Appeal Responses
A-1 The commenter identifies himself as representing the Californians Allied for a Responsible Economy (“CARE CA”) and identifies the Project. This comment does not raise any issues with the environmental analysis provided in the Initial Study/Mitigated Negative Declaration (IS/MND) and no further response is required.
A-2 The commenter provides a general summary of the Project Description as provided in the IS/MND. This comment does not raise any issues with the environmental analysis provided in the IS/MND and no further response is required.
A-3 The commenter states that CARE CA has submitted an Appeal letter and paid the appeal fee. This comment does not raise any issues with the environmental analysis provided in the IS/MND and no further response is required.
A-4 The commenter states their belief that the Project should be required to prepare an Environmental Impact Report (EIR) rather than a IS/MND because the Project may have significant, unmitigated air quality, public health, greenhouse gas emissions, public safety, and noise impacts that are not adequately disclosed or mitigated by the IS/MND. However, technical studies for the Project were prepared and determined that all impacts could be reduced to less than significant with mitigation. Responses to specific comments are provided below. No further response is required.
A-5 The commenter states that their comment letter includes technical reports for air quality, hazards, and noise prepared by their consultants. The commenter states the Project would cause significant cancer risk, potentially significant impacts from greenhouse gas emissions, significant noise impacts, and significant cumulative impacts. However, technical studies for the Project were prepared and determined that all impacts could be reduced to less than significant with mitigation. Responses to specific comments are provided below. No further response is required.
A-6 The commenter states that the Planning Commission was premature because the public comment period was still open at the time the hearing occurred. The Planning Commission hearing was held on the evening of January, 17, 2023. The comment period began on December 23, 2022 and ended on January 17, 2023, which resulted in a 26-day comment period. Because the project does not include any state agency approvals, a 20-day comment period is appropriate per CEQA Guidelines. As such, the City provided 6 additional days of public review beyond what is required per CEQA. No further response is required.
A-7 Comment noted.
A-8 Refer to Response A-6, above.
A-9 The commenter requests on behalf of CARE CA, that the City prepare an EIR. However, an EIR is not required because all Project impacts can be reduced to less than significant by implementing mitigation measures.
A-10 The commenter summarizes their view of the findings of the IS/MND stating that the Project construction and operation impacts would be less than significant and claims that the findings are unsubstantiated because the City did not quantify the risk and compare it to applicable thresholds. However, the IS/MND did analyze air quality impacts related to the construction and operation of the Project. Table 8, Construction-Related Emissions on page 70 of the Draft IS/MND shows construction emissions are well below SCAQMD significance thresholds for construction. Table 9, Long-Term Operational Emissions on page 71 of the Draft IS/MND shows that unmitigated operational emissions are also below are below SCAQMD significance thresholds for operations and that mitigation required to reduce GHG emissions would further reduce operational emissions. In addition, Table 11, Localized Significance of Construction Emissions and Table 12, Localized Significance of Operational Emissions on page 75 of the Draft IS/MND shows that localized impacts on surrounding sensitive receptors would be less than significant. Localized significance thresholds represent the maximum emissions from a project that are not expected to cause or contribute to an exceedance of the most stringent applicable federal or state ambient air quality standard.
As shown in IS/MND Table 7, Table 8, Table 11, and Table 12 (see to pages 70 to 75), Project emissions are below the SCAQMD’s regional and localized thresholds. The SCAQMD set its CEQA significance thresholds based on the Federal Clean Air Act (FCAA). The National Ambient Air Quality Standards (NAAQS) establish the levels of air quality necessary, with an adequate margin of safety, to protect public health. Projects that do not exceed the SCAQMD’s LSTs and mass emissions thresholds would not violate any air quality standards or contribute substantially to an existing or projected air quality violation and no criteria pollutant health impacts. Therefore, the commenter is incorrect that the IS/MND did not compare the Project to applicable thresholds and that the IS/MND’s findings are unsubstantiated.
Furthermore, contrary to the commenter’s assertion the Project is not required to prepare a Health Risk Assessment, as such an assessment was not necessary or appropriate under the applicable circumstances. As described in more detail below, the Project is not subject to regulation under the Hots Spots Act, the 2003 Guidance Manual, or 2015 Guidance Manual, California Air Pollution Control Officers Association (CAPCOA) guidance, or SCAQMD guidance.
Air Toxics Hots Spots Act, the OEHHA 2003 Guidance Manual, and the OEHHA 2015 Guidance Manual The Air Toxics “Hot Spots” Information and Assessment Act of 1987 (Hot Spots Act) regulates stationary sources. The Hot Spots Act is designed to provide information to state and local agencies and to the general public on the extent of airborne emissions from stationary sources and the potential public health impacts of those emissions. The Office of Environmental Health Hazard Assessment (OEHHA), in conjunction with the California Air Resources Board (CARB) and the CAPCOA, has adopted guidance manuals for use in implementing the Air Toxics “Hot Spots” Program (Hot Spots Program) as part of the Hot Spots Act (Health and Safety Code Section 44360 et. seq.).
In 2003, OEHHA adopted the Air Toxics Hot Spots Program Risk Assessment Guidelines – The Air Toxics Program Guidance Manual for Preparation of Health Risk Assessments (2003 Guidance Manual). OEHHA adopted a new version of the manual in March 2015, called the Hot Spots Program Guidance Manual for the Preparation of Risk Assessments (2015 Guidance Manual). The guidance manuals are intended to address health risks from airborne contaminants released by stationary sources. The intent of developing the guidance manuals is to provide health risk assessment (HRA) procedures for use in the Hot Spots Program or for the permitting of new or modified stationary sources. Stationary sources are typically industrial-type uses that emit toxic air contaminants (TACs) and are regulated by and/or require permits from the Air Districts. Examples of stationary sources include: metal finishing/manufacturing, chrome plating facilities, various product manufacturing (e.g., food, chemical, material, etc.), stationary diesel engines (e.g., emergency backup generators), and refineries. The guidance manuals are not meant to be used for a health risk evaluation of typical non-stationary source land use projects such as residential and commercial development projects.
OEHHA did not include CEQA significance thresholds applicable to construction activities or the operation of non-stationary source projects in the guidance manuals. Additionally, in the Risk Management Guidance for Stationary Sources of Air Toxics (2015), CARB and CAPCOA recognized that the OEHHA guidance manuals do not include guidance for CEQA and that this would be handled by individual Air Districts.
CAPCOA Guidance
The CAPCOA guidance document Health Risk Assessments for Proposed Land Use Projects (2009) (CAPCOA HRA Guidance) provides lead agencies with guidance regarding when and how an HRA should be prepared. It bases the risk assessment methodology on the procedures developed by the OEHHA to meet the mandates of the Hot Spots Act. CAPCOA recognized that “[w]hile local air districts have ample experience evaluating and mitigating toxic emissions from permitted stationary sources, most have limited experience preparing or reviewing risk assessments associated with multiple toxic sources or assessments for exhaust from mobile sources that are typically found when evaluating health risks to proposed land use projects.” To bridge the gap between stationary sources subject to regulation by the Air Districts under the Hot Spots Act and health risk impacts from and to land use projects, CAPCOA prepared the CAPCOA HRA Guidance. The CAPCOA HRA Guidance does not address how construction risk assessments should be conducted or how construction risk should be addressed in CEQA.
The operation of the Proposed Project is not a land use identified by the CAPCOA HRA Guidance that would generate toxic emissions (i.e., combustion related power plants, gasoline dispensing facilities, asphalt batch plants, or quarry operations), nor does it include a stationary source that emits TACs. Nor is the Proposed Project a warehouse or distribution facility that generates more than 100 trucks per day or more than 40 trucks with operating transport refrigeration units.
For these reasons, the preparation of an HRA (or screening-level analysis) to assess the health risks due to the operation of the proposed Project is not required or recommended under the CAPCOA HRA Guidance.
The CAPCOA HRA Guidance does not consider construction-related health risks. Additional guidance is expected to be included in the CAPCOA HRA Guidance once the toxic emissions from construction can be better quantified with updated science. This has not yet occurred, and was not available when the City prepared the notice of preparation for the Project and its environmental analysis. As such, preparation of an HRA to assess health risks due to construction of the Project is not required.
SCAQMD Guidance
The South Coast Air Quality Management District (SCAQMD) is the Air District in charge of implementing, regulating, and enforcing the Hot Spots Program in the South Coast Air Basin. The SCAQMD has promulgated rules in furtherance of the Hot Spots Act, and prepared supplemental guidelines for preparing HRAs as a supplement to OEHHA’s guidance manuals. These SCAQMD rules and supplemental guidelines provide guidance for the preparation of HRAs for stationary and certain mobile sources, as described below. While these rules and guidelines indicate HRAs should be prepared for certain industrial projects, they do not require HRAs to be prepared as part of CEQA documents that evaluate the construction and operational impacts of residential and/or commercial projects, like the proposed commercial Project.
Specifically, the Mobile Source Guidance provides interim guidance and recommended procedures for preparing HRAs for projects with the potential for DPM impacts, including the following limited activities: (1) truck idling and movement (such as, but not limited to, truck stops, warehouse/distribution centers or transit centers); (2) ship hotelling at ports; and (3) train idling. The Project does not include any of these industrial-related activities. Rather, the project proposes a commercial development composed of a banquet hall, hotel, convenience store, and restaurant uses and would be accessed primarily by customer passenger vehicles. It would have significantly fewer trucks than the anticipated volume of trucks associated with a truck stop, warehouse/distribution center, or transit center. The Project's operational trucks would also be considerably fewer than 100 trucks per day or more than 40 trucks with operating transport refrigeration units, which is the criteria used by CAPCOA, SCAQMD, and CARB for considering the siting of new sensitive land uses near these types of sources. As such, the Project would not be a substantial source of DPMs and the preparation of an HRA is therefore not required.
With regard to construction impacts, the SCAQMD does not recommend preparing HRAs to determine the human health risk associated with the construction of land use projects. Specifically, the SCAQMD’s CEQA Air Quality Handbook (1993) (Air Quality Handbook) does not recommend analysis of TACs from short-term construction activities associated with land use development projects due to the limited duration of exposure related to construction impacts. According to SCAQMD methodology, health effects from carcinogenic air toxics are usually described in terms of individual cancer risk. Specifically, “Individual Cancer Risk” is the likelihood that a person continuously exposed to concentrations of TACs over a 70-year lifetime will contract cancer based on the use of standard risk assessment methodology. Because the construction schedule for the Project is based on estimates that the phases which require the most heavy-duty diesel vehicle usage, such as demolition, site grading, excavation, would last for a much shorter duration (e.g., approximately 3 months), and the overall construction schedule would be limited to approximately 18 months, construction of the Project would not result in a substantial, long-term (i.e., 70-year) source of TAC emissions. No residual emissions and corresponding individual cancer risk are anticipated after construction. Because there is such a short-term exposure period (18 out of 840 months of a 70-year lifetime), further evaluation of construction TAC emissions within the IS/MND was not warranted.
In addition, the SCAQMD has not provided any guidance on how to apply the 2015 Guidance Manual to construction activities. Any SCAQMD guidance that may be provided in the future would be included on SCAQMD’s CEQA Air Quality Analysis Handbook webpage. At this time, the SCAQMD has not provided any additional guidance to the CEQA Air Quality Analysis Handbook webpage. The IS/MND followed the guidance, available at the time of the notice of preparation, included on this webpage, as detailed in the Methodology section on pages IV.A-36 - IV.A-37 and pages IV.A-43 - IV.A-44, which specifically address TACs and associated health risks.
In sum, the proposed Project is not a stationary source of toxic air contaminants or a generator of substantial truck traffic and would not otherwise expose sensitive receptors to toxic air contaminants above established regulatory thresholds. The commenter’s assertion that an HRA was required to be prepared for the Project is conflict with all applicable guidance issued by SCAQMD and other agencies responsible for regulating air quality impacts. Accordingly, an HRA assessing construction and/or operational impacts was not required to be prepared.
CalEnviroScreen and AB 535
Exhibit 1 attached to the comment letter also presents data from CalEPA’s CalEnviroScreen, which the City does not dispute. CalEnviroScreen is a mapping tool that helps identify California communities that are most affected by many sources of pollution and prioritize funding. CalEnviroScreen uses environmental, health, and socioeconomic information to produce scores for every census tract in the State. The scores are mapped so that different communities can be compared. An area with a high score is one that experiences a much higher pollution burden than areas with low scores. The CalEnviroScreen score measures the relative pollution burdens and vulnerabilities in one census tract compared to others and is not a measure of health risk.
As described above, the City disagrees with the assertion that additional risk analyses are needed. Given the short-term construction schedule of approximately 18 months (1.5 years), Project construction would not result in a long-term (e.g., 30 or 70 years) source of TAC emissions. The SCAQMD CEQA Air Quality Handbook does not recommend analysis of TACs from short-term construction activities associated with land use development projects. A construction HRA is not required by SCAQMD and no guidance for HRAs for construction has been adopted by SCAQMD or the City.
Exhibit 1 also notes that the project site is located within a designated disadvantaged community under Senate Bill (SB) 535. SB 535 does not include project specific requirements or prohibit developments within designated communities. SB 535 directs 25 percent of the proceeds from the Greenhouse Gas Reduction Fund (i.e., funds from the AB 32 cap-and-trade program) to go to projects that provide a benefit to disadvantaged communities (as identified by the OEHHA mapping).
Furthermore, SCAQMD’s Multiple Air Toxics Exposure Study (MATES V) (August 2021) shows that carcinogenic risk from air toxics in the South Coast Air Basin, based on the average concentrations at the 10 monitoring sites, is approximately 40 percent lower than the monitored average in MATES IV (2015) and 84 percent lower than the average in MATES II (2000). The results of SCAQMD’s ongoing research in air toxics shows that risk levels are decreasing despite development and vehicle traffic growth. This trend is expected to continue with the implementation of the various statewide policies focused on reducing mobile source emissions.
Project Construction Health Risk – For Informational Purposes Notwithstanding the above, a quantitative HRA was prepared to evaluate the human health risk associated with Project construction. The analysis uses the U.S. EPA AERMOD dispersion model, which takes into consideration SCAQMD representative meteorological data (Fontana meteorological station), site-specific conditions, and source-to-receptor distance. The HRA also identifies the baseline condition around the Project Site and evaluates the incremental change in health risk concentration exposure from DPM emitted by heavy-duty diesel construction equipment during construction of the Project and delivery trucks during operation of the Project. As indicated above, the primary source of potential air toxics associated with the Project is DPM from heavy-duty diesel trucks and construction equipment used during construction. The SCAQMD recommends that an HRA be conducted for substantial sources of long-term DPM operational sources (e.g., truck stops and warehouse distribution facilities) and has provided guidance for analyzing mobile source diesel emissions.
The results from the health risk calculations provide an estimate of the potential risks and hazards to individuals through inhalation of Project construction DPM emissions over an 18-month duration. The estimated risks and hazards include: lifetime excess cancer risk estimates and cumulative chronic Hazard Index (HI) estimates for the receptor locations of concern.
The results of the HRA yield a maximum off-site individual cancer risk of 8.9 in one million for residential receptors located south of the Project site. The maximum chronic risk HI of 0.008 occurs within this same receptor area. As the Project would not emit carcinogenic or toxic air contaminants that result in impacts that exceed the maximum individual cancer risk of ten in one million or the chronic HI of 1.0, Project-related toxic emission impacts would be less than significant. It should be noted that these results represent the worst-case maximum concentration and conservatively use 95th percentile breathing rates, an age sensitivity factor of 10 (a maximum value), an exposure frequency of 350 days per year and a fraction of time at home of 100 percent. The HRA thus confirms that Project construction would not result in health impacts.
A-11 As discussed above, an HRA is recommended when siting sensitive land uses near specific sources of air pollution or for Potentially High Risk Level Facilities. The Project does not include significant sources of diesel trucks or other sources of DPM, and is thus not the type of project for which an HRA is recommended. The commenter nonetheless claims that their consultant determined that Project emissions from DPM would result in a significant cancer risk at several homes in the neighborhoods south of the Project, assuming the average operational DPM concentration is 0.039 ug/m3 over a 30-year exposure. It is impossible to fully understand the basis for the commenter’s assertion, because the commenter did not provide the inputs used in AERMOD (only the results as an appendix). In addition, although the comment letter presents information that they state is from OEHHA’s HARP 2 Standalone Risk software, they do not provide any inputs or outputs to verify those results. Nevertheless, is it clear that the asserted cancer risk is based on deeply flawed assumptions and methodology.
Although the commenter’s attachment does not include model outputs, the letter indicates that the commenter took the total PM2.5 exhaust emissions that the IS/MND air quality study indicated would be generated by the Project, and then based their calculations on the improper assumption that all such emissions were the result of diesel fuel combustion. In fact, operational mobile source exhaust emissions from the Project are primarily from gasoline-fueled vehicles, such as passenger vehicles and light-duty pick-up trucks, with a much smaller amount attributable to diesel-fueled trucks, as provided in the vehicle fleet percentages in the CARB on-road vehicle emissions factor (EMFAC) model. The commenter, however, incorrectly modeled all of the PM2.5 exhaust as DPM and then presumably applied the DPM cancer potency factor to arrive at their health risk conclusion. By treating all PM2.5 emissions as DPM emissions, when only a small portion of such emissions are DPM emissions, the commenter drastically overstated health impacts.
The commenter’s health risk analysis also incorrectly and absurdly assumes all of the Project’s PM2.5 exhaust emissions would occur on the project site. In fact, the emissions used by the commenter are the total PM2.5 exhaust, which is primarily off-site vehicle travel. Mobile sources, by their very nature, do not generate emissions at a single location, but rather along the entire vehicle trip; thus, mobile emissions, including PM2.5 emissions, attributable to the Project would be dispersed along regional roadways, not concentrated at a single location. When conducting HRAs, dispersion of pollutants is a critical consideration because health risk impacts are a direct result of TAC concentrations. The commenter’s HRA, however, improperly and incorrectly assumed that all mobile source emissions would occur at a single location, which results in concentrations at sensitive receptors that are artificially elevated to highly unrealistic levels.
Therefore, the commenter’s health risk results are misleading, highly inaccurate, and lack credibility. In other words, the commenter’s conclusions are not supported by credible evidence, much less substantial evidence, and therefore do no support the conclusion that the Project would have a significant health risk impact with respect to DPM emissions.
The project would not generate TAC emissions on-site and the commenter’s estimate is significantly overstated. However, a more accurate approach (but still conservative) would be to estimate the proportion of on-site DPM exhaust based on the diesel truck fleet mix and the proportion of time diesel vehicles would operate on-site. The CalEEMod fleet mix for the project assumed 1.73 percent of vehicles accessing the site would be heavy-duty trucks, 1.14 percent would be medium-duty trucks, and 0.72 percent would be light-heavy duty trucks. Conservatively assuming that 10 percent of off-site mobile sources emissions would occur on-site, the 0.552 pounds per day of on-site emissions used in the commenter’s analysis would actually be 0.00198 pounds per day, which is approximately 99.6 percent lower. Therefore, the commenter’s calculated risk of 33.8 in one million should actually be closer to 0.12 in one million, which is far below the 10 in one million threshold. It should be noted that this risk assessment is provided for informational purposes using conservative estimates to fully respond to the comment. As discussed above, the project would not include operational TAC sources and a health risk assessment is not required for the project.
A-12 The commenter states that the Planning Commission’s decision to adopt the IS/MND without requiring a HRA is a violation of CEQA. As addressed in Response A-11, the Project does not require an HRA.
A-13 The commenter states that City Council should vacate the Planning Commission’s decision and require the City to prepare an EIR that includes a HRA. As addressed in Response A-11, the Project does not require an HRA.
A-14 The commenter asserts that the ISMND failed to adequately evaluate potential health risk impacts that could arise from the disturbance of contaminated soils. Consistent with American Society for Testing and Materials (ASTM) International E1527-13, environmental databases and records were reviewed to determine whether the Project site or surrounding properties are included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 (“Cortese” list). Review indicated that the Project site is not included on the Cortese list, and no surrounding properties are identified on this list of hazardous materials sites. These findings are reinforced in the City’s General Plan which notes that “there are no Superfund sites within the City of Fontana.” Therefore, no further investigation was warranted, and the ISMND appropriately concluded that no impact would occur in this regard. The commenter nonetheless insists that the site is within the “fallout zone of the Kaiser Steel Mill,” which operated from 1942-83, and thus, may have contaminated soil that could be disturbed during the Project’s construction. The provided letter from Clark and Associates cites several reports from the 1970s indicating that the mill released pollutants into the air while it was operating. It fails to include any evidence, however, indicating that soil within the area of the Project—let alone the Project-site itself—was contaminated by mill operations. Furthermore, as the commenter acknowledges, the mill was located some 3.4 miles away from the Project site. Thus, if the Project site were considered to be within the ”fallout zone” of the mill, the same would be true for much of the City. Over the four decades since the mill stopped operating, the City has rapidly expanded and numerous sites in the vicinity of the Project, and between the mill and the Project site, have been developed. During that time, the City is not aware of any discovery of contaminated soil that would be consistent with the commenter’s claims. Thus, the City’s experts do not find the commenter’s claim that the Project site may be contaminated as a result of the past operations of the Kaiser Steel Mill several miles away to be credible.
Nevertheless, in response to the commenter’s purported concerns, a formal Phase I environmental site assessment was conducted by RSB Environmental. As documented in the Phase I Environmental Site Assessment Report, dated February 28, 2023 and attached hereto as Exhibit A, there is no evidence of environmental contamination on the Project site and thus “no further actions are recommended.” (See Phase I, pp. 31-32 [Findings, Conclusions, and Recommendations].) In addition, notwithstanding RSB’s expert determination that no further investigation was warranted, in order to conclusively disprove the commenter’s contention regarding possible soil contamination, soil sampling and testing is currently underway. Because it takes several weeks to receive the results of such testing, the results were not available at the time of this response, however, such results are expected to be available in advance of the City Council hearing of CARE CA’s appeal. Based on the Phase I investigation, the City expects such results to confirm there is no soil contamination requiring further action. In the unlikely event that soil contamination is discovered, an additional mitigation measure requiring appropriate remedial activities prior to Project construction will be recommended.
A-15 Refer to Response A-14 above.
A-16 The commenter asserts that the IS/MND did not analyze construction noise impacts at an existing sensitive receptor located at 15911 Highland Avenue. The receptor in question is designated as General Commercial and was originally a hotel. However, the property is currently operating as Sunrise Market, a small convenience/liquor store and is not a sensitive receptor. The commenter claims that a three-bedroom apartment is located above the convenience store based on an internet listing offering the property for sale. As accessed on February 28, 2023, the listing does not appear to include language claimed by the commenter, and the City is not aware of any information confirming that the property is currently being used as a residence. Nonetheless, as further discussed below, even assuming the property is a sensitive receptor, the conclusions set forth in the IS/MND remain unchanged.
A-17 The commenter states that construction of Development B would occur 39 feet from the purported residence and would exceed FTA’s threshold of 80 dBA during demolition, site preparation, grading, and building construction phases of the Project without mitigation. The commenter also states that the IS/MND should include mitigation measures to reduce noise impacts to less than significant. Assuming that the Sunrise Market is considered a sensitive receptor, according to the FTA’s methodology all equipment is assumed to be located at the center of the Project site to approximate equipment moving throughout the site during construction activities. In addition, the commenter is incorrect in stating the property is 39 feet from Development B. The property in question is 78 feet from the center of Development A and 300 feet from the center of Development B. Based on the shape and orientation of the site, the sensitive receptors to the south of the site are located closer to the center of the site than 15911 Highland Avenue. Therefore, construction noise impacts at 15911 Highland Avenue would be lower than those analyzed in the IS/MND.
A-18 The commenter states that the Project would result in significant impacts and the City should be required to prepare an EIR. As addressed in response A-17, the Project would not result in significant noise impacts.
A-19 The applicant is required to pay Development Impact Fees toward police services per the City’s Municipal Code. With compliance of the applicable specifications and design principles pursuant to the FPD’s C.P.T.E.D, continued maintenance of an approximately one officer to 1,000 resident ratio, and the payment of associated DIF, additional police services are not necessary and potential impacts on police protection due to implementation of the Project would be less than significant. Refer also to Responses A-85 and A-86.
A-20 The commenter states that City Council should vacate the Planning Commission’s decision and require the City to prepare an EIR that includes a meaningful public services impact analysis. As addressed in response A-19, the Project would not result in significant and unavoidable impacts. As such, a Mitigated Negative Declaration is the appropriate CEQA document for the Project.
A-21 The City disagrees with the commenter. The Project is consistent with land use and zoning for the Project site, and the Planning Commission made its decision based on substantial evidence.
A-22 Refer to Responses A-1 through A-21 above.
A-23 The commenter suggests that the Planning Commission violated CEQA by approving the IS/MND and requests the City prepare an EIR for the Project. Refer to Responses A-1 through A-21 above. The City disagrees that an EIR needs to be prepared. As demonstrated by the technical studies prepared in connection with the IS/MND and further explained in these responses, there is no substantial evidence indicating supporting the claim that the Project would result in significant impacts after mitigation.
January 17, 2023 Letter
A-24 The commenter identifies himself as representing the Californians Allied for a Responsible Economy (“CARE CA”) and identifies the Project. This comment does not raise any issues with the environmental analysis provided in the IS/MND and no further response is required.
A-25 The comment describes project location. This comment does not raise any issues with the environmental analysis provided in the IS/MND and no further response is required.
A-26 The comment is a general summary of the project description. This comment does not raise any issues with the environmental analysis provided in the IS/MND and no further response is required.
A-27 Refer to Response A-6.
A-28 Refer to Response A-4 and Response A-7 through A-8.
A-29 Refer to Response A-6. Additionally, as identified in the Mitigated Negative Declaration prepared for the Project, no significant and unavoidable impacts were identified.
A-30 The comment identifies the technical support used to prepare comment. This comment does not raise any issues with the environmental analysis provided in the IS/MND and no further response is required.
A-31 This comment provides a statement of interest and does not raise any issues with the environmental analysis provided in the IS/MND and no further response is required.
A-32 Refer to Response A-6.
A-33 Refer to Response A-6.
A-34 Refer to Response A-6.
A-35 Refer to Response A-6.
A-36 Refer to Response A-6. The commenter does not identify which documents are missing from the MND. As such, no response is required.
A-37 Refer to Response A-36, above.
A-38 As previously discussed, the comment period began on December 23, 2022 and ended on January 17, 2023, which resulted in a 26-day comment period. The MND and all associated technical studies were made publicly available during the entirety of the comment period.
A-39 Refer to Response A-38, above. CEQA Section 21092(b)(1) includes public notice requirements for agencies preparing environmental impact reports or negative declarations. It provides, in relevant part “the notice shall specify… the address where copies of the draft environmental impact report or negative declaration, and all documents referenced in the draft environmental impact report or negative declaration, are available for review…” (Pub. Res. Code, §21092(b)(1)). CEQA Guidelines section 15087(c)(5) clarifies that the notice shall specify “the address where copies of the EIR and all documents incorporated by reference in the EIR will be available for public review. This location shall be readily accessible to the public during the lead agency’s normal working hours.” (14 Cal. Code Regs., §15087(c)(5)). CEQA Guidelines Section 15087(c)(5) was most recently amended effective 2018 to clarify that the term “referenced in the Draft environmental report” for the purposes of CEQA Section 21092 and CEQA Guidelines Section 15087 means “incorporated by reference” as described in CEQA Guidelines Section 15150. In its comments on the amendment, the Governor’s Office of Planning and Research observed that “if the requirement for the lead agency to make documents available for public inspection were to include all documents simply referenced or cited in an EIR or negative declaration, the requirement would be burdensome, unnecessary and unreasonable on lead agencies.” These authorities clarify that CEQA requires that the City provide notice of the address where all documents incorporated by reference in the DEIR are available for public inspection. The City respectfully declines the commenter’s request to extend the public review and comment period for the Project because the City has fully complied with its obligations pursuant to CEQA Section 21092(b)(1) and CEQA Guidelines Section 15087(c)(5). The City will continue responding to the commenter’s requests for documents in compliance with the California Public Records Act (Gov. Code, §§6250 et seq).
A-40 Refer to Response A-38 above.
A-41 Refer to Response A-4 and Response A-9.
A-42 CEQA Guidelines Section 15384 states: (a) “Substantial evidence” as used in these guidelines 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. Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence. (b) Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.
A fair argument requires substantial evidence (CA Code of Regulations. § 15384(a)). Substantial evidence, for purposes of the fair argument standard, includes “fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.” Under CEQA Guidelines Section 15384, argument, speculation, unsubstantiated opinion or narrative, evidence that is not credible, and evidence of social and economic impacts does not constitute substantial evidence. (Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556, 580.) Refer to responses A-4 and A-5 as well as A-10 through A-11 regarding the project’s air quality impacts, and Response A-16 and A-17 regarding the project’s noise impacts. As noted in Response A-11, the commenter’s modeling and results are misleading, highly inaccurate and lack credibility. Therefore, the commenter’s conclusions are not supported by credible evidence, much less substantial evidence, and therefore do not support the conclusion that the Project would have a significant health risk impact with respect to DPM emissions. As the data provided by the commenter does not accurately represent the project, it does not support a fair argument based on substantial evidence. Neither this nor any other comment presents substantial evidence of a fair argument that the project may cause a significant impact. In the absence substantial evidence provided in comments, an IS/MND is the proper means to evaluate a project under CEQA. This comment does not raise any new information with respect to the disposition of significant environmental impacts or issues evaluated in the IS/MND and therefore, no further response is required.
A-43 Refer to Response A-42. Additionally, as identified in the Mitigated Negative Declaration prepared for the Project, no significant and unavoidable impacts were identified.
A-44 Refer to response A-42.
A-45 Refer to response A-42. As noted above, the comment does not provide substantial evidence of a fair argument that the project may cause a significant impact. In the absence substantial evidence provided in comments, an IS/MND is the proper means to evaluate a project under CEQA.
A-46 The comment discusses mitigation measures and CEQA guidelines in general does and not reference a specific mitigation measure in the IS/MND or specific issues with the environmental analysis in the IS/MND. No further response is required.
A-47 Refer to Response A-1 through A-23 above.
A-48 The City respectfully disagrees. The MND fully describes the Project, starting on page 5 of the MND. The MND also includes multiple exhibits to further describe and visualize the Project.
A-49 Refer to Response A-48.
A-50 Refer to Responses A-16 and A-17 regarding noise. The localized air quality analysis (IS/MND page 73 to page 75) followed the SCAQMD’s Localized Significance Thresholds Methodology Document (July 2008) and demonstrated that Project emissions would not exceed the SCAQMD’s Localized Significance Thresholds (LSTs). The analysis used thresholds from the SCAQMD’s lookup tables based on the closest receptors located 32 meters away. However, as shown below, Project emissions would not exceed the SCAQMD’s most conservative thresholds at 25 meters (appropriate for receptors located 25 meters away or less). Therefore, no impact would occur at the adjacent convenience store.
Activity
Emissions (Maximum Pounds Per Day)
Nitrogen Oxide
(NOx)
Carbon Monoxide
(CO)
Coarse Particulate Matter (PM10)
Fine Particulate Matter (PM2.5)
Maximum Construction Emissions
33.08 20.59
9.28 5.42
SCAQMD Localized Construction Screening Threshold (adjusted for 3.5 acres at 25 meters) 220
1,359
11 6
Threshold Exceeded?
No
No
No
No
Operations – On-Site and Mobile Source Emissions
5.52 4.68
0.42 0.42
SCAQMD Localized Screening Threshold
(5 acres at 25 meters)
270
1,746
4 2
Threshold Exceeded?
No
No
No
No
A-51 Refer to Response A-10 and Response A-11.
A-52 Refer to Response A-10 and Response A-11.
A-53 Refer to Response A-10 and Response A-11.
A-54 Refer to Response A-10 and Response A-11.
A-55 Refer to Response A-10 and Response A-11.
A-56 Refer to Response A-10 and Response A-11.
A-57 Refer to Response A-10 and Response A-11.
A-58 Refer to Response A-10. The case law referenced in the comment concerns health effects from exceedances of criteria pollutant thresholds (i.e., not Toxic Air Contaminants [TACs]). Project emissions are below the SCAQMD’s regional and localized thresholds. The SCAQMD set its CEQA significance thresholds based on the Federal Clean Air Act (FCAA). The National Ambient Air Quality Standards (NAAQS) establish the levels of air quality necessary, with an adequate margin of safety, to protect public health. Projects that do not exceed the SCAQMD’s LSTs and mass emissions thresholds would not violate any air quality standards or contribute substantially to an existing or projected air quality violation , and thus would not contribute to health impacts.
A-59 Refer to Response A-10 and Response A-11.
A-60 Refer to Response A-10 and Response A-11.
A-61 Refer to Response A-10 and Response A-11.
A-62 Refer to Response A-10 and Response A-11.
A-63 Refer to Response A-10 and Response A-11.
A-64 Refer to Response A-11.
A-65 Refer to Response A-11.
A-66 Refer to Response A-11.
A-67 Refer to Response A-14.
A-68 Refer to Response A-14.
A-69 Refer to Response A-14.
A-70 Refer to Response A-14.
A-71 Refer to Response A-14. Additionally, the MND fully discloses all potential health and safety risks associated with development of the Project.
A-72 The commenter asserts MM GHG-3 (TDM Program) is non-binding and improperly deferred. The commenter is incorrect. MM GHG-3 is included in the Mitigation Monitoring and Reporting Program and the required TDM program is required to be submitted to the City prior to the issuance of occupancy permits. It thus fully enforceable and binding on the applicant. Further, while MM GHG-3 allows for some flexibility in the particulars of the TDM program, it specifies numerous features that the TDM Program is required to include. Therefore, there are assurances that reductions in commute VMT through feasible TDM measures would be provided by the Project and would be implemented as part of future Certificates of Occupancy for future tenants.
A-73 Refer to Response A-72.
A-74 Refer to Response A-72.
A-75 Refer to Response A-72.
A-76 TDM measures were incorporated and quantified in CalEEMod’s mitigation module. The model outputs in IS/MND Appendix A shows that CalEEMod’s TRT-1 (Implement Trip Reduction Program), TRT-3 (Provide Ride Sharing Program), and TRT-11 (Employee Vanpool/Shuttle) were applied. According to the CAPCOA guidance Quantifying Greenhouse Gas Mitigation Measures (2011), such a trip reduction program may include carpooling encouragement, ride-matching assistance, preferential carpool parking, flexible work schedules for carpools, half time transportation coordinator, vanpool assistance, and bicycle end-trip facilities (parking, showers and lockers). All of these features are expressly required to be included in the TDM Program per MM GHG-3. TRT-3 increases vehicle occupancy by ride sharing, will resulting in fewer cars driving the same trip, and thus decreasing VMT. TRT-11 requires an employer-sponsored vanpool or shuttle. These measures would be facilitated by the transportation coordinator required in MM GHG-3.
CalEEMod caps the maximum reduction based on the CAPCOA report to avoid double counting. TRT-1 (Commute Trip Reduction Programs) applied in CalEEMod is defined by CAPCOA as a voluntary multi-strategy program that encompasses a combination of individual measures (including ride sharing and vanpool). As TRT-1 encompasses a variety of measures, the CalEEMod/CAPCOA calculation includes a means of preventing double-counting of reductions for individual measures that are included in this strategy by setting a maximum level of reductions permitted for a combined set of strategies within a voluntary program.
CAPCOA notes that the TRT-3 (Ride Sharing) strategy is often part of Commute Trip Reduction Program. Additionally, CAPCOA notes that vanpools (TRT-11) can capture 2 to 20 percent mode share. The Project’s CAPCOA modeling in the IS/MND used the 2 percent minimum to be conservative and to avoid double counting. It should be noted that the percentage reduction reflects emission reductions from running emissions. According to CAPCOA, the actual emissions reduction would be even lower because the reduction is conservatively not applied to starting and evaporative emissions.
As discussed in the IS/MND, MM GHG-3 requires carpooling encouragement, ride-matching assistance, preferential carpool parking, flexible work schedules for carpools, half time transportation coordinator, vanpool assistance, and including secure bicycle storage, showers for employees, lockers, etc. around the project site. In this case, the performance standard is to provide the above-mentioned amenities and services to encourage trip reduction. Information sharing and marketing are important components to successful trip reduction strategies. Because all of above-referenced features are required to be included in the TDM Program, application of TRT-1, TRT-3, and TRT-11 is appropriate. While the TDM Program may include additional features and strategies, no additional reductions were taken in CalEEMod. The mobile source emissions described in the ISMND are thus reasonable and conservative. The TDM program would be verified by the City prior to the issuance of occupancy permits.
A-77 Refer to Response A-76.
A-78 The commenter argues that the IS/MND improperly relies on MM GHG-2 to reduce the Project’s GHG emissions by 669.87 MTCO2e per year, representing 100 percent of the expected building load, due to the fact that MM GHG-2 does not necessarily require the installation of on-site renewable energy generation.- MM GHG-2 requires the installation of solar photovoltaic (PV) panels or other source of renewable energy generation on-site, or that the applicant otherwise acquire energy from the local utility that has been generated by renewable sources (for example, Southern California Edison Green Rate), that would provide 100 percent of the expected building load. Electricity purchased from the Southern California Edison Green Rate is from 100 percent renewable sources. Specifically Southern California Edison purchases renewable energy to meet the needs of Green Rate participants from solar renewable developers within their service territory. This is typically a voluntary program that is required per MM GHG-2. Therefore, the purchasing electricity from the Green Rate plan would still offset the project’s electricity emissions. To the extent there is any confusion regarding the information presented in IS/MND Table 15, the energy-related emissions of 1,557.62 MTCO2e per yeardo not account for the purchase/generation of renewable electricity (which is listed separately as -669.87. MTCO2e. Thus, purchasing electricity generated by renewable sources would reduce energy emissions to 887.57 MTCO2e per year. Thus, regardless of whether the applicant ultimately determines to comply with MM GHG-2 via the installation of on-site generation or via purchase of electricity from renewable sources, the reduction associated with such measure is accurate.
A-79 Refer to Response A-78.
A-80 Refer to Response A-72 through Response A-79.
A-81 Refer to Response A-16 and Response A-17.
A-82 Refer to Response A-16 and Response A-17.
A-83 Comment noted.
A-84 The commenter is restating information contained in the MND.
A-85 As identified on page 168 of the MND, with compliance of the applicable specifications and design principles pursuant to the FPD’s C.P.T.E.D, continued maintenance of an approximately one officer to 1,000 resident ratio, and the payment of associated DIF, additional police services are not necessary and potential impacts on police protection due to implementation of the Project would be less than significant.
A-86 The commenter claims there is substantial evidence demonstrating that In-N-Out restaurants experience serious crime. The only evidence cited, however, are newspaper articles discussing a handful of incidents at various In-N-Out locations throughout California over a multi-year period. There are some 268 In-N-Out locations in California. (www.in-n-out.com/locations/california) Thus, articles relating to a few isolated incidents that required a police response do not constitute substantial evidence suggesting that such restaurants generate above-average demand for police services (let alone substantiate the hyperbolic claims made by the commentor). Nevertheless, in response to this comment, City planning staff further consulted with the City’s police department to confirm that the Project, including In-N-Out can be adequately served by the department. As indicated in a March 7, 2023 letter from the Chief of Police attached hereto as Exhibit B, “[b]ased on the lack of issues with the pre-existing In N Out restaurant in the City of Fontana, police do not anticipate cause for extra patrol or an increase in calls for service.” The Chief further confirmed the police department has no concerns about and thus supports the proposed Project. Accordingly, the City has sufficient police resources to serve the Project, and any claim to the contrary is baseless. Refer to Response A-85 above.
A-87 The commenter restates what entitlements are being sought for the Project.
A-88 As previously stated, the MND and associated technical studies determined that the Project would not create any significant and unavoidable impacts. As such, the preparation of an EIR is not necessary. Additionally, City staff prepared findings for each permit, as noted in the staff report for the Project.
A-89 The MND fully analyzed and disclosed land use inconsistencies, starting on page 144 of the MND. The Project has a land use designation of General Commercial (C-G) and is within the General Commercial (C-2) Zoning District. The proposed Project is consistent with the zoning, but it will require the approval of CUP No. 20-025 and CUP No. 20-026 to allow the development of the hotels. Therefore, development of the proposed Project would not conflict with the City’s land use plan, policy, or regulation and therefore, would be less than significant.
A-90 Refer to Response A-88.
A-91 Refer to Response A-1 through A-23 above. The Project does not have any significant and unavoidable environmental impacts.
Refer to Responses A-4 and A-5 as well as A-10 through A-11 regarding the project’s air quality impacts, and Response A-16 and A-17 regarding the project’s noise impacts. Technical studies for the Project were prepared and determined that all impacts could be reduced to less than significant with mitigation.
A-92 Refer to Response A-10 regarding CalEnviroScreen and AB 535.
A-93 Refer to Response A-10 regarding CalEnviroScreen and AB 535.
A-94 Refer to Response A-6. Additionally, as identified in the Mitigated Negative Declaration prepared for the Project, no significant and unavoidable impacts were identified. As such, an EIR is not warranted nor necessary.
A-95 Refer to Responses A-1 through A-94, above.
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OEHHA, Air Toxics Hot Spots Program Risk Assessment Guidelines – The Air Toxics Program Guidance Manual for Preparation of Health Risk Assessments, August 2003, Section 1.1, page. 1-1. See also, OEHHA, Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments, February 2015. Available at: https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf, Section 1.1, page. 1-1 (accessed February 2023).
OEHHA, 2003 Guidance Manual and 2015 Guidance Manual at Section 1.1, page. 1-2.
Ibid.
“Toxic air contaminant” means an air pollutant 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. See Health and Safety Code Section 39655.
CARB and CAPCOA, Risk Management Guidance for Stationary Sources, July 2015, Section I.D, page 5 and Appendix A, Table A-1: Statewide ARB Air Toxics Regulations for Stationary Sources. Available at: https://ww2.arb.ca.gov/sites/default/files/classic/toxics/rma/rmgssat.pdf (accessed February 2023).
SCAQMD, Final Environmental Assessment for: Proposed Amended Rule 307.1 – Alternative Fees for Air Toxics Emissions Inventory; Proposed Amended Rule 1401 – New Source Review of Toxic Air Contaminants; Proposed Amended Rule 1402 – Control of Toxic Air Contaminants from Existing Sources; SCAQMD Public Notification Procedures for Facilities Under the Air Toxics ‘Hot Spots’ Information and Assessment Act (AB 2588) and Rule 1402; and, SCAQMD Guidelines for Participating in the Rule 1402 Voluntary Risk (SCAQMD Final EA), pages 1-2 and 2-23, September 2016. Affected facilities are those in identified for the AB 2588 Air Toxics Hot Spots program, which does not include the proposed Project nor mixed-use projects like the proposed Project that are not stationary sources. Further, the SCAQMD states it “does not have guidance on construction Health Risk Assessments.” CARB and CAPCOA, Risk Management Guidance for Stationary Sources, July 2015, Section III.J, page 16.
CAPCOA, Health Risk Assessment for Proposed Land Use Projects, July 2009, page. 1. “While local air districts have ample experience evaluating and mitigating toxic emissions from permitted statutory sources, most have limited experience preparing or reviewing risk assessment associated with multiple toxic sources or assessment for exhaust from mobile sources that are typically found when evaluating health risks to proposed land use projects. In order to provide consistency to lead agencies, project proponents and the general public throughout the state, the [CAPCOA] formed a subcommittee … to develop guidance on assessing the health risk impacts from and to proposed land use projects.” Available at http://www.capcoa.org/wp-content/uploads/2020/12/withstamp_CAPCOA_HRA_LU_Guidelines_8-6-09-min.pdf (accessed February 2023).
CARB, Air Quality and Land Use Handbook: A Community Health Perspective, April 2005, available at: https://www.arb.ca.gov/ch/handbook.pdf, SCAQMD, Health Risk Assessment Guidance for Analyzing Cancer Risks from Mobile Source Diesel Idling Emissions for CEQA Air Quality Analysis, August 2003.
See SCAQMD Rules and Regulations XIV – Toxics and Other Non-Criteria Pollutants, Rules 1401 and 1402.
SCAQMD, AB 2588 and Rule 1402 Supplemental Guidelines for Preparing Risk Assessment for the Air Toxics “Hot Spots” Information and Assessment Act, October 2020, Available at: http://www.aqmd.gov/docs/default-source/planning/risk-assessment/ab-2588-supplemental-guidelines.pdf (accessed February 2023).
SCAQMD, Health Risk Assessment Guidance for Analyzing Cancer Risks from Mobile Source Diesel Idling Emissions for CEQA Air Quality Analysis, August 2003.
SCAQMD Final EA, pages 1-2 and 2-23, September 2016. Affected facilities are those in identified for the AB 2588 Air Toxics Hot Spots program, which does not include the proposed Project nor mixed-use projects like the proposed Project that are not stationary sources. Further, the SCAQMD states it “does not have guidance on construction Health Risk Assessments.” CARB, Air Quality and Land Use Handbook: A Community Health Perspective, April 2005. Available at: https://www.arb.ca.gov/ch/handbook.pdf (accessed February 2023).
SCAQMD, CEQA Handbook, 1993. Chapters 5, 9 and 10.
SCAQMD Final EA, page. 2-23, September 2016.
South Coast Air Quality Management District (August 2021). MATES V Final Report, page ES-16. Available at http://www.aqmd.gov/docs/default-source/planning/mates-v/mates-v-final-report-9-24-21.pdf?sfvrsn=6. Accessed February 2023.
SCAQMD, Mobile Source Guidance, August 2003.
http://www.aqmd.gov/docs/default-source/ceqa/handbook/california-air-resources-board-air-quality-and-land-use-handbook-a-community-health-perspective.pdf http://www.aqmd.gov/home/rules-compliance/compliance/toxic-hot-spots-ab-2588/health-risk-assessment DTSC. 2021. Cortese List. Available at: https://www.envirostor.dtsc.ca.gov/public/search?cmd=search&reporttype=CORTESE&site_type=CSITES,FUDS&status=ACT,BKLG,COM&reporttitle=HAZARDOUS+WASTE+AND+SUBSTANCES+SITE+LIST+%28CORTESE%29. Accessed March 16, 2021.
City of Fontana. 2015 – 2035 General Plan Update. Chapter 11, Noise and Safety - Hazards and Hazardous Materials, page 11.7.
Pub. Res. Code § 21080(e)(1) (emphasis added); Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327, 331 (“CREED”).
California Air Pollution Control Officers Association, Quantifying Greenhouse Gas Mitigation Measures, page 218, 2010.
California Air Pollution Control Officers Association, Quantifying Greenhouse Gas Mitigation Measures, page 228, 2010.
California Air Pollution Control Officers Association, Quantifying Greenhouse Gas Mitigation Measures, page 255, 2010.
Southern California Edison, Power Content Label, https://www.sce.com/sites/default/files/custom-files/Web%20files/Prospective%20Product%20Content%20Label.pdf