City Council
Acquanetta Warren
Mayor
Peter A. Garcia
Mayor Pro Tem
John B. Roberts
Council Member
Jesus “Jesse” Sandoval
Council Member
Phillip W. Cothran
Council Member
CITY OF FONTANA 8353 SIERRA AVENUE, FONTANA, CALIFORNIA 92335 www.Fontana.org
Responses to March 28, 2023 Adams Broadwell Joseph &
Cardozo Letter regarding Appeal of Planning Commission
Approval of the Fontana Square Project (Case No. 20-083) and Initial Study/Mitigated Negative Declaration
Comment #1
The commenter summarizes the Fontana Square Project (“project”) description and their concerns regarding the project.
Response #1
The commenter’s description of the project is consistent with the Initial Study/Mitigated Negative Declaration (“MND”) and is noted. Specific project concerns are addressed in the responses below.
Comment #2
The commenter claims that studies related to potential soil contamination and a health risk assessment were conducted without public review and comment.
Response #2
Subsequent to the Planning Commission’s January 17, 2023 approval of the project, health risk modeling was conducted in response to commenter’s appeal, filed January 31, 2023. A Phase I environmental site assessment and a Phase II study were also conducted in response to commenter’s appeal.
Commenter has received copies of the health risk modeling done for the project as well as the Phase I assessment. Both of these studies, as well as the Phase II study which was not final at the time of commenter’s March 28, 2023 letter will be included in the agenda materials, along with the MND, for public review in compliance with CEQA prior to the City Council’s decision on the project.
Comment #3
Commenter states that the record for the project is incomplete because four documents were not included in the staff report and agenda materials for the March 28, 2023 City Council meeting: (1) the Phase I Environmental Site Assessment, (2) a March 7, 2023 letter from the Chief of Police regarding the Project’s public safety impacts, (3) health risk modeling completed by Kimley Horn for the Project’s health risk impacts from construction, and (4) the results of soil sampling at the Project site.
Response Letter
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Response #3
The City Council reviewed and considered the Phase I Environmental Site Assessment, the letter from the Chief of Police, and the health risk modeling completed by Kimley Horn prior to the March 28, 2023 hearing. As noted above, the soil sampling results had not been completed. Each of these documents was available for public review and inspection in City Council chambers on March 28, 2023. However, in order to allow for additional public review, and to obtain the results of the soil sampling, the March 28, 2023 hearing was continued to April 25, 2023. All four of these studies will be included in the agenda material for the April 25, 2023 hearing in compliance with CEQA.
Comment #4
The commenter calls for an EIR due to incomplete or hidden studies.
Response #4
All project studies are included in the agenda materials prior to the City Council’s consideration of the project on April 25, 2023. Nothing in the comment provides a basis for preparation of an EIR. The commenter next summarizes its concerns regarding the project. Each of these concerns is specifically addressed in the subsequent responses below.
Comment #5
The commenter states that the Planning Commission hearing and decision on the Project the evening of January 17, 2023, took place prior to the close of the public comment period in violation of CEQA.
Response #5
As noted in Response A-6 of the January 17, 2023 Kimley Horn Memo regarding the project, and acknowledged by the commenter, 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. Further, the Notice of Intent included both the starting and ending date during which public comments would be received in accordance with Public Resources Code § 21092(b).
However, the commenter’s complaint is that the Notice of Intent (NOI) did not include a specific time at which the public comment period would end on January 17th, and therefore, commenter’s letter, submitted at 5:04 pm on January 17, 2023, was timely and should have been considered by the Planning Commission prior to its decision on the Project.
The commenter’s January 17, 2023 submittal was not timely. The comment letter was submitted after 5:00 pm, when the City’s offices closed. The NOI clearly lists the time for the Planning Commission hearing to consider the project as 6:00 pm, thus a letter submitted after the closure of the City’s office could not be fairly presented to the Planning Commission. Further, the NOI states the following: IF YOU CHALLENGE IN
COURT ANY ACTION TAKEN CONCERNING A PUBLIC HEARING ITEM, YOU MAY
BE LIMITED TO RAISING ONLY THOSE ISSUES YOU OR SOMEONE ELSE RAISED Response Letter
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AT THE PUBLIC HEARING DESCRIBED IN THIS NOTICE, OR IN WRITTEN
CORRESPONDENCE TO THE CITY AT, OR PRIOR TO, THE PUBLIC HEARING It is clear in the NOI that challenges to the Project needed to be submitted to the City at, or prior to, the public hearing. Further, the commenter has appealed the decision of the Planning Commission to the City Council. (Public Resources Code § 21151(c).) Fontana Zoning and Development Code § 30-27 provides that on appeal from a Planning Commission decision, the City Council shall consider the record and such additional evidence as may be offered and may affirm, reverse or modify, in whole or in part, the decision appealed from or make and substitute such other or additional decision or determination as it may find warranted. Thus, all comments submitted, including the January 17, 2023 letter submitted by commenter, will be considered by the City Council – the elected decision-making body. Any alleged procedural defects will be cured by the City Council’s decision on the project and the MND in compliance with CEQA requirements.
Comment #6
The commenter claims a fair argument that the Project should require a health risk assessment (HRA) for construction and operational emissions and claims the MND’s less than significant conclusion regarding toxic air contaminant (TAC) exposure cannot rely on an LST analysis.
Response #6
As noted in Response A-10 of the January 17, 2023 Kimley Horn Memo regarding the project, 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. Further, an HRA is not required for this project based on the Air Toxics Hot Spots Act, the OEHHA 2003 Guidance Manual, the OEHHA 2015 Guidance Manual, CAPCOA Guidance, and SCAQMD Guidance. 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.
While not required, informational HRA modeling was prepared for construction emissions. The results 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, the HRA modeling confirms project-related toxic emission impacts would be less than significant.
In reviewing the prior responses to comments, the commenter claims the City’s analysis failed to consider the significant emissions associated with vehicles not powered by diesel, citing to SCAQMD’s MATES V study. The analysis in the MND and the informational HRA considered all relevant emissions because The analysis in the MND and the informational HRA considered all relevant emissions because the analysis is consistent with the approach and methodology provided by the SCAQMD, CARB, California Air Pollution Control Officers Association (CAPCOA), and the California Office Response Letter
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of Environmental Health Hazard Assessment (OEEHA). As described in detail in the previous response, contrary to the commenter’s assertion the Project is not required to prepare an HRA, as such an assessment was not necessary or appropriate under the applicable circumstances. The Project is not subject to regulation under the Hots Spots Act, the OEHHA 2003 Guidance Manual, or OEHHA 2015 Guidance Manual, CAPCOA guidance, or SCAQMD guidance.
The commenter states that the City’s analysis has failed to consider the other significant emissions associated with vehicles not powered with diesel and states that MATES V study clearly shows that the primary source of carcinogenic pollutants is from on-road sources. However, the MATES V study states that diesel particulate matter (DPM) is the largest contributor to overall air toxics cancer risk (MATES V, pages ES-6, 2-36, 3-11, 4-12). Additionally, MATES V also indicates that the average levels of DPM are 53 percent lower compared to the previous MATES IV. MATES V also clearly shows that the majority of cancer-causing emissions are from off-road sources (i.e., diesel sources), including construction equipment (Figure 3-2, Cancer Potency Weighted Source Apportionment for 2018 Emissions) and non-diesel emissions have only a fraction of cancer-causing potential of DPM (Table 3-5, Cancer Potency Weighted Species Apportionment for 2018 Emissions).
The CARB Air Quality and Land Use Handbook identifies sources of cancer risk from air pollutants, these include freeways and high-traffic roads (urban roads with 100,000 vehicles per day or rural roads with 50,000 vehicles per day), distribution centers (more than 100 trucks per day), rail yards, ports, refineries, chrome platers, dry cleaners, and gas stations. 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.
Commenter further claims the results of the HRA analysis were not included in the prior response to the commenter’s appeal, and that the output files analyzing the health risk impacts of project construction do not follow proper HRA methodology. Commenter is mistaken. Although not required, because the project does not include TAC sources, a construction HRA was performed for informational purposes and to fully respond to the comment. The analysis followed the applicable guidance from the SCAQMD and OEHHA. The model outputs were provided to the commenter on March 27,2023. It should be noted that the comment does not identify any specific flaws with the informational modeling or analysis. Additionally, the commenter incorrectly confuses a response addressing localized impacts (i.e., LSTs which address the potential for health effects from criteria pollutants) and TAC emissions (which address cancer and chronic risk). The MND properly addressed potential health risks during construction and operation. No EIR is necessary.
Contrary to the commenter’s repeated assertion that an HRA be prepared, the Project does not include sources that warrant the preparation of an HRA. 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 Response Letter
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transport refrigeration units. Therefore, a formal HRA study was not prepared for this Project as it was deemed unnecessary.
However, in response to the comment letter from CARE CA, dispersion modeling and a health risk analysis was conducted to show claims presented by CARE CA were unfounded. The unmitigated construction scenario was modeled in AERMOD, concluding that the Project would not result in significant health risks and was consistent with the analysis provided in the air quality study under AQ Threshold 5.3: Would the Project expose sensitive receptors to substantial pollutant concentrations. No HRA mitigation measures are required and as such, there is no way to model a mitigated construction scenario.
Unlike the construction phase, which included diesel equipment, operational dispersion modeling and a health risk analysis was not prepared for this Project because the traffic study did not identify the Project as a hub for medium and heavy trucks which are generally diesel powered. Although passenger vehicle exhaust does include TACs, state and federal regulations have reduced TACs to a fraction of a percent. Therefore, mobile emissions from a Project that attracts passenger vehicles will have a less than significant impact on health risk than say, a warehouse which would generate a high number of daily truck trips.
Although not required, a HRA analysis was conservatively provided for informational purposes. The commenter makes statements saying that the HRA analysis does not follow proper HRA methodology but does not provide substantial evidence to support the claim. HRA modeling output files were provided in support of the HRA but the commentor does not identify any error in the HRA methodology or output files. In addition, the commenter references results from a third party but does not provide model outputs or any proof to substantiate those claims. Contrary to the commenter’s statements, the HRA analysis follows the OEHA, CAPCOA, and SCAQMD methodology.
The MND properly analyzed any potential health risks during construction and operation. No EIR is necessary.
Comment #7
Commenter claims the Planning Commission lacked substantial evidence to approve the project because the MND’s conclusions were not supported regarding hazardous material.
Response #7
As confirmed pursuant to the materials posted on the City’s website for the Fontana Square Project, in an abundance of caution – though not required by CEQA or any site- specific information - both a Phase 1 and Phase 2 Environmental Site Assessment were conducted for the Project site. They reflect that, contrary to the generic, i.e. non-site- specific, comments submitted by Dr. Clark (an individual retained by commenter) construction and operation of the Project would not result in a significant public health risk.
Comment #8
Response Letter
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The commenter finds fault with the reduction assumptions in the GHG modeling, claiming that mitigation measure MM GHG-2 is not realistic due to Southern California Edison’s inability to enroll new customers in the Green Rate Program, and argues 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.
Response #8
The GHG modeling in the MND is accurate. The commenter states that energy reductions in the GHG study total 19.4 percent and that requiring the Project to meet or exceed CALGREEN Tier 2 Standards would only reduce energy consumption by 15 percent. MM GHG-1 requires the Project to meet or exceed 2019 CALGreen Tier 2 Standards. However, due to limitations in CalEEMod, reductions from energy efficient appliances and lighting are included in the outputs under mitigation. As shown in the table provided by the commenter, Tier 2 energy efficiency applies to outdoor lighting, solar water-heating, warehouse door seals, complying with day lighting requirements, and exhaust heat recovery. Energy efficient appliances were included in the model in compliance with state building code and not associated with any mitigation measures. In addition, as a matter of law, the Project would now be required to comply with 2022 CALGreen Standards which requires new efficient electrical heat pumps, electric ready hookups, and expands solar photovoltaic and battery storage standards compared to the previous 2019 Title 24. The California Energy Commission estimates these improvements will reduce 10 million metric tons of GHGs (the equivalent of taking nearly 2.2 million cars off the road for a year).
MM GHG-2 provides the applicant with two (2) options to reduce GHG emissions.
Purchase renewable energy from an electricity provider, install solar PV or other on-site renewable energy, or a mixture of the two. The commenter notes that SCE is currently unable to enroll new customers in the Green Rate Program. However, this is not a permanent condition and may change in the future prior to Project occupancy.
Therefore, it remains a viable option. The SCE Green Rate program provides the project with the opportunity to purchase energy from renewable sources. If there is not enough SCE Green Rate energy available to power the entire Project, the Project can purchase what is available and install solar PV panels to cover the remaining energy demands. The Project may also choose to power the entire site with solar PV or other sources of renewable energy generation.
As shown in the GHG Study, electricity usage only makes up 19 percent of the total GHG emissions while vehicle emissions make up 53 percent. In future years as vehicles transition to near zero emission or zero emission technologies and power companies continue to generate electricity from renewable sources, GHG emissions associated with the Project will continue to decline.
Further Response A-78 of the January 17, 2023 Kimley Horn Memo regarding the project addresses the accuracy of the reduction provided by MM GHG-2 and explains why the GHG reduction applies 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. There is no error in the MND and an EIR is not required to further analyze potential impacts related to GHGs.