-1 through NOI-8 would effectively mitigate the Project’s potentially significant noise impacts is therefore unsupported because the City lacks evidence to demonstrate that these measures will feasibly or effectively reduce construction noise to less than significant levels.

Finally, NOI-3 requires creation of a Construction Noise Management Plan for noise impacts that exceed 90 dBAs in order to “to further reduce construction impacts associated with extreme noise generating activities.” 83 SCA NOI-3
effectively admits that some construction noise will exceed applicable noise regulation limits (which range from 60-80 dBAs), yet provides no mitigation for significant noise impacts between 60-90 dBA, a range which the City considers to be above even its own regulation-based significance thresholds. Thus, reliance on the noise SCAs alone does not assure that significant noise impacts will be mitigated to less than significant levels. The CEQA Analysis’ conclusion that noise impacts will be less than significant is therefore unsupported.

3. Additional Mitigation is Necessary to Reduce
Construction Noise Impacts to Less Than Significant
Levels.

Mr. Watry explains that additional mitigation beyond the SCAs is necessary in order to reduce the Project’s significant noise impacts on nearby receptors to less than significant levels. Mr. Watry proposes three additional noise attenuation measures which he explains can be feasibly applied to the Project to reduce the potentially massive construction noise impacts on the residents of the adjacent 1770 Broadway building to less significant levels, including (1) closing off lightwell with

82 A public agency may not rely on mitigation measures of uncertain efficacy or feasibility. Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 727 (finding groundwater purchase agreement inadequate mitigation measure because no record evidence existed that replacement water was available). “Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social and technological factors. CEQA Guidelines § 15364. Mitigation measures must be fully enforceable through permit conditions, agreements or other legally binding instruments. Id. at § 15126.4(a)(2).
83 See sCA NOI-3a.
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sound-bl ockin g const ru ction curt ain s; (2) cove rin g windows fac in g constru ction wit h air tight "stor m wind ows"; and (3) ha nging constru ction noise c ur ta in s from scaffo ldin g.84 An illu stra ti on of th ese mi tigat ion meas ures is in clud ed b elow:

GROUND FLOOR PLAN
N'Nln,tNT .C>tlllV
'lETAli.
.0Nll'<G
SlCES
, ... ST ► .. RtSl0£HllAL .. ,. -
l'.HTWN<a ; ......
~..... .......... 1,JI» •:flit
' ..
·-
---•-..-........ .......,_ ..
~ .... -,...... ....... ______ _
Cover wind ows w ith
Alte rn at ively, ha ng
const ru ction n oise
Cover li ght well with
constru ction noi se
= •
•
FIGURE 1 RECOMMENDED NOISE MITIGATION FOR 1770 BROADWAY 85 Th e C ity s hould r equir e tha t a ll of t hese m eas ur es be in cor pora te d as bi nding miti ga ti on for the Project.

C. The CEQA Analy sis La cks Sub stantial Evidence to Support its Conclu sion that the Project Will Not Have Signifi cant Impa cts on Publi c Transit.

Th e C EQA An alysis concl udes th at t he Project w ill b e a dequat ely se rve d by publi c tr ansit , but fa ils to includ e a n analysis of th e Pr oject's imp acts o n pu blic 84 See Exhibit C , Watry Com ments , pp. 5-7.
85 See Exhibit C , Watry Co mm ents , p . 5.
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transit that identifies current levels of impacted use of local public transit.86 The City cannot rely on its prior EIRs to provide this missing analysis because the prior EIRs on which the CEQA Analysis purports to tier failed to address current overburdened Bay Area transit conditions. For example, the 1998 LUTE EIR, on which the CEQA Analysis relies, concluded that infill projects like the Project would less than significant land use and transportation impacts due to proximity to public transit.87

There is abundant evidence demonstrating that public transit in the City of Oakland, including in the transit corridors surrounding the Project site, are already at or above existing capacity.
88 Thus, it is unsupported for the City to conclude that the Project will not cause any new or more severe impacts on transit, or that the Project will be adequately served by existing transit. The City cannot rely on CEQA exemptions or a CEQA Addendum in the absence of this evidence. It is incumbent on the City to analyze, mitigate, or provide feasible alternatives for the Project’s potentially significant impacts on public transit.

IV. THE PLANNING COMMISSION’S RELIANCE ON A

CATEGORICAL EXEMPTION TO APPROVE THE PROJECT

VIOLATED CEQA

The City’s reliance on the Class 32 Infill Exemption is unsupported because there is substantial evidence demonstrating that the Project will have a significant individual and cumulative cancer risk from exposure of sensitive receptors to TAC emissions during Project construction, and potentially significant, unmitigated

86 See Exhibit D, Smith Comments, pp. 1-2.
87 CEQA Analysis, p. 5.
88 See e.g. Train strain: BART working on capacity issues as ridership rises to record levels, available at https://www.bart.gov/news/articles/2013/news20130117; January 2018, THE TRANSBAY

CORRIDOR
CORE CAPACITY PROGRAM, available at
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=2ahU KEwiOktKQ95HhAhVRHTQIHSAKCVcQFjABegQICBAC&url=https%3A%2F%2Fwww.bart.gov%2 Fsites%2Fdefault%2Ffiles%2Fdocs%2FBART%2520Core%2520Capacity 2018%2520TIRCP%2520Ap p.pdf&usg=AOvVaw2 kPRW6dowt2i6FqKohQ01 .
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construction noise impacts.89 This renders the City’s reliance on the Class 32 Infill Exemption improper for three reasons.

First, the City’s reliance on the Class 32 Infill Exemption is unsupported because the Project has significant air quality and noise impacts that render the Exemption facially inapplicable. The Class 32 Exemption may only be used for that “would not result in any significant effects relating to traffic, noise, air quality, or water quality.”
90 As discussed above, the CEQA Analysis admits that the Project will have a significant, unmitigated cancer risk on infants that requires the use of Tier 4 mitigation to reduce to less than significant levels.91 The comments of local residents and noise consultant Mr. Watry demonstrate that the Project is likely to have significant construction noise impacts that have not been adequately mitigated by application of SCA NOI-1 through SCA NOI-8. The Project therefore has significant air quality and noise impacts that render the Class 32 Infill Exemption facially inapplicable to the Project.

Second, the Project’s significant cancer risk is an exception to the Class 32 Exemption. CEQA Guidelines Section 15300.2 prohibits categorical exemptions for projects with significant cumulative impacts or significant impacts due to unusual circumstances.
92 The CEQA Analysis admits that the Project will have a significant, unmitigated cancer risk on infants that requires the use of Tier 4 mitigation to reduce to less than significant levels. The concurrent current construction of two 35+ story buildings within a block of each other may also be considered an unusual circumstance resulting in a significant cumulative cancer risk to local sensitive receptors. These exceptions to the Class 32 Infill Exemption render it inapplicable to the Project.

Finally, the Project’s CEQA Analysis and Conditions of Approval apply over 40 mitigation measures to the Project in order to reduce impacts to less than significant levels.93 The CEQA Analysis explains that these Standard Conditions of

89 CEQA Analysis, p. 55; Appendix A, HRA, p, C-7.
90 14 CCR § 15332(d).
91 CEQA Analysis, p. 55; Appendix A, HRA, p, C-7.
92 14 CCR § 15300.2(b), (c).
93 See CEQA Analysis, Attachment A, Standard Conditions of Approval and Mitigation Monitoring and Reporting Program; Staff Report, Attachment B, Conditions of Approval, e.g. Nos. 13 and 14. c:=
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Approval and Mitigation Monitoring and Reporting Program (“SCA/MMRP”) are applied to the Project pursuant to Section 15097 of the CEQA Guidelines, which requires that the Lead Agency “adopt a program for monitoring or reporting on the revisions which it has required in the project and the measures it has imposed to mitigate or avoid significant environmental effects.”
94 The CEQA Analysis further
explains that “[t]he SCAs are measures that would minimize potential adverse effects that could result from implementation of the Proposed Project.”95 Proposed Condition of Approval No. 14 applies all mitigation measures identified in the SCA/MMRP to the Project. Condition of Approval No. 13 applies SCA AIR-3 to the Project.

Mitigated categorical exemptions are prohibited under CEQA. An agency may not rely on a categorical exemption if to do so would require the imposition of mitigation measures to reduce potentially significant effects to less than significant levels.
96 The SCAs are mitigation measures designed to reduce the Project’s potentially significant environmental impacts and impacts on public health that will otherwise result from the Project without mitigation. Therefore, the City may not rely on a categorical exemption to approve the Project. The City’s improper attempt to include mitigation measures in a categorical exemption is contrary to law, and deprives the public of its statutory rights to participate and comment on the sufficiency of the mitigation measures proposed to be applied to the Project.

V. CONCLUSION

For the reasons stated herein, we urge the City Council to vacate the Planning Commission’s approval of the Project, and remand the Project to Staff to prepare a revised environmental analysis in an EIR, as required by CEQA. The new analysis must identify and implement all feasible mitigation measures available to reduce the Project’s potentially significant site-specific impacts to less than significant levels before the City reconsiders approving the Project.

94 CEQA Analysis, p. A-1.
95 Id. (emphasis added).
96 SPAWN,125 Cal.App.4th at 1102; Azusa Land Recl. Co. v.Main San Gabriel Basin Watermaster (“Azusa”) (1997) 52 Cal. App.4th 1165, 1198-1201.
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Thank you for your attention to these comments. Please include them in the City’s record of proceedings for the Project.

S i n c e r e l y ,

C h r i s t i n a M . C a r o

CMC:ljl

Attachments
H44

CITY OF OAKLAND

APPEAL FORM

FOR DECISION TO PLANNING COMMISSION, CITY

COUNCIL OR HEARING OFFICER

PROJECT INFORMATION
Case No. of Appealed Project: PL N \ ~ 3 '2 9
Project Address of Appealed Project: < ?:.S-0 J3 f"O(J Jw(J;j=;;) Oa (,,--/ (/f) c/ Assigned Case Planner/City Staff: t{\, l(e.-Rive t:a. J PCP3'c.d-f /4 l?Y)ef'\ APPELLANT INFORMATION: 6Gf-11,(Jy R.e~:r/e111J fi,, ~~le. Develcp~ Printrd Name: 4! {1_ ~•no,, I! it ·o Phone Number: (6 5" o) S 4'</ ~ U:, {, O Mailing Address: ~ 0 / ~ ~/ ~ltematc Contact Number.

City/Zip Code g. Sa (\c ]4oJ'oRepresenting: &b + GaY. /f.egd el75 -fJ r Email: CCfi\CQ@tada!nSb~oo&well. eoff\ f<e~S:Lle., D.evelaprnenf An appeal is hereby submitted on:
□ AN ADMINISTRATIVE DECISION (APPEALABLE TO THE CITY PLANNING

COMMISSION OR HEARING OFFICER)
YOU MUST INDICATE ALL THAT APPLY:
□ Approving an application on an Administrative Decision 0 Denying an application for an Administrative Decision □ Administrative Detennination or Interpretation by the Zoning Administrator □ Other {please specify) ______________ _
Please identify the specific Administrative Decision/Determination Upon Which \lour Appeal Is Based Pursuant to the Oakland Municipal and Planning Codes listed below:

CJ Administrative Detennination or Interpretation (OPC Sec. 17.132.020) □ Detennination of General Plan Conformity {OPC Sec. 17.01.080) □ Design Review (OPC Sec. 17 .136.080)
CJ Small Project Design Review (OPC Sec. 17. I 36. 130) CJ Minor Conditional Use Permit (OPC Sec. 17. 134.060)
CJ Minor Variance (OPC Sec. 17.148.060)
□ Tentative Parcel Map (OMC Section 16.304.100)
□ Certain Environmental Determinations (OPC Sec. 17.158.220) □ Creek Protection Pennit (OMC Sec. 13.16.450)
□ Creek Determination (OMC Sec. 13.16.460)
□ City Planner's determination regarding a revocation hearing (OPC Sec. 17.152.080) □ Hearing Officer's revocation/impose or amend conditions (OPC Sec. 17.152.150 &/or 17.156.160)
□ Other (please specify) _____________ _
(Continued on re\!er.re)
L \Zoning Counter Filcs\Application, Basic. Pre, Appcals\Originals\Appcal applit41ion (7-20-IS) DRAFT doc (Revised 7/20/15) H45
(Cominued)

A DECISION OF THE CITY PLANNING COMMISSION (APPEALABLE TO THE CITY COUNCIL) j{ Granting an application to: OR □ Denying an application to:

YOU MUST INDICATE ALL THAT APPLY:

Pu911ent to the Oakland Municipal and Planning Codes listed below:
f¥'" Major Conditional Use Pennit (OPC Sec. 17.134.070) D Major Variance (OPC Sec. 17 .148.070)
~ign Review (OPC Sec. 17 .136.090)
□ Tentative Map (OMC Sec. 16.32.090)
D Planned Unit Development (OPC Sec. 17.140.070)
D Environmental Impact Report Certification (OPC Sec. 17.1 S8.220F) D Rezoning, Landmark Designation, Development Control Map, Law Change {OPC Sec. 17.144.070)
D Revocation/impose
or amend conditions (OPC Sec. 17 .152.160)
o Revocation of Deemed :pproved Sta~OPC Sec. 17.156.170) p·, C el) 11 ~, .s'..s tb"'Other{pleasespecify) ceaA Eil_\tl,'rf-.S //1\M R '-"-.IT JJ y J 4rlA ~X-t<'rlpntn_.5
FOR ANY APPEAL: An appeal in accordance with the sections of the Oakland Municipal and Planning Codes listed above shall state specifically wherein it is claimed there was an error or abuse of discretion by the Zoning Administrator, other administrative decisionmaker or Commission (Advisory Agency) or wherein their/its decision is not supported by substantial evidence in the record, or in the case of Rezoning, Landmark Designation, Development Control Map, or Law Change by the Commission, shall state specifically wherein it is claimed the Commission erred in its decision. The appeal must be
accompanied by the required fee pursuant to the City's
Master Fee Schedule.

You must raise each and every Issue you wish to appeal on this Appeal Form (or attJiched additional sheets). Failure to raise each and every Issue you wish to challenge/appeal on this Appeal Form (or attached additional sheets), and provide supporting documentation along with this Appeal Form, may pn:clude you from raising such Issues during
your appeal and/or In court. However, the appeal will be limited to issues and/or evidence presented to the decision-maker prior to the close of the public hearing/comment period on the matter.

The appeal is based on the following: (Attach additional sheets as needed) Pl ease .5-ee a+lae-h..eJ,
Supporting Evidence or Documents Attached. (/'he appellant mu.st submit all supporting evidence along with this Appeal Form; however, the appeal will be limited evidence presented to the decision-maker prior to the close of the public hearing/comment period on the matter.
(Continued on revene)
Revised 7120115
H46
(Continued)
epresenlalive of Dale
,. on
TO BE COMPLETED BY STAFF BASED ON APPEAL n'PE AND APPLICABLE FEE APPEAL FEE: $ _______ _
Fees an: subject to chungc without prior notice:. The recs charged will be lhosc that arc in clTcct at the lime or application submi11al. All fees arc due at submittal or appJ icalion.

Below For Staff Use Only
DatefTlme Received Stamp Below; Caahler's Receipt Stamp Below:

Revised 7120/15
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Agenda Item No. 2: Bronson
Residential Tower Project
(Mar. 23, 2022)
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L-6058-003j
KEVIN T. CARMICHAEL
CHRISTINA M. CARO
THOMAS A. ENSLOW
KELILAH D. FEDERMAN
ANDREW J. GRAF
TANYA A. GULESSERIAN
KENDRA D. HARTMANN*
DARIEN K. KEY
RACHAEL E. KOSS
AIDAN P. MARSHALL
TARA C. RENGIFO
MICHAEL R. SEVILLE

Of Counsel
MARC D. JOSEPH
DANIEL L. CARDOZO

*Not admitted in California.

Licensed in Colorado.

SO. SAN FRANCISCO OFFICE

601 GATEWAY BLVD., SUITE 1000
SO. SAN FRANCISCO, CA 94080
TEL: (650) 589 - 1660
FAX: (650) 589 - 5062

ADAMS BROADWELL JOSEPH & CARDOZO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW

520 CAPITOL MALL, SUITE 350
SACRAMENTO, CA 95814 - 4721
___________

TEL: (916) 444 - 6201
FAX: (916) 444 - 6209
kcarmichael @adamsbroadwell.com

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March 23, 2022

VIA EMAIL ONLY
Deputy Advisory Agency, and Hearing Officer
c/o Michelle Carter, City Planning Associate
City of Los Angeles
Department of City Planning
200 North Spring Street, Room 763
Los Angeles, CA 90012
Email: [email protected]

Re: Agenda Item No. 2: Bronson Residential Tower Project (VTT- 83510-CN-HCA, CPC-2021-6886-DB-SPR-WDI-HCA, ENV-2021-
6887-CE)

Dear Hearing Officer and Ms. Carter:

On behalf of Coalition for Responsible Equitable Economic Development Los Angeles (“CREED LA”), we hereby submit comments for consideration by the City of Los Angeles (“City”) Department Of City Planning, Subdivisions and Hearing Officer (“Hearing Officer”) on Agenda Item 2 at the March 23, 2022 hearing for the Vesting Tentative Tract Map 1(“VTTM”) for the Bronson Residential Tower Project (“Project”) (VTT-83510-CN-HCA, CPC-2021-6886-DB-SPR-WDI-HCA, ENV-2021- 6887-CE) proposed by 1717 Bronson LLC (“Applicant”).2 These comments also address the City’s Categorical Exemption Document3 (“Categorical Exemption” or “CE”), which incorrectly proposes to exempt the Project from environmental review

1 City of Los Angeles, Department of City Planning, Staff Report, VTT-83510-CN (March 23, 2022) available at https://planning.lacity.org/plndoc/Staff Reports/2022/03-23- 2022/Final VTT 83510 CN HCA Staff Report.pdf
2 City of Los Angeles Department of City Planning,
https://planning.lacity.org/pdiscaseinfo/caseid/MjQ5OTYx0. 3 City of Los Angeles Department of City Planning, Categorical Exemption, Bronson Residential Tower Project, Case Number: ENV-2021-6887-EAF (February 2022). t,
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pursuant to the California Environmental Quality Act (“CEQA”).4 The Project’s VTTM and Categorical Exemption will be considered by the Hearing Officer on behalf of the City Planning Commission (“CPC”) at the March 23, 2022 joint meeting of the Deputy Advisory Agency and Hearing Officer.5 The Project proposes to construct a 24-story, 229,015-square-foot residential building, with 128 dwelling units, three levels of above-ground parking, and one subterranean parking level. Of the 128 dwelling units, 11 units would be set aside for Very Low Income Households. The Project would also include 17,778 square feet of open space and 134 vehicle parking spaces.6 The 0.86-acre Project Site is located at 1725, 1729, and 1739 North Bronson Avenue at the southwest corner of Carlos Avenue and Bronson Avenue in the Hollywood Community Plan area of the City.

The Assessor Parcel Numbers (“APNs”) for the Project Site are 5545-003-014, 5545- 003-023, and 5545-003-029.

The Project Site is bordered on the north by Carlos Avenue, on the south by a restaurant, on the west by a Los Angeles County Superior Court building and associated parking, and to the east by Bronson Avenue. Land uses in the greater Project Site area include US 101 Freeway and commercial and residential uses to the north; Hollywood Boulevard and commercial uses to the south; commercial uses to the west; and the US 101 Freeway and commercial and residential uses to the east. The northern portion of the Project Site is currently vacant but was previously developed with four residential units. The northern portion is used as surface parking. The southern portion of the Project Site is developed with a two-story residential building and a barn known as the Lombardi Structures. There are 22 trees on the Project Site and 8 street trees located in the public right of-way (“ROW”) along Bronson Street.7
Regional access to the Project Site is provided by the US 101 Freeway located just to the east of the Project Site. The Project Site is zoned R4-2 (Multiple Dwelling Zone, Height District 2) and C4-1-SN (Commercial Zone, Height District 1, Sign 4 Pub. Resources Code (“PRC”) §§ 21000 et seq.; 14 Cal. Code Regs. (“CCR” or “CEQA Guidelines”) §§ 15000 et seq.
5 City of Los Angeles, Notice of Public Hearing, 1715-1739 North Bronson Avenue (March 23, 2022) https://planning.lacity.org/dcpapi/meetings/document/71659 6 CE, p. 1.
7 CE, p. 2.

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District), with General Plan land use designations of High Density Residential and Highway Oriented Commercial. The Project Site is also located within the boundaries of the following:

• ZI-2452 Transit Priority Area in the City of Los Angeles • ZI-2374 State Enterprise Zone: Los Angeles
• ZI-2488 Redevelopment Project Area: Hollywood
• ZI-2330 Sign District: Hollywood Signage (CRA Area)
• ZI-2331 Sign District: Hollywood Signage (Media District) • ZI-2433 Revised Hollywood Community Plan Injunction
• ZI-2427 Freeway Adjacent Advisory Notice for Sensitive Uses • ZI-2492 Hollywood Redevelopment Project Area Individual Historic Resources
• ZI-2424 Mitigation Measures for Certain Residential Densities Near Freeway8

The Project site is within a “disadvantaged community,” meaning the community is “disproportionately affected by environmental pollution and other hazards that can lead to negative public health effects, exposure or environmental degradation” and the community contains “concentrations of people that are of low income, high unemployment, low levels of home ownership, high rent burden, or low levels of educational attainment.”9 Construction and operation of the Project would further exacerbate the already disproportionate environmental impacts to the neighboring community.

The Project requires the following approvals from the City:

1) A 35 percent ministerial density bonus pursuant to LAMC Section 12.22 A.25(c)(1) to permit a maximum residential density of 133 dwelling units (4 existing dwelling units and 128 new dwelling units) with 11 dwelling units (11 percent of the base density) reserved for Very Low Income Households; 2) A Site Plan Review pursuant to LAMC Section 16.05 a development project resulting in an increase of 50 or more dwelling units;
3) An On-menu incentive pursuant to LAMC Section 12.22 A.25(g)(8) to allow an averaging of floor area, density, open space, and parking over the Project Site;

8 CE, p. 3.
9 Health and Safety Code § 39711(a).

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4) An Off-menu incentive pursuant to LAMC Section 12.22 A.25(g)(3) to allow a maximum floor area of 234,745 square feet or a corresponding floor area ratio of 6.74:1 averaged across the site in lieu of the otherwise permitted 1.5:1 in the C4-1-SN zoned portion of the Project Site and 6:1 in the R4-2 zoned portion of the site;
5) A Waiver of development standard pursuant to California Government Code Section 65915(e)(1) to reduce the side yard along Bronson Avenue and eliminate the side yard along the west side of the property in lieu of the otherwise required 16-foot side yards at both locations; 6) A Waiver of development standard pursuant to California Government Code Section 65915(e)(1) to allow reduced building separation of 13 feet in lieu of the otherwise required 54 feet per LAMC Section 12.21 C.2; 7) A maximum required parking ratio of 0.5 spaces per unit pursuant to California Government Code Section 65915(p)(2)(A);
8) A Vesting Tentative Tract Map for merger and condominium purposes pursuant to LAMC Section 17.06 A; and
9) A Waiver of dedications and improvements (WDIs) pursuant to LAMC Section 12.37 I to waive a nine-foot dedication and improvement requirement along the property’s entire eastern lot line (along Bronson Avenue) and a four-foot dedication and improvement requirement along Carlos Avenue.10

Our review of the proposed VTTM Findings, Categorical Exemption and accompanying technical reports demonstrates that the Project will result in potentially significant environmental impacts that the City failed to disclose or mitigate, and as such, does not qualify for a Class 32 exemption or any other CEQA exemption. As described below an in the attached expert reports, the proposed Project will result in significant impacts relating to air quality, noise, and transportation and may not be adequately served by all required utilities and public services. The Project thus fails to meet the facial requirements to qualify for a Class 32 Categorical Exemption.

Furthermore, categorical exemptions necessarily include an implied finding that the project has no significant effect on the environment. Public agencies utilizing such exemptions must support their determination with substantial evidence.11 The Categorical Exemption lacks substantial evidence to support a conclusion that the Project meets the Class 32 exemption requirements and is not

10 CE, p. 1.
11 PRC § 21168.5.

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subject to any exceptions to categorical exemptions. Rather, the record shows that the Project is likely to result in potentially significant impacts that were not disclosed or analyzed by the City before it concluded that the Project is exempt from CEQA review. An environmental impact report (“EIR”) is required to analyze and mitigate these impacts.

Finally, even if the Project qualified for a categorical exemption, there is substantial evidence demonstrating that the Project has potentially significant environmental impacts related to air quality, construction noise and transportation.

These impacts render any categorical exemption inapplicable.12

We prepared these comments with the assistance of air quality and hazards expert James Clark, Ph.D, noise expert Derek Watry, and transportation impacts expert Daniel Smith. Dr. Clark’s, Mr. Watry’s and Mr. Smith’s technical comments and curriculum vitae are attached hereto as Exhibits A, B and C respectively.13 14 15 Dr. Clark concludes that the Project’s proximity to a major freeway put the future residents at risk of potentially significant health risk impacts. Additionally, Dr.

Clark concludes that the City failed to consider the cumulative air quality impacts of the Project. Mr. Watry found that the Project’s construction noise impacts are far more severe than estimated by the City. Finally, Mr. Smith found that the Project will result in significant transportation impacts that were not considered by the City. The City failed to accurately disclose the severity of these impacts and fails to mitigate them by relying on an inapplicable CEQA exemption to approve the Project.

For the reasons discussed herein, we urge the Hearing Officer to find that the Project does not qualify for the Class 32 exemption proposed by the City, and remand the Project to Staff to prepare a legally adequate EIR to fully disclose and mitigate the Project’s potentially significant environmental impacts.

12 14 CCR § 15300.2 (b), (c).
13 Exhibit A, James Clark, Comments On Categorical Exemption For Bronson Residential Tower Project Case No. ENV-2021-6887-EAF (March 22, 2022) (“Clark Comments”). 14 Exhibit B, Derek Watry, Bronson Residential Tower Project Los Angeles, California, Review and Comment on Categorical Exemption Noise Analysis (March 21, 2022) (“Watry Comments”) 15 Exhibit C, Daniel Smith, Bronson Residential Tower Project (Case #: 2021-6887-EAF) (March 22, 2022) (“Smith Comments”).

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I. STATEMENT OF INTEREST

CREED LA is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards, and the environmental and public service impacts of the Project. The coalition includes the Sheet Metal Workers Local 105, International Brotherhood of Electrical Workers Local 11, Southern California Pipe Trades District Council 16, and District Council of Iron Workers of the State of California, along with their members, their families, and other individuals who live and work in the City of Los Angeles.

Individual members of CREED LA and its member organizations, including John Ferruccio, Jorge L. Aceves, John P. Bustos, Gerry Kennon and Chris S. Macias live, work, recreate and raise their families in the City of Los Angeles and surrounding communities. Accordingly, they would be directly affected by the Project’s environmental and health and safety impacts.

Individual members may also work on the Project itself. They will be first in line to be exposed to any health and safety hazards that exist onsite.

In addition, CREED LA has an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for its members. Environmentally detrimental projects can jeopardize future jobs by making it more difficult and more expensive for business and industry to expand in the region, and by making the area less desirable for new businesses and new residents. Indeed, continued environmental degradation can, and has, caused construction moratoriums and other restrictions on growth that, in turn, reduce future employment opportunities.

II. THE PROPOSED EXEMPTION DETERMINATION FAILS TO
COMPLY WITH CEQA’S PURPOSE AND GOALS

CEQA requires that an agency analyze the potential environmental impacts of its proposed actions in an EIR except in certain limited circumstances.16 The EIR is the very heart of CEQA.17 “The foremost principle in interpreting CEQA is that

16 See, e.g., PRC § 21100.
17 Dunn-Edwards v. BAAQMD (1992) 9 Cal.App.4th 644, 652.

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the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”18

CEQA has two primary purposes. First, CEQA is designed to inform decision makers and the public about the potential, significant environmental effects of a project.19 “Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR ‘protects not only the environment but also informed self-government.’”20 The EIR has been described as “an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.”21

Second, CEQA requires public agencies to avoid or reduce environmental damage when “feasible” by requiring “environmentally superior” alternatives and all feasible mitigation measures.22 The EIR serves to provide agencies and the public with information about the environmental impacts of a proposed project and to “identify ways that environmental damage can be avoided or significantly reduced.”23 If the project will have a significant effect on the environment, the agency may approve the project only if it finds that it has “eliminated or substantially lessened all significant effects on the environment where feasible” and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns.”24

Under CEQA, mitigation measures must be fully enforceable through permit conditions, agreements or other legally binding instruments.25 A CEQA lead agency is precluded from making the required CEQA findings to approve a project unless the record shows that all uncertainties regarding the mitigation of impacts have been resolved. For this reason, an agency may not rely on mitigation measures of

18 Communities. for a Better Env. v. Cal. Res. Agency (2002) 103 Cal. App.4th 98, 109 (“CBE v. CRA”). 19 14 Cal. Code Regs. § 15002(a)(1).
20 Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 564. 21 Berkeley Keep Jets Over the Bay v. Bd. of Port Comm’rs. (2001) 91 Cal. App. 4th 1344, 1354 (“Berkeley Jets”); County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810. 22 14 CCR § 15002(a)(2) and (3); see also Berkeley Jets, 91 Cal.App.4th at 1354; Citizens of Goleta Valley, 52 Cal.3d at p. 564.
23 14 Cal. Code Regs. §15002(a)(2).
24 PRC § 21081; 14 CCR § 15092(b)(2)(A) & (B).
25 CEQA Guidelines, § 15126.4, subd. (a)(2).

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uncertain efficacy or feasibility.26 This approach helps “ensure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug.”27

CEQA identifies certain classes of projects which are exempt from the provisions of CEQA, called categorical exemptions.28 Categorical exemptions apply to certain narrow classes of activities that generally do not have a significant effect on the environment.29 Public agencies utilizing such exemptions must support their determination with substantial evidence.30 CEQA exemptions are narrowly construed and “[e]xemption categories are not to be expanded beyond the reasonable scope of their statutory language.”31 Erroneous reliance by a lead agency on a categorical exemption constitutes a prejudicial abuse of discretion and a violation of CEQA.32 “[I]f the court perceives there was substantial evidence that the project might have an adverse impact, but the agency failed to secure preparation of an EIR, the agency’s action must be set aside because the agency abused its discretion by failing to follow the law.”33

CEQA also contains several exceptions to categorical exemptions. In particular, a categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment, including (1) when “the cumulative impact of successive projects of the same type in the same place, over time is significant.”34 An agency may not rely on a categorical exemption if to do so would require the imposition of mitigation measures to reduce potentially significant effects.35

26 Kings County Farm Bureau v. County of Hanford (1990) 221 Cal.App.3d 692, 727-28 (a groundwater purchase agreement found to be inadequate mitigation because there was no record evidence that replacement water was available).
27 Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935. 28 PRC § 21084(a); 14 CCR §§ 15300, 15354.
29 PRC § 21084(a); 14 CCR §§ 15300, 15354.
30 PRC § 21168.5.
31 Mountain Lion Found. v. Fish & Game Com. (1997) 16 Cal.4th 105, 125; McQueen, 2 Cal.App.3d at 1148.
32 Azusa, 52 Cal.App.4th at 1192.
33 Dunn-Edwards Corp. v. Bay Area Air Quality Mgmt. Dist. (1992) 9 Cal.App.4th 644, 656). 34 14 CCR § 15300.2(b).
35 Salmon Pro. & Watershed Network v. County of Marin (“SPAWN”) (2004) 125 Cal.App.4th 1098, 1198-1201.

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The Project’s Categorical Exemption and its appendices fail to comply with CEQA’s basic informational requirements, fail to disclose that the Project may result in significant effects relating to air quality, health risk, transportation, and construction noise. The City failed to require any mitigation measures to mitigate these potentially significant impacts. Ultimately, the City lacks substantial evidence to support its findings that a categorical exemption from CEQA review applies, and must instead prepare an EIR to fully disclose and mitigate the Project’s potentially significant environmental impacts.

“[A]n agency may not apply a categorical exemption without considering evidence in its files of potentially significant effects, regardless of whether that evidence comes from its own investigation, the proponent's submissions, a project opponent, or some other source… if those files contain ‘substantial evidence’ of a mere ‘fair argument’ that the project will have significant environmental effects, the agency may not apply a categorical exemption.”36 Here, the City has applied a Class 32 Categorical exemption without fully analyzing the potentially significant effects of the Project. The record shows, and these comments detail, that there is substantial evidence supporting a fair argument that the Project will have significant environmental effects. An EIR must be prepared to adequately analyze and mitigate all potentially significant impacts and all significant environmental effects associated with the Project’s cumulative impacts.

III. THE PROJECT DOES NOT QUALIFY FOR A CLASS 32

CATEGORICAL EXEMPTION FOR INFILL DEVELOPMENT

PROJECTS

CEQA is “an integral part of any public agency’s decision making process.”37 It was enacted to require public agencies and decisionmakers to document and consider the environmental implications of their actions before formal decisions are made.38 CEQA requires an agency to conduct adequate environmental review prior to taking any discretionary action that may significantly affect the environment, unless an exemption applies.39 Categorical exemptions apply to classes of projects that are determined to be exempt because they do not have a significant effect on the environment.40 “Thus an agency’s finding that a particular proposed project

36 Id.
37 PRC § 21006.
38 Id., §§ 21000, 21001.
39 PRC § 21100(a); see also CEQA Guidelines § 15004(a). 40 Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380.

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comes within one of the exempt classes necessarily includes an implied finding that the project has no significant effect on the environment.”41 “It follows that where there is any reasonable possibility that a project or activity may have a significant effect on the environment, an exemption would be improper.”42

CEQA exemptions must be narrowly construed and are not to be expanded beyond the scope of their plain language.43 They should not be construed so broadly as to include classes of projects that do not normally satisfy the requirements for a categorical exemption.44

To qualify for a categorical exemption, a lead agency must provide “substantial evidence to support [its] finding that the Project will not have a significant effect.”45 “Substantial evidence” means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency.46 If a court locates substantial evidence in the record to support the agency’s conclusion, the agency’s decision will be upheld.47 If, however, the record lacks substantial evidence, as here, a reviewing court will not uphold an exemption determination.

Section 15332 of the CEQA Guidelines provides an exemption from CEQA for projects characterized as in-fill development meeting the conditions:

(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.

41 Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 115. 42 Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1191 (“Azusa Land Reclamation”), quoting Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 205– 206.
43 Castaic Lake Water Agency v. City of Santa Clarita (1995) 41 Cal.App.4th 1257. 44 Azusa Land Reclamation (1997) 52 Cal.App.4th 1165, 1192. 45 Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 269.
46 14 CCR § 15384.
47 Bankers Hill Hillcrest, 139 Cal.App.4th at 269.

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(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. (c) The project site has no value as habitat for endangered, rare or threatened species.
(d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.
(e) The site can be adequately served by all required utilities and public services.

The Class 32 Exemption is facially inapplicable to the Project due to, at a minimum, significant impacts to traffic, air quality, and noise.

A. An Exemption is Inapplicable Because the Project is Not Consistent with the General Plan Designation and all Applicable General Plan Policies

The Project is inconsistent with local plans and policies, which renders the Class 32 exemption inapplicable and constitutes a significant impact under CEQA.48 The Applicant in this case has asked for waivers from the City’s Mobility Plan requirements with respect to the street right-of-way requirements of the Mobility Plan. Right-of-way requirements, including neighborhood connectivity, pedestrian and bicycle access, and access to key corridors within “mobility-enhanced networks” are fundamental elements of the Mobility Plan.49 By waiving right-of-way requirements of the Mobility Plan without mitigation, the Project would be patently inconsistent with the basic priorities of the Plan. Neither the Staff Report nor the Categorical Exemption provide any compelling need to waive the Plan’s mobility requirements. As a result, the City lacks substantial evidence to support a finding that the Project is in compliance with the Mobility Plan. Rather, the Project is necessarily inconsistent with the Mobility Plan, which is an element of the City’s General Plan.50

The City cannot approve this Project under a Class 32 exemption and must prepare an EIR to evaluate and mitigate the Project’s impacts relative to the proposed non-compliance with the Mobility Plan.

48 Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 783-4, 32 Cal.Rptr.3d 177; see also, County of El Dorado v. Dept. of Transp. (2005) 133 Cal.App.4th 1376. 49 CE, pp. 13-14.
50 City of Los Angeles, Mobility, https://planning.lacity.org/plans-policies/initiatives-policies/mobility (Accessed March 22, 2022).

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B. An Exemption is Inapplicable Because the Project May Result in Significant Effects Related to Air Quality and Health Risk Impacts

The Categorical Exemption fails to analyze and mitigate significant health risk impacts to construction workers, nearby sensitive receptors or future residents of the Project based on the Project’s proximity to U.S. Route 101.

i. The City Failed to Assess the Project’s Health Risk Impacts

The City lacks substantial evidence to support its reliance on an exemption because the City failed to analyze the health risk impacts of Project construction to on-site workers or nearby sensitive receptors. The Findings provide that the nearest sensitive receptors are the multi-family residential uses located approximately 80 feet to the west of the Project Site.51 CEQA requires lead agencies to disclose the health risks posed by hazardous air pollutants released during construction on sensitive receptors. Construction workers and nearby residents are sensitive receptors at the greatest risk of exposure due to their close proximity to the Project’s TAC emissions during Project construction.

CEQA requires that a project’s health risks “must be ‘clearly identified’ and the discussion must include ‘relevant specifics’ about the environmental changes attributable to the Project and their associated health outcomes.”52 Courts have held that an environmental review document must disclose a project’s potential health risks to a degree of specificity that would allow the public to make the correlation between the project’s impacts and adverse effects to human health.53 Instructively, the Office of Environmental Health Hazard Assessment’s ("OEHHA”) risk assessment guidelines recommend a formal health risk analysis (“HRA”) for short-term construction exposures lasting longer than 2 months and exposures from projects lasting more than 6 months should be evaluated for the duration of the project.54

51 Findings, p. 55.
52 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 518–522; Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184. 53 Id.
54 Office of Environmental Health Hazard Assessment (OEHHA), Risk Assessment Guidelines:

Guidance Manual for Preparation of Health Risk Assessments, February 2015 (OEHHA 2015), Section 8.2.10: Cancer Risk Evaluation of Short Term Projects, pp. 8-17/18; H60

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The construction of this Project will last for 24 months.55 The nearest sensitive receptors are the multi-family residential uses located approximately 80 feet (~25 meters) to the west of the Project Site, in addition to Project construction workers.56 CEQA requires that the health risk from each of these construction phases on these receptors be quantified and disclosed. And under the OEHHA risk assessment guidelines, which are used throughout California for assessing health risks under CEQA, the Project should be subject to a quantified HRA.

Project construction would produce diesel exhaust which has been linked to a range of serious health problems including an increase in respiratory disease, lung damage, cancer, and premature death. Fine DPM is deposited deep in the lungs in the smallest airways and can result in increased respiratory symptoms and disease; decreased lung function, particularly in children and individuals with asthma; alterations in lung tissue and respiratory tract defense mechanisms; and premature death. Exposure to DPM increases the risk of lung cancer. It also causes non- cancer effects including chronic bronchitis, inflammation of lung tissue, thickening of the alveolar walls, immunological allergic reactions, and airway constriction.

DPM is a TAC that is recognized by state and federal agencies as causing severe health risk.

Dr. Clark states that criteria pollutants such as ozone and particulate matter associated with project construction can lead to a host of respiratory impacts and diminishment of quality of life.57 Dr. Clark further states that construction may cause nearby sensitive receptors to be subjected to exposure of TACs emitted from Project construction, including DPM.58 Dr. Clark concludes that this may constitute a significant health risk impact to the surrounding community.

https://oehha.ca.gov/air/crnr/notice-adoption-air-toxics-hot-spots-program-guidance-manual- preparation-health-risk-0.
55 CE, p. 40.
56 Clark Comments, p. 7.
57 Clark Comments, p. 7.
58 Clark Comments, p. 8.

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A quantified HRA is commonly conducted to determine if a Project’s construction hazardous air pollutant (“HAP”) emissions would cause a significant health impact.59 The HRA is based on pollutants other than conventional air quality pollutants; that is, other than ROG, NOx, PM10, PM2.5, CO, and SO2.

Construction equipment emits DPM, which is a HAP and a potent carcinogen.60 Construction workers and nearby residents and sensitive receptors will be exposed to DPM emissions during construction. An EIR must be prepared which adequately links the Project’s air quality effects to human health consequences.61

ii. The City Failed to Conduct an HRA to Quantify Potential Health Risk Impacts to Future Residents from the Nearby Freeway

In addition to failing to measure the impacts to nearby residents and construction workers, the City failed to quantify the health risks to the future residents of the Project. Pursuant to City Zoning Information File No. 2424, the City requires health risk assessments to be conducted for all residential projects located within 500 feet of the 101 Freeway that take advantage of any of the increased residential densities provided by the Hollywood Community Plan (i.e. a project that builds more units on a parcel than currently permitted under the existing plan).62 ZI-2424 specifies that mitigation measures shall be required at the project level as necessary to reduce health risk (for indoor and outdoor uses) to an

59 Office of Environmental Health Hazard Assessment (OEHHA), Risk Assessment Guidelines:

Guidance Manual for Preparation of Health Risk Assessment, February 2015; may be requested at https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf. 60 Cal/EPA OEHHA and American Lung Association of California, Health Effects of Diesel Exhaust; https://oehha.ca.gov/media/downloads/calenviroscreen/indicators/diesel4-02.pdf. See also OEHHA, Appendix A: Hot Spots Unit Risk and Cancer Potency Values, p. 1 (DPM unit risk = 3 E -4); https://oehha.ca.gov/media/CPFs042909.pdf and OEHHA, Diesel Exhaust Particulate; https://oehha.ca.gov/chemicals/diesel-exhaust-particulate#:~:text=Cancer %20Potency%20Information&text=Listed%20as%20Particulate%20Emissions%20from,(ug%2Fm3)% 2D1.
61 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 519; Bakersfield Citizens for Local Control v.

City of Bakersfield (2004) 134 Cal.App.4th 1184, 1220 (“After reading the EIRs, the public would have no idea of the health consequences that result when more pollutants are added to a nonattainment basin. On remand, the health impacts resulting from the adverse air quality impacts must be identified and analyzed in the new EIRs.”).
62 City Of Los Angeles, Department of City Planning, Zoning Information File, ZI No. 2424 (“ZI - 2424”), Mitigation Measures For Certain Freeway Adjacent Residential Densities In Hollywood (August 6, 2012) available at http://zimas.lacity.org/documents/zoneinfo/zi2424.pdf H62

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acceptable level below SCAQMD’s adopted thresholds.63 The City recognizes that ZI-2424 applies to this Project64 yet failed to perform an HRA to measure the effects of the freeway on the Project’s future residents. This is a violation of City’s land use mandates as well as CEQA, and demonstrates that the City lacks substantial evidence to support an exemption determination.

The City routinely performs HRAs for Projects that are in close proximity to freeways. For example, there are two projects within 0.25 miles of the Project Site, 6220 Yucca Street Project65 and 5750 Hollywood Boulevard Project66, for which the City performed health risk analyses of freeway emissions on the projects.

The two nearby projects estimated emissions starting in 2018 for the Hollywood Boulevard Project and 2024 for Yucca Project.67 Each of the projects is located approximately 80 meters away from the freeway.68 The Bronson Towers Project site is located within 25 meters of the Hollywood Freeway, much closer to the Freeway than the other projects and therefore far more likely to result in significant health impacts.69 As Dr. Clark explains in his comments, based on the distance of the Project Site, the calculated DPM and associated HAPs will be 1.5 times higher than the concentrations modeled at Hollywood Boulevard and Yucca Street Project sites. Despite the clear requirement to perform an HRA the City failed to analyze the health risk to future residents posed by the nearby freeway.

This error must be corrected and addressed in an EIR for the Project.

iii. The Project Will Result in Significant Air Quality and Public Health Impacts to Future Residents

Dr. Clark found that the Project will result in a significant impact due to its proximity to the freeway. Using inputs from the HRAs for the Yucca and Hollywood

63 ZI-2424, p. 1.
64 CE, p. 3.
65 City of Los Angeles, 6220 West Yucca Street Mixed Use Project Health Risk Asses sment for Freeway Adjacent Projects (“Yucca HRA”) (April 2020) available at https://planning.lacity.org/eir/6220Yucca/deir/Appendices/Apx%20C-2%20-%20Freeway%20HRA.pdf 66 City of Los Angeles, 5750 Hollywood Boulevard Project, Health Risk Assessment Technical Report (“Hollywood HRA”) (October 201) available at
https://planning.lacity.org/eir/5750HollywoodBlvd/Technical Appendices/Appendix E- HRA_Technical_Report.pdf
67 Clark Comments, p. 7.
68 Clark Comments, p. 7.
69 Clerk Comments, p. 7.

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Boulevard projects, Dr. Clark was able to estimate the Project’s health risk impacts to future residents and found a significant undisclosed and unmitigated impact.

The primary source of particulate matter from freeways is diesel particulate exhaust. Diesel exhaust contains nearly 40 toxic substances, including TACs and may pose a serious public health risk for residents in the vicinity of the Project.

TACs are airborne substances that are capable of causing short-term (acute) and/or long-term (chronic or carcinogenic, i.e., cancer causing) adverse human health effects (i.e., injury or illness). TACs include both organic and inorganic chemical substances. The current California list of TACs includes approximately 200 compounds, including particulate emissions from diesel-fueled engines.

Using the outputs from the Yucca Project analyses, the concentrations of TACs at 25 meters from the freeway, which is the distance of the Project Site to the freeway, were calculated for each year of exposure using the weight fractions outlined in the air quality and risk analysis.70 Based on his analysis, Dr. Clark determined that the risk from exposure to the chemicals of concern is 11.95 in 1,000,000 which exceeds the CEQA threshold of significance of 10 in 1,000,000.71

Based on Dr. Clarks analysis, the Project will result in a significant health risk to the future residents. The Class 32 Exemption is facially inapplicable to the Project due to significant impacts to air quality as demonstrated by Dr. Clark. The City must prepare an EIR which adequately analyzes and mitigates the Project’s health risk impacts.

C. An Exemption is Inapplicable Because the Project May Result in Significant Traffic and Transportation Impacts

The City failed to adequately analyze impacts to traffic and transportation created by the Project. There is substantial evidence supporting a fair argument that the Project may result in a significant impact to traffic and transportation. The Project would add 491 new average daily trips.72 As described above, the trips generated by the Project will result in the deterioration of the LOS at nearby intersections.

70 Clark Comments, p. 8.
71 Clark Comments, p. 8
72 Los Angeles Department of City Planning, DCP Application form, (Filed June 8, 2021) p. 2 of 8 .

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In addition to the LOS deterioration at the intersections of Hollywood Boulevard and Bronson Avenue, and the intersection of Bronson Avenue with Franklin Avenue, Mr. Smith states that the queuing analysis performed for the project shows that traffic from concurrent relevant projects and the Project itself will result in queue lengths of 28.7 vehicles or 717 feet in the left turn lane from Hollywood Boulevard westbound to Bronson Avenue Southbound.73 Mr. Smith explains that a queue of this length completely overflows the left turn storage lane, blocking a westbound through lane on Hollywood Boulevard, extends through the intersection with the southbound 101 ramps, through the intersection with the northbound 101 ramps, through the intersection with N. Van Ness Avenue and well east on the block toward Taft Avenue.74 The Project’s contribution to the significant transportation impacts is potentially significant, but largely ignored by the Categorical Exemption. Queue lengths of this magnitude could result in follow on effects such as backing up traffic onto U.S. Route 101 or impeding the movement of emergency vehicles.75

Mr. Smith proposes potential mitigation that the City should consider to reduce this impact, such as prohibiting left turns from Hollywood Boulevard to northbound and southbound N. Bronson Avenue, making the N. Bronson connections to Hollywood Boulevard right turn in and right turn out movements only and similar alterations at the intersection of N. Bronson with Franklin.76 Mr.

Smith concludes that these feasible mitigation measures would help to alleviate the expected significant impacts from the Project.

The Class 32 Exemption is facially inapplicable to the Project due to significant impacts to traffic as demonstrated by Mr. Smith. The City must prepare an EIR which adequately analyzes and mitigates the Project’s impacts associated with traffic and transportation.

D. An Exemption is Inapplicable Because the Project May Result in Significant Construction Noise Impacts

There is substantial evidence supporting a fair argument that construction of the Project may result in a significant impact to noise. The Project’s construction

73 Smith Comments, p. 3.
74 Smith Comments, p. 3.
75 Smith Comments, p. 3.
76 Smith Comments, p. 5.

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noise impact analysis is based on unsubstantiated construction noise reference levels, by using the information available in the record, Mr. Watry found that the reference levels assumed in the Categorical Exemption are 7 to 11 dB too low. By correcting the reference levels and cleaning up the analysis, Mr. Watry found that Project construction will result in noise increases that exceed the 5dB threshold of significance.

First, Mr. Watry observed that the noise analysis accompanying the Categorical Exemption makes the unsubstantiated assumption that the sound pressure level of equipment on site would be 75 dBA.77 The noise study does not substantiate this assumption, which as Mr. Watry explains is fatal to the study’s results since this reference is used to calculate all of the Project’s construction noise impacts.78 Mr. Watry states that the construction noise level plots were generated using a program called SoundPLAN which takes as its input sound power level per unit area.79 The Categorical Exemption uses the assumed sound pressure level of 75 dBA from construction equipment to arrive at a sound power level input 109.7 dBA at 15.24 meters.80

To calculate a more accurate sound power level, Mr. Watry looked to the Air Quality analysis documentation for the Categorical Exemption which includes a detailed list of construction equipment by construction phase which can be used to validate the noise model.81 Using the information in the record, Mr. Watry calculated the noise levels for the first three phases of Project construction by applying the Federal Highway Administration (“FHWA”) Roadway Noise Construction Model methodology and data.82 By using data for the construction equipment that will be on site, Mr. Watry found that the noise reference levels at the site would be 7 to 11 dB higher than the reference level assumed in the CE.83 The following Figure 1 shows the substantiated noise reference levels at 15.24 meters for the first three phases of the Project:

77 Watry Comments, p. 3.
78 Watry Comments, p. 2.
79 Watry Comments, p. 3.
80 Watry Comments, p. 3.
81 Watry Comments, p. 3.
82 Watry Comments, p. 4.
83 Watry Comments, p. 4.

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Figure 1 Noise Level Calculations Using FHWA Methodology Using the values above, Mr. Watry was able to calculate the average hourly noise levels at the noise-sensitive receptors close to the Project. Mr. Watry’s analysis shows that the Project’s construction noise levels are significantly higher than the estimates made in the CE’s noise analysis as shown in Table 1 below:84

84 Watry Comments, p. 5.

Demolition
Equipment Lmax Util% No. Distance Leq
Conc Saw 89.6 20% 1 50 ft 82.6
Tractor 84.0 40% 1 50 ft 80.0
Backhoe 77.6 40% 1 50 ft 73.6
Dozer 81.7 40% 1 50 ft 77.7
Total 85.6
Grading
Equipment Lmax Util% No. Distance Leq
Conc Saw 89.6 20% 1 50 ft 82.6
Tractor 84.0 40% 1 50 ft 80.0
Backhoe 77.6 40% 1 50 ft 73.6
Dozer 81.7 40% 1 50 ft 77.7
Total 85.6
Bldg Construction
Equipment Lmax Util% No. Distance Leq
Crane 81.0 16% 1 50 ft 73.0
Forklift (Man Lift) 75.0 20% 2 50 ft 71.0 Tractor 84.0 40% 1 50 ft 80.0
Backhoe 77.6 40% 1 50 ft 73.6
Total 81.9
RCNM Ref Values @ 50 ft
RCNM Ref Values @ 50 ft
RCNM Ref Values @ 50 ft
----- -
----- -
----- -
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Table 1: Average Hourly Noise Levels at Nearest Noise Sensitive Receptors Address Description Distance
Construction Phase
Demo Grading Bldg
Erection
1717 N
Bronson Lombardi House 85 ft 81.0 81.0 77.3
1720 N
Bronson Residences 160 ft 75.5 75.5 71.8
5919
Carlos Residences 208 ft 73.2 73.2 69.6
5940
Carlos
Hollywood Silvercrest
Apts 260 ft 71.3 71.3 67.6

The Categorical Exemption correctly states that “[b]ecause the Project’s construction phase would occur for more than three months, the applicable City threshold of significance for the Project’s construction noise impacts is an increase of 5 dBA over existing ambient noise levels.”85
Mr. Watry explains that the Categorical Exemption established the existing ambient noise levels by taking measurements at four locations in the area around the project site.86 Using the ambient noise measurement information from the CE, Mr. Watry applied the updated construction noise levels and found that the Project will result in an increase of between 9.6 dBA and 17.1 dBA at the receptors nearest to the Project site, resulting in a significant impact.87 The results of Mr. Watry’s calculations are included in Table 2 below.

85 CE, p. 34.
86 Watry Comments, p. 7.
87 Watry Comments, p. 7.

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Table 1 Assessment of Construction Noise Levels at Off-Site Receptors Receptor Maximum
Construction
Noise Level
(dBA Leq)
Existing
Ambient
Noise Level
(dBA Leq)
New
Ambient
Noise Level
(dBA Leq)
Increase
(dBA Leq)
Significant
Impact?
1717
Bronson 81.0 63.7 81.1 17.4 Yes
1720
Bronson 75.5 63.7 75.8 12.1 Yes
5919 Carlos 73.2 62.2 73.5 11.3 Yes
5940 Carlos 71.3 62.2 71.8 9.6 Yes
88 Mr. Watry’s calculations demonstrate that the Project’s noise levels will exceed the significance threshold, resulting in a significant impact. The Project’s significant construction noise impacts must be analyzed and mitigated in an EIR for the Project.

E. The Project’s Significant Cumulative Impacts Result in an Exception to the Categorical Exemption

A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment, including (1) when “the cumulative impact of successive projects of the same type in the same place, over time is significant.”89 As explained below, the Project’s air quality and transportation impacts result in significant cumulative impacts preventing the City from relying on a categorical exemption.

i. The Project’s Cumulative Air Quality Impacts Result in an Exception to the Categorical Exemption

The Project will cause significant cumulative impacts triggering an exception to categorical exemptions under CEQA Guidelines Section 15300.2(b). The US EPA found that the Los Angeles-South Coast Air Basin is in nonattainment for lead, and

88 Watry Comments, p. 7.
89 14 CCR § 15300.2(b).

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serious nonattainment for particulate matter (“PM”) PM2.5.90 The California Air Resources Board determined the South Coast Air Basin, the air basin encompassing the Project, is in nonattainment for ozone (O3), and PM10, and PM2.5.91 Thus, a cumulative incremental increase in any of these pollutants may result in significant cumulative air quality impacts. The Project is likely to result in a cumulatively considerable net increase of criteria pollutants for which the region is in nonattainment.92 As Dr. Clark notes in his comments, the Project construction will require the use of heavy equipment and heavy-duty trucks diesel powered. Diesel exhaust contains TACs that would represent a potential hazard to workers on site and to the surrounding community.93

Diesel exhaust has been linked to a range of serious health problems including an increase in respiratory disease, lung damage, cancer, and premature death.94 Fine DPM is deposited deep in the lungs in the smallest airways and can result in increased respiratory symptoms and disease; decreased lung function, particularly in children and individuals with asthma; alterations in lung tissue and respiratory tract defense mechanisms; and premature death.95 Exposure to DPM increases the risk of lung cancer. It also causes non-cancer effects including chronic bronchitis, inflammation of lung tissue, thickening of the alveolar walls, immunological allergic reactions, and airway constriction.96 DPM is a TAC that is recognized by state and federal agencies as causing severe health risk because it contains toxic materials, unlike PM2.5 and PM10.97

90 United States Environmental Protection Agency, Current Nonattainment Counties for All Criteria Pollutants (October 31, 2021) https://www3.epa.gov/airquality/greenbook/ancl.html. 91 MND, p. 68 - 69.
92 CEQA Guidelines Appendix G.
93 Clark Comments, p. 4.
94 Clark Comments, pp. 4-6;
95 Clark Comments, p. 6; California Air Resources Board, Initial Statement of Reasons for Rulemaking, Proposed Identification of Diesel Exhaust as a Toxic Air Contaminant, Staff Report, June 1998.
96 Clark Comments, p. 6; Findings of the Scientific Review Panel on The Report on Diesel Exhaust as adopted at the Panel’s April 22, 1998 Meeting.
97 Clark Comments, p. 6; Health & Safety Code § 39655(a) (defining “toxic air contaminant” as air pollutants “which may cause or contribute to an increase in mortality or in serious illness, or which may pose a present or potential hazard to human health. A substance that is listed as a hazardous air pollutant pursuant to subsection (b) of Section 112 of the federal act (42 U.S.C. Sec. 7412 (b)) is a toxic air contaminant.”)
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The Project’s cumulative air quality impacts constitute an exception to a Class 32 Categorical Exemption under CEQA Guidelines section 15300.2(b). The City must prepare an EIR to evaluate the Project’s cumulative air quality impacts.

ii. The Project’s Cumulative Transportation Impacts Result in an Exception to the Categorical Exemption

Operation of the Project will result significant cumulative transportation impacts triggering an exception to the categorical exemption under CEQA Guidelines Section 15300.2(b). Mr. Smith explains in his comments the intersection of Hollywood Boulevard with Bronson Avenue deteriorates from an AM peak 32.0 seconds delay98/Level of Service (“LOS”) C and PM peak 57.8 seconds delay/LOS E in the existing condition without the Project to an AM peak 206.8 seconds delay/LOS F and PM peak 201.1 seconds delay/LOS F in the cumulative (2024) with Project condition.99 The transportation analysis in the record shows that over 3 years, during the AM peak, the intersection deteriorates from an acceptable LOS C to a condition about 2.5 times worse than the threshold of unacceptable and dysfunctional, LOS F.100 Additionally, the PM peak deteriorates from a marginally functional LOS E to a condition about 2.5 times worse than the threshold of unacceptable and dysfunctional, LOS F.101 Additionally, Mr. Smith notes that the analysis of the intersection of Bronson Avenue with Franklin Avenue shows similar though less severe deterioration.102

The Categorical Exemption contains no discussion about the severity of this deterioration or what plans the City has to correct or offset it.103 Despite the fact that the Project only contributes to a small portion of the deterioration of LOS at these intersections, there is clearly a significant cumulative impact resulting from the Project plus other concurrent projects in the area.

The Project’s cumulative transportation impacts constitute an exception to a Class 32 Categorical Exemption under CEQA Guidelines section 15300.2(b). The City must prepare an EIR to evaluate the Project’s cumulative transportation impacts.

98 Average intersection delay per vehicle.
99 Smith Comments, p. 2.
100 Smith Comments, p. 2.
101 Smith Comments, p. 2.
102 Smith Comments, p. 2.
103 Smith Comments, p. 2.

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IV. THE CITY CANNOT APPROVE THE PROJECT UNDER THE

SUBDIVISION MAP ACT

The Subdivision Map Act requires a lead agency to make findings that a proposed subdivision is consistent with the general plan/specific plan, and does not have any detrimental environmental or public health effects.104 The City is unable to make these mandatory findings because the Project has unmitigated, adverse impacts in each of these areas. Moreover, the Categorical Exemption and Staff Report fail to provide substantial evidence to meet either of these legal standards.

As demonstrated above, the Project will conflict with the City’s adopted Mobility Plan which is an element of the City’s General Plan.105 Additionally, there is substantial evidence demonstrating that the Project will result in significant impacts related to air quality, public health, noise, and transportation that the City has not analyzed or mitigated. The threats to public health posed by the Project cannot be ignored and necessarily contravene the findings required to approve the Project under the Map Act.

The City must prepare an EIR that analyzes the Projects potentially significant impacts and implement mitigation to address those impacts before it is able to make the findings required under the Map Act.

V. CONCLUSION

There is substantial evidence demonstrating that Project may result in potentially significant adverse impacts that were not identified by the City, and thus have not been adequately analyzed or mitigated. The City also lacks substantial evidence to support the findings required to approve the Project in reliance on a Categorical Exemption from CEQA.

104 Gov Code §§66473.5, 66474(a), (b), (e), (f), (g).
105 City of Los Angeles, Mobility, https://planning.lacity.org/plans-policies/initiatives-policies/mobility (Accessed March 22, 2022).

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We urge the Hearing Officer to deny this Project and fulfill its responsibilities under CEQA by remanding the Project to staff to prepare a legally adequate EIR to address the potentially significant impacts described in this comment letter and the attached expert letters. The City cannot allow the Project to move forward with any subsequent approvals until it prepares an EIR that resolves these issues and complies with CEQA’s requirements.

Thank you for your attention to these comments. Please include them in the record of proceedings on the Project.

Sincerely,

Kevin Carmichael

KTC:ljl
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Charles R. Drew University
of Medicine and
Science Health Professions
Education Building Project
(Dec. 5, 2022)
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KEVIN T. CARMICHAEL
CHRISTINA M. CARO
THOMAS A. ENSLOW
KELILAH D. FEDERMAN
RICHARD M. FRANCO
ANDREW J. GRAF
TANYA A. GULESSERIAN
RACHAEL E. KOSS
AIDAN P. MARSHALL
TARA C. RENGIFO

Of Counsel
MARC D. JOSEPH
DANIEL L. CARDOZO

SACRAMENTO OFFICE

520 CAPITOL MALL, SUITE 350
SACRAMENTO, CA 95814-4721
TEL: (916) 444-6201
FAX: (916) 444-6209

ADAMS BROADWELL JOSEPH & CARDOZO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW

601 GATEWAY BOULEVARD, SUITE 1000
SOUTH SAN FRANCISCO, CA 94080-7037
___________

TEL: (650) 589-1660
FAX: (650) 589-5062
[email protected]

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December 5, 2022

Via Email and Overnight Mail
Chair Janice Hahn
Honorable Members of the Los Angeles County Board of Supervisors Supervisor Hilda L. Solis
Supervisor Holly J. Mitchell
Supervisor Sheila Kuehl
Supervisor Kathryn Barger
500 West Temple Street, Room 383,
Los Angeles, CA 90012
Email: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]

Via Email Only
Bryan Moller, Regional Planner, [email protected] Edward Rojas, Supervising Planner, [email protected]

Via Online Portal
https://publiccomment.bos.lacounty.gov/

Re: Agenda Item 25.Charles R. Drew University of Medicine and Science Health Professions Education Building Project

Dear Chair Hahn, Honorable Supervisors, Mr. Moller and Mr. Rojas:

On behalf of the Coalition for Resp onsible Equitable Economic Development Los Angeles (“CREED LA”), we submit these comments in response to the Staff Report
1 and Revised Mitigated Negative Declaration (“Revised MND”)2 prepared for the December 6, 2022 Los Angeles County Board of Supervisors (“Board”) hearing

1 Board Letter from Fesia A. Davenport, Chief Executive Officer, County of Los Angeles to The Honorable Board of Supervisors re Approval of Mitigated Negative Declaration and Lease to Charles R. Drew University of Medicine and Science for Proposed Health Professions Education Building (Second District) (3 votes) (December 6, 2022),
https://file.lacounty.gov/SDSInter/bos/supdocs/175274.pdf (“Staff Report”). 2 County of Los Angeles, California Environmental Quality Act Mitigated Negative Declaration (September 2022), https://planning.lacounty.gov/assets/upl/case/prj2021-002060_revised-ismnd.pdf (“Revised MND”).

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on Agenda Item No. 25, the Charles R. Drew University of Medicine and Science Health Professions Education Building Project (Project No. PRJ2021-002060, Permit No. RPPL2022002289) (“Project”) proposed by Charles Drew University (“Applicant”).

The County is improperly attempting to rush this Project through the entitlement process without comply with the California Environmental Quality Act (“CEQA”).
3 The public comment period on the MND ended on November 17, 2022, less than 3 weeks ago. On November 17, 2022, CREED LA submitted extensive comments on the MND, supported by expert reports, which provided the County with substantial evidence demonstrating that the Project has potentially significant air quality, health risk, and noise impacts associated with Project construction and operation that the MND failed to disclose and mitigate. Under CEQA, an MND is improper, and an EIR must be prepared, whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact.4 CREED LA’s comments provided the County with substantial evidence supporting a fair argument that an EIR is required for the Project.

Rather than comply with CEQA’s procedural requirements and circulate an EIR for public comment, the County simply revised the MND and attached it to the Staff Report without providing a meaningful opportunity for public comment. The Revised MND also violates CEQA’s substantive requirements. We reviewed the Staff Report, Revised MND, and the County’s responses to comments with our experts. While the Revised MND contains some additional discussion and mitigation measures in response to the issues raised by CREED LA and CalTrans, the Revised MND still provides inadequate analysis and mitigation for the Project’s potentially significant air quality, health risk, and noise impacts associated with Project construction and operation. In particular, the Revised MND still fails to analyze the Project’s health risk impacts and fails to implement all feasible mitigation measures to reduce the Project’s air pollution emissions and public health impacts. Additionally, the Revised MND still fails to analyze and mitigate the Project’s potentially significant impacts to sensitive receptors from exceedances of noise and vibration limits. These undisclosed, unmitigated impacts necessitate preparation of an EIR.

The Staff Report also contains new information about the Project’s land use entitlements that was not disclosed or analyzed in either the original or Revised

3 Pub. Res. Code (“PRC”) § 21000 et seq.; 14 Cal. Code Regs. (“CCR”) §§ 15000 et seq. 4 Pub. Resources Code § 21151; CEQA Guidelines § 15064(f); Citizens for Responsible Equitable Envt’l Dev. v. City of Chula Vista (“CREED”) (2011) 197 Cal.App.4th 327, 330-31; Communities for a Better Env’t v. South Coast Air Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 319 (“CBE v. SCAQMD”).

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MND. The Staff Report attaches a proposed ground lease between the County and the Applicant which would lease the Project site to the Applicant for 60 years with two, 10-year extensions – for a total Project lease of up to 80 years.5 The Staff Report states that the proposed ground lease was submitted for review to the Board’s appointed Real Estate Management Commission on October 26, 2022, and was unanimously recommended for approval by the Board.6 However, the ground lease was not described in the original MND, and is not mentioned or described in the Revised MND. Both the original MND and Revised MND only analyze the Project’s operational impacts over a 30-year period, and fail to analyze impacts over the full 80-year period that would be authorized if the ground lease is approved.

The ground lease is a major change in the Project description that is likely to intensify the nature and severity of the Project’s impacts by almost three times the amount analyzed in the Revised MND. This is significant new information which must be analyzed under CEQA and requires the County to prepare an EIR.

The County may not approve the Project until the County prepares an Environmental Impact Report (“EIR”) that adequately analyzes the Project’s potentially significant impacts and incorporates all feasible mitigation measures to avoid or minimize these impacts. As a result of these deficiencies, the County also cannot make the requisite findings to approve the Project under the County’s municipal codes.
7 We respectfully request that the Board direct staff to address these outstanding issues by preparing a legally adequate EIR and circulating it for public review and comment. We reserve the right to supplement these comments at later hearings and proceedings related to the Project.8

I. PROJECT BACKGROUND

The Project proposes to demolish two existing modular buildings, remove existing landscaping, and construct a five-story, 92,618-square-foot Health Professions Education Building (“HPEB”) on the Project site. The proposed building would have classrooms, a lecture hall, auditorium/meeting room, a café, facilities support space (e.g., shipping/receiving, janitorial, electrical, and data rooms), study rooms, staff and faculty offices, conference rooms, virtual anatomy and virtual skills rooms, simulation rooms (e.g., hospital and exam room simulation), student lounge,

5 Staff Report, p. 3; Enclosure: Ground Lease (Area 2). 6 Staff Report, p. 3.
7 PRC § 21081; Covington v. Great Basin Unified Air Pollution Control Dist. (2019) 43 Cal.App.5th 867, 883.
8 Gov. Code § 65009(b); PRC § 21177(a); Bakersfield Citizens for Local Control v. Bakersfield (2004) 124 Cal. App. 4th 1184, 1199-1203; see Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal.

App. 4th 1109, 1121.

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lockers rooms, showers, restrooms/changing rooms, and outdoor terraces. Outdoor terraces are proposed on the 5th floor at the north and east sides of the building.9

The Project site is located at 1731 East 120th Street, Los Angeles, CA 90059 (APN: 6149-028-919).
10 The Project site is in the Drew Educational Specific Plan Zone of the Willowbrook Transit Oriented District (“TOD”) Specific Plan area, which allows a maximum floor area ratio (“FAR”) of 1.5.11 The proposed building would have a maximum height of 75 feet and an FAR of 2.15.12 Construction of the Project will last 24 months.13 The area surrounding the Project site includes substantial numbers of sensitive receptors within 500 feet, including: King Drew Magnet High School located approximately 50 feet to the west of the proposed HPEB; Residences located approximately 50 feet to the northeast of the proposed parking structure on 118th Street; Residences located approximately 120 feet to the east of the proposed parking structure on 118th Street; Residences approximately 120 feet to the northwest of the proposed HPEB; Residences approximately 220 feet to the northeast of the proposed parking structure on 118th Street; Residences approximately 280 feet to the east of the proposed parking structure on 118th Street; Augustus F. Hawkins Mental Health Center approximately 300 feet to the southeast of the proposed HPEB; and Martin Luther King, Jr. Community Hospital approximately 400 feet to the south of the proposed HPEB.14

II. STATEMENT OF INTEREST

CREED LA is an unincorporated association of individuals and labor organizations formed to ensure that the construction of major urban projects in the Los Angeles region proceed in a manner that minimizes public and worker health and safety risks, avoids or mitigates environmental and public service impacts, and fosters long-term sustainable construction and development opportunities. The association includes Juan Rios, Jesse Ramirez, and Bryan Rodriguez, the Sheet Metal Workers Local 105, International Brotherhood of Electrical Workers Local 11, Southern California Pipe Trades District Council 16, and District Council of Iron Workers of the State of California, along with their members, their families, and other individuals who live and work in Los Angeles.

Accordingly, they would be directly affected by the Project’s environmental and health, and safety impacts. Individual members may also work on the Project

9 MND, p. 5/88.
10 Id.
11 Id. at 15/88.
12 Id.
13 Id. at 23/88.
14 Id. at 55-56/58.

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itself. They will be first in line to be exposed to any health and safety hazards that exist on site.

CREED LA has an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for its members.

Environmentally detrimental projects can jeopardize future jobs by making it more difficult and more expensive for business and industry to expand in the region, and by making the area less desirable for new businesses and new residents. Continued environmental degradation can, and has, caused construction moratoriums and other restrictions on growth that, in turn, reduce future employment opportunities.

CREED LA supports the development of commercial, mixed use, and educational projects where properly analyzed and carefully planned to minimize impacts on public health, climate change, and the environment. These projects should avoid adverse impacts to air quality, public health, climate change, noise, and traffic, and must incorporate all feasible mitigation to ensure that any remaining adverse impacts are reduced to the maximum extent feasible. Only by maintaining the highest standards can development truly be sustainable.

III. THE REVISED MND FAILS TO COMPLY WITH CEQA

Under CEQA, an MND is improper, and an EIR must be prepared, whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact.
15 CREED LA’s MND comments provided
the County with substantial evidence supporting a fair argument that an EIR is required for the Project. Rather than comply with CEQA’s procedural requirements and circulate an EIR for public comment, the County simply revised the MND and attached it to the Staff Report without providing a meaningful opportunity for public comment. The County has failed to proceed in the manner required by law by relying on a Revised MND.

Even if a revised MND were authorized under CEQA (which it is not), the Revised MND fails to adequately disclose, investigate, and analyze the Project’s potentially significant impacts, and fails to provide substantial evidence to conclude that impacts will be mitigated to a less than significant level. Because the Revised MND lacks basic information regarding the Project’s potentially significant impacts, the Revised MND’s conclusion that the Project will have a less than significant impact on the environment is unsupported.
16 Moreover, substantial evidence in

15 Pub. Resources Code § 21151; CEQA Guidelines § 15064(f); Citizens for Responsible Equitable Envt’l Dev. v. City of Chula Vista (“CREED”) (2011) 197 Cal.App.4th 327, 330-31; Communities for a Better Env’t v. South Coast Air Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 319 (“CBE v. SCAQMD”). 16 PRC § 21064.5.

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CREED LA’s comments and those of our expert consultants show that the Project may result in potentially significant unmitigated environmental impacts. CREED LA presented a fair argument that the Project may cause significant environmental impacts requiring the preparation of an EIR.

A lead agency is required to prepare an EIR whenever substantial evidence in the whole record before the agency supports a fair argument that a project may have a significant effect on the environment.17 The phrase “significant effect on the environment” is defined as “a substantial, or potentially substantial, adverse change in the environment.”18 In certain circumstances, a project with potentially significant impacts can be modified by the adoption of mitigation measures to reduce the impacts to a level of insignificance. In such cases, an agency may satisfy its CEQA obligation by preparing a mitigated negative declaration. 19 A mitigated
negative declaration, however, is also subject to the fair argument standard. Thus, an MND is also inadequate, and an EIR is required, whenever substantial evidence in the record supports a “fair argument” that significant impacts may occur, even with the imposition of mitigation measures. Substantial evidence includes both expert and lay opinion.20 Further, even if other substantial evidence supports the opposite conclusion, the agency nevertheless must prepare an EIR.21 Under the “fair argument” standard, CEQA always resolves the benefit of the doubt in favor of the public and the environment.

For the reasons stated herein and in CREED LA’s prior comments and expert consultant reports, the Revised MND is legally inadequate and substantial evidence supports a fair argument that an EIR must be prepared to satisfy CEQA.

A. The Revised MND Fails to Adequately Analyze the Project’s Potentially Significant Air Quality and Health Risk Impacts

CEQA requires that a project’s health risks “must be ‘clearly identified’ and the discussion must include ‘relevant specifics’ about the environmental changes

17 Pub. Res. Code §§21080(d), 21082.2(d); 14 Cal. Code Reg. §§ 15002(k)(3), 15064(f)(1), (h)(1); Laurel Heights Improvement Assn. v. Regents of the Univ. of Cal. (1993) 6 Cal.4th 1112, 1123; No Oil, Inc. v.

City of Richmond (1974) 13 Cal.3d 68, 75, 82; Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 150-151; Quail Botanical Gardens Found., Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1601-1602.
18 Pub. Resources Code, § 21068.
19 Pub. Resources Code, § 21064.5; CEQA Guidelines, § 15064, subd. (f)(2). 20 Pub. Resources Code, § 21080, subd. (e)(1); CEQA Guidelines, § 15064, subd. (f)(5). 21 Arviv Enterprises v. South Valley Area Planning Comm. (2002) 101 Cal.App.4th 1333, 1346; Stanislaus Audubon v. County of Stanislaus (1995) 33 Cal.App.4th 144, 150-151; Quail Botanical Gardens v. City of Encinitas (1994) 29 Cal.App.4th 1597.

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attributable to the Project and their associated health outcomes.”22 Courts have held that an environmental review document must disclose a project’s potential health risks to a degree of specificity that would allow the public to make the correlation between the project’s impacts and adverse effects to human health.23

The Staff Report provides that “The two-year construction period for the proposed project would represent only seven percent of a standard residential exposure duration for carcinogenic risk assessment and does not warrant such a robust analysis of possible health risks, as the likelihood is extremely low.”24 The Staff Report admits that the County failed to conduct a robust analysis of the Project’s health risk impacts. The Staff Report, though, fails to substantiate the County’s claims that a health risk analysis is not required. The Revised MND fails to disclose the project’s potential health risks to a degree of specificity that would allow the public to make the correlation between the project’s impacts and adverse effects to human health because it omits a meaningful, detailed, or quantitative analysis of the Project’s health risk. In particular, the Revised MND does not include a site-specific health risk analysis (“HRA”) to disclose the extent of the Project’s construction and operational health impacts, as required by CEQA.

Instead, the Revised MND concludes, absent substantial evidence, that the Project would have a less than significant impact related to exposure of sensitive receptors to substantial pollutant concentrations. Because it failed to conduct an HRA, the Revised MND lacks any analysis of the cancer risk posed by exposure to toxic air contaminants (“TACs”), in particular diesel particulate matter (“DPM”), which will be released during Project construction and operation.

The Revised MND’s health risk discussion also contains basic factual errors about the duration of the Project’s emissions. CREED LA’s MND comments explained that the County’s failure to prepare a quantitative analysis of the Project’s health risk impacts and compare those impacts to applicable cancer risk thresholds was a failure to proceed in the manner required by CEQA, and that the County’s reliance on inapplicable LSTs did not provide the County with substantial evidence that health risk impacts would be less than significant. The Responses to Comments compound this error by relying on a factually incorrect time period for Project construction and operation. The Responses explain that “OEHHA guidance recommends that long-term exposures for residents be analyzed over a period of 30 years,” and that the cancer potency factors used in HRAs were derived based on

22 Id. at 518.
23 Id. at 518–520; Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184.
24 Staff Report, p. 5-6.

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sustained exposures over periods of up to 70 years.25 The Responses repeat the MND’s claim that a HRA is not required for the Project based on an assumption that the Project’s TAC emissions will occur only during the Project’s 2-year construction period. However, as Dr. Clark explains, the Project’s cancer-causing TAC emissions include operational emissions from the diesel backup generator and potentially from commercial vehicles. The Staff Report discloses that the Project seeks approval for a 60 year ground lease, with two 10-year extensions. If approved, the ground lease would result in a Project operation period of up to 80 years. This is more than double the time period triggering OEHHA’s recommendation for a quantitative HRA, and exceeds the 70-year sustained exposure timeframe for cancer potency. Thus, by the County’s own reasoning, the Project’s life exceeds all recommended regulatory timelines for preparing an HRA.

Substantial evidence also supports a fair argument that construction of the Project may result in significant impacts associated with health risk impacts to sensitive receptors from toxic air contaminants. Dr. Clark, in his prior comments to the County, concluded that diesel exhaust from construction of the Project may “pose a serious public health risk for residents in the vicinity of the Project. 26 TACs are airborne substances that are capable of causing short-term (acute) and/or long-term (chronic or carcinogenic, i.e., cancer causing) adverse human health effects (i.e., injury or illness).27 TACs include both organic and inorganic chemical substances.28 The current California list of TACs includes approximately 200 compounds, including particulate emissions from diesel-fueled engines.29 TACs, including DPM, contribute to a host of respiratory impacts and may lead to the development of various cancers. Failing to quantify those impacts places the community at risk for unwanted adverse health impacts.30 Even brief exposures to the TACs could lead to the development of adverse health impacts over the life of an individual.
31 Moreover, diesel exhaust has been linked to a range of serious health problems including an increase in respiratory disease, lung damage, cancer, and premature death. Fine DPM is deposited deep in the lungs in the smallest airways and can result in increased respiratory symptoms and disease; decreased lung function, particularly in children and individuals with asthma; alterations in lung

25 Responses to Comments, p. 5.
26 Clark Comments, p. 7.
27 Clark Comments, p. 7
28 Id.
29 Id.
30 Id.
31 Clark Comments, p. 8.

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tissue and respiratory tract defense mechanisms; and premature death. Exposure to DPM increases the risk of lung cancer. It also causes non-cancer effects including chronic bronchitis, inflammation of lung tissue, thickening of the alveolar walls, immunological allergic reactions, and airway constriction. DPM is a TAC that is recognized by state and federal agencies as causing severe health risk because it contains toxic materials, unlike PM2.5 and PM10.

The Revised MND fails to analyze the Project’s potentially significant health impacts from DPM generated by construction activities and operational activities from the Project on nearby sensitive receptors.
32 Absent a health risk analysis, Dr.

Clark concludes that the County may be exposing nearby sensitive receptors to toxic air contaminants and cancer risk without sufficiently quantifying and mitigating such a risk. The County must prepare a legally adequate EIR, including a health risk analysis, to fully quantify and mitigate the Project’s potentially significant air quality and health risk impacts.

B. The Revised MND Fails to Adequately Mitigate the Project’s Potentially Significant Air Quality and Health Risk Impacts

The principal revision to the MND is the addition of the “[u]se of Tier 4 construction equipment with Best Available Control Technology (BACT) devices certified by the CARB and diesel particulate filter, where available.” 33 While this
measure is an improvement to the MND, the Staff Report overstates the efficacy of this measure, and the measure is not mandatory and only required “where available”.34 The Staff Report provides, “[t]he County is taking a proactive approach to community health protection and is requiring the use of off-road construction equipment with engines over 25 horsepower (hp) that comply with Tier 4 Final emissions standards and are registered in the California Air Resources Board (CARB) off-road registration inventory.”35 Tier 4 construction equipment and Tier 4 Final construction equipment are distinct and have different degrees of efficacy.
36 Further, given the voluntary nature of this measure, the Applicant is free to use more polluting equipment if it deems Tier 4 construction equipment not “available.”

32 Id.
33 Revised MND, p. 8/88.
34 Id.
35 Staff Report, p. 6.
36 Clark Comments, p. 8.

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CEQA requires that mitigation measures must be fully enforceable through permit conditions, agreements or other legally binding instruments.37 Failure to include enforceable mitigation measures is considered a failure to proceed in the manner required by CEQA.38 In order to meet this requirement, mitigation measures must be incorporated directly into the EIR to be enforceable.39 CEQA requires a lead agency to identify mitigation measures which are both effective and enforceable. “Effective” means the measures can reasonably be expected to avoid or reduce a potential significant impact.40 “Enforceable” means the measures are stated as conditions of approval in a permit, agreement or other legally binding document or incorporated into a plan, policy, regulation, or project design.41 Here, the inclusion of a nonbinding measure to purportedly reduce the Project’s health risk impacts, is not legally sufficient under CEQA. The County must prepare a legally adequate EIR which sufficiently mitigates the Project’s air pollution and health risk impacts through binding mitigation measures in a Mitigation Monitoring and Reporting Program before the Project can be approved.

Further, the Revised MND fails to mitigate the Project’s air pollution and health risk emissions because the Revised MND requires only that construction equipment “be turned off when not in use for more than five minutes, except for equipment that requires idling to maintain performance.” 42 The Staff Report
reiterates that 5 minutes is the legal maximum idling time.43 But Dr. Clark concluded that Project’s emissions from excessive idling constitute a significant impact under CEQA. PM emissions would be significantly reduced if the Project prohibited idling more than three minutes in any one hour. James Clark calculated that reducing idling times from five minutes to three minutes would reduce emissions by 40%.44 This measure was not added to the MND to address the Project’s significant health risk impacts from PM emissions from construction and operation. This measure must be included in an EIR to reduce the Project’s significant air quality and health risk impacts to satisfy CEQA.

37 14 CCR §15126.4(a)(2).
38 San Joaquin Raptor Rescue Ctr. v. County of Merced (2007) 149 Cal.App.4th 645, 672. 39 Lotus v. Dept of Transportation (2014) 223 Cal. App. 4th 645, 651-52. 40 14 CCR § 15126.4(a)(1)(A).
41 14 CCR § 15126.4(a)(1)(A).
42 MND, p. 8/88.
43 Staff Report, p. 7.
44 Clark Comments, p. 7.

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C. The Revised MND Fails to Adequately Analyze and Mitigate the Project’s Potentially Significant Noise Impacts

The Revised MND fails to adequately analyze vibration impacts from the Project’s construction and operation. The Revised MND did not remedy the errors in the MND and instead relies solely on analysis of construction equipment including Large Bulldozer, Loaded Trucks, Small Bulldozer in analyzing vibration impacts to vibration-sensitive receptors.
45 Nearby vibration-sensitive receptors
include buildings where vibration would interfere with operations within the building, including vibration-sensitive research and manufacturing facilities, hospitals with vibration-sensitive equipment, and university research operations.

Vibration-sensitive equipment includes, but is not limited to, electron microscopes, high-resolution lithographic equipment, and normal optical microscopes. 46 The
County suggests that because the King Drew Magnet High School Administration “did not submit a comment letter expressing vibration or noise concerns” that diminishes the facial inconsistencies with the Noise Ordinance raised in CREED LA’s comments.

The MND’s Noise and Vibrations Calculations in Appendix B provide that a large bulldozer alone produces 0.089 in/sec PPV at 25 feet, and thus produces 0.031 in/sec PPV at 50 feet, the site of the closest receiver, the King Drew Magnet High School of Medicine and Science.
47 This exceeds the county vibration annoyance
limits of 0.01 PPV, and results in a significant impact to vibration-sensitive receptors.
48 These significant noise and vibration impacts must be analyzed and mitigated in an EIR circulated for public review and scrutiny.

IV. CONCLUSION

The County failed to proceed in the manner required by law by preparing a Revised MND in place of an EIR when presented with substantial evidence supporting a fair argument that the Project has significant, unmitigated impacts that were not adequately addressed in the original MND. The Revised MND fails to comply with CEQA’s procedural requirements and remains inadequate for failure to disclose and mitigate the Project’s potentially significant impacts on air quality, health risk, noise and vibration. The County lacks substantial evidence to support

45 MND, Appendix B, pdf p. 163/283.
46 Willowbrook Transit Oriented District Specific Plan, Final Environmental Impact Report, Noise and Vibration, https://planning.lacounty.gov/assets/upl/project/willowbrook_feir_3-9-noise-and- vibration.pdf.
47 MND, Appendix B, pdf p. 159/283; Wilson Ihrig Comments, p. 2-3. 48 Wilson Ihrig Comments, p. 3.

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December 5, 2022

6377-006acp

printed on recycled paper
its reliance on an MND, and substantial evidence still supports a fair argument that an EIR must be prepared for the Project.

We respectfully request the Board of Supervisors continue this hearing and remand the Project to staff to prepare a legally adequate EIR which addresses the errors and omissions in the Revised MND and include mitigation measures described in this comment and CREED LA’s prior comments. The County cannot approve the Project until it prepares an EIR that resolves these issues and fully complies with CEQA’s requirements.

Thank you for your attention to these comments. Please include them in the record of proceedings for the Project.

S i n c e r e l y ,

Kelilah D. Federman

Attachment
KDF:acp
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Comments on the Grocery
Outlet Store Project (SCH
No. 2021030257)
(May 19, 2021)
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2656 29th Street, Suite 201
Santa Monica, CA 90405
Matt Hagemann, P.G, C.Hg.
(949) 887-9013
mha
[email protected]
Paul E. Rosenfeld, PhD
(310) 795-2335
pr
[email protected]
May 19, 2021
Tal Finney
Finney Arnold LLP
633 W. 5th Street, 28th Floor
Los Angeles, CA 90071
Subject: Comments on the Grocery Outlet Store Project (SCH No. 2021030257) Dear Mr. Campbell,
We have reviewed the September 2020 Initial Study / Mitigated Negative Declaration (“IS/MND”) for the Grocery Outlet Store (“Project”) located in the City of Big Bear Lake (“City”). The Project proposes to construct an 18,000-SF supermarket and 60 parking spaces on the 2.93-acre site.

Our review concludes that the IS/MND fails to adequately evaluate the Project’s air quality, health risk, and greenhouse gas impacts. As a result, emissions and health risk impacts associated with construction and operation of the proposed Project are underestimated and inadequately addressed. An EIR should be prepared to adequately assess and mitigate the potential air quality, health risk, and greenhouse gas impacts that the project may have on the surrounding environment.

Air Quality
Failure to Evaluate Potential Air Quality Impact
The IS/MND concludes that the proposed Project would result in a less-than-significant air quality impact without quantifying the Project’s construction-related and operational criteria air pollutant emissions. Specifically, regarding the Project’s potential criteria air pollutant emissions, the IS/MND states:
“The project’s implementation would contribute to an increase of criteria pollutants, but since the implementation of the project will not exceed the significance thresholds listed in Appendix A, a less than significant impact would occur” (p. 10).

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2 As you can see in the excerpt above, the IS/MND claims Project-generated criteria air pollutants would not exceed significance thresholds. However, the IS/MND’s less-than-significant air quality impact conclusion should not be relied upon, as the IS/MND fails to estimate the Project’s criteria air pollutant emissions whatsoever. Without making an effort to estimate the Project’s potential criteria air pollutant emissions, the IS/MND lacks evidence to support its conclusion that the Project emissions would not exceed the applicable SCAQMD significance thresholds. Thus, the Project should not be approved until an EIR is prepared to adequately assess and mitigate the potential air quality impacts that the Project may have on the surrounding environment.

Diesel Particulate Matter Health Risk Emissions Inadequately Evaluated The IS/MND concludes that the Project’s health risk impact would be less-than-significant without preparing a quantified construction and operational health risk analysis (“HRA”) (p. 11). Specifically, the IS/MND states:
“The nearest sensitive receptor to the site would be private residences across CA-18, west of the property. The project would not increase traffic volumes at any intersection to more than 100,000 vehicles per day. The nearest sensitive receptors might be neighboring residences, however, the distance between the proposed project and these homes is approximately 130 feet (across CA-18) and would be screened and buffered by new trees” (p. 11).

However, the IS/MND’s evaluation of the Project’s potential health risk impacts, as well as the subsequent less-than-significant impact conclusion, is incorrect for three reasons.

First, the IS/MND fails to quantitatively evaluate the Project’s construction-related and operational toxic air contaminant (“TAC”) emissions or make a reasonable effort to connect these emissions to potential health risk impacts posed to nearby existing sensitive receptors. This is incorrect, as construction of the proposed Project will produce emissions of diesel particulate matter (“DPM”) through the exhaust stacks of construction equipment over the entire construction period. Furthermore, the IS/MND indicates that the proposed land uses are expected to generate approximately 1,922 average daily vehicle trips, which will generate additional exhaust emissions and continue to expose nearby sensitive receptors to DPM emissions (pp. 299). However, the IS/MND fails to discuss the potential Project- generated TACs or indicate the concentrations at which such pollutants would trigger adverse health effects. Thus, without making a reasonable effort to connect the Project’s construction-related and operational TAC emissions to the potential health risks posed to nearby receptors, the IS/MND is inconsistent with CEQA’s requirement to correlate the increase in emissions generated by the Project with the potential adverse impacts on human health.

Third, the Office of Environmental Health Hazard Assessment (“OEHHA”), the organization responsible for providing guidance on conducting HRAs in California, released its most recent Risk Assessment Guidelines: Guidance Manual for Preparation of Health Risk Assessments in February 2015. 1 This
guidance document describes the types of projects that warrant the preparation of an HRA. The OEHHA

1 “Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available at: http://oehha.ca.gov/air/hot_spots/hotspots2015.html.

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3 document recommends that all short-term projects lasting at least two months be evaluated for cancer risks to nearby sensitive receptors. As the Project’s construction duration vastly exceeds the 2-month requirement set forth by OEHHA, it is clear that the Project meets the threshold warranting a quantified HRA under OEHHA guidance. Furthermore, the OEHHA document recommends that exposure from projects lasting more than 6 months be evaluated for the duration of the project and recommends that an exposure duration of 30 years be used to estimate individual cancer risk for the maximally exposed individual resident (“MEIR”). Even though we were not provided with the expected lifetime of the Project, we can reasonably assume that the Project will operate for at least 30 years, if not more.

Therefore, we recommend that health risk impacts from Project operation also be evaluated, as a 30- year exposure duration vastly exceeds the 6-month requirement set forth by OEHHA. These recommendations reflect the most recent state health risk policies, and as such, we recommend that an analysis of health risk impacts posed to nearby sensitive receptors from Project-generated DPM emissions be included in an EIR for the Project.

Fourth, by claiming a less than significant impact without conducting a quantified construction or operational HRA for nearby, existing sensitive receptors, the IS/MND fails to compare the excess health risk impact to the applicable SCAQMD threshold of 10 in one million and lacks evidence to support its conclusion that the cancer risk resulting from Project construction and operation would be under the threshold.
2 Thus, pursuant to CEQA, an analysis of the health risk posed to nearby, existing receptors from Project construction and operation should have been conducted.

Screening-Level Analysis Indicates a Potentially Significant Health Risk Impact In order to conduct our screening-level risk analysis we relied upon AERSCREEN, which is a screening level air quality dispersion model.3 The model replaced SCREEN3, and AERSCREEN is included in the OEHHA4 and the California Air Pollution Control Officers Associated (“CAPCOA”)5 guidance as the appropriate air dispersion model for Level 2 health risk screening analyses (“HRSAs”). A Level 2 HRSA utilizes a limited amount of site-specific information to generate maximum reasonable downwind concentrations of air contaminants to which nearby sensitive receptors may be exposed. If an unacceptable air quality hazard is determined to be possible using AERSCREEN, a more refined modeling approach is required prior to approval of the Project.

In an effort to estimate the Project’s construction-related and operational TAC emissions, we utilized CalEEMod.2016.3.2, as well as the Project-specific information provided by the IS/MND.6 CalEEMod provides recommended default values based on site-specific information, such as land use type,

2 “South Coast AQMD Air Quality Significance Thresholds.” SCAQMD, April 2019, available at:
http://www.aqmd.gov/docs/default-source/ceqa/handbook/scaqmd-air-quality-significance-thresholds.pdf. 3 U.S. EPA (April 2011) AERSCREEN Released as the EPA Recommended Screening Model, http://www.epa.gov/ttn/scram/guidance/clarification/20110411_AERSCREEN_Release_Memo.pdf 4 “Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available at: http://oehha.ca.gov/air/hot_spots/2015/2015GuidanceManual.pdf 5 CAPCOA (July 2009) Health Risk Assessments for Proposed Land Use Projects, http://www.capcoa.org/wp - content/uploads/2012/03/CAPCOA_HRA_LU_Guidelines_8-6-09.pdf. 6 CAPCOA (November 2017) CalEEMod User’s Guide, http://www.aqmd.gov/docs/default- source/caleemod/01_user-39-s-guide2016-3-2_15november2017.pdf?sfvrsn=4.

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4 meteorological data, total lot acreage, project type and typical equipment associated with project type.

In our model, we included 18,000-SF of “Grocery Store” and 60 spaces of “Parking Lot.” Furthermore, the IS/MND indicates that “[t]he project requires demolition of all existing buildings and structures on the property, including a single-family residence at 42175 Big Bear Boulevard (State Route 18)” (pp. 180). Review the 42175 Big Bear Boulevard residence demonstrates the property includes 2,442-SF of building surface area.7 Thus, we included 2,442-SF of demolition in the model. We also assumed that the Project would be located within Climate Zone 10.8 Furthermore, while Bear Valley Electric system serves Big Bear Lake, CalEEMod does not include Bear Valley Electric System as a default utility company.

Instead, we assumed the Project’s utilities would be provided by Southern California Edison, based on other land use development projects in Big Bear Lake.9 Finally, to account for MM AIR-1, we included the “Water Exposed Area” and “Reduce Vehicle Speed on Unpaved Roads” construction-related mitigation measures. All other values were left as default.

Using the annual PM10 exhaust estimates from SWAPE’s CalEEMod output files, we prepared a preliminary HRA estimating the health risk impacts posed to residential sensitive receptors as a result of the Project’s construction-related and operational TAC emissions. Consistent with recommendations set forth by OEHHA, we assumed residential exposure begins during the third trimester stage of life.

SWAPE’s updated CalEEMod model indicates that construction activities will generate approximately 25 pounds of DPM over the default 172-day construction period. The AERSCREEN model relies on a continuous average emission rate to simulate maximum downward concentrations from point, area, and volume emission sources. To account for the variability in equipment usage and truck trips over Project construction, we calculated an average DPM emission rate by the following equation:

𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸 𝑅𝑅𝑅𝑅𝑅𝑅𝑅𝑅 �𝑔𝑔𝑔𝑔
𝑅𝑅𝐸𝐸
𝐸𝐸
𝐸𝐸𝑅𝑅𝑠𝑠𝐸𝐸
𝐸𝐸𝑠𝑠� = 24.7 𝑙𝑙𝑙𝑙𝐸𝐸
1 72 𝑠𝑠 𝑅𝑅 𝑑𝑑𝐸𝐸 × 453.6 𝑔𝑔𝑔𝑔𝑅𝑅𝐸𝐸 𝐸𝐸
𝑙𝑙𝑙𝑙𝐸𝐸 × 1 𝑠𝑠 𝑅𝑅 𝑑𝑑
24 ℎ𝐸𝐸𝑜𝑜𝑔𝑔 𝐸𝐸 × 1 ℎ𝐸𝐸 𝑜𝑜𝑔𝑔
3 ,600 𝐸𝐸 𝑅𝑅𝑠𝑠𝐸𝐸 𝐸𝐸𝑠𝑠𝐸𝐸 = 𝟎𝟎. 𝟎𝟎𝟎𝟎𝟎𝟎𝟎𝟎𝟎𝟎𝟎𝟎 𝒈𝒈/𝒔𝒔
Using this equation, we estimated a construction emission rate of 0.000754 grams per second (“g/s”).

Subtracting the 172-day construction period from the total residential duration of 30 years, we assumed that after Project construction, the sensitive receptor would be exposed to the Project’s operational DPM for an additional 29.53 years, approximately. SWAPE’s operational CalEEMod emissions indicate that operational activities will generate approximately 22 pounds of DPM per year throughout operation. Applying the same equation used to estimate the construction DPM rate, we estimated the following emission rate for Project operation:

𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸 𝑅𝑅𝑅𝑅𝑅𝑅𝑅𝑅 �𝑔𝑔𝑔𝑔𝑅𝑅𝐸𝐸
𝐸𝐸
𝐸𝐸𝑅𝑅𝑠𝑠𝐸𝐸
𝐸𝐸𝑠𝑠� = 22.2 𝑙𝑙𝑙𝑙 𝐸𝐸
3 65 𝑠𝑠 𝑅𝑅 𝑑𝑑𝐸𝐸 × 453.6 𝑔𝑔𝑔𝑔𝑅𝑅𝐸𝐸 𝐸𝐸
𝑙𝑙𝑙𝑙𝐸𝐸 × 1 𝑠𝑠 𝑅𝑅 𝑑𝑑
24 ℎ𝐸𝐸 𝑜𝑜𝑔𝑔 𝐸𝐸 × 1 ℎ𝐸𝐸 𝑜𝑜𝑔𝑔
3 ,600 𝐸𝐸 𝑅𝑅𝑠𝑠𝐸𝐸 𝐸𝐸𝑠𝑠𝐸𝐸 = 𝟎𝟎. 𝟎𝟎𝟎𝟎𝟎𝟎𝟎𝟎𝟎𝟎𝟎𝟎 𝒈𝒈/𝒔𝒔

7 “42175 Big Bear Blvd, Big Bear City, CA 92315.” Zillow, available at: https://www.zillow.com/homedetails/42175- Big-Bear-Blvd-Big-Bear-City-CA-92315/17389920_zpid/.
8 “Appendix F Climate Zones Lookup.” CAPCOA, September 2016, available at:
http://www.aqmd.gov/docs/default-source/caleemod/upgrades/2016.3/07_appendix-f2016-3-1.pdf?sfvrsn=2, p.

F-17.
9 “Maple Hill Community Fields Project.” CEQA, March 2021, available at: https://files.ceqanet.opr.ca.gov/268575- 1/attachment/PQCjY7vlbgNiUvdXE1A3WxEintgi_AiUtJKGdGPdyf-t5XoTyzg5Nsn_F1xtuKAAo-s8qc2Lu0D4Dq4p0.

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5 Using this equation, we estimated an operational emission rate of 0.000319 g/s. Construction and operational activity was simulated as a 2.93-acre rectangular area source in AERSCREEN with dimensions of 150 by 79 meters. A release height of three meters was selected to represent the height of exhaust stacks on operational equipment and other heavy-duty vehicles, and an initial vertical dimension of one and a half meters was used to simulate instantaneous plume dispersion upon release. An urban meteorological setting was selected with model-default inputs for wind speed and direction distribution.

The AERSCREEN model generates maximum reasonable estimates of single-hour DPM concentrations from the Project site. EPA guidance suggests that in screening procedures, the annualized average concentration of an air pollutant be estimated by multiplying the single-hour concentration by 10%.10 According to the IS/MND, “the proposed development is bordered by two single-family residential parcels and at the southeast corner of the site” (p. 3). However, review of the AERSCREEN output files demonstrates that the maximally exposed individual resident (“MEIR”) is located approximately 75 meters from the Project site. Thus, the single-hour concentration estimated by AERSCREEN for Project construction is approximately 2.133 µg/m3 DPM at approximately 75 meters downwind. Multiplying this single-hour concentration by 10%, we get an annualized average concentration of 0.2133 µg/m3 for Project construction at the MEIR. For Project operation, the single-hour concentration estimated by AERSCREEN is 0.9038 µg/m3 DPM at approximately 75 meters downwind. Multiplying this single-hour concentration by 10%, we get an annualized average concentration of 0.09038 µg/m3 for Project operation at the MEIR.

We calculated the excess cancer risk to the MEIR using applicable HRA methodologies prescribed by OEHHA. Consistent with the 172-day construction schedule, the annualized average concentration for Project construction was used for the entire third trimester of pregnancy (0.25 years) and the first 0.22 years of the infantile stage of life (0 – 2 years); and the annualized averaged concentration for operation was used for the remainder of the 30-year exposure period, which makes remaining 1.78 years of the infantile stage of life, the entire child stage of life (2 – 16 years), and the entire the adult stage of life (16 – 30 years).

Consistent with OEHHA guidance and recommended by the SCAQMD, BAAQMD, and SJVAPCD guidance, we used Age Sensitivity Factors (“ASF”) to account for the heightened susceptibility of young children to

10 “Screening Procedures for Estimating the Air Quality Impact of Stationary Sources Revised.” EPA, 1992, available at: http://www.epa.gov/ttn/scram/guidance/guide/EPA-454R-92-019_OCR.pdf; see also “Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available at:
https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf p. 4-36.

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6 the carcinogenic toxicity of air pollution.11, 12, 13 According to this guidance, the quantified cancer risk should be multiplied by a factor of ten during the third trimester of pregnancy and during the first two years of life (infant), as well as multiplied by a factor of three during the child stage of life (2 – 16 years).

We also included the quantified cancer risk without adjusting for the heightened susceptibility of young children to the carcinogenic toxicity of air pollution in accordance with older OEHHA guidance from 2003. This guidance utilizes a less health protective scenario than what is currently recommended by SCAQMD, the air quality district with jurisdiction over the City, and several other air districts in the state.

Furthermore, in accordance with the guidance set forth by OEHHA, we used the 95th percentile breathing rates for infants.14 Finally, according to SCAQMD guidance, we used a Fraction of Time At Home (“FAH”) Value of 1 for the 3rd trimester and infant receptors.15 We used a cancer potency factor of

1.1 (mg/kg-day)-1 and an averaging time of 25,550 days. The results of our calculations are shown below.

11 “Draft Environmental Impact Report (DEIR) for the Proposed The Exchang e (SCH No. 2018071058).” SCAQMD, March 2019, available at: http://www.aqmd.gov/docs/default-source/ceqa/comment- letters/2019/march/RVC190115-03.pdf?sfvrsn=8, p. 4.
12 “California Environmental Quality Act Air Quality Guidelines.” BAAQMD, May 2017, available at:
http://www.baaqmd.gov/~/media/files/planning-and-research/ceqa/ceqa_guidelines_may2017-pdf.pdf?la=en, p. 56; see also “Recommended Methods for Screening and Modeling Local Risks and Hazards.” BAAQMD, May 2011, available at:
http://www.baaqmd.gov/~/media/Files/Planning%20and%20Research/CEQA/BAAQMD%20Modeling%20Approac h.ashx, p. 65, 86.
13 “Update to District’s Risk Management Policy to Address OEHHA’s Revised Risk Assessment Guidance Document.” SJVAPCD, May 2015, available at: https://www.valleyair.org/busind/pto/staff-report-5-28-15.pdf, p. 8, 20, 24.
14 “Supplemental Guidelines for Preparing Risk Assessments for the Air Toxics ‘Hot Spots’ Information and Assessment Act,” July 2018, available at: http://www.aqmd.gov/docs/default-source/planning/risk- assessment/ab2588supplementalguidelines.pdf, p. 16.
“Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available at: https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf

15 “Risk Assessment Procedures for Rules 1401, 1401.1, and 212.” SCAQMD, August 2017, available at:
http://www.aqmd.gov/docs/default-source/rule-book/Proposed- Rules/1401/riskassessmentprocedures_2017_080717.pdf, p. 7.

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7 The Maximum Exposed Individual at an Existing Residential Receptor (MEIR) Activity Duration
(years)
Concentration
(ug/m3)
Breathing
Rate (L/kg-
day)
Cancer Risk
without
ASFs*
ASF
Cancer
Risk with
ASFs*
Construction 0.25 0.2133 361 2.9E-07 10 2.9E-06
3rd Trimester
Duration 0.25 2.9E-07
3rd
Trimester
Exposure

2.9E-06
Construction 0.22 0.2133 1090 7.7E-07 10 7.7E-06
Operation 1.78 0.09038 1090 2.6E-06 10 2.6E-05
Infant Exposure
Duration 2.00 3.4E-06 Infant
Exposure 3.4E-05
Operation 14.00 0.09038 572 1.1E-05 3 3.3E-05
Child Exposure
Duration 14.00 1.1E-05 Child
Exposure 3.3E-05
Operation 14.00 0.09038 261 3.6E-06 1 3.6E-06
Adult Exposure
Duration 14.00 3.6E-06 Adult
Exposure 3.6E-06
Lifetime
Exposure
Duration

30.00 1.8E-05 Lifetime
Exposure 7.3E-05
* We, along with CARB and SCAQMD, recommend using the more updated and health protective 2015 OEHHA guidance, which includes ASFs.

As demonstrated in the table above, the estimated excess cancer risk to adults, children, infants, and during the 3rd trimester of pregnancy at the MEIR located approximately 75 meters away, over the course of Project construction and operation, utilizing ASFs, are approximately 3.6, 33, 34, and 2.9 in one million, respectively. The estimated excess cancer risk over the course of a residential lifetime (30 years), utilizing ASFs, is approximately 73 in one million. The estimated infant, child, and lifetime cancer risks exceed the SCAQMD threshold of 10 in one million, thus resulting in a potentially significant impact not previously addressed or identified by the IS/MND.

Utilizing ASFs is the most conservative, health-protective analysis according to the most recent guidance by OEHHA and reflects recommendations from the air district. Results without ASFs are presented in the table above, although we do not recommend utilizing these values for health risk analysis. Regardless, the estimated excess cancer risk to adults, children, infants, and during the 3rd trimester of pregnancy at the MEIR located approximately 75 meters away, over the course of Project construction and operation, without ASFs, are approximately 3.6, 11, 3.4, and 0.29 in one million, respectively. The estimated excess cancer risk over the course of a residential lifetime (30 years), without ASFs, is approximately 18 in one million. The estimated child and lifetime cancer risks exceed the SCAQMD threshold of 10 in one million, thus resulting in a potentially significant impact not previously addressed or identified by the IS/MND.

While we recommend the use of ASFs, the Project’s cancer risk without ASFs, as estimated by SWAPE, exceeds the SCAQMD threshold regardless.

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8 An agency must include an analysis of health risks that connects the Project’s air emissions with the health risk posed by those emissions. Our analysis represents a screening-level HRA, which is known to be conservative and tends to err on the side of health protection. 16 The purpose of the screening-level construction and operational HRA shown above is to demonstrate the link between the proposed Project’s emissions and the potential health risk. Our screening-level HRA demonstrates that construction and operation of the Project could result in a potentially significant health risk impact, when correct exposure assumptions and up-to-date, applicable guidance are used. Therefore, since our screening-level HRA indicates a potentially significant impact, the City should prepare a Project-specific EIR with an HRA which makes a reasonable effort to connect the Project’s air quality emissions and the potential health risks posed to nearby receptors. Thus, the City should prepare an updated, quantified air pollution model as well as an updated, quantified refined health risk analysis which adequately and accurately evaluates health risk impacts associated with both Project construction and operation.

Greenhouse Gas
Failure to Adequately Evaluate Greenhouse Gas Emissions Regarding the Project’s potential greenhouse gas (“GHG”) impact, the IS/MND states:
“While some particulate matter could be generated as a result of construction activities, mitigation measure MM AQ-1 would be followed to address dust control measures consistent with SCAB recommendations. Since the implementation of the project would not exceed the significance thresholds listed in Appendix A and comply with all applicable air quality plans. The impact would be less than significant” (p. 22).

Furthermore, the IS/MND concludes that the Project would result in a less-than-significant GHG impact based on the Project’s consistency with applicable GHG plans, policies, and regulations. Specifically, the IS/MND states:
“The proposed project would not conflict with any adopted plans, policies, or regulations implemented to reduce GHG emissions. Project-generated GHG emissions would not surpass GHG significance thresholds, therefore no impact would occur” (p. 22).

However, the IS/MND’s evaluation of the Project’s GHG impact, as well as the subsequent less-than- significant GHG impact conclusion, is incorrect for three reasons. (1) The IS/MND fails to evaluate or quantify the Project’s GHG emissions; (2) The IS/MND’s reliance on plans, policies, or regulations is unsupported; (3) SWAPE’s air model indicates a potentially significant GHG impact.

1) Failure to Quantify GHG Emissions
As previously stated, the IS/MND claims that the Project’s potential GHG emissions would not exceed significance thresholds (p. 22). However, the IS/MND fails to estimate the Project’s net annual GHG

16 “Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available at: https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf, p. 1-5 H95
9 emissions whatsoever. By failing to evaluate or quantify the Project’s potential GHG emissions, the Project is inconsistent with CEQA. Specifically, according to CEQA Guidelines § 15064.4(a):
“A lead agency shall make a good-faith effort, based on available information, to describe, calculate or estimate the amount of greenhouse gas emissions resulting from a project” (emphasis added).17
As you can see in the excerpt above, CEQA Guidelines require a Project to “describe, calculate, or estimate” the GHG emissions that would be generated by the Project. Here, by failing to evaluate or quantify the Project’s GHG emissions, the IS/MND is inconsistent with CEQA Guidelines and lacks evidence to support its conclusion that the Project emissions would not exceed the applicable significance thresholds. As such, the subsequent less-than-significant GHG impact determination should not be relied upon.
2) Unsupported Reliance on Plans, Policies, and Regulations As previously stated, the IS/MND concludes that the Project would result in a less-than-significant GHG impact based on the Project’s consistency with applicable plans, policies, or regulations implemented to reduce GHG emissions (p. 45). However, the IS/MND’s claim that the Project would not conflict with applicable plans, policies, or regulations is unsupported. Specifically, according to CEQA Guidelines § 15064.4(b)(3):
“In determining the significance of impacts, the lead agency may consider a project’s consistency with the State’s long-term climate goals or strategies, provided that substantial evidence supports the agency’s analysis of how those goals or strategies address the project’s incremental contribution to climate change and its conclusion that the project’s incremental contribution is not cumulatively considerable” (emphasis added). 18 Here, the IS/MND fails to mention which plans, policies, or regulations the Project is consistent with, or explain how the Project would be consistent with said plans. As such, the IS/MND fails to provide substantial evidence to support its claim that the Project would be consistent with applicable plans, policies, or regulations implemented to reduce GHG emissions. As a result, the Project’s GHG analysis is inconsistent with CEQA guidelines, and the subsequent less-than-significant impact conclusion is unsupported. An EIR should be prepared to adequately assess and mitigate the potential GHG impacts that the project may have on the surrounding environment. 3) SWAPE Model Indicates a Potentially Significant GHG Impact As previously stated, we prepared a CalEEMod model to estimate the Project’s emissions using CalEEMod.2016.3.2, as well as the Project-specific information provided by the IS/MND.19 To

17 “Final Adopted Text for Revisions to the CEQA Guidelines.” Governor’s Office of Planning and Research (“OPR”), available at: https://opr.ca.gov/ceqa/updates/guidelines/, p. 13. 18 “Final Adopted Text for Revisions to the CEQA Guidelines.” Governor’s Office of Planning and Research (“OPR”), available at: https://opr.ca.gov/ceqa/updates/guidelines/, p. 13-14. 19 CAPCOA (November 2017) CalEEMod User’s Guide, http://www.aqmd.gov/docs/default- source/caleemod/01_user-39-s-guide2016-3-2_15november2017.pdf?sfvrsn=4.

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10 quantitatively evaluate the Project’s estimated GHG emissions, we recommend that the Project apply Association of Environmental Professionals (“AEP”) “2030 Land Use Efficiency Threshold” of 2.6 metric tons of carbon dioxide equivalents per service population per year (“MT CO2e/SP/year”).20 In support of thresholds for the 2030 target, AEP guidance states:
“Once the state has a full plan for 2030 (which is expected in 2017), and then a project with a horizon between 2021 and 2030 should be evaluated based on a threshold using the 2030 target. A more conservative approach would be to apply a 2030 threshold based on SB 32 for any project with a horizon between 2021 and 2030 regardless of the status of the Scoping Plan Update” (emphasis added).21
As the California Air Resources Board (“CARB”) adopted California’s 2017 Climate Change Scoping Plan in November of 2017, the proposed Project “should be evaluated based on a threshold using the 2030 target,” according to the relevant guidance referenced above.

When applying the AEP “2030 Land Use Efficiency Threshold” of 2.6 MT CO2e/SP/year, SWAPE’s updated air model indicates a potentially significant GHG impact. The CalEEMod output files, modeled by SWAPE with Project-specific information, disclose the Project’s mitigated emissions, which include approximately 78 MT CO2e of total construction emissions and approximately 1,830 MT CO2e/year of net annual operational emissions (sum of area-, energy-, mobile-, waste-, and water-related emissions).

When amortizing the Project’s construction-related GHG emissions over a period of 30 years and summing them with the Project’s operational GHG emissions, we estimate net annual GHG emissions of approximately 1,832 MT CO2e/year. Furthermore, according to CAPCOA’s CEQA & Climate Change report, service population is defined as “the sum of the number of residents and the number of jobs supported by the project.”
22 The IS/MND estimates that the Project would employ approximately 40 people (p. 33). As the Project does not include any residential land uses, we estimate a service population of 40 people.23 When dividing the Project’s GHG emissions, as estimated by the IS/MND, by a service population of 40 people, we find that the Project would emit approximately 45.8 MT CO2e/SP/year (see table below).

20 “Beyond Newhall and 2020: A Field Guide to New CEQA Greenhouse Gas Thresholds and Climate Action Plan Targets for California.” Association of Environmental Professionals (AEP), October 2016, available at:
https://califaep.org/docs/AEP-2016_Final_White_Paper.pdf, p. 40. 21 “Beyond Newhall and 2020: A Field Guide to New CEQA Greenhouse Gas Thresholds and Climate Action Plan Targets for California.” Association of Environmental Professionals (AEP), October 2016, available at:
https://califaep.org/docs/AEP-2016_Final_White_Paper.pdf, p. 40. 22 CAPCOA (Jan. 2008) CEQA & Climate Change, p. 71-72, http://www.capcoa.org/wp- content/uploads/2012/03/CAPCOA-White-Paper.pdf.
23 Calculated: 0 residents + 40 employees = 40 service population.

H97
11 SWAPE Annual Greenhouse Gas Emissions
Project Phase Proposed Project
(MT CO2e/year)
Construction (amortized over 30 years) 2.59
Area 0.00
Energy 234.43
Mobile 1531.67
Waste 51.05
Water 12.50
Total 1,832.26
Service Population 40
Service Population Efficiency 45.8
Threshold 2.6
Exceed? Yes
As demonstrated above, when we compare the Project’s per service population GHG emissions, as estimated by SWAPE, to the AEP’s “2030 Land Use Efficiency Threshold” of 2.6 MT CO2e/SP/year, we find that the Project would result in a potentially significant GHG impact not previously identified or addressed by the IS/MND. Therefore, an updated GHG analysis should be prepared in an EIR and additional mitigation should be incorporated accordingly, per CEQA Guidelines.

Feasible Mitigation Measures Available to Reduce Emissions Our analysis demonstrates that the Project’s health risk and GHG emissions may result in significant impacts and should be mitigated further. In an effort to reduce the Project’s emissions, we identified several mitigation measures that are applicable to the proposed Project. Feasible mitigation measures can be found in CAPCOA’s Quantifying Greenhouse Gas Mitigation Measures.24 Therefore, to reduce the Project’s emissions, consideration of the following measures should be made:

CAPCOA’s Quantifying Greenhouse Gas Mitigation Measures25 Measures – Energy
Building Energy Use
Install Programmable Thermostat Timers
Obtain Third-party HVAC Commissioning and Verification of Energy Savings Alternative Energy Generation
Establish Onsite Renewable or Carbon-Neutral Energy Systems

24 http://www.capcoa.org/wp-content/uploads/2010/11/CAPCOA-Quantification-Report-9-14-Final.pdf 25 “Quantifying Greenhouse Gas Mitigation Measures.” California Air Pollution Control Officers Association (CAPCOA), August 2010, available at: http://www.capcoa.org/wp-content/uploads/2010/11/CAPCOA- Quantification-Report-9-14-Final.pdf, p.

H98
12 Establish Onsite Renewable Energy System – Solar Power Measures – Transportation
Land Use/Location
Increase Location Efficiency
Increase Destination Accessibility
Commute Trip Reduction Programs
Implement Commute Trip Reduction (CTR) Program – Voluntary • Carpooling encouragement
• Ride-matching assistance
• Preferential carpool parking
• Flexible work schedules for carpools
• Half time transportation coordinator
• Vanpool assistance
• Bicycle end-trip facilities (parking, showers and lockers) • New employee orientation of trip reduction and alternative mode options • Event promotions and publications
• Flexible work schedule for employees
• Transit subsidies
• Parking cash-out or priced parking
• Shuttles
• Emergency ride home
Implement Commute Trip Reduction (CTR) Program – Required Implementation/Monitoring • Established performance standards (e.g. trip reduction requirements) • Required implementation
• Regular monitoring and reporting
Provide Ride-Sharing Programs
• Designate a certain percentage of parking spaces for ride sharing vehicles • Designating adequate passenger loading and unloading and waiting areas for ride-sharing vehicles • Providing a web site or messaging board for coordinating rides • Permanent transportation management association membership and funding requirement.

Implement Preferential Parking Permit Program
Implement Car-Sharing Program
Provide Employer-Sponsored Vanpool/Shuttle
Implement Bike-Sharing Programs
Price Workplace Parking, such as:
• Explicitly charging for parking for its employees;
• Implementing above market rate pricing;
• Validating parking only for invited guests;
• Not providing employee parking and transportation allowances; and • Educating employees about available alternatives.

Implement Employee Parking “Cash-Out”
Vehicles
H99
13 Electrify Loading Docs and/or Require Idling-Reduction Systems Utilize Alternative Fueled Vehicles, such as:
• Biodiesel (B20)
• Liquefied Natural Gas (LNG)
• Compressed Natural Gas (CNG)
Utilize Electric or Hybrid Vehicles
Measures – Water
Water Supply
Use Reclaimed Water
Use Gray Water
Use Locally Sourced Water Supply
Water Use
Adopt a Water Conservation strategy
Design Water-Efficient Landscapes (see California Department of Water Resources Model Water Efficient Landscape Ordinance), such as:
• Reducing lawn sizes;
• Planting vegetation with minimal water needs, such as native species; • Choosing vegetation appropriate for the climate of the project site; • Choosing complimentary plants with similar water needs or which can provide each other with shade and/or water.

Use Water-Efficient Landscape Irrigation Systems (“Smart” irrigation control systems) Plant Native or Drought-Resistant Trees and Vegetation
Measures – Area Landscaping
Landscaping Equipment
Prohibit Gas Powered Landscape Equipment
Measures – Solid Waste
Solid Waste
Recycle Demolished Construction Material
Measures – Vegetation
Vegetation
Urban Tree Planting
Create New Vegetated Open Space
Measures – Construction
Construction
Use Alternative Fuels for Construction Equipment
Use Electric and Hybrid Construction Equipment
Institute a Heavy-Duty Off-Road Vehicle Plan, including:
• Construction vehicle inventory tracking system;
• Requiring hour meters on equipment;
H100
14 • Document the serial number, horsepower, manufacture age, fuel, etc. of all onsite equipment; and
• Daily logging of the operating hours of the equipment.

Implement a Construction Vehicle Inventory Tracking System Measures – Miscellaneous
Miscellaneous
Use Local and Sustainable Building Materials
Require Environmentally Responsible Purchasing, such as:
• Purchasing products with sustainable packaging;
• Purchasing post-consumer recycled copier paper, paper towels, and stationary; • Purchasing and stocking communal kitchens with reusable dishes and utensils; • Choosing sustainable cleaning supplies;
• Leasing equipment from manufacturers who will recycle the components at their end of life; • Choosing ENERGY STAR appliances and Water Sense-certified water fixtures; • Choosing electronic appliances with built in sleep-mode timers; • Purchasing ‘green power’ (e.g. electricity generated from renewable or hydropower) from the utility; and
• Choosing locally-made and distributed products.

Furthermore, in an effort to reduce the Project’s emissions, we identified several mitigation measures that are applicable to the proposed Project from NEDC’s Diesel Emission Controls in Construction Projects.26 Therefore, to reduce the Project’s emissions, consideration of the following measures should be made:

NEDC’s Diesel Emission Controls in Construction Projects27 Measures – Diesel Emission Control Technology
a. Diesel Onroad Vehicles
All diesel nonroad vehicles on site for more than 10 total days must have either (1) engines that meet EPA onroad emissions standards or (2) emission control technology verified by EPA or CARB to reduce PM emissions by a minimum of 85%.
b. Diesel Generators
All diesel generators on site for more than 10 total days must be equipped with emission control technology verified by EPA or CARB to reduce PM emissions by a minimum of 85%. c. Diesel Nonroad Construction Equipment
i. All nonroad diesel engines on site must be Tier 2 or higher. Tier 0 and Tier 1 engines are not allowed on site

26 “Diesel Emission Controls in Construction Projects.” Northeast Diesel Collaborative (NEDC), December 2010, available at: https://www.epa.gov/sites/production/files/2015-09/documents/nedc-model-contract- sepcification.pdf.
27 “Diesel Emission Controls in Construction Projects.” Northeast Diesel Collaborative (NEDC), December 2010, available at: https://www.epa.gov/sites/production/files/2015-09/documents/nedc-model-contract- sepcification.pdf.

H101
15 ii. All diesel nonroad construction equipment on site for more than 10 total days must have either (1) engines meeting EPA Tier 4 nonroad emission standards or (2) emission control technology verified by EPA or CARB for use with nonroad engines to reduce PM emissions by a minimum of 85% for engines 50hp and greater and by a minimum of 20% for engines less than 50hp. d. Upon confirming that the diesel vehicle, construction equipment, or generator has either an engine meeting Tier 4 non road emission standards or emission control technology, as specified above, installed and functioning, the developer will issue a compliance sticker. All diesel vehicles, construction equipment, and generators on site shall display the compliance sticker in a visible, external location as designated by the developer.
e. Emission control technology shall be operated, maintained, and serviced as recommended by the emission control technology manufacturer.

Measures – Additional Diesel Requirements
a. Construction shall not proceed until the contractor submits a certified list of all diesel vehicles, construction equipment, and generators to be used on site. The list shall include the following:
i. Contractor and subcontractor name and address, plus contact person responsible for the vehicles or equipment.
ii. Equipment type, equipment manufacturer, equipment serial number, engine manufacturer, engine model year, engine certification (Tier rating), horsepower, engine serial number, and expected fuel usage and hours of operation.
iii. For the emission control technology installed: technology type, serial number, make, model, manufacturer, EPA/CARB verification number/level, and installation date and hour-meter reading on installation date.
b. If the contractor subsequently needs to bring on site equipment not on the list, the contractor shall submit written notification within 24 hours that attests the equipment complies with all contract conditions and provide information.
c. All diesel equipment shall comply with all pertinent local, state, and federal regulations relative to exhaust emission controls and safety.
d. The contractor shall establish generator sites and truck-staging zones for vehicles waiting to load or unload material on site. Such zones shall be located where diesel emissions have the least impact on abutters, the general public, and especially sensitive receptors such as hospitals, schools, daycare facilities, elderly housing, and convalescent facilities.

Reporting
a. For each onroad diesel vehicle, nonroad construction equipment, or generator, the contractor shall submit to the developer’s representative a report prior to bringing said equipment on site that includes:
i. Equipment type, equipment manufacturer, equipment serial number, engine manufacturer, engine model year, engine certification (Tier rating), horsepower, and engine serial number. ii. The type of emission control technology installed, serial number, make, model, manufacturer, and EPA/CARB verification number/level.
iii. The Certification Statement signed and printed on the contractor’s letterhead. b. The contractor shall submit to the developer’s representative a monthly report that, for each onroad diesel vehicle, nonroad construction equipment, or generator onsite, includes:
i. Hour-meter readings on arrival on-site, the first and last day of every month, and on off-site date. ii. Any problems with the equipment or emission controls. iii. Certified copies of fuel deliveries for the time period that identify:

1. Source of supply

2. Quantity of fuel

3. Quality of fuel, including sulfur content (percent by weight) H102
16 These measures offer a cost-effective, feasible way to incorporate lower-emitting design features into the proposed Project, which subsequently, reduce emissions released during Project construction and operation. An EIR should be prepared to include all feasible mitigation measures, as well as include an updated health risk and GHG analysis to ensure that the necessary mitigation measures are implemented to reduce emissions to below thresholds. The EIR should also demonstrate a commitment to the implementation of these measures prior to Project approval, to ensure that the Project’s significant emissions are reduced to the maximum extent possible.

Disclaimer
SWAPE has received limited discovery regarding this project. Additional information may become available in the future; thus, we retain the right to revise or amend this report when additional information becomes available. Our professional services have been performed using that degree of care and skill ordinarily exercised, under similar circumstances, by reputable environmental consultants practicing in this or similar localities at the time of service. No other warranty, expressed or implied, is made as to the scope of work, work methodologies and protocols, site conditions, analytical testing results, and findings presented. This report reflects efforts which were limited to information that was reasonably accessible at the time of the work, and may contain informational gaps, inconsistencies, or otherwise be incomplete due to the unavailability or uncertainty of information obtained or provided by third parties.

Sin
cerely,
Ma
tt Hagemann, P.G., C.Hg.

Pa
ul E. Rosenfeld, Ph.D.

Attachment A:

Attachment B:

Attachment C:

SWAPE Health Risk Calculations
SWAPE Project CalEEMod Modeling
SWAPE Project AERSCREEN Modeling
Attachment D: Paul Rosenfeld CV
Attachment E: Matt Hagemann CV
H103
Comments on the 6445
Sunset Boulevard Project
(SHC No. 2022030272)
(Apr. 11, 2022)
H104

2656 29th Street, Suite 201
Santa Monica, CA 90405
Matt Hagemann, P.G, C.Hg.
(949) 887-9013
[email protected]
Paul E. Rosenfeld, PhD
(310) 795-2335
[email protected]
April 11, 2022

Amalia Bowley Fuentes
Lozeau | Drury LLP
1939 Harrison Street, Suite 150
Oakland, CA 94618
Subject: Commen ts on the 6445 Sunset Boulevard Project (SHC No. 2022030272) Dear Ms. Fuentes,
We have reviewed the February 2022 Initial Study / Negative Declaration (“IS/ND”) for the 6445 Sunset Boulevard Project (“Project”) located in the City of Los Angeles (“City”). The Project proposes to demolish the existing buildings and construct a 175-room hotel, 11,400-square-feet (“SF”) of restaurant space, and 68 parking spaces on the 0.23-acre site.

Our review concludes that the IS/ND fails to adequately evaluate the Project’s hazards and hazardous materials, air quality, health risk, and greenhouse gas impacts. As a result, emissions and health risk impacts associated with construction and operation of the proposed Project are underestimated and inadequately addressed. An Environmental Impact Report (“EIR”) should be prepared to adequately assess and mitigate the potential hazards and hazardous materials, air quality, health risk, and greenhouse gas impacts that the project may have on the environment.

Hazards and Hazardous Materials
Inadequate Due Diligence to Determine Impacts
The IS/ND did not include a Phase I Environmental Site Assessment (“ESA”) for the Project site.

Therefore, a determination of potential significant impacts from hazards and hazardous materials lacks basis.

Potential Project impacts should be assessed in a Phase I ESA for inclusion in an EIR. Phase I ESAs are typically included in CEQA documentation to identify hazardous waste issues that may pose a risk to the public, workers, or the environment, and which may require further investigation, including environmental sampling and cleanup.

Comment Letter No. 4
Meridian Consultants
289-001-20
6445 Sunset
August 2022
H105
2 Standards for performing a Phase I ESA have been established by the US EPA and the American Society for Testing and Materials Standards (“ASTM”).1 Phase I ESAs are conducted to identify conditions indicative of releases of hazardous substances and include:
x a review of all known sites in the vicinity of the subject property that are on regulatory agency databases undergoing assessment or cleanup activities;
x an inspection;
x interviews with people knowledgeable about the property; and x recommendations for further actions to address potential hazards.

Phase I ESAs conclude with the identification of any “recognized environmental conditions” (“RECs”) and recommendations to address such conditions. A REC is the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum products into structures on the property or into the ground, groundwater, or surface water of the property. If RECs are identified, then a Phase II ESA is generally conducted, which includes the collection of soil, soil vapor and groundwater samples, as necessary, to identify the extent of contamination and the need for cleanup to reduce exposure potential to the public.

Consistent with common professional practice, a Phase I ESA, completed by a qualified professional, is necessary for inclusion in an EIR to identify any RECs at the Project site. A Phase II ESA should be conducted if the Phase I indicates a REC. Contamination that is identified above regulatory screening levels, including California Office of Environmental Health Hazard Assessment’s Soil Screening Numbers2, should be further evaluated and cleaned up, if necessary, in coordination with the Department of Toxics Substances Control.

Air Quality
Unsubstantiated Input Parameters Used to Estimate Project Emissions The air quality analysis provided in the IS/ND relies on emissions calculated with CalEEMod.2016.3.2 (p. 28).3 CalEEMod provides recommended default values based on site-specific information, such as land use type, meteorological data, total lot acreage, project type and typical equipment associated with project type. If more specific project information is known, the user can change the default values and input project-specific values, but the California Environmental Quality Act (“CEQA”) requires that such changes be justified by substantial evidence. Once all of the values are inputted into the model, the Project's construction and operational emissions are calculated, and "output files" are generated. These output files disclose to the reader what parameters are utilized in calculating the Project's air pollutant emissions and make known which default values are changed as well as provide justification for the values selected.

1 http://www.astm.org/Standards/E1527.htm
2 https://dtsc.ca.gov/wp-content/uploads/sites/31/2019/04/HHRA-Note-3-June-2020-A.pdf 3 “CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
http://www.aqmd.gov/caleemod/user's-guide.

Comment Letter No. 4
Meridian Consultants
289-001-20
6445 Sunset
August 2022
H106
3 When reviewing the Project’s CalEEMod output files, provided in the Air Quality Modeling Data (“AQ Report”) as Appendix A to the IS/ND, we found that several model inputs were not consistent with information disclosed in the IS/ND. As a result, the Project’s construction and operational emissions are underestimated. An EIR should be prepared to include an updated air quality analysis that adequately evaluates the impacts that construction and operation of the Project will have on local and regional air quality.

Unsubstantiated Changes to Individual Construction Phase Lengths Review of the CalEEMod output files demonstrates that the “6445 Sunset Boulevard Hotel” model includes several changes to the default individual construction phase lengths (see excerpt below) (Appendix A, pp. 3, 26).

As a result of these changes, the model includes the following construction schedule (see excerpt below) (Appendix A, pp. 6, 28):

As you can see from the excerpt above, the demolition phase is increased by 120%, from the default value of 10 to 22 days; the grading phase is increased by 2,100%, from the default value of 2 to 44 days; the building construction phase is increased by 318%, from the default value of 100 to 418 days; the architectural coating phase is increased by 780%, from the default value of 5 to 44 days; and the paving phase is increased by 340%, from the default value of 5 to 22 days. As previously mentioned, the CalEEMod User’s Guide requires any changes to model defaults be justified.4 According to the “User Entered Comments & Non-Default Data” table, the justification provided for these changes is:
“Construction schedule per applicant” (Appendix A, pp. 2, 24). 4 “CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
https://www.aqmd.gov/caleemod/user's-guide, p. 1, 14.

Comment Letter No. 4
Meridian Consultants
289-001-20
6445 Sunset
August 2022
H107
4 Furthermore, regarding the Project’s anticipated construction schedule, the IS/ND states:
“The Project would be constructed over approximately 22 months with completion expected in 2024. The construction period would include sub-phases of site demolition, excavation and grading, foundations, and building construction” (p. 21).

However, these justifications are insufficient. While the IS/ND indicates the total construction duration, the IS/ND fails to mention or justify the individual construction phase lengths. This is incorrect, as according to the CalEEMod User’s Guide:
“CalEEMod was also designed to allow the user to change the defaults to reflect site- or project- specific information, when available, provided that the information is supported by substantial evidence as required by CEQA.” 5
Here, as the IS/ND only justifies the total construction duration of 22 months, the IS/ND fails to provide substantial evidence to support the revised individual construction phase lengths. As such, we cannot verify the changes.

These unsubstantiated changes present an issue, as the construction emissions are improperly spread out over a longer period of time for some phases, but not for others. According to the CalEEMod User’s Guide, each construction phase is associated with different emissions activities (see excerpt below).6

Thus, by disproportionately altering and extending some of the individual construction phase lengths without proper justification, the model assumes there are a greater number of days to complete the construction activities required by the prolonged phases. As such, there will be less construction activities required per day and, consequently, less pollutants emitted per day. As a result, the model may underestimate the peak daily emissions associated with some phases of construction and should not be relied upon to determine Project significance.

5 “CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
https://www.aqmd.gov/caleemod/user's-guide, p. 13-14.
6 “CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
https://www.aqmd.gov/caleemod/user's-guide, p. 32.

Comment Letter No. 4
Meridian Consultants
289-001-20
6445 Sunset
August 2022
H108
5 Unsubstantiated Reduction to Number of Worker Trips
Review of the CalEEMod output files demonstrates that the “6445 Sunset Boulevard Hotel” model includes a manual reduction to the number of construction-related worker trips (see excerpt below) (Appendix A, pp. 176, 191, 206-207).

As previously mentioned, the CalEEMod User’s Guide requires any changes to model defaults be justified.7 According to the “User Entered Comments & Non-Default Data” table, the justification provided for these changes is:
“Per traffic study: Max of 27 worker vehicles during construction” (Appendix A, pp. 3, 25).

Furthermore, according to the Transportation Assessment (“TA”), provided as Appendix C to the IS/ND:
“In addition, a maximum of 30 construction workers would work at the Project Site during this phase. Assuming minimal carpooling amongst those workers, an average vehicle occupancy (AVO) of 1.135 persons per vehicle was applied, as provided in CEQA Air Quality Handbook (South Coast Air Quality Management District, 1993). Therefore, 30 workers would result in a total of 27 vehicles (or 54 trips) to and from the Project Site on a daily basis” (p. 80).

As demonstrated above, the TA indicates that Project construction would generate 54 worker trips, as a result of 27 worker vehicles. As such, the number of worker trips included in model should have been 54 trips. However, the model incorrectly includes the number of vehicles rather than the number of actual trips. As a result, the number of worker trips is underestimated in the model and inconsistent with the information provided by the TA.

This underestimation presents an issue, as CalEEMod uses the worker trip numbers to estimate the construction-related emissions associated with on-road vehicles.8 By underestimating the number of worker trips, the model underestimates the Project’s mobile-source construction-related emissions and should not be relied upon to determine Project significance.

Incorrect Application of Tier 3 Mitigation
Review of the CalEEMod output files demonstrates that the “6445 Sunset Boulevard Hotel” model assumes that the Project’s off-road construction equipment fleet would meet Tier 3 emissions standards (see excerpt below) (Appendix A, pp. 3, 4, 25, 26).
7 “CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
https://www.aqmd.gov/caleemod/user's-guide, p. 1, 14.
8 CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
https://www.aqmd.gov/caleemod/user's-guide, p. 35.

Comment Letter No. 4
Meridian Consultants
289-001-20
6445 Sunset
August 2022
H109
6 As previously mentioned, the CalEEMod User’s Guide requires any changes to model defaults be justified.9 According to the “User Entered Comments and Non-Default Data” table, the justification provided for the inclusion of Tier 3 mitigation is:
“As recommended by SCAQMD, alternative applicable strategies include construction equipment with Tier 3 emissions standards” (Appendix A, pp. 5, 25).

However, the inclusion of Tier 3 emissions standards remains unsupported. The IS/ND not only fails to mention or discuss the use of Tier 3 emissions standards during Project construction, but also fails to explicitly require the use of Tier 3 emissions standards through a formal mitigation measure. This is incorrect, as according to the Association of Environmental Professionals (“AEP”) CEQA Portal Topic Paper on mitigation measures:
“While not ‘mitigation’, a good practice is to include those project design feature(s) that address environmental impacts in the mitigation monitoring and reporting program (MMRP). Often the MMRP is all that accompanies building and construction plans through the permit process. If the design features are not listed as important to addressing an environmental impact, it is easy for someone not involved in the original environmental process to approve a change to the project 9 CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
https://www.aqmd.gov/caleemod/user's-guide, p. 1, 13-14.

Comment Letter No. 4
Meridian Consultants
289-001-20
6445 Sunset
August 2022
H110
7 that could eliminate one or more of the design features without understanding the resulting environmental impact” (emphasis added).10
As you can see in the excerpt above, measures that are not formally included in the mitigation monitoring and reporting program (“MMRP”) may be eliminated from the Project’s design altogether.

Thus, as the use of Tier 3 construction equipment is not formally included as a mitigation measure, we cannot guarantee that this measure would be implemented, monitored, and enforced on the Project site. Thus, the model’s assumption that the off-road construction equipment fleet would meet Tier 3 emissions standards is incorrect.

Incorrect Application of Construction-Related Mitigation Measures Review of the CalEEMod output files demonstrates that the “6445 Sunset Boulevard Hotel” model includes the following construction-related mitigation measures (see excerpt below) (Appendix A, pp. 8, 30):

As a result, the model includes an unpaved road vehicle speed of 15 miles per hour (“MPH”) (see excerpt below) (Appendix A, pp. 3, 25).

As previously mentioned, the CalEEMod User’s Guide requires any changes to model defaults be justified.11 However the “User Entered Comments & Non-Default Data” table fails to provide a justification for the inclusion of these measures. Furthermore, the IS/ND states:
“Construction would comply with the SCAQMD’s Rule 403 (Fugitive Dust), which requires watering of the site during dust-generating construction activities, stabilizing disturbed areas with water or chemical stabilizers, and preventing track-out dust from construction vehicles” (p. 31).

However, the inclusion of the above-mentioned construction-related mitigation measures is unsupported. SCAQMD Rule 403 alone does not justify the inclusion of the above-mentioned construction-related mitigation measures in the model. Specifically, according to SCAQMD Rule 403, 10 “CEQA Portal Topic Paper Mitigation Measures.” AEP, February 2020, available at:
https://ceqaportal.org/tp/CEQA%20Mitigation%202020.pdf, p. 6. 11 CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
https://www.aqmd.gov/caleemod/user's-guide, p. 2, 9
Comment Letter No. 4
Meridian Consultants
289-001-20
6445 Sunset
August 2022
H111
8 Projects can either water unpaved roads 3 times per day, water unpaved roads 1 time per day and limit vehicle speeds to 15 mph, or apply a chemical stabilizer (see excerpt below).12 As you can see in the above excerpt, to simply comply with SCAQMD Rule 403, the Project may either water unpaved roads 3 times per day, water unpaved roads 1 time per day and limit vehicle speeds to 15 mph, or apply a chemical stabilizer. Thus, the “Water Exposed Area” and “Reduce Vehicle Speed on Unpaved Roads” measures are not both explicitly required by SCAQMD Rule 403 and should therefore not be included in the model. By incorrectly including several construction-related mitigation measures without properly committing to their implementation, the model may underestimate the Project’s construction-related emissions and should not be relied upon to determine Project significance.

Incorrect Application of Area-Related Operational Mitigation Measures Review of the CalEEMod output files demonstrates that the “6445 Sunset Boulevard Hotel” model includes the following area-related operational mitigation measures (see excerpt below) (Appendix A, pp. 21, 43):

Furthermore, the “6445 Sunset Boulevard Hotel” model includes an additional area-related operational mitigation measure associated with the parking land uses (see excerpt below) (Appendix A, pp. 3, 25):
12 “RULE 403. FUGITIVE DUST.” SCAQMD, June 2005, available at: http://www.aqmd.gov/docs/default-source/rule- book/rule-iv/rule-403.pdf, p. 403-21, Table 2.

Comment Letter No. 4
Meridian Consultants
289-001-20
6445 Sunset
August 2022
H112
9 As previously mentioned, the CalEEMod User’s Guide requires any changes to model defaults be justified.13 However the “User Entered Comments & Non-Default Data” table fails to provide a justification for the inclusion of these measures. Furthermore, the IS/ND fails to mention or discuss the use of low VOC paints whatsoever. Thus, the inclusion of the above-mentioned area-related operational mitigation measures is unsubstantiated. By incorrectly including several operational mitigation measures, the model overestimates the reduction to the Project’s operational emissions and should not be relied upon to determine Project significance.

Failure to Provide Annual CalEEMod Output Files
As previously discussed, the IS/ND’s air quality analysis relies on emissions calculated by CalEEMod.2016.3.2 (p. 28).14 CalEEMod provides three types of output files – annual, summer, and winter. Specifically, the CalEEMod User’s Guide states:
“The available reports include: Annual, Summer (peak) Daily, Winter (peak) Daily, Mitigation and Summary of peak daily emissions and annual GHG emissions.”15 Furthermore, the CalEEMod User’s Guide states:
“CalEEMod provides a simple platform to calculate both construction emissions and operational emissions from a land use project. It can calculate both the daily maximum and annual average for criteria pollutants as well as annual greenhouse gas (GHG) emissions.”16 As demonstrated above, the CalEEMod annual output files provide average yearly criteria air pollutant and greenhouse gas (“GHG”) emissions estimates. However, review of the Project’s CalEEMod output files, provided in the AQ Report as Appendix A to the IS/ND, demonstrates that the annual CalEEMod output files are not included. As such, we cannot evaluate the annual diesel particulate matter (“DPM”) or GHG emissions associated with Project construction or operation. Thus, there is a gap in the IS/ND’s environmental analysis and the IS/ND should not be relied upon to determine Project significance. An EIR should be prepared to include an adequate air quality analysis and disclose all CalEEMod output files.

Diesel Particulate Matter Health Risk Emissions Inadequately Evaluated The IS/ND concludes that the Project would have a less-than-significant health risk impact without conducting a quantified construction or operational health risk analysis (“HRA”) (p. 31 – 32). Regarding the health risk impacts associated with the Project construction, the IS/ND states:

13 “CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
https://www.aqmd.gov/caleemod/user's-guide, p. 1, 14.
14 “CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
https://www.aqmd.gov/caleemod/user's-guide.
15 “CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
https://www.aqmd.gov/caleemod/user's-guide, p. 61.
16 “CalEEMod User’s Guide.” California Air Pollution Control Officers Association (CAPCOA), May 2021, available at:
https://www.aqmd.gov/caleemod/user's-guide, p. 1.

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10 “Project construction would result in short-term emissions of diesel particulate matter, which is a Toxic Air Contaminant (TAC). Off-road heavy-duty diesel equipment would emit diesel particulate matter over the course of the construction period. Localized diesel particulate emissions (strongly correlated with PM2.5 emissions) would be minimal and would be substantially below localized thresholds, as shown in Table 4.3-3. Project compliance with the California Air Resources Board (CARB) anti-idling measure, which limits idling to no more than 5 minutes at any location for diesel-fueled commercial vehicles, would further minimize diesel particulate matter emissions in the Project Area” (p. 32).

As demonstrated above, the IS/ND concludes a less-than-significant health risk impact during Project construction because localized diesel particulate emissions would be below thresholds and the Project would comply with CARB’s anti-idling measure. Furthermore, regarding the health risk impacts associated with the Project operation, the IS/ND states:
“Project operations would generate only minor amounts of diesel emissions from delivery trucks and incidental maintenance activities. Trucks would comply with the applicable provisions of the CARB Truck and Bus regulation to minimize and reduce emission from existing diesel trucks. In addition, Project operations would only result in minimal emissions of air toxics from maintenance or other ongoing activities, such as from the use of architectural coatings or cleaning products.

The Project is not a land use that uses, stores, or processes carcinogenic or non-carcinogenic toxic air contaminants in sufficient quantities and duration to pose a risk to human health nor does it involve frequent and numerous truck activity. As a result, toxic or carcinogenic air pollutants are not expected to occur in any meaningful amounts in conjunction with operation of the proposed uses within the Project Site. Based on the uses expected on the Project Site, potential long-term operational impacts associated with the release of TACs would be minimal and would not be expected to exceed the SCAQMD thresholds of significance” (p. 32).

As demonstrated above, the IS/ND concludes a less-than-significant health risk impact during Project operation because the Project would not involve frequent truck trips or include land uses that generate substantial amounts of toxic air contaminant (“TAC”) emissions. However, the IS/ND’s evaluation of the Project’s potential health risk impacts, as well as the subsequent less-than-significant impact conclusion, is incorrect for four reasons.

First, the IS/ND’s claim that “[l]ocalized diesel particulate emissions (strongly correlated with PM2.5 emissions) would be minimal and would be substantially below localized thresholds” is insufficient (p. 32). The use of an LST analysis to determine the health risk impacts posed to nearby, existing sensitive receptors as a result of the Project’s construction-related TAC emissions is incorrect. While the LST method assesses the impact of pollutants at a local level, it only evaluates impacts from criteria air pollutants. According to the Final Localized Significance Threshold Methodology document prepared by the SCAQMD, the LST analysis is only applicable to NO
x, CO, PM10, and PM2.5 emissions, which are
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11 collectively referred to as criteria air pollutants.17 Because the LST method can only be applied to criteria air pollutants, this method cannot be used to determine whether emissions from TACs, specifically DPM, a known human carcinogen, would result in a significant health risk impact to nearby sensitive receptors. As a result, health impacts from exposure to TACs, such as DPM, were not analyzed, thus leaving a gap in the IS/ND’s analysis.

Second, by failing to prepare a quantified construction and operational HRA, the IS/ND is inconsistent with CEQA’s requirement to correlate the increase in emissions that the Project would generate to the adverse impacts on human health caused by those emissions.18 This is incorrect, as construction of the proposed Project will produce DPM emissions through the exhaust stacks of construction equipment over a total construction duration of 22 months (p. 21). Furthermore, the proposed land uses are expected to generate 141 daily vehicle trips during operation, which will generate additional exhaust emissions and continue to expose nearby sensitive receptors to DPM emissions (Appendix C, pp. 72).

However, the IS/ND fails to evaluate the potential Project-generated TACs or indicate the concentrations at which such pollutants would trigger adverse health effects. Thus, without making a reasonable effort to connect the Project’s construction-related and operational TAC emissions to the potential health risks posed to nearby receptors, the IS/ND is inconsistent with CEQA’s requirement to correlate the increase in emissions generated by the Project with the potential adverse impacts on human health.

Third, the Office of Environmental Health Hazard Assessment (“OEHHA”), the organization responsible for providing guidance on conducting HRAs in California, released its most recent Risk Assessment Guidelines: Guidance Manual for Preparation of Health Risk Assessments in February 2015.19 This guidance document describes the types of projects that warrant the preparation of an HRA. The OEHHA document recommends that all short-term projects lasting at least two months be evaluated for cancer risks to nearby sensitive receptors. As the Project’s construction duration exceeds the 2-month requirement set forth by OEHHA, it is clear that the Project meets the threshold warranting a quantified HRA under OEHHA guidance. Furthermore, the OEHHA document recommends that exposure from projects lasting more than 6 months be evaluated for the duration of the project and recommends that an exposure duration of 30 years be used to estimate individual cancer risk for the maximally exposed individual resident (“MEIR”). Even though we were not provided with the expected lifetime of the Project, we can reasonably assume that the Project will operate for at least 30 years, if not more.

Therefore, we recommend that health risk impacts from Project operation also be evaluated, as a 30- year exposure duration vastly exceeds the 6-month requirement set forth by OEHHA. These recommendations reflect the most recent state health risk policies, and as such, we recommend that an

17 “Final Localized Significance Threshold Methodology.” SCAQMD, Revised July 2008, available at:
http://www.aqmd.gov/docs/default-source/ceqa/handbook/localized-significance-thresholds/final-lst- methodology-document.pdf.
18 “Sierra Club v. County of Fresno.” Supreme Court of California, December 2018, available at:
https://ceqaportal.org/decisions/1907/Sierra%20Club%20v.%20County%20of%20Fresno.pdf. 19 “Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available at: http://oehha.ca.gov/air/hot_spots/hotspots2015.html Comment Letter No. 4
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12 analysis of health risk impacts posed to nearby sensitive receptors from Project-generated DPM emissions be included in an EIR for the Project.

Fourth, by claiming a less than significant impact without conducting a quantified construction or operational HRA for nearby, existing sensitive receptors, the IS/ND fails to compare the excess health risk impact to the SCAQMD’s specific numeric threshold of 10 in one million. 20 Thus, in accordance with the most relevant guidance, an assessment of the health risk posed to nearby, existing receptors from Project construction and operation should have been conducted.

Screening-Level Analysis Indicates a Potentially Significant Health Risk Impact In order to conduct our screening-level risk assessment we relied upon AERSCREEN, which is a screening level air quality dispersion model.21 The model replaced SCREEN3, and AERSCREEN is included in the OEHHA22 and the California Air Pollution Control Officers Associated (“CAPCOA”)23 guidance as the appropriate air dispersion model for Level 2 health risk screening assessments (“HRSAs”). A Level 2 HRSA utilizes a limited amount of site-specific information to generate maximum reasonable downwind concentrations of air contaminants to which nearby sensitive receptors may be exposed. If an unacceptable air quality hazard is determined to be possible using AERSCREEN, a more refined modeling approach is required prior to approval of the Project.

In an effort to more accurately estimate the Project’s construction-related and operational emissions, we prepared an updated CalEEMod model, using the Project-specific information provided by the IS/ND.

In our updated model, we proportionally adjusted the individual construction phase lengths to match the proposed construction duration of 22 months, included the correct number of worker trips, and excluded the incorrect Tier 3, construction-related, and area-related operational mitigation measures.24 Because the IS/ND fails to provide the Project’s annual CalEEMod output files, we prepared a preliminary HRA of the Project’s construction and operational health risk impact to residential sensitive receptors using the annual PM10 exhaust estimates from SWAPE’s CalEEMod output files.

Consistent with recommendations set forth by OEHHA, we assumed residential exposure begins during the third trimester stage of life. SWAPE’s CalEEMod model indicates that construction activities will generate approximately 150 pounds of DPM over the 675-day construction period.25 The AERSCREEN model relies on a continuous average emission rate to simulate maximum downward concentrations from point, area, and volume emission sources. To account for the variability in equipment usage and

20 “South Coast AQMD Air Quality Significance Thresholds.” SCAQMD, April 2019, available at:
http://www.aqmd.gov/docs/default-source/ceqa/handbook/scaqmd-air-quality-significance-thresholds.pdf. 21 U.S. EPA (April 2011) AERSCREEN Released as the EPA Recommended Screening Model, http://www.epa.gov/ttn/scram/guidance/clarification/20110411_AERSCREEN_Release_Memo.pdf 22 OEHHA (February 2015) Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments, https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf. 23 CAPCOA (July 2009) Health Risk Assessments for Proposed Land Use Projects, http://www.capcoa.org/wp- content/uploads/2012/03/CAPCOA_HRA_LU_Guidelines_8-6-09.pdf. 24 See Attachment B for updated air modeling.
25 See Attachment C for calculations.

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13 truck trips over Project construction, we calculated an average DPM emission rate by the following equation:
݊݋݅ݏݏ݅݉ܧ ݁ݐܴܽ ݏ݉ܽݎ݃
݀݊݋ܿ݁ݏቁ = 150.2 ݏܾ݈
675 ݏݕܽ݀× 453.6 ݏ݉ܽݎ݃
ݏܾ݈× 1 ݕܽ݀
24 ݏݎݑ݋݄× 1 ݎݑ݋݄
3,600 ݏ݀݊݋ܿ݁ݏ= ૙. ૙૙૚૚ૠ ࢍ/࢙
Using this equation, we estimated a construction emission rate of 0.00117 grams per second (“g/s”).

Subtracting the 675-day construction period from the total residential duration of 30 years, we assumed that after Project construction, the sensitive receptor would be exposed to the Project’s operational DPM for an additional 28.15 years. SWAPE’s operational CalEEMod emissions indicate that operational activities will generate approximately 54 pounds of DPM per year throughout operation. Applying the same equation used to estimate the construction DPM rate, we estimated the following emission rate for Project operation:
݊݋݅ݏݏ݅݉ܧ ݁ݐܴܽ ݏ݉ܽݎ݃
݀݊݋ܿ݁ݏቁ = 53.6 ݏܾ݈
365 ݏݕܽ݀× 453.6 ݏ݉ܽݎ݃
ݏܾ݈× 1 ݕܽ݀
24 ݏݎݑ݋݄× 1 ݎݑ݋݄
3,600 ݏ݀݊݋ܿ݁ݏ= ૙. ૙૙૙ૠૠ૚ ࢍ/࢙

Using this equation, we estimated an operational emission rate of 0.00446 g/s. Construction and operation were simulated as a 0.23-acre rectangular area source in AERSCREEN, with approximate dimensions of 43- by 22-meters. A release height of three meters was selected to represent the height of stacks of operational equipment and other heavy-duty vehicles, and an initial vertical dimension of one and a half meters was used to simulate instantaneous plume dispersion upon release. An urban meteorological setting was selected with model-default inputs for wind speed and direction distribution.

The population of Los Angeles was obtained from U.S. 2020 Census data.26 The AERSCREEN model generates maximum reasonable estimates of single-hour DPM concentrations from the Project Site. EPA guidance suggests that in screening procedures, the annualized average concentration of an air pollutant to be estimated by multiplying the single-hour concentration by 10%.27 According to the IS/ND, the nearest sensitive receptors are located 265 feet, or approximately 80 meters from the Project site (p. 31). Thus, the single-hour concentration estimated by AERSCREEN for Project construction is approximately 2.260 μg/m3 DPM at approximately 75 meters downwind. Multiplying this single-hour concentration by 10%, we get an annualized average concentration of 0.2260 μg/m3 for Project construction at the MEIR. For Project operation, the single-hour concentration estimated by AERSCREEN is 1.491 μg/m3 DPM at approximately 75 meters downwind. Multiplying this single-hour concentration by 10%, we get an annualized average concentration of 0.1491 μg/m3 for Project operation at the MEIR.

We calculated the excess cancer risk to the MEIR using applicable HRA methodologies prescribed by OEHHA, as recommended by SCAQMD.28 Consistent with the 675-day construction schedule, the

26 “Los Angeles.” U.S. Census Bureau, 2020, available at: https://datacommons.org/place/geoId/0644000. 27 “Screening Procedures for Estimating the Air Quality Impact of Stationary Sources Revised.” U.S. EPA, October 1992, available at: http://www.epa.gov/ttn/scram/guidance/guide/EPA-454R-92-019_OCR.pdf. 28 “Supplemental Guidelines for Submission of Rule 1200 Health Risk Assessments (HRAs).” SDAPCD, July 2019, available at:

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14 annualized average concentration for construction was used for the entire third trimester of pregnancy (0.25 years) and the first 1.6 years of the infantile stage of life (0 – 2 years). The annualized average concentration for operation was used for the remainder of the 30-year exposure period, which makes up the latter 0.4 years of the infantile stage of life, the entire child stage of life (2 – 16 years), and the entire adult stage of life (16 – 30 years).

Consistent with OEHHA guidance, as recommended by SCAQMD, we used Age Sensitivity Factors (“ASF(s)”) to account for the heightened susceptibility of young children to the carcinogenic toxicity of air pollution.29 According to this guidance, the quantified cancer risk should be multiplied by a factor of 10 during the third trimester of pregnancy and during the first two years of life (infant) as well as multiplied by a factor of 3 during the child stage of life (2 – 16 years). Furthermore, in accordance with guidance set forth by OEHHA, we used the 95th percentile breathing rates for children from the 3rd trimester through age 2.30 Finally, consistent with SCAQMD and OEHHA guidance, we used a Fraction of Time At Home (“FAH”) Value of 1 for the 3rd trimester, infant, and child receptors, and a value of 0.73 for the adult receptors.31 We used a cancer potency factor of 1.1 (mg/kg-day)-1 and an averaging time of 25,550 days. The results of our calculations are shown in the tables below.

https://www.sandiegocounty.gov/content/dam/sdc/apcd/PDF/Toxics_Program/APCD_1200_Supplemental_Guidel ines.pdf.
29 “Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available at: https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf. 30 “AB 2588 and Rule 1402 Supplemental Guidelines (Supplemental Guidelines for Preparing Risk Assessments for the Air Toxics ‘Hot Spots’ Information and Assessment Act).” SCAQMD, October 2020, available at:
http://www.aqmd.gov/docs/default-source/planning/risk-assessment/ab2588-risk-assessment- guidelines.pdf?sfvrsn=6, p. 19; see also:” Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available at: https://oehha.ca.gov/media/downloads/crnr/2015 guidancemanual.pdf.
31 “Risk Assessment Procedures for Rules 1401, 1401.1, and 212.” SCAQMD, September 2017, available at:
http://www.aqmd.gov/docs/default-source/permitting/rule-1401-risk-assessment/riskassessproc-v8-

1.pdf?sfvrsn=12, p. 7.

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15 The Maximally Exposed Individual at an Existing Residential Receptor Age Group Emissions
Source
Duration
(years)
Concentration
(ug/m3)
Breathing
Rate (L/kg-day)
Cancer Risk
(without ASFs*) ASF Cancer Risk
(with ASFs*)
3rd Trimester Construction 0.25 0.2260 361 3.07E-07 10 3.07E-06 Construction 1.60 0.2260 1090 5.94E-06
Operation 0.40 0.1491 1090 9.81E-07
Infant
(Age 0 - 2) Total 2 6.92E-06 10 6.92E-05
Child
(Age 2 - 16) Operation 14 0.1491 572 1.80E-05 3 5.40E-05 Adult
(Age 16 - 30) Operation 14 0.1491 261 5.99E-06 1 5.99E-06 Lifetime 30 3.12E-05 1.32E-04
As demonstrated in the table above, the excess cancer risks for the 3rd trimester of pregnancy, infants, children, and adults at the MEIR located approximately 75 meters away, over the course of Project construction and operation, utilizing ASFs, are approximately 3.07, 69.2, 54.0, and 5.99 in one million, respectively. The excess cancer risk over the course of a residential lifetime (30 years), utilizing ASFs, is approximately 132 in one million. The infant, child, and lifetime cancer risks exceed the SCAQMD threshold of 10 in one million, thus resulting in a potentially significant impact not previously addressed or identified by the IS/ND.

Utilizing ASFs is the most conservative, health-protective analysis according to the most recent guidance by OEHHA and reflects recommendations from the air district. Results without ASFs are presented in the table above, although we do not recommend utilizing these values for health risk analysis. Regardless, the excess cancer risks for the 3rd trimester of pregnancy, infants, children, and adults at the MEIR located approximately 75 meters away, over the course of Project construction and operation, without ASFs, are approximately 0.307, 6.92, 18.0, and 5.99 in one million, respectively. The excess cancer risk over the course of a residential lifetime, without ASFs, is approximately 31.2 in one million. The child and lifetime cancer risks exceed the SCAQMD threshold of 10 in one million, thus resulting in a potentially significant impact not previously addressed or identified. While we recommend the use of ASFs, the Project’s cancer risk without ASFs, as estimated by SWAPE, exceeds the SCAQMD threshold regardless, thus resulting in a potentially significant impact not previously addressed or identified by the IS/ND.

An agency must include an analysis of health risks that connects the Project’s air emissions with the health risk posed by those emissions. Our analysis represents a screening-level HRA, which is known to be conservative and tends to err on the side of health protection. The purpose of the screening-level construction and operational HRA shown above is to demonstrate the link between the proposed Comment Letter No. 4
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16 Project’s emissions and the potential health risk. Our screening-level HRA demonstrates that construction and operation of the Project could result in a potentially significant health risk impact, when correct exposure assumptions and up-to-date, applicable guidance are used. Thus, an EIR should be prepared, including a quantified air pollution model as well as an updated, quantified refined health risk assessment which adequately and accurately evaluates and mitigates health risk impacts associated with both Project construction and operation.

Greenhouse Gas
Failure to Adequately Evaluate Greenhouse Gas Impacts
The IS/ND relies upon Project consistency with SCAG’S 2020 – 2045 Regional Transportation Plan/Sustainable Communities Strategy (“RTP/SCS”) in order to conclude a less-than-significant greenhouse gas (“GHG”) impact (p. 47, 48). Specifically, the IS/ND indicates the Project would be consistent with the strategies defined in SCAG’S 2020 – 2045 RTP/SCS (p. 48, Table 4.8-1).

As a result, the IS/ND concludes:
“In addition to the above, the Project would be consistent with the planned land use for the Hollywood Community Plan area. The Project would also be designed and built to comply with Title 24 Part 6, and the LA Green Building Code. Furthermore, the Project is an infill development served by existing public transit. As such, the Project would not conflict with an applicable plan, policy, or regulation for the purposes of reducing the emissions of GHGs.

Impacts would be less than significant” (p. 48).

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17 However, the IS/ND’s analysis, as well as the subsequent less-than-significant impact conclusion, is incorrect for two reasons.
(1) SWAPE’s quantitative analysis indicates a potentially significant GHG impact; (2) The IS/ND fails to consider the performance-based standards under SCAG’s RTP/SCS.

1) Quantitative Analysis Indicates a Potentially Significant GHG Impact In an effort to quantitatively evaluate the Project’s GHG impacts, we compared the Project’s GHG emissions, as estimated by SWAPE, to the SCAQMD 2035 efficiency target of 3.0 metric tons of carbon dioxide equivalents per service population per year (“MT CO2e/SP/year”), which was calculated by applying a 40% reduction to the 2020 targets.32 When applying this threshold, SWAPE’s air model indicates a potentially significant GHG impact.

According to CAPCOA’s CEQA & Climate Change report, a service population (“SP”) is defined as “the sum of the number of residents and the number of jobs supported by the project.”33 According to the IS/ND, the Project will employ 133 people during operation (p. 66). As the Project does not include any residential land uses, we estimate a SP of 133 people.34 The updated CalEEMod output files disclose the Project’s mitigated emissions, which include approximately 456 MT CO2e of total construction emissions (sum of 2022 and 2023) and approximately 2,427 MT CO2e/year of annual operational emissions (sum of area-, energy-, mobile-, waste-, and water-related emissions). When amortizing the Project’s construction-related GHG emissions over a period of 30 years and summing them with the Project’s operational GHG emissions, we estimate net annual GHG emissions of approximately 2,442 MT CO2e/year. When dividing the Project’s net annual GHG emissions, as estimated by SWAPE, by a SP of 133 people, we find that the Project would emit approximately 18.4 MT CO2e/SP/year (see table below).35

32 “Minutes for the GHG CEQA Significance Threshold Stakeholder Working Group #15.” SCAQMD, September 2010, available at: http://www.aqmd.gov/docs/default-source/ceqa/handbook/greenhouse-gases-(ghg)-ceqa- significance-thresholds/year-2008-2009/ghg-meeting-15/ghg-meeting-15-minutes.pdf, p. 2. 33 CAPCOA (Jan. 2008) CEQA & Climate Change, p. 71-72, http://www.capcoa.org/wp- content/uploads/2012/03/CAPCOA-White-Paper.pdf.
34 Calculated: 0 residents + 133 employees = 133 total SP. 35 Calculated: (2,223 MT CO2e/year) / (72 service population) = (30.875 MT CO2e/SP/year).

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18 SWAPE Annual Greenhouse Gas Emissions
Project Phase Proposed Project
Total Construction 456.11
Construction (amortized over 30 years) 15.20
Area 0.01
Energy 844.03
Mobile 1,393.70
Waste 116.41
Water 72.59
Annual Operational 2,426.74
Total Net Annual GHG Emissions (MT CO2e/year) 2,441.94
Service Population 133
Service Population Efficiency (MT CO2e/SP/year) 18.4
SCAQMD 2035 Target 3.0
Exceeds? Yes
As demonstrated above, the Project’s service population efficiency value, as estimated as estimated by SWAPE, exceeds the SCAQMD 2035 efficiency target of 3.0 MT CO2e/SP/year, thus resulting in a significant impact not previously addressed or mitigated in the IS/ND. As a result, the IS/ND’s less-than- significant GHG impact conclusion should not be relied upon. An EIR should be prepared, including an updated GHG analysis and incorporating additional mitigation measures to reduce the Project’s GHG emissions to less-than-significant levels.
2) Failure to Consider Performance-based Standards under SCAG’s RTP/SCS As previously discussed, the IS/ND concludes that the Project would be consistent with SCAG’s RTP/SCS (p. 85-87). However, the IS/ND fails to consider whether or not the Project meets any of the specific performance-based goals underlying SCAG’s RTP/SCS and SB 375, such as: i) per capita GHG emission targets, or ii) daily vehicles miles traveled (“VMT”) per capita benchmarks. i. SB 375 Per Capita GHG Emission Goals
SB 375 was signed into law in September 2008 to enhance the state’s ability to reach AB 32 goals by directing CARB to develop regional 2020 and 2035 GHG emission reduction targets for passenger vehicles (autos and light-duty trucks). In March 2018, CARB adopted updated regional targets requiring a 19 percent decrease in VMT for the SCAG region by 2035. This goal is reflected in SCAG’s 2020 RTP/SCS Program Environmental Impact Report (“PEIR”), in which the 2020 RTP/SCS PEIR updates the per capita emissions to 18.8 lbs/day in 2035 (see excerpt below). 36

36 “Connect SoCal Certified Final Program Environmental Impact Report.” SCAG, May 2020, available at:
https://scag.ca.gov/sites/main/files/file-attachments/fpeir_connectsocal_complete.pdf?1607981618, p. 3.8-74.

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19 As the IS/ND fails to evaluate the Project’s consistency with the SCAG’s per capita emissions, the IS/ND’s claim that the proposed Project would not conflict with SCAG’s RTP/SCS is unsupported. An EIR should be prepared for the proposed Project to provide additional information and analysis to conclude less- than-significant GHG impacts.
ii. SB 375 RTP/SCS Daily VMT Per Capita Target
Under the SCAG’s 2020 RTP/SCS, daily VMT per capita in the SCAG region should decrease from 23.2 VMT in 2016 to 20.7 VMT by 2045.37 Daily VMT per capita in Los Angeles County should decrease from

22.2 to 19.2 VMT during that same period.38 Here, however, the IS/ND fails to consider any of the above-mentioned performance-based VMT targets. As the IS/ND fails to evaluate the Project’s consistency with the SCAG’s performance-based daily VMT per capita projections, the IS/ND’s claim that the proposed Project would not conflict with SCAG’s RTP/SCS is unsupported. An EIR should be prepared for the proposed Project to provide additional information and analysis to conclude less-than-significant GHG impacts.

Feasible Mitigation Measures Available to Reduce Emissions Our analysis demonstrates that the Project would result in potentially significant health risk and GHG impacts that should be mitigated further. As such, in an effort to reduce the Project’s emissions, we identified several mitigation measures that are applicable to the proposed Project. Therefore, to reduce the Project’s emissions, we recommend consideration of SCAG’s 2020 RTP/SCS PEIR’s Air Quality Project Level Mitigation Measures (“PMM-AQ-1”) and Greenhouse Gas Project Level Mitigation Measures (“PMM-GHG-1”), as described below: 39
37 “Connect SoCal.” SCAG, September 2020, available at: https://scag.ca.gov/sites/main/files/file- attachments/0903fconnectsocal-plan_0.pdf?1606001176, pp. 138. 38 “Connect SoCal.” SCAG, September 2020, available at: https://scag.ca.gov/sites/main/files/file- attachments/0903fconnectsocal-plan_0.pdf?1606001176, pp. 138. 39 “4.0 Mitigation Measures.” Connect SoCal Program Environmental Impact Report Addendum #1, September 2020, available at: https://scag.ca.gov/sites/main/files/file- Comment Letter No. 4
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20 SCAG RTP/SCS 2020-2045
Air Quality Project Level Mitigation Measures – PMM-AQ-1:

In accordance with provisions of sections 15091(a)(2) and 15126.4(a)(1)(B) of the State CEQA Guidelines, a Lead Agency for a project can and should consider mitigation measures to reduce substantial adverse effects related to violating air quality standards. Such measures may include the following or other comparable measures identified by the Lead Agency:
a) Minimize land disturbance.
b) Suspend grading and earth moving when wind gusts exceed 25 miles per hour unless the soil is wet enough to prevent dust plumes.
c) Cover trucks when hauling dirt.
d) Stabilize the surface of dirt piles if not removed immediately. e) Limit vehicular paths on unpaved surfaces and stabilize any temporary roads. f) Minimize unnecessary vehicular and machinery activities. g) Sweep paved streets at least once per day where there is evidence of dirt that has been carried on to the roadway.
h) Revegetate disturbed land, including vehicular paths created during construction to avoid future off-road vehicular activities.
j) Require contractors to assemble a comprehensive inventory list (i.e., make, model, engine year, horsepower, emission rates) of all heavy-duty off-road (portable and mobile) equipment (50 horsepower and greater) that could be used an aggregate of 40 or more hours for the construction project. Prepare a plan for approval by the applicable air district demonstrating achievement of the applicable percent reduction for a CARB-approved fleet.
k) Ensure that all construction equipment is properly tuned and maintained. l) Minimize idling time to 5 minutes—saves fuel and reduces emissions. m) Provide an operational water truck on-site at all times. Use watering trucks to minimize dust; watering should be sufficient to confine dust plumes to the project work areas. Sweep paved streets at least once per day where there is evidence of dirt that has been carried on to the roadway. n) Utilize existing power sources (e.g., power poles) or clean fuel generators rather than temporary power generators.
o) Develop a traffic plan to minimize traffic flow interference from construction activities. The plan may include advance public notice of routing, use of public transportation, and satellite parking areas with a shuttle service.

Schedule operations affecting traffic for off-peak hours. Minimize obstruction of through-traffic lanes. Provide a flag person to guide traffic properly and ensure safety at construction sites. p) As appropriate require that portable engines and portable engine-driven equipment units used at the project work site, with the exception of on-road and off-road motor vehicles, obtain CARB Portable Equipment Registration with the state or a local district permit. Arrange appropriate consultations with the CARB or the District to determine registration and permitting requirements prior to equipment operation at the site. q) Require projects within 500 feet of residences, hospitals, or schools to use Tier 4 equipment for all engines above 50 horsepower (hp) unless the individual project can demonstrate that Tier 4 engines would not be required to mitigate emissions below significance thresholds.

attachments/fpeir_connectsocal_addendum_4_mitigationmeasures.pdf?1606004420, p. 4.0-2 – 4.0-10; 4.0-19 –

4.0-23; See also: “Certified Final Connect SoCal Program Environmental Impact Report.” Southern California Association of Governments (SCAG), May 2020, available at: https://scag.ca.gov/peir.

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21 r) Projects located within the South Coast Air Basin should consider applying for South Coast AQMD “SOON” funds which provides funds to applicable fleets for the purchase of commercially available low-emission heavy- duty engines to achieve near-term reduction of NOx emissions from in-use off-road diesel vehicles. s) Projects located within AB 617 communities should review the applicable Community Emissions Reduction Plan (CERP) for additional mitigation that can be applied to individual projects. u) Projects should work with local cities and counties to install adequate signage that prohibits truck idling in certain locations (e.g., near schools and sensitive receptors). z) Develop an ongoing monitoring, inspection, and maintenance program for the MERV filters. aa) Consult the SCAG Environmental Justice Toolbox for potential measures to address impacts to low-income and/or minority communities.
bb) The following criteria related to diesel emissions shall be implemented on by individual project sponsors as appropriate and feasible:
- Diesel nonroad vehicles on site for more than 10 total days shall have either (1) engines that meet EPA on road emissions standards or (2) emission control technology verified by EPA or CARB to reduce PM emissions by a minimum of 85%
- Diesel generators on site for more than 10 total days shall be equipped with emission control technology verified by EPA or CARB to reduce PM emissions by a minimum of 85%. - Nonroad diesel engines on site shall be Tier 2 or higher. - Diesel nonroad construction equipment on site for more than 10 total days shall have either (1) engines meeting EPA Tier 4 nonroad emissions standards or (2) emission control technology verified by EPA or CARB for use with nonroad engines to reduce PM emissions by a minimum of 85% for engines for 50 hp and greater and by a minimum of 20% for engines less than 50 hp. - Emission control technology shall be operated, maintained, and serviced as recommended by the emission control technology manufacturer.
- Diesel vehicles, construction equipment, and generators on site shall be fueled with ultra-low sulfur diesel fuel (ULSD) or a biodiesel blend approved by the original engine manufacturer with sulfur content of 15 ppm or less.
- The construction contractor shall maintain a list of all diesel vehicles, construction equipment, and generators to be used on site. The list shall include the following:
i. Contractor and subcontractor name and address, plus contact person responsible for the vehicles or equipment.
ii. Equipment type, equipment manufacturer, equipment serial number, engine manufacturer, engine model year, engine certification (Tier rating), horsepower, engine serial number, and expected fuel usage and hours of operation.
iii. For the emission control technology installed: technology type, serial number, make, model, manufacturer, EPA/CARB verification number/level, and installation date and hour-meter reading on installation date.
- The contractor shall establish generator sites and truck-staging zones for vehicles waiting to load or unload material on site. Such zones shall be located where diesel emissions have the least impact on abutters, the general public, and especially sensitive receptors such as hospitals, schools, daycare facilities, elderly housing, and convalescent facilities. - The contractor shall maintain a monthly report that, for each on road diesel vehicle, nonroad construction equipment, or generator onsite, includes:
i. Hour-meter readings on arrival on-site, the first and last day of every month, and on off-site date.
ii. Any problems with the equipment or emission controls. iii. Certified copies of fuel deliveries for the time period that identify:

1. Source of supply

2. Quantity of fuel

3. Quantity of fuel, including sulfur content (percent by weight) cc) Project should exceed Title-24 Building Envelope Energy Efficiency Standards (California Building Standards Code). The following measures can be used to increase energy efficiency:

Comment Letter No. 4
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22 - Provide pedestrian network improvements, such as interconnected street network, narrower roadways and shorter block lengths, sidewalks, accessibility to transit and transit shelters, traffic calming measures, parks and public spaces, minimize pedestrian barriers. - Provide traffic calming measures, such as:
i. Marked crosswalks
ii. Count-down signal timers
iii. Curb extensions iv. Speed tables
iv. Raised crosswalks
v. Raised intersections
vi. Median islands
vii. Tight corner radii
viii. Roundabouts or mini-circles
ix. On-street parking
x. Chicanes/chokers
- Create urban non-motorized zones
- Provide bike parking in non-residential and multi-unit residential projects - Dedicate land for bike trails
- Limit parking supply through:
i. Elimination (or reduction) of minimum parking requirements ii. Creation of maximum parking requirements
iii. Provision of shared parking
- Require residential area parking permit.
- Provide ride-sharing programs
i. Designate a certain percentage of parking spacing for ride sharing vehicles ii. Designating adequate passenger loading and unloading and waiting areas for ride-sharing vehicles
iii. Providing a web site or messaging board for coordinating rides iv. Permanent transportation management association membership and finding requirement.

Greenhouse Gas Project Level Mitigation Measures – PMM-GHG-1 In accordance with provisions of sections 15091(a)(2) and 15126.4(a)(1)(B) of the State CEQA Guidelines, a Lead Agency for a project can and should consider mitigation measures to reduce substantial adverse effects related to violating air quality standards. Such measures may include the following or other comparable measures identified by the Lead Agency:
b) Reduce emissions resulting from projects through implementation of project features, project design, or other measures, such as those described in Appendix F of the State CEQA Guidelines. c) Include off-site measures to mitigate a project’s emissions. d) Measures that consider incorporation of Best Available Control Technology (BACT) during design, construction and operation of projects to minimize GHG emissions, including but not limited to:
i. Use energy and fuel-efficient vehicles and equipment; ii. Deployment of zero- and/or near zero emission technologies; iii. Use lighting systems that are energy efficient, such as LED technology; iv. Use the minimum feasible amount of GHG-emitting construction materials; v. Use cement blended with the maximum feasible amount of flash or other materials that reduce GHG emissions from cement production;
vi. Incorporate design measures to reduce GHG emissions from solid waste management through encouraging solid waste recycling and reuse;
vii. Incorporate design measures to reduce energy consumption and increase use of renewable energy;
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23 viii. Incorporate design measures to reduce water consumption; ix. Use lighter-colored pavement where feasible;
x. Recycle construction debris to maximum extent feasible; xi. Plant shade trees in or near construction projects where feasible; and xii. Solicit bids that include concepts listed above.
e) Measures that encourage transit use, carpooling, bike-share and car-share programs, active transportation, and parking strategies, including, but not limited to the following:
i. Promote transit-active transportation coordinated strategies; ii. Increase bicycle carrying capacity on transit and rail vehicles; iii. Improve or increase access to transit;
iv. Increase access to common goods and services, such as groceries, schools, and day care; v. Incorporate affordable housing into the project;
vi. Incorporate the neighborhood electric vehicle network; vii. Orient the project toward transit, bicycle and pedestrian facilities; viii. Improve pedestrian or bicycle networks, or transit service; ix. Provide traffic calming measures;
x. Provide bicycle parking;
xi. Limit or eliminate park supply;
xii. Unbundle parking costs;
xiii. Provide parking cash-out programs;
xiv. Implement or provide access to commute reduction program; f) Incorporate bicycle and pedestrian facilities into project designs, maintaining these facilities, and providing amenities incentivizing their use; and planning for and building local bicycle projects that connect with the regional network;
g) Improving transit access to rail and bus routes by incentives for construction and transit facilities within developments, and/or providing dedicated shuttle service to transit stations; and h) Adopting employer trip reduction measures to reduce employee trips such as vanpool and carpool programs, providing end-of-trip facilities, and telecommuting programs including but not limited to measures that:
i. Provide car-sharing, bike sharing, and ride-sharing programs; ii. Provide transit passes;
iii. Shift single occupancy vehicle trips to carpooling or vanpooling, for example providing ride- matching services;
iv. Provide incentives or subsidies that increase that use of modes other than single-occupancy vehicle;
v. Provide on-site amenities at places of work, such as priority parking for carpools and vanpools, secure bike parking, and showers and locker rooms;
vi. Provide employee transportation coordinators at employment sites; vii. Provide a guaranteed ride home service to users of non-auto modes. i) Designate a percentage of parking spaces for ride-sharing vehicles or high-occupancy vehicles, and provide adequate passenger loading and unloading for those vehicles; j) Land use siting and design measures that reduce GHG emissions, including:
i. Developing on infill and brownfields sites;
ii. Building compact and mixed-use developments near transit; iii. Retaining on-site mature trees and vegetation, and planting new canopy trees; Comment Letter No. 4
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24 iv. Measures that increase vehicle efficiency, encourage use of zero and low emissions vehicles, or reduce the carbon content of fuels, including constructing or encouraging construction of electric vehicle charging stations or neighborhood electric vehicle networks, or charging for electric bicycles; and
v. Measures to reduce GHG emissions from solid waste management through encouraging solid waste recycling and reuse.
k) Consult the SCAG Environmental Justice Toolbox for potential measures to address impacts to low-income and/or minority communities. The measures provided above are also intended to be applied in low income and minority communities as applicable and feasible.
l) Require at least five percent of all vehicle parking spaces include electric vehicle charging stations, or at a minimum, require the appropriate infrastructure to facilitate sufficient electric charging for passenger vehicles and trucks to plug-in.
m) Encourage telecommuting and alternative work schedules, such as:
i. Staggered starting times
ii. Flexible schedules
iii. Compressed work weeks
n) Implement commute trip reduction marketing, such as:
i. New employee orientation of trip reduction and alternative mode options ii. Event promotions
iii. Publications
o) Implement preferential parking permit program
p) Implement school pool and bus programs
q) Price workplace parking, such as:
i. Explicitly charging for parking for its employees;
ii. Implementing above market rate pricing;
iii. Validating parking only for invited guests;
iv. Not providing employee parking and transportation allowances; and v. Educating employees about available alternatives.

These measures offer a cost-effective, feasible way to incorporate lower-emitting design features into the proposed Project, which subsequently, reduce criteria air pollutant emissions released during Project construction and operation.

Furthermore, as it is policy of the State that eligible renewable energy resources and zero-carbon resources supply 100% of retail sales of electricity to California end-use customers by December 31, 2045, we emphasize the applicability of incorporating solar power system into the Project design. Until the feasibility of incorporating on-site renewable energy production is considered to reduce the Project’s GHG emissions, the IS/ND should not be approved.

An EIR should be prepared to include all feasible mitigation measures, as well as include updated health risk and GHG analyses to ensure that the necessary mitigation measures are implemented to reduce emissions to below thresholds. The EIR should also demonstrate a commitment to the implementation of these measures prior to Project approval, to ensure that the Project’s significant emissions are reduced to the maximum extent possible.

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25 Disclaimer
SWAPE has received limited discovery regarding this project. Additional information may become available in the future; thus, we retain the right to revise or amend this report when additional information becomes available. Our professional services have been performed using that degree of care and skill ordinarily exercised, under similar circumstances, by reputable environmental consultants practicing in this or similar localities at the time of service. No other warranty, expressed or implied, is made as to the scope of work, work methodologies and protocols, site conditions, analytical testing results, and findings presented. This report reflects efforts which were limited to information that was reasonably accessible at the time of the work, and may contain informational gaps, inconsistencies, or otherwise be incomplete due to the unavailability or uncertainty of information obtained or provided by third parties.

Sincerely,
Matt Hagemann, P.G., C.Hg.

Paul E. Rosenfeld, Ph.D.

Attachment A: Construction Phase Calculations
Attachment B: CalEEMod Output Files
Attachment C: Health Risk Calculations
Attachment D: AERSCREEN Output Files
Attachment E: Matt Hagemann CV
Attachment F: Paul E. Rosenfeld CV
Comment Letter No. 4
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Comments on the
Vesting Tentative Parcel
Map 12314 (Phased)
Project
(Jan. 14, 2022)
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Technical Consultation, Data Analysis and
Litigation Support for the Environment
2656 291h Street, Suite 201
Santa Monica, CA 90405
Matt Hagemann, P.G, C.Hg.
949) 887- 9013
mhagemann@swape. com
Paul E. Rosenfeld, PhD
310) 795- 2335
prosenfeld@swape. com
January 14, 2022
Amalia Bowley Fuentes
Lozeau I Drury LLP
1939 Harrison Street, Suite 150
Oakland, CA 94618
Subject: Comments on the Vesting Tentative Parcel Map 12314 ( Phased) Project Dear Ms. Fuentes,
We have reviewed the December 2021 Addendum to a Previously Adopted Negative Declaration for GPA/ ZC NO. 21- 0284 (" Addendum"), December 2021 Staff Report (" Staff Report"), and November 2020 Mitigated Negative Declaration (" MND") for the Vesting Tentative Parcel Map 12314 ( Phased) Project Project") located in the City of Bakersfield (" City"). The Project proposes rezone the 78. 94-acre site from M- 3 ( Heavy Industrial) to M- 2 ( General Manufacturing) to facilitate the development of an industrial park.

Our review concludes that the Addendum fails to adequately evaluate the Project' s air quality, health risk, and greenhouse gas impacts. As a result, emissions and health risk impacts associated with construction and operation of the proposed Project are underestimated and inadequately addressed. An Environmental Impact Report (" EIR") should be prepared to adequately assess and mitigate the potential air quality, health risk, and greenhouse gas impacts that the project may have on the surrounding environment.
tf"" Quality Greenhouse Gas Em issions
In. cloIII IIIecl Re liiaince oin C E' G flllde lllliiles SecU oin : 1 5`1(51,1, The Addendum claims that the preparation of a subsequent or supplemental Negative Declaration is not required pursuant to CEQA Guidelines Section 15164. Specifically, the Addendum states:

The previous Addendum for VTPM 12314, as amended by this Addendum and the completed technical memos may be used to fill the environmental review requirements for the proposed GPA/ ZC 21- 0284. The above analysis determined that the GPA/ ZC request would not result in H131
significant impacts to these environmental factors, and no additional mitigation is required.

Because the changes to the project meet the conditions for the application of CEQA Guidelines Section 15164, preparation of a subsequent or supplemental ND is not required" ( p. 2).

As demonstrated above, the Addendum claims that the MND, the previous environmental analysis, fully analyzed the proposed Project. Furthermore, the Staff Report states:

The California Environmental Quality Act ( CEQA) Guidelines, Section 15164 ( b) states that an Addendum to a previously adopted Negative Declaration shall be prepared if only minor technical changes or additions are necessary but none of the conditions described in Section 15162 call for the preparation of subsequent EIR or supplemental Negative Declaration have occurred.

Accordingly, Staff has determined that the activities associated with development of any permitted uses under the proposed land use and zoning were fully analyzed in the previously adopted Addendum. No new impacts will result from the proposed project. Therefore, an Addendum to the Addendum was prepared for the proposed project in accordance with Section 15164 and the City of Bakersfield' s CEQA Implementation Procedures" ( p. 3).

As stated above, the Staff Report relies on CEQA Guidelines Section 15164 to conclude that no new impacts would result from the proposed Project. However, this claim is unsubstantiated, as the Addendum' s environmental analysis is insufficient for the following six reasons:
1) BAAQMD screening thresholds indicate a potentially significant impact; 2) The MND and Addendum fail to quantify the Project' s criteria air pollutant emissions; 3) SWAPE' s analysis indicates a potentially significant air quality impact; 4) The MND and Addendum fail to adequately evaluate the Project' s health risk impacts; 5) SWAPE' s screening - level analysis demonstrates a potentially significant health risk impact; and 6) The MND and Addendum fails to adequately evaluate the Project' s greenhouse gas impacts.

The MND evaluated the 78. 94- acre Project site as heavy industrial development. As previously discussed, the Addendum proposes to rezone the site from M- 3 ( Heavy Industrial) to M- 2 (General Manufacturing) without furthermore environmental review. However, this is incorrect, as the BAAQMD screening thresholds indicate that manufacturing land uses may have higher emissions than heavy industrial uses ( see excerpt below).'
California Environmental Quality Act Air Quality Guidelines." BAAQMD, May 2017, available at:
https:// www. baagmd. gov/—/ media/ files/ planning- and- research/ cega/ cega guidelines may2017- pdf. pdf? la=en, p. 3- 2, Table 3- 1.

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TalN _ 1
Olperationalll-Related Criteria Air IPolftitaint and IP,reCUrsor Screening ILevelllSizes Land Use Type
1peratilonall Criteria Operationall GHG Cons trufctilont- Related! Pollutant ScreentingSuzy ScreeningSize Screening Silze Office
p: ndark323 ksf ( NOX) 50 ksf 27"" 7 ksf (R. OG) Goveirm" ri rntofficebuildingfat ksf(NOX) 12 k. sf277 ksf ( ROG) Goveirm" ri rnt ('cvoccenter') 149 ksf ( h10) 27 k. sf27 7 ksf (R. OG) Pharmacy/ dirugstore w P didveti" trough49 k. sf (NOX) 10 k. sf277 ksf ( R. OG) Pharmacy/ dirugstore w 10drrvethirctrgh48 k. sf (NOX) 10 k. sf277 ksf ( R. OG) Matrlinr; ai rsfficeebuilding1 1 J ksf (NOX) 22 k. sf277 ksf ( R. OG) HDSp ft, all226 ksf ( NOX) 3, 9ksf277 ksf ( f OG) R-
tra' pitall334, bleds (IikO. ft) 84 k; sf337 beds (ROG) Warehouse 864 ksf ( NOX) 6ksf 259 ksf ( IINO'. ) Generaikght
industry 541 ksf ( NOX) 121 ksf 259 ksf ( ItkO' X) Generaikght industry 72 acres ( INO ) 11 acres ( NOX) Generai lurlit irtftastr 1fnm. ls k 10 employees (' NOS) n iai heavyindustry1899 kskOG) fe ksf ( INOX) ai heavyindustry281
acres (ROG) 1 t acres ( NOX) ilrnrit,nrstrialIfaarrk 553 ksf (NOX) 65 ksf 259 ksf ( INO'. ) lIndustrial Iaark 61 " acres ( INO) 11 acres (NOX) ilrndu, nrstrialIfaark 1154
eniployee,s ( NO.) 577 employees ( NOX) lal° iurfaC[Uhi° ig 992ksf ( NOS) Efg ksf 259 ksf ( INO' ') ftnGes dU = dwefllingunits ksf thousandsquare feet; NCy, = oxide„ of infitrogern, ROG _. reacliveorgannre; gase:, s. ScreeNincgleveR. s include indirect;.= rand areasouirce cmriissuewnsErnssdcrnsfrom engines (c pg back- up renera' 1' rrrsiaind indrastriialScarrreRSSUID)ect. to Mir District R dewcandRegw.wlpatio nsnmIbedr- d uln t' he barrelusesarenotiaalawdedpin the screeiningC" stlrfnates andrtnl.N, stbe addedfedtnea" cwkeand Uses. Referto AgpsnelnefnxDf0l' sawRlacrt dmsr urnemtation. Souiee Modeledlay E, t' r,
AYJ 2009'., As shownintheexcerptabove,
theBAAQMD's criteriaair pollutantscreeninglevel sizefor Manufacturingis 992, 000- SF. In contrast, thescreeninglevel sizeforGeneral HeavyIndustrial is 1, 899,000- SF. As such, lesssquarefootageof manufacturingspace warrantsthe same environmentalreview as almost doublethe square footage of heavy industrialspace, indicatingthat manufacturingland uses generatehigher emissionsthat heavyindustrialland uses. Without any quantificationof the Project's criteriaair pollutantemissions, the Addendumlacks evidenceto support its conclusion that the Projectwould notresult in any new impacts. Thus, the Addendum's less -than - significantair quality determinationshouldnot be reliedupon, and the Projectshouldnot be approveduntil an EIR is preparedto adequatelyassessand mitigate the potentialair quality impactsthat the Project mayhave on the surroundingenvironment. As previously discussed, the MND fails
to quantify the Project's criteriaair pollutant emissions. Instead, theM N D simply states:

The proposedprojectwouldbe in
compliancewith the significancethresholdsforROG ( 10 tons/year), NOx ( 10 tons/ year), and PM10 (15 tons/year). Additionally, the project applicantintendsto comply with the air emissionscontrolmeasuresdescribedin the SJVAPCD Guide for Assessing andMitigatingAir Quality Impacts document to control dustand other emissions duringconstruction. UnderSJVAPCDCEQA rules, the implementationof these controlmeasures3
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would help reduce impacts from criteria air pollutants to a less than significant level. The project is also not within the distance triggers noted in table 6, Project screening trigger levels for potential odor sources ( Guide for Assessing and Mitigating Air Quality Impacts). Dust suppression measures listed as Regulation VIII is required for all construction in the City of Bakersfield and are regarded by SJVAPCDas sufficient mitigation to reduce PM10 impacts to less than significant" ( p. 12).

As stated above, the MND claims the Project would be in compliance with the SJVAPCD significance thresholds. However, without making an effort to estimate the Project' s potential criteria air pollutant emissions, the MND lacks evidence to support its conclusion that the Project' s emissions would not exceed the applicable SJVAPCD significance thresholds.' Thus, the MND lacks evidence to support its conclusion that the Project would result in a less -than -significant air quality impact. As such, the Addendum should not rely upon the MND' s air quality significance determination. As a result, the Project should not be approved until an EIR is prepared to adequately assess and mitigate the potential air quality impacts that Project construction and operation may have on the surrounding environment.

In an effort to estimate the Project' s construction - related and operational emissions, we utilized CalEEMod. 2020.4. 0, aswellas theProject -specific informationprovided by theAddendum.3 CalEEModprovides recommendeddefault values based on site -specificinformation, such as landuse type, meteorological data, total lot acreage, project type and typicalequipmentassociated with projecttype. According to theAddendum, the " currentGPA/ ZC is proposedto facilitatethe developmentof an industrial park consistentwith the proposedM- 2 ( GeneralManufacturing) zoning" on the 78. 94 acresite p. 1). As such, in orderto notartificiallyincrease emissions, we modeledthe proposedProject accounting for the developmentof an industrialpark on only50% of the site. Thus, we included39. 47 acres, or 1, 719,310- SF of " IndustrialPark" in SWAPE's updatedmodel. We assumedthat the Projectwould be locatedwithin ClimateZone 34 andthe Project's utilitieswould be providedby PacificGas & Electric. s Allothervalues were left as default. Our
updatedanalysis estimates that the Project's construction -related VOC emissionsexceed the applicable SJVAPCD threshold of 10 tonsper year ("tons/ year") (see table below).' Air QualityThresholdsof Significance — Criteria Pollutants." SJVAPCD, March 2015, available at: http:// www. valleyair.org/ transportation/0714- GAMAQI-Criteria- Pollutant- Thresholds- of- Significance.pdf. CAPCOA ( November 2017) CalEEModUser' s Guide, http:// www. agmd. gov/ docs/ default- source/ caleemod/01 user-39- s- guide2016-3- 2 15november2017.pdf? sfvrsn=4. Appendix F ClimateZones Lookup." CAPCOA, September 2016, availableat: http:// www. agmd. gov/ docs/default-source/ caleemod/upgrades/ 2016. 3/ 07appendix-f2016- 3- 1. pdf?sfvrsn=2, p. F-

19. Electric
Service Area Maps." Pacific Gas and ElectricCompany, November 2014, availableat: https:// www. pge. com/tariffs/assets/ pdf/ tariff boo k/ ELECMAPS Service%20Area% 2OMap. pdf, pp. 11. Air QualityThresholdsof Significance — Criteria Pollutants." SJVAPCD, March 2015, available at: http:// www. valleyair.org/ transportation/0714- GAMAQI-Criteria- Pollutant- Thresholds- of- Significance.pdf. 4 H134
SWAPE Criteria Air Pollutant Emissions
VOC
Construction
SWAPE Model 12. 2
SJVAPCD Threshold 10
Exceeds? Yes
As you can see in the excerpt above, the Project' s construction - related VOC emissions, as estimated by SWAPE, exceed the applicable SJVAPCD significance threshold. Thus, our model demonstrates that the Project would result in a potentially significant air quality impact that was not previously identified or addressed in the Addendum or MND. As a result, an EIR should be prepared to adequately assess and mitigate the potential air quality impacts that the Project may have on the surrounding environment.

As previously stated, the MND fails to adequately evaluate the Project' s health risk impacts. Specifically, the MND fails to mention or evaluate the potential health risk impacts posed by Project -generated toxic air contaminant (" TAC") emissions whatsoever. This is incorrect for three reasons.

First, construction of the proposed Project will produce emissions of diesel particulate matter (" DPM") through the exhaust stacks of construction equipment throughout the construction period.

Furthermore, the proposed land uses will generate daily vehicle trips, which will produce additional exhaust emissions and continue to expose nearby sensitive receptors to DPM emissions. However, the MND fails to quantify Project -generated toxic air contaminant (" TAC") emissions or indicate the concentrations at which such pollutants would trigger adverse health effects. Thus, without making a reasonable effort to connect the Project' s construction - related and operational TAC emissions to the potential health risks posed to nearby receptors, the MND is inconsistent with CEQA's requirement to correlate the increase in emissions generated by the Project with the potential adverse impacts on human health.

Second, the State of California Department of Justice recommends the preparation of a quantitative HRA pursuant to the Office of Environmental Health Hazard Assessment (" OEHHA"), the organization responsible for providing guidance on conducting HRAs in California, as well as local air district guidelines.' OEHHA released its most recent Risk Assessment Guidelines: Guidance Manual for Preparation of Health RiskAssessmentsin February 2015.8This guidance document describes the types of projects that warrant the preparation of an HRA. The OEHHA document recommends that all short- term projects lasting at least two months be evaluated for cancer risks to nearby sensitive receptors. As the Project' s construction duration exceeds the 2-month requirement set forth by OEHHA, it is clear that Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act." State of California Department of Justice, available at:
https: Hoag. ca.gov/ sites/ all/ files/ agweb/ pdfs/ environment/ warehouse- best- practices. pdf, p. 6.

Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments." OEHHA, February 2015, available at: http:// oehha. ca. gov/ air/ hot spots/ hotspots2015. html. 5 H135
the Project meets the threshold warranting a quantified HRA under OEHHA guidance. Furthermore, the OEHHA document recommends that exposure from projects lasting more than 6 months be evaluated for the duration of the project and recommends that an exposure duration of 30 years be used to estimate individual cancer risk for the maximally exposed individual resident (" MEIR"). Even though we were not provided with the expected lifetime of the Project, we can reasonably assume that the Project will operate for at least 30 years, if not more. Therefore, we recommend that health risk impacts from Project operation also be evaluated, as a 30- year exposure duration vastly exceeds the 6- month requirement set forth by OEHHA. These recommendations reflect the most recent state health risk policies, and as such, we recommend that an EIR be prepared for the project, including analysis of health risk impacts posed to nearby sensitive receptors from Project -generated DPM emissions.

Third, by claiming a less -than -significant impact without conducting a quantified construction or operational HRA for nearby, existing sensitive receptors, the MND fails to compare the Project' s cumulative excess health risk impact to the applicable SJVAPCD numeric threshold of 20 in one million.' Thus, in accordance with the most relevant guidance, an assessment of the health risk posed to nearby, existing receptors from Project construction and operation should have been conducted.

In order to conduct our screening - level risk assessment we relied upon AERSCREEN, which is a screening level air quality dispersion model.10The model replaced SCREEN3, and AERSCREENis included in the OEHHA11 and the California Air Pollution Control Officers Associated (" CAPCOA" )" guidance as the appropriate air dispersion model for Level 2 health risk screening assessments (" HRSAs"). A Level 2 HRSA utilizes a limited amount of site -specific information to generate maximum reasonable downwind concentrations of air contaminants to which nearby sensitive receptors may be exposed. If an unacceptable air quality hazard is determined to be possible using AERSCREEN, a more refined modeling approach is required prior to approval of the Project.

We prepared a preliminary HRA of the Project' s construction and operational health risk impact to residential sensitive receptors using the annual PM10exhaust estimates from SWAPE's CalEEMod output files. Consistent with recommendations set forth by OEHHA, we assumed residential exposure begins during the third trimester stage of life. SWAPE' s construction CalEEMod emissions indicate that construction activities will generate approximately 817 pounds of DPM over the 1,404- day construction period, as estimated by CalEEMod.13The AERSCREENmodel relies on a continuous average emission rate to simulate maximum downward concentrations from point, area, and volume emission sources. To Recommended Thresholds of Significant Impact." SJVAPCD, available at:
https:// www. valleyair. org/ transportation/ cegaanaIVsislevels. htm. 10U.S. EPA (April 2011) AERSCREENReleasedas the EPARecommended Screening Model, http:// www. epa. gov/ ttn/ scram/ guidance/ clarification/ 20110411 AERSCREEN Release Memo. pdf 11 "RiskAssessmentGuidelines Guidance Manual for Preparation of Health RiskAssessments." OEHHA, February 2015, available at: http:// oehha. ca. gov/ air/ hot spots/ 2015/ 2015GuidanceManual. pdf CAPCOA (July 2009) Health Risk Assessments for Proposed Land Use Projects, http:// www. capcoa. org/ wp- content/ uploads/ 2012/ 03/ CAPCOA HRA LU Guidelines 8- 6- 09. pdf. 13 See Attachment B for calculations.
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account for the variability in equipment usage and truck trips over Project construction, we calculated an average DPM emission rate by the following equation:
grams 817. 1 lbs 453. 6 grams 1 day 1 hour
Emission Rate () = x x x = 0. 00306 g/ ssecond 1, 404 days lbs 24 hours 3, 600 seconds Using this equation, we estimated a construction emission rate of 0.00306 grams per second (" g/ s").

Subtracting the 1,404- day construction period from the total residential duration of 30 years, we assumed that after Project construction, the sensitive receptor would be exposed to the Project' s operational DPM for an additional 26. 15 years. SWAPE's operational CalEEMod emissions indicate that operational activities will generate approximately 274 pounds of DPM per year throughout operation.

Applying the same equation used to estimate the construction DPM rate, we estimated the following emission rate for Project operation:
grams 273. 8 lbs 453. 6 grams 1 day 1 hour
Emission Rate ( ) = x x x = 0. 00394 g/ ssecond 365 days lbs 24 hours 3, 600 seconds Using this equation, we estimated an operational emission rate of 0.00394 g/ s. Construction and operation were simulated as a 78. 94- acre rectangular area source in AERSCREEN, with approximate dimensions of 799- by 400- meters. A release height of three meters was selected to represent the height of stacks of operational equipment and other heavy- duty vehicles, and an initial vertical dimension of one and a half meters was used to simulate instantaneous plume dispersion upon release.

An urban meteorological setting was selected with model - default inputs for wind speed and direction distribution. The population of Bakersfield was obtained from U.S. 2020 Censusdata. 14 The AERSCREENmodel generates maximum reasonable estimates of single -hour DPM concentrations from the Project Site. EPAguidance suggests that in screening procedures, the annualized average concentration of an air pollutant to be estimated by multiplying the single -hour concentration by 10%. 15 Review of Google Earth demonstrates that the nearest sensitive receptor is located approximately 350 meters from the Project site ( see excerpt below).
14 " Bakersfield." U. S. Census Bureau, 2020, available at: https:// datacommons. org/ place/ geold/ 0603526. 1sU.S. EPA (October 1992) Screening Procedures for Estimating the Air Quality Impact of Stationary Sources Revised, http:// www. epa. gov/ ttn/ scram/ guidance/ guide/ EPA- 4S4R- 92- 019 OCR. pdf. 7 H137
However, review of the AERSCREEN output files demonstrates that the maximally exposed individual resident (" MEIR") is located approximately 400 meters from the Project site. Thus, the single -hour concentration estimated by AERSCREENfor Project construction is approximately 0.5483 µg/ m3DPM at approximately 400 meters downwind. Multiplying this single -hour concentration by 10%, we get an annualized average concentration of 0.05483 µg/ m3for Project construction at the MEIR. For Project operation, the single -hour concentration estimated by AERSCREENis 0.6015 µg/ m3 DPMat approximately 250 meters downwind. Multiplying this single -hour concentration by 10%, we get an annualized average concentration of 0.06015 µg/ m3for Project operation at the MEIR. 16Consistent with the 1,404-day construction schedule, the annualized average concentration for construction was used for the entire third trimester of pregnancy

0.25 years), infantile stage of life ( 0 — 2 years), and the first 1.6 years of the child stage of life ( 2 — 16 years). The annualized average concentration for operation was used for the remainder of the 30-year exposure period, which makes up the latter 12.4 years of the child stage of life and the entire adult stage of life ( 16 — 30 years).
16 " Supplemental Guidelines for Submission of Rule 1200 Health Risk Assessments ( HRAs)." SDAPCD, July 2019, available at:
https:// www. sandiegocounty. gov/ content/ dam/ sdc/ apcd/ PDF/ Toxics Program/ APCD 1200 Supplemental Guidel ines. pdf.
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Consistent with OEHHAguidance, as recommended by the State of California Department of Justice,17 as well as SCAQMD,18BAAQMD,19and SJVAPCD20guidance, we used Age Sensitivity Factors ("ASP) to account for the heightened susceptibility of young children to the carcinogenic toxicity of air pollution.

According to this guidance, the quantified cancer risk should be multiplied by a factor of ten during the third trimester of pregnancy and during the first two years of life ( infant), as well as multiplied by a factor of three during the child stage of life ( 2 — 16 years). Furthermore, in accordance with the guidance set forth by OEHHA, we used the 951hpercentile breathing rates for infants. 21 Finally, according to
SJVAPCDand OEHHA guidance, we used a Fraction of Time At Home ( FAH) Value of 0.851 for the 3rd trimester and infant receptors, 0. 721 for child receptors, and 0. 73 for adult receptors. 22We used a cancer potency factor of 1. 1(mg/ kg-day)-1and an averaging time of 25,550 days. The results of our calculations are shown below.
17 "Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act." State of California Department of Justice, p. 6. 18 " Draft Environmental Impact Report ( DEIR) for the Proposed The Exchange ( SCH No. 2018071058)." SCAQMD, March 2019, available at: http:// www. agmd. gov/ docs/ default- source/ cega/ comment- letters/ 2019/ march/ RVC19011S- 03. pdf? sfvrsn= 8, p. 4. 19 "California Environmental Quality Act Air Quality Guidelines." BAAQMD, May 2017, available at:
http:// www. baagmd. gov/—/ media/ files/ planning- and- research/ cega/ cega guidelines may2017- pdf. pdf? la=en, p. 56; see also " Recommended Methods for Screening and Modeling Local Risks and Hazards." BAAQMD, May 2011, available at:
http:// www. baagmd. gov/—/ media/ Files/ Planning% 20and% 2OResearch/ CEQA/ BAAQMD% 20Modeling% 2OApproac h. ashx, p. 65, 86.
20 "Update to District' s RiskManagement Policy to Address OEHHA's Revised RiskAssessment Guidance Document." SJVAPCD, May 2015, available at: https:// www. vallevair. org/ busind/ pto/ staff- report- 5- 28- 15. pdf, p. 8, 20, 24.
21 "Supplemental Guidelines for Preparing RiskAssessmentsfor the Air Toxics 'Hot Spots' Information and Assessment Act," July 2018, available at: http:// www. agmd. gov/ docs/ default- source/ planning/ risk- assessment/ ab2588supplementalguidelines. pdf, p. 16.

Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments." OEHHA, February 2015, available at: https:// oehha. ca. gov/ media/ downloads/ crnr/ 2015guidancemanual. pdf 22 "FinalStaff Report: Update to District' s RiskManagement Policy to Address OEHHA's RevisedRiskAssessment Guidance Document." SJVAPCD, May 2015, available at: https:// www. valleyair. org/ busind/ pto/ staff- report- S- 28- 1S.pdf, p. 11.

E]
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The Maximally Exposed Individual at an Existing Residential Receptor Emissions Duration Concentration Breathing Cancer Risk Cancer Risk Age Group Source years) ug/ m3) Rate ( L/kg-day) without ASFs*) ASF
with ASFs*)
3rd Trimester Construction 0. 25 0. 05696 361 6. 58E- 08 10 6. 58E- 07 Infant
Age 0 - 2)
Construction 2 0. 05696 1090 1. 59E- 06 10 1. 59E- 05
Child
Total 14 6. 22E- 06 3 1. 87E- 05
Age 2 - 16)
Adult
Operation 14 0. 07344 261 2. 95E- 06 1 2. 95E- 06
Age 16 - 30)
Lifetime 30 1. 08E- 05 3. 82E- 05
We, along with CARB and SCAQMD, recommend using the more updated and health protective 2015 OEHHA guidance, which includes ASFs.

As demonstrated in the table above, the excesscancer risksfor the 3rdtrimester of pregnancy, infants, children, and adults at the MEIR located approximately 400 meters away, over the course of Project construction and operation, utilizing ASFs, are approximately 0. 658, 15. 9, 18. 7, and 2. 95 in one million, respectively. The excess cancer risk over the course of a residential lifetime ( 30 years), utilizing ASFs, is approximately 38. 2 in one million. The lifetime cancer risk exceeds the SJVAPCDthreshold of 20 in one million, thus resulting in a potentially significant impact not previously addressed or identified by the MND. Thus, the MND' s conclusion that the Project would result in a less -than -significant air quality impact is incorrect and should not be relied upon by the Addendum.

Utilizing ASFs is the most conservative, health - protective analysis according to the most recent guidance by OEHHA and reflects recommendations from the air district. Results without ASFs are presented in the table above, although we do not recommend utilizing these values for health risk analysis.

An agency must include an analysis of health risks that connects the Project' s air emissions with the health risk posed by those emissions. Our analysis represents a screening - level HRA, which is known to be conservative and tends to err on the side of health protection. The purpose of the screening - level construction and operational HRA shown above is to demonstrate the link between the proposed Project' s emissions and the potential health risk. Our screening - level HRA demonstrates that construction and operation of the Project could result in a potentially significant health risk impact, when correct exposure assumptions and up-to- date, applicable guidance are used. Thus, an EIRshould be prepared, including a quantified air pollution model as well as an updated, quantified refined health risk assessment which adequately and accurately evaluates health risk impacts associated with both Project construction and operation.
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As previously discussed, the MND fails to quantify the Project' s potential net annual greenhouse gas GHG") emissions. Instead, the MND simply states:

The project proposed Project would generate an incremental contribution and, when combined with the cumulative increase of all other sources of greenhouse gases, could contribute to global climate change impacts. Although the proposed Project is expected to emit greenhouse gases, the emission of greenhouse gases by a single project into the atmosphere is not itself necessarily an adverse environmental effect. Rather, it is the increased accumulation of greenhouse gas from more than one project and many sources in the atmosphere that may result in global climate change. The resultant consequences of that climate change can cause adverse environmental effects. A project' s greenhouse gas emissions typically would be relatively very small in comparison to state or global greenhouse gas emissions and, consequently, they would, in isolation, have no significant direct impact on climate change.

Therefore, a project' s greenhouse gas emissions and the resulting significance of potential impacts are more properly assessed on a cumulative basis. Therefore, the potential impacts from the proposed project' s greenhouse gas emissions are less than significant" ( p. 16).

As stated above, the MND concludes the Project would result in a less - than - significant GHG impact because Project -generated emissions would be relatively small and, in isolation, would not directly contribute to climate change. However, the MND fails to consider regional SJVACPD thresholds and lacks evidence to support its conclusion that the Project' s GHG impact would be less - than - significant.

Specifically, in an effort to determine the significance of the Project' s GHG impacts, the Project must demonstrate consistency with the SJVAPCD's 29% reduction threshold. 23To be determined to have a less -than -significant impact, the Project must reduce or mitigate GHG emissions by 29% as compared to Business - as - Usual (" BAU"), consistent with GHG emission reduction targets established in Air Resources Board' s AB 32 Scoping Plan. As such, an EIRshould be prepared to include a quantitative GHG analysis and incorporate additional mitigation measures to reduce the Project' s GHG emissions by 29% to less - than - significant levels.

Feasible Mil i2 11i0ll Measures Available to Reduce EniissioinsCy Our analysis demonstrates that the Project would result in potentially significant air quality and health risk impacts that should be mitigated further. In an effort to reduce the Project' s emissions, we identified several mitigation measures that are applicable to the proposed Project. Feasible mitigation measures can be found in the Department of Justice Warehouse Project Best Practices document. 24 Therefore, to reduce the Project' s emissions, consideration of the following measures should be made:
21 "Addressing Greenhouse GasEmissions Impact under the California Environmental Quality Act (CEQA): Land Use Development Projects" San Joaquin Valley Air Pollution Control District, available at:
http:// www. valleVair. org/ Programs/ CCAP/ bps/ Fact Sheet Development Sources. pdf. 21 "Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act." State of California Department of Justice. 11 H141
Requiring off -road construction equipment to be zero -emission, where available, and all diesel - fueled off - road construction equipment, to be equipped with CARB Tier IV - compliant engines or better, and including this requirement in applicable bid documents, purchase orders, and contracts, with successful contractors demonstrating the ability to supply the compliant construction equipment for use prior to any ground - disturbing and construction activities.

Prohibiting off -road diesel -powered equipment from being in the " on" position for more than 10 hours per day.

Requiring on -road heavy- duty haul trucks to be model year 2010 or newer if diesel -fueled.

Providing electrical hook ups to the power grid, rather than use of diesel -fueled generators, for electric construction tools, such as saws, drills and compressors, and using electric tools whenever feasible.

Limiting the amount of daily grading disturbance area.

Prohibiting grading on days with an Air Quality Index forecast of greater than 100 for particulates or ozone for the project area.

Forbidding idling of heavy equipment for more than two minutes.

Keeping onsite and furnishing to the lead agency or other regulators upon request, all equipment maintenance records and data sheets, including design specifications and emission control tier classifications.

Conducting an on -site inspection to verify compliance with construction mitigation and to identify other opportunities to further reduce construction impacts.

Using paints, architectural coatings, and industrial maintenance coatings that have volatile organic compound levels of less than 10 g/ L.

Providing information on transit and ridesharing programs and services to construction employees.

Providing meal options onsite or shuttles between the facility and nearby meal destinations for construction employees.

Requiring that all facility - owned and operated fleet equipment with a gross vehicle weight rating greater than 14,000 pounds accessing the site meet or exceed 2010 model -year emissions equivalent engine standards as currently defined in California Code of Regulations Title 13, Division 3, Chapter 1, Article 4. 5, Section 2025. Facility operators shall maintain records on -site demonstrating compliance with this requirement and shall make records available for inspection by the local jurisdiction, air district, and state upon request.

Requiring all heavy- duty vehicles entering or operated on the project site to be zero -emission beginning in 2030.

Requiring on -site equipment, such as forklifts and yard trucks, to be electric with the necessary electrical charging stations provided.

Forbidding trucks from idling for more than two minutes and requiring operators to turn off engines when not in use.

Installing and maintaining, at the manufacturer' s recommended maintenance intervals, air filtration systems at sensitive receptors within a certain radius of facility for the life of the project.
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Installing and maintaining, at the manufacturer' s recommended maintenance intervals, an air monitoring station proximate to sensitive receptors and the facility for the life of the project, and making the resulting data publicly available in real time. While air monitoring does not mitigate the air quality or greenhouse gas impacts of a facility, it nonetheless benefits the affected community by providing information that can be used to improve air quality or avoid exposure to unhealthy air.

Constructing electric truck charging stations proportional to the number of dock doors at the project.

Constructing electric plugs for electric transport refrigeration units at every dock door, if the warehouse use could include refrigeration.

Constructing electric light - duty vehicle charging stations proportional to the number of parking spaces at the project.

Installing solar photovoltaic systems on the project site of a specified electrical generation capacity, such as equal to the building' s projected energy needs.

Requiring all stand- by emergency generators to be powered by a non -diesel fuel.

Requiring facility operators to train managers and employees on efficient scheduling and load management to eliminate unnecessary queuing and idling of trucks.

Requiring operators to establish and promote a rideshare program that discourages single - occupancy vehicle trips and provides financial incentives for alternate modes of transportation, including carpooling, public transit, and biking.

Meeting CalGreen Tier 2 green building standards, including all provisions related to designated parking for clean air vehicles, electric vehicle charging, and bicycle parking.

Achieving certification of compliance with LEEDgreen building standards.

Providing meal options onsite or shuttles between the facility and nearby meal destinations.

Posting signs at every truck exit driveway providing directional information to the truck route.

Improving and maintaining vegetation and tree canopy for residents in and around the project area.

Requiring that every tenant train its staff in charge of keeping vehicle records in diesel technologies and compliance with CARB regulations, by attending CARB approved courses. Also require facility operators to maintain records on -site demonstrating compliance and make records available for inspection by the local jurisdiction, air district, and state upon request.

Requiring tenants to enroll in the United States Environmental Protection Agency' s SmartWay program, and requiring tenants to use carriers that are SmartWay carriers.

These measures offer a cost- effective, feasible way to incorporate lower - emitting design features into the proposed Project, which subsequently, reduce emissions released during Project construction and operation. An EIRshould be prepared to include all feasible mitigation measures, as well as include updated air quality and health risk analyses to ensure that the necessary mitigation measures are implemented to reduce emissions to below thresholds. The EIR should also demonstrate a commitment to the implementation of these measures prior to Project approval, to ensure that the Project' s significant emissions are reduced to the maximum extent possible. 13 H143
1)IIIscIaiI" III "wr
SWAPE has received limited discovery regarding this project. Additional information may become available in the future; thus, we retain the right to revise or amend this report when additional information becomes available. Our professional services have been performed using that degree of care and skill ordinarily exercised, under similar circumstances, by reputable environmental consultants practicing in this or similar localities at the time of service. No other warranty, expressed or implied, is made as to the scope of work, work methodologies and protocols, site conditions, analytical testing results, and findings presented. This report reflects efforts which were limited to information that was reasonably accessible at the time of the work, and may contain informational gaps, inconsistencies, or otherwise be incomplete due to the unavailability or uncertainty of information obtained or provided by third parties.

Sincerely,
Matt Hagemann, P.G., C.Hg.

Paul E. Rosenfeld, Ph. D.

Attachment A: CaIEEMod Output Files
Attachment B: Health Risk Calculations
Attachment C: AERSCREEN Output Files
Attachment D: Matt Hagemann CV
Attachment E: Paul E. Rosenfeld CV
14 H144

7194-007acp
KEVIN T. CARMICHAEL
CHRISTINA M. CARO
THOMAS A. ENSLOW
KELILAH D. FEDERMAN
RICHARD M. FRANCO
ANDREW J. GRAF
TANYA A. GULESSERIAN
DARION N. JOHNSTON
RACHAEL E. KOSS
AIDAN P. MARSHALL
ALAURA R. McGUIRE

ISABEL TAHIR

Of Counsel
DANIEL L. CARDOZO
MARC D. JOSEPH

SACRAMENTO OFFICE

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ADAMS BROADWELL JOSEPH & CARDOZO

A PROFESSIONAL CORPORATION

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TEL: (650) 589- 1660
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printed on recycled paper

September 23, 2025

Via Email and Overnight Mail
City Council
City of Antioch
P.O. Box 5007
200 H Street
Antioch, CA 94531
Email: [email protected]

Via Email Only
Kevin Scudero, Acting Director
Community Development Department
Email: [email protected]
Zoe Merideth, Senior Planner
Email: [email protected]

Re: Agenda Item 5: Wildflower Station Townhomes 2 Multifamily Residential Project (TM-02, AR-23-05)

Dear Honorable Mayor Bernal, Members of the City Council, Mr. Scudero, and Ms.

Merideth:

On behalf of Contra Costa Residents for Responsible Development (“Contra Costa Residents”) we submit these comments to the Antioch City Council (“Council”) on Agenda Item 5: Wildflower Station Townhomes 2 Multifamily Residential Project (TM-02, AR-23-05) (“Wildflower Townhomes Project” or “Project”) proposed by DeNova Homes, Inc. (“Applicant”).

The Project consists of a vesting tentative map to create 19 residential lots for 19 townhome buildings, containing 159 residential units total. 1 The Project site is a

10.35 acre undeveloped site located east of Hillcrest Avenue and west of Wildflower Station Place in the City of Antioch (“City”).
2 The Project site is designated High

1 City of Antioch, Staff Report to the City Council: Wildflower Station Townhomes 2 Multifamily Residential Project (TM-02 and AR-23-05) (“Wildflower Staff Report”), p. 1, available at:
https://www.antiochca.gov/fc/government/agendas/CityCouncil/2025/agendas/092325/092325.pdf . 2 Id.

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September 23, 2025