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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
.
SO. SAN FRANCISCO OFFICE
601 GATEWAY BLVD., SUITE 1000
SO. SAN FRANCISCO, CA 94080
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ADAMS BROADWELL JOSEPH & CARDOZO
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March 28, 2023
VIA EMAIL AND OVERNIGHT MAIL
Acquanetta Warren, Mayor
City Council Members
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Email: [email protected];
[email protected];
[email protected];
[email protected];
[email protected];
[email protected]
Germaine McClellan Key, City Clerk
Office of the City Clerk
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Email: [email protected];
[email protected]
VIA EMAIL
Salvador Quintanilla, Senior Planner
Email: [email protected]
Re: Agenda Item Public Hearing B - Appeal of Planning Commission Approval of the Fontana Square Project (Case No. 20-083) and Initial Study/Mitigated Negative Declaration
Dear Mayor Warren, Councilmembers, Ms. Key, and Mr. Quintanilla:
On behalf of Californians Allied for a Responsible Economy (“CARE CA”), we provide these comments to the City of Fontana (“City”) City Council, regarding the March 28, 2023, Agenda Item Public Hearing: B, including Attachment No. 7 – Response to the Appeal (“Response”)1 prepared by the City with regard to CARE CA’s January 30, 2023, appeal (Appeal No. 23-001) of the City Planning
1 City of Fontana, City Council, Agenda Item: Public Hearing B, Attachment No. 7 – Response to the Appeal (hereinafter “Response”) (March 28, 2023) available at https://fontana.legistar.com/LegislationDetail.aspx?ID=6103992&GUID=7F0EF8A6 -219D-46A4- 86C8-F3407503B8CD&Options=&Search=
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Commission’s January 17, 2023, approval of the Fontana Square Project, Master Case No. 20-083 (“Project”), and the Initial Study/Mitigated Negative Declaration (“MND”) prepared by the City for the Project.2
The Project, proposed by Jinder Singh (“Applicant”), proposes to construct a banquet hall (“Development A”), a Holiday Inn Express Hotel & Suite and a Staybridge Suites (“Development B”), a convenience (“C-Store”)/Restaurant (“Development C”), and an In-N-Out Burger (“Development D”).3 The establishments would be generally located closer to the northern property boundary with most of the vehicle parking stalls along S. Highland Avenue, Citrus Avenue4 Parking is also provided throughout the site and between the various establishments.5
CEQA requires that the potential impacts of this Project be evaluated in an environmental impact report (“EIR”), not in an MND, because substantial evidence supports a fair argument that the Project may have significant, unmitigated air quality, public health and greenhouse gas impacts that are not adequately disclosed or mitigated by the MND. The Planning Commission’s findings approving the Project’s land use entitlements were similarly unsupported by substantial evidence because the Project’s unmitigated impacts would be detrimental to the health and safety of nearby residents.
CARE CA notified the City of significant errors and deficiencies in the MND over two months ago. Since receiving the Appeal, the City has proceeded to conduct additional studies and generate new environmental reports addressing the Project’s soil contamination and health risk impacts on an ad-hoc basis, without providing the studies to the public and without providing an opportunity for public review and comment on the new information. This is a violation of CEQA, which requires that all information required to be considered in a CEQA document “must be in that formal report; what any official might have known from other writings or oral presentations cannot supply what is lacking in the report.”6
2 City of Fontana, Fontana Square Project, Initial Study/Mitigated Negative Declaration (hereinafter “MND”) (December 2022) available at https://www.fontana.org/DocumentCenter/View/40634/- Fontana-Square-Project-Public-Draft-Initial-Study-Mitigated-Negative-Declaration 3 MND, p. 5.
4 MND, p. 5.
5 MND, p. 5.
6 Santiago County Water District v. County of Orange (1981) 118 Cal.App.3rd 818, 831; Sundstrom v.
County of Mendocino (1988) 202 Cal.App.3d 296, 307.
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The Agenda and staff report for this hearing also fail to include the four new documents referenced in the Response, including (1) the Phase I Environmental Site Assessment7, (2) a March 7, 2023 letter from the Chief of Police regarding the Project’s public safety impacts8, (3) a health risk assessment completed by Kimley Horn for the Project’s health risk impacts from construction9, and (4) the results of soil sampling at the Project site.10 The City’s actions have resulted in a confusing and incomplete record and an inadequate CEQA document which prevents this Council, and the public, from understanding the scope and impacts of the Project.11
The City Council scheduled this hearing for the Project based on an incomplete CEQA document that relies on hidden studies to justify its findings in violation of CEQA, and on an incomplete Project record.12 This Project must be returned to staff with direction to prepare an EIR for the Project that includes an analysis of all studies and reports prepared to analyze the Project’s impacts in one cohesive document. That EIR must then be circulated for public review.
Additionally, after review of the City’s Response, we find that: The Planning Commission’s hearing of the Project was premature; an EIR is required for the Project because substantial evidence supports a fair argument that that Project will cause: (1) a significant, unmitigated cancer risk from toxic air contaminant emissions, (2) a potentially significant, unmitigated impact from greenhouse gas emissions, and (3) a significant unmitigated risk to public health. The Planning Commission’s approval findings were also not supported by substantial evidence.
7 Response, A-14, p. 8.
8 Response, A-86, p. 15.
9 Response, A-10, p. 6 (“a quantitative HRA was prepared to evaluate the human health risk associated with Project construction.”)
10 Response, A-14, p. 8.
11 Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442 (as modified Apr. 18, 2007) (“The data in an EIR must not only be sufficient in quantity, it must be presented in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project.”) 12 Santiago Cty. Water Dist. v. Cty. of Orange (1981) 118 Cal.App.3d 818, 831 (“Whatever is required to be considered in an EIR must be in that formal report; what any official might have known from other writings or oral presentations cannot supply what is lacking in the report.”).
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The Response prepared by the City does not address or remedy many of the significant impacts identified in CARE CA’s MND comments and Appeal.13 CARE CA requests that the City Council uphold this appeal and return the Project to staff to prepare EIR for the Project.
These comments are supported by supplemental comments from air quality and hazards expert James Clark, Ph.D.14 We reserve the right to supplement these comments at later hearings and proceedings on the Project.15
A. The Planning Commission Hearing Was Premature
The Appeal explained that the Planning Commission hearing for the Project was premature and in violation of CEQA because the public comment period for the MND was still open at the time the hearing occurred and the Planning Commission did not review or consider all public comments before rendering a decision on the Project. The Planning Commission therefore did not have adequate opportunity to consider all public comments and correct the deficiencies in the City’s CEQA document before approving the Project, as required by CEQA, and its decision to approve the Project was based on an incomplete record. This Appeal followed.
CEQA requires the decision-making body of the lead agency to receive and consider all public comments received on the MND.16 The purpose of this requirement is to ensure that the decision maker considers the entire evidentiary record The purpose of the public comment period is to foster public participation.17 CEQA Guidelines § 15074(b) states:
Prior to approving a project, the decision-making body of the lead agency shall consider the proposed negative declaration or mitigated negative declaration together with any comments received during the public review process.
13 Attachment No. 1 to the City Council’s March 28, 2023 Agenda, Public Hearing – B is incorporated herein by reference, including CARE CA’s January 17, 2023 comment letter to the Planning Commission and January 30, 2023 appeal of the Planning Commission’s approval of the Project, along with the accompanying reports prepared by air quality and hazard s expert James Clark, Ph.D., of Clark and Associates, and noise expert Derek Watry of Wilson-Ihrig. 14 Exhibit A: James Clark Ph. D., Comments on Appeal Responses to Comments on Initial Study/Mitigated Negative Declaration (IS/MND) For Fontana Square Project, 16014 South Highland Avenue, Fontana, CA (March 28, 2023) (hereinafter “Clark”). 15 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.
16 14 Cal. Code Regs. § 15074(b).
17 14 Cal. Code Regs § 15201.
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The decision -making body shall adopt the proposed negative declaration or mitigated negative declaration only if it finds on the basis of the whole record before it (including the initial study and any comments received), that there is no substant ial evidence that the project will have a significant effect on the environment and that the negative declaration or mitigated negative declaration reflects the lead agency's independent judgment and analysis.18
The Planning Commission is the decision maker for the Project’s entitlements, and was therefore the decision making body charged with considering public comments on the CEQA document before approving the Project.19 The January 17, 2023 Planning Commission hearing was held during the last day of the MND public comment period, and the Planning Commission’s decision was rendered before the close of the comment period, without reviewing or considering CARE CA’s MND comments and without allowing the public comment period to conclude.20
The Response states that the public comment period for the MND was extended from 20 days, as required under CEQA, to 26 days, and concludes that as a result of the extended public comment period, the Planning Commission’s hearing of the Project was not premature.21 The length of the public comment period is not disputed as it is inconsequential to the issue. At issue is the fact that the Notice of Intent for the MND states that the public comment period ended on January 17, 2023, and does not include a specific time that the comment period would close.22 Without a specific time stated in the NOI, the public had the opportunity to submit comments at any time on January 17, 2023, including after the public hearing by the Planning Commission. Therefore, it is an indisputable fact that the Planning Commission’s hearing and decision on the Project the evening of January 17 took place before the close of the public comment period, in violation of CEQA.
18 14 Cal. Code Regs. § 15074(b) (emphasis added).
19 Id.; FMC §§ 30-120, 30-150.
20 CARE CA’s MND comments were timely submitted on January 17, 2023. The Notice of Intent to adopt the MND set January 17, 2023, as the last day to submit comments on the MND, but did not set a cutoff time for submission, indicating that comments could be submitted anytime of the day or evening. The Planning Commission hearing was conducted at 6:00 p.m. during the last day of the public comment period. The hearing therefore occurred before the close of the MND public comment period. The Planning Commission did not review or respond to CARE CA’s comments before voting to approve the Project.
21 Response, A-6, p. 1.
22 City of Fontana, Notice of Intent to Adopt a MND and Notice of Public Hearing, Master Case No. 20-083 (December 2022) available at https://www.fontana.org/DocumentCenter/View/40643/Fontana- Square-MCN-20-083-PHN-
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Moreover, by hearing the Project on January 17, the Commission lacked the requisite time to consider all comments received on the MND before rendering a decision on the Project, and therefore could not exercise independent judgment and analysis in approving the Project, as required by CEQA. The Planning Commission’s actions thwarted meaningful participation by the public and the detailed consideration of the Project’s environmental impacts by the Project’s decision maker that CEQA requires.
CARE CA respectfully requests that the City Council set aside the Planning Commission’s premature decision to approve the Project, require the City to prepare an EIR for the Project for the reasons set forth in CARE CA’s appeal and in the following comments, and schedule a new Planning Commission hearing after the close of the public comment period on the EIR.
B. There is Substantial Evidence Supporting a Fair Argument that the Project May Cause a Significant, Unmitigated Cancer Risk from Toxic Air Contaminants Emissions
The MND concluded that the health risk posed to nearby sensitive receptors from exposure toxic air contaminants (“TAC”), including diesel particulate matter (“DPM”) emissions, from Project construction and operation would be less than significant. CARE CA’s MND comments explained that the MND’s conclusion was unsupported because the City failed to quantify the risk and compare it to applicable thresholds of significance, as required by CEQA.23 CARE CA also provided substantial evidence that the Project would result in potentially significant health risks from construction and operation.
The Response states that the City is not required to complete a health risk assessment (“HRA”) for Project construction or operation because the MND analyzed the Project’s air quality impacts in relation to localized significance thresholds (“LSTs”) and determined that the Project would not exceed said LSTs.24 However, as CARE CA previously commented, while LSTs are appropriate when determining whether a Project will generate criteria air pollutants in excess of established thresholds, LSTs are not appropriate to determine the Project’s toxic air contaminant (“TAC”) impacts because there are no LSTs for TACs. The MND’s purported comparison of the Project’s TAC emissions to LSTs was therefore
23 Sierra Club v County of Fresno (2018) 6 Cal.5th 502, 518–522. 24 Response, A-10, p. 2.
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meaningless and provides no support for the MND’s conclusion that health risk impacts are less than significant. Instead, the determination of risk from TAC exposure must be based on a quantitative risk analysis of the Project’s TAC emissions. The Response fails to resolve this issue.
In his review of the Response, Dr. Clark also found that the City’s analysis failed to consider the significant emissions associated with vehicles not powered by diesel. According to the SCAQMD’s MATES V study, emissions from gasoline powered vehicles are a significant source of TACs including benzene, 1,3-butadiene, acetaldehyde, acetone, formaldehyde, and MTBE in the South Coast Air Basin.25
The City must complete a HRA and present the results in an EIR for the Project to justify the finding that there will be no health risk impact from TACs. A lead agency’s significance determination must be supported by accurate scientific and factual data.26 An agency cannot conclude that an impact is less than significant unless it produces rigorous analysis and concrete substantial evidence justifying the finding.27
The Planning Commission’s decision to adopt the MND without requiring the City to prepare a quantitative HRA was a violation of CEQA’s disclosure requirements, and resulted in an unsupported conclusion that the Project’s health risk impacts would be less than significant.28 The City has not prepared a HRA for Project operation and, as a result, has failed to analyze and mitigate the Project’s potentially significant health risks from operational emissions from passenger vehicles traversing the Project site.
Finally, the Response states that a HRA was completed by the City to evaluate the construction DPM emissions from trucks and off-road heavy equipment and found that the Project will not result in a significant impact.29 However, the results of the construction HRA were not attached to the Response or otherwise provided to the public. The City sent CARE CA a copy of the HRA output results on March 27, 2023 after numerous requests for access to the document. Dr. Clark reviewed the output files and concluded that the HRA output files released by the City do not accurately analyze the health risk impacts of Project construction. In
25 Clark, p. 9.
26 14 C.C.R. § 15064(b).
27 Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 732. 28 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 518–522. The South Coast Air Quality Management District (“SCAQMD”) similarly recommends that HRAs be prepared for development projects subject to CEQA.
29 Response, A-10, p. 6.
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his review, Dr. Clark found that the HRA output files do not follow the proper HRA methodology used by air quality experts and only analyzes the unmitigated construction emissions scenario.30 Further, the spreadsheets prepared by the City are not presented in a manner designed to inform decisionmakers or the public, thereby preventing this Council, and the public, from understanding the scope and impacts of the Project.31
Additionally, Dr. Clark found that the HRA output files do not assess all of the hazardous chemicals that are emitted from diesel exhaust.32 Dr. Clark explains that diesel emissions are comprised of 40 components that are suspected human carcinogens which the HRA output files are silent on.33 The City’s haphazard approach to evaluating the health risks from Project construction are inadequate and must be revised and presented in an EIR for the Project.
The City Council should uphold this Appeal, vacate the Planning Commission’s decision, and require staff to prepare an EIR that includes quantitative HRAs to disclose and analyze the Project’s operational and construction health risks from TACs. The EIR must then compare the risks to applicable thresholds of significance, and require mitigation for impacts that exceed thresholds.
C. There is Substantial Evidence Supporting a Fair Argument that the Project May Result in Significant, Unmitigated Health Risk Impacts from Disturbance of Contaminated Soils
CARE CA’s MND comments explained that the MND incorrectly concluded that the Project would not create a significant hazard to the public or the environment from the release of hazardous materials. Dr. Clark found that the Project site is within the fallout zone of the Kaiser Steel Mill, which blanketed the area with large quantities of carcinogenic compounds that persist in the environment. The MND failed to include a Phase I or Phase II environmental site assessment (“ESA”) and failed to analyze the potential for soil contamination onsite.
Soil will be disturbed during the Project’s excavation and construction phases.
Disturbance of any residual, unmitigated contamination in the soil may present a significant public health risk to construction workers working on the Project, and the public nearby.
30 Clark, p. 10.
31 Vineyard Area Cit. (2007) 40 Cal.4th 412, 442
32 Clark, p. 10.
33 Clark, p. 10.
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The Response claims that a Phase I ESA was completed for the Project.34 However, despite referencing the ESA as Exhibit A in the Response, the ESA was not attached or provided for review until March 27, 2023, one day before this hearing. Additionally, the Response states that soil sampling was conducted for the site and the results will be available prior to the City Council’s hearing of the appeal.35 To date, the results of the soil sampling have not been released to the public and appear to be incomplete. The City Council therefore lacks any evidence to support the MND’s conclusion that soil contamination impacts would be less than significant.
The Response states that “[i]n the unlikely event that soil contamination is discovered, an additional mitigation measure requiring appropriate remedial activities prior to Project construction will be recommended.”36 Not only does this response admit that the City has not fully examined the impacts of the Project, it also improperly defers mitigation of potentially significant impacts. A lead agency must mitigate significant impacts through measures that are “fully enforceable through permit conditions, agreements, or other legally binding instruments.”37 Deferring formulation of mitigation measures to post-approval studies is generally impermissible.38 Mitigation measures adopted after Project approval deny the public the opportunity to comment on the Project as modified to mitigate impacts.39 Here, the Response commits the City to a CEQA violation by stating that additional mitigation measures will be implemented based on the results of a study conducted after the Project was approved.
The Planning Commission lacked substantial evidence to adopt the MND’s unsupported conclusion that soil disturbance would result in a less than significant impact under CEQA.40 The City Council should vacate the Planning Commission’s decision and remand the Project to staff to prepare an EIR that analyzes the extent of soil contamination that will be released as a result of Project construction and provide adequate mitigation for potential exposure of workers and nearby residents prior to Project approval.
34 Response, A-14, p. 8.
35 Response, A-14, p. 8.
36 Response, A-14, p. 8.
37 CEQA Guidelines, § 15126.4, subd. (a)(2).
38 Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 308-309; Pub. Resources Code, § 21061.
39 Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1393; Quail Botanical, supra, 29 Cal.App.4th at p. 1604, fn. 5.
40 CBIA v. BAAQMD, 196 Cal.Rptr.3d 94, 105-106; 14 CCR § 15126.2(a).
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D. There is Substantial Evidence Supporting a Fair Argument that the Project May Result in Significant Unmitigated
Greenhouse Gas Emissions
The City’s analysis of GHG emissions assumes a reduction of 19.4% by meeting or exceeding the California Green Building Standards Code (“CALGreen”) Tier 2 energy standards at the Project site.41 However, the Tier 2 energy standards relied on in the MND overestimate the reductions to be achieved from meeting the Tier 2 standards. According to the CALGreen § A5.601, a non-residential project that meets the Tier 2 standard will achieve an energy use reduction of 10-15 percent42, not 19.4% as claimed in the MND.43 By implementing the Tier 2 standards, the Project can expect to see GHG emissions from energy use between 1,643.65 to 1,740.34 MTCO2e, rather than 1,557.62 MTCO2e as reported in the MND. This would result in total Project emissions between 2,971.63 and 3,068.32 MTCO2e, potentially exceeding the City’s threshold for GHG emissions of 3,000 MTCO2e and resulting in a significant GHG impact.
Additionally, the MND’s analysis of the Project’s mitigated GHG emissions takes credit for renewable energy generation from an on-site or off-site source to be determined. MM GHG-2 states:
The project shall install solar photovoltaic (PV) panels or other source of renewable energy generation on-site, or 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.44
The Response reiterates that the Applicant can choose to comply with MM GHG-2 through on-site electricity generation or through the purchase of renewable energy through Southern California Edison’s (“SCE”) Green Rate Program.45 However, this choice is illusory as SCE is, and was at the time of Project approval, unable to enroll new customers in the Green Rate Program. According to SCE’s
41 MND, Table 15, p. 121 (stating that Project GHG emissions from energy would be mitigated to 1,557.62 MTCO2e from 1,993.71 MTCO2e).
42 California Green Building Standards Code, Title 24, Part 11, Appendix A5, Section 601 (2022) available at https://codes.iccsafe.org/content/CAGBC2022P1/appendix-a5-nonresidential-voluntary- measures
43 MND, Table 15, p. 121 (stating that Project GHG emissions from energy would be mitigated to 1,557.62 MTCO2e from 1,993.71 MTCO2e).
44 MND, p. 122 (emphasis added).
45 Response, A-78, p. 14.
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webpage for the Green Rate Program, “[t]he volume of interest for both the 50% and 100% Green Rate program has exceeded the amount of capacity available from approved Green Rate resources.”46 The notice posted to SCE’s webpage notes that SCE will maintain a waitlist and enroll new customers on a first come, first served basis if additional Green Rate resources are available in the future. There is no guarantee that the Applicant will be able to enroll in the Green Rate program, as such, in order to include the reduction in GHG emissions from renewable energy, the City must require on-site energy generation through an enforceable mitigation measure.
The Project could result in a significant GHG impact even if solar PV or other on-site renewable energy is a mandatory requirement of the Project’s mitigation measures. The City must prepare an EIR that accurately analyzes the Project’s GHG emissions and implement feasible and enforceable mitigation measures to reduce the Project’s potentially significant GHG emissions.
E. The Planning Commission Abused its Discretion by Approving the Project in Reliance on Unsupported Findings.
The Planning Commission’s findings that the Project complied with applicable land use codes was not supported by substantial evidence and should be vacated by the Council.
Pursuant to the City of FMC § 30-150, the City Planning Commission was required to find that: “Granting the permit would not be detrimental to the public interest, health, safety, convenience, welfare, or materially injurious to persons, property, or improvements in the vicinity in which the project is located.”
CARE CA has provided the City with substantial evidence demonstrating that the Project will conflict with this finding. Specifically, the Project will result in significant air quality impacts during operation that would be detrimental to the health and safety of nearby residents and the Project could result in potentially significant public health impacts from the disturbance of contaminated soils. These impacts precluded the Planning Commission from making the findings required under the Code.
46 Southern California Edison, Green Rates (accessed March 24, 2023) available at https://www.sce.com/residential/rates/standard-residential-rate-plan/green-rates March 28, 2023
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I. CONCLUSION
As a result of the errors detailed above, the City Planning Commission’s adoption of the MND, and the approval of Master Case No. 20-083, violated CEQA and must be overturned. We urge the City Council to uphold CARE CA’s Appeal and order the preparation of an EIR for the Project. Thank you for your attention to this important matter.
Sincerely,
Kevin Carmichael
KTC:ljl
EXHIBIT A
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March 28, 2023
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080
Attn: Mr. Kevin Carmichael
Subject: Comments On Appeal Responses To Comments On
Initial Study/Mitigated Negative Declaration (IS/MND)
For Fontana Square Project, 1601 4 South Highland
Avenue, Fontana, CA
Dear Mr. Carmichael:
At the request of Adams Broadwell Joseph & Cardozo (ABJC) , Clark and Associates (Clark) has reviewed materials related to the March, 2023 Kimley Horn Appeal Responses on behalf of the City of Fontana (the City’s) for the above referenced project.
Clark’s review of the materials in no way constitutes a validation of the conclusions or materials contained within the plan. If we do not comment on a specific item this does not constitute acceptance of the item.
Project Description:
According to the IS/MND1 the proposed Project is a commercial development composed of a banquet hall (Development A), a Holiday Inn Express Hotel & Suite and a Staybridge Suites (Development B), a convenience (C -Store)/Restaurant (Development C), and an In -N-Out Burger (Development D). The Project will be built on a vacant rectangular-shaped site on 8.876 acres. The IS/MND states that the establishments would be generally located closer to the northern property
1 Kimley-Horn and Associates. 2022. City of Fontana, Fontana Square Project, Initial Study/Mitigated Negative Declaration. December 2022. Pg 5
OFFICE
12405 Venice Blvd
Suite 331
Los Angeles, CA 90066
PHONE
310-907-6165
FAX
310-398-7626
EMAIL
[email protected]
Clark & Associates
Environmental Consulting, Inc.
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boundary with most of the vehicle parking stalls along S. Highland Avenue, Citrus Avenue. Parking is also provided throughout the site and between the various establishments.
Figure 1: Site Location And Aerial Image of Project Site
The proposed Project would consist of a number of building s (A through D) with various heights.2 The tallest structure would be the 5-story hotel at 65 feet 7 inches (65’ 7”). • Development Area A would consist of a two -story (32’ tall) building designed to be a 38,907 square foot ( SF) ba nquet hall. The banquet hall would have an 810 -seat
2 Kimley-Horn and Associates. 2022. City of Fontana, Fontana Square Project, Initial Study/Mitigated Negative Declaration. December 2022. Pgs 5-7.
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capacity. Development A would be located on the northwest corner of the site on 1.65 acres.
• Development B would be a combined 121,094 -SF, double branded 5 -story hotel building. The proposed use would be generally located on the western half of the site on 2.28-acres of the overall Project site.
• Development C would be approximately 5,000-SF, one-story building, approximately 32’-10” in height, designated for a store o r restaurant. Development C would be bordered by 12’X70’ loading area and a trash compartment to the north. • Development D would be a 3,885 -SF, one-story building, approximately 23’ -0” in height. Development D will be built as an In-N-Out Burger restaurant. In addition to the 3,885-square-feet of seating area, Development D would be bordered by the drive- thru and SR-210 to the north.
Figure 2: Proposed Project Site Plan
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According to the IS/MND, 3 the Project is anticipated to be developed in one phase. Upon Project approval, construction is anticipated to occur over a duration of approximately 18 months, beginning in the last quarter of 2022 and finishing in the first quarter of 2024. Construction activities would include the construction of a 6’-foot high concrete masonry units (CMU)/glass perimeter wall, fire access route, decorative paving, electrical vehicle charging stations.
Off-site improvements include perimeter curb and gutter along Citrus Avenue and S. Highland Avenue. Additionally, the Project would provide 57’-foot half right-of-way (ROW) on Citrus Avenue, would stripe a 200’-foot long southbound right-turn lane on Citrus Avenue, an 8’-foot storage lane.
The Project would provide a 104’-foot ROW near Driveway No. 2 and a 52’-foot half ROW near Driveway No. 1.
As part of the site’s grading activities, it is anticipated that the site would export 3,512.50 cubic yards (CY) of soil and import 5,490.50 CY of soil. Only one project feature and compliance measure for air quality has been outlined in the IS/MND. SC AQ-1 states that prior to the issuance of grading permits, the City Engineer shall confirm that the Grading Plan, Building Plans and Specifications require all construction contractors to comply with South Coast Air Quality Management District’s (SCAQMD’s) Rules 402 and 403 to minimize construction emissions of dust and particulates.
According to the City’s IS/MND of the Project, the potentially significant impacts identified in the IS/MND will be mitigated to less than significant levels. The conclusion from the City that the significant impacts can be mitigated is not supported by the facts of the Project. There are significant impacts that are not addressed in the City’s analysis that must be addressed in an environmental impact report (EIR).
Specific Comments:
1. Kimley Horn Has Failed To Account For The Availability of Green Energy For The Site In Its Green House Gas Analysis
Kimley Horn’s response to comments regarding use of “green” energy on site, reducing
3 Kimley-Horn and Associates. 2022. City of Fontana, Fontana Square Project, Initial Study/Mitigated Negative Declaration. December 2022. Pg 9.
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the impacts of GHG emissions by 669.87 metric tons of CO2 equivalent (MTCO2eq) fails to include relevant information from Southern California Edison (SCE) regarding the Green program. The City via Kimley Horn is taking credit for reductions that may not be achievable.
According to SCE's website, they no longer have the capacity to support additional sites in their Green program.
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Therefore, there is not guarantee that the project will be powered with clean energy from SCE and the City must eliminate the assumed reduction in their GHG analysis. This would result in a cumulative GHG rate of (2885.60 + 669.87 = 3,555.47 MTCO2eq) that exceeds the City of Fontana GHG threshold of 3,000 MTCO2eq.
The City must re-evaluate the significant GHG impacts from the Project by requiring the preparation of an EIR.
2. The Assumed GHG Reduction Utilized By The City Overestimates The Reductions Using The Tier 2 Energy Standards.
Table 3 of the IS/MND’s Appendix D (GHG Analysis) assumes a reduction of 19.4% by use of Tier 2 energy standards on site. The Tier 2 energy standard cited in Table 3 of Appendix D over estimates the savings. Based on the CalGreen checklist attached below, it is clear that the use of Tier 2 energy standards on site would reduce emissions of GHG by 10% to 15%, significantly less than the City’s assumptions. The GHG emissions from En ergy usage onsite would therefore be 1,643.65 MTCO2eq not the 1,557.62 MTCO2eq assumed by the City.
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Given the clear flaw in the GHG analysis identified in Comment 1 and Comment 2, it is clear that the City must re -evaluate the significant GHG impacts from the Project by requiring the preparation of an EIR.
3. The Responses From Kimley Horn Regarding Historic Hazardous Waste Contamination From The Kaiser Steel Mill Is Illogical Given The Phase 2 Sampling That Was Subsequently Performed Onsite
The City’s failure to perform sampling on the Project site prior to publishing the IS/MND points out the flawed analysis of hazardous wastes by the City. Without seeing the Sampling and Analysis Plan (SAP) prepared for the site or reviewing the analytical data that will eventually be generated, it
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is clear that there is substantial evidence that there could be a significant issues that was never addressed in the IS/MND. As was noted in my initial comments, the Kaiser Steel Mill located 3.4 miles to the southwest of the project site was a significant source of hazardous waste (including 11 different carcinogenic substances) that were released into the environment without any substantial emission controls. At the time of the initial evaluation of the plant in 1980, there was a c oncern about the emissions from the Kaiser Steel Mill being one of the largest sources of polycyclic organic matter (POMs are also known as polycyclic aromatic hydrocarbons), arsenic, cadmium, and benzene in California.4 Arsenic, cadmium, and POMs are not subject to degradation in the environment and will represent a COPC for the area.
As was noted previously, the Project’s construction phase will disturb large quantities of soils in areas that could have been impacted by the steel mills emissions. Mechanically disturbing the soils will release impacted soils that will migrate offsite to the residences nearby. The City must assess the concentrations of contaminants (primarily polycyclic aromatic hydrocarbons and metals) that may be present in the soils of the Project site and calculate their associated health risks. The City must correct this error in the hazardous materials section of the IS/MND by preparing a Phase II subsurface investigation and presenting the results in an EIR.
4. The Health Risk Analysis Fails To Consider All Of The Volatile Compounds Within Diesel Exhaust. The Acute Health Risk Analysis Focuses On Only One Of The Forty Known Compounds Associated With Diesel Exhaust And Therefore Underestimates The Potential Health Risk To Sensitive Receptors.
The HRA provided in the supplemental information is incomplete and assesses only the impact from the unmitigated construction activities. The spreadsheet provided fails to include the basic components of a health risk analysis which includes seven distinct steps which are identified below and represented in the attached figure.
4 KVB. 1970. An Inventory Of Carcinogenic Substances Released Into The Ambient Air Of California. Fin al Report – Task II & IV. Prepared for Science Applications, Inc by R.M. Roberts, KVB, Inc. Energy and Environmental Systems.
March, 1980.
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Figure 1-1. Health Risk Assessment Methodology
Step 1-Data Review and Evaluation
The readily available information related to the property and potential sources of emissions that will impact receptors need to be identified and qualified. This information forms the basis of the quantitative risk assessment.
Step 2-Constituent Selection
Chemicals of potential concern (COPCs) were selected based upon the expected frequency of detection (FOD) in affected media to ensure that the most significant potential for human exposure and risk is evaluated, as required by the regulatory agencies (Department of Toxic Substances Control [DTSC], 1996, 2015; U.S. EPA, 1988c, 1989a, 1992c).
Step 3-Exposure Assessment
Conceptual exposure scenarios were developed for the subject property to describe the potential exposures and provide a basis for quantifying those exposures. Each exposure scenario addresses the source of the COPCs, route or mechanism of exposure, and potentially exposed populations (known as "receptors").
Step 4-Toxicity Assessment
For each identified COPC, an understanding of its toxicity to humans as well as potential environmental effects is essential. Toxicity information, which includes carcinogenic and non- carcinogenic effects, is available for many compounds from regulatory agencies and in the scientific literature. In this step all of the hazardous compounds associated with vehicle emissions would be identified and assessed.
Step 5-Risk Characterization
Risk characterization is the quantitative analysis of the potential health risk based on the selected COPCs (Step 2), the exposure scenarios and exposure point concentrations established in the exposure assessment (Step 3), and chemical -specific toxicit y information (Step 4).
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Included are the cancer risk estimates, non-cancer hazard indices, and summary of assumptions used in the calculations. The calculations of risk are conservative estimates based upon the theoretical reasonable maximum exposure scenarios in Step 3.
Step 6-Uncertainty Analysis
Step 6 involves the evaluation of the inherent uncertainty associated with the risk results as a product of the information and assumptions used in their derivation. A qualitative discussion is provided assessing the level of conservatism inherent in the risk values.
Step 7-Findings
The final step in the process is the development and presentation of conclusions that can be inferred from the findings of the HRA.
Simply dumping a spreadsheet of numbers for a n unmitigated scenario without context does not constitute all of the elements of an HRA.
In addition to failing to meet the required elements of an HRA, the City fails to assess accurately all of the hazardous chemicals being emitted from vehicle exhaust. The California Air Resources Board (CARB) 5 defines diesel exhaust as a complex mixture of inorganic and organic compounds that exists in gaseous, liquid, and solid phases. CARB and U.S. EPA identify 40 components of the exhaust as suspected human carc inogens, including formaldehyde, 1,3-butadiene, and benzo[a]pyrene. The inhalation unit risk factor identified by OEHHA for use in risk assessments is for the particulate matter (DPM) fraction of diesel exhaust and not the vapor phase components identified by CARB and U.S. EPA.
In addition, the City’s analysis has failed to consider the other significant emissions associated with vehicles not powered with diesel. Light duty vehicles (the primary vehicle type associated with the operational phase of the Project) will emit a number of non -methane organic gases (NMOC) including formaldehyde, benzene, 1,3-butadiene, acrolein, acetaldehyde, and toluene. Modeling from SCAQMD in the MATES V study clearly indicates that the primary source of those compounds in the South Coast Air Basin are on-road sources.6
5 CARB. 1998. Report to the Air Resources Board on the Proposed Identification of Diesel Exhaust as a Toxic Air Contaminant, Part A, Public Exposure To, Sources and Emissions of Diesel Exhaust In California. April 22, 1998. Pg A-1.
6 SCAQMD. 2022. MATES V Study. Pg 3-11-3-12.
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SCAQMD noted that on -road and off -road mobile sources account for nearly 88% of the total weighted carcinogenic air toxics emissions which include 1,3 -butadiene, acetaldehyde, acetone, formaldehyde, and MTBE.7
Using only one of the TACs in the analysis intentionally underestimates the potential health risk associated with the emissions from the construction and operation phase of the Project. The City must update the analysis and include all of the TACs known to be associated with diesel exhaust in a DEIR.
5. The Comments Regarding The Screening Level HRA Of The Operational Emissions From The Project Are Without Merit And Fail To Consider The Impact Of Air Toxins Other Than Diesel Particulate Matter (DPM).
7 SCAQMD. 2022. MATES V Study. Pg 3-11.
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Kimley Horn’s response to the air modeling I performed on the outputs of their CALEEMOD analysis does not accurately assess the intent of the analysis. Assuming that the number and types of vehicles accessing the site can be limited in the fashion detailed presents an intentionally skewed analysis that does not provide the nearby residents with any margin of safety.
The Air Quality Analys is provided in Appendix A to the IS/MND, clearly shows that the operational emissions for the project will emit 0.5520 pounds per day of PM2.5 exhaust. PM2.5 exhaust is generally accepted in CEQA analyses to be equal to DPM emissions. The CALEEMOD analysis presented in the IS/MND clearly indicates that diesel powered vehicles will be onsite, therefore the assumption that the emissions could be generated on site is merited.
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The City must update the air quality analysis and include a health risk analysis based on the modeled assumptions from CALEEMOD to ensure that the maximum potential health risk to the nearby residents is assessed in a DEIR.
Conclusion
The facts identified and referenced in this comment letter lead me to reasonably conclude that the Project could result in significant unmitigated impacts if the IS/MND is approved. The City must re-evaluate the significant impacts identified in this lette r by requiring the preparation of an environmental impact report.
Sincerely,
.