Fontana City Council
May 28, 2024

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the EIR concerning the selection of significance thresholds, the City reported "the Project would not have a significant effect on the environment if it is found to be consistent with the applicable regulatory plans and policies to reduce GHG emissions." (AR 920.) The City thereafter set forth the applicable plans and policies for which it considered consistency in the context of GHG emissions. (AR 14:920.) The EIR methodically discusses the Project and the applicable plans and policies. Petitioner has not demonstrated the EIR's significance threshold discussion would mislead or confuse decisionmakers or public participants.

Second, without expressly so stating, much of Petitioner's argument related to GHG emissions theorizes the City abused its discretion in deciding not to use a quantitative threshold of significance for the Project. Petitioner contends the SCAQMD quantitative thresholds of significance should have been used for the Project as they are "the most appropriate ... to apply because the Project is a mixed-use project." (Opening Brief 14:17-18.) Petitioner thus contends the City engaged in "threshold shopping" for the Project. Petitioner speculates the City uses the SCAQMD's recommended thresholds of significance "to analyze projects where emissions are below the threshold." (Opening Brief 14:32-35.) Petitioner cites three such projects in the City's downtown area where the City used SCAQMD's thresholds of significance to find a project's GHG emissions had less than significant impacts. (AR 6495-6496.) The City explained it elected not to rely on SCAQMD's 2008 draft guidance (as revised in 2010) because neither the City nor SCAQMD "has adopted numeric thresholds for greenhouse gas emissions for land use development projects (e.g., residential/commercial projects) such as the Project." (AR 2820.) The City elaborated:

As further explained in the Draft EIR, in 2008, the SCAQMD convened a GHG CEQA Significance Threshold Working Group to provide guidance to local lead agencies on determining significance for GHG emissions in their CEQA documents. In December 2008, the SCAQMD Governing Board adopted interim GHG significance thresholds for projects where the SCAQMD is the lead agency. That threshold uses a tiered approach to determine a project's significance, with 10,000 metric tons of CO2 equivalent (MTCO2e) per year as a screening numerical threshold for stationary sources. In September 2010, the Working Group released additional revisions that recommended a screening threshold of 3,500 MTCO2e for residential projects, 1,400 MTCO2e for commercial projects, and 3,000 MTCO2e for mixed use projects. The SCAQMD has not since adopted those thresholds, nor has the SCAQMD provided a timeline for formal consideration of those thresholds.

In the meantime, the thresholds in the SCAQMD's guidance document are used as a non-binding guide. A lead agency is not required under CEQA to rely on draft regulatory standards that have not been adopted as significance thresholds. (AR 2820-2821.)

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While the City may have chosen to use the SCAQMD's guidance as thresholds of significance (as it apparently has done with at least three other projects) in the past, the City was not required to do so. (Guidelines§ 15064.7, subd. (c). See also Guidelines§ 15064.4, subd. (b)(3).) The Guidelines do "not mandate the use of absolute numerical thresholds to measure the significance of greenhouse gas emissions." (Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 221.) Accordingly, Petitioner has not met its burden of demonstrating the City's selection of the significance threshold is not supported by substantial evidence.

Third, Petitioner contends the EIR's GHG emissions analysis is inconsistent with SB 32. That is, Petitioner attacks the City's finding the Project is "consisten[t] with the policies in SB 32 and Executive Order B-30-15, which includes the GHG reduction goals codified in SB 32." (Opposition Brief 17:2-3.) Petitioner contends "[t]he EIR includes compliance with Executive Order B-30-15 on the list of measures it must comply with for the Project's GHG emissions to be considered insignificant ... and the Project does not comply with that executive order." (Reply 8:22-25.) Petitioner is correct to the extent there is no substantial evidence to support the City's position on Executive Order (EO) B-30-15.

As an initial matter, the City and Flower Growers argue Petitioner failed to exhaust its administrative remedies on the issue of "CARB's 2017 Scoping Plan, which provides strategies to achieve the 2040 GHG emission goals set in SB 32." (Opposition Brief 17:12-14.) The court disagrees. The broader issue of overall compliance with SB 32-however that might be achieved-was squarely presented to the City during the administrative proceedings.

SWAPE8 specifically raised the issue of SB 32 in its written comments to the DEIR. (AR 2900, 2922.) SWAPE wrote:

AB 32 requires California to reduce GHG emissions to 1990 levels by 2020.

However, in September 2016, prior to the release of the IS/MND, Governor Brown signed Senate Bill 32, enacting Health and Safety Code § 38566. [] This statue ("SB 32") requires California to achieve a new, more aggressive 40% reduction in GHG emissions over the 1990 levels by 2030. 'This 40 percent reduction is widely acknowledged as a necessary interim target to ensure that California meets its longer-range goal of reducing greenhouse gas emissions to 80 percent below 1990 levels by the year 2050.' Therefore, by failing to demonstrate consistency with the reduction targets set forth by SB 32, the Project may conflict with an applicable plan, policy, or regulation adopted for the purpose of reducing GHG emissions. As a result, the Project may have a potentially significant impact that was not previously addressed in the DEIR, and as such, a revised EIR should be prepared. (AR 2922.)
8 SWAPE is an acronym for Soil Water Air Protection Enterprises. SWAPE provides technical consultation, data analysis, and litigation support for the environment. (AR 2927.)

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SWAPE also advised the City-with expert opinion-"to reach the statewide goal of 259 MTCOie, California would have to reduce its emissions by 49 percent below the 'business-asusual' levels. This reduction target indicates that compliance with these more aggressive reduction goals, beyond what is mandated by AB 32, will be necessary." {AR 2923.) As acknowledged by the City and Flower Growers, the legislature codified EO B-30-15 at SB 32. (Opposition Brief 17:3.} Executed by Governor Brown on April 29, 2015, two years before the notice of preparation, EO B-30-15 provides in part:
"A new interim statewide greenhouse emission reduction target to reduce greenhouse gas emissions to 40 percent below 1990 levels by 2030 is established in order to ensure California meets its target of reducing greenhouse gas emissions to 80 percent below 1990 levels by 2050."
SB 32, codified at Health and Safety Code section 38566, effective January 1, 2017 (prior to the City's notice of preparation) provides:
"In adopting rules and regulations to achieve the maximum technologically feasible and cost-effective greenhouse gas emissions reductions authorized by this division, the state board shall ensure that statewide greenhouse gas emissions are reduced to at least 40 percent below the statewide greenhouse gas emissions limit no later than December 31, 2030."
The EIR reports the Project's GHG emissions are "consistent"9 with EO B-30-15. (AR 926.) The EIR's discussion of EO B-30-15 in its "Consistency Analysis" reports the order's target of reducing GHG emissions to 40 percent below 1990 levels by 2030. (AR 926-927.) In fact, the EIR suggests the Project is actually consistent and compliant with EO B-30-15: "As such, given the reasonably anticipated decline in Project emissions once fully constructed and operational, the Project is consistent with the Executive Order's horizon-year goal."10 (AR 926.) The issue raised by Petitioner is whether there is substantial evidence for the EIR's claim to decisionmakers and public participants the Project does not conflict with E0 B-30-15-"an applicable plan, policy, or regulation adopted for the purpose of reducing the emissions" of GHG. (AR 14:917.) The City's position of consistency with EO B-30-15 requires substantial evidence.
9 "Consistent" means "marked by harmony, regularity, or steady continuity" and "marked by agreement." (www.merriam-webster.com/dictionary/consistent.) 10The EIR's use of a singular possessive form as opposed to a plural possessive form makes the analysis where the EIR discusses two executive orders unclear. In any event, the statement implies quantitative compliance with required GHG emission reductions by 2030. The City's findings, however, make clear the City intended the statement to apply to both executive orders. (AR 235.)

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Certainly, the EIR acknowledges a 2030 GHG emissions target exists under the law; in its Consistency Analysis, however, the EIR provides no information about that target or how the Project's GHG emissions are consistent with it. The EIR's claim "the Project's post-2020 emissions trajectory is expected to follow a declining trend, consistent with the 2030 and 2050 targets and Executive Order ... B-30-15" appears to be unsupported by substantial evidence. (AR 927.)
Moreover, the EIR reports "[m]any of the emission reduction strategies recommended by CARB would serve to reduce the Project's post-2020 emissions level to the extent applicable by law .... " (AR 927 [emphasis added].) The EIR, however, provides no analysis to support the claim the Project's GHG emissions comply with Health and Safety Code section 38566. That is, "applicable law."11 In fact, the only evidence on the issue suggests otherwise. (AR 2923 [49 percent reduction required for compliance versus Project's 33 percent reduction].) During argument the Flower Growers directed the court to evidence the City could have considered to find the Project is consistent with EO B-30-15. The evidence, however, is not substantial evidence supporting the claim the Project's post-2020 emissions will be reduced to the level required by EO B-30-15 as reported in the EIR.

For example, the EIR's discussion of EO B-30-15 explains "a statewide GHG reduction target of 40 percent below 1990 levels by 2030." (AR 902.) Citing a "recent study," the EIR reports "the state's existing and proposed regulatory framework will allow the state to reduce its GHG emissions level to 40 percent below 1990 levels by 2030 (consistent with Executive Order B-30- 15), and to 60 percent below 1990 levels by 2050." (AR 903.) While the City cited the study by footnote, the study did not address the Project and its GHG emissions.12 Thus, the discussion and study are not substantial evidence of the Project's compliance with EO B-30-15.

In addition, the Project's reduction in GHG emissions related to design features (AR 924-925) does not address compliance with EO B-30-15. The order sets forth a quantitative standard. The EIR's general reference to design features and GHG does not inform on consistency with that quantitative standard.
11 The City found, "As such, the Project's post-2020 emissions trajectory is expected to follow a declining trend, consistent with the 2030 and 2050 targets and Executive Order S-3-05 and B-30-

15." (AR 235 [emphasis added].) The statement is misleading because it implies the Project meets EO 8-30-lS's emissions target when there is no substantial evidence to support the City's position.
12 The court does not have access to the study cited in the footnote. The El R's narrative suggests the study concerned "various combinations of policies" to assist emission levels to "remain very low through 2050 .•.. " (AR 903.) In the unlikely event the general study addressed the Project, the court notes "a report 'buried in an appendix,' is not a substitute for 'a good faith reasoned analysis .... '" (Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 941 [citation omitted].)

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The EIR's discussion of the Regional Transportation Plan/Sustainable Communities Strategy of Southern California Association of Governments (SCAG) does address GHG emission reductions. (AR 911, 930-931.) The discussion, however, does not inform on the Project's consistency with EO B-30-15.

Finally, relying on Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, the City argues it had no obligation to consider EO B-30-15. In Cleveland National Forest Foundation, the petitioners argued the agency "should have evaluated the plan's impacts against an executive order signed" by the governor. (Id. at 503.) The Supreme Court disagreed. The agency in Cleveland National Forest Foundation, however, did not adopt a significance threshold of express consistency with an executive order as the City did here. (See id. at 507 [three measures of significance).) That is, the agency in Cleveland National Forest Foundation did not represent the project was consistent with a particular executive order and establish its significance threshold in p~rt on such consistency.

Based on the foregoing, the court finds the EIR's claim of consistency with EO B-30-15 and the policies therein is not supported by substantial evidence. Thus, the EIR's conclusions that GHG emissions do not exceed the City's chosen significance threshold is unsupported. The City abused its discretion in finding GHG emissions would not have a substantial environmental impact. "[A] conclusory discussion of an environmental impact that an EIR deems significant can be determined by a court to be inadequate as an informational document without reference to substantial evidence." (Friant Ranch, supra, 6 Cal.5th at 514.) Petitioner is entitled to relief based on the EIR's incomplete discussion of GHG emission impacts.13 Air Quality Impacts:

The EIR reports the Project's construction emissions would cause significant regional and local air quality impacts based on nitrogen oxides (NOx) and fine particulate matter (PM2.5). (AR 843.) Thus, the Project required mitigation measures for air quality impacts. (AR 843.) Petitioner contends the EIR fails to adequately analyze and mitigate construction-related impacts on air quality.
13 During argument, the parties argued about the meaning of Table 4.F-5. (AR 922.) The City contended the table calculations demonstrated compliance with EO B-30-15 while Petitioner argued it did not. The narrative accompanying the table indicates the Project is consistent with the 2014 Revised AB 32 Scoping Plan because of a reduction target of 15.3 percent. There is no discussion of EO B-30-15. Whether the table's information is consistent with EO 8-3-15-and the court could not determine one way or the other even after the aid of argument-is unclear and does not inform decisionmakers or public participation.

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1. Mitigation Measure (MM) C-1
MM C-1 requires "(a]II off-road construction equipment greater than 50 horsepower" satisfy United States Environmental Protection Agency (EPA) "Tier 4 emissions standards to reduce NOx and PM2.5 emissions at the Project Site." (AR 849.) The EIR states "[a]ny emissions control device used by the contractor shall achieve emissions reductions that are no less than what could be achieved by a Level 3 diesel emissions control strategy for a similarly sized engine as defined by CARB regulations." (AR 849.)
"For projects for which an EIR has been prepared, where substantial evidence supports the approving agency's conclusion that mitigation measures will be effective, courts will uphold such measures against attacks based on their alleged inadequacy." (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027.) A reviewing court, however, will not defer to the agency if there is no substantial evidence in the record showing the mitigation measure is feasible and effective, or if the feasibility or effectiveness of the mitigation measure "def[ies] common sense." (Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1116-1117.) Petitioner contends MM C-1 is both ineffective and infeasible.

The parties' argument here centers on the meaning of Tier 4 standards for the construction equipment to be used for the Project. Petitioner contends there are two Tier 4 standards-an interim standard and a final standard.14 Petitioner reports the CalEEMod calculations are based on a Tier 4 final standard-an assumption all construction equipment used for the Project with a horsepower greater than 50 comply Tier 4 final standards. (AR 2908 [citing Appendix E-1]; see also AR 1475-1478, 1507-1510, 1544-1547.) Therefore, to the extent MM C-1 permits the Flower Growers to use equipment with a Tier 4 interim standard, the required mitigation will not be achieved. That is, the CalEEMod calculation on which the effectiveness of MM C-1 is based assumes a Tier 4 final standard for all construction equipment exceeding 50 horsepower.

MM C-1, however, does not require all equipment to be Tier 4 final compliant.

The City dismisses Petitioner's claim as nothing more than a "red herring." (Opposition 21:18.) The City reasons Tier 4 "interim" standards were only in effect for a short period of time for certain manufacturers. The interim period ended in 2018 well before the City issued the EIR in 2019. (AR 2803, 4303-4304.) The EIR explains:
"Tier 4 engines have been phased in nationwide since 2008 for all engine types. While some manufacturers were given limited flexibilitY. to phase in compliant engines under the Transition Program for Equipment Manufacturers (TPEM), this provided up 14 There seems to be no dispute Tier 4 final standards are more stringent (allow less emissions) than Tier 4 interim standards. (AR 2909, 2803.)

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to seven years of additional time to offer such equipment. For engines less than 56 horsepower (hp), this TPEM period ended at the end of 2014. Engines between 56- 130 hp had until the end of 2018, while larger engines of 130 hp or more ended at the end of 2017. As a result, Tier 4 equipment is commercially available from all manufacturers, especially for common types of equipment to be used during the construction phases for this Project." (AR 2803 [emphasis added].) The City sidesteps and avoids the issue. (See AR 6621-6622.) MM C-1 relies on Tier 4 equipment. CalEEMod calculations-demonstrating effective mitigation-are based on Tier 4 final standards for construction equipment exceeding 50 horsepower. The City does not require, however, that all equipment exceeding SO horsepower used for construction have been manufactured in 2019 and later-that is, when Tier 4 final standards were required. Thus, MM C-1 permits, for example, construction equipment with 130 horsepower manufactured in 2018 under the Tier 4 interim standard to be used on the Project. To the extent the City permits such equipment to be used, it would be inconsistent with CalEEMod calculations and undermine the mitigation.

During argument, the City suggested its interpretation of MM C-1 requires equipment for the Project to use Tier 4 final standards. The City contends its CalEEMod calculations support its intent. That is, if the City did not intend for all equipment to meet such standards it would not have used such a setting in its CalEEMod calculations. 15 The City also noted the Flower Growers concede MM C-1 requires Tier 4 final standard engines and so advised the City: "It should be noted that the measure refers to the use of Tier 4-certified engines, not the less effective Tier 4-interim certified engines." (AR 10136.)
The MMRP will require compliance with Tier 4 final standards for MM C-1. Whether the Project is complying with MM C-1 will not turn on the good faith of an "on-the-hood-of-a-truck" analysis of the mitigation measure by a contractor, as suggested by Petitioner during argument.

Instead, the MMRP requires:
"[S]pecifically during the construction phase and prior to the issuance of building permits, the [Flower Growers] shall retain an independent Construction Monitor (either via the City or through a third-party consultant), approved by the City of 15 Additionally, the City differentiated between Tier 4 standards (which the City considers final standards) and Transition Program for Equipment Manufacturers (TPEM) standards in the EIR.

Thus, the City's language in MM C-1 would not support two Tier 4 standards, final and interim.

Under the City's view, there is a Tier 4 standard and a TPEM standard. If the City had intended to include an "interim" Tier 4 standard in the MM, it would have used TPEM. In any event, this distinction provides additional support to the City's intent and the enforceable performance standard used for the MM.

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Los Angeles Department of City Planning, who shall be responsible for monitoring implementation of Project design features and mitigation measures during construction activities consistent with the monitoring phase and frequency set forth in this [MMRP)." (AR 143.)
Thus, while MM C-1 could have been more precise, the City's intent is clear, and the MM contains a specific performance standard. Moreover, the Flower Growers have acknowledged MM C-1 requires construction equipment with Tier 4 final standards (or its equivalent) be used for the Project. The MMRP will "ensure compliance during project implementation." (Pub.

Resources Code § 21081.6, subd. (a).)
While Petitioner contends the City uses a performance standard addressing only particulate but not NOx emissions (Opening Brief 18:14-19}, the court is unpersuaded. MM C-1 requires any construction equipment meet both standards-Tier 4 final and a Level 3 diesel emission control strategy. (AR 849 ["In addition"].)
Based on the foregoing, the court finds the City's determination MM C-1 will be effective at mitigating air quality impacts to a less-than-significant level during construction is supported by substantial evidence.
a. Feasibility and Enforceability of MM C-1
According to Petitioner, MM C-1 "does not provide either feasible or enforceable means to ensure significant air quality impacts will be avoided." (Opening Brief 19:5-6.) Petitioner argues MM C-1 is inadequate to ensure avoidance of significant impacts to the air quality "because of practical obstacles in obtaining the required technology." (Opening Brief 19:10-11.) Petitioner reports while Tier 4 standards have been phased in for construction equipment manufactured since 2008 (Tier 4 interim) and 2014 (Tier 4 Final), "a large portion of the construction equipment currently in use was manufactured to lower standards." (Opening Brief 19:16-17 [citing AR 2910-2911).)16 Petitioner contends the City's claim Tier 4 standards construction equipment is readily available is unsupported by substantial evidence. Thus, Petitioner claims the EIR's conclusion supporting feasibility-the availability of equipmentfails.

Petitioner's argument alleging a lack of appropriate construction equipment is based on speculation. Petitioner's reliance on a seven-year-old report from 2014-just after Tier 4 final 16 "In 2014, 25% of all offroad equipment in the state of California were equipped with Tier 2 engines, approximately 12% were equipped with Tier 3 engines, approximately 18% were equipped with Tier 4 Interim engines, and only 4% were equipped with Tier 4 Final engines."

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standards phased in-does not meet Petitioner's burden on the issue. The City's position "it is reasonable to conclude that the market has produced many more Tier 4-compliant engines" since 2014 is reasonable and appropriate given Petitioner's speculation. (Opposition 23:2-3.} This is especially true given the passage of time and such equipment being available from all manufacturers. (AR 2806.)
More importantly, if Flower Growers cannot secure specific Tier 4 equipment as required by MM C-1, Flower Growers will be required to "work with the City's Building and Safety Department on equivalent alternatives that minimize tailpipe emissions from off-road equipment." (AR 2803.) The term "equivalent" means the Flower Growers must demonstrate the proffered alternative "meets or exceeds" Tier 4 standards thereby meeting necessary emission reductions in NOx and PM2.5. (AR 4303-4304.)
.Based on the speculative nature of Petitioner's claim concerning feasibility, the court finds Petitioner did not meet its burden of demonstrating the City abused its discretion when it found MM C-1 is feasible.17

2. Air Quality Impacts to Sensitive Receptors
Petitioner takes issue with the City's selection and identification of sensitive receptors and their proximity to the Project. The flaw, according to Petitioner, undermines the El R's air quality analysis.

Petitioner notes the EIR identifies the "nearest" sensitive receptors at distances of 220 (school}, 240 (apartment building), 440 (apartment building) and 700 (apartment building) feet from the Project. (AR 836.) Petitioner reports there is an apartment building within 55 feet of the Project and another closer than 240 feet. (AR 778, 3173, 6874-6875.) Petitioner argues that these omissions are misleading by creating the impression for decisionmakers and the participating public there are few sensitive uses in close proximity to the Project.18 To the extent selection of a group of sensitive receptors is a methodology issue, the City is entitled to deference on its methodology.19 Thus, the decision is subject to substantial evidence review. (City of long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 898.) 17 The court's finding MM C-1 is effective sufficiently responds to Petitioner's claim concerning enforceability.
18 Additionally, Petitioner argues the El R's air quality impacts on sensitive receptors is inadequate because it relies on the MM C-1 to render the impact less than significant. Of course, the court's earlier analysis of MM C-1 would be equally applicable here. 19 That said, the court is not persuaded the issue is, in fact, a methodology issue.

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The City's use of SCAQMD guidance on the issue does not actually support selection issues. That is, nothing in the SCAQMD guidance instructs on selection of sensitive receptors over others. (AR 832-848, 845.) Thus, the SCAQMD guidance is not substantial evidence.

In the EIR, the City "disclose[d] the location of a number of representative sensitive receptors near the Project Site" including residential and non-residential uses. (AR 7232.) The City's response to public comment is instructive:
"Almost all of the other residential uses identified by the commentor are at the same distance from the Project site as the Santee Court Apartments (i.e., the Santee Village Apartments) or even a further distance away from the Project site (i.e., the Garment Lofts are 40 feet further away than the Santee Court Apartments and the Santee Village Lofts are 60 feet further away than the Santee Court Apartments). Moreover, compliance with SCAQMD's thresholds of significance will avoid any significant impact to any of these sensitive receptors and the EIR demonstrates that mitigated construction emissions would be less than all the SCAQMD's thresholds of significance. (Refer to Draft EIR, pages 4.C-19 through 23.) This conclusion would apply regardless of the location of any receptor pursuant to SCAQMD guidance." (AR 7232; see also AR 3570-3571.) The court finds Petitioner has not met its burden of demonstrating a prejudicial abuse of discretion even assuming the City abused its discretion in its selection of sensitive receptors.

Petitioner has not suggested any legal requirement that every sensitive receptor within close proximity of a Project must be identified. "CEQA requires only that the agency 'use its best efforts to find out and disclose all that it reasonably can' (Guidelines, § 15144), and that the EIR display 'adequacy, completeness, and a good faith effort at full disclosure' (Guidelines, § 15151)." (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 253.)
Further, Petitioner fails to demonstrate the City sampling is misleading-other than to the extent the City did not include every single sensitive receptor in close proximity to the Project.

The City's expert concluded the Project would avoid significant impacts to all receptors in the vicinity because the Project's mitigated construction emissions will fall below SCAQMD's thresholds measured at the source of the emissions. (AR 3570-3571, 4068, 7232.) Petitioner does not suggest with evidence the El R's analysis and conclusions would be different with respect to the omitted sensitive receptors as opposed to the receptors the City considered and analyzed. Accordingly, Petitioner shows no prejudicial abuse of discretion.

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3. Disclosure of Health Risks Associated with Air Quality Impacts Petitioner argues the Project fails to adequately discuss the connections between potential pollutant emissions and resulting human health impacts. Such analysis, Petitioner contends, is required by Guidelines section 15126.2, subdivision (a).

Petitioner asserts the EIR failed to discuss the health risks related to the estimated level of construction and operational emissions. (AR 827-850.) The EIR therefore does not comply with the Supreme Court's direction in Friant Ranch that a "[p]roject's health effects must be "clearly identified" and the discussion must include "relevant specifics" about the environmental changes attributable to the Project and their associated health outcomes." (Friant Ranch, supra, 6 Cal.5th at 518.)
Further, Petitioner argues the City's 2019 Health Risk Assessment (HRA) does not "fill the gap in the EIR's analysis." (Opening Brief 23:28.) The HRA contains no analysis of operational emissions and merely addresses construction-related emissions of diesel particulate matter. (AR 846.)
Under SCAQMD guidance, an HRA is recommended for "substantial sources of diesel particulate emissions (e.g., truck stops and warehouse distribution facilities) ... . 11 (AR 846.) The City
determined-and there is no challenge to the City's finding-the "Project would not result in any substantial emissions of toxic air contaminants (TAC) during the construction or operations phase." (AR 846.)
The EIR explains:
"The Project would not result in any substantial emissions of toxic air contaminants (TACs) during the construction or operations phase. During the construction phase, the primary air quality impacts would be associated with the combustion of diesel fuels, which produce exhaust-related particulate matter that is considered a toxic air contaminant by CARB based on chronic exposure to these emissions. However, construction activities would not produce chronic, long-term exposure to diesel particulate matter. During long-term project operations, the Project does not include typical sources of acutely and chronically hazardous TACs such as industrial manufacturing processes and automotive repair facilities. As a result, the Project would not create substantial concentrations of TACs. In addition, the SCAQMD recommends that health risk assessments be conducted for substantial sources of diesel particulate emissions (e.g., truck stops and warehouse distribution facilities) and has provided guidance for analyzing mobile source diesel emissions. The Project would not generate a substantial number of truck trips. Based on the limited activity of TAC sources, the Project would not

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warrant the need for a health risk assessment associated with on-site activities.

Therefore, Project impacts related to TACs would be less than significant." (AR 846; see also AR 2964-66.)
Contrary to Petitioner's position, Friant Ranch, does not require more from the City. The Project does not exceed any SCAQMD significance threshold for air quality impacts or trigger any criteria requiring an HRA.

Petitioner has not met its burden of demonstrating a prejudicial abuse of discretion based on a failure to adequately discuss the connections between potential pollutant emissions and resulting human health impacts.20
Noise Impacts:

Petitioner contends the EIR fails to adequately analyze and mitigate construction-related environmental impacts as to noise.

1. Disclosure of Impacts to Sensitive Receptors
Petitioner takes issue with the El R's purported failure to analyze the construction-noise impacts at the Textile Building Lofts, a location merely 55 feet from the Project. The EIR does not contain any noise analysis to any sensitive receptors at this location. In fact, the first discussion by the City about the noise impacts to the Textile Building Lofts is contained in Erratum No. 3. (AR 3173, 3342-3343.)
Petitioner contends the City's analysis is flawed. Petitioner believes the daytime ambient noise level of 64.8 dBA, based on measurements on Maple Avenue, is overstated for the Textile Building Lofts. (AR 3343.} The City's inaccurate 64.8 dBA daytime noise level assumption, according to Petitioner, led to a conclusion of only a 1.3 dBA daytime noise level increase such that the Project's construction-noise impacts did not exceed the 5 dBA level noise increase significance threshold. (AR 3343.)
Based on expert opinion, however, Petitioner reports the City's ambient noise level determination failed to take into account the 12-story height of the Textile Building Lofts.

Higher stories have lower ambient noise levels. (AR 10085-10086 [identifying ambient noise is as low as 58.5 for the twelfth floor].) The daytime ambient noise levels are not the same "for all floors of the Textile Building [Lofts] because the higher floors are farther from the road traffic than lower floors." (AR 10085.) Thus, the City's conclusion construction-noise related impacts 20 Petitioner appears to have abandoned the argument in reply.

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to the Textile Building Lofts is flawed-it is based on an "unsupported assumption about existing ambient noise levels." (Opening Brief 25:15-16.) The City's expert does not address the ambient daytime noise level for the higher floors of the Textile Building Lofts. The City's expert did consider the building, however, using the same methodology used in the DEIR. (AR 4305.) The City's expert determined the Textile Building Lofts would experience an increase in noise based on construction of 1.3 dBA (or less). (AR 3173-74, 7229.)
Further, Project construction-related noise impacts are expected to remain below the City's 5 dBA significance threshold. (AR 3343, 7229.) In a June 19, 2019 memorandum, the City's noise expert explained:
"[T]his [Maple Street for the Textile Building Lofts] baseline noise level is far greater than the 50.8 dBA leq noise level used to represent baseline conditions at the Santee Court Apartments receptor. Utilizing the same construction source and mitigation assumptions that were used for the Santee Court Apartments analysis, as Textile Building Lofts would benefit from the same mitigation measures intended to reduce construction noise impacts at Santee Court Apartments, Textile Building Lofts would be projected to experience a construction-related noise increase of just 1.3 dBA leq, similar to but less than the 1.6 dBA leq impact that would occur at Santee Court Apartments. The noise impact at Textile Building Lofts would not exceed the 5 dBA noise increase threshold; in fact, it would not exceed the 3 dBA leq threshold of perceptibility that represents when noise conditions may be noticeably louder." (AR 7229.)
While Petitioner relies expert opinion to dispute and contradict the City's expert technical report, Petitioner has not demonstrated the City's expert studies are so "clearly inadequate or unsupported" as to be "entitled to no judicial deference." (See Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 cal.3d 376, 409 fn. 12. ["A clearly inadequate or unsupported study is entitled to no judicial deference."]) "When an agency is faced with conflicting evidence on an issue, it is permitted to give more weight to some of the evidence and to favor the opinions of some experts over others. (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1397.) Accordingly, Petitioner failed to meet its burden of demonstrating a prejudicial abuse of discretion related to the City's analysis of construction-related noise impacts. (See State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 795. [''The party challenging the EIR, however, bears the burden of demonstrating that the studies on which the EIR is based 'are clearly inadequate or unsupported.'"])

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2. Feasibility and Effectiveness of MM l-1 and 1-2
Petitioner argues MM 1-1 and 1-2 are vague, ineffective and unenforceable. a. MM 1-1
''To ensure that the Project's construction-related noise levels do not exceed 75 dBA and that construction-related noise increases at Santee Court Apartments do not exceed 5 dBA," the City adopted MM 1-1. MM 1-1 provides "(a]II capable diesel-powered construction vehicles shall be equipped with exhaust mufflers or other suitable noise reduction devices." (AR 1011.) Petitioner contends MM 1-1 does not establish a performance standard because nothing in the mitigation measure sets a required noise level reduction. Petitioner argues muffler use alone does not ensure MM 1-1 will achieve any particular level of mitigation. Petitioner asserts "the fact that exhaust mufflers should or could reduce equipment noise by 3 dBA or more doesn't address the fact that the measure, as written, does not require mitigation at that level and therefore does not ensure that level of mitigation will be achieved, as is necessary to support the finding of no significant impacts from construction noise." (Opening Brief 28:18-22.) As noted earlier, "For projects for which an EIR has been prepared, where substantial evidence supports the approving agency's conclusion that mitigation measures will be effective, courts will uphold such measures against attacks based on their alleged inadequacy." (Sacramento Old City Assn. v. City Council, supra, 229 Cal.App.3d at 1027.) The City contends MM 1-1 as written will be effective. The use of mufflers to abate noise impacts is considered "best practices" and recommended under the City's CEQA threshold guide. (AR 2773, 2786-2787, 7299, 10131-10132 [EPA's Office of Noise Abatement and Control Study], 10139.)21 In addition, the City's noise expert confirmed the use of mufflers as required by MM 1-1 would achieve a 3 dBA noise reduction. (AR 3085-3086, 10139-10140.) The expert explained "aftermarket mufflers reduce noise by over 3 dBA. (AR 10139.) In addition, the Project's MMRP requires the Flower Growers to retain an independent Construction Monitor, approved by the City, responsible for: (a) ensuring that "capable" mufflers are used during construction; and (b) documenting compliance. (AR 2848-2849.) While the court agrees MM 1-1 does not contain a specific performance standard, it does mandate the use of certain equipment that does have performance standards. Substantial evidence supports the City's conclusion the use of mufflers will be effective at reducing noise levels by at least 3 dBA. The City's noise expert reviewed aftermarket muffler manufacturer 21 The EPA study, upon which the City's CEQA Threshold Guide relies, shows that "equipment mufflers should reduce excavation and grading phase noise levels by 3 dBA. (AR 10131.)

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specification materials to reach his conclusion mufflers result in noise reductions exceeding 3 dBA. An EPA study also supports the City's conclusion.

Accordingly, the City's conclusion MM 1-1 will be effective with a sufficiently clear performance standard (by virtue of the equipment used) is supported by substantial evidence. (Guidelines§ 15384, subd. (b).)
b. MMl-2
''To ensure that the Project's construction-related noise levels do not exceed 75 dBA and that construction-related noise increases at Santee Court Apartments do not exceed 5 dBA," the City adopted MM 1-2. MM 1-2 requires "[t]emporary sound barriers capable of achieving a sound attenuation of at least 15 dBA shall be erected along the Project's boundaries facing Santee Court Apartments. Temporary sound barriers capable of achieving a sound attenuation of at least 6 dBA shall be erected along all other Project construction boundaries." (AR 1011.} MM 1- 2 requires sound barriers at the Project's boundaries.

Again, Petitioner contends the MM is vague, ineffective and unenforceable.

First, Petitioner asserts achieving a sound attenuation of 15 dBA is so vague it is ineffective; the mitigation measure does not specify from where the sound attenuation is to be judged. As written, the mitigation measure would allow sound attenuation to be evaluated at the Project boundaries instead of a sensitive receptor's location. To the extent sound attenuation is to be measured at the sensitive receptor, it may allow measurement from street level ignoring impacts at higher floors. Higher floor sound attenuation is important as the efficacy of sound barriers to shield higher floors in a building is questionable.22 Second, Petitioner argues sound barriers erected along the Project boundaries will be ineffective as they would be too far from construction equipment to effectively reduce noise. 23 The City dismisses Petitioner's arguments as "wordsmithing." (Opposition Brief 35:5.) The City explains the EIR supports the conclusion that noise barriers with a transmission loss value of 25 dBA are capable of achieving the required noise reduction of 15 dBA at the identified sensitive receptors. (AR 2787, 3085-3086.) Moreover, the City's noise expert explains:
22 Petitioner reports sound is most audible when it travels by direct line of sight. Sound barriers are largely ineffective if they do not break the line of sight between the source and receiver. (AR 992.) The City does not seem to dispute this notion. 23 Petitioner explains sound barriers are most effective when they are very close to either the source or the receiver and become less effective with greater distance from the noiseproducing equipment. (AR 10082.)

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''The level topography of the South Building site and single proposed sub-grade level would allow for the easy positioning and movement of these barriers to shield construction activities, no matter where they may occur on-site. There are numerous free-standing temporary noise barrier systems used in the industry up to 24 feet in height that may be positioned manually or by vehicles such as construction forklifts and/or loaders." (AR 10140; see also AR 7299.) The City's response actually concedes the flaw in the efficacy of MM 1-2 as it is written. Effective mitigation to sensitive receptors requires the noise barrier systems to be moved. The City argues MM 1-2 is effective because "the noise barriers are moveable, meaning that they move in concert with any piece of construction equipment to ensure the equipment does not operate with an unobstructed line of sight to a receptor." (Opposition Brief 35:15-17.) The City recognizes the barriers must be moveable "to shield construction activities, no matter where they occur onsite." (Opposition Brief 35:18-19.)
Despite the City's recognition the noise barriers must be moved throughout the Project during construction to effectively mitigate construction-related noise, MM 1-2 does not require such movement. It is not about wordsmithing-it is about enforceability and efficacy. The City's attempts to distinguish between "Project boundaries" and "property boundaries" is unpersuasive.24 Such a distinction-if there is one-does not resolve the ambiguity. Nothing in MM 1-2 requires any noise barriers to be moved.25
Accordingly, the court finds substantial evidence does not support the City's conclusion MM 1-2 is an effective mitigation measure.

CONCLUSION
Based on the foregoing, the petition is granted.

During argument, the Flower Growers suggested the court should ~ddress remedies if the court granted the petition. "In most cases, when a court finds that any agency has violated CEOA in approving a project, it issues a writ of mandate requiring the agency to set aside its CEOA determination, to set aside the project approvals, and to take specific corrective action before it considers approving the project." (King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 896.)
24 In the EIR, the City defines the Project boundaries as approximately 3.87 acres consisting of one block. It would seem the "Project boundaries" are, in fact, the property boundaries. (AR 748.)
25 Given the comments raised concerning the barriers and the timing of the comments, there are issues of feasibility given barrier mobility issues. (AR 10076.)

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The court believes an order consistent with most CEQA writ petition cases is appropriate.

Flower Growers, however, may submit an objection to the judgment if it has an objection to the usual order of requiring the City to set aside the project approvals.

Petitioner shall submit a proposed form of judgment with service on all parties.

IT IS SO ORDERED.

April 5 , 2021 t_A i t,-Lulli~== Hon. MitcheUBeclloff
Judge of the Superior Court

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FINAL
Response to Comments, Errata, and
Mitigation Monitoring and
Reporting Program
Jefferson Fontana
Apartment Project
JANUARY 2024
Prepared for:

CITY OF FONTANA
8353 Sierra Avenue
Fontana, California 92335
Contact: George Velarde, Assistant Planner
Prepared by:
605 Third Street
Encinitas, California 92024

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Printed on 30% post
-consumer recycled material.

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Table of Contents
SECTION PAGE NO.
1 Introduction ..........................................................................................................................................................1 2 Responses to Comments.....................................................................................................................................3 Response to Comment Letter 1 ..........................................................................................................................3 Response to Comment Letter 2 ..........................................................................................................................9 Response to Comment Letter 3 ....................................................................................................................... 17 3 Errata ................................................................................................................................................................. 19 4 Mitigation Monitoring and Reporting Program................................................................................................ 21 5 Preparers ........................................................................................................................................................... 32

5.1 List of Preparers .................................................................................................................................. 33

ATTACHMENTS
A Bracketed Comment Letters
B Comment Letter 2 Exhibits

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1 Introduction
An Initial Study/Mitigated Negative Declaration (IS/MND) was prepared for the Jefferson Fontana Apartment Project (project) and made available for public comment for a public review period from October 27, 2023, through November 20, 2023. In accordance with the California Environmental Quality Act (CEQA) Guidelines, Section 15074(b) (14 CCR 15074(b)), before approving the proposed project, the City of Fontana (City), as the lead agency under CEQA, will consider the IS/MND with any comments received during this public review period.

Specifically, Section 15074(b) of the CEQA Guidelines (14 CCR 15074(b)) states the following:

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.

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 substantial 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.

The organizations who provided written comments on the environmental issues addressed in the Draft IS/MND are listed in Table 1. Although CEQA (California Public Resources Code, Section 21000 et seq.) and the CEQA Guidelines (14 CCR 15000 et seq.) do not explicitly require a lead agency to provide written responses to comments received on an IS/MND, the lead agency may do so voluntarily. Individual comments within each communication are numbered so comments can be cross-referenced with responses.

Table 1. Comment Letter Summary
Letter Number Commenter Date
1 Lozeau Drury LLP (on behalf of Supporters Alliance for Environmental Responsibility)
Signed: Marjan R. Abubo
November 20, 2023
2 Mitchell M. Tsai (on behalf of the Western States
Regional Council of Carpenters)a
November 20, 2023
Comment Letters Received after the Public Comment Period 3 Mitchell M. Tsai (on behalf of the Western States
Regional Council of Carpenters)
December 15, 2023
a Exhibits to Comment Letter 2 are included as Attachment B of this document Note: Comment letters are provided below.

The bracketed comment letters are included as Attachment A of this document and exhibits that were attached to Comment Letter 2 are included as Attachment B of this document. Responses to comments are made in the following text to supplement, clarify, or expand on information already presented in the Draft IS/MND. These responses do not change the significance of determinations made or the severity of potential environmental impacts evaluated in the Draft IS/MND. Section 15073.5(c)(4) of the CEQA Guidelines (14 CCR 15073.5(c)(4)) permits the inclusion of new information within an IS/MND if the additional information “merely clarifies, amplifies, or makes insignificant modifications to the negative declaration.”

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2 Responses to Comments
Response to Comment Letter 1
Supporters Alliance for Environmental Responsibility
Lozeau Drury, Attorney
November 20, 2023
1-1 The comment provides an introduction which notes that the comment letter has been submitted on behalf of the Supporters Alliance for Environmental Responsibility (SAFER). The comment then states that upon review, they have concluded there is a fair argument that the Project and IS/MND may have significant impacts that have not been mitigated, rendering the MND inadequate under CEQA and requiring and EIR. Additionally, the comment explains that the comment letter has been prepared with the assistance of a certified Industrial Hygienist and that SAFER reserves the right to supplement these comments during SCEA and at public hearings for the Project.

The City has reviewed the concerns raised in the letter and, as described in response to comments to this letter below, disagrees with the commenters conclusion that there is a fair argument that the IS/MND may result in a significant impact that has not been mitigated. This comment does not raise any specific environmental concern regarding the IS/MND or the Project. Therefore, no further response is required.
1-2 The comment summarizes the project description provided in the IS/MND. The comment does not contain any specific environmental issues related to the adequacy or accuracy of the Draft EIR; therefore, no further response is required..
1-3 The comment summarizes certain CEQA case law and portions of the CEQA Guidelines related to legal standards of EIR’s and MND’s and court opinions related to the “fair argument” standard .

The IS/MND has been prepared in accordance with CEQA and CEQA Guidelines. Please refer to response to comment 1-4 through 1-7 for response to specific comments raised regarding the environmental analysis prepared for the Project. This comment does not make any reference to or raise any specific environmental concern related to the Project or the IS/MND prepared for the Project.

Therefore, no further response is required.
1-4 The comment states that the City inadequately analyzed how proposed mitigation will reduce noise impacts to a level below significance. The comment also makes reference to a CEQA court case and states that an EIR must include facts and analysis supporting the claim that a measure “will have a quantifiable, ‘substantial’ impact on reducing the adverse effects.” The comment serves as an introduction to comments that follow; see response to Comment 1-6 below regarding Mitigation Measure NOI-1 (MM NOI-1). The City also refers the commenter to Appendix H of the Draft IS/MND, a complete noise and vibration assessment of the project’s potential noise impacts and technical findings related to the effectiveness of proposed mitigation. Appendix H, along with other technical appendices to the Draft IS/MND, were made available by the City as part of the public review.

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1-5 The comment summarizes information from the Draft IS/MND regarding the potential for construction-related noise impacts due to the temporary or permanent increase in ambient noise levels and restates MM NOI-1 of the Draft IS/MND.

The comment serves as an introduction to the comment that follows; please see response to Comment 1-6 below. The City has reviewed the comment and notes that the text summarized from the Draft IS/MND is accurate.
1-6 The comment states that the MND fails to quantify the effectiveness of MM NOI-1, in violation of CEQA, and that there is no evidence that the measure will effectively reduce noise by 7dBA. The comment goes on to say that the noise analysis found in Appendix H does not provide adequate evidence to support the claims made in the MND regarding the effectiveness of the eight-foot barrier required as part of MM NOI-1. The comment also states that MM NOI-1 does not include a requirement to reduce the operating time of noise-producing equipment by 50%.

As stated in Section 6.1.1 of Appendix H of the Draft IS/MND, details of the construction modeling input and output are provided in Attachment C of Appendix H, Construction Noise Prediction Model Worksheets, and includes, as the third of three worksheets, the prediction effect of inserting the 8’- tall temporary noise barrier for the “near” case, thus providing adequate quantitative support for the expected temporary barrier efficacy and the MND assertion that the needed 7 dB of noise mitigation (to achieve 8-hour Leq exposure levels less than 80 dBA) could be satisfied by proper application of MM-NOI-1.

The commenter is correct that MM-NOI-1 does not require equipment operation time reduction. The quantification of 3 dB reduction attributed to reducing equipment operation time by half was introduced as an illustration of one option that the Applicant or construction contractor could consider and implement as part of its strategy to yield compliant offsite noise exposure levels – it does not state that this was a required reduction to noise levels. As written on page 13 of Appendix H, “For example, independent of any barrier-based sound path occlusion, reducing operation time of a piece of steady noise-producing equipment by 50% would also yield a 3 dB reduction.” Rather than proceeding via reduction of operation time of noise producing equipment, the IS/MND recommends and the City adopted, Mitigation Measure NOI-1. The comment does not contain substantial evidence regarding a significant noise impact.

Therefore, on these bases and as adequately quantified and detailed in Appendix H and in Attachment C worksheets within Appendix H of the Draft IS/MND, MM NOI-1 would effectively reduce the potential impact to a less than significant level.
1-7 The commenter asserts that significant indoor air quality impacts to future residents and employees would occur due to formaldehyde emissions from composite wood products. This comment also references Francis Offermann, PE, CIH comments letter and CV. The key points of the letter are responded to in the following discussion.

SAFER Claim 1: Future Residents Will Face Elevated Cancer Risks from Indoor Formaldehyde Emissions The commenter states that Mr. Offermann concludes that future residents living at the project would be exposed to a cancer risk from formaldehyde of approximately 120 per million, demonstrating a significant health risk even assuming that all furnishing materials are compliant with the California Air

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Resources Board’s (CARB) formaldehyde airborne toxics control measure. The analysis presented by the commenter is inaccurate, unreasonable, and unnecessary for reasons further discussed below.

Building Materials are Regulated by Federal and State Agencies The United States Environmental Protection Agency (US EPA) and CARB regulate indoor building materials. 1 Building materials are required to reduce exposure to toxic substances through compliance with the EPA and the CARB regulations, such as 40 CFR Part 770, Formaldehyde Emission Standards for Composite Wood Products. These regulations typically apply to manufacturers, distributors, importers, fabricators, and retailers of the products. All building materials used to construct the project would be required to comply with the applicable federal and state standards.

Not an Impact under CEQA
The City of Fontana guidance, State CEQA Guidelines, and California’s air district guidelines, including the South Coast Air Quality Management District (SCAQMD) do not require an analysis of indoor air quality which could result in potential impacts to future residents associated with new construction.

The potential impact of the project on indoor air quality is not an impact under CEQA and therefore does not need to be analyzed within the Project IS/MND. An example case found that health risks to project workers and residents from contaminated soils did not constitute “substantial adverse effects on human beings” and did not create a fair argument of an impact to the environment according to CEQA. The court concluded in this case that, “… CEQA does not regulate environmental changes that do not affect the public at large.” (See Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 782). As explained in Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 782, where the court concluded that purported health risks to workers and residents from contaminated soils, “CEQA does not regulate environmental changes that do not affect the public at large.” Additional caselaw further supports the point that CEQA does not regulate environmental changes that do not affect the public at large: “the question is whether a project [would] affect the environment of persons in general, not whether a project [would] affect particular persons.” (Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492; accord Martin v. City and County of San Francisco (2005) 135 Cal.App.4th 392, 404.) CEQA Does Not Require Speculation
It is unknown at this time precisely what interior finishing materials would be used for the project.

Interior finishes would be subject to the specifications of future individual tenants and cannot reliably be determined until after the project is approved and in the far more detailed building permit design phase. CEQA does not require such speculation; instead, the CEQA Guidelines state that if a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact (14 CCR 15145). Further, there is nothing unique or unusual about the project 1 https://www.epa.gov/formaldehyde/formaldehyde-emission-standards-composite-wood-products, https://www.epa.gov/enforcement/toxic-substances-control-act-tsca-and-federal-facilities, https://ww2.arb.ca.gov/ourwork/programs/composite-wood-products-program, https://casetext.com/regulation/california-code-of-regulations/title-17- public-health/division-3-air-resources/chapter-1-air-resources-board/subchapter-75-airborne-toxic-control-measures/airbornetoxic-control-measure-for-diesel-particulate-matter-from-portable-engines-rated-at-50-horsepower-and-greater/section-93120- airborne-toxic-control-measure-to-reduce-formaldehyde-emissions-from-composite-wood-products.

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compared to any other mixed-use building built in California, whether discretionary or by-right, in relation to building finishes or indoor materials. The project’s building materials would be compliant with all applicable regulations as discussed above.

Inaccurate and Unreasonable Assumptions
Importantly, the commenter’s analysis is based on inaccurate and unreasonable assumptions that are not supported by substantial evidence and thus grossly overestimate cancer risk.

The commenter’s analysis assumed, without support, that daily formaldehyde emissions from building materials would remain constant over the exposure period, which was assumed to be 70 years for residential occupants and thus his conclusions do not constitute substantial evidence. This is incorrect as over the time of exposure, formaldehyde concentrations drastically reduce. In fact, research supports that after around two years, most formaldehyde is released from products.2 Assuming a continuous exposure to the same initial concentration of formaldehyde is unreasonable and grossly overestimates risk that does not exist as formaldehyde off-gasses and dissipates markedly after installation and declines substantially over time.

The commenter’s conclusions are also based on incorrect also overstatements of the daily and longterm duration that future residents and employees would spend on-site and indoors and thus his conclusions do not constitute substantial evidence. The commenter assumes, without support, that residents would be indoors at home 24 hours per day, 52 weeks per year, for 70 years. However, the California Office of Environmental Health Hazard Assessment (OEHHA) Air Toxic Hot Spots Program Guidance Manual recommends applying a fraction of time spent at home for cancer risk assessments:
from the third trimester to age <2 years, 85% of time is spent at home, from 2 through <16 years, 72% of time is spent at home, and from 16 years and greater, 73% of time is spent at home3. OEHHA’s guidance, while generally conservative and health protective, acknowledges that people do not spend 100% of the day or life indoors at home. In fact, even at home, people spend time outdoors. The National Human Activity Pattern Survey (NHAPS) was conducted in support by the US EPA to study where people spend their time. The results of the NHAPS showed that on average people spend approximately 87% of their time in enclosed buildings, approximately 6% in enclosed vehicles, and approximately 7% outdoors. 4
The commenter assumes 70 years for residential exposure when OEHHA recommends that an exposure duration (residency time) of 30 years be used to estimate individual cancer risk for the maximally exposed individual resident (MEIR). OEHHA also recommends that In summary, the commenter assumes over double (133% higher) the residential exposure period, California’s expert agency in administering air toxic guidance and regulations. In addition, in reality, average persons living in the United States move multiple times in their lifetime. 5,6 Likewise, average persons do not typically stay with one job during an entire lifetime. Of note, CEQA is required to study only a project’s reasonably 2 https://pubmed.ncbi.nlm.nih.gov/16507040/, https://www.atsdr.cdc.gov/formaldehyde/home/index.html 3 https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf 4 https://pubmed.ncbi.nlm.nih.gov/11477521/
5 https://www.census.gov/topics/population/migration/guidance/calculating-migration-expectancy.html which estimates that at age 18, a person can expect to move another 9.1 times in their remaining lifetime. 6 https://fivethirtyeight.com/features/how-many-times-the-average-person-moves/ which estimates moving around 11.4 times.

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foreseeable consequences, and not an unlikely worst-case scenario (High Sierra Rural Alliance v.

County of Plumas (2018) 29 Cal.App.5th 102, 125-126). Given this ,commenter’s conclusions do not constitute substantial evidence.

The commenter also assumes that residential occupants would inhale 20 cubic meters of air per day yet cites no evidence to substantiate these assumptions. According to the American Lung Association, the average person inhales approximately 2,000 gallons of air per day, or roughly 7.57 cubic meters per day. 7 The assumption of air consumed by humans is over double (164%) what is reasonable to assume.

Thus, again, commenter’s conclusions are not supported by substantial evidence Lead Agency Discretion for CEQA Analyses
Of note, Mr. Offerman based a portion of his analysis on studies that he authored or co-authored (e.g., “Offermann and Hodgson, 2011”, “Offermann, 2009”). Based on preliminary research, expert agencies that establish rules, regulations, and acceptable toxic air contaminant limits including CARB and EPA have not cited Mr. Offerman’s work. The commenter proposes a methodology to evaluate purported indoor impacts; however, this approach and analysis does not supplant the City of Fontana, as lead agency, discretion to choose thresholds and methods for CEQA analysis.

It is also important to note that MERV 13 filtration is included as part of the project because the project is required to comply with the California 2022 Title 24 Building Energy Efficiency Standards which mandates MERV 13 filtration (and has since 2019). 8 As such, the project is already required by law to provide for the mechanical supply of outdoor air ventilation suggested by Mr. Offermann (i.e., MERV 13).

Based on the considerations presented above, there is overwhelming evidence as to why the commenter’s indoor air quality analysis, which is unnecessary, is also inaccurate and unreasonable.

The conclusions contained in these comments are not based on science or fact and do not represent substantial evidence under CEQA. 9 Therefore, no changes to the IS/MND analysis related to indoor air quality would be required10.

SAFER Claim 2: The EIR Must Be Revised to Analyze and Mitigate the Project’s Significant Adverse Indoor Air Quality and Health Impacts.

The commenter suggests that the EIR should be revised to include mitigation measures to reduce the project’s indoor air quality impacts.
7 https://www.lung.org/blog/how-your-lungs-work, assuming 1 gallon per day (US) = 0.003785411784 cubic meters per day 8 https://www.energy.ca.gov/sites/default/files/2020-03/Title_24_2019_Residential_WhatsNew_ada.pdf 9 Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment (https://casetext.com/regulation/california-code-of-regulations/title-14-natural-resources/division-6-resourcesagency/chapter-3-guidelines-for-implementation-of-the-california-environmental-quality-act/article-5-preliminary-review-of-projectsand-conduct-of-initial-study/section-15064-determining-the-significance-of-the-environmental-effects-caused-by-a-project) 10 The response contained herein parallels other lead agency and CEQA expert responses to similar comments and claims made by SAFER and Mr. Offerman on other land use development projects, including but not limited to: (1) 3rd and Fairfax Mixed Use Project CEQA Appeals CF 22-0603 (City of Los Angeles, Eyestone environmental, June 15, 2022), and (2) Responses to Appellant’s Comments on the 9500 Pico Mixed-Use Project Negative Declaration (ENV-2020-5838-ND; CPC-2020-5837-DB-CU-SPR-VHCA) (City of Los Angeles, Parker Environmental Consultants, February 10, 2022).

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As stated in Section 15370 of the CEQA Guidelines, the term “mitigation” is defined as including “minimizing impacts by limiting the degree or magnitude of the action and its implementation.” CEQA only requires mitigation when there is a nexus for the mitigation, meaning that a potential impact was identified.

As described above, the potential impact to future residents relating to indoor air quality is not a CEQA impact and in fact, the analysis that indicates the project would exceed thresholds is flawed. As such, no mitigation is required under CEQA.
1-8 This comment serves as a conclusory statement and states that the IS/MND is inadequate and violates CEQA based on the reasons described in the comment letter, and that an EIR must be prepared. Please refer to Response to Comments 1-1 through 1-7, above. As discussed therein, the Draft IS/MND is adequate as provided and no “Fair Argument” has been raised requiring the preparation of an EIR.

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Response to Comment Letter 2
Western State Regional Council of Carpenters
Mitchell M. Tsai, Attorney
November 20, 2023
2-1 The comment summarizes the project, introduces the Western States Regional Council of Carpenters (WSRCC), and states that WSRCC members in the City and surrounding communities would be directly affected by the Project’s environmental impacts. The comment does not address the adequacy of the analysis in the Draft IS/MND. Therefore, no further response is provided. 2-2 The comment states that WSRCC reserves the right to provide additional comments on the project at or prior to the hearing on the Project and at and later hearing related to the Project. The comment also states that WSRCC incorporates by reference all comments raising issues regarding the EIR submitted prior to certification of the Project EIR. It is assumed the commenter meant to reference the Project IS/MND. The City acknowledges this comment. The comment does not address the adequacy of the analysis in the Draft IS/MND. Therefore, no further response is provided. 2-3 The comment states that the City should require that the Project be built using local workers and that that local hires can benefit local economic development as well as reduce environmental impacts of the Project. The comment also reference quotes and letter attachments (refer to Attachment B of this document for exhibits that were included with Comment Letter 2) related to the correlation between reduction of vehicle miles travelled (VMT) resulting in a reduction of construction-related greenhouse gas emissions (GHG) and a correlation between local and/or well-trained workers as key to emissions reductions. The comment concludes by requesting that the City consider utilizing local workforce policies and requirements to benefit the local area economically and to mitigate greenhouse gas emissions, improve air quality, and reduce transportation impacts. This comment does not raise any specific concerns regarding the information addressed or contained in the Draft IS/MND. The Draft IS/MND analyzed the Project’s air quality, GHG, and traffic-related impacts in Section 3.3, Air Quality, Section 3.8, Greenhouse Gas Emissions, and Section 3.17, Transportation. As discussed in these sections, the Draft IS/MND concluded that the Project would result in less-than-significant impacts with regard to these resource topics. Because no new environmental issues were identified, no further analysis is necessary. Additionally, the comment does not address the adequacy of the analysis in the Draft IS/MND. Therefore, no revisions are required to the IS/MND, and no further response is provided. 2-4 The comment states that construction work has been defined as a lower to higher-risk activity for COVID-19 spread by Occupations Safety and Health Administration (OSHA) and references a June 2020 OSHA press release related to several construction sites identified as sources of community spread of COVID-19. The comment states that WSRCC recommends that the City adopt requirements to mitigate public health risk from the Project’s construction activities and provides a list of WSRCC recommended construction site work practices for the Project to avoid spread of COVID-19 and other infectious diseases. This comment is noted and will be presented to the decision makers for their review and consideration. Effects of the environment on a project are not subject to CEQA review (Public Resources Code Sections 21065 and 21068). Therefore, the City is not required to analyze the impact of COVID-19 or other infectious diseases on the proposed Project. Moreover, in the absence of any applicable methodology, such an analysis would be speculative. Therefore, the City declines to include

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any of the suggested measures. It should also be noted that construction activity was allowed to continue throughout the COVID pandemic as an “essential” activity. The California OSHA and other agencies oversee workplace safety and require implementation of safety-related protocols and procedures, including those related to COVID. Therefore, with required regulatory compliance, the Project would not be reasonably expected to result in an impact to human health related to infectious disease, and no mitigation is provided.
2-5 The comment provides background information on CEQA, including CEQA’s role of informing the public and decision makers about the potential environmental effects of a project, and CEQA’s direction to avoid or reduce impacts by requiring alternatives or mitigation measures. The comment provides background information on CEQA and serves as an introduction to comments that follow.

The comment does not address the adequacy of the analysis in the Draft IS/MND. Therefore, no further response is provided.
2-6 The comment provides factual background information on the standard for preparing an EIR, including the presumption that if a “fair argument” exists, a project would have a significant effect on the environment and an EIR should be prepared. The comment states that, based on the comments in this letter that follow, “the MND fails to support all of its findings with sufficient analysis and substantial evidence and fails to incorporate adequate mitigation measures. Therefore, there is a fair argument that the Project will have a significant effect on the environment, triggering the “low threshold” standard for preparation of an EIR”. The IS/MND has been prepared in accordance with CEQA and CEQA Guidelines. Please refer to responses in this letter as provided below that address specific comments raised regarding the environmental analysis prepared for the Project. Within this comment, no specific deficiencies in the document or evidence to support the assertion are provided; therefore, no further response is provided.
2-7 The comment provides factual background information regarding Section 15073.5 of the CEQA Guidelines regarding recirculation when a negative declaration document must be substantially revised or new information is brought to light that may change an impact conclusion. The comment concludes that because the MND fails to substantiate all of its findings, provide adequate mitigation measures, and fully assess all relevant factors, the Project requires significant revisions and resolution of conflicts in evidence that, at a minimum, require revision and recirculation of the MND. However, within this comment, the commenter does not identify specific deficiencies in the document or provide evidence to support the assertion that the Draft IS/MND is inadequate. As such, the comment does not raise any specific environmental issues related to the adequacy or accuracy of the Draft IS/MND; therefore, no further response is provided.
2-8 The comment provides factual information related to Section 15092 and Section 15126 of the CEQA Guidelines as it relates to deferral of mitigation, followed by a statement that the Project mitigation measures are improperly deferred or fail to adequately mitigate the Project’s impacts as described in the remainder of the letter. Please refer to response to comments 2-9 through 2-15, in which the IS/MND’s mitigation measures are discussed.

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2-9 The comment recommends revising Mitigation Measure MM BIO-1 to require preconstruction nesting bird surveys year-round. The comment also states that the measure should be consistent with California CDFW protocols, including the Staff Report on Burrowing Owl Mitigation, State of California Natural Resource Agency, Department of Fish and Game, May 7, 2012.

The nesting season time frame presented in Mitigation Measure MM BIO-1 of the Draft IS/MND is consistent with CDFW protocols. On its “California Outdoors Q&A” web page, CDFW recommends the following: To protect nesting birds, the California Department of Fish and Wildlife (CDFW) recommends working in your yard outside of nesting bird season which for many bird species in California is February through August (CDFW 2023). Thus, while CDFW may have commented on the particular project referenced in the comment, the nesting bird season identified in MM BIO-1 is consistent with CDFW protocols and no charged are required to this mitigation measure.

Regarding the need for the measure to include specific requirements, such as the Staff Report on Burrowing Owl Mitigation, it should be noted that Mitigation Measure MM BIO-1 requires a general preconstruction survey for nesting birds whereas the Staff Report on Burrowing Owl Mitigation speaks to protocol-level surveys specifically for burrowing owls. As stated on page 32 of the Draft IS/MND and substantiated in Appendix B, Biological Resources Technical Memorandum, of the Draft IS/MND (see pp. 6 through 7 and Appendix C, Plant Species with Potential to Occur on the Study Area, within Appendix B of the Draft IS/MND), it is unlikely that special-status wildlife would occupy the low-quality grassland on the study area because it is surrounded by development and fragmented, lacks native vegetation communities, and supports ongoing pedestrian and vehicular disturbances from the semi-truck rest area. Therefore, there is no substantial evidence supporting revision of MM BIO-1 to include the Staff Report on Burrowing Owl Mitigation.
2-10 The comment states that Mitigation Measure CUL-1, which requires preparation of a Cultural Resource Conditional Monitoring and Inadvertent Discovery Plan (Plan), improperly defers mitigation by deferring preparation of the plan to an unspecified time in the future. The Plan is intended to ensure the proper assessment, treatment, and as feasible, protection of unknown cultural resources. The assessment conducted to inform the CEQA analysis for this Project revealed no evidence of the presence of cultural resources within or surrounding the proposed Project site. However, the potential for intact cultural deposits to exist within native soils was not fully able to be determined due to the presence of fill soils at the time of the survey and the inability to observe all native soils during the pedestrian survey. Since not all conditions of the Project site are known, the Plan is included as a mitigation measure to ensure there is specific consideration of yet to be identified cultural resources. Deferred mitigation is defined as the practice of putting off the precise determination of whether an impact to a resource is significant, or precisely defining required mitigation measures, until a future date. Mitigation Measure CUL-1 is not deferred mitigation because no resources are known to exist within the Project site and this measure was included only in an abundance of caution. However, to better clarify guidance and sequencing for the Plan, Mitigation Measure MM CUL-1 has been revised as shown below. Section 15073.5(c)(4) of the CEQA Guidelines (14 CCR 15073.5(c)(4)) permits the inclusion of new information within an IS/MND if the additional information “merely clarifies, amplifies, or makes insignificant modifications to the negative declaration.”

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MM-CUL-1 Cultural Resource Conditional Monitoring and Inadvertent Discovery Plan. The purpose of the Plan is to outline a program of treatment and mitigation in the case of an inadvertent discovery of cultural resources during ground-disturbing phases (including but not limited to preconstruction site mobilization and testing, grubbing, removal of soils for remediation, construction ground disturbance, construction grading, trenching, and landscaping) and to provide for the proper identification, evaluation, treatment, and protection of any unknown cultural resources throughout the duration of the Project.

Prior to issuance of the grading permit, Aa qualified archaeologist shall be retained to assess information available (final grading and construction plans, geotechnical testing results, as-built plans, etc.) and determine the depth at which native soils exist and would be impacted by Project implementation. Once Tthe depth of native soils, relative to the depth of ground distance, has been determined, the qualified archaeologist shall develop the Plan as outlined above including guidance for conducting a pedestrian survey of native soils after fill soils have been removed; based on results of the pedestrian survey whether additional assessment or evaluation is necessary in accordance with CEQA; and the conditions under which monitoring is required, if at all, as well as the manner of facilitation. shall be included in the Plan so as to guide when a pedestrian survey of native soils shall occur after fill soils have been removed. Potential impacts to cultural resources shall be minimized through implementation of pre- and post- construction tasks. Tasks pertaining to cultural resources include the development of a cultural resource inadvertent discovery plan (Plan). The purpose of the Plan is to outline a program of treatment and mitigation in the case of an inadvertent discovery of cultural resources during ground-disturbing phases (including but not limited to preconstruction site mobilization and testing, grubbing, removal of soils for remediation, construction ground disturbance, construction grading, trenching, and landscaping) and to provide for the proper identification, evaluation, treatment, and protection of any cultural resources throughout the duration of the Project. This Plan shall define the process to be followed for the identification and management of cultural resources in the Project area during construction. Existence of and importance of adherence to this Plan shall be stated on all Project site plans intended for use by those conducting the ground disturbing activities. The Plan shall also include the conditions under which monitoring is required, if at all, based on the results of the pedestrian survey and the manner of facilitation.
2-11 The comment states that hazardous materials mitigation in the Draft IS/MND improperly defers mitigation because removal of contaminated soil has not yet occurred. The comment further states that mitigation is improperly deferred because the MND does not specify when the summary of removal must be provided to the City.

CEQA does not require that removal of contaminated soil occur prior to approval of CEQA documentation for a project. As presented on page 60 of the Draft IS/MND, MM HAZ-1 requires removal and disposal of contaminated soil areas identified in the Phase II ESA and requires that such activities would be conducted by a qualified contractor prior to the issuance of grading permits and in accordance with all applicable local, state, and federal guidelines related to hazardous materials handling. The measure concludes that “A summary of the soil removal and disposal activities shall be

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provided to the City of Fontana within a reasonable timeframe following completion of these activities.” The City will be issuing the grading permits; therefore, the required summary of soil removal and disposal activities would be included as a condition of approval prior to issuance of grading permits. A summary of the results of the Phase I and II ESAs is provided within the Draft IS/MND analysis and the reports are included as Appendix F-1 and F-2 of the Draft IS/MND. Section 15073.5(c)(4) of the CEQA Guidelines (14 CCR 15073.5(c)(4)) permits the inclusion of new information within an IS/MND if the additional information “merely clarifies, amplifies, or makes insignificant modifications to the negative declaration.” To better clarify the measure, the following revisions have been made to MM-HAZ-1:

MM HAZ-1 Prior to the issuance of grading permits, the project applicant shall retain a qualified contractor to remove and dispose of contaminated soil in the northwestern (SS1-0.5) and southeastern (SS2-0.5) areas of surficial soil staining of soil samples, as identified in the June 2022 Draft Phase I Environmental Site Assessment and the July 2022 Limited Phase II Environmental Site Assessment, Proposed Fontana Residential Development, Southwest of the Intersection of Juniper Avenue and Valley Boulevard, Fontana, California, prepared by Leighton, or any updates to that report. The removal, transport, and disposal of refuse shall be done in accordance with all applicable local, state, and federal guidelines related to hazardous materials handling. A summary of the soil removal and disposal activities shall be provided to the City of Fontana within a reasonable timeframe within 30 business days following completion of these activities and prior to issuance of grading permits.
2-12 This comment summarizes portions of the Draft IS/MND’s noise analysis and MM NOI-1 and states the measure fails to include specifications. This comment serves as an introduction to comments that follow. Please refer to Responses to Comments 2-13 and 2-14, in which specific comments related to the noise analysis and MM NOI-1 are discussed.
2-13 The comment states that MM NOI-1 does not state how much of a noise reduction would be expected from the use of a construction noise barrier, which the comment asserts is crucial for understanding of the efficacy of the barrier. As stated in Section 6.1.1 of Appendix H of the Draft IS/MND, details of the construction modeling input and output are provided in Attachment C of Appendix H. Please refer to the detailed response for Comment 1-6 for discussion of the evidence provided in the Draft IS/MND that MM NOI-1 would effectively reduce construction noise impacts to a less than significant level. 2-14 The comment raises concerns related to the feasibility of MM NOI-1 in reducing construction noise impacts from elevated sources above ground as building construction progresses. Further, the comment suggests that MM NOI-1 does not indicate the mobility of temporary noise barriers as may be expected to ensure they reduce noise with respect to construction equipment noise sources.

As shown in in Section 3.13, Noise, Table 3.13-1 of the Draft IS/MND and further detailed in Appendix H, a residence located adjacent to the southern boundary of the Project site is the nearest noise-sensitive land use. The impact analysis within the Draft IS/MND describes anticipated construction equipment, duration, and potential noise effects. For site preparation, grading, paving, and building construction phases, operating heavy equipment will be located at grade and therefore not exhibit average sound sources that are higher than the analyzed source height (i.e., roughly 5 feet from ground level). For the architectural coating phase, the studied major noise producer is an air

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compressor that would also be expected to have an at-grade location that powers painting application for ground and upper floors of the building. The one exception may be welding activity during the building construction phase, which could involve a portable welding machine located at an upper floor as needed and as building construction progresses. However, the reference Lmax for such a welder is 73 dBA at 50 feet (per the FHWA RCNM User’s Guide) and thus 11 dB less than the reference sound magnitude for the loudest piece of equipment during the building construction phase (i.e., 84 dBA Lmax at 50 feet for a tractor). Due to this double-digit decibel difference in source sound levels, meaning the tractor noise is an order of magnitude louder than the welder, the acoustic contribution of the welder— even if operating at upper floors and thus at potential heights where an installed temporary wall at grade would not occlude the direct path between sound source and the receptor position—would not change the expectation of a mitigated “with barrier” aggregate construction noise exposure level at the studied receptor to be less than 80 dBA 8-hour Leq during the building construction phase. The comment provides no substantial evidence to support any different conclusion.

Regarding temporary barrier portability or the potential for moving it, MM NOI-1 states clearly that the temporary barrier “shall be erected along the southern Project site property line where the property line is adjacent to the nearest noise sensitive receptor.” This fixed location and corresponding proximity to the offsite receptor is important, as such sound-blocking barriers work best when they are as close as possible to the source or the receptor. It is important to note that there is only one sensitive receptor who would be affected by Project construction noise, meaning there is no reason to move the temporary barrier. If mobile construction equipment positions during a phase momentarily are more distant from the offsite receptor than what has been studied and presented in the technical analysis, the increased horizontal source-to-receptor distance would provide more distance-based attenuation (i.e., “geometric divergence”). Therefore, with the 8’-tall temporary barrier located along the southern Project site property line where the property line is adjacent to the nearest noise sensitive receptor per MM-NOI-1 and thus near the only affected offsite noise-sensitive receptor, the barrier can accommodate different onsite operating equipment locations without compromising its anticipated capacity to keep construction noise exposure levels below 80 dBA 8-hour Leq. The comment provides no substantial evidence to support any different conclusion.

For the reasons discussed herein, the City maintains the effectiveness of MM NOI-1 and no additional response is provided.
2-15 The comment quotes a portion of CEQA Guidelines Section 151626.2(b) related to energy use analysis, refers to court cases that address insufficient energy analysis. The comment then states that the MND fails to comply with such requirements, quotes portions of the energy impact conclusion in the Draft IS/MND, and concludes that the MND’s less-than-significant conclusion cannot be based on compliance with Title 24 standards and instead must assess and analyze all other relevant factors.

Section 15162.2(b) of the CEQA Guidelines states that if analysis of the project's energy use reveals that the project may result in significant environmental effects due to wasteful, inefficient, or unnecessary use of energy, or wasteful use of energy resources, the EIR shall mitigate that energy use. As quoted in this comment, the section then describes the different ways this can be accomplished. Section 3.6 of the Draft IS/MND provides a thorough analysis of energy uses, including electricity, natural gas, and petroleum, for both construction and operation of the Project that demonstrate the Project would be consistent with current regulations and policies so as not to result in significant environmental effects due to wasteful, inefficient,

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or unnecessary use of energy, or wasteful use of energy resources. As discussed in Section 3.8 of the Draft IS/MND, the Project includes onsite renewable energy generation in the form of on-site rooftop solar, per Title 24 California building standards. The proposed Project would not result in energy demand that is out of scale with projects of similar size. The comment does not propose any criteria by which the Project was not evaluated against as required by CEQA or provide any substantial evidence of a significant impact. The Project’s anticipated electricity demand, natural gas demand and petroleum consumption were all evaluated in Section 3.8 of the Draft IS/MND. Therefore, no revisions are required for the IS/MND, and no further response is provided
2-16 The comment provides quotes related to general plan purpose and consistency as defined in various court cases. The comment also states that the Draft IS/MND fails to analyze the consistency of the Project’s requested entitlements (i.e., tentative parcel map and design review approval) with the City’s General Plan and fails to analyze the Project’s consistency with General Plan goals and policies.

Additionally, the comment states that without these analyses, the Draft IS/MND’s conclusion that the Project is consistent with the City’s General Plan and zoning code is unsupported and the Draft IS/MND must be recirculated.

As noted on page 3 of the Draft IS/MND, the General Plan land use designation for the Project site is Walkable Mixed-Use Corridor and Downtown (WMXU-1), and the current zoning is Form-Based Code (FBC) Valley Gateway District. The Project applications include a tentative subdivision map and design review, and there is no need for any General Plan amendment as the Project’s proposed uses would be consistent with the site’s General Plan designation. Consistency with the General Plan and its policies would be evaluated by City Planning staff, the results of their evaluation to be included in staff reports or resolution documents. It is important to note that question b) within Section 3.11, Land Use and Planning, of the Draft IS/MND asks whether the Project would cause a significant environmental impact due to a conflict with any land use plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental effect. The response to this item states that the Project is consistent with the General Plan and zoning designations for the site. The various technical analyses used to support preparation of the Draft IS/MND include discussions of the relevant General Plan or other City plans or policies, and detail how the Project is consistent with them. Finally, per local law, the proposed Project is required to be developed in accordance with the existing land use and zoning designations and the Project’s consistency with these land use and zoning designations. Therefore, because the Project would be required to comply with all applicable regulations, a significant impact would not occur.

Discussion of the project’s potential environmental effects are provided throughout Chapter 3 of the Draft IS/MND, and as discussed, the Project would not result in significant environmental impacts associated with a conflict with a goal or policy included within the City’s General Plan Because no new environmental issues are identified, no further analysis is necessary and no further response is provided. 2-17 The comment provides concluding remarks requesting that the City require a local workforce, impose training requirements for Project construction activities to prevent spread of infectious diseases, and requests that the City prepare an EIR or revised and recirculated IS/MND for the Project to address the comments in this letter (Letter 2). Please refer to response to Comments 2-1 through 2-17 above. 2-18 The comment letter references four exhibits that were included as attachments. These exhibits are included as Attachment B of this document.

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Response to Comment Letter 3
Western State Regional Council of Carpenters
Mitchell M. Tsai, Attorney
December 15, 2023
3-1 The comment summarizes the project and introduces the commenter as the Western States Regional Council of Carpenters. This comment letter is identical to Comment Letter 2, except for the name of the Projectreferenced in the header and the date of the letter. Refer to response to Comment for Letter 2 above.

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3 Errata
The following provides minor revisions, corrections, and additions to the Draft IS/MND. The corrections and additions are organized by section and page number of the Draft IS/MND. New text additions are shown in underline format, and deletions are shown in strikeout format. These minor revisions, corrections, and additions do not change the significance determinations made or the severity of potential environmental impacts evaluated in the Draft IS/MND.

3.5 Cultural Resources (Pages 36 and 37 of the IS/MND)
Explanation for Change:

MM-CUL-1 on page 36 and 37 of the IS/MND has been modified, as shown below. This modification does not change the significance determination made regarding cultural resources, but rather merely strengthens and clarifies the manner in which MM-CUL-1 would be implemented. As such, this modification is consistent with Section 15073.5(c)(4) of the CEQA Guidelines (14 CCR 15073.5(c)(4)), and no further action is necessary.

Change:

MM-CUL-1 Cultural Resource Conditional Monitoring and Inadvertent Discovery Plan. The purpose of the Plan is to outline a program of treatment and mitigation in the case of an inadvertent discovery of cultural resources during ground-disturbing phases (including but not limited to preconstruction site mobilization and testing, grubbing, removal of soils for remediation, construction ground disturbance, construction grading, trenching, and landscaping) and to provide for the proper identification, evaluation, treatment, and protection of any unknown cultural resources throughout the duration of the Project. Prior to issuance of the grading permit, Aa qualified archaeologist shall be retained to assess information available (final grading and construction plans, geotechnical testing results, as-built plans, etc.) and determine the depth at which native soils exist and would be impacted by Project implementation. Once Tthe depth of native soils, relative to the depth of ground distance, has been determined, the qualified archaeologist shall develop the Plan as outlined above including guidance for conducting a pedestrian survey of native soils after fill soils have been removed; based on results of the pedestrian survey whether additional assessment or evaluation is necessary in accordance with CEQA; and the conditions under which monitoring is required, if at all, as well as the manner of facilitation. shall be included in the Plan so as to guide when a pedestrian survey of native soils shall occur after fill soils have been removed. Potential impacts to cultural resources shall be minimized through implementation of pre- and post- construction tasks. Tasks pertaining to cultural resources include the development of a cultural resource inadvertent discovery plan (Plan). The purpose of the Plan is to outline a program of treatment and mitigation in the case of an inadvertent discovery of cultural resources during ground-disturbing phases (including but not limited to preconstruction site mobilization and testing, grubbing, removal of soils for remediation, construction ground disturbance, construction grading, trenching, and landscaping) and to provide for the proper identification, evaluation, treatment, and protection of any cultural resources throughout the duration of the Project.

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This Plan shall define the process to be followed for the identification and management of cultural resources in the Project area during construction. Existence of and importance of adherence to this Plan shall be stated on all Project site plans intended for use by those conducting the ground disturbing activities. The Plan shall also include the conditions under which monitoring is required, if at all, based on the results of the pedestrian survey and the manner of facilitation.

3.9 Hazards and Hazardous Materials (Page 61 of the IS/MND) Explanation for Change:

MM HAZ-1 on page 61 of the IS/MND has been modified, as shown below. This modification does not change the significance determination made regarding hazards and hazardous materials, but rather merely strengthens and clarifies the manner in which MM HAZ-1 would be implemented. As such, this modification is consistent with Section 15073.5(c)(4) of the CEQA Guidelines (14 CCR 15073.5(c)(4)), and no further action is necessary.

Change:

MM HAZ-1 Prior to the issuance of grading permits, the project applicant shall retain a qualified contractor to remove and dispose of contaminated soil in the northwestern (SS1-0.5) and southeastern (SS2-0.5) areas of surficial soil staining of soil samples, as identified in the June 2022 Draft Phase I Environmental Site Assessment and the July 2022 Limited Phase II Environmental Site Assessment, Proposed Fontana Residential Development, Southwest of the Intersection of Juniper Avenue and Valley Boulevard, Fontana, California, prepared by Leighton, or any updates to that report. The removal, transport, and disposal of refuse shall be done in accordance with all applicable local, state, and federal guidelines related to hazardous materials handling. A summary of the soil removal and disposal activities shall be provided to the City of Fontana within a reasonable timeframe within 30 business days following completion of these activities and prior to issuance of grading permits.

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4 Mitigation Monitoring and
Reporting Program
The California Environmental Quality Act (CEQA) requires that a public agency adopting a Mitigated Negative Declaration (MND) take affirmative steps to determine that approved mitigation measures are implemented after project approval. The lead or responsible agency must adopt a reporting and monitoring program for the mitigation measures incorporated into a project or included as conditions of approval. The program must be designed to ensure compliance with the MND during project implementation (California Public Resources Code, Section 21081.6(a)(1)).

This Mitigation Monitoring and Reporting Program (MMRP) will be used by the City of Fontana (City) to ensure compliance with adopted mitigation measures identified in the MND for the proposed Jefferson Fontana Apartment Project (project) located at the southwest corner of Valley Boulevard and Juniper Avenue, Fontana, California (project) when construction begins. The City, as the lead agency, will be responsible for ensuring that all mitigation measures are carried out. Implementation of the mitigation measures would reduce impacts to below a level of significance for biological resources, cultural resources, hazards and hazardous materials, noise, and tribal cultural resources.

The remainder of this MMRP consists of a table that identifies the mitigation measures by resource for each project component. Table 2 identifies the mitigation monitoring and reporting requirements, list of mitigation measures, party responsible for implementing mitigation measures, timing for implementation of mitigation measures, agency responsible for monitoring of implementation, and date of completion. With the MND and related documents, this MMRP will be kept on file at the following location:

City of Fontana
Planning Department
8353 Sierra Avenue
Fontana, California 92335

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Table 2. Mitigation Monitoring and Reporting Program
Mitigation Measure
Implementation
Timing
Party Responsible
for Implementation
Party Responsible
for Monitoring
Date of Completion/
Notes
Biological Resources
MM-BIO-1: Nesting Bird Avoidance. The project
should avoid the avian nesting season to reduce all
potential impact to protected birds and their nests.

In the event the project must commence during the
nesting season (February – September), a preconstruction nesting survey should be conducted within 3 days prior to ground disturbing activities to
determine the presence/absence of nesting birds. If
an active nest is found on the study area, a
qualified biologist will establish a buffer around the
nest (up to 500 feet for raptors and 300 feet for
passerine birds) and ongoing biological monitoring
during construction may be required until the
nestlings have fledged and the nest is no longer
active. The buffer will be established by a biologist
based on the sensitivity of the species to
disturbance and the proximity to project activities.

Construction activities may commence outside of
the buffer under the discretion of a monitoring
biologist. One the monitoring biologist has
determined the nest is no longer active, the buffer
can be removed, and construction may continue.

Prior to and during
construction
Project applicant and
their construction
contractor
City of Fontana
Cultural Resources
MM-CUL-1: Cultural Resource Conditional
Monitoring and Inadvertent Discovery Plan. The
purpose of the Plan is to outline a program of
treatment and mitigation in the case of an
inadvertent discovery of cultural resources during
ground-disturbing phases (including but not limited
to preconstruction site mobilization and testing,
grubbing, removal of soils for remediation,
Prior to and during
construction
Project applicant and
their construction
contractor
City of Fontana

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Table 2. Mitigation Monitoring and Reporting Program
Mitigation Measure
Implementation
Timing
Party Responsible
for Implementation
Party Responsible
for Monitoring
Date of Completion/
Notes
construction ground disturbance, construction
grading, trenching, and landscaping) and to provide
for the proper identification, evaluation, treatment,
and protection of any unknown cultural resources
throughout the duration of the Project. Prior to
issuance of the grading permit, Aa qualified
archaeologist shall be retained to assess
information available (final grading and construction
plans, geotechnical testing results, as-built plans,
etc.) and determine the depth at which native soils
exist and would be impacted by Project
implementation. Once Tthe depth of native soils,
relative to the depth of ground distance, has been
determined, the qualified archaeologist shall
develop the Plan as outlined above including
guidance for conducting a pedestrian survey of
native soils after fill soils have been removed; based
on results of the pedestrian survey whether
additional assessment or evaluation is necessary in
accordance with CEQA; and the conditions under
which monitoring is required, if at all, as well as the manner of facilitation. shall be included in the Plan
so as to guide when a pedestrian survey of native
soils shall occur after fill soils have been removed.

Potential impacts to cultural resources shall be
minimized through implementation of pre- and postconstruction tasks. Tasks pertaining to cultural resources include the development of a cultural
resource inadvertent discovery plan (Plan). The
purpose of the Plan is to outline a program of
treatment and mitigation in the case of an
inadvertent discovery of cultural resources during
ground-disturbing phases (including but not limited
to preconstruction site mobilization and testing,

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Table 2. Mitigation Monitoring and Reporting Program
Mitigation Measure
Implementation
Timing
Party Responsible
for Implementation
Party Responsible
for Monitoring
Date of Completion/
Notes
grubbing, removal of soils for remediation,
construction ground disturbance, construction
grading, trenching, and landscaping) and to provide
for the proper identification, evaluation, treatment,
and protection of any cultural resources throughout
the duration of the Project. This Plan shall define
the process to be followed for the identification and
management of cultural resources in the Project
area during construction. Existence of and
importance of adherence to this Plan shall be stated
on all Project site plans intended for use by those
conducting the ground disturbing activities. The Plan
shall also include the conditions under which
monitoring is required, if at all, based on the results of the pedestrian survey and the manner of
facilitation.

MM-CUL-2: Workers Environmental Awareness
Program. Prior to the start of construction activities, all construction personnel and monitors shall be
trained regarding identification and treatment
protocol for inadvertent discoveries of cultural
resources (archaeological and tribal) and human
remains. A basic presentation and handout or
pamphlet shall be prepared in order to ensure
proper identification and treatment of inadvertent
discoveries of cultural resources and human
remains. The purpose of the Workers Environmental
Awareness Program (WEAP) training is to provide
specific details on the kinds of materials that may
be identified during ground disturbing activities and
explain the importance of and legal basis for the
protection of human remains and significant
cultural resources. Each worker shall also be trained
Prior to
construction
Project applicant and
their construction
contractor
City of Fontana

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Table 2. Mitigation Monitoring and Reporting Program
Mitigation Measure
Implementation
Timing
Party Responsible
for Implementation
Party Responsible
for Monitoring
Date of Completion/
Notes
in the proper procedures to follow in the event that
cultural resources or human remains are uncovered
during ground disturbing activities. These
procedures include but are not limited to work
curtailment or redirection, and the immediate
contact of the site supervisor and archaeological
monitoring staff.

MM-CUL-3: Retention of an On-Call Qualified
Archaeologist. A qualified archaeologist shall be
retained and on-call to respond and address any
inadvertent discoveries identified project
implementation. Additionally, in consideration of the
potential to encounter intact cultural deposits
beneath fill soils, the qualified archaeologist shall
survey the project site once fill soils have been
removed to ensure no cultural deposits underly the
fill layer. If is determined, based on the
aforementioned survey, that cultural resources are
present or may be present and may be impacted
during project construction, monitoring may be
warranted. Additionally, any identified cultural
resources shall be assessed and evaluated
pursuant to CEQA. If it is determined that monitoring
is warranted, a qualified archaeological principal
investigator, meeting the Secretary of the Interior’s
Professional Qualification Standards, shall oversee
and adjust monitoring efforts as needed (increase,
decrease, or discontinue monitoring frequency)
based on the observed potential for construction
activities to encounter cultural deposits or material.

The archaeological monitor will be responsible for
maintaining daily monitoring logs.

During
construction
Project applicant and
their construction
contractor
City of Fontana

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Table 2. Mitigation Monitoring and Reporting Program
Mitigation Measure
Implementation
Timing
Party Responsible
for Implementation
Party Responsible
for Monitoring
Date of Completion/
Notes
MM-CUL-4: Inadvertent Discovery Clause. In the
event that potential archaeological resources (sites,
features, or artifacts) are exposed during ground
disturbing, all construction work occurring not less
than 100 feet of the find shall immediately stop and
the qualified archaeologist that has been retained
on call must be notified immediately to assess the
significance of the find and determine whether or
not additional study is warranted. Depending upon
the significance of the find under the CEQA, the
archaeologist may simply record the find and allow
work to continue. If the discovery proves significant
under CEQA, additional work (e.g., preparation of an
archaeological treatment plan, testing, data
recovery, or monitoring) may be warranted if the
resource cannot be feasibly avoided.

In the event that human remains are inadvertently
encountered during construction activities, the
remains and associated resources shall be treated
in accordance with state and local regulations that
provide requirements with regard to the discovery of
human remains, including California Health and
Safety Code Section 7050.5, California Public
Resources Code Section 5097.98, and CEQA
Guidelines Section 15064.5(e). In accordance with
these regulations, if human remains are found, the
County Coroner must be immediately notified of the
discovery. No further excavation or disturbance of
the project site or any nearby (no less than 100
feet) area reasonably suspected to overlie adjacent
remains can occur until the County Coroner has
determined if the remains are potentially human in
origin. If the County Coroner determines that the
remains are, or are believed to be, Native American,
During
construction
Project applicant and
their construction
contractor
City of Fontana

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Table 2. Mitigation Monitoring and Reporting Program
Mitigation Measure
Implementation
Timing
Party Responsible
for Implementation
Party Responsible
for Monitoring
Date of Completion/
Notes
he or she is required to notify the Native American
Heritage Commission (NAHC) that shall notify those
persons believed to be the most likely descendant.

The most likely descendant shall determine, in
consultation with the property owner, the disposition
of the human remains.

Hazards and Hazardous Materials
MM-HAZ-1: Prior to the issuance of grading permits,
the project applicant shall retain a qualified
contractor to remove and dispose of contaminated
soil in the northwestern (SS1-0.5) and southeastern
(SS2-0.5) areas of surficial soil staining of soil
samples, as identified in the June 2022 Draft Phase
I Environmental Site Assessment and the July 2022
Limited Phase II Environmental Site Assessment,
Proposed Fontana Residential Development,
Southwest of the Intersection of Juniper Avenue and
Valley Boulevard, Fontana, California, prepared by
Leighton, or any updates to that report. The
removal, transport, and disposal of refuse shall be
done in accordance with all applicable local, state,
and federal guidelines related to hazardous
materials handling. A summary of the soil removal
and disposal activities shall be provided to the City
of Fontana within a reasonable timeframe within 30
business days following completion of these
activities and prior to issuance of grading permits.

Prior to issuance
of grading permits
Project applicant and
their construction
contractor
City of Fontana
Noise
MM-NOI-1: Reduce Construction Noise Levels. The
applicant and/or project contractor shall implement
the following measures:

Prior to and during
construction
Project applicant
and/or Project
contractor
City of Fontana

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Table 2. Mitigation Monitoring and Reporting Program
Mitigation Measure
Implementation
Timing
Party Responsible
for Implementation
Party Responsible
for Monitoring
Date of Completion/
Notes
All construction equipment must have appropriate
sound muffling devices, which shall be properly
maintained and used at all times such equipment is
in operation.

The project contractor shall place stationary
construction equipment so that emitted noise is
directed away from sensitive receptors nearest the
project site.

The construction contractor shall locate on-site
equipment staging areas so as to maximize the
distance between construction-related noise
sources and noise-sensitive receptors nearest the
Project site during the construction period.

All noise producing construction activities, including
warming-up or servicing equipment and any
preparation for construction, shall be limited to the
hours between 7:00 a.m. and 6:00 p.m.

A minimum eight (8) foot tall temporary noise
barrier shall be erected along the southern Project
site property line where the property line is adjacent
to the nearest noise sensitive receptor.

Tribal Cultural Resources
MM-TCR-1: Workers Environmental Awareness
Program. All Consulting Tribes shall be notified by
the applicant/owner/developer of the time and
location of the Worker Environmental Awareness
Program (WEAP) training no later than 72 hours
prior to its scheduled occurrence. The
applicant/owner/developer shall provide all
Consulting Tribes access and opportunity to
participate in the WEAP training. Further details and
requirements pertaining to the WEAP training,
No later than 72
hours prior to
construction
Project applicant City of Fontana

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Table 2. Mitigation Monitoring and Reporting Program
Mitigation Measure
Implementation
Timing
Party Responsible
for Implementation
Party Responsible
for Monitoring
Date of Completion/
Notes
please see MND Section 3.5 Cultural Resources
mitigation measure MM-CUL-2.

MM-TCR-2: Retention of a Native American
Monitoring: Prior to any ground disturbance
activities, the applicant/owner/developer shall
contact all Consulting Tribes with notification of the
approximate commencement of ground disturbing
activities. The applicant/owner/developer shall make
arrangements with the Consulting Tribes to enter into
a Native American Monitoring Agreement with the
intent of securing a total of one Native American
monitor (from any Tribe under contract) to be present
during initial ground disturbance occurring from 1
foot above native soils and below. Initial ground
disturbance is defined as initial construction-related
earthmoving of sediments from their place of
deposition. As it pertains to cultural resource
(archaeological or Native American) monitoring, this
definition excludes movement of sediments after
they have been initially disturbed or displaced by
current Project-related construction. The timing of
when cultural resource monitoring (archaeological
and Native American) shall be required shall be
outlined in the Cultural Resource Monitoring and
Inadvertent Discovery Plan pursuant to MM-CUL-1.

The Plan will be provided to each Consulting Tribe
under contract prior to commencement of ground
disturbing activities. More than one monitor may be
required if multiple areas within the Project site are
simultaneously exposed to initial ground disturbance
causing monitoring to be hindered by the distance
(more than 100 feet apart) of the simultaneous
activities. If more than one of the Consulting Tribes
Prior to any ground
disturbing
activities
Project applicant City of Fontana

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Table 2. Mitigation Monitoring and Reporting Program
Mitigation Measure
Implementation
Timing
Party Responsible
for Implementation
Party Responsible
for Monitoring
Date of Completion/
Notes
would like to serve as a contracted monitoring entity,
each Consulting Tribe will be retained under contract
with the applicant/owner/developer and monitoring
will occur on a nonsynchronous, rotational basis
allowing each Consulting Tribe the opportunity to
monitor as equally as possible based on the
construction schedule and availability of each
Consulting Tribe’s monitors.

MM-TCR-3: Inadvertent Discovery Clause. In the
event that potential prehistoric or historic-era Native American/Tribal resources (sites, features, or
artifacts) are exposed during construction activities
for the project, all construction work occurring not
less than 50 feet of the find shall immediately stop
and all Consulting Tribes must be notified
immediately and be consulted with throughout the
assessment of the find and determination of whether
or not additional study is warranted. Depending upon
the nature of the discovery, the archaeologist may
simply record the find and allow work to continue. If
the discovery proves potentially significant under
CEQA, additional work such as subsurface testing
may be warranted. If the discovery is determined
significant under CEQA and avoidance is not feasible,
data recovery will be required.

In the event that human remains and associated
funerary objects are inadvertently encountered
during construction activities, the remains and
funerary objects shall be treated in accordance with
state and local regulations that provide requirements
with regard to the accidental discovery of human
remains, including California Health and Safety Code
Section 7050.5, California Public Resources Code
During
construction
Project applicant and
their construction
contractor
City of Fontana

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Table 2. Mitigation Monitoring and Reporting Program
Mitigation Measure
Implementation
Timing
Party Responsible
for Implementation
Party Responsible
for Monitoring
Date of Completion/
Notes
Section 5097.98, and CEQA Guidelines Section
15064.5(e). In accordance with these regulations, if
human remains are found, the County Coroner must
be immediately notified of the discovery. Additionally, all Consulting Tribes must be notified of the discovery immediately. No further excavation or disturbance of
the Project site or any nearby (no less than 100 feet)
area reasonably suspected to overlie adjacent
remains can occur until the County Coroner has
determined, within 2 working days of notification of
the discovery, if the remains are potentially human in
origin. If the County Coroner determines that the
remains are, or are believed to be, Native American,
he or she is required to notify the NAHC within 24
hours. The NAHC must immediately notify those
persons it believes to be the most likely descendant
from the deceased Native American. The most likely
descendant must then complete their inspection
within 48 hours of being granted access to the site.

The most likely descendant would then determine, in
consultation with the property owner, the disposition
and treatment of the human remains.

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INTENTIONALLY LEFT BLANK

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5 Preparers

5.1 List of Preparers
Dudek
Kristen Stoner – Project Manager
Hayley Ward –Environmental Planner
Clarisa Olaguez – Environmental Planner
Nicholas Lorenzen – Air Quality Specialist
Cole Martin and Mark Storm – Noise Specialists

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INTENTIONALLY LEFT BLANK

1100
Attachment A
Bracketed Comment Letters

1101

1102
Via Email
November 20, 2023
Cathline Fort, Chair
Idilio Sanchez, Vice Chair
Ralph Thrasher, Secretary
Raj Sangha, Commissioner
Ricardo Quintana, Commissioner
Planning Commission
City of Fontana
CC: Germaine Key, City Clerk
[email protected]
George Velarde, Assistant Planner
Planning Department
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
[email protected]
Re: Comment on the Initial Study/Mitigated Negative Declaration (IS/MND) for Jefferson Fontana Apartment Project; Agenda Item PH-A
Dear Chair Fort and Honorable Members of the Planning Commission:

I am writing on behalf of Supporters Alliance for Environmental Responsibility (“SAFER”) regarding the Jefferson Fontana Apartment Project, listed as agenda item PH-A on the City of Fontana Planning Commission’s November 21, 2023 agenda, including all actions related or referring to the proposed construction of a mixed-use development in the City of Fontana (“Project”).

After reviewing the Project and the initial study and mitigated negative declaration (“IS/MND”) prepared for the Project, with the assistance of expert consultants, we conclude that there is a fair argument that the Project may have significant environmental impacts that have not been mitigated, rendering the MND inadequate under the California Environmental Quality Act (“CEQA”). Accordingly, an environmental impact report (“EIR”) is required.

This comment has been prepared with the assistance of Certified Industrial Hygienist Francis Offermann, PE, CIH. SAFER reserves the right to supplement these comments during review of the SCEA for the Project and at public hearings concerning the Project. Galante Vineyards v. Monterey Peninsula Water Management Dist., 60 Cal. App. 4th 1109, 1121 (1997).

PROJECT DESCRIPTION
. The Project site is located East of Cypress Avenue, south of Valley Boulevard, north of Interstate (I) 10, and west of Juniper Avenue in the City of Fontana (“City”). The Project would include a 437-unit multifamily development, 4,000 square feet of retail space, 14,150 square feet

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Comment on IS/MND for Jefferson Project
City of Fontana

of leasing and amenity space, onsite parking, and associated improvements on an 11.6 gross acre project site. Additionally, the project would include associated leasing buildings, fitness centers, pool areas, fire pits, lounge areas, a dog park, and other amenities.

LEGAL STANDARD
As the California Supreme Court has held “[i]f no EIR has been prepared for a nonexempt project, but substantial evidence in the record supports a fair argument that the project may result in significant adverse impacts, the proper remedy is to order preparation of an EIR.” (Communities for a Better Env’t v. South Coast Air Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 319-320 [citing No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 88; Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 504–505].) “Significant environmental effect” is defined very broadly as “a substantial or potentially substantial adverse change in the environment.” (Pub. Res. Code § 21068; see also 14 CCR § 15382.)

The EIR is the very heart of CEQA. Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1214 (Bakersfield Citizens); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927. The EIR is an “environmental ‘alarm bell’ whose purpose is to alert the public and its responsible officials to environmental changes before they have reached the ecological points of no return.” Bakersfield Citizens, 124 Cal.App.4th at 1220. The EIR also functions as a “document of accountability,” intended to “demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.” Laurel Heights Improvements Assn. v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 392. The EIR process “protects not only the environment but also informed selfgovernment.” Pocket Protectors, 124 Cal.App.4th at 927.

Where an initial study shows that the project may have a significant effect on the environment, a mitigated negative declaration may be appropriate. However, a mitigated negative declaration is proper only if the project revisions would avoid or mitigate the potentially significant effects identified in the initial study “to a point where clearly no significant effect on the environment would occur, and…there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.” PRC §§ 21064.5 and 21080(c)(2); Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 331. In that context, “may” means a reasonable possibility of a significant effect on the environment. PRC §§ 21082.2(a), 21100, 21151(a); Pocket Protectors, 124 Cal.App.4th at 927; League for Protection of Oakland's etc. Historic Res. v. City of Oakland (1997) 52 Cal.App.4th 896, 904–05.

Under the “fair argument” standard, an EIR is required if any substantial evidence in the record indicates that a project may have an adverse environmental effect—even if contrary evidence exists to support the agency’s decision. 14 CCR § 15064(f)(1); Pocket Protectors, 124 Cal.App.4th at 931; Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal.App.4th 144, 150-51; Quail Botanical Gardens Found., Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602. The “fair argument” standard creates a “low threshold” favoring environmental

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City of Fontana

review through an EIR rather than through issuance of negative declarations or notices of exemption from CEQA. Pocket Protectors, 124 Cal.App.4th at 928. The “fair argument” standard is virtually the opposite of the typical deferential standard accorded to agencies. As a leading CEQA treatise explains:

This ‘fair argument’ standard is very different from the standard normally followed by public agencies in making administrative determinations. Ordinarily, public agencies weigh the evidence in the record before them and reach a decision based on a preponderance of the evidence. [Citations]. The fair argument standard, by contrast, prevents the lead agency from weighing competing evidence to determine who has a better argument concerning the likelihood or extent of a potential environmental impact.

The lead agency’s decision is thus largely legal rather than factual; it does not resolve conflicts in the evidence but determines only whether substantial evidence exists in the record to support the prescribed fair argument.

Kostka & Zishcke, Practice Under CEQA, §6.29, pp. 273–74.

The Courts have explained that “it is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency’s determination. Review is de novo, with a preference for resolving doubts in favor of environmental review.” Pocket Protectors, 124 Cal.App.4th at 928 (emphasis in original).

DISCUSSION
I. Mitigation Measure NOI-1 Violates CEQA.

The City inadequately analyzes how its proposed mitigation measures will reduce noise impacts to a level below significance. When the effectiveness of a mitigation measure is not apparent, the EIR must include facts and analysis supporting the claim that the measure “will have a quantifiable ‘substantial’ impact on reducing the adverse effects.” (See Sierra Club v County of Fresno (2018) 6 Cal.5th 502, 522 [failure to demonstrate net health effect of proposed air quality mitigation].)
The IS/MND admits that the Project will have a significant impact because Project construction will result in the “generation of a substantial temporary or permanent increase in ambient noise levels in the vicinity of the project in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies.” (IS/MND, p. 69-70.) During some phases of construction, the Project’s noise will exceed the threshold of significance by 7 dBA. (MND, Appendix H, p. 12.) The MND then claims that adoption of mitigation measure NOI-1 (“MM NOI-1”) will reduce this significant impact to a less-than-significant level. MM NOI-1 requires:
“MM NOI-1 Reduce Construction Noise Levels. The applicant and/or project contractor shall implement the following measures:

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• All construction equipment must have appropriate sound muffling devices, which shall be properly maintained and used at all times such equipment is in operation. • The project contractor shall place stationary construction equipment so that emitted noise is directed away from sensitive receptors nearest the project site. • The construction contractor shall locate on-site equipment staging areas so as to maximize the distance between construction-related noise sources and noisesensitive receptors nearest the Project site during the construction period. • All noise producing construction activities, including warming-up or servicing equipment and any preparation for construction, shall be limited to the hours between 7:00 a.m. and 6:00 p.m.
• A minimum eight (8) foot tall temporary noise barrier shall be erected along the southern Project site property line where the property line is adjacent to the nearest noise sensitive receptor.”
(Id, p. 73.)
The MND fails to quantify the effectiveness of this mitigation measure, in violation of CEQA, and there is no evidence that MM NOI-1 will effectively reduce noise by 7 dBA.

Citing appendix H, the MND states, “an 8’-tall temporary noise barrier (e.g., typical plywood sheeting or suspension of acoustical blankets) would reduce construction noise to below 80 dBA at all nearby offsite noise-sensitive receptors. Therefore, implementation of MM NOI-1 would reduce construction noise impacts to a less-than-significant level.” (MND, p. 74.) But Appendix H makes no such statement, and there is no other evidence quantifying the effect that an eight foot-tall noise barrier would have on reducing construction noise, especially at the size, scale, and height of the Project.

The only quantification of any mitigation described in Appendix H is that “reducing operation time of a piece of steady noise-producing equipment by 50% would also yield a 3 dB reduction.” (MND Appendix H, p. 13.) But MM NOI-1 does not include a requirement to reduce the operating time of noise-producing equipment by 50%.

MM NOI-1 violates CEQA because there is no substantial evidence that the measure will be effective at reducing the Project’ significant construction noise impact by 7 dBA. Additional mitigation is needed to further reduce the impact or an EIR must be prepared.

II. The Project Will Have A Significant Air Quality Impact.

Certified Industrial Hygienist, Francis “Bud” Offermann, PE, CIH, has conducted a review of the proposed Project and relevant documents regarding the Project’s indoor air emissions. (Indoor Environmental Engineering Comments (November 11, 2023)). Mr.

Offermann concludes that it is likely that the Project will expose residents and commercial employees of the Project to significant impacts related to indoor air quality, and in particular, emissions of the cancer-causing chemical formaldehyde. Mr. Offermann is a leading expert on

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indoor air quality and has published extensively on the topic. Mr. Offermann’s expert comments and CV are attached as Exhibit A.

Mr. Offermann explains that many composite wood products used in building materials and furnishings commonly found in residences, hotels, and commercial spaces contain formaldehyde-based glues which off-gas formaldehyde over a long period of time. He states, “The primary source of formaldehyde indoors is composite wood products manufactured with urea-formaldehyde resins, such as plywood, medium density fiberboard, and particleboard.

These materials are commonly used in building construction for flooring, cabinetry, baseboards, window shades, interior doors, and window and door trims.” (Ex. A, p. 3.) Formaldehyde is a known human carcinogen. Mr. Offermann states that future residents of the Project may be exposed to a cancer risk from formaldehyde emissions of approximately 120 per million, even assuming all materials are compliant with the California Air Resources Board’s formaldehyde airborne toxics control measure. (Id.) This exceeds the South Coast Air Quality Management District’s (“SCAQMD”) CEQA significance threshold for airborne cancer risk of 10 per million. (Id.)
In addition, Mr. Offermann states that employees of the Project’s commercial spaces may experience significant exposures to formaldehyde during their work days. (Ex. C, pp. 4-5.) Assuming they work eight-hour days, five days per week, an employee would be exposed to a cancer risk of approximately 17.7 per million, even assuming all materials are compliant with the California Air Resources Board’s formaldehyde airborne toxics control measure. (Id., p. 5.) This too is more than the SCAQMD CEQA significance threshold for airborne cancer risk of 10 per million.

The high cancer risk that may be posed by the Project’s indoor air emissions will be exacerbated by the additional cancer risk that exists as a result of the Project’s location near roadways with moderate to high traffic (i.e. San Bernadino Freeway - 10, Valley Boulevard, Juniper Avenue, Washington Drive, etc.), and the high levels of PM2.5 already present in the ambient air. (Ex. A, p. 11.) Specifically, Mr. Offermann notes that “the SCAQMD’s MATES V study cites an existing cancer risk of 511 per million at the Project site due to the site’s high concentration of ambient air contaminants resulting from the area’s high levels of motor vehicle traffic.” (Id., p. 12.) No analysis has been conducted of the significant cumulative health impacts that will result to future residents and employees of the Project, meaning that the City cannot conclude with substantial evidence that the Project will not result in significant air quality impacts.

Mr. Offermann’s comments constitute substantial evidence that the Project will have a significant environmental impact that must be analyzed in an EIR, and mitigation measures must be imposed to reduce the increased cancer risk. (Ex. A, p. 6.) Mr. Offermann identifies mitigation measures that are available to reduce these significant health risks, including the installation of air filters and a requirement that the applicant use only composite wood materials (e.g. hardwood plywood, medium density fiberboard, particleboard) for all interior finish

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systems that are made with CARB approved no-added formaldehyde (NAF) resins or ultra-low emitting formaldehyde (ULEF) resins in the buildings’ interiors. (Id., pp. 13-14.) The City has a duty to investigate issues relating to a project’s potential environmental impacts, especially those issues raised by an expert’s comments. (See, Cty. Sanitation Dist. No. 2 v. Cty. of Kern, (2005) 127 Cal.App.4th 1544, 1597–98 [“under CEQA, the lead agency bears a burden to investigate potential environmental impacts”].) In addition to assessing the Project’s potential health impacts to residents and employees, Mr. Offermann identifies the investigatory path that the City should be following in developing an EIR to more precisely evaluate the Projects’ future formaldehyde emissions and establishing mitigation measures that reduce the cancer risk below the SCAQMD level. (Ex. C, pp. 6-10.) Such an analysis would be similar in form to the air quality modeling and traffic modeling typically conducted as part of a CEQA review.

The failure to address the Project’s formaldehyde emissions is contrary to the California Supreme Court’s decision in California Building Industry Ass’n v. Bay Area Air Quality Mgmt.

Dist. (2015) 62 Cal.4th 369, 386 (“CBIA”). At issue in CBIA was whether the Air District could enact CEQA guidelines that advised lead agencies that they must analyze the impacts of adjacent environmental conditions on a project. The Supreme Court held that CEQA does not generally require lead agencies to consider the environment’s effects on a project. (CBIA, 62 Cal.4th at 800-801.) However, to the extent a project may exacerbate existing adverse environmental conditions at or near a project site, those would still have to be considered pursuant to CEQA. (Id. at 801 [“CEQA calls upon an agency to evaluate existing conditions in order to assess whether a project could exacerbate hazards that are already present”].) In so holding, the Court expressly held that CEQA’s statutory language required lead agencies to disclose and analyze “impacts on a project’s users or residents that arise from the project’s effects on the environment.” (Id. at 800 [emph. added].)
The carcinogenic formaldehyde emissions identified by Mr. Offermann are not an existing environmental condition. Those emissions to the air will be from the Project. Residents and commercial employees will be users of the Project. Currently, there is presumably little if any formaldehyde emissions at the site. Once the project is built, emissions will begin at levels that pose significant health risks. Rather than excusing the City from addressing the impacts of carcinogens emitted into the indoor air from the project, the Supreme Court in CBIA expressly finds that this type of effect by the project on the environment and a “project’s users and residents” must be addressed in the CEQA process.

The Supreme Court’s reasoning is well-grounded in CEQA’s statutory language. CEQA expressly includes a project’s effects on human beings as an effect on the environment that must be addressed in an environmental review. “Section 21083(b)(3)’s express language, for example, requires a finding of a ‘significant effect on the environment’ (§ 21083(b)) whenever the ‘environmental effects of a project will cause substantial adverse effects on human beings, directly or indirectly.’” (CBIA, 62 Cal.4th at 800 [emph. in original].) Likewise, “the Legislature has made clear—in declarations accompanying CEQA’s enactment—that public health and safety are of great importance in the statutory scheme.” (Id., citing e.g., §§ 21000, subds. (b), (c),

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Comment on IS/MND for Jefferson Project
City of Fontana

(d), (g), 21001, subds. (b), (d).) It goes without saying that the future residents and commercial employees of the Project are human beings and the health and safety of those residents and workers is as important to CEQA’s safeguards as nearby residents currently living near the project site.

Because Mr. Offermann’s expert review is substantial evidence of a fair argument of a significant environmental impact to future users of the Project, an EIR must be prepared to disclose and mitigate those impacts.

CONCLUSION
For the foregoing reasons, the IS/MND is inadequate and violates CEQA. An EIR must be prepared to analyze and mitigate the Project’s significant adverse environmental impacts.

Thank you.

Sincerely,

Marjan R. Abubo

LOZEAU DRURY LLP

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Exhibit A

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IEE INDOOR ENVIRONMENTAL ENGINEERING IEE
1448 Pine Street, Suite 103 San Francisco, California 94109 Telephone: (415) 567-7700
E-mail: [email protected]
http://www.iee-sf.com
Date: November 11, 2023
To: Marjan Kris Abubo
Lozeau | Drury LLP
1939 Harrison Street, Suite 150
Oakland, California 94612
From: Francis J. Offermann PE CIH
Subject: Indoor Air Quality: Jefferson Fontana Apartments Project, Fontana, CA. (IEE File Reference: P-4763)
Pages: 20
Indoor Air Quality Impacts
Indoor air quality (IAQ) directly impacts the comfort and health of building occupants, and the achievement of acceptable IAQ in newly constructed and renovated buildings is a well-recognized design objective. For example, IAQ is addressed by major highperformance building rating systems and building codes (California Building Standards Commission, 2014; USGBC, 2014). Indoor air quality in homes is particularly important because occupants, on average, spend approximately ninety percent of their time indoors with the majority of this time spent at home (EPA, 2011). Some segments of the population that are most susceptible to the effects of poor IAQ, such as the very young and the elderly, occupy their homes almost continuously. Additionally, an increasing number of adults are working from home at least some of the time during the workweek.

Indoor air quality also is a serious concern for workers in hotels, offices and other business establishments.

The concentrations of many air pollutants often are elevated in homes and other buildings relative to outdoor air because many of the materials and products

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used indoors contain and release a variety of pollutants to air (Hodgson et al., 2002; Offermann and Hodgson, 2011). With respect to indoor air contaminants for which inhalation is the primary route of exposure, the critical design and construction parameters are the provision of adequate ventilation and the reduction of indoor sources of the contaminants.

Indoor Formaldehyde Concentrations Impact. In the California New Home Study (CNHS) of 108 new homes in California (Offermann, 2009), 25 air contaminants were measured, and formaldehyde was identified as the indoor air contaminant with the highest cancer risk as determined by the California Proposition 65 Safe Harbor Levels (OEHHA, 2017a), No Significant Risk Levels (NSRL) for carcinogens. The NSRL is the daily intake level calculated to result in one excess case of cancer in an exposed population of 100,000 (i.e., ten in one million cancer risk) and for formaldehyde is 40 µg/day. The NSRL concentration of formaldehyde that represents a daily dose of 40 µg is 2 µg/m3, assuming a continuous 24-hour exposure, a total daily inhaled air volume of 20 m3, and 100% absorption by the respiratory system. All of the CNHS homes exceeded this NSRL concentration of 2 µg/m3. The median indoor formaldehyde concentration was 36 µg/m3, and ranged from 4.8 to 136 µg/m3 , which corresponds to a median exceedance of the 2
µg/m3 NSRL concentration of 18 and a range of 2.3 to 68.

Therefore, the cancer risk of a resident living in a California home with the median indoor formaldehyde concentration of 36 µg/m3, is 180 per million as a result of formaldehyde alone. The CEQA significance threshold for airborne cancer risk is 10 per million, as established by the San Diego County Air Pollution Control District (SDAPCD, 2021).

Besides being a human carcinogen, formaldehyde is also a potent eye and respiratory irritant. In the CNHS, many homes exceeded the non-cancer reference exposure levels (RELs) prescribed by California Office of Environmental Health Hazard Assessment (OEHHA, 2017b). The percentage of homes exceeding the RELs ranged from 98% for the Chronic REL of 9 µg/m3 to 28% for the Acute REL of 55 µg/m3.

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The primary source of formaldehyde indoors is composite wood products manufactured with urea-formaldehyde resins, such as plywood, medium density fiberboard, and particleboard. These materials are commonly used in building construction for flooring, cabinetry, baseboards, window shades, interior doors, and window and door trims.

In January 2009, the California Air Resources Board (CARB) adopted an airborne toxics control measure (ATCM) to reduce formaldehyde emissions from composite wood products, including hardwood plywood, particleboard, medium density fiberboard, and also furniture and other finished products made with these wood products (California Air Resources Board 2009). While this formaldehyde ATCM has resulted in reduced emissions from composite wood products sold in California, they do not preclude that homes built with composite wood products meeting the CARB ATCM will have indoor formaldehyde concentrations below cancer and non-cancer exposure guidelines.

A follow up study to the California New Home Study (CNHS) was conducted in 2016- 2018 (Singer et. al., 2019), and found that the median indoor formaldehyde in new homes built after 2009 with CARB Phase 2 Formaldehyde ATCM materials had lower indoor formaldehyde concentrations, with a median indoor concentrations of 22.4 µg/m3 (18.2 ppb) as compared to a median of 36 µg/m3 found in the 2007 CNHS. Unlike in the CNHS study where formaldehyde concentrations were measured with pumped DNPH samplers, the formaldehyde concentrations in the HENGH study were measured with passive samplers, which were estimated to under-measure the true indoor formaldehyde concentrations by approximately 7.5%. Applying this correction to the HENGH indoor formaldehyde concentrations results in a median indoor concentration of 24.1 µg/m3, which is 33% lower than the 36 µg/m3 found in the 2007 CNHS.

Thus, while new homes built after the 2009 CARB formaldehyde ATCM have a 33% lower median indoor formaldehyde concentration and cancer risk, the median lifetime cancer risk is still 120 per million for homes built with CARB compliant composite wood products. This median lifetime cancer risk is more than 12 times the OEHHA 10 in a million cancer risk threshold (OEHHA, 2017a).

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With respect to the Jefferson Fontana Apartments Project, Fontana, CA, the buildings consist of residential and commercial spaces.

The residential occupants will potentially have continuous exposure (e.g. 24 hours per day, 52 weeks per year). These exposures are anticipated to result in significant cancer risks resulting from exposures to formaldehyde released by the building materials and furnishing commonly found in residential construction.

Because these residences will be constructed with CARB Phase 2 Formaldehyde ATCM materials, and be ventilated with the minimum code required amount of outdoor air, the indoor residential formaldehyde concentrations are likely similar to those concentrations observed in residences built with CARB Phase 2 Formaldehyde ATCM materials, which is a median of 24.1 µg/m3 (Singer et. al., 2020)
Assuming that the residential occupants inhale 20 m3 of air per day, the average 70-year lifetime formaldehyde daily dose is 482 µg/day for continuous exposure in the residences. This exposure represents a cancer risk of 120 per million, which is more than 12 times the CEQA cancer risk of 10 per million. For occupants that do not have continuous exposure, the cancer risk will be proportionally less but still substantially over the CEQA cancer risk of 10 per million (e.g. for 12/hour/day occupancy, more than 6 times the CEQA cancer risk of 10 per million).

The employees of the commercial spaces are expected to experience significant indoor exposures (e.g., 40 hours per week, 50 weeks per year). These exposures for employees are anticipated to result in significant cancer risks resulting from exposures to formaldehyde released by the building materials and furnishing commonly found in offices, warehouses, residences and hotels.

Because the commercial spaces will be constructed with CARB Phase 2 Formaldehyde ATCM materials, and ventilated with the minimum code required amount of outdoor air, the indoor formaldehyde concentrations are likely similar to those concentrations observed in residences built with CARB Phase 2 Formaldehyde ATCM materials, which

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is a median of 24.1 µg/m3 (Singer et. al., 2020)
Assuming that the employees of commercial spaces work 8 hours per day and inhale 20 m3 of air per day, the formaldehyde dose per work-day at the offices is 161 µg/day.

Assuming that these employees work 5 days per week and 50 weeks per year for 45 years (start at age 20 and retire at age 65) the average 70-year lifetime formaldehyde daily dose is 70.9 µg/day.

This is 1.77 times the NSRL (OEHHA, 2017a) of 40 µg/day and represents a cancer risk of 17.7 per million, which exceeds the CEQA cancer risk of 10 per million. This impact should be analyzed in an environmental impact report (“EIR”), and the agency should impose all feasible mitigation measures to reduce this impact. Several feasible mitigation measures are discussed below and these and other measures should be analyzed in an EIR.

In addition, we note that the average outdoor air concentration of formaldehyde in California is 3 ppb, or 3.7 µg/m3, (California Air Resources Board, 2004), and thus represents an average pre-existing background airborne cancer risk of 1.85 per million.

Thus, the indoor air formaldehyde exposures describe above exacerbate this pre-existing risk resulting from outdoor air formaldehyde exposures.

Additionally, the SCAQMD’s Multiple Air Toxics Exposure Study (“MATES V”) identifies an existing cancer risk at the Project site of 511 per million due to the site’s elevated ambient air contaminant concentrations, which are due to the area’s high levels of vehicle traffic. These impacts would further exacerbate the pre-existing cancer risk to the building occupants, which result from exposure to formaldehyde in both indoor and outdoor air.

Appendix A, Indoor Formaldehyde Concentrations and the CARB Formaldehyde ATCM, provides analyses that show utilization of CARB Phase 2 Formaldehyde ATCM materials will not ensure acceptable cancer risks with respect to formaldehyde emissions from

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composite wood products.

Even composite wood products manufactured with CARB certified ultra low emitting formaldehyde (ULEF) resins do not insure that the indoor air will have concentrations of formaldehyde the meet the OEHHA cancer risks that substantially exceed 10 per million.

The permissible emission rates for ULEF composite wood products are only 11-15% lower than the CARB Phase 2 emission rates. Only use of composite wood products made with no-added formaldehyde resins (NAF), such as resins made from soy, polyvinyl acetate, or methylene diisocyanate can insure that the OEHHA cancer risk of 10 per million is met.

The following describes a method that should be used, prior to construction in the environmental review under CEQA, for determining whether the indoor concentrations resulting from the formaldehyde emissions of specific building materials/furnishings selected exceed cancer and non-cancer guidelines. Such a design analyses can be used to identify those materials/furnishings prior to the completion of the City’s CEQA review and project approval, that have formaldehyde emission rates that contribute to indoor concentrations that exceed cancer and non-cancer guidelines, so that alternative lower emitting materials/furnishings may be selected and/or higher minimum outdoor air ventilation rates can be increased to achieve acceptable indoor concentrations and incorporated as mitigation measures for this project.

Pre-Construction Building Material/Furnishing Formaldehyde Emissions Assessment This formaldehyde emissions assessment should be used in the environmental review under CEQA to assess the indoor formaldehyde concentrations from the proposed loading of building materials/furnishings, the area-specific formaldehyde emission rate data for building materials/furnishings, and the design minimum outdoor air ventilation rates. This assessment allows the applicant (and the City) to determine, before the conclusion of the environmental review process and the building materials/furnishings are specified, purchased, and installed, if the total chemical emissions will exceed cancer and non-cancer guidelines, and if so, allow for changes in the selection of specific

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material/furnishings and/or the design minimum outdoor air ventilations rates such that cancer and non-cancer guidelines are not exceeded.

1.) Define Indoor Air Quality Zones. Divide the building into separate indoor air quality zones, (IAQ Zones). IAQ Zones are defined as areas of well-mixed air. Thus, each ventilation system with recirculating air is considered a single zone, and each room or group of rooms where air is not recirculated (e.g. 100% outdoor air) is considered a separate zone. For IAQ Zones with the same construction material/furnishings and design minimum outdoor air ventilation rates. (e.g. hotel rooms, apartments, condominiums, etc.) the formaldehyde emission rates need only be assessed for a single IAQ Zone of that type.

2.) Calculate Material/Furnishing Loading. For each IAQ Zone, determine the building material and furnishing loadings (e.g., m2 of material/m2 floor area, units of furnishings/m2 floor area) from an inventory of all potential indoor formaldehyde sources, including flooring, ceiling tiles, furnishings, finishes, insulation, sealants, adhesives, and any products constructed with composite wood products containing urea-formaldehyde resins (e.g., plywood, medium density fiberboard, particleboard).

3.) Calculate the Formaldehyde Emission Rate. For each building material, calculate the formaldehyde emission rate (µg/h) from the product of the area-specific formaldehyde emission rate (µg/m2-h) and the area (m2) of material in the IAQ Zone, and from each furnishing (e.g. chairs, desks, etc.) from the unit-specific formaldehyde emission rate (µg/unit-h) and the number of units in the IAQ Zone.

NOTE: As a result of the high-performance building rating systems and building codes (California Building Standards Commission, 2014; USGBC, 2014), most manufacturers of building materials furnishings sold in the United States conduct chemical emission rate tests using the California Department of Health “Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers,” (CDPH, 2017), or other equivalent chemical emission rate testing methods. Most manufacturers of building furnishings sold in the United States conduct chemical emission rate tests using ANSI/BIFMA M7.1 Standard Test Method for

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Determining VOC Emissions (BIFMA, 2018), or other equivalent chemical emission rate testing methods.

CDPH, BIFMA, and other chemical emission rate testing programs, typically certify that a material or furnishing does not create indoor chemical concentrations in excess of the maximum concentrations permitted by their certification. For instance, the CDPH emission rate testing requires that the measured emission rates when input into an office, school, or residential model do not exceed one-half of the OEHHA Chronic Exposure Guidelines (OEHHA, 2017b) for the 35 specific VOCs, including formaldehyde, listed in Table 4-1 of the CDPH test method (CDPH, 2017). These certifications themselves do not provide the actual area-specific formaldehyde emission rate (i.e., µg/m2-h) of the product, but rather provide data that the formaldehyde emission rates do not exceed the maximum rate allowed for the certification. Thus, for example, the data for a certification of a specific type of flooring may be used to calculate that the area-specific emission rate of formaldehyde is less than 31 µg/m2-h, but not the actual measured specific emission rate, which may be 3, 18, or 30 µg/m2-h. These area-specific emission rates determined from the product certifications of CDPH, BIFA, and other certification programs can be used as an initial estimate of the formaldehyde emission rate.

If the actual area-specific emission rates of a building material or furnishing is needed (i.e. the initial emission rates estimates from the product certifications are higher than desired), then that data can be acquired by requesting from the manufacturer the complete chemical emission rate test report. For instance if the complete CDPH emission test report is requested for a CDHP certified product, that report will provide the actual areaspecific emission rates for not only the 35 specific VOCs, including formaldehyde, listed in Table 4-1 of the CDPH test method (CDPH, 2017), but also all of the cancer and reproductive/developmental chemicals listed in the California Proposition 65 Safe Harbor Levels (OEHHA, 2017a), all of the toxic air contaminants (TACs) in the California Air Resources Board Toxic Air Contamination List (CARB, 2011), and the 10 chemicals with the greatest emission rates.

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Alternatively, a sample of the building material or furnishing can be submitted to a chemical emission rate testing laboratory, such as Berkeley Analytical Laboratory (https://berkeleyanalytical.com), to measure the formaldehyde emission rate.

4.) Calculate the Total Formaldehyde Emission Rate. For each IAQ Zone, calculate the total formaldehyde emission rate (i.e. µg/h) from the individual formaldehyde emission rates from each of the building material/furnishings as determined in Step 3.

5.) Calculate the Indoor Formaldehyde Concentration. For each IAQ Zone, calculate the indoor formaldehyde concentration (µg/m3) from Equation 1 by dividing the total formaldehyde emission rates (i.e. µg/h) as determined in Step 4, by the design minimum outdoor air ventilation rate (m3/h) for the IAQ Zone. (Equation 1) where:

Cin = indoor formaldehyde concentration (µg/m3)
Etotal = total formaldehyde emission rate (µg/h) into the IAQ Zone.

Qoa = design minimum outdoor air ventilation rate to the IAQ Zone (m3/h) The above Equation 1 is based upon mass balance theory, and is referenced in Section

3.10.2 “Calculation of Estimated Building Concentrations” of the California Department of Health “Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers”, (CDPH, 2017).

6.) Calculate the Indoor Exposure Cancer and Non-Cancer Health Risks. For each IAQ Zone, calculate the cancer and non-cancer health risks from the indoor formaldehyde concentrations determined in Step 5 and as described in the OEHHA Air Toxics Hot Spots Program Risk Assessment Guidelines; Guidance Manual for Preparation of Health Risk Assessments (OEHHA, 2015).

7.) Mitigate Indoor Formaldehyde Exposures of exceeding the CEQA Cancer and/or Non-Cancer Health Risks. In each IAQ Zone, provide mitigation for any formaldehyde exposure risk as determined in Step 6, that exceeds the CEQA cancer risk of 10 per

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million or the CEQA non-cancer Hazard Quotient of 1.0.

Provide the source and/or ventilation mitigation required in all IAQ Zones to reduce the health risks of the chemical exposures below the CEQA cancer and non-cancer health risks.

Source mitigation for formaldehyde may include:

1.) reducing the amount materials and/or furnishings that emit formaldehyde

2.) substituting a different material with a lower area-specific emission rate of formaldehyde
Ventilation mitigation for formaldehyde emitted from building materials and/or furnishings may include:

1.) increasing the design minimum outdoor air ventilation rate to the IAQ Zone.

NOTE: Mitigating the formaldehyde emissions through use of less material/furnishings, or use of lower emitting materials/furnishings, is the preferred mitigation option, as mitigation with increased outdoor air ventilation increases initial and operating costs associated with the heating/cooling systems.

Further, we are not asking that the builder “speculate” on what and how much composite materials be used, but rather at the design stage to select composite wood materials based on the formaldehyde emission rates that manufacturers routinely conduct using the California Department of Health “Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers,” (CDPH, 2017), and use the procedure described earlier above (i.e. PreConstruction Building Material/Furnishing Formaldehyde Emissions Assessment) to insure that the materials selected achieve acceptable cancer risks from material off gassing of formaldehyde.

Outdoor Air Ventilation Impact. Another important finding of the CNHS, was that the outdoor air ventilation rates in the homes were very low. Outdoor air ventilation is a very

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important factor influencing the indoor concentrations of air contaminants, as it is the primary removal mechanism of all indoor air generated contaminants. Lower outdoor air exchange rates cause indoor generated air contaminants to accumulate to higher indoor air concentrations. Many homeowners rarely open their windows or doors for ventilation as a result of their concerns for security/safety, noise, dust, and odor concerns (Price, 2007). In the CNHS field study, 32% of the homes did not use their windows during the 24‐hour Test Day, and 15% of the homes did not use their windows during the entire preceding week. Most of the homes with no window usage were homes in the winter field session.

Thus, a substantial percentage of homeowners never open their windows, especially in the winter season. The median 24‐hour measurement was 0.26 air changes per hour (ach), with a range of 0.09 ach to 5.3 ach. A total of 67% of the homes had outdoor air exchange rates below the minimum California Building Code (2001) requirement of 0.35 ach. Thus, the relatively tight envelope construction, combined with the fact that many people never open their windows for ventilation, results in homes with low outdoor air exchange rates and higher indoor air contaminant concentrations.

The Jefferson Fontana Apartments Project, Fontana, CA is close to roads with moderate to high traffic (e.g., San Bernadino Freeway - 10, Valley Boulevard, Juniper Avenue, Washington Drive, etc.), thus the Project site is a sound impacted site.

According to the Initial Study/Mitigated Negative Declaration - Jefferson Fontana Apartments Project, Fontana, CA (Dudek, 2023), no on-site acoustic measurements have been made, just predicted existing with Project traffic noise levels at Valley Boulevard between Cypress Avenue and Juniper Avenue. Table 3.13-3 indicates that the predicted existing with Project traffic noise levels at Valley Boulevard between Cypress Avenue and Juniper Avenue is 69.6 dBA CNEL.

In order to design the building for this Project such that interior noise levels are acceptable, an acoustic study with actual on-site measurements of the existing ambient noise levels and modeled future ambient noise levels needs to be conducted. The acoustic study of the existing ambient noise levels should be conducted over a one-week period. and report the dBA CNEL or Ldn. This study will allow for the selection of a building

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envelope and windows with a sufficient STC such that the indoor noise levels are acceptable. A mechanical supply of outdoor air ventilation to allow for a habitable interior environment with closed windows and doors will also be requires. Such a ventilation system would allow windows and doors to be kept closed at the occupant’s discretion to control exterior noise within building interiors.

PM2.5 Outdoor Concentrations Impact. An additional impact of the nearby motor vehicle traffic associated with this project, are the outdoor concentrations of PM2.5. According to the Initial Study/Mitigated Negative Declaration - Jefferson Fontana Apartments Project, Fontana, CA (Dudek, 2023), the Project is located in the South Coast Air Basin, which is a State and Federal non-attainment area for PM2.5. Additionally, the SCAQMD’s MATES V study cites an existing cancer risk of 511 per million at the Project site due to the site’s high concentration of ambient air contaminants resulting from the area’s high levels of motor vehicle traffic.

An air quality analyses should be conducted to determine the concentrations of PM2.5 in the outdoor and indoor air that people inhale each day. This air quality analyses needs to consider the cumulative impacts of the project related emissions, existing and projected future emissions from local PM2.5 sources (e.g. stationary sources, motor vehicles, and airport traffic) upon the outdoor air concentrations at the Project site. If the outdoor concentrations are determined to exceed the California and National annual average PM2.5 exceedence concentration of 12 µg/m3 , or the National 24-hour average exceedence
concentration of 35 µg/m3, then the buildings need to have a mechanical supply of outdoor air that has air filtration with sufficient removal efficiency, such that the indoor concentrations of outdoor PM2.5 particles is less than the California and National PM2.5 annual and 24-hour standards.

It is my experience that based on the projected high traffic noise levels, the annual average concentration of PM2.5 will exceed the California and National PM2.5 annual and 24-hour standards and warrant installation of high efficiency air filters (i.e. MERV 13 or higher) in all mechanically supplied outdoor air ventilation systems.

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Indoor Air Quality Impact Mitigation Measures
The following are recommended mitigation measures to minimize the impacts upon indoor quality:

Indoor Formaldehyde Concentrations Mitigation. Use only composite wood materials (e.g. hardwood plywood, medium density fiberboard, particleboard) for all interior finish systems that are made with CARB approved no-added formaldehyde (NAF) resins (CARB, 2009). CARB Phase 2 certified composite wood products, or ultra-low emitting formaldehyde (ULEF) resins, do not insure indoor formaldehyde concentrations that are below the CEQA cancer risk of 10 per million. Only composite wood products manufactured with CARB approved no-added formaldehyde (NAF) resins, such as resins made from soy, polyvinyl acetate, or methylene diisocyanate can insure that the OEHHA cancer risk of 10 per million is met.

Alternatively, conduct the previously described Pre-Construction Building Material/Furnishing Chemical Emissions Assessment, to determine that the combination of formaldehyde emissions from building materials and furnishings do not create indoor formaldehyde concentrations that exceed the CEQA cancer and non-cancer health risks.

It is important to note that we are not asking that the builder “speculate” on what and how much composite materials be used, but rather at the design stage to select composite wood materials based on the formaldehyde emission rates that manufacturers routinely conduct using the California Department of Health “Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers”, (CDPH, 2017), and use the procedure described above (i.e.

Pre-Construction Building Material/Furnishing Formaldehyde Emissions Assessment) to insure that the materials selected achieve acceptable cancer risks from material off gassing of formaldehyde.

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Outdoor Air Ventilation Mitigation. Provide each habitable room with a continuous mechanical supply of outdoor air that meets or exceeds the California 2016 Building Energy Efficiency Standards (California Energy Commission, 2015) requirements of the greater of 15 cfm/occupant or 0.15 cfm/ft2 of floor area. Following installation of the system conduct testing and balancing to insure that required amount of outdoor air is entering each habitable room and provide a written report documenting the outdoor airflow rates. Do not use exhaust only mechanical outdoor air systems, use only balanced outdoor air supply and exhaust systems or outdoor air supply only systems. Provide a manual for the occupants or maintenance personnel, that describes the purpose of the mechanical outdoor air system and the operation and maintenance requirements of the system.

PM2.5 Outdoor Air Concentration Mitigation. Install air filtration with sufficient PM2.5 removal efficiency (e.g. MERV 13 or higher) to filter the outdoor air entering the mechanical outdoor air supply systems, such that the indoor concentrations of outdoor PM2.5 particles are less than the California and National PM2.5 annual and 24-hour standards. Install the air filters in the system such that they are accessible for replacement by the occupants or maintenance personnel. Include in the mechanical outdoor air ventilation system manual instructions on how to replace the air filters and the estimated frequency of replacement.

References
BIFA. 2018. BIFMA Product Safety and Performance Standards and Guidelines. www.bifma.org/page/standardsoverview
California Air Resources Board. 2004. Formaldehyde in the Home. https://ww3.arb.ca.gov › research › indoor › formaldgl08-04.pdf California Air Resources Board. 2009. Airborne Toxic Control Measure to Reduce Formaldehyde Emissions from Composite Wood Products. California Environmental

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Protection Agency, Sacramento, CA.
https://www.arb.ca.gov/regact/2007/compwood07/fro-final.pdf California Air Resources Board. 2011. Toxic Air Contaminant Identification List.

California Environmental Protection Agency, Sacramento, CA. https://www.arb.ca.gov/toxics/id/taclist.htm
California Building Code. 2001. California Code of Regulations, Title 24, Part 2 Volume 1, Appendix Chapter 12, Interior Environment, Division 1, Ventilation, Section 1207:
2001 California Building Code, California Building Standards Commission. Sacramento, CA.

California Building Standards Commission (2014). 2013 California Green Building Standards Code. California Code of Regulations, Title 24, Part 11. California Building Standards Commission, Sacramento, CA http://www.bsc.ca.gov/Home/CALGreen.aspx.

California Energy Commission, PIER Program. CEC-500-2007-033. Final Report, ARB Contract 03-326. Available at: www.arb.ca.gov/research/apr/past/03-326.pdf. California Energy Commission, 2015. 2016 Building Energy Efficiency Standards for Residential and Nonresidential Buildings, California Code of Regulations, Title 24, Part 6. http://www.energy.ca.gov/2015publications/CEC-400-2015-037/CEC-400-2015-037- CMF.pdf
CDPH. 2017. Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers, Version 1.1.

California Department of Public Health, Richmond, CA.
https://www.cdph.ca.gov/Programs/CCDPHP/ DEODC/EHLB/IAQ/Pages/VOC.aspx.

Environmental Impact Report. SCH No. 2018011001.

Dudek. 2023. Initial Study/Mitigated Negative Declaration - Jefferson Fontana Apartments Project, Fontana, CA.

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EPA. 2011. Exposure Factors Handbook: 2011 Edition, Chapter 16 – Activity Factors.

Report EPA/600/R-09/052F, September 2011. U.S. Environmental Protection Agency, Washington, D.C.

Hodgson, A. T., D. Beal, J.E.R. McIlvaine. 2002. Sources of formaldehyde, other aldehydes and terpenes in a new manufactured house. Indoor Air 12: 235–242.

OEHHA (Office of Environmental Health Hazard Assessment). 2015. Air Toxics Hot Spots Program Risk Assessment Guidelines; Guidance Manual for Preparation of Health Risk Assessments.

OEHHA (Office of Environmental Health Hazard Assessment). 2017a. Proposition 65 Safe Harbor Levels. No Significant Risk Levels for Carcinogens and Maximum Allowable Dose Levels for Chemicals Causing Reproductive Toxicity. Available at:
http://www.oehha.ca.gov/prop65/pdf/safeharbor081513.pdf OEHHA - Office of Environmental Health Hazard Assessment. 2017b. All OEHHA Acute, 8-hour and Chronic Reference Exposure Levels. Available at:
http://oehha.ca.gov/air/allrels.html
Offermann, F. J. 2009. Ventilation and Indoor Air Quality in New Homes. California Air Resources Board and California Energy Commission, PIER Energy‐Related Environmental Research Program. Collaborative Report. CEC-500-2009-085. https://www.arb.ca.gov/research/apr/past/04-310.pdf
Offermann, F. J. and A. T. Hodgson. 2011. Emission Rates of Volatile Organic Compounds in New Homes. Proceedings Indoor Air 2011 (12th International Conference on Indoor Air Quality and Climate 2011), June 5-10, 2011, Austin, TX.

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Singer, B.C, Chan, W.R, Kim, Y., Offermann, F.J., and Walker I.S. 2020. Indoor Air Quality in California Homes with Code-Required Mechanical Ventilation. Indoor Air, Vol 30, Issue 5, 885-899.

South Coast Air Quality Management District (SCAQMD). 2015. California Environmental Quality Act Air Quality Handbook. South Coast Air Quality Management District, Diamond Bar, CA, http://www.aqmd.gov/home/rules-compliance/ceqa/airquality-analysis-handbook USGBC. 2014. LEED BD+C Homes v4. U.S. Green Building Council, Washington, D.C. http://www.usgbc.org/credits/homes/v4

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APPENDIX A

INDOOR FORMALDEHYDE CONCENTRATIONS

AND THE

CARB FORMALDEHYDE ATCM
With respect to formaldehyde emissions from composite wood products, the CARB ATCM regulations of formaldehyde emissions from composite wood products, do not assure healthful indoor air quality. The following is the stated purpose of the CARB ATCM regulation - The purpose of this airborne toxic control measure is to “reduce formaldehyde emissions from composite wood products, and finished goods that contain composite wood products, that are sold, offered for sale, supplied, used, or manufactured for sale in California”. In other words, the CARB ATCM regulations do not “assure healthful indoor air quality”, but rather “reduce formaldehyde emissions from composite wood products”.

Just how much protection do the CARB ATCM regulations provide building occupants from the formaldehyde emissions generated by composite wood products? Definitely some, but certainly the regulations do not “assure healthful indoor air quality” when CARB Phase 2 products are utilized. As shown in the Chan 2019 study of new California homes, the median indoor formaldehyde concentration was of 22.4 µg/m3 (18.2 ppb), which corresponds to a cancer risk of 112 per million for occupants with continuous exposure, which is more than 11 times the CEQA cancer risk of 10 per million.

Another way of looking at how much protection the CARB ATCM regulations provide building occupants from the formaldehyde emissions generated by composite wood products is to calculate the maximum number of square feet of composite wood product that can be in a residence without exceeding the CEQA cancer risk of 10 per million for occupants with continuous occupancy.

For this calculation I utilized the floor area (2,272 ft2), the ceiling height (8.5 ft), and the number of bedrooms (4) as defined in Appendix B (New Single-Family Residence Scenario) of the Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers, Version 1.1,

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2017, California Department of Public Health, Richmond, CA. https://www.cdph.ca.gov/Programs/CCDPHP/ DEODC/EHLB/IAQ/Pages/VOC.aspx. For the outdoor air ventilation rate I used the 2019 Title 24 code required mechanical ventilation rate (ASHRAE 62.2) of 106 cfm (180 m3/h) calculated for this model residence. For the composite wood formaldehyde emission rates I used the CARB ATCM Phase 2 rates. The calculated maximum number of square feet of composite wood product that can be in a residence, without exceeding the CEQA cancer risk of 10 per million for occupants with continuous occupancy are as follows for the different types of regulated composite wood products.

Medium Density Fiberboard (MDF) – 15 ft2 (0.7% of the floor area), or Particle Board – 30 ft2 (1.3% of the floor area), or
Hardwood Plywood – 54 ft2 (2.4% of the floor area), or
Thin MDF – 46 ft2 (2.0 % of the floor area).

For offices and hotels the calculated maximum amount of composite wood product (% of floor area) that can be used without exceeding the CEQA cancer risk of 10 per million for occupants, assuming 8 hours/day occupancy, and the California Mechanical Code minimum outdoor air ventilation rates are as follows for the different types of regulated composite wood products.

Medium Density Fiberboard (MDF) – 3.6 % (offices) and 4.6% (hotel rooms), or Particle Board – 7.2 % (offices) and 9.4% (hotel rooms), or Hardwood Plywood – 13 % (offices) and 17% (hotel rooms), or Thin MDF – 11 % (offices) and 14 % (hotel rooms)
Clearly the CARB ATCM does not regulate the formaldehyde emissions from composite wood products such that the potentially large areas of these products, such as for flooring, baseboards, interior doors, window and door trims, and kitchen and bathroom cabinetry,

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could be used without causing indoor formaldehyde concentrations that result in CEQA cancer risks that substantially exceed 10 per million for occupants with continuous occupancy.

Even composite wood products manufactured with CARB certified ultra low emitting formaldehyde (ULEF) resins do not insure that the indoor air will have concentrations of formaldehyde the meet the OEHHA cancer risks that substantially exceed 10 per million.

The permissible emission rates for ULEF composite wood products are only 11-15% lower than the CARB Phase 2 emission rates. Only use of composite wood products made with no-added formaldehyde resins (NAF), such as resins made from soy, polyvinyl acetate, or methylene diisocyanate can insure that the OEHHA cancer risk of 10 per million is met.

If CARB Phase 2 compliant or ULEF composite wood products are utilized in construction, then the resulting indoor formaldehyde concentrations should be determined in the design phase using the specific amounts of each type of composite wood product, the specific formaldehyde emission rates, and the volume and outdoor air ventilation rates of the indoor spaces, and all feasible mitigation measures employed to reduce this impact (e.g. use less formaldehyde containing composite wood products and/or incorporate mechanical systems capable of higher outdoor air ventilation rates). See the procedure described earlier (i.e. Pre-Construction Building Material/Furnishing Formaldehyde Emissions Assessment) to insure that the materials selected achieve acceptable cancer risks from material off gassing of formaldehyde.

Alternatively, and perhaps a simpler approach, is to use only composite wood products (e.g. hardwood plywood, medium density fiberboard, particleboard) for all interior finish systems that are made with CARB approved no-added formaldehyde (NAF) resins.

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P: (626) 314-3821
F: (626) 389-5414
E: [email protected]
Mitchell M. Tsai
Law Firm
139 South Hudson Avenue
Suite 200
Pasadena, California 91101

VIA E-MAIL
November 20, 2023
Planning Commission
City of Fontana
8353 Sierra Ave.

Fontana, CA 92335
Em: [email protected]
RE: Agenda Item No. PH-A: Jefferson Fontana Apartment Project Dear Chair Fort and Honorable Commissioners,
On behalf of the Western States Regional Council of Carpenters (“Western States Carpenters” or “WSRCC”), my Office is submitting these comments to the City of Fontana (“City”) regarding the Mitigates Negative Declaration (“MND”) for the Jefferson Fontana Apartment Project (“Project”).

The Project involves the construction of a 437-unit multifamily development, 4,000 square feet of retail space, 14,150 square feet of leasing and amenity space, and associated improvements.

The Western States Carpenters is a labor union representing over 90,000 union carpenters in 12 states, including California, and has a strong interest in well-ordered land use planning and in addressing the environmental impacts of development projects. Individual members of the Western States Carpenters live, work, and recreate in the City and surrounding communities and would be directly affected by the Project’s environmental impacts.

The Western States Carpenters expressly reserves the right to supplement these comments at or prior to hearings on the Project, and at any later hearing and proceeding related to this Project. Gov. Code, § 65009, subd. (b); Pub. Res. Code, § 21177, subd. (a); see Bakersfield Citizens for Local Control v. Bakersfield (2004) 124 Cal.App.4th 1184, 1199-1203; see also Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal.App.4th 1109, 1121.

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The Western States Carpenters incorporates by reference all comments raising issues regarding the Environmental Impact Report (EIR) submitted prior to certification of the EIR for the Project. See Citizens for Clean Energy v City of Woodland (2014) 225 Cal.App.4th 173, 191 (finding that any party who has objected to the project’s environmental documentation may assert any issue timely raised by other parties).

I. THE CITY SHOULD REQUIRE THE USE OF A LOCAL
WORKFORCE TO BENEFIT THE COMMUNITY’S ECONOMIC

DEVELOPMENT AND ENVIRONMENT
The City should require the Project to be built using a local workers who have graduated from a Joint Labor-Management Apprenticeship Program approved by the State of California, have at least as many hours of on-the-job experience in the applicable craft which would be required to graduate from such a state-approved apprenticeship training program, or who are registered apprentices in a state-approved apprenticeship training program.

Community benefits such as local hire can also be helpful to reduce environmental impacts and improve the positive economic impact of the Project. Local hire provisions requiring that a certain percentage of workers reside within 10 miles or less of the Project site can reduce the length of vendor trips, reduce greenhouse gas emissions, and provide localized economic benefits. As environmental consultants Matt Hagemann and Paul E. Rosenfeld note:
[A]ny local hire requirement that results in a decreased worker trip length from the default value has the potential to result in a reduction of construction-related GHG emissions, though the significance of the reduction would vary based on the location and urbanization level of the project site.

March 8, 2021 SWAPE Letter to Mitchell M. Tsai re Local Hire Requirements and Considerations for Greenhouse Gas Modeling.

Workforce requirements promote the development of skilled trades that yield sustainable economic development. As the California Workforce Development Board and the University of California, Berkeley Center for Labor Research and Education concluded:
[L]abor should be considered an investment rather than a cost—and investments in growing, diversifying, and upskilling California’s workforce

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can positively affect returns on climate mitigation efforts. In other words, well-trained workers are key to delivering emissions reductions and moving California closer to its climate targets.1
Furthermore, workforce policies have significant environmental benefits given that they improve an area’s jobs-housing balance, decreasing the amount and length of job commutes and the associated greenhouse gas (GHG) emissions. In fact, on May 7, 2021, the South Coast Air Quality Management District found that that the “[u]se of a local state-certified apprenticeship program” can result in air pollutant reductions. 2 Locating jobs closer to residential areas can have significant environmental benefits.

As the California Planning Roundtable noted in 2008:

People who live and work in the same jurisdiction would be more likely to take transit, walk, or bicycle to work than residents of less balanced communities and their vehicle trips would be shorter. Benefits would include potential reductions in both vehicle miles traveled and vehicle hours traveled.3
Moreover, local hire mandates and skill-training are critical facets of a strategy to reduce vehicle miles traveled (VMT). As planning experts Robert Cervero and Michael Duncan have noted, simply placing jobs near housing stock is insufficient to achieve VMT reductions given that the skill requirements of available local jobs must match those held by local residents.4 Some municipalities have even tied local hire and 1 California Workforce Development Board (2020) Putting California on the High Road: A Jobs and Climate Action Plan for 2030 at p. ii, available at https://laborcenter.berkeley.edu/ wp-content/uploads/2020/09/Putting-California-on-the-High-Road.pdf. 2 South Coast Air Quality Management District (May 7, 2021) Certify Final Environmental Assessment and Adopt Proposed Rule 2305 – Warehouse Indirect Source Rule – Warehouse Actions and Investments to Reduce Emissions Program, and Proposed Rule 316 – Fees for Rule 2305, Submit Rule 2305 for Inclusion Into the SIP, and Approve Supporting Budget Actions, available at http://www.aqmd.gov/docs/defaultsource/Agendas/Governing-Board/2021/2021-May7-027.pdf?sfvrsn=10. 3 California Planning Roundtable (2008) Deconstructing Jobs-Housing Balance at p. 6, available at https://cproundtable.org/static/media/uploads/publications/cpr-jobshousing.pdf 4 Cervero, Robert and Duncan, Michael (2006) Which Reduces Vehicle Travel More: JobsHousing Balance or Retail-Housing Mixing? Journal of the American Planning Association 72 (4), 475-490, 482, available at http://reconnectingamerica.org/assets/Uploads/UTCT825.pdf.

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other workforce policies to local development permits to address transportation issues. Cervero and Duncan note that:

In nearly built-out Berkeley, CA, the approach to balancing jobs and housing is to create local jobs rather than to develop new housing. The city’s First Source program encourages businesses to hire local residents, especially for entry- and intermediate-level jobs, and sponsors vocational training to ensure residents are employment-ready. While the program is voluntary, some 300 businesses have used it to date, placing more than 3,000 city residents in local jobs since it was launched in 1986. When needed, these carrots are matched by sticks, since the city is not shy about negotiating corporate participation in First Source as a condition of approval for development permits.

Recently, the State of California verified its commitment towards workforce development through the Affordable Housing and High Road Jobs Act of 2022, otherwise known as Assembly Bill No. 2011 (“AB2011”). AB2011 amended the Planning and Zoning Law to allow ministerial, by-right approval for projects being built alongside commercial corridors that meet affordability and labor requirements.

The City should consider utilizing local workforce policies and requirements to benefit the local area economically and to mitigate greenhouse gas, improve air quality, and reduce transportation impacts.

II. THE CITY SHOULD IMPOSE TRAINING REQUIREMENTS FOR
THE PROJECT’S CONSTRUCTION ACTIVITIES TO PREVENT
COMMUNITY SPREAD OF COVID-19 AND OTHER INFECTIOUS

DISEASES
Construction work has been defined as a Lower to High-risk activity for COVID-19 spread by the Occupations Safety and Health Administration. Recently, several construction sites have been identified as sources of community spread of COVID19.5

5 Santa Clara County Public Health (June 12, 2020) COVID-19 CASES AT

CONSTRUCTION SITES HIGHLIGHT NEED FOR CONTINUED VIGILANCE IN SECTORS THAT HAVE REOPENED, available at https://www.sccgov.org/sites/ covid19/Pages/press-release-06-12-2020-cases-at-construction-sites.aspx.

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The Western States Carpenters recommend that the City adopt additional requirements to mitigate public health risks from the Project’s construction activities.

The Western States Carpenters requests that the City require safe on-site construction work practices as well as training and certification for any construction workers on the Project Site.

In particular, based upon the Western States Carpenters’ experience with safe construction site work practices, the Western States Carpenters recommends that the City require that while construction activities are being conducted at the Project Site:

Construction Site Design:
• The Project Site will be limited to two controlled entry points.
• Entry points will have temperature screening technicians taking temperature readings when the entry point is open. • The Temperature Screening Site Plan shows details
regarding access to the Project Site and Project Site logistics for conducting temperature screening.
• A 48-hour advance notice will be provided to all trades prior to the first day of temperature screening.
• The perimeter fence directly adjacent to the entry points will be clearly marked indicating the appropriate 6-foot social distancing position for when you approach the screening area. Please reference the Apex temperature screening site map for additional details.
• There will be clear signage posted at the project site directing you through temperature screening.
• Provide hand washing stations throughout the construction site.

Testing Procedures:
• The temperature screening being used are non-contact
devices.
• Temperature readings will not be recorded.

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• Personnel will be screened upon entering the testing center and should only take 1-2 seconds per individual.
• Hard hats, head coverings, sweat, dirt, sunscreen or any other cosmetics must be removed on the forehead before
temperature screening.
• Anyone who refuses to submit to a temperature screening or does not answer the health screening questions will be
refused access to the Project Site.
• Screening will be performed at both entrances from 5:30 am to 7:30 am.; main gate [ZONE 1] and personnel gate
[ZONE 2]
• After 7:30 am only the main gate entrance [ZONE 1] will continue to be used for temperature testing for anybody gaining entry to the project site such as returning personnel, deliveries, and visitors.
• If the digital thermometer displays a temperature reading above 100.0 degrees Fahrenheit, a second reading will be taken to verify an accurate reading.
• If the second reading confirms an elevated temperature, DHS will instruct the individual that he/she will not be allowed to enter the Project Site. DHS will also instruct the individual to promptly notify his/her supervisor and his/her human resources (HR) representative and provide them with a copy of Annex A.

Planning
• Require the development of an Infectious Disease
Preparedness and Response Plan that will include basic
infection prevention measures (requiring the use of personal protection equipment), policies and procedures for prompt identification and isolation of sick individuals, social distancing (prohibiting gatherings of no more than 10
people including all-hands meetings and all-hands lunches)

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communication and training and workplace controls that
meet standards that may be promulgated by the Center for Disease Control, Occupational Safety and Health
Administration, Cal/OSHA, California Department of
Public Health or applicable local public health agencies.6 The United Brotherhood of Carpenters and Carpenters International Training Fund has developed COVID-19 Training and Certification to ensure that Carpenter union members and apprentices conduct safe work practices. The Agency should require that all construction workers undergo COVID-19 Training and Certification before being allowed to conduct construction activities at the Project Site.

The Western States Carpenters has also developed a rigorous Infection Control Risk Assessment (“ICRA”) training program to ensure it delivers a workforce that understands how to identify and control infection risks by implementing protocols to protect themselves and all others during renovation and construction projects in healthcare environments.7
ICRA protocols are intended to contain pathogens, control airflow, and protect patients during the construction, maintenance and renovation of healthcare facilities.

ICRA protocols prevent cross contamination, minimizing the risk of secondary infections in patients at hospital facilities.

The City should require the Project to be built using a workforce trained in ICRA protocols.

III. THE CITY SHOULD PREPARE AN ENVIRONMENTAL IMPACT

REPORT FOR THE PROJECT
CEQA is a California statute designed to inform decision makers and the public about the potential, significant environmental effects of a project. 14 California Code of 6 See also The Center for Construction Research and Training, North America’s Building Trades Unions (April 27 2020) NABTU and CPWR COVIC-19 Standards for U.S Constructions Sites, available at https://www.cpwr.com/sites/default/files/NABTU_ CPWR_Standards_COVID-19.pdf; Los Angeles County Department of Public Works (2020) Guidelines for Construction Sites During COVID-19 Pandemic, available at https://dpw.lacounty.gov/building-and-safety/docs/pw_guidelines-construction-sites.pdf. 7 For details concerning Southwest Carpenters’s ICRA training program, see https://icrahealthcare.com/.

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Regulations (“CEQA Guidelines”) § 15002(a)(1).8 At its core, “[i]ts purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made.” Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 564.

To achieve this purpose, CEQA mandates preparation of an Environmental Impact Report (“EIR”) for projects so that the foreseeable impacts of pursuing the project can be understood and weighed. Communities for a Better Environment v. Richmond (2010) 184 Cal. App. 4th 70, 80. The EIR requirement “is the heart of CEQA.” CEQA Guidelines, § 15003(a).

A strong presumption in favor of requiring preparation of an EIR is built into CEQA.

This presumption is reflected in what is known as the "fair argument" standard, under which an agency must prepare an EIR whenever substantial evidence in the record supports a fair argument that a project may have a significant effect on the environment. Quail Botanical Gardens Found., Inc. v. City of Encinitas (1994) 29 Cal. App. 4th 1597, 1602; Friends of "B" St. v. City of Hayward (1980) 106 Cal. 3d 988, 1002.

The fair argument test stems from the statutory mandate that an EIR be prepared for any project that "may have a significant effect on the environment." PRC § 21151; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. App. 3d 68, 75; Jensen v. City of Santa Rosa (2018) 23 Cal. App. 5th 877, 884. Under this test, if a proposed project is not exempt and may cause a significant effect on the environment, the lead agency must prepare an EIR. PRC §§ 21100(a), 21151; CEQA Guidelines § 15064(a)(1), (f)(1). An EIR may be dispensed with only if the lead agency finds no substantial evidence in the initial study or elsewhere in the record that the project may have a significant effect on the environment. Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal. App. 4th 768, 785. In such a situation, the agency must adopt a negative declaration. PRC § 21080(c)(1); CEQA Guidelines §§ 15063(b)(2), 15064(f)(3). "Significant effect upon the environment" is defined as "a substantial or potentially substantial adverse change in the environment." PRC § 21068; CEQA Guidelines § 8 The CEQA Guidelines, codified in Title 14 of the California Code of Regulations, section 15000 et seq, are regulatory guidelines promulgated by the state Natural Resources Agency for the implementation of CEQA. (Cal. Pub. Res. Code § 21083.) The CEQA Guidelines are given “great weight in interpreting CEQA except when . . . clearly unauthorized or erroneous.” Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal. 4th 204, 217.

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15382. A project "may" have a significant effect on the environment if there is a "reasonable probability" that it will result in a significant impact. No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d at 83 fn. 16; Sundstrom v. County of Mendocino (1988) 202 Cal.

App. 3d 296, 309. If any aspect of the project may result in a significant impact on the environment, an EIR must be prepared even if the overall effect of the project is beneficial. CEQA Guidelines § 15063(b)(1). See County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal. App. 4th 1544, 1580.

This standard sets a "low threshold" for preparation of an EIR. Consolidated Irrig. Dist. v. City of Selma (2012) 204 Cal. App. 4th 187, 207; Nelson v. County of Kern (2010) 190 Cal. App. 4th 252; Pocket Protectors v. City of Sacramento (2004) 124 Cal. App. 4th 903, 928; Bowman v. City of Berkeley (2004) 122 Cal. App. 4th 572, 580; Citizen Action to Serve All Students v. Thornley (1990) 222 Cal. App. 3d 748, 754; Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296, 310. If substantial evidence in the record supports a fair argument that the project may have a significant environmental effect, the lead agency must prepare an EIR even if other substantial evidence before it indicates the project will have no significant effect. See Jensen v. City of Santa Rosa (2018) 23 Cal. App. 5th 877, 886; Clews Land & Livestock v. City of San Diego (2017) 19 Cal. App. 5th 161, 183; Stanislaus Audubon Soc'y, Inc. v. County of Stanislaus (1995) 33 Cal.

App. 4th 144, 150; Brentwood Ass'n for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal. App. 3d 491; Friends of "B" St. v. City of Hayward (1980) 106 Cal. App. 3d 988; CEQA Guidelines § 15064(f)(1).

As explained below, the MND fails to support all of its findings with sufficient analysis and substantial evidence and fails to incorporate adequate mitigation measures. Therefore, there is a fair argument that the Project will have a significant effect on the environment, triggering the “low threshold” standard for preparation of an EIR.

II. THE CITY MUST, AT THE VERY LEAST, REVISE AND

RECIRCULATE THE MND
Section 15073.5 of the CEQA Guidelines provides that a negative declaration must be recirculated whenever the document must be substantially revised. A substantial revision includes the identification of new, avoidable significant effects requiring mitigation measures or project revisions to be added to reduce the effect to less than significant levels or upon the agency determining that a proposed mitigation measure or project change would not reduce a potential impact to insignificance. Id.

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Additionally, when new information is brought to light showing that an impact previously discussed in an MND and found to be insignificant with or without mitigation in the MND’s analysis has the potential for a significant environmental impact supported by substantial evidence, the MND must consider and resolve the conflict in the evidence. See Visalia Retail, L.P. v. City of Visalia (2018) 20 Cal. App. 5th 1, 13, 17; see also Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal. App. 4th 1099, 1109.

In light of the MND’s failure to substantiate all of its findings, provide adequate mitigation measures, and fully assess all relevant factors, the Project requires significant revisions and resolution of conflicts in evidence. Therefore, at a minimum, the City must revise and recirculate the MND if it does not prepare an EIR for the Project.

A. The MND’s Mitigation Measures Are Insufficient
If a project has a significant effect on the environment, an agency may approve the project only upon finding that it has “eliminated or substantially lessened all significant effects on the environment where feasible” and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns”.

CEQA Guidelines § 15092(b)(2)(A–B).

CEQA mitigation measures proposed and adopted are required to describe what actions will be taken to reduce or avoid an environmental impact. (CEQA Guidelines § 15126.4(a)(1)(B) [providing “[f]ormulation of mitigation measures should not be deferred until some future time.”].) While the same Guidelines section 15126.5(a)(1)(B) acknowledges an exception to the rule against deferrals, such exception is narrowly proscribed to situations where it is impractical or infeasible to include those details during the project's environmental review.

Here, the MND’s mitigation measures are improperly deferred or fail to adequately mitigate the Project’s impacts as follows:
i. Biological Resources
The MND provides that “stands of ornamental trees along the southern and norther [P]roject site boundaries could support foraging and nesting opportunities for raptors and migratory birds protected by the Migratory Bird Treaty Act and California Fish and Game (CFG) Code Section 3500. MND at 32. Accordingly, to mitigate impacts to nesting birds, the MND imposes mitigation measure MM-BIO-1, which requires that pre-construction nesting surveys be conducted during the nesting season. Id. at 32-33.

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However, such measure defines the nesting period as February-September, contrary to the California Department of Fish and Wildlife’s (“CDFW”) finding that nesting may commence before and/or after this timeframe. “For example, some species of raptors (e g. owls, hawks, etc.) may commence nesting activities in January.”9 The nesting period on the mitigation measure should be revised to account for these findings.

Moreover, the measure fails to specify that surveys should be consistent with CDFW protocols, including the Staff Report on Burrowing Owl Mitigation, State of California Natural Resource Agency, Department of Fish and Game, May 7, 2012. Such specification is necessary to ensure that the measure, and surveys which it requires, are adequate.
ii. Cultural Resources
In order to mitigate impacts related to the inadvertent discovery of yet unknown historical resources, the MND requires, amongst other measures, preparation of a Cultural Resource Monitoring and Inadvertent Discovery Plan. MND at 37. However, the MND defers preparation of the plan to some unspecified time in the future. Id. at 37-38 [“A qualified archaeologist shall be retained to assess information available. . . [the] Plan shall define the process to be followed for the identification and management of cultural resources in the Project area during construction”]. Nor does the MND provide any specifications as to what exactly the plan must include and instead blanketly provides that “[t]he Plan shall also include the conditions under which monitoring is required, if at all”. Id. Absent preparation of the plan, any explanation as to why it is not feasible to prepare the plan at this time, and any specification as to when the plan must be prepared and what it must include, the measure is improperly deferred.
iii. Hazards & Hazardous Materials
Similarly, the MND’s hazards and hazardous material mitigation measure, imposed to mitigate the Project’s contaminated soil containing diesel-range total petroleum hydrocarbon concentrations that exceed the allowable limit of total petroleum hydrocarbons in soil in a residential setting (MND at 60), is improperly deferred.

Specifically, the MND requires that “[p]rior to the issuance of grading permits, the 9 See CDFW November 18, 2021 letter to City of Adelanto, available at https://files.ceqanet.opr.ca.gov/273819-
1/attachment/zo76RgD7dUdj5BLJTEhEMdf74g6f100RrKiWBQSquhFFe5l0X53rLsbLSG MPRXgXM4AaYnJSTfZB6JpY0

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project applicant shall retain a qualified contractor to remove and dispose of contaminated soil. . . in accordance with all applicable local, state, and federal guidelines related to hazardous materials handling. A summary of the soil removal and disposal activities shall be provided to the City of Fontana within a reasonable timeframe following completion of these activities.” MND at 61. Accordingly, again, it appears as though the removal has not yet been conducted, absent any explanation as to why it is not feasible to do so at this time, nor is any specification provided as to when the summary of removal must be provided to the City. Without these necessary removals and specifications, the measure is improperly deferred and there is a colorful argument that the hazardous material impacts have not in fact been mitigated. iv. Noise
The MND finds that “Project-attributed construction noise exposure levels at the nearest offsite residential land uses would have the potential to exceed an FTA guidance-based threshold and thereby cause a significant impact.” MND at 73.

Accordingly, the MND requires, amongst other measures, implementation of an 8 foot tall temporary noise barrier along the southern Project site property line, “where the property line is adjacent to the nearest noise sensitive receptor”. Id. However, the measures fails to include several critical specifications.

First, the measure fails to note how much of a noise reduction the barrier will result in and instead merely provides that the measure, in addition to other requirements, “would reduce construction noise to below 80 dBA at all nearby offsite noise-sensitive receptors.” Id. at 84. The noise reduction which the barrier will result in is crucial to allow both the City and members of the public to understand the efficacy of the barrier.

Second, the measure fails to specify whether the barrier will also reduce noise levels at elevated sources above ground as the budling construction progresses. Moreover, there is no indication that the temporary noise barrier will be also moveable to ensure it properly reduces the sound of the construction noise at its source. As noted by the court in AIDS HEALTHCARE FOUNDATION v. CITY OF LOS ANGELES, LASC Case Number: 19STCP05445 (April 5, 2021):
“The City’s response actually concedes the flaw in the efficacy of MM 1- 2 as it is written. Effective mitigation to sensitive receptors requires the noise barrier systems to be moved. The City argues MM 1-2 is effective

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because ‘the noise barriers are moveable, meaning that they move in concert with any piece of construction equipment to ensure the equipment does not operate with an unobstructed line of sight to a receptor.’ (Opposition Brief 35:15-17.) The City recognizes the barriers must be moveable ‘to shield construction activities, no matter where they occur onsite.’ (Opposition Brief 35:18-19.)
Despite the City’s recognition the noise barriers must be moved throughout the Project during construction to effectively mitigate construction-related noise, MM 1-2 does not require such movement. It is not about wordsmithing-it is about enforceability and efficacy. The City’s attempts to distinguish between ‘Project boundaries’ and ‘property boundaries’ is unpersuasive.24 Such a distinction-if there is one-does not resolve the ambiguity. Nothing in MM 1-2 requires any noise barriers to be moved.*25 Accordingly, the court finds substantial evidence does not support the City’s conclusion MM 1-2 is an effective mitigation measure.” (Exhibit D, p. 20 [Ruling].)
Absent such specifications, the mitigation measure is legally inadequate as they cannot support a finding that the Project’s noise impacts may be reduced to the level identified.

B. The MND’s Energy Findings and Analysis Are Insufficient An analysis of a project's energy use “should include the project's energy use for all project phases and components, including transportation-related energy, during construction and operation. In addition to building code compliance, other relevant considerations may include, among others, the project's size, location, orientation, equipment use and any renewable energy features that could be incorporated into the project. CEQA Guidelines, § 15126.2, subd. (b).

Moreover, a project’s energy impact analysis is insufficient where it merely requires “compliance with title 24 of the California Code of Regulations and other California green building codes”. Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal. App. 4th 256, 264; California Clean Energy Comm. v. City of Woodland (2014) 225 Cal. App. 4th 173, 212.

Here, the MND fails to comply with such requirements. Although the MND determines that the Project would create additional electricity and natural gas demand

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as well as petroleum consumption during both the Project’s construction and operation, it ultimately finds less than significant impacts merely because the Project “would comply with Title 24 conservation standards. . . [and therefore not] result in wasteful, inefficient, or unnecessary consumption of energy.” MND at 45. Thus, the MND’s less than significant findings cannot be solely dependent on title 24 compliance and must in fact assess and analyze all other relevant factors.

C. The DEIR Fails to Support its Findings on Land Use with Substantial Evidence
Each California city and county must adopt a comprehensive, long-term general plan governing development. Napa Citizens for Honest Gov. v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 352, citing Gov. Code §§ 65030, 65300. The general plan sits at the top of the land use planning hierarchy, and serves as a “constitution” or “charter” for all future development. DeVita v. County of Napa (1995) 9 Cal.4th 763, 773; Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540.

General plan consistency is “the linchpin of California’s land use and development laws; it is the principle which infused the concept of planned growth with the force of law.” Debottari v. Norco City Council (1985) 171 Cal.App.3d 1204, 1213. It is well established that development projects may not be approved if they interfere with, or frustrate, the general plan’s policies and objectives. See Napa Citizens, 91 Cal.App.4th at 378-79; see also Lesher, 52 Cal.3d at 544.

Here, the MND fails to analyze the consistency of the Project’s requested entitlements (i.e. tentative parcel map and design review approval) with the General Plan. MND at

68. Nor does the MND analyze the Project’s consistency with the General Plan goals and policies. Id. Without conducting these analyses, the MND’s blanket conclusion that the Project is consistent with the City’s General Plan and zoning code is speculatory and unsupported and, for this reason too, the MND must be revised and recirculated.

IV. CONCLUSION
In sum, WSRCC requests that the City require a local workforce, that the City impose training requirements for the Project’s construction activities to prevent community spread of COVID-19 and other infectious diseases, and that the City prepare an EIR for the Project or, at the very least, revise and recirculate the MND for the Project to

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address the aforementioned concerns. If the City has any questions, feel free to contact my Office.

Sincerely,
______________________
Talia Nimmer
Attorneys for Western States Regional
Council of Carpenters
Attached:

March 8, 2021 SWAPE Letter to Mitchell M. Tsai re Local Hire Requirements and Considerations for Greenhouse Gas Modeling (Exhibit A); Air Quality and GHG Expert Paul Rosenfeld CV (Exhibit B); Air Quality and GHG Expert Matt Hagemann CV (Exhibit C); and Ruling in AHF v. City of Los Angeles (Exhibit D).

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P: (626) 314-3821
F: (626) 389-5414
E: [email protected]
Mitchell M. Tsai
Law Firm
139 South Hudson Avenue
Suite 200
Pasadena, California 91101

VIA E-MAIL
December 15, 2023
Planning Commission
City of Fontana
8353 Sierra Ave.

Fontana, CA 92335
Em: [email protected]
RE: 10120 Juniper Avenue Project (Master Case No. 22-145, Tentative Parcel Map No. 22-034 (TPM No. 20669) and Design Review No. 22-065)
Dear Chair Fort and Honorable Commissioners,
On behalf of the Western States Regional Council of Carpenters (“Western States Carpenters” or “WSRCC”), my Office is submitting these comments to the City of Fontana (“City”) for the December 19, 2023 Planning Commission meeting regarding the Mitigated Negative Declaration (“MND”) for the 10120 Juniper Avenue Project (Item PH-A) (“Project”).

The Project involves the construction of a 437-unit multifamily development, 4,000 square feet of retail space, 14,150 square feet of leasing and amenity space, and associated improvements.

The Western States Carpenters is a labor union representing over 90,000 union carpenters in 12 states, including California, and has a strong interest in well-ordered land use planning and in addressing the environmental impacts of development projects. Individual members of the Western States Carpenters live, work, and recreate in the City and surrounding communities and would be directly affected by the Project’s environmental impacts.

The Western States Carpenters expressly reserves the right to supplement these comments at or prior to hearings on the Project, and at any later hearing and proceeding related to this Project. Gov. Code, § 65009, subd. (b); Pub. Res. Code, § 21177, subd. (a); see Bakersfield Citizens for Local Control v. Bakersfield (2004) 124

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Cal.App.4th 1184, 1199-1203; see also Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal.App.4th 1109, 1121.

The Western States Carpenters incorporates by reference all comments raising issues regarding the Environmental Impact Report (EIR) submitted prior to certification of the EIR for the Project. See Citizens for Clean Energy v City of Woodland (2014) 225 Cal.App.4th 173, 191 (finding that any party who has objected to the project’s environmental documentation may assert any issue timely raised by other parties).

I. THE CITY SHOULD REQUIRE THE USE OF A LOCAL
WORKFORCE TO BENEFIT THE COMMUNITY’S ECONOMIC

DEVELOPMENT AND ENVIRONMENT
The City should require the Project to be built using a local workers who have graduated from a Joint Labor-Management Apprenticeship Program approved by the State of California, have at least as many hours of on-the-job experience in the applicable craft which would be required to graduate from such a state-approved apprenticeship training program, or who are registered apprentices in a state-approved apprenticeship training program.

Community benefits such as local hire can also be helpful to reduce environmental impacts and improve the positive economic impact of the Project. Local hire provisions requiring that a certain percentage of workers reside within 10 miles or less of the Project site can reduce the length of vendor trips, reduce greenhouse gas emissions, and provide localized economic benefits. As environmental consultants Matt Hagemann and Paul E. Rosenfeld note:
[A]ny local hire requirement that results in a decreased worker trip length from the default value has the potential to result in a reduction of construction-related GHG emissions, though the significance of the reduction would vary based on the location and urbanization level of the project site.

March 8, 2021 SWAPE Letter to Mitchell M. Tsai re Local Hire Requirements and Considerations for Greenhouse Gas Modeling.

Workforce requirements promote the development of skilled trades that yield sustainable economic development. As the California Workforce Development Board and the University of California, Berkeley Center for Labor Research and Education concluded:

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[L]abor should be considered an investment rather than a cost—and investments in growing, diversifying, and upskilling California’s workforce can positively affect returns on climate mitigation efforts. In other words, well-trained workers are key to delivering emissions reductions and moving California closer to its climate targets.1
Furthermore, workforce policies have significant environmental benefits given that they improve an area’s jobs-housing balance, decreasing the amount and length of job commutes and the associated greenhouse gas (GHG) emissions. In fact, on May 7, 2021, the South Coast Air Quality Management District found that that the “[u]se of a local state-certified apprenticeship program” can result in air pollutant reductions.2

Locating jobs closer to residential areas can have significant environmental benefits.

As the California Planning Roundtable noted in 2008:

People who live and work in the same jurisdiction would be more likely to take transit, walk, or bicycle to work than residents of less balanced communities and their vehicle trips would be shorter. Benefits would include potential reductions in both vehicle miles traveled and vehicle hours traveled.3
Moreover, local hire mandates and skill-training are critical facets of a strategy to reduce vehicle miles traveled (VMT). As planning experts Robert Cervero and Michael Duncan have noted, simply placing jobs near housing stock is insufficient to achieve VMT reductions given that the skill requirements of available local jobs must match those held by local residents.4 Some municipalities have even tied local hire and 1 California Workforce Development Board (2020) Putting California on the High Road: A Jobs and Climate Action Plan for 2030 at p. ii, available at https://laborcenter.berkeley.edu/ wp-content/uploads/2020/09/Putting-California-on-the-High-Road.pdf. 2 South Coast Air Quality Management District (May 7, 2021) Certify Final Environmental Assessment and Adopt Proposed Rule 2305 – Warehouse Indirect Source Rule – Warehouse Actions and Investments to Reduce Emissions Program, and Proposed Rule 316 – Fees for Rule 2305, Submit Rule 2305 for Inclusion Into the SIP, and Approve Supporting Budget Actions, available at http://www.aqmd.gov/docs/defaultsource/Agendas/Governing-Board/2021/2021-May7-027.pdf?sfvrsn=10. 3 California Planning Roundtable (2008) Deconstructing Jobs-Housing Balance at p. 6, available at https://cproundtable.org/static/media/uploads/publications/cpr-jobshousing.pdf 4 Cervero, Robert and Duncan, Michael (2006) Which Reduces Vehicle Travel More: JobsHousing Balance or Retail-Housing Mixing? Journal of the American Planning Association

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other workforce policies to local development permits to address transportation issues. Cervero and Duncan note that:

In nearly built-out Berkeley, CA, the approach to balancing jobs and housing is to create local jobs rather than to develop new housing. The city’s First Source program encourages businesses to hire local residents, especially for entry- and intermediate-level jobs, and sponsors vocational training to ensure residents are employment-ready. While the program is voluntary, some 300 businesses have used it to date, placing more than 3,000 city residents in local jobs since it was launched in 1986. When needed, these carrots are matched by sticks, since the city is not shy about negotiating corporate participation in First Source as a condition of approval for development permits.

Recently, the State of California verified its commitment towards workforce development through the Affordable Housing and High Road Jobs Act of 2022, otherwise known as Assembly Bill No. 2011 (“AB2011”). AB2011 amended the Planning and Zoning Law to allow ministerial, by-right approval for projects being built alongside commercial corridors that meet affordability and labor requirements.

The City should consider utilizing local workforce policies and requirements to benefit the local area economically and to mitigate greenhouse gas, improve air quality, and reduce transportation impacts.

II. THE CITY SHOULD IMPOSE TRAINING REQUIREMENTS FOR
THE PROJECT’S CONSTRUCTION ACTIVITIES TO PREVENT
COMMUNITY SPREAD OF COVID-19 AND OTHER INFECTIOUS

DISEASES
Construction work has been defined as a Lower to High-risk activity for COVID-19 spread by the Occupations Safety and Health Administration. Recently, several construction sites have been identified as sources of community spread of COVID19.5

72 (4), 475-490, 482, available at http://reconnectingamerica.org/assets/Uploads/UTCT825.pdf. 5 Santa Clara County Public Health (June 12, 2020) COVID-19 CASES AT

CONSTRUCTION SITES HIGHLIGHT NEED FOR CONTINUED VIGILANCE IN SECTORS THAT HAVE REOPENED, available at https://www.sccgov.org/sites/ covid19/Pages/press-release-06-12-2020-cases-at-construction-sites.aspx.

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The Western States Carpenters recommend that the City adopt additional requirements to mitigate public health risks from the Project’s construction activities.

The Western States Carpenters requests that the City require safe on-site construction work practices as well as training and certification for any construction workers on the Project Site.

In particular, based upon the Western States Carpenters’ experience with safe construction site work practices, the Western States Carpenters recommends that the City require that while construction activities are being conducted at the Project Site:

Construction Site Design:
• The Project Site will be limited to two controlled entry points.
• Entry points will have temperature screening technicians taking temperature readings when the entry point is open. • The Temperature Screening Site Plan shows details
regarding access to the Project Site and Project Site logistics for conducting temperature screening.
• A 48-hour advance notice will be provided to all trades prior to the first day of temperature screening.
• The perimeter fence directly adjacent to the entry points will be clearly marked indicating the appropriate 6-foot social distancing position for when you approach the screening area. Please reference the Apex temperature screening site map for additional details.
• There will be clear signage posted at the project site directing you through temperature screening.
• Provide hand washing stations throughout the construction site.

Testing Procedures:
• The temperature screening being used are non-contact
devices.
• Temperature readings will not be recorded.

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• Personnel will be screened upon entering the testing center and should only take 1-2 seconds per individual.
• Hard hats, head coverings, sweat, dirt, sunscreen or any other cosmetics must be removed on the forehead before
temperature screening.
• Anyone who refuses to submit to a temperature screening or does not answer the health screening questions will be
refused access to the Project Site.
• Screening will be performed at both entrances from 5:30 am to 7:30 am.; main gate [ZONE 1] and personnel gate
[ZONE 2]
• After 7:30 am only the main gate entrance [ZONE 1] will continue to be used for temperature testing for anybody gaining entry to the project site such as returning personnel, deliveries, and visitors.
• If the digital thermometer displays a temperature reading above 100.0 degrees Fahrenheit, a second reading will be taken to verify an accurate reading.
• If the second reading confirms an elevated temperature, DHS will instruct the individual that he/she will not be allowed to enter the Project Site. DHS will also instruct the individual to promptly notify his/her supervisor and his/her human resources (HR) representative and provide them with a copy of Annex A.

Planning
• Require the development of an Infectious Disease
Preparedness and Response Plan that will include basic
infection prevention measures (requiring the use of personal protection equipment), policies and procedures for prompt identification and isolation of sick individuals, social distancing (prohibiting gatherings of no more than 10
people including all-hands meetings and all-hands lunches)

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communication and training and workplace controls that
meet standards that may be promulgated by the Center for Disease Control, Occupational Safety and Health
Administration, Cal/OSHA, California Department of
Public Health or applicable local public health agencies.6 The United Brotherhood of Carpenters and Carpenters International Training Fund has developed COVID-19 Training and Certification to ensure that Carpenter union members and apprentices conduct safe work practices. The Agency should require that all construction workers undergo COVID-19 Training and Certification before being allowed to conduct construction activities at the Project Site.

The Western States Carpenters has also developed a rigorous Infection Control Risk Assessment (“ICRA”) training program to ensure it delivers a workforce that understands how to identify and control infection risks by implementing protocols to protect themselves and all others during renovation and construction projects in healthcare environments.7

ICRA protocols are intended to contain pathogens, control airflow, and protect patients during the construction, maintenance and renovation of healthcare facilities.

ICRA protocols prevent cross contamination, minimizing the risk of secondary infections in patients at hospital facilities.

The City should require the Project to be built using a workforce trained in ICRA protocols.

III. THE CITY SHOULD PREPARE AN ENVIRONMENTAL IMPACT

REPORT FOR THE PROJECT
CEQA is a California statute designed to inform decision makers and the public about the potential, significant environmental effects of a project. 14 California Code of 6 See also The Center for Construction Research and Training, North America’s Building Trades Unions (April 27 2020) NABTU and CPWR COVIC-19 Standards for U.S Constructions Sites, available at https://www.cpwr.com/sites/default/files/NABTU_ CPWR_Standards_COVID-19.pdf; Los Angeles County Department of Public Works (2020) Guidelines for Construction Sites During COVID-19 Pandemic, available at https://dpw.lacounty.gov/building-and-safety/docs/pw_guidelines-construction-sites.pdf. 7 For details concerning Southwest Carpenters’s ICRA training program, see https://icrahealthcare.com/.

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Regulations (“CEQA Guidelines”) § 15002(a)(1).8 At its core, “[i]ts purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made.” Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 564.

To achieve this purpose, CEQA mandates preparation of an Environmental Impact Report (“EIR”) for projects so that the foreseeable impacts of pursuing the project can be understood and weighed. Communities for a Better Environment v. Richmond (2010) 184 Cal. App. 4th 70, 80. The EIR requirement “is the heart of CEQA.” CEQA Guidelines, § 15003(a).

A strong presumption in favor of requiring preparation of an EIR is built into CEQA.

This presumption is reflected in what is known as the "fair argument" standard, under which an agency must prepare an EIR whenever substantial evidence in the record supports a fair argument that a project may have a significant effect on the environment. Quail Botanical Gardens Found., Inc. v. City of Encinitas (1994) 29 Cal. App. 4th 1597, 1602; Friends of "B" St. v. City of Hayward (1980) 106 Cal. 3d 988, 1002.

The fair argument test stems from the statutory mandate that an EIR be prepared for any project that "may have a significant effect on the environment." PRC § 21151; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. App. 3d 68, 75; Jensen v. City of Santa Rosa (2018) 23 Cal. App. 5th 877, 884. Under this test, if a proposed project is not exempt and may cause a significant effect on the environment, the lead agency must prepare an EIR. PRC §§ 21100(a), 21151; CEQA Guidelines § 15064(a)(1), (f)(1). An EIR may be dispensed with only if the lead agency finds no substantial evidence in the initial study or elsewhere in the record that the project may have a significant effect on the environment. Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal. App. 4th 768, 785. In such a situation, the agency must adopt a negative declaration. PRC § 21080(c)(1); CEQA Guidelines §§ 15063(b)(2), 15064(f)(3). "Significant effect upon the environment" is defined as "a substantial or potentially substantial adverse change in the environment." PRC § 21068; CEQA Guidelines § 8 The CEQA Guidelines, codified in Title 14 of the California Code of Regulations, section 15000 et seq, are regulatory guidelines promulgated by the state Natural Resources Agency for the implementation of CEQA. (Cal. Pub. Res. Code § 21083.) The CEQA Guidelines are given “great weight in interpreting CEQA except when . . . clearly unauthorized or erroneous.” Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal. 4th 204, 217.

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15382. A project "may" have a significant effect on the environment if there is a "reasonable probability" that it will result in a significant impact. No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d at 83 fn. 16; Sundstrom v. County of Mendocino (1988) 202 Cal.

App. 3d 296, 309. If any aspect of the project may result in a significant impact on the environment, an EIR must be prepared even if the overall effect of the project is beneficial. CEQA Guidelines § 15063(b)(1). See County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal. App. 4th 1544, 1580.

This standard sets a "low threshold" for preparation of an EIR. Consolidated Irrig. Dist. v. City of Selma (2012) 204 Cal. App. 4th 187, 207; Nelson v. County of Kern (2010) 190 Cal. App. 4th 252; Pocket Protectors v. City of Sacramento (2004) 124 Cal. App. 4th 903, 928; Bowman v. City of Berkeley (2004) 122 Cal. App. 4th 572, 580; Citizen Action to Serve All Students v. Thornley (1990) 222 Cal. App. 3d 748, 754; Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296, 310. If substantial evidence in the record supports a fair argument that the project may have a significant environmental effect, the lead agency must prepare an EIR even if other substantial evidence before it indicates the project will have no significant effect. See Jensen v. City of Santa Rosa (2018) 23 Cal. App. 5th 877, 886; Clews Land & Livestock v. City of San Diego (2017) 19 Cal. App. 5th 161, 183; Stanislaus Audubon Soc'y, Inc. v. County of Stanislaus (1995) 33 Cal.

App. 4th 144, 150; Brentwood Ass'n for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal. App. 3d 491; Friends of "B" St. v. City of Hayward (1980) 106 Cal. App. 3d 988; CEQA Guidelines § 15064(f)(1).

As explained below, the MND fails to support all of its findings with sufficient analysis and substantial evidence and fails to incorporate adequate mitigation measures. Therefore, there is a fair argument that the Project will have a significant effect on the environment, triggering the “low threshold” standard for preparation of an EIR.

II. THE CITY MUST, AT THE VERY LEAST, REVISE AND

RECIRCULATE THE MND
Section 15073.5 of the CEQA Guidelines provides that a negative declaration must be recirculated whenever the document must be substantially revised. A substantial revision includes the identification of new, avoidable significant effects requiring mitigation measures or project revisions to be added to reduce the effect to less than significant levels or upon the agency determining that a proposed mitigation measure or project change would not reduce a potential impact to insignificance. Id.

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Additionally, when new information is brought to light showing that an impact previously discussed in an MND and found to be insignificant with or without mitigation in the MND’s analysis has the potential for a significant environmental impact supported by substantial evidence, the MND must consider and resolve the conflict in the evidence. See Visalia Retail, L.P. v. City of Visalia (2018) 20 Cal. App. 5th 1, 13, 17; see also Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal. App. 4th 1099, 1109.

In light of the MND’s failure to substantiate all of its findings, provide adequate mitigation measures, and fully assess all relevant factors, the Project requires significant revisions and resolution of conflicts in evidence. Therefore, at a minimum, the City must revise and recirculate the MND if it does not prepare an EIR for the Project.

A. The MND’s Mitigation Measures Are Insufficient
If a project has a significant effect on the environment, an agency may approve the project only upon finding that it has “eliminated or substantially lessened all significant effects on the environment where feasible” and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns”.

CEQA Guidelines § 15092(b)(2)(A–B).

CEQA mitigation measures proposed and adopted are required to describe what actions will be taken to reduce or avoid an environmental impact. (CEQA Guidelines § 15126.4(a)(1)(B) [providing “[f]ormulation of mitigation measures should not be deferred until some future time.”].) While the same Guidelines section 15126.5(a)(1)(B) acknowledges an exception to the rule against deferrals, such exception is narrowly proscribed to situations where it is impractical or infeasible to include those details during the project's environmental review.

Here, the MND’s mitigation measures are improperly deferred or fail to adequately mitigate the Project’s impacts as follows:
i. Biological Resources
The MND provides that “stands of ornamental trees along the southern and norther [P]roject site boundaries could support foraging and nesting opportunities for raptors and migratory birds protected by the Migratory Bird Treaty Act and California Fish and Game (CFG) Code Section 3500. MND at 32. Accordingly, to mitigate impacts to nesting birds, the MND imposes mitigation measure MM-BIO-1, which requires that pre-construction nesting surveys be conducted during the nesting season. Id. at 32-33.

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However, such measure defines the nesting period as February-September, contrary to the California Department of Fish and Wildlife’s (“CDFW”) finding that nesting may commence before and/or after this timeframe. “For example, some species of raptors (e g. owls, hawks, etc.) may commence nesting activities in January.”9 The nesting period on the mitigation measure should be revised to account for these findings.

Moreover, the measure fails to specify that surveys should be consistent with CDFW protocols, including the Staff Report on Burrowing Owl Mitigation, State of California Natural Resource Agency, Department of Fish and Game, May 7, 2012. Such specification is necessary to ensure that the measure, and surveys which it requires, are adequate.
ii. Cultural Resources
In order to mitigate impacts related to the inadvertent discovery of yet unknown historical resources, the MND requires, amongst other measures, preparation of a Cultural Resource Monitoring and Inadvertent Discovery Plan. MND at 37. However, the MND defers preparation of the plan to some unspecified time in the future. Id. at 37-38 [“A qualified archaeologist shall be retained to assess information available. . . [the] Plan shall define the process to be followed for the identification and management of cultural resources in the Project area during construction”]. Nor does the MND provide any specifications as to what exactly the plan must include and instead blanketly provides that “[t]he Plan shall also include the conditions under which monitoring is required, if at all”. Id. Absent preparation of the plan, any explanation as to why it is not feasible to prepare the plan at this time, and any specification as to when the plan must be prepared and what it must include, the measure is improperly deferred.
iii. Hazards & Hazardous Materials
Similarly, the MND’s hazards and hazardous material mitigation measure, imposed to mitigate the Project’s contaminated soil containing diesel-range total petroleum hydrocarbon concentrations that exceed the allowable limit of total petroleum hydrocarbons in soil in a residential setting (MND at 60), is improperly deferred.

Specifically, the MND requires that “[p]rior to the issuance of grading permits, the 9 See CDFW November 18, 2021 letter to City of Adelanto, available at https://files.ceqanet.opr.ca.gov/273819-
1/attachment/zo76RgD7dUdj5BLJTEhEMdf74g6f100RrKiWBQSquhFFe5l0X53rLsbLSG MPRXgXM4AaYnJSTfZB6JpY0

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project applicant shall retain a qualified contractor to remove and dispose of contaminated soil. . . in accordance with all applicable local, state, and federal guidelines related to hazardous materials handling. A summary of the soil removal and disposal activities shall be provided to the City of Fontana within a reasonable timeframe following completion of these activities.” MND at 61. Accordingly, again, it appears as though the removal has not yet been conducted, absent any explanation as to why it is not feasible to do so at this time, nor is any specification provided as to when the summary of removal must be provided to the City. Without these necessary removals and specifications, the measure is improperly deferred and there is a colorful argument that the hazardous material impacts have not in fact been mitigated. iv. Noise
The MND finds that “Project-attributed construction noise exposure levels at the nearest offsite residential land uses would have the potential to exceed an FTA guidance-based threshold and thereby cause a significant impact.” MND at 73.

Accordingly, the MND requires, amongst other measures, implementation of an 8 foot tall temporary noise barrier along the southern Project site property line, “where the property line is adjacent to the nearest noise sensitive receptor”. Id. However, the measures fails to include several critical specifications.

First, the measure fails to note how much of a noise reduction the barrier will result in and instead merely provides that the measure, in addition to other requirements, “would reduce construction noise to below 80 dBA at all nearby offsite noise-sensitive receptors.” Id. at 84. The noise reduction which the barrier will result in is crucial to allow both the City and members of the public to understand the efficacy of the barrier.

Second, the measure fails to specify whether the barrier will also reduce noise levels at elevated sources above ground as the budling construction progresses. Moreover, there is no indication that the temporary noise barrier will be also moveable to ensure it properly reduces the sound of the construction noise at its source. As noted by the court in AIDS HEALTHCARE FOUNDATION v. CITY OF LOS ANGELES, LASC Case Number: 19STCP05445 (April 5, 2021):
“The City’s response actually concedes the flaw in the efficacy of MM 1- 2 as it is written. Effective mitigation to sensitive receptors requires the noise barrier systems to be moved. The City argues MM 1-2 is effective

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because ‘the noise barriers are moveable, meaning that they move in concert with any piece of construction equipment to ensure the equipment does not operate with an unobstructed line of sight to a receptor.’ (Opposition Brief 35:15-17.) The City recognizes the barriers must be moveable ‘to shield construction activities, no matter where they occur onsite.’ (Opposition Brief 35:18-19.)
Despite the City’s recognition the noise barriers must be moved throughout the Project during construction to effectively mitigate construction-related noise, MM 1-2 does not require such movement. It is not about wordsmithing-it is about enforceability and efficacy. The City’s attempts to distinguish between ‘Project boundaries’ and ‘property boundaries’ is unpersuasive.24 Such a distinction-if there is one-does not resolve the ambiguity. Nothing in MM 1-2 requires any noise barriers to be moved.*25 Accordingly, the court finds substantial evidence does not support the City’s conclusion MM 1-2 is an effective mitigation measure.” (Exhibit D, p. 20 [Ruling].)
Absent such specifications, the mitigation measure is legally inadequate as they cannot support a finding that the Project’s noise impacts may be reduced to the level identified.

B. The MND’s Energy Findings and Analysis Are Insufficient An analysis of a project's energy use “should include the project's energy use for all project phases and components, including transportation-related energy, during construction and operation. In addition to building code compliance, other relevant considerations may include, among others, the project's size, location, orientation, equipment use and any renewable energy features that could be incorporated into the project. CEQA Guidelines, § 15126.2, subd. (b).

Moreover, a project’s energy impact analysis is insufficient where it merely requires “compliance with title 24 of the California Code of Regulations and other California green building codes”. Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal. App. 4th 256, 264; California Clean Energy Comm. v. City of Woodland (2014) 225 Cal. App. 4th 173, 212.

Here, the MND fails to comply with such requirements. Although the MND determines that the Project would create additional electricity and natural gas demand

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as well as petroleum consumption during both the Project’s construction and operation, it ultimately finds less than significant impacts merely because the Project “would comply with Title 24 conservation standards. . . [and therefore not] result in wasteful, inefficient, or unnecessary consumption of energy.” MND at 45. Thus, the MND’s less than significant findings cannot be solely dependent on title 24 compliance and must in fact assess and analyze all other relevant factors.

C. The DEIR Fails to Support its Findings on Land Use with Substantial Evidence
Each California city and county must adopt a comprehensive, long-term general plan governing development. Napa Citizens for Honest Gov. v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 352, citing Gov. Code §§ 65030, 65300. The general plan sits at the top of the land use planning hierarchy, and serves as a “constitution” or “charter” for all future development. DeVita v. County of Napa (1995) 9 Cal.4th 763, 773; Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540.

General plan consistency is “the linchpin of California’s land use and development laws; it is the principle which infused the concept of planned growth with the force of law.” Debottari v. Norco City Council (1985) 171 Cal.App.3d 1204, 1213. It is well established that development projects may not be approved if they interfere with, or frustrate, the general plan’s policies and objectives. See Napa Citizens, 91 Cal.App.4th at 378-79; see also Lesher, 52 Cal.3d at 544.

Here, the MND fails to analyze the consistency of the Project’s requested entitlements (i.e. tentative parcel map and design review approval) with the General Plan. MND at

68. Nor does the MND analyze the Project’s consistency with the General Plan goals and policies. Id. Without conducting these analyses, the MND’s blanket conclusion that the Project is consistent with the City’s General Plan and zoning code is speculatory and unsupported and, for this reason too, the MND must be revised and recirculated.

IV. CONCLUSION
In sum, WSRCC requests that the City require a local workforce, that the City impose training requirements for the Project’s construction activities to prevent community spread of COVID-19 and other infectious diseases, and that the City prepare an EIR for the Project or, at the very least, revise and recirculate the MND for the Project to

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City of Fontana – 10120 Juniper Avenue Project
December 15, 2023

address the aforementioned concerns. If the City has any questions, feel free to contact my Office.

Sincerely,
______________________
Talia Nimmer
Attorneys for Western States Regional
Council of Carpenters
Attached:

March 8, 2021 SWAPE Letter to Mitchell M. Tsai re Local Hire Requirements and Considerations for Greenhouse Gas Modeling (Exhibit A); Air Quality and GHG Expert Paul Rosenfeld CV (Exhibit B); Air Quality and GHG Expert Matt Hagemann CV (Exhibit C); and Ruling in AHF v. City of Los Angeles (Exhibit D).

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EXHIBIT
A

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1 2656 29th Street, Suite 201
Santa Monica, CA 90405
Matt Hagemann, P.G, C.Hg.
(949) 887-9013
[email protected]
Paul E. Rosenfeld, PhD
(310) 795-2335
[email protected]
March 8, 2021
Mitchell M. Tsai
155 South El Molino, Suite 104
Pasadena, CA 91101
Subject: Local Hire Requirements and Considerations for Greenhouse Gas Modeling Dear Mr. Tsai,
Soil Water Air Protection Enterprise (“SWAPE”) is pleased to provide the following draft technical report explaining the significance of worker trips required for construction of land use development projects with respect to the estimation of greenhouse gas (“GHG”) emissions. The report will also discuss the potential for local hire requirements to reduce the length of worker trips, and consequently, reduced or mitigate the potential GHG impacts.

Worker Trips and Greenhouse Gas Calculations
The California Emissions Estimator Model (“CalEEMod”) is a “statewide land use emissions computer model designed to provide a uniform platform for government agencies, land use planners, and environmental professionals to quantify potential criteria pollutant and greenhouse gas (GHG) emissions associated with both construction and operations from a variety of land use projects.”1 CalEEMod quantifies construction-related emissions associated with land use projects resulting from off-road construction equipment; on-road mobile equipment associated with workers, vendors, and hauling; fugitive dust associated with grading, demolition, truck loading, and on-road vehicles traveling along paved and unpaved roads; and architectural coating activities; and paving.2
The number, length, and vehicle class of worker trips are utilized by CalEEMod to calculate emissions associated with the on-road vehicle trips required to transport workers to and from the Project site during construction.3 1 “California Emissions Estimator Model.” CAPCOA, 2017, available at: http://www.aqmd.gov/caleemod/home. 2 “California Emissions Estimator Model.” CAPCOA, 2017, available at: http://www.aqmd.gov/caleemod/home. 3 “CalEEMod User’s Guide.” CAPCOA, November 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/01_user-39-s-guide2016-3-2_15november2017.pdf?sfvrsn=4, p. 34.

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2 Specifically, the number and length of vehicle trips is utilized to estimate the vehicle miles travelled (“VMT”) associated with construction. Then, utilizing vehicle-class specific EMFAC 2014 emission factors, CalEEMod calculates the vehicle exhaust, evaporative, and dust emissions resulting from construction-related VMT, including personal vehicles for worker commuting.4
Specifically, in order to calculate VMT, CalEEMod multiplies the average daily trip rate by the average overall trip length (see excerpt below):
“VMTd = Σ(Average Daily Trip Rate i * Average Overall Trip Length i) n Where:
n = Number of land uses being modeled.”5
Furthermore, to calculate the on-road emissions associated with worker trips, CalEEMod utilizes the following equation (see excerpt below):
“Emissionspollutant = VMT * EFrunning,pollutant
Where:

Emissionspollutant = emissions from vehicle running for each pollutant VMT = vehicle miles traveled
EFrunning,pollutant = emission factor for running emissions.” 6 Thus, there is a direct relationship between trip length and VMT, as well as a direct relationship between VMT and vehicle running emissions. In other words, when the trip length is increased, the VMT and vehicle running emissions increase as a result. Thus, vehicle running emissions can be reduced by decreasing the average overall trip length, by way of a local hire requirement or otherwise.

Default Worker Trip Parameters and Potential Local Hire Requirements As previously discussed, the number, length, and vehicle class of worker trips are utilized by CalEEMod to calculate emissions associated with the on-road vehicle trips required to transport workers to and from the Project site during construction.7In order to understand how local hire requirements and associated worker trip length reductions impact GHG emissions calculations, it is important to consider the CalEEMod default worker trip parameters. CalEEMod provides recommended default values based on site-specific information, such as land use type, meteorological data, total lot acreage, project type and typical equipment associated with project type. If more specific project information is known, the user can change the default values and input projectspecific values, but the California Environmental Quality Act (“CEQA”) requires that such changes be justified by substantial evidence.8 The default number of construction-related worker trips is calculated by multiplying the 4 “Appendix A Calculation Details for CalEEMod.” CAPCOA, October 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/02_appendix-a2016-3-2.pdf?sfvrsn=6, p. 14-15. 5 “Appendix A Calculation Details for CalEEMod.” CAPCOA, October 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/02_appendix-a2016-3-2.pdf?sfvrsn=6, p. 23. 6 “Appendix A Calculation Details for CalEEMod.” CAPCOA, October 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/02_appendix-a2016-3-2.pdf?sfvrsn=6, p. 15. 7 “CalEEMod User’s Guide.” CAPCOA, November 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/01_user-39-s-guide2016-3-2_15november2017.pdf?sfvrsn=4, p. 34. 8 CalEEMod User Guide, available at: http://www.caleemod.com/, p. 1, 9.

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3 number of pieces of equipment for all phases by 1.25, with the exception of worker trips required for the building construction and architectural coating phases.9Furthermore, the worker trip vehicle class is a 50/25/25 percent mix of light duty autos, light duty truck class 1 and light duty truck class 2, respectively.”10 Finally, the default worker trip length is consistent with the length of the operational home-to-work vehicle trips.11 The operational home-to-work vehicle trip lengths are:
“[B]ased on the location and urbanization selected on the project characteristic screen. These values were supplied by the air districts or use a default average for the state. Each district (or county) also assigns trip lengths for urban and rural settings” (emphasis added). 12 Thus, the default worker trip length is based on the location and urbanization level selected by the User when modeling emissions. The below table shows the CalEEMod default rural and urban worker trip lengths by air basin (see excerpt below and Attachment A).13
Worker Trip Length by Air Basin
Air Basin Rural (miles) Urban (miles)
Great Basin Valleys 16.8 10.8
Lake County 16.8 10.8
Lake Tahoe 16.8 10.8
Mojave Desert 16.8 10.8
Mountain Counties 16.8 10.8
North Central Coast 17.1 12.3
North Coast 16.8 10.8
Northeast Plateau 16.8 10.8
Sacramento Valley 16.8 10.8
Salton Sea 14.6 11
San Diego 16.8 10.8
San Francisco Bay Area 10.8 10.8
San Joaquin Valley 16.8 10.8
South Central Coast 16.8 10.8
South Coast 19.8 14.7
Average 16.47 11.17
Minimum 10.80 10.80
Maximum 19.80 14.70
Range 9.00 3.90
9 “CalEEMod User’s Guide.” CAPCOA, November 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/01_user-39-s-guide2016-3-2_15november2017.pdf?sfvrsn=4, p. 34. 10 “Appendix A Calculation Details for CalEEMod.” CAPCOA, October 2017, available at:
http://www.aqmd.gov/docs/default-source/caleemod/02_appendix-a2016-3-2.pdf?sfvrsn=6, p. 15. 11 “Appendix A Calculation Details for CalEEMod.” CAPCOA, October 2017, available at:
http://www.aqmd.gov/docs/default-source/caleemod/02_appendix-a2016-3-2.pdf?sfvrsn=6, p. 14. 12 “Appendix A Calculation Details for CalEEMod.” CAPCOA, October 2017, available at:
http://www.aqmd.gov/docs/default-source/caleemod/02_appendix-a2016-3-2.pdf?sfvrsn=6, p. 21. 13 “Appendix D Default Data Tables.” CAPCOA, October 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/05_appendix-d2016-3-2.pdf?sfvrsn=4, p. D-84 – D-86.

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4 As demonstrated above, default rural worker trip lengths for air basins in California vary from 10.8- to 19.8- miles, with an average of 16.47 miles. Furthermore, default urban worker trip lengths vary from 10.8- to 14.7- miles, with an average of 11.17 miles. Thus, while default worker trip lengths vary by location, default urban worker trip lengths tend to be shorter in length. Based on these trends evident in the CalEEMod default worker trip lengths, we can reasonably assume that the efficacy of a local hire requirement is especially dependent upon the urbanization of the project site, as well as the project location.

Practical Application of a Local Hire Requirement and Associated Impact To provide an example of the potential impact of a local hire provision on construction-related GHG emissions, we estimated the significance of a local hire provision for the Village South Specific Plan (“Project”) located in the City of Claremont (“City”). The Project proposed to construct 1,000 residential units, 100,000-SF of retail space, 45,000-SF of office space, as well as a 50-room hotel, on the 24-acre site. The Project location is classified as Urban and lies within the Los Angeles-South Coast County. As a result, the Project has a default worker trip length of 14.7 miles.14 In an effort to evaluate the potential for a local hire provision to reduce the Project’s construction-related GHG emissions, we prepared an updated model, reducing all worker trip lengths to 10 miles (see Attachment B). Our analysis estimates that if a local hire provision with a 10-mile radius were to be implemented, the GHG emissions associated with Project construction would decrease by approximately 17% (see table below and Attachment C).

Local Hire Provision Net Change
Without Local Hire Provision
Total Construction GHG Emissions (MT CO2e) 3,623
Amortized Construction GHG Emissions (MT CO2e/year) 120.77 With Local Hire Provision
Total Construction GHG Emissions (MT CO2e) 3,024
Amortized Construction GHG Emissions (MT CO2e/year) 100.80 % Decrease in Construction-related GHG Emissions 17%
As demonstrated above, by implementing a local hire provision requiring 10 mile worker trip lengths, the Project could reduce potential GHG emissions associated with construction worker trips. More broadly, any local hire requirement that results in a decreased worker trip length from the default value has the potential to result in a reduction of construction-related GHG emissions, though the significance of the reduction would vary based on the location and urbanization level of the project site.

This serves as an example of the potential impacts of local hire requirements on estimated project-level GHG emissions, though it does not indicate that local hire requirements would result in reduced construction-related GHG emission for all projects. As previously described, the significance of a local hire requirement depends on the worker trip length enforced and the default worker trip length for the project’s urbanization level and location.
14 “Appendix D Default Data Tables.” CAPCOA, October 2017, available at: http://www.aqmd.gov/docs/defaultsource/caleemod/05_appendix-d2016-3-2.pdf?sfvrsn=4, p. D-85.

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

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

Paul E. Rosenfeld, Ph.D.

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Location Type Location Name Rural H-W
(miles)
Urban H-W
(miles)
Air Basin Great Basin 16.8 10.8
Air Basin Lake County 16.8 10.8
Air Basin Lake Tahoe 16.8 10.8
Air Basin Mojave Desert 16.8 10.8
Air Basin Mountain 16.8 10.8
Air Basin North Central 17.1 12.3
Air Basin North Coast 16.8 10.8
Air Basin Northeast 16.8 10.8
Air Basin Sacramento 16.8 10.8
Air Basin Salton Sea 14.6 11
Air Basin San Diego 16.8 10.8
Air Basin San Francisco 10.8 10.8
Air Basin San Joaquin 16.8 10.8
Air Basin South Central 16.8 10.8
Air Basin South Coast 19.8 14.7
Air District Amador County 16.8 10.8
Air District Antelope Valley 16.8 10.8
Air District Bay Area AQMD 10.8 10.8
Air District Butte County 12.54 12.54
Air District Calaveras 16.8 10.8
Air District Colusa County 16.8 10.8
Air District El Dorado 16.8 10.8
Air District Feather River 16.8 10.8
Air District Glenn County 16.8 10.8
Air District Great Basin 16.8 10.8
Air District Imperial County 10.2 7.3
Air District Kern County 16.8 10.8
Air District Lake County 16.8 10.8
Air District Lassen County 16.8 10.8
Air District Mariposa 16.8 10.8
Air District Mendocino 16.8 10.8
Air District Modoc County 16.8 10.8
Air District Mojave Desert 16.8 10.8
Air District Monterey Bay 16.8 10.8
Air District North Coast 16.8 10.8
Air District Northern Sierra 16.8 10.8
Air District Northern

16.8 10.8
Air District Placer County 16.8 10.8
Air District Sacramento 15 10
Attachment A

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Air District San Diego 16.8 10.8
Air District San Joaquin

16.8 10.8
Air District San Luis Obispo 13 13
Air District Santa Barbara 8.3 8.3
Air District Shasta County 16.8 10.8
Air District Siskiyou County 16.8 10.8
Air District South Coast 19.8 14.7
Air District Tehama County 16.8 10.8
Air District Tuolumne 16.8 10.8
Air District Ventura County 16.8 10.8
Air District Yolo/Solano 15 10
County Alameda 10.8 10.8
County Alpine 16.8 10.8
County Amador 16.8 10.8
County Butte 12.54 12.54
County Calaveras 16.8 10.8
County Colusa 16.8 10.8
County Contra Costa 10.8 10.8
County Del Norte 16.8 10.8
County El Dorado-Lake 16.8 10.8
County El Dorado- 16.8 10.8
County Fresno 16.8 10.8
County Glenn 16.8 10.8
County Humboldt 16.8 10.8
County Imperial 10.2 7.3
County Inyo 16.8 10.8
County Kern-Mojave 16.8 10.8
County Kern-San 16.8 10.8
County Kings 16.8 10.8
County Lake 16.8 10.8
County Lassen 16.8 10.8
County Los Angeles- 16.8 10.8
County Los Angeles- 19.8 14.7
County Madera 16.8 10.8
County Marin 10.8 10.8
County Mariposa 16.8 10.8
County Mendocino- 16.8 10.8
County Mendocino- 16.8 10.8
County Mendocino- 16.8 10.8
County Mendocino- 16.8 10.8
County Merced 16.8 10.8
County Modoc 16.8 10.8
County Mono 16.8 10.8
County Monterey 16.8 10.8
County Napa 10.8 10.8

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County Nevada 16.8 10.8
County Orange 19.8 14.7
County Placer-Lake 16.8 10.8
County Placer-Mountain 16.8 10.8
County Placer- 16.8 10.8
County Plumas 16.8 10.8
County Riverside- 16.8 10.8
County Riverside-

19.8 14.7
County Riverside-Salton 14.6 11
County Riverside-South 19.8 14.7
County Sacramento 15 10
County San Benito 16.8 10.8
County San Bernardino- 16.8 10.8
County San Bernardino- 19.8 14.7
County San Diego 16.8 10.8
County San Francisco 10.8 10.8
County San Joaquin 16.8 10.8
County San Luis Obispo 13 13
County San Mateo 10.8 10.8
County Santa Barbara-

8.3 8.3
County Santa Barbara-

8.3 8.3
County Santa Clara 10.8 10.8
County Santa Cruz 16.8 10.8
County Shasta 16.8 10.8
County Sierra 16.8 10.8
County Siskiyou 16.8 10.8
County Solano- 15 10
County Solano-San 16.8 10.8
County Sonoma-North 16.8 10.8
County Sonoma-San 10.8 10.8
County Stanislaus 16.8 10.8
County Sutter 16.8 10.8
County Tehama 16.8 10.8
County Trinity 16.8 10.8
County Tulare 16.8 10.8
County Tuolumne 16.8 10.8
County Ventura 16.8 10.8
County Yolo 15 10
County Yuba 16.8 10.8
Statewide Statewide 16.8 10.8

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Air Basin Rural (miles) Urban (miles)
Great Basin Valleys 16.8 10.8
Lake County 16.8 10.8
Lake Tahoe 16.8 10.8
Mojave Desert 16.8 10.8
Mountain Counties 16.8 10.8
North Central Coast 17.1 12.3
North Coast 16.8 10.8
Northeast Plateau 16.8 10.8
Sacramento Valley 16.8 10.8
Salton Sea 14.6 11
San Diego 16.8 10.8
San Francisco Bay Area 10.8 10.8
San Joaquin Valley 16.8 10.8
South Central Coast 16.8 10.8
South Coast 19.8 14.7
Average 16.47 11.17
Mininum 10.80 10.80
Maximum 19.80 14.70
Range 9.00 3.90
Worker Trip Length by Air Basin

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1.1 Land Usage
Land Uses Size Metric Lot Acreage Floor Surface Area Population General Office Building 45.00 1000sqft 1.03 45,000.00 0 High Turnover (Sit Down Restaurant) 36.00 1000sqft 0.83 36,000.00 0 Hotel 50.00 Room 1.67 72,600.00 0
Quality Restaurant 8.00 1000sqft 0.18 8,000.00 0
Apartments Low Rise 25.00 Dwelling Unit 1.56 25,000.00 72 Apartments Mid Rise 975.00 Dwelling Unit 25.66 975,000.00 2789 Regional Shopping Center 56.00 1000sqft 1.29 56,000.00 0

1.2 Other Project Characteristics
Urbanization
Climate Zone
Urban
9 Wind Speed (m/s) 2.2 Precipitation Freq (Days) 33

1.3 User Entered Comments & Non-Default Data

1.0 Project Characteristics
Utility Company Southern California Edison
Operational Year 2028
CO2 Intensity
(lb/MWhr)
702.44 CH4 Intensity 0.029
(lb/MWhr)
N2O Intensity 0.006
(lb/MWhr)
Village South Specific Plan (Proposed)
Los Angeles-South Coast County, Annual
CalEEMod Version: CalEEMod.2016.3.2 Page 1 of 44 Date: 1/6/2021 1:52 PM Village South Specific Plan (Proposed) - Los Angeles-South Coast County, Annual Attachment B

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Project Characteristics - Consistent with the DEIR's model.

Land Use - See SWAPE comment regarding residential and retail land uses.

Construction Phase - See SWAPE comment regarding individual construction phase lengths.

Demolition - Consistent with the DEIR's model. See SWAPE comment regarding demolition.

Vehicle Trips - Saturday trips consistent with the DEIR's model. See SWAPE comment regarding weekday and Sunday trips.

Woodstoves - Woodstoves and wood-burning fireplaces consistent with the DEIR's model. See SWAPE comment regarding gas fireplaces.

Energy Use -
Construction Off-road Equipment Mitigation - See SWAPE comment on construction-related mitigation.

Area Mitigation - See SWAPE comment regarding operational mitigation measures.

Water Mitigation - See SWAPE comment regarding operational mitigation measures.

Table Name Column Name Default Value New Value
tblFireplaces FireplaceWoodMass 1,019.20 0.00
tblFireplaces FireplaceWoodMass 1,019.20 0.00
tblFireplaces NumberWood 1.25 0.00
tblFireplaces NumberWood 48.75 0.00
tblVehicleTrips ST_TR 7.16 6.17
tblVehicleTrips ST_TR 6.39 3.87
tblVehicleTrips ST_TR 2.46 1.39
tblVehicleTrips ST_TR 158.37 79.82
tblVehicleTrips ST_TR 8.19 3.75
tblVehicleTrips ST_TR 94.36 63.99
tblVehicleTrips ST_TR 49.97 10.74
tblVehicleTrips SU_TR 6.07 6.16
tblVehicleTrips SU_TR 5.86 4.18
tblVehicleTrips SU_TR 1.05 0.69
tblVehicleTrips SU_TR 131.84 78.27
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2.0 Emissions Summary
tblVehicleTrips SU_TR 5.95 3.20
tblVehicleTrips SU_TR 72.16 57.65
tblVehicleTrips SU_TR 25.24 6.39
tblVehicleTrips WD_TR 6.59 5.83
tblVehicleTrips WD_TR 6.65 4.13
tblVehicleTrips WD_TR 11.03 6.41
tblVehicleTrips WD_TR 127.15 65.80
tblVehicleTrips WD_TR 8.17 3.84
tblVehicleTrips WD_TR 89.95 62.64
tblVehicleTrips WD_TR 42.70 9.43
tblWoodstoves NumberCatalytic 1.25 0.00
tblWoodstoves NumberCatalytic 48.75 0.00
tblWoodstoves NumberNoncatalytic 1.25 0.00
tblWoodstoves NumberNoncatalytic 48.75 0.00
tblWoodstoves WoodstoveDayYear 25.00 0.00
tblWoodstoves WoodstoveDayYear 25.00 0.00
tblWoodstoves WoodstoveWoodMass 999.60 0.00
tblWoodstoves WoodstoveWoodMass 999.60 0.00
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2.1 Overall Construction
ROG NOx CO SO2 Fugitive
PM10
Exhaust
PM10
PM10
Total
Fugitive
PM2.5
Exhaust
PM2.5
PM2.5
Total
Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e
Year tons/yr MT/yr
2021 0.1713 1.8242 1.1662 2.4000e0030.4169 0.0817 0.4986 0.1795 0.0754 0.2549 0.0000 213.1969 213.1969 0.0601 0.0000 214.6993 2022 0.6904 4.1142 6.1625 0.0189 1.3058 0.1201 1.4259 0.3460 0.1128 0.4588 0.0000 1,721.682 6 1,721.682
6 0.1294 0.0000 1,724.918
7 2023 0.6148 3.3649 5.6747 0.0178 1.1963 0.0996 1.2959 0.3203 0.0935 0.4138 0.0000 1,627.529 5 1,627.529
5 0.1185 0.0000 1,630.492
5 2024 4.1619 0.1335 0.2810 5.9000e0040.0325 6.4700e0030.0390 8.6300e0036.0400e0030.0147 0.0000 52.9078 52.9078 8.0200e0030.0000 53.1082 Maximum 4.1619 4.1142 6.1625 0.0189 1.3058 0.1201 1.4259 0.3460 0.1128 0.4588 0.0000 1,721.682 6 1,721.682
6 0.1294 0.0000 1,724.918
7 Unmitigated Construction
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2.1 Overall Construction
ROG NOx CO SO2 Fugitive
PM10
Exhaust
PM10
PM10
Total
Fugitive
PM2.5
Exhaust
PM2.5
PM2.5
Total
Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e
Year tons/yr MT/yr
2021 0.1713 1.8242 1.1662 2.4000e0030.4169 0.0817 0.4986 0.1795 0.0754 0.2549 0.0000 213.1967 213.1967 0.0601 0.0000 214.6991 2022 0.6904 4.1142 6.1625 0.0189 1.3058 0.1201 1.4259 0.3460 0.1128 0.4588 0.0000 1,721.682 3 1,721.682
3 0.1294 0.0000 1,724.918
3 2023 0.6148 3.3648 5.6747 0.0178 1.1963 0.0996 1.2959 0.3203 0.0935 0.4138 0.0000 1,627.529 1 1,627.529
1 0.1185 0.0000 1,630.492
1 2024 4.1619 0.1335 0.2810 5.9000e0040.0325 6.4700e0030.0390 8.6300e0036.0400e0030.0147 0.0000 52.9077 52.9077 8.0200e0030.0000 53.1082 Maximum 4.1619 4.1142 6.1625 0.0189 1.3058 0.1201 1.4259 0.3460 0.1128 0.4588 0.0000 1,721.682 3 1,721.682
3 0.1294 0.0000 1,724.918
3 Mitigated Construction
ROG NOx CO SO2 Fugitive
PM10
Exhaust
PM10
PM10
Total
Fugitive
PM2.5
Exhaust
PM2.5
PM2.5
Total
Bio- CO2 NBio-CO2 Total CO2 CH4 N20 CO2e
Percent
Reduction

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Quarter Start Date End Date Maximum Unmitigated ROG + NOX (tons/quarter) Maximum Mitigated ROG + NOX (tons/quarter) 1 9-1-2021 11-30-2021 1.4103 1.4103
2 12-1-2021 2-28-2022 1.3613 1.3613
3 3-1-2022 5-31-2022 1.1985 1.1985
4 6-1-2022 8-31-2022 1.1921 1.1921
5 9-1-2022 11-30-2022 1.1918 1.1918
6 12-1-2022 2-28-2023 1.0774 1.0774
7 3-1-2023 5-31-2023 1.0320 1.0320
8 6-1-2023 8-31-2023 1.0260 1.0260
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2.2 Overall Operational
ROG NOx CO SO2 Fugitive
PM10
Exhaust
PM10
PM10
Total
Fugitive
PM2.5
Exhaust
PM2.5
PM2.5
Total
Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e
Category tons/yr MT/yr
Area 5.1437 0.2950 10.3804 1.6700e0030.0714 0.0714 0.0714 0.0714 0.0000 220.9670 220.9670 0.0201 3.7400e003222.5835 Energy 0.1398 1.2312 0.7770 7.6200e0030.0966 0.0966 0.0966 0.0966 0.0000 3,896.073 2 3,896.073
2 0.1303 0.0468 3,913.283
3 Mobile 1.5857 7.9962 19.1834 0.0821 7.7979 0.0580 7.8559 2.0895 0.0539 2.1434 0.0000 7,620.498 6 7,620.498
6 0.3407 0.0000 7,629.016
2 Waste 0.0000 0.0000 0.0000 0.0000 207.8079 0.0000 207.8079 12.2811 0.0000 514.8354 Water 0.0000 0.0000 0.0000 0.0000 29.1632 556.6420 585.8052 3.0183 0.0755 683.7567 Total 6.8692 9.5223 30.3407 0.0914 7.7979 0.2260 8.0240 2.0895 0.2219 2.3114 236.9712 12,294.18 07 12,531.15
19 15.7904 0.1260 12,963.47
51 Unmitigated Operational
9 9-1-2023 11-30-2023 1.0265 1.0265
10 12-1-2023 2-29-2024 2.8857 2.8857
11 3-1-2024 5-31-2024 1.6207 1.6207
Highest 2.8857 2.8857
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2.2 Overall Operational
ROG NOx CO SO2 Fugitive
PM10
Exhaust
PM10
PM10
Total
Fugitive
PM2.5
Exhaust
PM2.5
PM2.5
Total
Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e
Category tons/yr MT/yr
Area 5.1437 0.2950 10.3804 1.6700e0030.0714 0.0714 0.0714 0.0714 0.0000 220.9670 220.9670 0.0201 3.7400e003222.5835 Energy 0.1398 1.2312 0.7770 7.6200e0030.0966 0.0966 0.0966 0.0966 0.0000 3,896.073 2 3,896.073
2 0.1303 0.0468 3,913.283
3 Mobile 1.5857 7.9962 19.1834 0.0821 7.7979 0.0580 7.8559 2.0895 0.0539 2.1434 0.0000 7,620.498 6 7,620.498
6 0.3407 0.0000 7,629.016
2 Waste 0.0000 0.0000 0.0000 0.0000 207.8079 0.0000 207.8079 12.2811 0.0000 514.8354 Water 0.0000 0.0000 0.0000 0.0000 29.1632 556.6420 585.8052 3.0183 0.0755 683.7567 Total 6.8692 9.5223 30.3407 0.0914 7.7979 0.2260 8.0240 2.0895 0.2219 2.3114 236.9712 12,294.18 07 12,531.15
19 15.7904 0.1260 12,963.47
51 Mitigated Operational

3.0 Construction Detail
Construction Phase
ROG NOx CO SO2 Fugitive
PM10
Exhaust
PM10
PM10
Total
Fugitive
PM2.5
Exhaust
PM2.5
PM2.5
Total
Bio- CO2 NBio-CO2 Total CO2 CH4 N20 CO2e
Percent
Reduction

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 CalEEMod Version: CalEEMod.2016.3.2 Page 7 of 44 Date: 1/6/2021 1:52 PM Village South Specific Plan (Proposed) - Los Angeles-South Coast County, Annual

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Phase
Number
Phase Name Phase Type Start Date End Date Num Days
Week
Num Days Phase Description
1 Demolition Demolition 9/1/2021 10/12/2021 5 30
2 Site Preparation Site Preparation 10/13/2021 11/9/2021 5 20 3 Grading Grading 11/10/2021 1/11/2022 5 45
4 Building Construction Building Construction 1/12/2022 12/12/2023 5 500 5 Paving Paving 12/13/2023 1/30/2024 5 35
6 Architectural Coating Architectural Coating 1/31/2024 3/19/2024 5 35 OffRoad Equipment
Residential Indoor: 2,025,000; Residential Outdoor: 675,000; Non-Residential Indoor: 326,400; Non-Residential Outdoor: 108,800; Striped Parking Area: 0 (Architectural Coating ±sqft)
Acres of Grading (Site Preparation Phase): 0
Acres of Grading (Grading Phase): 112.5
Acres of Paving: 0
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Phase Name Offroad Equipment Type Amount Usage Hours Horse Power Load Factor Demolition Concrete/Industrial Saws 1 8.00 81 0.73
Demolition Excavators 3 8.00 158 0.38
Demolition Rubber Tired Dozers 2 8.00 247 0.40
Site Preparation Rubber Tired Dozers 3 8.00 247 0.40
Site Preparation Tractors/Loaders/Backhoes 4 8.00 97 0.37 Grading Excavators 2 8.00 158 0.38
Grading Graders 1 8.00 187 0.41
Grading Rubber Tired Dozers 1 8.00 247 0.40
Grading Scrapers 2 8.00 367 0.48
Grading Tractors/Loaders/Backhoes 2 8.00 97 0.37
Building Construction Cranes 1 7.00 231 0.29
Building Construction Forklifts 3 8.00 89 0.20
Building Construction Generator Sets 1 8.00 84 0.74
Building Construction Tractors/Loaders/Backhoes 3 7.00 97 0.37 Building Construction Welders 1 8.00 46 0.45
Paving Pavers 2 8.00 130 0.42
Paving Paving Equipment 2 8.00 132 0.36
Paving Rollers 2 8.00 80 0.38
Architectural Coating Air Compressors 1 6.00 78 0.48
Trips and VMT
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3.2 Demolition - 2021
ROG NOx CO SO2 Fugitive
PM10
Exhaust
PM10
PM10
Total
Fugitive
PM2.5
Exhaust
PM2.5
PM2.5
Total
Bio- CO2 NBio- CO2 Total CO2 CH4 N2O CO2e
Category tons/yr MT/yr
Fugitive Dust 0.0496 0.0000 0.0496 7.5100e0030.0000 7.5100e0030.0000 0.0000 0.0000 0.0000 0.0000 0.0000 Off-Road 0.0475 0.4716 0.3235 5.8000e0040.0233 0.0233 0.0216 0.0216 0.0000 51.0012 51.0012 0.0144 0.0000 51.3601 Total 0.0475 0.4716 0.3235 5.8000e0040.0496 0.0233 0.0729 7.5100e0030.0216 0.0291 0.0000 51.0012 51.0012 0.0144 0.0000 51.3601 Unmitigated Construction On-Site

3.1 Mitigation Measures Construction
Phase Name Offroad Equipment
Count
Worker Trip
Number
Vendor Trip
Number
Hauling Trip
Number
Worker Trip
Length
Vendor Trip
Length
Hauling Trip
Length
Worker Vehicle
Class
Vendor
Vehicle Class
Hauling
Vehicle Class
Demolition 6 15.00 0.00 458.00 14.70 6.90 20.00 LD_Mix HDT_Mix HHDT Site Preparation 7 18.00 0.00 0.00 14.70 6.90 20.00 LD_Mix HDT_Mix HHDT Grading 8 20.00 0.00 0.00 14.70 6.90 20.00 LD_Mix HDT_Mix HHDT Building Construction 9 801.00 143.00 0.00 14.70 6.90 20.00 LD_Mix HDT_Mix HHDT Paving 6 15.00 0.00 0.00 14.70 6.90 20.00 LD_Mix HDT_Mix HHDT Architectural Coating 1 160.00 0.00 0.00 14.70 6.90 20.00 LD_Mix HDT_Mix HHDT CalEEMod Version: CalEEMod.2016.3.2 Page 10 of 44 Date: 1/6/2021 1:52 PM Village South Specific Plan (Proposed) - Los Angeles-South Coast County, Annual