Attachment No. 4 - Appellant Letter (Adams Broadwell Joseph & Cardozo-CARE CA) & Response Memorandum

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ARIANA ABEDIFARD
KEVIN T. CARMICHAEL
CHRISTINA M. CARO
THOMAS A. ENSLOW
KELILAH D. FEDERMAN
RICHARD M. FRANCO
ANDREW J. GRAF
TANYA A. GULESSERIAN
DARION N. JOHNSTON
RACHAEL E. KOSS
AIDAN P. MARSHALL
TARA C. RENGIFO

Of Counsel
MARC D. JOSEPH
DANIEL L. CARDOZO

SACRAMENTO OFFICE

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

ADAMS BROADWELL JOSEPH & CARDOZO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW

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

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

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April 2, 2024

VIA ONLINE SUBMISSION, EMAIL AND OVERNIGHT MAIL
Mayor Acquanetta Warren
Members of the City Council
c/o Planning Department
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Email: [email protected]
Online Portal: https://cityoffontana.sharefile.com/

VIA EMAIL
Jon Dille, Associate Planner
Email: [email protected]

Re: Appeal of Planning Commission Approval of Cypress and Slover Warehouse Project (Master Case No. 21-038) and Certification of Final Environmental Impact Report; Reasons for Appeal

Dear Mayor Warren, City Council Members and Mr. Dille:

On behalf of Californians Allied for a Responsible Economy (“CARE CA”), we are writing to appeal the City of Fontana (“City”) Planning Commission’s March 19, 2024 approval of the Cypress and Slover Warehouse Project (“Project”) Master Case No. 21-038; Tentative Parcel Map No. 21-007 (TPM No. 20456); Design Review No. 21-013; certification of the Final Environmental Impact Report (“FEIR”); and adoption of a Statement of Overriding Considerations, Mitigation and Monitoring Program and Statement of Facts and Findings.

Division 5 of the Zoning and Development Code sets forth the City’s appeal procedures. Any action taken by the Planning Commission may be appealed by any interested party.
1 The appeal must be in writing, filed with the Planning Division, and indicate specifically the reasons for the appeal.2 Appeals must be filed within

1 Zoning and Development Code § 30-25.
2 Id. § 30-28.

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15 calendar days after the approving body has taken action.3 Pursuant to the City’s appeal procedures4, CARE CA hereby appeals all approval actions taken by the Planning Commission on March 19, 2024 related to the Project. Pursuant to the appeal procedures, this Appeal includes an electronic copy of this Appeal letter, the Appeal Application Form, and the required appeal fee of $299 and $31 archive fee, submitted via the Department of City Planning Online Application Portal.

CARE CA respectfully requests that the City Council uphold this Appeal, vacate the Planning Commission approvals, and remand the Project to City staff with direction to prepare a revised DEIR, pursuant to the California Environmental Quality Act (“CEQA”),
5 that fully discloses, analyzes, and mitigates the Project’s potentially significant impacts, in compliance with CEQA and local land use laws.

The revised DEIR should be recirculated for public comment before the Project is brought back for consideration at future hearings.

I. REASONS FOR APPEAL

The reasons for this appeal are that the Planning Commission abused its discretion and violated CEQA when it approved the Project and certified the FEIR for the Project on March 19, 2024.
6 The FEIR does not comply with CEQA’s
requirement to act as an informational document, in that it lacks proper analysis in crucial areas including the Project’s individual and cumulative impacts in the areas of air quality, public health, hazards and noise. The FEIR is deficient as a matter of law because it failed to properly analyze, disclose and mitigate the Project’s potentially significant impacts, and lacked substantial evidence supporting the City’s conclusions regarding those impacts.

The specific reasons for this appeal are set forth in detail in CARE CA’s prior comment letters and accompanying reports prepared by air quality and hazards expert James Clark, Ph.D. and noise expert Jack Meighan, and are summarized below. CARE CA’s prior comments on this Project are attached hereto and incorporated by reference.
7 In short, the FEIR is deficient under CEQA because: (1)

3 Id. § 30-29.
4 Fontana Development Code, Division 5, §§ 30-25 – 30-29. 5 Pub. Res. Code § 21000 et seq.
6 See 3/1924 Notice of Determination for Slover/Cypress Warehouse Development Project, Exhibit C. 7 Exhibit A: March 18, 2024 letter from Richard Franco to City of Fontana Planning Commission re: Agenda Item PH-B –March 19, 2024 City of Fontana Planning Commission hearing on Cypress and Slover Warehouse Project (SCH No. 2021120059, MCN No. 21-038, DRP No. 21-013, TPM No. 20456, and TPM No. 21-007) (“CARE CA Planning Commission comments”). Exhibit B: June 28, 2023 letter from Richard Franco to Jon Dille, City of Fontana re Comments on Draft Environmental April 2, 2024

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it fails to adequately address or mitigate the Project’s cumulative impacts viewed in connection with the impacts of other nearby warehouse projects; (2) it fails to analyze and disclose all of the Projects’ expected diesel emissions and associated health impacts; (3) it fails to analyze and disclose potential arsenic contamination of soil at the Project site; and (4) it fails to support the noise impact analysis with substantial evidence.

For the same reasons, the Planning Commission’s tentative map and design review approval findings were not supported by substantial evidence, because the City lacked substantial evidence in the record to find that the project was consistent with applicable general plan, zoning code, and specific plan criteria, or that the Project would not result in serious public health problems or cause substantial environmental damage.
8 1. The City Failed to Adequately Analyze the Project’s Cumulative Impacts.

An EIR must evaluate a cumulative impact if a project’s incremental effect combined with the effects of other projects is “cumulatively considerable.”9 This determination is based on an assessment of the project’s incremental impacts “viewed in connection with the effects of past projects, the effects of other current

Impact Report – Cypress and Slover Warehouse Project (SCH No. 2021120059, MCN No. 21- 038, DRP No. 21-013, TPM No. 20456, and TPM No. 21-007) (“CARE CA DEIR Comments”). 8 See Fontana Muni. Code § 26-55(e) (Findings for approval, tentative map: The planning commission shall approve any tentative tract map only if it makes the following findings: (1) That the proposed map is consistent with the city's general plan and any applicable specific plan; (2) That the design or improvements of the proposed subdivision are consistent with the general plan and any applicable specific plan; (3) That the site is physically suitable for the type and density of development proposed; (4) That the design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat; (5) That the design of the subdivision or the type of improvements will not cause serious public health problems; (6) That the design of the subdivision or the type of improvements will not conflict with easements acquired by the public at large for access through or use of property within the proposed subdivision.).

See Fontana Muni. Code § 30-120. (Findings for approval, design review: The Planning Commission shall approve any design review application subject to the following findings: (1) The proposal is consistent with the general plan, Zoning and Development Code, and any applicable specific plan; (2) The proposal meets or exceeds the criteria contained in this chapter and will result in an appropriate, safe and desirable development promoting the public health, safety, and welfare of the community; (3) The proposal, in its design and appearance, is aesthetically and architecturally pleasing resulting in a safe, well-designed facility while enhancing the character of the surrounding neighborhood; (4) The site improvements are appropriate and will result in a safe, well -designed facility.).
9 CEQA Guidelines § 15130(a).

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projects, and the effects of probable future projects.”10 Proper cumulative impact analysis is vital because “the full environmental impact of a proposed project cannot be gauged in a vacuum. One of the most important environmental lessons that has been learned is that environmental damage often occurs incrementally from a variety of small sources. These sources appear insignificant when considered individually, but assume threatening dimensions when considered collectively with other sources with which they interact.”
11 Here, the City failed to properly assess the Project’s cumulative impacts in combination with impacts from numerous other warehouse projects in the immediate vicinity, including warehouses immediately adjacent to this Project.

Each of these projects will generate significant diesel truck traffic with resultant traffic, vehicle noise and air emissions (including toxic diesel particulate matter (“DPM”)) that will have a combined effect on residents and workers in the area.

The FEIR also lacks any analysis of the Projects’ cumulative impacts in areas including energy, land use and planning, public services and utilities. CEQA’s requirement that the City evaluate the Project’s cumulative impacts is especially important given the proliferation of warehouses in the City, as described in the CARE CA Planning Commission comments.

Because the FEIR lacks a CEQA-compliant cumulative impacts analysis, the Planning Commission abused its discretion in certifying the FEIR and granting the Project approvals and lacked substantial evidence to support its approval findings.

The City Council should vacate the Planning Commission’s decision and direct staff to prepare a revised EIR that adequately analyzes and mitigates all of the Project’s cumulative impacts.

2. The City Failed to Disclose All of the Project’s Expected Diesel Emissions

The FEIR includes air quality and health risk analyses associated with air emissions from the Project’s operations. These analyses, however, fail to include any of the diesel emissions from the Project’s diesel-powered fire pump and emergency generators. CEQA requires the City, as lead agency, to prepare the EIR with a sufficient degree of analysis to provide decision-makers with the necessary information to make an intelligent decision regarding the Project’s environmental impacts.
12 The EIR must contain facts and analysis, not just the City’s bare

10 Id., §§ 15065(a)(3), 15355(b).
11 Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 114.
12 14 CCR § 15151.

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conclusions.13 Specific data should be presented when it is necessary for a meaningful analysis and it is reasonably foreseeable to provide it.14

Here, the City produced detailed modeling of the Project’s estimated diesel emissions, but conspicuously failed to include emissions from the fire pump and backup generators, key sources of operational DPM emissions. It is plainly feasible for the City to provide specific data concerning these emissions as it has done for other emissions sources, yet it chose not to do so, in violation of CEQA. Accordingly, the City lacks substantial evidence supporting the conclusion that the Project’s operational emissions will not result in a significant impact to air quality or public health. The Planning Commission therefore lacked substantial evidence supporting its finding that the Project’s operational air quality and public health impacts will be less than significant.

The City Council should vacate the Planning Commission’s decision and instruct staff to prepare a revised EIR that analyzes and discloses all of the diesel emissions expected from Project operations.

3. The City Failed to Analyze Potentially Hazardous Soil Conditions

James Clark’s comments noted the widespread use of roxarsone, an arsenic-based additive to chicken feed, and cited evidence showing that arsenic from these applications can leach into soil and groundwater. As detailed in the FEIR, however, does not disclose the potential for arsenic-impacted soils to be present on the Project site, nor does it consider the possibility that particulate matter from grading activities, including dust that may contain arsenic, may migrate offsite to nearby sensitive receptors or affect Project workers during grading. The City’s failure to disclose and analyze these potentially significant impacts, or to perform any investigation into potential soil contamination, is a violation of CEQA.

The Planning Commission lacked substantial evidence to adopt the EIR’s unsupported conclusion that soil disturbance of the Project site will not result in significant impacts and to support approval findings. The City Council should vacate the Planning Commission’s decision and remand the Project to staff to

13 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 522. 14 Id. at 519.
15 DEIR, Appendix J.

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analyze potential arsenic contamination at the Project site, and include mitigation as appropriate.

4. The City’s Noise Analysis is Not Supported by Substantial Evidence

The City admittedly included an incorrect and out-of-date technical noise appendix when it released the Project’s DEIR. The City did not acknowledge this error nor publish the correct noise appendix on its website until it released the FEIR, months after the DEIR comment period had closed.

Based on his review of the now-available correct noise appendix, CARE CA’s noise expert Jack Meighan identified discrepancies that include an underestimation of the Project’s anticipated construction noise impacts. Based on Mr. Meighan's analysis, the Project’s construction noise could cause a significant impact to residents adjacent to the Project site, requiring the inclusion of mitigation measures. The City’s conclusion that the Project will not have significant noise impacts is therefore not supported by substantial evidence, and the Planning Commission’s decision to certify the FEIR despite these unmitigated noise impacts was an abuse of discretion.

The City Council should vacate the Planning Commission’s decision and require staff to prepare a revised EIR that accurately discloses the Project’s construction noise impacts to nearby residents and propose mitigation to reduce the Project's potentially significant noise impacts.

5. The Statement of Overriding Considerations is Not Supported by Substantial Evidence

The FEIR found that the Project will have significant and unavoidable environmental impacts related to GHG emissions.
16 In order to approve the Project,
the Planning Commission adopted a statement of overriding considerations pursuant to CEQA, stating that the Project’s overriding benefits outweigh its environmental harm.17 However, the Statement of Overriding Considerations adopted by the Planning Commission was not supported by substantial evidence because the City failed to adequately analyze and mitigate the Project’s cumulative GHG impacts, and because the record lacks substantial evidence that the Project

16 FEIR, S-6.
17 3/19/24 Planning Commission Staff Report (“Staff Report”), Attachment 6, CEQA findings, Sec. 9 (Statement of Overriding Considerations); PRC § 21081; CEQA Guidelines, § 15093.

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will provide countervailing community benefits which justify its approval despite the Project’s unmitigated impacts.

An agency’s determination that a project’s benefits outweigh its significant, unavoidable impacts “lies at the core of the lead agency’s discretionary responsibility under CEQA.”
18 Before an impact can be declared significant and
unavoidable, the lead agency must first adopt all feasible mitigation to reduce the impact to the greatest extent feasible.
19 The City must set forth the reasons for its
action, pointing to supporting substantial evidence in the administrative record.20 This requirement reflects the policy that public agencies must weigh a project’s benefits against its unavoidable environmental impacts, and may find the adverse impacts acceptable only if the benefits outweigh the impacts. 21 Importantly, a
statement of overriding considerations is legally inadequate if it fails to accurately characterize the relative harms and benefits of a project.22 In this case, the Planning Commission lacked substantial evidence to conclude that GHG impacts would be mitigated to the greatest extent feasible, because the FEIR failed to disclose the extent and severity of the Project’s cumulative GHG impacts in relation to the substantial amount of warehouse development in the region. As a result, the FEIR failed to consider whether additional feasible mitigation could be required for the Project to further reduce cumulative GHG impacts.

The Planning Commission also lacked substantial evidence to that the Project’s significant, unavoidable impacts are outweighed by the Project’s benefits to the community. CEQA specifically references employment opportunities for highly trained workers as a factor to be considered in making the determination of overriding benefits.
23 Currently, there is not substantial evidence in the record showing that the Project’s significant, unavoidable impacts are outweighed by benefits to the community. The Applicant has not made any commitments to employ graduates of state approved apprenticeship programs or taken other steps to ensure employment of highly trained and skilled craft workers on Project construction. Therefore, the City would not fulfill its obligations under CEQA if it adopted a statement of overriding considerations and approved the Project.

18 Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392. 19 Covington v Great Basin Unif. Air Pollution Control Dist. (2019) 43 Cal.App.5th 867, 879-883. 20 Pub. Resources Code, § 21081, subd. (b); CEQA Guidelines, § 15093, subds. (a) and (b); Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 357. 21 Pub. Resources Code, § 21081(b); CEQA Guidelines, § 15093, subds. (a) and (b) 22 Woodward Park Homeowners Association v. City of Fresno (2007) 150 Cal.App.4th 683, 717. 23 Pub. Resources Code, § 21081, subds. (a)(3) and (b).

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We urge the City Council to uphold this appeal and require the City to prepare and circulate a revised EIR which accurately discloses cumulative GHG impacts, requires all feasible mitigation measures, and analyzes all feasible alternatives to reduce impacts to a less than significant level. If a revised Statement of Overriding Considerations is considered for subsequent adoption, we urge the City to consider whether the Project will result in employment opportunities for highly trained workers.

II. CONCLUSION

As a result of these errors, the Planning Commission’s decision to certify the FEIR and approval of Master Case No. 21-038 violated CEQA and must be overturned. We urge the City Council to grant this appeal and direct staff to prepare an EIR that complies with CEQA. Thank you for your attention to this matter.

Sincerely,

Richard M. Franco
Christina Caro
Attachments
CMC:acp

EXHIBIT A

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Of Counsel
MARC D. JOSEPH
DANIEL L. CARDOZO

SACRAMENTO OFFICE

520 CAPITOL MALL, SUITE 350
SACRAMENTO, CA 95814 -4721
T E L : ( 9 1 6 ) 4 4 4 - 6 2 0 1
F A X : ( 9 1 6 ) 4 4 4 - 6 2 0 9

ADAMS BROADWELL JOSEPH & CARDOZO

A PROFESSIONAL CORPORATION

A T T O RN E Y S A T L A W

6 0 1 G A T E W A Y B O U L E V A R D , S U I T E 1 0 0 0 S O U T H S A N F R A N C I S C O , C A 9 4 0 8 0- 7 0 3 7 ___________

T E L : ( 6 5 0 ) 5 8 9- 1 6 6 0
F A X : ( 6 5 0 ) 5 8 9- 5 0 6 2
r f r a n c o@ a d a m s b r o a d w e l l . c o m

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March 19, 2024

VIA EMAIL

Cathline Fort, Chair
Idilio Sanchez, Vice Chair
Ricardo Quintana, Secretary
Raj Sangha, Commissioner
Ralph Thrasher, Commissioner
City of Fontana Planning Commission
8353 Sierra Avenue
Fontana, CA 92335
Email: [email protected]

VIA EMAIL

Patty Nevins, Director of Planning
Planning Department
Email: [email protected]

Jon Dille, Associate Planner
Email: [email protected]
Re: Agenda Item PH-B –March 19, 2024 City of Fontana Planning Commission hearing on Cypress and Slover Warehouse Project (SCH No. 2021120059, MCN No. 21-038, DRP No. 21-013, TPM No. 20456, and TPM No. 21-007)

Dear Chair Fort, Vice Chair Sanchez, Members of Planning Commission:

We are writing on behalf of Californians Allied for a Responsible Economy (“CARE CA”) in opposition to the Cypress and Slover Warehouse Project (SCH No. 2021120059, MCN No. 21-038, DRP No. 21-013, TPM No. 20456, and TPM No. 21- 007) (“Project”), proposed by Duke Realty Limited Partnership (“Applicant”). The Project appears as agenda item PH-B for the March 19, 2024 City of Fontana (“City”) Planning Commission (“Commission”) meeting. The Commission will consider adopting resolutions to (1) certify the Project’s Final Environmental Impact Report (“FEIR”), adopt a statement of overriding considerations, a mitigation monitoring and reporting program and a statement of facts and findings, and direct staff to file a Notice of Determination; (2) approve Tentative Parcel Map No. 21-007 (TPM No. 20456); and (3) approve Design Review No. 21-013.

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The City, as lead agency under the California Environmental Quality Act1 (“CEQA”), prepared the Draft Environmental Impact Report (“DEIR”) and FEIR for the Project. CARE CA’s comments on the DEIR explained how the DEIR failed to comply with CEQA’s requirement to act as an informational document, in that it lacked proper analysis in crucial areas including the Project’s individual and cumulative impacts in the areas of air quality, public health, hazards and noise.

Those comments further explained how these flaws made the DEIR deficient as a matter of law because it failed to properly analyze, disclose and mitigate the Project’s potentially significant impacts, and lacked substantial evidence supporting the City’s conclusions regarding those impacts.

The City’s FEIR includes responses to CARE CA’s DEIR comments and purports to address the issues raised. As discussed below however, the FEIR fails to adequately resolve these issues or to mitigate all of the Project’s potentially significant impacts. We reviewed the FEIR and available supporting documentation with the assistance of air quality, GHG, and hazardous materials expert James Clark Ph.D.,2 and noise expert Jack Meighan.3 We reserve the right to supplement these comments at a later date, and at any later proceedings related to this Project.4

I. STATEMENT OF INTEREST

CARE CA is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards, and the environmental impacts of the Project. The coalition includes Fontana residents Juan Chavez, Jose Chavez, Jeffry Davis, and Calos Diaz, and the District Council of Ironworkers and Southern California Pipe Trades DC 16, along with their members, their families, and other individuals who live and work in Fontana and in San Bernardino County.

CARE CA advocates for protecting the environment and the health of their communities’ workforces. CARE CA seeks to ensure a sustainable construction industry over the long-term by supporting projects that offer genuine economic and employment benefits, and which minimize adverse environmental and other

1 Pub. Resources Code (“PRC”) §§ 21000 et seq.
2 Dr. Clark’s technical comments and curricula vitae are attached hereto as Exhibit A (“Clark FEIR Comments”).
3 Mr. Meighan’s technical comments and curricula vitae are attached hereto as Exhibit B (“Meighan FEIR Comments”).
4 Gov. Code § 65009(b); PRC § 21177(a); Bakersfield Citizens for Local Control v. Bakersfield (“Bakersfield”) (2004) 124 Cal. App. 4th 1184, 1199-1203; see Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal. App. 4th 1109, 1121.

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impacts on local communities. CARE CA members live, work, recreate, and raise their families in the City of Fontana and surrounding communities. Accordingly, they would be directly affected by the Project’s environmental and health and safety impacts. Individual members may also work on the Project itself. They will be first in line to be exposed to any health and safety hazards that exist onsite.

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

II. THE CITY MAY NOT APPROVE THE PROJECT BECAUSE THE FEIR FAILS TO ADEQUATELY ADDRESS THE PROJECT’S SIGNIFICANT

IMPACTS

CEQA requires that a lead agency evaluate and provide a written response to DEIR comments raising significant environmental issues.5 Such comments must be addressed in detail and include good faith reasoned analysis; conclusory statements unsupported by facts do not suffice.6 A lead agency’s failure to adequately respond to comments raising significant environmental issues before approving a project frustrates CEQA’s informational purposes and renders the EIR legally inadequate.7 Here, many of the City’s responses to CARE CA’s DEIR comments lack any reasoned analysis and include wholly conclusory statements unsupported by any facts. The FEIR is therefore legally inadequate under CEQA and the Commission may not certify the FEIR nor grant the requested Project approvals at this time.

A. The FEIR Fails to Adequately Analyze the Project’s Cumulative Impacts.

An EIR must evaluate a cumulative impact if a project’s incremental effect combined with the effects of other projects is “cumulatively considerable.”8 This determination is based on an assessment of the project’s incremental impacts

5 14 CCR § 15088(a).
6 14 CCR § 15088(c).
7 Flanders Found. v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603, 615-17; Rural Landowners Ass’n v. City Council (1883) 143 Cal.App.3d 1013, 1020. 8 CEQA Guidelines § 15130(a).

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“viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.”9 Proper cumulative impact analysis is vital because “the full environmental impact of a proposed project cannot be gauged in a vacuum. One of the most important environmental lessons that has been learned is that environmental damage often occurs incrementally from a variety of small sources. These sources appear insignificant when considered individually, but assume threatening dimensions when considered collectively with other sources with which they interact.”10

CEQA’s requirement that the City evaluate the Project’s cumulative impacts is especially important given the proliferation of warehouses in San Bernardino County generally, and in the City of Fontana specifically. According to recent reporting:

Small cities such as Fontana show the effects of this hellbent absorption of warehouses. With a population of just over 200,000 people, Fontana houses distribution centers for Coca- Cola, Target, Smart & Final and FedEx, among others. Since 2010, Fontana has approved more than 70 new warehouses, which cover some 860 acres and produce more than 16,000 truck trips a day.11

According to a database compiled by researchers to track warehouse development across Southern California, Fontana has 320 existing warehouses totaling more than 68 million square feet of floor space and generating 46,000 daily truck trips.12 An additional 69 warehouses are either planned or already approved and expected to be constructed by 2025.13 These additional 69 warehouses would add 21,300,000 square feet of floor space, and an additional 14,000 daily truck trips generating 19.4 pounds of diesel particulate matter (“DPM”) every day.14 Even the Project Applicant has a pending proposal before the City for approval of an additional 881,826 square foot warehouse development that is under concurrent consideration for

9 Id., §§ 15065(a)(3), 15355(b).
10 Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 114.
11 https://calmatters.org/commentary/2023/01/inland-empire-california-warehouse-development/, accessed on March 17, 2023.
12 https://radicalresearch.shinyapps.io/WarehouseCITY/ (data generated by entering “Fontana” in “jurisdiction” field, accessed on March 17, 2024.
13 Id.
14 Id.

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approval by the Commission.15 Under the circumstances, it is imperative that the City perform a proper evaluation of the Project’s cumulative impacts, so that the Commission can intelligently assess and address the impacts of this warehouse boom on Fontana’s residents.

1. The FEIR Fails to Include Numerous Nearby Warehouses in its Cumulative Impacts Analysis.

The CEQA Guidelines set forth two methods for satisfying the cumulative impacts analysis requirement: the list of projects approach and the summary of projections approach.16 Under the former, an adequate discussion of cumulative impacts requires “a list of past, present, and probable future projects producing related or cumulative impacts…”17 Relevant factors when compiling a list of related projects include the environmental resource being examined and the location and type of the project.18 The Guidelines expressly recognize that project type may be important “when the impact is specialized, such as a particular air pollutant or mode of traffic.”19

Here, the DEIR purported to use the “summary of projections” approach, except for the evaluation of cumulative transportation effects and vehicular-related air quality, greenhouse gas, and noise impacts, for which the analysis combines the summary of projections approach with the manual addition of past, present and reasonably foreseeable projects.20 (As discussed below, the City has revised its approach to include the list of projects approach for evaluation of all Project impacts.) The DEIR sets forth a “list of projects used to supplement the summary of projections approach [which] includes known approved and pending development projects in proximity to the Project Site, which includes the fifteen (15) other past, present, and reasonably foreseeable projects described in Table 4.0-1, Cumulative Development Land Use Summary, and illustrated on Figure 4.0-1, Cumulative Development Location Map.”21

15 See Fontana Planning Commission 3/19/24 Agenda Item PH-D – Master Case No. 22-143:

Tentative Parcel Map (TPM 20710) No. 23-012, Design Review (DRP) No. 22-064, Development Agreement (AGR) No. 24-002, and Final Subsequent Environmental Impact Report (SCH No. 2009091089) for Hemlock Warehouse Development Project.
16 CEQA Guidelines, § 15130(b)(1) and (2).
17 Id., § 15130(b)(1)(A).
18 Id., § 15130(b)(2).
19 Id.
20 DEIR, pg. 4-2.
21 Id.

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In their DEIR comments, CARE CA noted the inadequacy of the cumulative impacts analyses based on this list of projects, as it omitted at least three warehouses directly adjacent to the Project site.22 As noted in those comments, those warehouses will generate additional truck traffic with resultant traffic, vehicle noise and air emissions that will have a combined effect on residents and workers in the immediate vicinity of the Project. Air quality and hazards expert Dr.

James Clark identified an additional nine warehouse projects within a one-mile radius of the Project site that were similarly excluded from the DEIR’s cumulative projects list, and therefore were not considered in the DEIR’s cumulative impacts analyses.23

In the FEIR, the City offers three responses to CARE CA’s and Dr. Clark’s cumulative impacts comments. First, the City purports to have revised the DEIR’s cumulative impacts analysis to “address” the three projects identified by CARE CA (16296 Boyle Avenue, 16355 Slover Avenue and 16255 Slover Avenue).24 Second, the City asserts that the nine additional warehouse projects identified by Dr. Clark were already operational at the time the Notice of Preparation (“NOP”) for this Project’s DEIR was issued, and therefore the City was not required to consider these in its cumulative impacts analysis.25 Third, the City asserts that because it determined that the Project’s individual air quality impacts did not exceed specific quantitative thresholds established by the South Coast Air Quality Management District (“SCAQMD”), the Project’s cumulative air quality impacts are considered to be less than significant.26 As discussed below, none of these arguments excuse the City’s failure to perform a CEQA-compliant cumulative impacts analysis of the Project’s impacts.

The DEIR’s cumulative impacts analysis used a list of fifteen “known approved and pending development projects in proximity to the Project Site, which includes the…past, present and reasonably foreseeable projects” listed in DEIR Table 4.0-1.27 As CARE CA pointed out in its DEIR comments, this list omitted nearby warehouse projects including the three adjacent projects identified above.

The City purports to have revised the EIR to address these three warehouses, and to have “considered” them in the cumulative impacts analysis, which has been “revised as necessary.”28 These statements are demonstrably false. The FEIR’s

22 June 28, 2023, letter from Richard M. Franco to Patty Nevins and Jon Dille re Comments on Draft Environmental Impact Report-Cypress and Slover Warehouse Project, pgs. 9-13. 23 Id., Exhibit A (Clark letter) at pgs. 9-14.
24 FEIR, pg. F-66.
25 Id., pg. F-71.
26 Id., pg. F-66.
27 DEIR, pgs. 4.1-4.3.
28 FEIR, pg. F-66.

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revised Table 4.0-1 now appears to include the warehouses at 16296 Boyle Avenue and 16355 Slover Avenue. But it now excludes 16477 Slover Avenue, directly across the street from the Project site at a location which was misidentified in the DEIR as the 16255 Slover Avenue warehouse. It is clear therefore that the EIR still fails to consider warehouses directly adjacent to the Project in the cumulative impacts analysis.

In addition, the revisions in the FEIR now indicate that it uses a “combined” approach (i.e., utilizing both the “summary of projections” and “list of project” methods) to evaluate cumulative impacts for all Project impacts.29 The DEIR evaluated cumulative impacts for most impact areas using only the summary of projections, as it originally stated that “the summary of projections approach is used in this EIR, except for the evaluation of cumulative transportation effects…and vehicular related air quality, greenhouse gas, and noise impacts, for which the analysis combines the summary of projections approach with the manual addition of past, present, and reasonably foreseeable projects (‘combined approach’)”; however, that language has been stricken from the FEIR.30 As the revised EIR now states, the City determined the combined approach to be appropriate for all impact areas because “relying solely on the summary of projections approach could underestimate localized cumulative effects in proximity to a development site or affected sensitive receptors.”31 Therefore, the City has committed to analyzing all Project cumulative impacts with an approach that includes consideration of nearby projects.

Despite recognizing the importance of evaluating cumulative impacts in conjunction with other nearby projects, the FEIR does not, in fact, include updated cumulative impacts analysis in most areas. While the City claims that the Project’s air quality impact report (Appendix B), noise impact report (Appendix M), and transportation/traffic report (Appendix N) were updated to address the three cumulative development projects identified by CARE CA,32 there are no changes in the body of the EIR nor the technical appendices in their analysis of other cumulative impacts, such as energy, land use and planning, public services or utilities. Since no changes were made to any cumulative impacts analyses other than air quality, noise, and transportation, the EIR continues to rely solely on a summary of projections approach that it admits can “underestimate localized cumulative effects in proximity to a development site or affected sensitive receptors.”33

29 FEIR, pg. 4-2.
30 Id.
31 Id.
32 Id., pg. F-117.
33 Id., pg. 4-2.

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As noted above, the City dismisses Dr. Clark’s comments identifying nine additional nearby warehouse projects because they were operational by the time the Project’s NOP was published. The City argues that the environmental effects of those projects was “already considered in the DEIR as the local context and baseline for the Project’s potential environmental impacts.”34 This misses the entire point of a cumulative impacts analysis, which is to consider “impacts created as a result of the combination of the project evaluated in the EIR together with other projects causing related impacts.”35 CEQA specifically requires lead agencies to examine a project’s incremental effects “in connection with the effects of past projects [emphasis added],” along with effect of other current and probable future projects. 36 The City’s position would make the CEQA Guidelines reference to “past projects” superfluous. Indeed, the courts have explained that the requirement that a cumulative impacts analysis take account of the impacts of past projects “signifies an obligation to consider the present project in the context of a reasonable historical account of relevant prior activities that have had significant environmental impacts.”37 Such historical information may help to identify past activities that have caused “intensive environmental impacts” in an area, the full impact of which “may not yet be manifested, thereby disclosing potential environmental vulnerabilities that would not be revealed merely by cataloging current conditions.”38

Finally, the City continues to insist that it is not required to analyze the Project’s cumulative impacts on air quality because it relies on SCAQMD “methodology” in finding that the Project will not have cumulatively considerable impacts on air quality.39 In fact, there is no methodology and no analysis in the FEIR’s cumulative air quality impacts analysis. The City simply concludes that because it finds the Project’s individual impacts to be less than significant, SCAQMD also considers the Projects’ cumulative impacts to be less than significant. As detailed in CARE CA’s DEIR comments, this approach is inconsistent with CEQA and has been rejected by the courts.40 And it is flatly inconsistent with the California Attorney General’s recent guidance setting forth best practices for CEQA analysis of the environmental impacts of warehouse projects like this one. That guidance states that best practices include “[w]hen

34 FEIR, pg. F-71.
35 14 CCR §§ 15130(a),15065(a)(3), 15355(b).
36 14 CCR §15065(a)(3).
37 Environmental Protection Info. Ctr. v Department of Forestry & Fire Protection (2008) 44 C4th 459, 524.
38 Id.
39 FEIR, pgs. F-66—F-67.
40 Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d 692 (“Kings County”); see also, Friends of Oroville v. City of Oroville (2013) 219 Cal. App. 4th 832, 841-42.

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analyzing cumulative impacts, thoroughly considering the project’s incremental impact in combination with past, present, and reasonably foreseeable future projects, even if the project’s individual impacts alone do not exceed the applicable significance threshold [emphasis added].”41 This guidance is especially important in light of the discussion above detailing the ongoing wave of warehouse development in the City of Fontana. In any event, the City’s reliance on SCAQMD’s guidance only extends to evaluation of the Project’s cumulative air quality impacts, and does not excuse the City’s failure to perform a legally adequate cumulative impacts analysis in all other impact areas.

Given the foregoing, it is clear that the EIR lacks a cumulative impacts analysis that complies with CEQA, as it fails to consider the additive effects of this Project with numerous nearby warehouses that have similar harmful effects on the surrounding community.

B. The EIR Underreports the Project’s Diesel Emissions

CARE CA’s and Dr. Clark’s comments on the DEIR pointed out that the City air quality and health risk analysis failed to address the emissions of toxic DPM from the Project’s diesel-powered fire pump and emergency generators. This failure has not been remedied in the FEIR. While acknowledging that this equipment will be used during Project operations, the City insists that it need not consider the impacts of these emissions as the equipment would not be in regular use.42 The City attempts to justify its failure to analyze these air quality impacts by stating “the commenter does not provide any evidence that inclusion of the cited pieces of emergency equipment would substantially increase the air pollution emission levels that were disclosed in the DEIR or result in a significant effect that was not disclosed in the DEIR.”43 However, it is the City’s responsibility as lead agency to prepare the EIR with a sufficient degree of analysis to provide decision-makers with the necessary information to make an intelligent decision regarding the Project’s environmental impacts.44 The EIR must contain facts and analysis, not just the City’s bare conclusions.45 Specific data should be presented when it is necessary for a meaningful analysis and it is reasonably foreseeable to provide it.46

41 Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act (Updated September 2022), available at https://oag.ca.gov/system/files/media/warehouse-best-practices.pdf 42 FEIR, pg. F-68.
43 Id.
44 14 CCR § 15151.
45 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 522. 46 Id. at 519.

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Here, the City produced detailed modeling of the Project’s estimated diesel emissions, but conspicuously failed to include emissions from the fire pump and backup generators, key sources of operational DPM emissions. It is plainly feasible for the City to provide specific data concerning these emissions as it has done for other emissions sources, yet it chose not to do so, in violation of CEQA. Instead, the City is relying on its bare conclusion that, although it failed to quantify those emissions, they would not result in a significant impact. This conclusion is wholly without the support of any, let alone substantial, evidence, and must be remedied with an amended DPM emissions analysis in a revised DEIR.

C. The EIR Fails to Analyze Potentially Hazardous Soil
Conditions

The Phase I Environmental Site Assessment (“ESA”) performed in connection with the DEIR reveals that the Project site was used as a commercial chicken farm for some period between the 1950’s and the early 2000’s.47 As Dr. Clark noted in his DEIR comments, neither the DEIR nor the ESA mention roxarsone, an arsenic- based additive commonly used in chicken feed; more than 95 percent of the roxarsone fed to chickens is excreted in chicken waste.48 Arsenic from these applications can leach into surface and groundwater and convert to inorganic arsenic, a known carcinogen. The DEIR, however, does not acknowledge the potential for arsenic impacted soils to be present on the Project site.49 The DEIR also discloses that Project grading would cut and fill approximately 263,937 cubic yards of existing soils,50 but fails to consider the possibility that particulate matter from grading activities, including dust that may contain arsenic, may migrate offsite to nearby sensitive receptors. Nor does the DEIR consider potential impacts to construction workers from exposure to arsenic while performing grading activities on the Project site. CARE CA and Dr. Clark detailed these concerns in their DEIR comments.

In response to these comments, the FEIR dismisses the issue by asserting that its consultant “conducted a thorough site reconnaissance and historical record review and found no evidence suggesting any potential sources of contamination from historic land uses—including poultry farming—on the Project site.”51 Dr.

Clark’s comments however provide substantial evidence suggesting likely sources of contamination, but the City has chosen not to investigate the potential

47 DEIR, Appendix J.
48 Clark DEIE Comments, pg. 6.
49 Id.
50 DEIR, pg. 3-14.
51 FEIR, pg. F-69.

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contamination, in violation of CEQA. The City’s failure to “find evidence” of arsenic contamination is a direct result of its failure to conduct basic investigation that could provide such evidence: the City has failed to perform soil sampling for the presence of arsenic, a reasonably foreseeable contaminant based on past use of the Project site, and instead claims that “the commenter does not provide any evidence to disprove the data collected” by its consultant or contradict the conclusions in the DEIR.52

The City’s decision to reject evidence from its own Phase I ESA and a highly qualified expert demonstrating that historical uses at the Project site warrant further investigation into potential contamination impacts is a blatant failure to comply with CEQA, and the FEIR’s subsequent conclusion that contamination impacts are less than significant based on its failure to investigate is unsupported by substantial evidence. Under CEQA, a lead agency may deem a particular impact to be insignificant only if it produces rigorous analysis and concrete substantial evidence justifying the finding.53 It is therefore the City’s obligation to support the FEIR’s conclusions with specific data and meaningful analysis, not the publics. The City has failed to do so here, and this failure must be remedied in a revised DEIR that analyzes and discloses the potential arsenic contamination in soil on the Project Site.

D. The EIR’s Noise Analysis is Not Supported by Substantial Evidence

As detailed in CARE CA’s DEIR comments, the DEIR’s noise impact analysis relied on a Noise Study (DEIR Appendix M) that analyzed a completely different project than the one described in the DEIR. The Noise Study evaluated a project that was approximately 25% of the size of the actual proposed Project, and had a different footprint, orientation and location of operational noise sources.54 The DEIR therefore lacked technical support for its analysis and conclusions.

In response to these comments, the FEIR admits “that the version of the Project’s Noise Study (DEIR Appendix M) that was released for public review is inconsistent with the scope of the Project described in the DEIR. The commenter is correct—an earlier, out-of-date, version of the Project’s Noise Study was inadvertently published with the DEIR.”55 The FEIR dismisses the significance of this error by claiming that the correct version of the Appendix M Noise Study was

52 Id.
53 Kings Cty. Farm Bur. v. Hanford (1990) 221 Cal.App.3d 692, 732. 54 CARE CA DEIR comments, pgs. 20-22.
55 FEIR, pg. F-68.

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available for review at City offices and could have been requested in electronic form.

This claim is disingenuous at best, as no one reviewing the DEIR would have reason to believe that another, correct version of Appendix M was available. The DEIR’s noise analysis expressly stated: “[t]he analysis contained herein incorporates information contained in a technical report prepared by Urban Crossroads, Inc., titled “Slover Avenue and Cypress Avenue Warehouse Noise Impact Analysis” (“Noise Analysis”) and dated December 4, 2022 (Urban Crossroads, 2022e). The report is included as Technical Appendix M to this EIR.”56 The DEIR therefore specifically referenced and purported to incorporate the “earlier, out-of-date” version of the Noise Study.

The FEIR further asserts that “all data from the correct, up-to-date version of the Project’s Noise Study was incorporated in the main body of the DEIR; thus the potential noise levels disclosed in the DERI were representative of the proposed scope of the Project.”57 The correct version of Appendix M was published with the release of the FEIR.58 The FEIR also maintains that the correct version of Appendix M “does not represent new information that was not or could not have been known at the time the DEIR was released for public review.”59 However, as discussed below, the now-available version of Appendix M includes previously unavailable information which, according to noise expert Jack Meighan, reveals a potentially significant construction noise impact.

The DEIR’s noise analysis includes an analysis of the Project’s construction noise that relies on “reference noise levels” to calculate noise impacts from various pieces of construction equipment, citing Appendix M as the source for these reference levels.60 The outdated Appendix M identifies the source of these reference levels as the Federal Highway Administration (“FHWA”) Roadway Construction Noise Model (“RCNM”),61 and notably, the noise reference levels set forth in the outdated Appendix M are significantly higher than those set forth in the DEIR. The updated version of Appendix M includes construction equipment reference noise levels that match those in the DEIR, but cite a different source for those levels:
“Update of Noise Database for Prediction of Noise on Construction and Open Sites by the Department for Environment, Food and Rural Affairs (DEFRA) expressed in hourly average Leq based on estimated usage factors from the FHWA Roadway Construction Noise Model (RCNM).”62

56 DEIR, pg. 4.9-1.
57 FEIR, pg. F-68.
58 Id.
59 Id.
60 DEIR, pg. 4.9-10.
61 DEIR, originally published Appendix M (Noise Study) at pg. 38, Table 8-1. 62 FEIR, updated Appendix M (Noise Study) at pg. 48, Table 10-1.

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Using the updated Appendix M construction equipment reference levels, noise expert Jack Meighan attempted to confirm the DEIR’s calculations of noise from construction equipment sources.63 Mr. Meighan’s analysis shows that the source level calculations cannot be replicated, and that noise from certain construction equipment is highly underestimated.64 For example, noise from an excavator would reach as high as 81 dBA, 17 dBA above the 64 dBA reported in the DEIR and compactors are underestimated by 4 dBA.65 Mr. Meighan concludes that under certain circumstances, the combined noise from Project construction grading equipment would cause a significant impact to the closest sensitive receptors.66 These findings require that the City revise its noise analysis and include mitigation as necessary in a revised EIR.

III. CONCLUSION

For the foregoing reasons, the Commission should not certify the FEIR, nor approve the Project’s Design Review and Tentative Parcel Map. The Commission should direct that the City revise and recirculate the EIR with a full analysis of the Project’s potentially significant impacts and propose appropriate mitigation.

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

Sincerely,

Richard M. Franco

RMF:ljl

63 Meighan FEIR Comments, pgs. 1- 2.
64 Id.
65 Id.
66 Id.

EXHIBIT A
1 | P a g e

March 19, 2024

Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080

Attn: Mr. Richard Franco
Subject: Comment Letter on Final Environmental Impact Report (FEIR) Cypress & Slover Warehouse Project, City of
Fontana, CA SCH NO. 2021120059.

Dear Mr. Franco:

At the request of Adams Broadwell Joseph & Cardozo (ABJC), Clark and Associates (Clark) has reviewed materials related to the above referenced project.

Clark’s review of the materials in no way constitutes a validation of the conclusions or materials contained within the DEIR or FEIR. If we do not comment on a specific item, this does not constitute acceptance of the item.

Project Description:

The Cypress and Slover Warehouse Project includes the
construction and operation of a 623,460 square -foot (s.f.) industrial commerce center building and associated facilities including but not limited to a loading/unloading area with loading dock doors and trailer parking spaces, passenger vehicle parking, landscaping, and connections to existing utility infrastructure. The DEIR assumes that the Project will include a maximum of 25 percent (25%) refrigerated storage. The Project site will be developed on a 29.8-acre property 0.1 miles south of I-10.

Clark & Associates
Environmental Consulting, Inc.

OFFICE
12405 Venice Blvd
Suite 331
Los Angeles, CA 90066
PHONE
310-907-6165
FAX
310-398-7626
EMAIL
[email protected]

Figure 1: Project Vicinity Map

The City of Fontana Zoning District Map classifies the portion of the Project Site located south of Boyle Avenue for “Light Industrial (M-1)” land uses, and classifies the portion of the Project Site located north of Boyle Avenue for “General Industrial (M-2)” land uses.

Figure 2: Zoning Surround Project Site

The City fails to note in its description of the Zoning that there are a number of areas to the south and southwest of the Project Site that are zoned residential and public facilities. The Project would introduce a high cube warehouse right next to residences and schools.

Figure 3: Project Site Plan

The DEIR concludes that no mitigation is required to prevent impacts from the project on air quality in the area. This conclusion is in conflict with the facts provided within the DEIR.

Specific Comments On FEIR Responses To Comments:

1. Responses To A-14/A-22: Potential For Hazardous Waste In Soils Onsite That Were Not Investigated.

The City’s response to questions regarding the potential for hazardous waste (specifically arsenic from the former poultry farming) is wholly inadequate. The City states that “The Project Site

was evaluated for potential environmental hazards an expert firm (Apex Companies) that conducted a thorough site reconnaissance and historical record review and found no evidence suggesting any potential sources of contamination from historic land uses – including poultry farming – on the Project Site (refer to DEIR Section 4.7 and DEIR Appendix J). The commenter does not provide any evidence to disprove the data collected by the Apex Companies or contradict the conclusions in the DEIR ”.

This response igno res the fact that Apex only performed a Phase I Environmental S ite Assessment (ESA) of the Subject Property. Phase I ESAs involve a site reconnaissance and data base review. This type of assessment is designed to identify potential environmental concerns but does not involve the collection of samples from potentially impacted media. The City’s conclusory statement regarding no evidence suggesting potential sources of contamination is not consistent with the facts and literature on metal contamination in poultry waste.

The DEIR’s Historical Review provided in Section 4.7 states that, “The portion of the Project Site located south of existing Boyle Avenue was used for agriculture (orchards) and residential uses beginning sometime between the early 1900s and the 1930s, except for the southeast corner of the Site which was vacant. These uses continued until the 1950s, when several residences and commercial chicken houses were constructed on the portions of the Project Site abutting the existing alignment of Slover Avenue. The chicken houses were removed from the southwestern portion of the Project Site by 1975 and were removed from the southeastern portion of the Project Site by the early 2000s.

Following the removal of the chicken houses on the southern portion of the Project Site, these areas were used for industrial purposes (a trucking business, trailer parking, and a recycling business). ”1 The Phase I clearly outlines that poultry operations were being run at the Subject Property from the 1950s through the early 2000s. This 50 years of potential waste disposal onsite is not addressed at all in the DEIR.

1 City of Fontana. 2023. DEIR. Pg 4.7.2

Organo-arsenicals were added to poultry feed since the 19 40s to control coccidial intestinal parasites.2,3,4 Poultry litter composed of the manure and bedding material has a high nutrient content and is used routinely as a fertilizer on cropland and pasture. 5Poultry litter consisting of bedding material (e.g., sawdust or wood chips) and excrement is generally disposed of by spreading onto agricultural fields near the poultry houses. This practice could result in locally elevated concentrations of arsenic in water and soil. 6 This lead the State of Maryland to ban the use of arsenicals in chicken feed in 2012. The Food and Drug Administration (FDA) withdrew marketing approvals for roxarsone and for two other arsenic-based feed additives in 2013.

Given the duration of operations at the Subject Property and the obvious evidence that concentrations of arsenic can be increased by storage and disposal of poultry waste it is clear that this would be a historic recognized environmental concern (H-REC) that should have been investigated by the Proponent. As was noted previously in my comments, the grading proposed for the Project Site would cut/remove approximately 263,937 cubic yards (CY) of existing fill soils. Residual arsenic in soils will harm nearb y residents when the soils are disturbed and migrates offsite. The City must reassess the hazardous waste potential onsite in a revised EIR.

2. Comment A-19 – The DEIR Fails To Adequately Disclose The Proximity Of Residential Properties To The Project Site.

The City asserts that information in the DEIR makes it clear that areas zoned for residential land uses are present south of Slover Avenue and areas zoned for public facility land uses are located south of Slover Avenue and east of Oleander Avenue. The City goes on to state that the DEIR clearly discloses –

2 Fisher, D.J., L.T. Yonkos, & K.W. Staver. 1999. Environmental Concerns of Roxarsone in Broiler Poultry Feed and Litter in Maryland, USA. Env. Sci & Tech. 49, 1999−2012 3 Rutherford, D.W., et. Al. 2003. Environmental Fate of Roxarsone in Poultry Litter. Part II. Mobility of Arsenic in Soils Amended with Poultry Litter. Env. Sci & Tech. 37(8): 1515-1520 4 Garbarino, J.R., et. Al. 2003. Environmental Fate of Roxarsone in Poultry Litter. I. Degradation of Roxarsone during Composting. Env. Sci & Tech. 37(8): 1509-1514
5 Garbarino, J.R., et. Al. 2003. Environmental Fate of Roxarsone in Poultry Litter. I. Degradation of Roxarsone during Composting. Env. Sci & Tech. 37(8): 1509-1514
6 Rutherford, D.W., et. Al. 2003. Environmental Fate of Roxarsone in Poultry Litter. Part II. Mobility of Arsenic in Soils Amended with Poultry Litter. Env. Sci & Tech. 37(8): 1515-1520

and adequately informs the public and City of Fontana decision makers – that areas designated for non- industrial land uses are proximate to the Project Site. This conflicts with the Cumulative Impacts Analysis in the DEIR that states Due to the adjacency of I-10 and Union Pacific railroad tracks, which are generally not compatible with residential land uses due to air pollution concerns, the City has designated the corridor south of I-10 and north of Slover Avenue for industrial land uses within the Project Site vicinity. The City must clearly identify that they are created post hoc an industrial land use designation for an area that currently has a mix of land uses, including residential uses.

3. Comment A-24 - The DEIR’s Health Risk Analysis Fails To Include All Cumulative Impacts From Surrounding Projects.

The City’s response to the comment on the inadequacy of the cumulative impacts analysis .

The City’s response includes “Of the 12 warehouse development projects that the commenter claims are missing from the cumulative impact analysis, a total of nine (9) – representing approximately 5.4 million square feet of building area – were fully constructed and operational at the time the Notice of Preparation (NOP) for the Project’s EIR was advertised for public review on December 3, 2021. ” While that statement may be accurate regarding the development of the projects it does not address the issue at hand – the cumulative impact of projects in the area.

As I noted in my initial comments the City has failed to include a number of projects in the cumulative impact analysis within a 1-mile radius of the Project Site. Many of the projects are closer to the Project Site than the projects identified by the City in the DEIR.

Figure 4: Projects Not Listed In City's Cumulative Analysis

Figure 6 shows the locations of projects not included in the City’s cumulative impact analysis Unaddressed in the City’s comments are my concern regarding the addition health burden on the community from the projects I identified in my comments. In addition to the diesel particulate matter from trucks at the HCW sites, receptors at or near the Project Site will be exposed to significant quantities of air toxins from tailpipe emissions. CARB’s analysis of tailpipe emissions shows that in addition to simple alkane hydrocarbons, the emissions also contain benzene (human carcinogen), 1,3- butadiene (human carcinogen), ethylbenzene (human carcinogen), toluene (neurotoxin), acetaldehyde (respiratory irritant), and formaldehyde (human carcinogen) , and other air toxins. These air toxins make up approximately 22% of the total organic gases (TOGs) emitted from vehicles.

CARB
TOG Speciation Profile
Run Exhaust7
CAS# Chemical Name Fraction
75070 Acetaldehyde 0.0028
107028 Acrolein 0.0013
71432 Benzene 0.0247

7 https://ww2.arb.ca.gov/speciation-profiles-used-carb-modeling 23 Site
25 24
27 26
20 19

18 17
16 21

22 CARB
TOG Speciation Profile
Run Exhaust7
CAS# Chemical Name Fraction
106990 1,3-Butadiene 0.0055
100414 Ethylbenzene 0.0105
50000 Formaldehyde 0.0158
110543 Hexane 0.0160
67561 Methanol 0.0012
78933 Methyl Ethyl Ketone 0.0002
91203 Naphthalene 0.0005
115071 Propylene 0.0306
100425 Styrene 0.0012
108883 Toluene 0.0576
1330207 Xylenes 0.0480

Clearly the majority of emissions of these compounds from the surrounding sites to the Project site will be associated with passenger vehicles , resulting in significant exposure to benzene (human carcinogen), 1,3 -butadiene (human carcinogen), ethylbenzene (human carcinogen), toluene (neurotoxin), acetaldehyde (respiratory irritant), and formaldehyde (human carcinogen), and other air toxins.

The additional daily trips not accounted for by the City, along with the other projects in the area represent a significant source of DPM and air toxins from vehicle exhaust. The City must incorporate the cumulative analysis into a revised EIR to ensure the safety of the residents near the Project Site.

4. Response To Comment A -12 and A -25: The Air Quality Analysis Of Operational Emissions Is Incomplete And Fails To Include Emissions From The Fire Pump System And The Back Up Generator System(s) That Will Be Installed Onsite.

In response to the City comment that “Regarding the commenter’s claim that the omission of emergency generators and fire pumps from the emissions calculations renders the analysis and conclusions in the DEIR invalid, the commenter does not provide any evidence that inclusion of the cited pieces of emergency equipment would substantially increase the air pollution emissions levels that were disclosed in the DEIR or result in a significant effect that was not disclosed in the DEIR.

The equipment identified by the commenter is for use during emergencies and thus the equipment, if used at all, would not be in regular use. Moreover, during emergency situations, when emergency generators and fire pumps would be needed, the Project is unlikely to be operating at peak output; therefore, any emissions from emergency equipment is likely to be offset by a reduction in emissions from typical operational activities ”. The City misses the critical point in the comment that the emissions of DPM from the equipment represent an additional source of toxic air contaminants in the vicinity.

To be compliant with the California Fire Code (CFC) and local fire authorities, the Project will be required to install a fire pump system and is likely to have a back up generator (BUG) onsite. The City’s response regarding the fire pump and BUG ignores the need to test and maintain the systems annually. Under the California Air Resources Board (CARB) Airborne Toxic Control Measure (ATCM) for Stationary Compression Ignition Engines 8 guidance, t he District may allow a new stationary emergency standby diesel -fueled Cl engine (> 50 hp) to operate up to 100 hours per year for maintenance and testing purposes on a site-specific basis, provided the diesel PM emission rate is less than or equal to 0.01 g/bhp-hr. In addition to the testing emissions the air quality analysis in the DEIR must include the substantial increase in operational emissions from BUGs in the Air Basin due to unscheduled events, including but not limited to Public Safety Power Shutoff (PSPS) events and extreme heat events. No where in the City’s response are the additional emissions of DPM from the operation of the BUGs during PSPS addressed. This failure to include the emissions from the BUGs is a significant unaddressed emission source for the Project. The City’s analysis is therefore incomplete and must be corrected in a revised DEIR for the Project.

The facts identified and referenced in this comment letter lead me to reasonably conclude that the Project could result in significant impacts if allowed to proceed. A revised EIR should be prepared to address these substantial concerns.

Sincerely,

8 Title 17, California Code of Regulations section 93115

James J. J. Clark, Ph.D.

Principal Toxicologist
Toxicology/Exposure Assessment Modeling
Risk Assessment/Analysis/Dispersion Modeling

Education:

Ph.D., Environmental Health Science, University of California, 1995 M.S., Environmental Health Science, University of California, 1993 B.S., Biophysical and Biochemical Sciences, University of Houston, 1987

Professional Experience:

Dr. Clark is a well recognized to xicologist, air modeler, and health scientist. He has 20 years of experience in researching the eff ects of environmental contaminants on human health including environmental fate and transport modeling (SCREEN3, AEROMOD, ISCST3, Johnson-Ettinger Vapor Intrusion Modeling); exposure assessment modeling (partitioning of contaminants in the environment as well as PBPK modeling); conducting and managing human health risk assessments for regulatory compliance and risk-based clean-up levels; and toxicological and medical literature research.

Significant projects performed by Dr. Clark include the following:

LITIGATION SUPPORT

Case: James Harold Caygle, et al, v. Drummond Company, Inc. Circuit Court for the Tenth Judicial Circuit, Jefferson County, Alabama. Civil Action. CV-2009 Client: Environmental Litgation Group, Birmingham, Alabama

Dr. Clark performed an air quality assessment of emissions from a coke factory located in Tarrant, Alabama. The assessment reviewed include a comprehensive review of air quality standards, measured concentrations of pollutants from factory, an inspection of the facility and detailed assessment of the impacts on the community. The results of the assessment and literature have been provided in a declaration to the court.

Clark & Associates
Environmental Consulting, Inc
OFFICE
12405 Venice Blvd.

Suite 331
Los Angeles, CA 90066
PHONE
310-907-6165
FAX
310-398-7626
EMAIL
[email protected]
Case Result: Settlement in favor of plaintiff.

Case: Rose Roper V. Nissan North America, et al. Superior Court of the State Of California for the County Of Los Angeles – Central Civil West. Civil Action.

NC041739
Client: Rose, Klein, Marias, LLP, Long Beach, California

Dr. Clark performed a toxicological assessment of an individual occupationally exposed to multiple chemicals, including benzene, who later developed a respiratory distress. A review of the individual’s medical and occupational history was performed to prepare an exposure assessment. The exposure asse ssment was evaluated against the known outcomes in published literature to exposure to respiratory irritants. The results of the assessment and literature have been provided in a declaration to the court.