Agenda packet — Ontario City Council, November 19, 2024 (part 22 of 31)

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We reviewed the Planning Commission Staff Report with the assistance of air quality expert Dr. James Clark.2
The Staff Report fails to meaningfully address the flaws in the Project’s environmental review. Regarding hazards, the FEIR identifies significant vapor intrusion impacts due to PCE contamination, but improperly defers formulation of mitigation measures. The FEIR also fails to analyze the full scope of the Project – CEQA requires that an EIR analyze the reasonably foreseeable consequences of the Project, but the Project’s FEIR fails to analyze the Project’s reasonably foreseeable use as a parcel hub (a use that generates more trips than analyzed), and fails to analyze reasonably foreseeable truck trips to the Ports of Los Angeles and Long Beach. Regarding cumulative impacts, the Staff Report still fails to meaningfully respond to the legal authority requiring analysis of the Project’s impacts in the context of the numerous other warehouses existing and planned in the area. The Staff Report also fails to resolve flaws in the Project’s health risk assessment, which still underestimates impacts on sensitive receptors. Regarding energy, the Staff Report provides an analysis of factors in Appendix F the CEQA Guidelines. But the analysis is wholly inadequate because it fails to address applicable energy consumption measures and renewable energy options. As a result, the FEIR’s conclusions are not supported by substantial evidence. Rather, substantial evidence demonstrates that the Project’s significant impacts are greater than analyzed in the FEIR.

The Staff Report incorrectly concludes that the “final EIR contains a complete and accurate reporting of the environmental impacts associated with the Project” and complies with CEQA.3 The Staff Report recommends that the Planning Commission adopt the final EIR and approve the Project’s Development Plan Application.4 These recommendations are unsupported by evidence in the record due to the major flaws in the Project’s environmental review.

CARE CA urges the Planning Commission to require the City revise and recirculate the EIR to comply with CEQA before any further action is taken on the Project.

I. STATEMENT OF INTEREST
CARE CA is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker 2 Dr. Clark’s technical comments and curricula vitae are attached hereto as Exhibit A. 3 Staff Report, Item D - 2573 of 3296. 4 Staff Report, Item D - 1 of 3296. 3850
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health and safety hazards, and the environmental impacts of the Project. The coalition includes Ontario residents Daniel Brewer, David Audelo, Carlos Mendez, Rober Rubio, the District Council of Ironworkers and Southern California Pipe Trades DC 16, along with their members, their families, and other individuals who live and work in Ontario and in San Bernardino County.

CARE CA advocates for protecting the environment and the health of their communities’ workforces. CARE CA seeks to ensure a sustainable construction industry over the long-term by supporting projects that offer genuine economic and employment benefits, and which minimize adverse environmental and other impacts on local communities. CARE CA members live, work, recreate, and raise their families in the City of Ontario and surrounding communities. Accordingly, they would be directly affected by the Project’s environmental and health and safety impacts. Individual members may also work on the Project itself. They will be first in line to be exposed to any health and safety hazards that exist onsite.

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

II. THE FEIR FAILS TO ADEQUATELY ANALYZE, QUANTIFY, AND MITIGATE THE PROJECT’S POTENTIALLY SIGNIFICANT IMPACTS
A. The FEIR Improperly Defers Formulation of Mitigation Measures for Hazardous Materials
The FEIR’s Phase I/II Environmental Site Assessment (“ESA”) identifies levels of tetrachloroethene (“PCE”) in soil vapor samples in excess of current commercial/industrial calculated soil gas screening levels (“SGSLs”).5 The ESA concludes that “PCE impacts potentially associated with the use and storage of hazardous materials at Building B could contribute to vapor intrusion conditions on the Site.”6 The FEIR identifies this contamination as a potentially significant impact.7 Additionally, the ethylbenzene concentration in one soil vapor sample 5 FEIR, Phase I/II Environmental Site Assessment, pg. vii. 6 FEIR, Phase I/II Environmental Site Assessment, pg. 11-2. 7 DEIR, pg. S-17.
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exceeded the calculated soil gas commercial/industrial screening level of 163 micrograms per cubic meter.8 The FEIR fails to disclose this significant impact in the body of the FEIR, in violation of CEQA.

The FEIR states that the potentially significant vapor intrusion impacts would be mitigated through imposition of Mitigation Measure (“MM”) 4.7-1. This measure requires future preparation of a Soil Management Plan (“SMP”). he SMP will include instructions for handling, storage, and disposal of any known or potentially impacted soil during soil moving activities. But MM 4.7-1 fails to explain how the PCE contamination at the Project site will actually be addressed – whether it will be remediated, capped in place, etc. – and the FEIR lacks a quantitative analysis of the construction impacts associated with that process. The measure states that contaminated soils will be monitored and provides guidance for proper soil handling, but does not specifically state that PCE-contaminated soil will be removed. Under MM 4.7-1, it is unclear if the City will remove PCE-contaminated soil or adopt passive/engineered vapor intrusion mitigation such as installing a vapor barrier or venting. Without clear performance standards and a quantitative analysis of the impacts of the PCE cleanup phase of construction, MM 4.7-1 remains incomplete and ineffective, and the FEIR’s construction impact analysis remains incomplete.

MM 4.7-1 improperly defers formulation of mitigation measures related to PCE contamination to a future date.

CEQA Guidelines Section 15126.4 states that formulation of mitigation measures shall not be deferred until some future time. The Guidelines permit an agency to develop the “specific details of a mitigation measure” after project approval “when it is impractical or infeasible to include those details during the project’s environmental review.”9 In such circumstances, deferral of mitigation details is permitted if the agency “(1) commits itself to the mitigation, (2) adopts specific performance standards the mitigation will achieve, and (3) identifies the type(s) of potential action(s) that can feasibly achieve that performance standard and that will [be] considered, analyzed, and potentially incorporated in the mitigation measure.”10 Compliance with a regulatory permit or other similar process may be identified as mitigation if compliance would result in implementation of measures that would be reasonably expected, based on 8 FEIR, Phase I/II Environmental Site Assessment, pg. viii. 9 Guidelines, § 15126.4, subd. (a)(1)(B) (Section 15126.4). 10 Section 15126.4, subd. (a)(1)(B); see Save Our Capitol! v. Department of General Services (2022) 85 Cal.App.5th 1101, 1134 (Save Our Capitol!).)
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substantial evidence in the record, to reduce the significant impact to the specified performance standards.11
Here, the FEIR defers formulation of the PCE mitigation until after Project approval. But the City fails to present any evidence that it would be impractical or infeasible to do so during the Project’s environmental review. Based on the evidence before the City, it should be feasible to require and formulate vapor intrusion mitigation. Even if deferral of formulation of mitigation were reasonable in this case, MM 4.7-1 fails to adopt specific performance standards for remediating PCE contamination and the associated vapor intrusion risks. MM 4.7-1 also fails to clearly identify the types of potential actions that may be taken to mitigate the vapor intrusion risk. Thus, the City improperly defers formulation of PCE contamination and vapor intrusion mitigation.

The City also improperly defers formulation of mitigation for the ethylbenzene contamination. As with the PCE contamination, MM 4.7-1 fails to substantiate how this contaminant will be addressed. The FEIR contains no evidence that formulation of mitigation for ethylbenzene contamination is impractical or infeasible, identifies no performance standards, and fails to identify potential mitigation measures. Mitigation for this impact is thus improperly deferred.

B. The City Still Fails to Adequately Evaluate Trips Generated by the Project
CARE CA’s comments on the FEIR showed that the Project’s size and number of parking spots would enable it to be used as a High Cube Parcel Hub Warehouse, which has a trip generation rate 2.6 times the rate used in the FEIR. In Response 1-8, the City reiterates its position that analyzing the Project as a combination of the “Warehousing” and “High-Cube Cold Storage Warehouse” land uses is reasonable due to the Project’s anticipated use and size.12 The City’s response ignores that an EIR must analyze reasonably foreseeable consequences of a Project. Public Resources Code Section 21065 provides, in part:
“‘Project’ means an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.”13 Here, the Project proposes a 270,337-square-foot industrial 11 Id. 12 Staff Report, Item D - 2466 of 3296; FEIR, pg. 2-39. 13 See Cal. Code Regs., tit. 14, § 15378; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376.
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building with a proposed height of 46 feet on 13.08 acres of land. A high-cube parcel hub warehouse is a reasonably foreseeable use of this project because “high-cube parcel hub warehouse” is defined in Institute of Transportation Engineers (“ITE”) land use code 156 as a building that typically has at least 200,000 gross square feet of floor area, has a ceiling height of 24 feet or more, and is used primarily for the storage and/ or consolidation of manufactured goods prior to their distribution to retail locations or other warehouses. And Mr. Marshall’s comments on the FEIR demonstrate that the Project site includes adequate parking to support this use.

Even if less-intensive warehouse uses are possible for this Project (such as the FEIR’s combination of “Warehousing” and “High-Cube Cold Storage Warehouse”), use as a high-cube parcel hub warehouse is a reasonably foreseeable outcome that must be analyzed.

The City’s claim that the Project’s “anticipated use” does not include a highcube parcel hub warehouse is irrelevant to the analysis. Courts have held that in this situation, “the identity of a tenant is irrelevant to CEQA review.”14 The court in Maintain Our Desert Environment v. Town of Apple Valley explained that “land use entitlements such as conditional use permits and development approvals run with the land and do not belong to the permittee…. had [the developer] developed the Project and then held it out for sale to any interested buyer, no additional CEQA review would have been necessary for the new owner so long as the use was consistent with that that had already been approved.”15 Here, the project that is the subject of the FEIR is a Development Plan to develop an industrial building totaling 270,337 square feet of gross floor area on 13.08 acres and having a FAR of 0.47.

This building could be used as a high-cube parcel hub warehouse, so this level of use must be analyzed in the FEIR.

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comments provided a discussion of the controlling caselaw,17 the Attorney General’s recent litigation on this issue in People of the State of California v. City of Fontana,18 and pending updates to the SCAQMD significance thresholds for cumulative impacts in response to this litigation. These authorities explain that the City’s “drop in the bucket” approach to cumulative impacts does not comply with CEQA.

In Responses 1-10 and 1-11, the Staff Report states: “[t]he commenter is again advised that the SCAQMD is the regulatory authority on air quality charged with the responsibility of ensuring the improvement of air quality in the South Coast Air Basin… The commenter speculates on ‘updated thresholds’ for air quality impacts. Absent these ‘updated thresholds’ the EIR properly evaluates air quality impacts in the context of existing thresholds, protocols, and methodologies.”19 The Staff Report and the FEIR continue to fail to address any of the controlling legal authority on this issue raised in CARE CA’s comments. The court in Environmental Protection Information Center v. California Dept. of Forestry Fire Protection stated: "[w]e review an agency's decision regarding the inclusion of information in the cumulative impacts analysis under an abuse of discretion standard. ‘The primary determination is whether it was reasonable and practical to include the projects and whether, without their inclusion, the severity and significance of the cumulative impacts were reflected adequately.’”20 CARE CA’s comments demonstrate that the SCAQMD individual project significance threshold fail to reflect the significance of cumulative air quality and public health impacts in areas burdened by extensive warehouse development – this Project would add a substantial number of diesel truck trips to routes in an area with a high existing background MATES cancer risk, combining with the emissions of trucks from numerous other warehouses. Analysis of cumulative impacts from past, present, and probable future warehouse projects is feasible. As an example, Dr. Clark’s comments present data from Pitzer College’s Warehouse CITY tool, which maps existing and proposed warehouses in Los Angeles, Riverside, and San Bernardino Counties.21 The tool measures metrics including acreage, square footage, and diesel particulate matter and carbon emissions.22
17 Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d 692; Env't Prot. Info. Ctr. v.

California Dep't of Forestry & Fire Prot. (2008) 44 Cal. 4th 459; 18 San Bernardino Superior Court, Case No. CIVSB2121829; SCAQMD Working Group Meeting # 4, Cumulative Impacts from Air Toxics for CEQA Projects (June 6, 2023) pg. 6; 19 Staff Report, Item D - 2467 of 3296. 20 Id. at 525 (citing Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 723. 21 Available at https://www.pitzer.edu/redfordconservancy/mapping-data-visualization/. 22 Id.; Clark, pg. 7. 3855
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The Staff Report’s statement that CARE CA speculates as to “updated thresholds” is erroneous because CARE CA’s comments link directly to the materials for SCAQMD’s working group meetings – these materials discuss updates to the thresholds.23 The Staff Report’s failure to discuss SCAQMD’s pending updates is inconsistent with the Staff Report’s statement that SCAQMD is the regulatory authority on air quality. In sum, the City’s rote application of SCAQMD significance thresholds without analysis of the context in which the Project is being proposed fails to satisfy the analytical and informational requirements of CEQA.

D. The FEIR’s Quantified Health Risk Analysis Underestimates Impacts
CARE CA’s comments on the FEIR identify flaws in the City’s Mobile Source Health Risk Assessment (“HRA”) that underestimate health risk impacts on residential and non-residential (worker) receptors in the vicinity of the Project. In Responses 1-12 and 1-13, the Staff Report disputes these flaws. The Staff Report maintains that “[a]ny variant in interpretation of OEHHA guidance such as is suggested by the commenter would not materially affect the EIR health risk significance conclusions” because “the Project site is surrounded by industrial uses and the nearest sensitive receptor locations are short-term stay hotels located on the opposite side of freeways with the closest being approximately 3/4-mile from the Project site.”24
The Staff Report’s statement regarding distance from sensitive receptors ignores that the Project would generate truck trips impacting sensitive receptors along the City’s designated truck routes.25 The Project’s primary truck routes would depend on the Project’s future uses. Despite uncertainty regarding the Project’s future tenants, the HRA makes an unsubstantiated assumption regarding the Project’s primary truck route, shown in the exhibit below.26 23 SCAQMD, CEQA Policy Development, https://www.aqmd.gov/home/rules-compliance/ceqa/ceqapolicy-development-(new); SCAQMD Working Group Meeting # 4, Cumulative Impacts from Air Toxics for CEQA Projects (June 6, 2023) https://www.aqmd.gov/docs/defaultsource/ceqa/documents/wgm-4_20230602_final.pdf?sfvrsn=16; SCAQMD Working Group Meeting #5, Cumulative Impacts from Air Toxics for CEQA Projects (March 20, 2024) https://www.aqmd.gov/docs/default-source/ceqa/documents/wgm-5-20240320-final.pdf?sfvrsn=20. 24 Staff Report, Item D – 2468-9 of 3296. 25 The Ontario Plan, Mobility Element, Figure M-04, https://www.ontarioca.gov/sites/default/files/OntarioFiles/Planning/The%20Ontario%20Plann/Mobility/FIgure%20M-04%20Truck%20Routes.pdf. 26 FEIR, HRA Report, Exhibit 2-C. 3856
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The HRA only analyzes trucks travelling east along Airport Drive, away from sensitive receptors located west of the Project. Trucks could easily travel west on Airport Drive and north along Milliken Avenue, which are both City-designated truck routes.27 Sensitive receptors including Receptor R6 are located off Milliken Avenue, and could thus be impacted by cumulative truck trips from this Project and other warehouses. The HRA’s assumption that trucks would not travel west along Airport Drive underestimates impacts. A revised HRA must be prepared.

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recommending analysis of trips to the Ports, and presented evidence showing that trips to the Ports are a reasonably foreseeable consequence for a warehouse in the City of Ontario. In Response 1-16, the Staff Report states:

The commenter states that the Final EIR misinterprets the SCAQMD’s guidance and provides examples of previous SCAQMD comments on other, unrelated warehouse projects alleging that the Project’s truck trip length assumptions are not supported by substantial evidence. As discussed in Draft EIR Section 3.0, Project Description, the Project is proposed as a speculative development and the user(s) of the building is not known at this time (refer to Draft EIR p. 3-13). It is unknown and speculative at this time whether trucks serving the Project would travel to the Ports of Los Angeles and Long Beach as a trip origin or designation, given the complexities of supply chain routing and transportation geography. As stated in Response to Comment A-18 in the Final EIR, the trip lengths were derived by weighting the average trip lengths using traffic trip percentages.

The Staff Report apparently dismisses the SCAQMD comments as inapplicable without providing any evidence demonstrating that the Project’s truck trips would be limited to the local 40-mile average trip lengths analyzed in the FEIR, and without considering the additional guidance from SCAQMD contained in the letters which explains that truck trips to and from the ports should be analyzed.

Many of the SCAQMD letters recommending consideration of the distance to the Ports were in regard to “spec” warehouses with unknown tenants, just like the Project.28 The Staff Report and the FEIR’s responses fail to respond to this guidance with good faith, reasoned analysis,29 and still fail to provide any evidence demonstrating that goods brought in and out of the Project’s warehouses would primarily come from short-distance truck trips.

The Staff Report’s statement that it is speculative to assume trucks may travel to the Ports of Los Angeles and Long Beach also misstates the applicable legal standard. The City’s response ignores that an EIR must analyze reasonably foreseeable consequences of a Project. Public Resources Code Section 21065 provides, in part: “‘Project’ means an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical 28 SCAQMD, Comments on Notice of Availability of a Recirculated Draft Environmental Impact Report (EIR) for Rubidoux Commerce Park Project (Proposed Project) (SCH No. 2020110449) (October 9, 2023), available at https://www.aqmd.gov/docs/default-source/ceqa/commentletters/2023/october-2023/RVC230901-01.pdf (“the future tenant(s) of the building is not known”). 29 CEQA Guidelines, Section 15088 requires “good faith, reasoned analysis in response… Conclusory statements unsupported by factual information will not suffice.” The level of detail contained in the response may correspond to the level of detail provided in the comment. 3858
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change in the environment.”30 Here, the Project proposes a 270,337-square-foot industrial building with a proposed height of 46 feet on 13.08 acres of land. CARE CA’s comments contain evidence showing that trips to the Ports are a reasonably foreseeable outcome of a warehouse like this (citing to the massive volume of goods moving to and from the Ports, and recommendations from SCAQMD).31 In light of this evidence, the City’s assumption that trucks would not travel to the Ports is speculative, unsupported by substantial evidence, and is a failure to analyze a reasonably foreseeable use permitted by the Development Plan.

This letter contains additional substantial evidence showing that trips to the Ports are reasonably foreseeable. The National Center for Sustainable Transportation (“NCST”), sponsored by the California Department of Transportation, prepared a research report titled “Warehousing and Distribution Center Facilities in Southern California: The Use of the Commodity Flow Survey Data to Identify Logistics Sprawl and Freight Generation Patterns” in 2017.32 The report analyzed Southern California Association of Governments (“SCAG”) data on warehouses in the six counties that comprise the SCAG region (Imperial, Los Angeles, Orange, Riverside, San Bernardino, and Ventura). The report finds that 56% of the facilities in the SCAG region receive goods from the Port of Los Angeles and Long Beach, and around 50% deliver to Southern California warehouses, retail stores or manufacturing plants.33 This data suggests that trips to the Ports are reasonably foreseeable, and that it would be speculative not to account for distance to the Ports.

In June 2014, SCAQMD staff conducted a business survey of warehouse operators in the SCAQMD region.34 The survey found that 42% of goods going to high-cube warehouses in the SCAQMD region originated from the Ports, per the figure below.35
30 See Cal. Code Regs., tit. 14, § 15378; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376. 31 ABJC, Letter to City re: Agenda Item B – File No. PDEV22-017: 5355 East Airport Drive Project (SCH No. 2022090006) (April 15, 2024), Clark Comments, pg. 6. 32 NCST, Warehousing and Distribution Center Facilities in Southern California: The Use of the Commodity Flow Survey Data to Identify Logistics Sprawl and Freight Generation Patterns (July 2017), available at https://dot.ca.gov/-/media/dot-media/programs/research-innovation-systeminformation/documents/final-reports/ca17-2975-finalreport-a11y.pdf. 33 Id. at 6-7. 34 SCAQMD, SCAQMD High Cube Warehouse Truck Trip Study White Paper Summary Of Business Survey Results (June 2014), available at https://www.aqmd.gov/docs/defaultsource/ceqa/handbook/high-cube-warehouse-trip-rate-study-for-air-quality-analysis/business-surveysummary.pdf. 35 Id. at pg. 11. 3859
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During discussion at the April 15, 2024 Development Advisory Board hearing, a City consultant suggested that if the Project only makes truck trips to other warehouses, it would not be necessary to evaluate distance to the Ports. The figure above shows that only a small percentage of goods come from other warehouses and that the lion’s share of goods are from the Ports. Thus, it would be speculative to disregard the Project’s distance from the Ports in analyzing its impacts.

CARE CA’s prior comments discussed the volume of goods passing through the Ports. 32 percent of all containers in the U.S. move through the Ports.36 36 SCAG, ConnectSocal, Technical Report re Goods Movement (Adopted September 3, 2020), pg. 9, available at https://scag.ca.gov/sites/main/files/file-attachments/0903fconnectsocal_goodsmovement.pdf?1606001690. 3860
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Approximately 40 percent of the total U.S.-Asia trade is served by the Ports, and 40 percent of the imports entering the Ports are transloaded or cross-docked.37 Substantial evidence also demonstrates the demand for port-related warehouse space is expected to expand. SCAG’s 2012-2035 Regional Transportation Plan forecasts that “Demand for port-related warehouse space is projected to grow at a faster pace than demand for domestic warehousing… As space near the San Pedro Bay Ports reaches capacity, port warehousing will push out to the Inland Empire…. By 2035, the region may experience a shortfall of more than 228 million square feet in warehouse space relative to demand.”38 The table below reflects SCAG’s forecasts for growth in demand for port-related warehouse space. The growth in the port-related market is expected to be much higher than the domestic market.39
In sum, substantial evidence demonstrates that trips to the Ports are reasonably foreseeable for a spec warehouse proposed in the SCAG region, like this one. The lack of a specific tenant identified for the Project does not justify omission 37 SCAG, Industrial Warehousing in the SCAG Region – Task 3: Assessment of Supply Chain Strategies and Implications for Future Development (April 2018), Pg. 1-4, 1-5, https://scag.ca.gov/sites/main/files/file-attachments/task3_supplychaintrends.pdf?1604268170. (Transloading refers to transferring of import cargo from ocean containers into domestic 53-foot containers and trailers for onward movement to U.S. inland destinations via rail or truck.

Crossdocking is a type of transloading in which the cargo is transloaded within approximately 24 hours of arriving at the transload facility.).
38 SCAG, 2012-2035 RTP/SCS, pg. 68, available at https://libraryarchives.metro.net/dpgtl/scag/2012- 2035-regional-transportation-plan.pdf. 39 SCAG, Industrial Warehousing in the SCAG Region – Task 5: Developing a Policy Evaluation Framework and Assessing the Implications (April 2018), Pg. 2-11, available at https://scag.ca.gov/sites/main/files/fileattachments/task5_developingpolicyevaluation.pdf?1604268239. 3861
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of this analysis. As a result of this omission, the FEIR underestimates transportation, air quality, and GHG impacts.

F. The FEIR Still Fails to Include Sufficient Investigation into Energy Conservation Measures
CARE CA commented that the FEIR fails to include sufficient investigation into energy conservation measures that might be available or appropriate for the Project, as required by the CEQA Guidelines.40 CARE CA’s comments discussed the decision in California Clean Energy Commission v. City of Woodland (“CCEC”),41 in which the Court of Appeal held that an EIR failed to comply with the requirements of Appendix F to the Guidelines by not discussing or analyzing renewable energy options.42
In Response 1-20, the Staff Report suggests that discussion of energy consumption measures is not required for this Project because its energy impacts are less than significant.43 The City continues to make the same error as the lead agency in CCEC because the EIR in that case also identified a less-than-significant energy impact.44 The court held that the EIR must nonetheless analyze energy consumption measures.45
Response 1-20 provides a “CEQA Guidelines Appendix F Energy Analysis” in Table 1-1.46 Table 1-1 addresses factors listed in Appendix F, subdv. II(C), but fails to include any discussion of renewable energy options. As explained in CCEC, an EIR fails to comply with the requirements of Appendix F by not discussing or analyzing renewable energy options.47 And as explained in CARE CA’s prior comments, this FEIR must analyze the feasibility and effectiveness of measures including onsite solar facilities, electric vehicle charging, alternative fuel sources for the backup generators, more stringent idling requirements, and use of existing power sources during construction rather than generators.

The Staff Report contains additional responses regarding energy in Responses 1-21 to 1-25, but none address the feasibility of reducing energy 40 14 Cal. Code Regs., § 15126.4(a)(1)(C) (stating “‘Energy conservation measures, as well as other appropriate mitigation measures, shall be discussed when relevant.”). 41 (2014) 225 CA4th 173. 42 Id. at 213.
43 Staff Report, Item D - 2471 of 3296. 44 CCEC, supra, 225 CA4th 173 at 183. 45 Id. at 213.
46 Staff Report, Item D - 2471 of 3296. 47 CCEC, supra, 225 CA4th 173 at 213. 3862
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consumption through onsite solar facilities. Response 1-21 states that the City need not evaluate using alternative fuel sources for backup generators because their emissions would be less-than-significant.48 Again, the Staff Report makes the same mistake proscribed in CCEC by assuming no analysis of energy consumption measures is required if the Project’s energy impact is less-than-significant.49 In Response 1-22, the City states that it would be infeasible to set more stringent idling requirements over existing requirements because there is no enforcement mechanism that the City can assure to enforce adherence.50 But the City is authorized under Development Code Section 4.02.025(E) to impose conditions of approval to protect public health and mitigate environmental impacts.

Section 4.02.025(E)(3) states that “All conditions of approval or requirements authorized by this Section are enforceable in the same manner and to the same extent as any other applicable requirement of this Development Code.” Unenforceability is thus not a valid reason not to consider a more stringent idling requirement.

In Response 1-23, the Staff Report states that the FEIR adequately evaluated the feasibility of utilizing existing power sources (e.g., power poles) or alternative fuel generators rather than temporary power generators during construction. The Response seems to misunderstand the nature of CARE CA’s comment by discussing how “new dry utility infrastructure would be installed underground.”51 Instead, the FEIR should have included a discussion on the feasibility of a measuring limiting use of diesel generators during construction.

In Response 1-25, the Staff Report states that it meaningfully addresses Appendix F’s considerations of “whether a building should be constructed at all, how large it should be, where it should be located, whether it should incorporate renewable energy resources, or anything else external to the building's envelope.”52 But neither the Staff Report nor the FEIR contain this analysis.

In sum, the FEIR’s energy analysis remains wholly inadequate. The Staff Report and the FEIR make no attempt to evaluate the feasibility of onsite renewable energy generation and storage, and fail to consider the feasibility of electric vehicle charging beyond existing requirements. And the Staff Report’s 48 Staff Report, Item D - 2473 of 3296. 49 CCEC, supra, 225 CA4th 173 at 213. 50 Staff Report, Item D - 2474 of 3296. 51 Staff Report, Item D - 2474 of 3296. 52 Staff Report, Item D - 2474 of 3296. 3863
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responses to proposed energy consumption measures in Responses 1-21 to 1-25 are generally nonresponsive and fail to meet CEQA’s requirements.

III. THE COMMISSION CANNOT MAKE THE REQUISITE FINDINGS TO

APPROVE THE PROJECT
Section 4.02.025(D) of the City of Ontario Municipal Code sets forth findings necessary to approve a development plan. The Code provides that an application for a development plan shall be denied if the following finding (among others) cannot be clearly established: “The proposed development will complement and/or improve upon the quality of existing development in the vicinity of the project and the minimum safeguards necessary to protect the public health, safety and general welfare have been required of the proposed project.”53
The Project would have a significant and unavoidable VMT impact. And the Project has potentially significant vapor intrusion, health risk, air quality, GHG, and energy impacts which have been underestimated in the FEIR. Because the Project’s impacts on public health, safety and general welfare have not been adequately analyzed and mitigated, the City cannot make the requisite findings to approve the Project. A revised EIR must be recirculated before the Project can be recommended for approval.

IV. CONCLUSION
As is explained herein, the FEIR’s hazards, air quality, health risk, energy, and transportation analyses remain substantially inaccurate and incomplete, failing to comply with the requirements of CEQA. As a result, the FEIR still fails to adequately disclose and mitigate the Project’s significant impacts. As a consequence of these impacts, the City cannot make the requisite findings under CEQA to certify the FEIR or under the City of Ontario Municipal Code to approve the Project’s Development Plan. CARE CA urges the Commission to require the City revise and recirculate the EIR before any further action is taken on the Project.

Sincerely,
Aidan P. Marshall
Attachment
APM:acp
53 Section 4.02.025(D)(3).
3864

EXHIBIT A
3865

May 28, 2024
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080
Attn: Mr. Aidan Marshall
Subject: Comments On Staff Report For Final Environmental Impact Report (DEIR) 5355 Esat Airport Drive, City of
Ontario, CA SCH No. 202209006
At the request of Adams Broadwell Joseph & Cardozo (ABJC), Clark and Associates (Clark) has reviewed materials related to the August 2023 City of Ontario’s (the City) DEIR of the above referenced project.

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

Project Description:

According to the City of Ontario’s Development Advisory Board Decision File No. PDEV22-017 – Draft EIR (dated March 18, 2024), the draft EIR consists of a Development Plan application to construct a 270,337 square-foot industrial building on the 13.08 acres of the Project site. The Project would require the demolition of the existing buildings and structures, on-site landscaping, and on-site parking. The design would also include the installation of site improvements, including drive aisles, landscaping, utility infrastructure, underground storm drain detection facilities, exterior lighting, walls/fencing, and signage along with improvements to East Airport Drive.

Clark & Associates
Environmental Consulting, Inc.

OFFICE
12405 Venice Blvd
Suite 331
Los Angeles, CA 90066
PHONE
310-907-6165
FAX
310-398-7626
EMAIL
[email protected]
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Figure 1: Site Location Map
Under existing conditions, the Project Site is developed with a grain processing company and a corn storage and distribution facility. The eastern portion of the Project Site contains grain storage silos, grain mill area, and five buildings that are used for maintenance and repair, grain storage, and service shop. The western portion of the Project Site contains enclosed grain storage, with an office trailer. A vehicle wash-down area is also present on the northeastern portion of the Site. Several subsurface septic systems are located beneath the Site to serve the existing uses. 3867
In the Meeting Agenda for the May 28th, 2024 City of Ontario Planning Commission/Historic Preservation Meeting Agenda, the City included responses from T&B Planning (T&B) to comments on the Final EIR for the Project provided by CARE CA. The responses from T&B for the City in total claim that no new information has been provided within the comments. This assertion is not supported by the information provided within the responses from CARE.

Specific Comments

1. Comment 1-12: The City’s Air Quality Analysis Did Not Incorporate Building Downwash In The AERMOD Analysis.

T& B claims that building downwash is not appropriate for volume or area sources. This is incorrect. The choice to model the idling trucks, which are movable discrete point sources onsite below the line of the building roof, is a controllable feature in the AERMOD model. Volume sources are defined in the AERMOD Users Guide as included a variety of industrial sources, such as building roof monitors, multiple vents, and conveyor belts.1 Volume sources are characterized as having a defined specific release height above the ground, an initial lateral dimension of the volume, and an initial vertical dimension. While the assumption that roadways and idling trucks in the Health Risk Assessment can be modeled as a line of volume sources, it must be pointed out that emissions from idling trucks and moving trucks will come from the exhaust pipe(s) to the engine, releasing diesel particulate matter (DPM) from a raised pipe at a specific rate (a point source). Therefore, the use of building downwash in the model to ensure that the modeled concentrations are not underestimated is appropriate. Omission of the building downwash effect underestimates the exposure point concentrations for receptors near the building(s). T&B, in Response 1-12, states that the Project’s Air Quality Impact Analysis experts (Technical Appendix B1 of the Draft EIR) have concluded that truck idling emissions sources resulting from the Project would not be materially affected by downwash, but it is important to note that the HRA does not quantify the effects of downwash. The City should address the impact of this issue in a Revised DEIR.

2. Comment 1-41: The Air Quality Analysis Relies On An Input Value From AP-42 That 1 U.S. EPA. 2023. User's Guide for the AMS/EPA Regulatory Model (AERMOD). Pg 3-68 3868
Is Rated As Poor And Maybe Unreliable
T&B’s response that the impact from a poorly rated AP-42 value is incorporated into the analysis is not new evidence is not supported by the evidence in the FEIR. As was noted in my prior comments, the CalEEMOD analysis of the construction emissions incorporates various factors from U.S. EPA’s Emission Factors Handbook (AP-42). The AP-42 emission factor for crushing stones used in the CalEEMOD analysis is rated E. This is the worst rating in AP-42, which according to U.S.

EPA may not represent a random sample of the industry. The City’s response to the questioning of the rating of the emission factor was qualitative at best, failing to show any quantitative analysis of the potential impacts. The City should assess the impacts of this variable in a Revised DEIR.

3. Comment 1-16: The Average Truck Trip Length Of 40 Miles Used In The Air Quality Analysis Does Not Match The Length(s) Used To Support Other Warehouse Projects.

According to T&B’s response, the Project is proposed as a speculative development and the user(s) of the building. T&B goes on to state that it is unknown and speculative at this time whether trucks serving the Project would travel to the Ports of Los Angeles and Long Beach as a trip origin or designation, given the complexities of supply chain routing and transportation geography. This line of reasoning clearly conflicts with the goals of CEQA to analyze the foreseeable and reasonable emissions from the Project.

This statement also does not comport with the reality of where warehoused materials will ship from in the region. The 40-mile distance is insufficient to allow vehicles to travel to the major ports in the Southern California region – Los Angeles and Long Beach. These Ports are the largest source(s) of containerized products, and therefore the primary sources of heavy-duty truck traffic, on the West Coast of the United States are the Ports of Los Angeles and Long Beach. “In 2020, the Ports of Los Angeles, Long Beach, and Oakland collectively accounted for over 34% of all United States international container trade. The Ports of Los Angeles and Long Beach alone generate about 35,000 container truck trips every day. Accordingly, the South Coast Air Basin now contains approximately 3,000 warehouses of over 100,000 square feet each, with a total warehouse capacity of approximately 3869
700 million square feet, an increase of 20 percent over the last five years”), 2 citing data from the
Bureau of Transportation Statistics, Container TEUs (Twenty-foot Equivalent Units)3 from 2020, the Ports of Los Angeles, Long Beach, and Oakland combined for 14.157 million TEUs, 34% of 41.24 million TEUs total nationwide.
4 The distance from the Port of LA to the Project site is approximately 62 miles via Interstate 15 to Route 91 to Interstate 710.

Using the 62-mile daily truck trip will nearly double the daily emissions of pollutants associated with the Project, increasing the regional burden and resulting in a potentially significant impact. The City must address the impact of this issue in a R-FEIR.

4. Additional Comments On The FEIR
a. The Truck Route Assumed For The Project Site Ignores The Traffic Constraints Of The Project Site
The truck route assumed in the FEIR assumes traffic will only exit the Project Site and turn left on East Airport Drive to S. Etiwanda Avenue. This route requires the trucks using the Project Site to cross (turn left out of the Project Site) Airport drive and to cross South Etiwanda Drive (turn left onto S. Etiwanda Avenue). The assumed distance to the 10 freeway is approximately 0.8 mile. An alternate route for traffic was not assessed in the FEIR which is longer than the primary route, but would have fewer traffic challenges for the drivers. Assuming trucks exit the Project Site and turn right (avoiding the delay getting across Airport Drive) then turn right on South Milliken Avenue, the vehicles will also be able to reach the 10 Freeway. The distance for this route is approximately 1.6 miles and is closer to the residential properties identified in the FEIR. The City must consider this alternate route and the air quality impacts in a R-FEIR. b. The HRA And Air Quality Analysis Failed To Assess A Receptor Closer To The Project Site Than The Residential Properties To The Northwest – The San Bernardino County West Valley Detention Center
2 Available at https://oag.ca.gov/system/files/media/warehouse-best-practices.pdf 3 https://data.bts.gov/stories/s/Container-TEU/x3fb-aeda/ 4 U.S. Dept. of Transportation, Federal Highway Administration, FHWA Operations Support – Port Peak Pricing Program Evaluation (2020), available at https://ops.fhwa.dot.gov/publications/fhwahop09014/sect2.htm 3870
The HRA and Air Quality Analysis failed to consider a significant receptor near the Project Site. The San Bernardino County West Valley Detention Center is located approximately 5,600 feet north northeast of the Project Site at 9500 Etiwanda Ave in Rancho Cucamonga. The Detention Center houses approximately 3,347 inmates and 600 workers.

The Detention Center is nearly 3,000 feet closer to the Project Site, and is nearer the proposed truck route, than the residential property identified in the HRA. The City must assess the impacts of the Project emissions on this receptor center in a revised DEIR. c. The Cumulative Analysis Of The Project Failed To Consider The Significant Number Of Existing Warehouse Projects In The Vicinity
Based on the current analysis of warehouse projects within a 5-kilometer radius (3.1 miles) of the Project Site, there are 595 current warehouses, totaling 126,400,000 square feet of floor space.
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Those projects account for 85,000 truck trips per day, which emit 117.6 lbs of DPM and 13, 243 lbs of NOx per day. There is an additional 7,400,000 square feet of warehousing that is either approved or undergoing CEQA review (includes the Airport Site). The cumulative impacts must be considered in a revised DEIR.

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

Sincerely,
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ATTACHMENT D
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KEVIN T. CARMICHAEL
CHRISTINA M. CARO
THOMAS A. ENSLOW
KELILAH D. FEDERMAN
RICHARD M. FRANCO
ANDREW J. GRAF
TANYA A. GULESSERIAN
DARION N. JOHNSTON
RACHAEL E. KOSS
AIDAN P. MARSHALL
ALAURA R. McGUIRE
TARA C. RENGIFO
Of Counsel
MARC D. JOSEPH
DANIEL L. CARDOZO

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

ADAMS BROADWELL JOSEPH & CARDOZO A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
601 GATEWAY BOULEVARD, SUITE 1000
SOUTH SAN FRANCISCO, CA 94080 - 7037
___________
TEL: (650) 589 - 1660
FAX: (650) 589 - 5062
amarshall @adamsbroadwell.com
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August 27, 2024
Via Email
City of Ontario Planning Commission
303 East B Street
Ontario, CA 91764
Email: [email protected]
Thomas Grahn, Senior Planner
City of Ontario Planning Department
Email: [email protected]
Re: Agenda Item B – File No. PDEV22-017: 5355 East Airport Drive Project (SCH No. 2022090006)
Dear Planning Commission Members and Mr. Grahn:

On behalf of Californians Allied for a Responsible Economy (“CARE CA”), we submit these comments on the 5355 East Airport Drive Project (SCH No. 2022090006; File No. PDEV22-017) (“Project”), proposed by Prologis. Inc (“Applicant”) in the City of Ontario (“City”). The Project’s Final Environmental Impact Report (“FEIR”) and development plan will be considered at the August 27, 2024 Planning Commission meeting as Agenda Item B. The Commission will consider certification of the FEIR and approval of the Development Plan application.

On May 28, 2024, the Planning Commission conducted a hearing to consider the Project and continued the Project for further consideration. In advance of the hearing, CARE CA submitted comments on the FEIR showing that the FEIR failed to comply with the requirements of CEQA by failing to accurately disclose and mitigate potentially significant air quality, public health, greenhouse gas (“GHG”), energy, transportation, and cumulative impacts. The Staff Report contains responses1 to CARE CA’s comments on the FEIR. However, the responses fail to resolve the major flaws CARE CA and its experts identified in the FEIR. The 1 Letter from T&B Planning Inc. to City, re: 5355 East Airport Drive (PDEV22-017) – Response to May 28, 2024 Comment Letter from CARE CA (August 8, 2024). 3874
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responses primarily claim that any issues raised by CARE CA have already been addressed in the FEIR and prior responses. This is incorrect. As shown herein, the City’s responses fail to resolve the legal deficiencies identified in CARE CA’s comments, and do not bring the FEIR into compliance with CEQA. The Project’s environmental review remains inadequate.

We reviewed the Planning Commission Staff Report with the assistance of air quality expert Dr. James Clark2 and transportation expert Norm Marshall.3 CARE CA urges the Planning Commission to require the City revise and recirculate the EIR to comply with CEQA before any further action is taken on the Project.

A. The FEIR Improperly Defers Formulation of Mitigation Measures for Hazardous Materials
The Project’s Phase I/II Environmental Site Assessment shows that ethylbenzene concentration in one soil vapor sample exceeded the calculated soil gas commercial/industrial screening level of 163 micrograms per cubic meter.4 CARE CA commented that the FEIR fails to disclose this impact in the body of the FEIR or analyze the resultant health impacts on people, in violation of CEQA.5 The Court in Banning Ranch Conservancy v. City of Newport Beach explained:

The data in an EIR must not only be sufficient in quantity, it must be presented in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project. “[I]nformation ‘scattered here and there in EIR appendices,’ or a report ‘buried in an appendix,’ is not a substitute for “a good faith reasoned analysis....”6
In Responses CARE-5 and CARE-6, the Staff Report still fails to address this critical informational defect. The responses simply state that the Media Management Plan explains the mitigation procedures that will be undertaken for all earthwork that involves chemically impacted soil.7 But the Media Management Plan provides only general guidance on how impacted soil would generally be 2 Dr. Clark’s technical comments and curricula vitae are attached hereto as Exhibit A. 3 Mr. Marshall’s technical comments and curricula vitae are attached hereto as Exhibit B. 4 FEIR, Phase I/II Environmental Site Assessment, pg. viii. 5 DEIR, Page 4.7-13 (discussing contaminants in excess of thresholds). 6 Banning Ranch Conservancy v. City of Newport Beach, 2 Cal.5th 918, 941 (citing Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442). 7 Staff Report, Letter from T&B Planning Inc., pg. 2-3. 3875
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addressed – it does not address the FEIR’s informational flaw of failing to disclose whether ethylbenzene contamination is a significant impact requiring mitigation.

CARE CA also commented that the FEIR improperly defers formulation of mitigation for PCE and ethylbenzene contamination. It is unclear whether the City will remove PCE and ethylbenzene contaminated soil or adopt passive/engineered vapor intrusion mitigation such as installing a vapor barrier or venting. Responses CARE-5 and CARE-6 state that the Media Management Plan explains the mitigation procedures that will be undertaken for all earthwork that involves chemically impacted soil.8 But the Media Management Plan simply describes best practices for any required earthwork activities at the Project site. The Plan does not specify whether passive/engineered vapor intrusion mitigation may be employed as opposed to removal of all impacted soil, does not quantify the impacts associated with each form of mitigation (e.g. construction impacts associated with excavation, removal and backfilling contaminated soil versus impacts of installing vapor intrusion barriers), and does not commit the City of the Applicant to specific binding mitigation. As such, the Staff Report fails to address CARE CA’s comments regarding the Project’s significant soil contamination issues.

B. The City Still Fails to Adequately Evaluate Trips Generated by the Project
CARE CA’s comments on the FEIR demonstrated that the Project’s size and number of parking spots would enable it to be used as a High Cube Parcel Hub Warehouse, which has a trip generation rate 2.6 times the rate used in the FEIR.

Responses CARE-7 and CARE-8 state that “the Lead Agency maintains its position regarding accuracy and adequacy of the EIR trip generation estimates” and “no further response is required.”9 Response CARE-8 further states that “[b]ased on the Project’s design, there is no reasonable possibility that the Project could be used as a parcel hub.”10
The City has not provided substantial evidence in support of this claim.

Conversely, transportation expert Mr. Marshall discusses the Project’s features in detail, demonstrating that it could be used as a parcel hub.11 Mr. Marshall and CARE CA’s comments demonstrate that the proposed structure has adequate square feet to support use as a parcel hub (at least 200,000 sf), has a ceiling height 8 Staff Report, Letter from T&B Planning Inc., pg. 2-3. 9 Staff Report, Letter from T&B Planning Inc., pg. 3.
10 Id. 11 Marshall Comments, pg. 4-5.
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of 24 feet or more, and has adequate parking.12 The City fails to rebut this evidence with any evidence.

C. The FEIR Still Fails to Adequately Disclose, Analyze and Mitigate the Project’s Cumulative Impacts
CARE CA commented that the FEIR’s analysis of cumulative impacts is inadequate because it fails to consider the cumulative impacts of past, present, and probable future projects. In summary, the City’s approach to cumulative impacts is that emissions of criteria air pollutants or toxic air contaminants that do not exceed individual project thresholds set by South Coast Air Quality Management District (“SCAQMD”) are also not cumulatively considerable.13 CARE CA’s comments explained that rote application of SCAQMD significance thresholds without analysis of the context in which the Project is being proposed fails to satisfy the analytical and information requirements of CEQA, per caselaw such as Kings County Farm Bureau v. City of Hanford.14
Responses CARE-9 and CARE-10 state that the FEIR and prior responses to comments already adequately responded to these comments, and no further response is necessary.15 But at no point have the City’s responses meaningfully addressed the caselaw proscribing the City’s invalid approach to cumulative impacts. Response CARE-11 reiterates that the City is complying with current South Coast Air Quality Management District (“SCAQMD”) guidance, as opposed to pending updates to the cumulative impacts guidance. Again, this response ignores the underlying legal mandates for these updates, which include recent CEQA cases such as People of the State of California v. City of Fontana.16 D. The FEIR’s Quantified Health Risk Analysis Underestimates Impacts
CARE CA commented that the City’s Mobile Source Health Risk Assessment (“HRA”) underestimates health risk impacts on sensitive receptors. One issue is that the HRA only analyzes trucks travelling east along Airport Drive, away from sensitive receptors located west of the Project. Trucks could easily travel west on 12 Id.; CARE CA letter to City re: Agenda Item D – File No. PDEV22-017: 5355 East Airport Drive Project (SCH No. 2022090006) (May 28, 2024), pg. 6.
13 DEIR, Appendix B, pg. 53. 14 Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d 692 (“Kings County”); see also, Friends of Oroville v. City of Oroville (2013) 219 Cal. App. 4th 832, 841-42. 15 Staff Report, Letter from T&B Planning Inc., pg. 3-4. 16 San Bernardino Superior Court, Case No. CIVSB2121829; SCAQMD Working Group Meeting # 4, Cumulative Impacts from Air Toxics for CEQA Projects (June 6, 2023) pg. 6; 3877
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Airport Drive and north along Milliken Avenue, which are both City-designated truck routes. Response CARE-13 states that “[e]ven if trucks travel to and from the Project site along the route as the commenter suggested, it would not materially affect the EIR health risk significance conclusions, as the risks are well below the significance threshold.”17 This statement is not supported by any quantitative analysis. Further, the claim that risks are well below the significance threshold is based on calculations that assume trucks would travel east, away from sensitive receptors. Thus, the City’s response is not supported by substantial evidence.

CARE CA’s air quality expert also demonstrated that the HRA failed to account for building downwash and relied on unreliable input values. Responses CARE-27 and CARE-28 state that no additional response is required regarding these issues. Dr. Clark’s comments, attached, demonstrate that the HRA’s methodological flaws and unsupported conclusions have not been resolved.

E. The FEIR Still Underestimates Truck Trip Lengths and Resultant Impacts
CARE CA commented that the FEIR underestimates truck trip lengths by failing to account for the Project’s distance to the Ports of Los Angeles and Long Beach. CARE CA presented numerous comment letters from SCAQMD recommending that warehouse project’s analyze trips to the Ports, and presented evidence showing that trips to the Ports are a reasonably foreseeable consequence for a warehouse in the City of Ontario. Responses CARE-14 and CARE-15 respond that “[t]he commenter raises no new or additional environmental issues” and “no further response is required.”18
Further response is necessary because the City’s previous response (Response 1-16) in the May 28, 2024 Staff Report erroneously stated that the SCAQMD guidance is inapplicable to this Project because this Project would be a speculative warehouse.19 But as explained in CARE CA’s prior comments, SCAQMD advises 17 Staff Report, Letter from T&B Planning Inc., pg. 4.
18 Staff Report, Letter from T&B Planning Inc., pg. 5.
19 “The commenter states that the Final EIR misinterprets the SCAQMD’s guidance and provides examples of previous SCAQMD comments on other, unrelated warehouse projects alleging that the Project’s truck trip length assumptions are not supported by substantial evidence. As discussed in Draft EIR Section 3.0, Project Description, the Project is proposed as a speculative development and the user(s) of the building is not known at this time (refer to Draft EIR p. 3-13). It is unknown and speculative at this time whether trucks serving the Project would travel to the Ports of Los Angeles and Long Beach as a trip origin or designation, given the complexities of supply chain routing and transportation geography. As stated in Response to Comment A-18 in the Final EIR, the trip lengths were derived by weighting the average trip lengths using traffic trip percentages.” 3878
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speculative warehouses to analyze trips to the Ports.20 The City has not corrected this omission or meaningfully addressed this issue.

In response to the studies presented in CARE CA’s comments showing that trips to the Ports are reasonably foreseeable, Response CARE-16 argues that the studies show that it is more likely that the Project will not service the Ports.21 But as explained in CARE CA’s prior comments, an EIR must analyze reasonably foreseeable consequences of a project.22 Here, the Project proposes a 270,337- square-foot industrial building with a proposed height of 46 feet on 13.08 acres of land. CARE CA’s comments contain evidence showing that trips to the Ports are a reasonably foreseeable outcome of a warehouse like this (citing to quantitative evidence regarding the massive volume of goods moving to and from the Ports, as well as specific recommendations from SCAQMD).23 In light of this evidence, the City’s assumption that trucks would not travel to the Ports is unsupported by substantial evidence and is a failure to analyze a reasonably foreseeable use permitted by the Development Plan, as required by CEQA.

F. The FEIR Still Fails to Include Sufficient Investigation into Energy Conservation Measures
CARE CA commented that the FEIR fails to include sufficient investigation into energy conservation measures that might be available or appropriate for the Project, as required by the CEQA Guidelines.24 CARE CA’s comments discussed the decision in California Clean Energy Commission v. City of Woodland (“CCEC”),25 in which the Court of Appeal held that an EIR failed to comply with the requirements of Appendix F to the Guidelines by not discussing or analyzing renewable energy options.26 Response CARE-17 states “[t]his comment does not raise any new issues concerning the environmental analysis provided in the Draft EIR and thus no further response is required.”27
20 SCAQMD, Comments on Notice of Availability of a Recirculated Draft Environmental Impact Report (EIR) for Rubidoux Commerce Park Project (Proposed Project) (SCH No. 2020110449) (October 9, 2023), available at https://www.aqmd.gov/docs/default-source/ceqa/commentletters/2023/october-2023/RVC230901-01.pdf (“the future tenant(s) of the building is not known”). 21 Staff Report, Letter from T&B Planning Inc., pg. 5. 22 Public Resources Code Section 21065; see Cal. Code Regs., tit. 14, § 15378; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376. 23 ABJC, Letter to City re: Agenda Item B – File No. PDEV22-017: 5355 East Airport Drive Project (SCH No. 2022090006) (April 15, 2024), Clark Comments, pg. 6. 24 14 Cal. Code Regs., § 15126.4(a)(1)(C) (stating “‘Energy conservation measures, as well as other appropriate mitigation measures, shall be discussed when relevant.”). 25 (2014) 225 CA4th 173.
26 Id. at 213.
27 Staff Report, Letter from T&B Planning Inc., pg. 6.
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Further response is necessary because the City has not yet analyzed the feasibility and effectiveness of measures including onsite solar facilities, such as rooftop, parking lot, or ground-level solar photovoltaics. The City has not addressed considerations such as the technical and economic feasibility of installing solar facilities on the Project site, the potential size of the Project’s solar zone, and the potential magnitude of mitigation provided by installing solar facilities. The City has not evaluated the extent to which mobile source energy consumption could be reduced during Project operations through electric vehicle charging infrastructure (above what is required by existing regulations).

Response CARE-18 simply states that the Project would be solar ready, but this information does not meet CEQA’s requirements discussed herein and in CARE CA’s prior comments. As such, the Project’s energy analysis remains inadequate.

II. CONCLUSION
As is explained herein, the Staff Report does not correct major flaws in the FEIR’s hazards, air quality, health risk, energy, and transportation analyses. The Project’s environmental review remains substantially inaccurate and incomplete, failing to comply with the requirements of CEQA. As a result, the City cannot make the requisite findings under CEQA to certify the FEIR or under the City of Ontario Municipal Code to approve the Project’s Development Plan.

CARE CA urges the Commission to comply with CEQA and require the City revise and recirculate the EIR before any further action is taken on the Project.

Sincerely,
Aidan P. Marshall
Attachments
APM:acp
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EXHIBIT A
3881

August 23, 2024
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080
Attn: Mr. Aidan Marshall
Subject: Response To Comments Prepared By T&B Planning for City of Ontario Regarding 5355 East Airport Drive, City of Ontario, CA PDEV22-017
At the request of Adams Broadwell Joseph & Cardozo (ABJC), Clark and Associates (Clark) has reviewed the August 8, 2024 Memorandum from T&B Planning regarding the above referenced project.

Specific Comments

1. CARE-4/CARE-5: Failure To Disclose Impacts Of
Ethylbenzene Concentrations In The Subsurface Soils At
The Site And Development of Mitigation Measures For
Worker Safety.

T&B’s response refers us to the Media Management
Plan (Attachment F to the Final EIR). Despite the statement from T&B. that attachment F to the Final EIR is the Media Management Plan from Farallon, it is clear that the file was never attached to the FEIR that is posted at the City of Ontario’s website. The Plan is attached to Item B starting on Clark & Associates
Environmental Consulting, Inc.

OFFICE
12405 Venice Blvd
Suite 331
Los Angeles, CA 90066
PHONE
310-907-6165
FAX
310-398-7626
EMAIL
[email protected]
3882
page 3039 of the 3379 included in the pdf. According to the Media Management Plan the subject property will be redeveloped as an approximately 250,000 square foot (footprint) warehouse. This is different from the 270,337 square foot industrial building description of the project listed in the Planning Commission Agenda Report.

This comment was specifically to address concerns over the presence of at least two known carcinogens (PCE and ethylbenzene) that were measured onsite in the soil and or soil vapor at the site. Mitigation of the carcinogens prior to initiating redevelopment of the property would ensure workers safety onsite. The Media Management Plan states that “if Contractor encounters an unanticipated condition, the Contractor will stop work, secure the work area, and notify Prologis within 24 hours of discovery of the condition. Prologis will identify and contact the appropriate entity to respond to the unanticipated condition. The procedures that will be followed in the event that an unanticipated subsurface structure is discovered are summarized below:
• A licensed Contractor or an Environmental Professional will remove and containerize any observed residual liquid, sludge, or sediment in the subsurface structure, and will characterize the residual material(s) as required by the waste-receiving facility(ies); • The Contractor will remove the subsurface structure in compliance with applicable laws and regulations, and under permit from and oversight by the applicable regulatory agency, if required;
• Soil removal actions will be performed in accordance with the procedures outlined in this MMP; and
• The area will be cleared after any required regulatory authorization has been obtained from the permitting agency, so work may proceed.”
This approach relies upon the construction workers onsite being able to identify environmental hazards that may not necessarily include visible staining of soils or visible emissions. Prior to any demolition of the site, preparation of a site-specific remedial action work (RAW) plan should be initiated to protect workers onsite. The purpose of the RAW would be to:
1) present and evaluate existing Site conditions; 2) establish appropriate removal action objectives (RAOs) for protection of human health and the environment; and 3) evaluate alternatives and 3883

identify a final recommendation for a removal action at the Site that is protective of human health and the environment.

2. CARE-14, CARE-15, CARE-16, and CARE-29: The Average Truck Trip Length Of 40 Miles Used In The Air Quality Analysis Does Not Match The Length(s) Used To Support Other Warehouse Projects.

According to T&B’s response no new or additional environmental issues have been raised with these comments. The EIR’s flaws have not been resolved regarding the average trip length in the air quality analysis. T&B quotes from the National Center for Sustainable Transportation (NCST) report on Southern California Warehouse and Distribution Center Facilities noting that “the study also stated that “around 62% of the facilities in the SCAG region (approximately 4,900 buildings) are facilities larger than 50,000 sf mainly serving non-port related services. Most of the flow of goods by truck (85% of trips) found in the area is associated with local or intra-regional trips while international shippers have a higher use share of rail and air networks. Activities at port-related warehouses which locate in the Gateway cities focus mainly in transloading, deconsolidation and some value added services. National and international distribution centers are found mainly in the Inland Empire region.”1
T&B fails to include the next paragraph which notes2 “Among the six counties (Imperial, Los Angeles, Orange, Riverside, San Bernardino, and Ventura) that comprise the SCAG region, Los Angeles (31.2%), Riverside (21.2%) and San Bernardino (30.2%) account for the largest share of total miles of primary freight network (SCAG, 2016). Consequently, the majority of the facilities (larger than 50,000 sq. ft.) are located in these counties. In terms of the available land for new warehouses, the Inland Empire shows the highest availability (Figure 2) (SCAG, 2009). 56% of the facilities receive goods from the Port of Los Angeles and Long Beach, and around 50% deliver to Southern California warehouses, retail stores or manufacturing plants.” (Emphasis added). Clearly the NCST report 1 NCST. 2017. Warehousing and Distribution Center Facilities in Southern California: The Use of the Commodity Flow Survey Data to Identify Logistics Sprawl and Freight Generation Patterns: A Research Report from the National Center for Sustainable Transportation. Prepared by Miguel Jaller and Leticia Pineda. Dated July 2017. Pg. 6 2 Ibid Pg. 6-7.
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validates that the majority of facilities in the SCAG region receive goods from the Ports of Los Angeles and Long Beach.

As I previously stated in comments on the Project, the 40-mile distance is insufficient to allow vehicles to travel to the major ports in the Southern California region – Los Angeles and Long Beach.

The distance from the Port of LA to the Project site is approximately 62 miles via Interstate 15 to Route 91 to Interstate 710. Using the 62-mile daily truck trip will nearly double the daily emissions of pollutants associated with the Project, increasing the Regional burden and resulting in a potentially significant impact.

3. CARE 20: Emissions From Diesel Generators.

T&B states that “The intermittent use of a backup generator during either construction or operation would not result in a substantial or measurable amount of emissions, since by the very nature of the activity, it would be short-term, intermittent, and infrequent. Thus, contrary to the commenter’s assertion, measures to reduce this source of temporary and intermittent use of energy is not required.

The City’s experts disagree with the commenter and no further response is required” This comment ignores the essence of the comment, which is that the site will have an additional stationary source of diesel particulate matter (DPM) onsite that was not accounted for in the air quality analysis.

As was noted in the EIRs, the primary toxic air contaminant (TAC) associated with the project will be DPM. Diesel exhaust, in particular DPM, is classified by the State of California as a TAC.

TACs, including DPM3, contribute to a host of respiratory impacts and may lead to the development of various cancers. Failing to quantify the carcinogenic and other health risk impacts places the community at risk for unwanted adverse health impacts. Even brief exposures to the TACs could lead to the development of adverse health impacts over the life of an individual. 3 Because DPM is a TAC, it is a different air pollutant than criteria particulate matter (PM) emissions such as PM10, PM2.5, and fugitive dust. DPM exposure causes acute health effects that are different from the effects of exposure to PM alone.
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Diesel exhaust has been linked to a range of serious health problems including an increase in respiratory disease, lung damage, cancer, and premature death.4,5,6 Fine DPM is deposited deep in the lungs in the smallest airways and can result in increased respiratory symptoms and disease; decreased lung function, particularly in children and individuals with asthma; alterations in lung tissue and respiratory tract defense mechanisms; and premature death.7 Exposure to DPM increases the risk of
lung cancer. It also causes non-cancer effects including chronic bronchitis, inflammation of lung tissue, thickening of the alveolar walls, immunological allergic reactions, and airway constriction.8

DPM is a TAC that is recognized by state and federal agencies as causing severe health risk because it contains toxic materials, unlike PM2.5 and PM10.
9 The inherent toxicity of TACs requires the City to first accurately quantify the concentration released into the environment from all sources and asses at each of the sensitive receptor locations through air dispersion modeling the ground-level concentration, calculate the dose of each TAC at that location, and quantify the cancer risk and hazard index for each of the chemicals of concern.

Following that analysis, then the City can make a determination of the relative significance of the emissions.

4. CARE-31: Exposure Of Prisoners and Workers At The West Valley Detention Center T&B’s response to the question of impacts from the Project to a previously unidentified population source, the San Bernardino County West Valley Detention Center (WVDC), located 4 California Air Resources Board, Initial Statement of Reasons for Rulemaking, Proposed Identification of Diesel Exhaust as a Toxic Air Contaminant, Staff Report, June 1998; see also California Air Resources Board, Overview:

Diesel Exhaust & Health, https://ww2.arb.ca.gov/resources/overview-diesel-exhaust-andhealth#:~:text=Diesel%20Particulate%20Matter%20and%20Health&text=In%201998%2C%20CARB%20identified%2 0DPM,and%20other%20adverse%20health%20effects.
5 U.S. EPA, Health Assessment Document for Diesel Engine Exhaust, Report EPA/600/8-90/057F, May 2002. 6 Environmental Defense Fund, Cleaner Diesel Handbook, Bring Cleaner Fuel and Diesel Retrofits into Your Neighborhood, April 2005; http://www.edf.org/documents/4941_cleanerdieselhandbook.pdf, accessed July 5, 2020. 7 California Air Resources Board, Initial Statement of Reasons for Rulemaking, Proposed Identification of Diesel Exhaust as a Toxic Air Contaminant, Staff Report, June 1998. 8 Findings of the Scientific Review Panel on The Report on Diesel Exhaust as adopted at the Panel’s April 22, 1998 Meeting.
9 Health & Safety Code § 39655(a) (defining “toxic air contaminant” as air pollutants “which may cause or contribute to an increase in mortality or in serious illness, or which may pose a present or potential hazard to human health. A substance that is listed as a hazardous air pollutant pursuant to subsection (b) of Section 112 of the federal act (42 U.S.C.

Sec. 7412 (b)) is a toxic air contaminant.”)
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approximately 5,600 feet north northeast of the Project Site, was to dismiss the population as a nonlong term residential population. While prisoners may be held at the WVDC for up to a year, there is no opportunity for the prisoners to get away from emissions associated with the Project. Workers at the WVDC should also be included in the evaluation of health impacts. The analyses presented in the EIRs and Staff Report did not address this unique population until we raised a concern.

The Detention Center is nearly 3,000 feet closer to the Project Site than the residential property selected in the EIR. Health risks from exposure are a function of the concentration of the contaminant and the duration of exposure. Until an actual attempt is made to calculate the exposure concentration at the WVDC determinations of relative risk (from either chronic or acute exposures) are speculative at best. The City must assess the impacts of the Project emissions on this receptor center.

5. CARE 32/CARE 10: Additional Cumulative Impacts From Existing/Pending Warehouse Projects
T&B’s response that comments on the cumulative impacts did not raise new information is not supportable. The EIR’s flaws have not been resolved regarding the cumulative impacts on air quality based on the number of existing and new projects in the area. As was pointed out in the last letter, based on the current analysis of warehouse projects within a 5-kilometer radius (3.1 miles) of the Project Site, there are 595 current warehouses, totaling 126,400,000 square feet of floor space. 3887

Those projects account for 85,000 truck trips per day, which emit 117.6 lbs of DPM and 13, 243 lbs of NOx per day. There is an additional 7,400,000 square feet of warehousing that is either approved or undergoing CEQA review (includes the Airport Site). Clearly the City has not included the relevant emissions of all the new projects in its analysis of the Project.

6. CARE 27: Building Downwash
T&B’s response to comments on the incorporation of building downwash into the dispersion model are to claim that “The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of air quality impacts including analysis of building downwash. No additions, revisions, or corrections are necessary and no further response is required.” This response fails to address the significant issue raised by the comment.

Guidance from authoritative bodies in California regarding the preparation of health risk assessments of mobile sources of diesel emissions10 requires the inclusion of building heights and dimensions for building downwash calculations. Omission of the building downwash effect 10 SCAQMD. 2003. Health Risk Assessment Guidance For Analyzing Cancer Risks From Mobile Source Diesel Emissions. August, 2003. Page 2.
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underestimates the exposure point concentrations for receptors near the building(s).

In a recent review of Draft Environmental Impact Report (Draft EIR) for the Proposed West Campus Upper Plateau Project (Proposed Project) (SCH Number: 2021110304), SCAQMD11 specifically calls out the need for inclusion of downwash analysis for this Project which included a business park, industrial, mixed-use, public facility, parks, recreation and open space, and infrastructure improvements, totaling 369.60 acres. SCAQMD staff reviewing the project outlined that building downwash should be considered for the Proposed Project operation in order to predict more accurate ground-level concentrations. In addition, the truck idling emissions would need to be estimated separately and included in the dispersion modeling analysis and HRA as point sources. The City should address the impact of this issue in a revised EIR.

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

Sincerely,
11 SCAQMD. 2023. Draft Environmental Impact Report (Draft EIR) for the Proposed West Campus Upper Plateau Project (Proposed Project) (SCH Number: 2021110304) Dated March 9, 2023, available at https://www.aqmd.gov/docs/default-source/ceqa/comment-letters/2023/march-2023/RVC230111-04.pdf?sfvrsn=8. 3889

EXHIBIT B
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1 794 Sawnee Bean Road
Thetford Center VT 05075
Norman Marshall, President
(802) 356-2969
[email protected]
August 25, 2024
Aidan P. Marshall
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080
Subject: 5355 East Airport Drive Project
Dear Mr. Marshall,
In October 2023, I reviewed trip generation, vehicle miles traveled (VMT) impacts and greenhouse gas (GHG) impacts of the City of Ontario Draft Environmental Impact Report for a proposed warehouse project at 5355 East Airport Drive (“DEIR”). In April 2024, I addressed additional analysis contained in the Project’s Final EIR (“FEIR”). The Planning Commission Agenda Report dated August 27, 2024 fails to adequately address the outstanding issues identified in my October 2023 and April 2024 comments.

In October 2023, I made the following findings:
1) The DEIR acknowledges significant and unavoidable VMT impact. Furthermore, the DEIR documents that the project would exceed the VMT screening thresholds by a wide margin:

22.56% in the baseline year and 28.47% in the horizon year. 2) The proposed VMT mitigation is not fully specified or quantified in the DEIR and appears to fall far short of what would be required to reduce project VMT below the City’s threshold. Achieving significant VMT mitigation for this project may be impossible – but mitigation must be specified and quantified for the project to be properly evaluated. 3) Project trip generation could be much higher than assumed. Given the large uncertainty in the project’s trip generation, the applicant should take one of two paths -either a) applying a significantly higher and more conservative trip generation rate, or b) requesting as a condition of approval that trip generation will not exceed the number assumed in the EIR, and this be certified prior to beginning construction.
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2 4) Project GHG emissions could be much higher than assumed. In addition to trip generation possibly being underestimated, average trip lengths for both trucks and passenger vehicles are likely to be underestimated in the DEIR.

In April 2024, I reviewed the responses to these comments made in the project’s Final Environmental Impact Review (“FEIR”) dated February 2024 and made additional comments on these same points.

My April 2024 comments and the August Report responses follow:

Truck trip lengths – The FEIR repeats the false assertion that the truck trip lengths follow SCAQMD’s recommendations (FEIR, A-18, p. 2-43). In my October 2023 comments, I addressed this, writing:

The truck trip lengths are used in calculations of possible mitigation in Second Draft Staff Report Proposed Rule 2305 – Warehouse Indirect Source Rule – Warehouse Actions and Investments to Reduce Emissions (WAIRE) Program. And Proposed Rule 316 -Fees for Rule 2305.
1 The reference for these numbers is the 2016 SCAG travel demand model (p. 117) and there is no indication that these numbers are intended for any use beyond this single document. The 40-mile heavy truck trip length also appears in a 2014 slide presentation.
2 In neither case, are these numbers presented as general recommendations for warehouse EIRs.

To prove that this is not a general SCAQMD recommendation for all warehouses, I attach SCAQMD’s November 22, 2023 comments on the Hemlock Warehouse Development Project Draft SEIR in the City of Fontana. That Draft SEIR applied the same truck trip lengths as used in the 5355 East Airport Drive DEIR and FEIR. SCAQMD’s comments state:

However, it is essential to note that the distance from the Proposed Project site to the Port of Los Angeles or Long Beach is approximately 70 miles one-way. Thus, South Coast AQMD staff is concerned about underestimating truck emissions due to the shorter distance that HHDT is analyzed in the Draft SEIR. Hence, it is recommended that the Lead Agency revise the truck emissions analysis using the more conservative trip length between 40 to 70 miles, of which 40 miles could be used for local and 70 miles for Port trips and include the revision in the final CEQA document. Tailoring these parameters and assumptions to be based on project-specific data will ensure a more accurate assessment of emissions, accounting for the unique circumstances and logistical realities of the Proposed Project. (p. 2)
SCAQMD is making the same point I made in my October 2023 comments where I wrote:
it is notable that important major freight origins and destinations are considerably further away than the trip lengths assumed in the DEIR. These include the Ports of Los Angeles and Long Beach that are approximately 60 miles away. It would be more conservative to assume longer average truck distances in the air quality and GHG analyses.
1 www.aqmd.gov/docs/default-source/planning/fbmsm-docs/pr-2305_sr_2nd-draft_4-7-21_clean.pdf 2 https://www.aqmd.gov/docs/default-source/ceqa/handbook/high-cube-warehouse-trip-rate-study-for-airquality-analysis/sclc_warehouse-presentation-final.pdf 3892
3 The FEIR does not use SCAQMD- recommended truck trip lengths. SCAQMD instead recommends:
“Tailoring these parameters and assumptions to be based on project-specific data will ensure a more accurate assessment of emissions, accounting for the unique circumstances and logistical realities of the Proposed Project.”
The Report states only:

The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency. The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of the Project’s truck trips assumptions. No additions, revisions, or corrections are necessary and no further response is required. (Report, PDF p. 2609 of 3993)
This response fails to address my comments reproduced above.

VMT mitigation – The FEIR continues to state that the proposed project would exceed the VMT screening thresholds by a wide margin: 22.56% in the baseline year and 28.47% in the horizon year.

However, the FEIR states that these impacts cannot be mitigated because “measures associated with commute trip reduction (CTR) programs and their related commute trip reduction strategies have been excluded as they are not quantifiable, nor can their implementation be guaranteed and enforced since the Project is proposed to be developed as a speculative building without a known tenant." (FEIR A-24, p. 2-44)
My October 2023 comments recommended requiring CAPCOA T-5 Implement Commute Trip Reduction Program (Mandatory Implementation and Monitoring) – that can provide up to 26% VMT reduction:

The mandatory CTR program must include all other elements (i.e., Measures T-7 through T-11) described for the voluntary program (Measure T-5) plus include mandatory trip reduction requirements (including penalties for non-compliance) and regular monitoring and reporting to ensure the calculated VMT reduction matches the observed VMT reduction). (Handbook, p. 86)
A smaller mandatory reduction may be appropriate for this project, with this requirement passed on to the tenant, but it is not sufficient to claim that no significant mitigation is possible.

In addition, the attached SCAQMD comments on the Hemlock Warehouse Development Project recommends several mitigation measures targeting truck emissions, including:
• Require zero-emissions (ZE) or near-zero emission (NZE) on-road haul trucks, • Limit the daily number of trucks allowed at the Proposed Project to levels analyzed in the final CEQA document, and
• Provide electric vehicle (EV) charging stations and electrical hookups for truckers. (p.3) The Report states only:

Contrary to the commenter’s assertion, this memorandum, RTC, and Final EIR demonstrates that the Project’s impacts have been adequately analyzed and mitigated. 3893
4 Thus, no additions, revisions, or corrections are necessary are necessary.. (Report, CARE 22 p. PDF 2620-2621 of 3993)
This response fails to address my comments reproduced above.

Trip generation
In my October 2023 comments, I provided data on different types of warehouses that have significantly higher trip generation rates than the 1.75 trips per 1000 sq. ft. assumed in the DEIR and FEIR. These include:

The Parcel Hub Warehouse trip generation rate is 2.6 times the rate used in the DEIR, and the Fulfillment Center Warehouse with Sorting rate is 5.2 times the rate used in the DEIR.

The FEIR argues that the highest generators that I discussed in my October 2023 comments could not be accommodated because “. . . the layout of the site with 251 parking spaces would not reasonable accommodate the on-site parking required to support these uses.” This point about parking may be valid for the highest generators per 1000 sq. ft. but not for the intermediate generators. The DEIR and FEIR estimate only 270 passenger car trips per day (DEIR Appendix K, p. 5), i.e., 135 vehicles in and 135 cars out. Therefore, if all cars were employees and they all worked the same single shift, the parking lot utilization would never exceed 54%. With multiple shifts and non-employee passenger car trips, the parking lot utilization would be much lower. Therefore, the parking lot is designed to support many more trips than assumed in the DEIR and FEIR.

The 251 parking spaces are consistent with ITE Land Use 156: High Cube Parcel Hub Warehouse.

This use is described:

A high-cube warehouse (HCW) is a building that typically has at least 200,000 gross square feet of floor area, has a ceiling height of 24 feet or more, and is used primarily for the storage and/ or consolidation of manufactured goods (and to a lesser extent, raw materials) prior to their distribution to retail locations or other warehouses. A typical HCW has a high level of on-site automation and logistics management. The automation and logistics enable highly-efficient processing of goods through the HCW. A high-cube warehouse can be free-standing or located in an industrial park. A high-cube parcel hub warehouse typically serves as a regional and local freight-forwarder facility for time sensitive shipments via airfreight and ground carriers. A site can also include truck maintenance, wash, or fueling facilities. Some limited assembly and repackaging may occur within the facility.

Given the uncertainty concerning the proposed project and its size, 270,377 sq. ft., it could foreseeably end up being a High-Cube-Parcel-Hub Warehouse as defined above.

The number of parking spaces provided also is consistent with this usage. The trip generation rate for this category is 4.63 trips per 1000 sq. ft., i.e. 2.6 times the rate used in the DEIR and FEIR. This rate includes 0.58 truck trips per 1000 sq. ft. Therefore, the passenger car rate is 4.05 3894
5 trips per 1000 sq. ft. As a High-Cube-Parcel-Hub Warehouse, the proposed project would generate 1095 passenger car trips per day.

The DEIR states:

For the purposes of this EIR, the Project is assumed to be operational 24 hours per day, seven days per week, with exterior loading and parking areas illuminated at night. (DEIR, p. 3-13)
This suggests multiple shifts each day.

Some of the passenger car trips would not be parking long term, including trips dropping off and picking up workers, and miscellaneous service trips, all of which include both and entering trip and an exiting trip. However, even if all passenger car trips involved parking long-term, all the trips could be accommodated with the planned 251 parking spaces if each space is occupied an average of 2.18 times per day.

As I stated in my October 2023 comment letter:

Given the large uncertainty in the project’s trip generation, the applicant should take one of two paths - either a) applying a significantly higher and more conservative trip generation rate, or b) requesting as a condition of approval that trip generation will not exceed the number assumed in the EIR, and this be certified prior to beginning construction.

The Report states only:

The Lead Agency maintains its position regarding accuracy and adequacy of the EIR trip generation estimates and all environmental impacts related to or attributable to Project trip generation. No additions, revisions, or corrections are necessary and no further response is required... (Report, CARE 7 p. PDF 2607 of 3993) This response fails to address my comments reproduced above.

In summary, the August 2024 Report fails to adequately address any of my comments.

Sincerely,
Norman L. Marshall
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6 Resume
NORMAN L. MARSHALL, PRESIDENT
[email protected]
EDUCATION:

Master of Science in Engineering Sciences, Dartmouth College, Hanover, NH, 1982 Bachelor of Science in Mathematics, Worcester Polytechnic Institute, Worcester, MA, 1977 PROFESSIONAL EXPERIENCE: (33 Years, 19 at Smart Mobility, Inc.) Norm Marshall helped found Smart Mobility, Inc. in 2001. Prior to this, he was at RSG for 14 years where he developed a national practice in travel demand modeling. He specializes in analyzing the relationships between the built environment and travel behavior and doing planning that coordinates multi-modal transportation with land use and community needs.

Regional Land Use/Transportation Scenario Planning
Portland Area Comprehensive Transportation System (PACTS) – the Portland Maine Metropolitan Planning Organization. Updating regional travel demand model with new data (including AirSage), adding a truck model, and multiclass assignment including differentiation between cash toll and transponder payments.

Loudoun County Virginia Dynamic Traffic Assignment – Enhanced subarea travel demand model to include Dynamic Traffic Assignment (Cube). Model being used to better understand impacts of roadway expansion on induced travel.

Vermont Agency of Transportation-Enhanced statewide travel demand model to evaluate travel impacts of closures and delays resulting from severe storm events. Model uses innovate Monte Carlo simulations process to account for combinations of failures.

California Air Resources Board – Led team including the University of California in $250k project that reviewed the ability of the new generation of regional activity-based models and land use models to accurately account for greenhouse gas emissions from alternative scenarios including more compact walkable land use and roadway pricing. This work included hands-on testing of the most complex travel demand models in use in the U.S. today.

Climate Plan (California statewide) – Assisted large coalition of groups in reviewing and participating in the target setting process required by Senate Bill 375 and administered by the California Air Resources Board to reduce future greenhouse gas emissions through land use measures and other regional initiatives.

Chittenden County (2060 Land use and Transportation Vision Burlington Vermont region) – led extensive public visioning project as part of MPO’s long-range transportation plan update.

Flagstaff Metropolitan Planning Organization – Implemented walk, transit and bike models within regional travel demand model. The bike model includes skimming bike networks including on-road and off-road bicycle facilities with a bike level of service established for each segment.

Chicago Metropolis Plan and Chicago Metropolis Freight Plan (6-county region)— developed alternative transportation scenarios, made enhancements in the regional travel demand model, and used the enhanced 3896
7 model to evaluate alternative scenarios including development of alternative regional transit concepts.

Developed multi-class assignment model and used it to analyze freight alternatives including congestion pricing and other peak shifting strategies.

Municipal Planning
City of Grand Rapids – Michigan Street Corridor – developed peak period subarea model including nonmotorized trips based on urban form. Model is being used to develop traffic volumes for several alternatives that are being additional analyzed using the City’s Synchro model City of Omaha - Modified regional travel demand model to properly account for non-motorized trips, transit trips and shorter auto trips that would result from more compact mixed-use development. Scenarios with different roadway, transit, and land use alternatives were modeled.

City of Dublin (Columbus region) – Modified regional travel demand model to properly account for nonmotorized trips and shorter auto trips that would result from more compact mixed-use development. The model was applied in analyses for a new downtown to be constructed in the Bridge Street corridor on both sides of an historic village center.

City of Portland, Maine – Implemented model improvements that better account for non-motorized trips and interactions between land use and transportation and applied the enhanced model to two subarea studies.

City of Honolulu – Kaka’ako Transit Oriented Development (TOD) – applied regional travel demand model in estimating impacts of proposed TOD including estimating internal trip capture.

City of Burlington (Vermont) Transportation Plan – Led team that developing Transportation Plan focused on supporting increased population and employment without increases in traffic by focusing investments and policies on transit, walking, biking and Transportation Demand Management.

Transit Planning
Regional Transportation Authority (Chicago) and Chicago Metropolis 2020 – evaluated alternative 2020 and 2030 system-wide transit scenarios including deterioration and enhance/expand under alternative land use and energy pricing assumptions in support of initiatives for increased public funding.

Capital Metropolitan Transportation Authority (Austin, TX) Transit Vision – analyzed the regional effects of implementing the transit vision in concert with an aggressive transit-oriented development plan developed by Calthorpe Associates. Transit vision includes commuter rail and BRT.

Bus Rapid Transit for Northern Virginia HOT Lanes (Breakthrough Technologies, Inc and Environmental Defense.) – analyzed alternative Bus Rapid Transit (BRT) strategies for proposed privately-developing High Occupancy Toll lanes on I-95 and I-495 (Capital Beltway) including different service alternatives (point-to-point services, trunk lines intersecting connecting routes at in-line stations, and hybrid).

Roadway Corridor Planning
I-30 Little Rock Arkansas – Developed enhanced version of regional travel demand model that integrates TransCAD with open source Dynamic Traffic Assignment (DTA) software, and used to model I-30 alternatives.

Freeway bottlenecks are modeled much more accurately than in the base TransCAD model. 3897
8 South Evacuation Lifeline (SELL) – In work for the South Carolina Coastal Conservation League, used Dynamic Travel Assignment (DTA) to estimate evaluation times with different transportation alternatives in coastal South Caroline including a new proposed freeway.

Hudson River Crossing Study (Capital District Transportation Committee and NYSDOT) – Analyzing long term capacity needs for Hudson River bridges which a special focus on the I-90 Patroon Island Bridge where a microsimulation VISSIM model was developed and applied.

PUBLICATIONS AND PRESENTATIONS (partial list)
DTA Love: Co-leader of workshop on Dynamic Traffic Assignment at the June 2019 Transportation Research Board Planning Applications Conference.

Forecasting the Impossible: The Status Quo of Estimating Traffic Flows with Static Traffic Assignment and the Future of Dynamic Traffic Assignment. Research in Transportation Business and Management 2018.

Assessing Freeway Expansion Projects with Regional Dynamic Traffic Assignment. Presented at the August 2018 Transportation Research Board Tools of the Trade Conference on Transportation Planning for Small and Medium Sized Communities.

Vermont Statewide Resilience Modeling. With Joseph Segale, James Sullivan and Roy Schiff. Presented at the May 2017 Transportation Research Board Planning Applications Conference.

Assessing Freeway Expansion Projects with Regional Dynamic Traffic Assignment. Presented at the May 2017 Transportation Research Board Planning Applications Conference.

Pre-Destination Choice Walk Mode Choice Modeling. Presented at the May 2017 Transportation Research Board Planning Applications Conference.

A Statistical Model of Regional Traffic Congestion in the United States, presented at the 2016 Annual Meeting of the Transportation Research Board.

MEMBERSHIPS/AFFILIATIONS
Associate Member, Transportation Research Board (TRB)
Member and Co-Leader Project for Transportation Modeling Reform, Congress for the New Urbanism (CNU) 3898
JN 597-017

MEMORANDUM
TO: Thomas Grahn, Senior Planner
City of Ontario
303 East B Street
Ontario, CA 91764
FROM: Tracy Zinn, Principal
Tracy Chu, Project Manager
DATE: September 13, 2024
RE: 5355 East Airport Drive (PDEV22-017) – Response to September 5, 2024 Appeal Letter from CARE CA T&B Planning, Inc. is the environmental consulting firm that prepared the Environmental Impact Report (EIR; SCH No. 2022090006) for the 5355 East Airport Drive Project (hereafter “Project”). The Project Applicant, Prologis, Inc., proposes to demolish the existing buildings and structures on the Project site and redevelop the property with a 270,337 square foot (s.f.) warehouse building. The Project’s design also includes the installation of associated site improvements, including drive aisles, landscaping, utility infrastructure, underground storm drain detention facilities, exterior lighting, walls/fencing, and signage as well as site-adjacent improvements to East Airport Drive.

The Draft EIR for the Project was published on August 22, 2023, for a 45 day review period, with the local review period and State review period ending on October 5, 2023.

On August 27, 2024, the City of Ontario Planning Commission certified the Final Environmental Impact Report (EIR), including the adoption of a Mitigation Monitoring and Reporting Program (MMRP) and a Statement of Overriding Considerations, and in conjunction with the approval of a Development Plan (File No. PDEV22-017) for the Project. Subsequently, an appeal letter was submitted to the City on September 5, 2024, requesting that the City Council appeal the Planning Commission’s approval of the Project. In response, T&B Planning prepared this memorandum for the purpose of responding to the comments received alleging deficiencies in the Draft EIR and Final EIR and to the Appellant’s reasons and grounds for appeal. The responses contained herein demonstrate that the Draft EIR’s analyses and conclusions are correct and that the Final EIR has been appropriately prepared to satisfy CEQA compliance requirements. There are no CEQA compliance deficiencies as claimed by Adams Broadwell Joseph & Cardozo on behalf of the Californians Allied for a Responsible Economy (CARECA). For the reasons outlined in this memorandum, the comments provided by CARECA and the responses thereto contained in this memo do not present substantial new information, do not necessitate revisions to the Draft EIR or Final EIR, and do not trigger the need for recirculation of the Draft EIR or Final EIR, or the conduct of additional environmental review pursuant to CEQA Guidelines § 15088.5. 3899
5355 East Airport Drive (PDEV22-017) – Response to September 5, 2024 Appeal Letter from CARE CA September 13, 2024

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Commenter Letter: Adams Broadwell Joseph & Cardozo on behalf of Californians Allied for a Responsible Economy dated September 5, 2024.

CARECA-1 This comment contains introductory remarks and identifies that the comments in this letter are being provided by Adams Broadwell Joseph & Cardozo on behalf of the Californians Allied for a Responsible Economy (CARECA) and provides a summary of project’s background, prior comments submitted concerning the Project during the Draft’s EIR public review period, the Final EIR, and subsequent response to comment (RTC) memorandum. The commenter claims that the Planning Commission’s approval of the Project and certification of the Final EIR violated CEQA and land use laws because the City has not complied with its duty to disclose and mitigate the Project’s potentially significant environmental and land use impacts, and the Planning Commission’s approval findings were not supported by substantial evidence. Response to the comments made are provided below in this memorandum.

CARECA-2 This comment cites to Section 2.04.010(B)(1) and 2.04.005 of the Ontario Development Code related to appeal filings and includes a statement of interest describing CARECA’s organization, role, members, and purposes. The commenter’s standing to appeal and statement of interest are noted.

This comment does not raise any issues concerning the environmental analysis provided in the Draft EIR or Final EIR and thus no further response is required.

CARECA-3 The commenter reiterates previous statements and opinions that the Final EIR fails to analyze the full scope of the Project, in particular in relation to the Project’s reasonably foreseeable use as a parcel hub (a use that generates 2.6 times more trips than analyzed). This comment is similar to Response to Comment A-6 in the Final EIR, 1-8 in the RTC dated May 20, 2024, and CARE-7 in the RTC dated August 8, 2024. Refer to Final EIR Response to Comment A-6 (Final EIR, pp. 2-38, 2-39), Response to Comment 1-8 (RTC, p. 3), and Response to Comment CARE-7 (RTC, p. 3). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency. The Lead Agency maintains its position regarding accuracy and adequacy of the EIR trip generation estimates and all environmental impacts related to or attributable to Project’s trip generation. There is no reasonable possibility that the Project, as designed, could operate as a parcel hub. No additions, revisions, or corrections are necessary and no further response is required.

CARECA-4 The commenter reiterates prior comments that the Final EIR fails to analyze reasonably foreseeable truck trips to the Ports of Los Angeles and Long Beach, which are longer than the trips analyzed in the Final EIR. This comment is similar to Response to Comment A-18, A-19, and A-28 in the Final EIR, 1- 16 in the RTC dated May 20, CARE-14, CARE-15, and CARE-16 in the RTC dated August 8. Refer to Final EIR Response to Comment A-18, A-19, A-28 (Final EIR, pp. 2-43, 2-44, 2-45) and Response to Comment 1-16 (RTC, p. 7), and Response to Comment CARE-14, CARE-15, and CARE-16 (RTC, p. 5). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency.

The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of the Project’s truck trips assumptions. No additions, revisions, or corrections are necessary and no further response is required.
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5355 East Airport Drive (PDEV22-017) – Response to September 5, 2024 Appeal Letter from CARE CA September 13, 2024

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CARECA-5 The commenter reiterates prior comments that the Final EIR fails to include sufficient investigation into energy conservation measures that might be available or appropriate for the Project, as required by the CEQA Guidelines. This comment is similar to Response to Comment 1-20 in the RTC dated May 20, CARE-17, CARE-18, and CARE-21 in the RTC dated August 8. Refer to Response to Comment 1-20 (RTC, pp. 8 to 10, and Response to Comment CARE-17, CARE-18, and CARE-21 (RTC, p. 6). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency.

No additions, revisions, or corrections are necessary and no further response is required.

CARECA-6 The commenter reiterates prior comments that the Final EIR’s analysis of cumulative air quality impacts is inadequate because it fails to consider the Project’s impacts in the context of the numerous other warehouses existing and planned in the area. This comment is similar to Response to Comment A-14 in the Final EIR, 1-10 in the RTC dated May 20, CARE-9, CARE-10, and CARE-11 in the RTC dated August 8. Refer to Final EIR Response to Comment A-14 (Final EIR, pp. 2-41, 2-42), Response to Comment 1-8 (RTC, p. 4, 5), and Response to Comment CARE-9, CARE-10, and CARE-11 (RTC, pp. 3 to 4). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency. The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of air quality impacts including analysis of cumulative air quality impacts. No additions, revisions, or corrections are necessary and no further response is required.

CARECA-7 The commenter reiterates prior comments that the Final EIR’s quantified health risk analysis underestimates impacts because it analyzed trucks travelling only east along Airport Drive, not accounting for building downwash and relying on unreliable input values. This comment is similar to Response to Comment 1-12, 1-13, 1-41 in the RTC dated May 20, CARE-13, CARE-27, and CARE-28 in the RTC dated August 8. Refer to Response to Comment 1-12, 1-13, and 1-41 (RTC, po. 5, 14 to 16), and Response to Comment CARE-13, CARE-27, CARE-28 (RTC, pp. 4,7). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, the Responses provided herein, and the whole record before the Lead Agency. The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of health risk impacts. No additions, revisions, or corrections to the EIR are necessary and no further response is required.

CARECA-8 The commenter reiterates prior comments that the Final EIR identifies significant vapor intrusion impacts due to tetrachloroethylene (PCE) contamination, but improperly defers formulation of mitigation measures. This comment is similar to Response to Comment CARE-4, CARE-5, and CARE-6 in the RTC dated August 8. Refer to Response to Comment CARE-4, CARE-5, and CARE-6 (RTC, pp. 2, 3). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, the Responses provided herein, and the whole record before the Lead Agency.

The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of vapor intrusion impacts. No additions, revisions, or corrections to the EIR are necessary and no further response is required.
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CARECA-9 The commenter states that the Final EIR is deficient as a matter of law and its conclusions are not supported by substantial evidence based on the previous comments made. The commenter asserts that the Planning Commission’s approval decision must be vacated, and the EIR must be revised and recirculated in compliance with CEQA. Contrary to the commenter’s assertion, this memorandum, RTCs (dated May 20 and August 8), and Final EIR demonstrates that the Project’s impacts have been adequately analyzed and mitigated. Thus, no additions, revisions, or corrections are necessary are necessary.

CARECA-10 The commenter cites to Section 4.02.025(D) of the City’s Municipal Code and assets that the Project would have significant and unavoidable VMT impact, potential health risk, air quality, GHG, energy, and soil contamination impacts that have been underestimated. The commenter asserts that the City cannot make the requisite findings to approve the Project and a revised EIR must be recirculated before the Project can be recommended for approval. Contrary to the commenter’s assertion, this memorandum, prior RTCs (dated May 20 and August 8), and Final EIR demonstrates that the Project’s impacts have been adequately analyzed and mitigated as feasible. Thus, no additions, revisions, or corrections are necessary are necessary.

CARECA-11 The commenter provides a conclusionary statement, which does not present any additional information not covered in the previous comments. Thus, no additional response is required.

CARECA-12 The commenter provides previously submitted comment letters as Attachments A through D.

Attachment A includes a comment letter dated October 5, 2023, which has been responded to in the Project’s Final EIR. Attachment B includes a comment letter dated April 15, 2024, which has been response to in the RTC dated May 20, 2024. Attachment C is a comment letter dated May 28, 2024, which has been responded to in the RTC dated August 8, 2024. Response to Attachment D is provided below in Response to Comments CARECA-13 to CARECA-33 in this memorandum.

CARECA-13 This comment consists of introductory remarks, identifies that the comments in this letter are being provided by Adams Broadwell Joseph & Cardozo on behalf of CARECA, and provides a summary of prior comments submitted concerning the Project during the Draft’s EIR public review period, and on the Final EIR. The commenter claims that the RTC, dated August 8, 2024, failed to resolve asserted flaws that CARE CA and its experts identified in the Draft EIR and that the Planning Commission should require the City to revised and recirculate the EIR before any further action is taken on the Project.

Response to the comments made in this letter are provided below in Response to Comments CARECA14 to CARECA-33. Thus, no further response is required.

CARECA-14 The commenter reiterates previous comments about the conclusions of the Project’s Phase I and II Environmental Site Assessment (ESA; Technical Appendix G to the Draft EIR) regarding ethylbenzene concentration and opines the Final EIR improperly defers formulation of mitigation for PCE and ethylbenzene contamination. Refer to Response to Comment CARECA-8 above and Response to Comments CARE-4, CARE-5, and CARE-6 in the RTC dated August 8, 2024. Refer to Response to Comments CARE-4, CARE-5, and CARE-6 (RTC, pp. 2, 3). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, the Responses provided herein, and the whole record before the Lead Agency. The Lead Agency maintains its position 3902
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regarding accuracy and adequacy of the EIR analysis of vapor intrusion impacts. No additions, revisions, or corrections to the EIR are necessary and no further response is required.

CARECA-15 The commenter reiterates previous comments regarding the Project’s potential as a High Cube Parcel Hub Warehouse and that trip generated by the Project are not adequately analyzed. This comment is similar to Response to Comment A-6 in the Final EIR, 1-8 in the RTC dated May 20, 2024, and CARE-7 in the RTC dated August 8, 2024. Refer to Final EIR Response to Comment A-6 (Final EIR, pp. 2-38, 2- 39), Response to Comment 1-8 (RTC, p. 3), and Response to Comment CARE-7 (RTC, p. 3). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency.

The Lead Agency maintains its position regarding accuracy and adequacy of the EIR trip generation estimates and all environmental impacts related to or attributable to Project’s trip generation. There is no reasonable possibility that the Project, as designed, could operate as a parcel hub. No additions, revisions, or corrections are necessary and no further response is required.

CARECA-16 The commenter reiterates previous comments that the Final EIR’s analysis of cumulative impacts is inadequate because it fails to consider the cumulative impacts of past, present, and probable future projects. This comment is similar to Response to Comment A-14 in the Final EIR, 1-10 in the RTC dated May 20, CARE-9, CARE-10, and CARE-11 in the RTC dated August 8. Refer to Final EIR Response to Comment A-14 (Final EIR, pp. 2-41, 2-42), Response to Comment 1-8 (RTC, p. 4, 5), and Response to Comment CARE-9, CARE-10, and CARE-11 (RTC, pp. 3 to 4). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency. The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of air quality impacts including analysis of cumulative air quality impacts. No additions, revisions, or corrections are necessary and no further response is required.

CARECA-17 The commenter reiterates previous comments that the Project’s Health Risk Assessment underestimates health risk impacts on sensitive receptors and failed to account for building downwash and relied on unreliable input values. This comment is similar to Response to Comment 1- 12, 1-13, 1-41 in the RTC dated May 20, CARE-13, CARE-27, and CARE-28 in the RTC dated August 8.

Refer to Response to Comment 1-12, 1-13, and 1-41 (RTC, po. 5, 14 to 16), and Response to Comment CARE-13, CARE-27, CARE-28 (RTC, pp. 4,7). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, the Responses provided herein, and the whole record before the Lead Agency. The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of health risk impacts. No additions, revisions, or corrections to the EIR are necessary and no further response is required.

CARECA-18 The commenter reiterates previous comments that Final EIR truck trip length is underestimated. This comment is similar to Response to Comment A-18, A-19, and A-28 in the Final EIR, 1-16 in the RTC dated May 20, CARE-14, CARE-15, and CARE-16 in the RTC dated August 8. Refer to Final EIR Response to Comment A-18, A-19, A-28 (Final EIR, pp. 2-43, 2-44, 2-45) and Response to Comment 1-16 (RTC, p. 7), and Response to Comment CARE-14, CARE-15, and CARE-16 (RTC, p. 5). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, 3903
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and the Responses provided herein, and the whole record before the Lead Agency. The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of the Project’s truck trips assumptions. No additions, revisions, or corrections are necessary and no further response is required.

CARECA-19 The commenter reiterates previous comments that the Project’s energy analysis remains inadequate.

This comment is similar to Response to Comment 1-20 in the RTC dated May 20, CARE-17, CARE-18, and CARE-21 in the RTC dated August 8. Refer to Response to Comment 1-20 (RTC, pp. 8 to 10, and Response to Comment CARE-17, CARE-18, and CARE-21 (RTC, p. 6). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency. No additions, revisions, or corrections are necessary and no further response is required.

CARECA-20 The commenter provides a conclusionary statement, which does not present any additional information not covered in the previous comments. Thus, no additional response is required.

CARECA-21 This comment consists of introductory remarks from Clark and Associates and does not raise any issues concerning the environmental analysis provided in the Draft EIR. Thus no further response is required.

CARECA-22 The commenter asserts that the Project’s Media Management Plan (Attachment F to the Final EIR) was never attached to the Final EIR that is posted at the City of Ontario’s website. The City thanks the commenter for calling this to the City’s attention and the City immediately posted the Media Management Plan to the website. All appendices to the Final EIR are posted on the City’s website (https://www.ontarioca.gov/Planning/Reports/EnvironmentalImpact). Additionally, the Media Management Plan was provided in all agenda packages and staff reports for the Project’s Development Advisory Board (DAB) meetings1,2 and Planning Commission hearings3,4 . The
commenter also summarizes the procedures in the Media Management Plan in the event that an unanticipated subsurface structure is discovered and states a site-specific remedial action work (RAW) plan should be initiated to protect workers onsite. The Media Management Plan’s implementation is sufficient for ensuring that potential environmental effects are reduced to below a level of significance. Refer to Section 4.3 of the Media Management Plan, which requires adherence to a Health and Safety Plan (HASP) including for constriction workers. The HASP will detail all planned construction activities and will describe standard safety precautions (e.g., protective gear for workers, proper soil handling techniques, etc). The Contractor or the Environmental Professional is responsible for ensuring that the safety precautions detailed in the HASP are implemented and monitored during 1 See Page 2872 of the March 18, 2024 DAB Agenda Package: https://www.ontarioca.gov/sites/default/files/OntarioFiles/Planning/20240318%20DAB%20Agenda%20Packet.pdf 2 See Page 2761 of the April 15, 2024 DAB Agenda Package: https://www.ontarioca.gov/sites/default/files/OntarioFiles/Planning/20240415%20DAB%20Agenda%20Packet.pdf 3 See Page 3119 of the May 28, 2024 Planning Commission Agenda Package:
https://granicus_production_attachments.s3.amazonaws.com/ontarioca/6af4a0bd3120834cb9a0da60382943e10.pdf 4 See Page 3044 of the August 27, 2024 Planning Commission Agenda Package:
https://granicus_production_attachments.s3.amazonaws.com/ontarioca/23a3c29303afd40b3c88ce6d3ae8da890.pdf 3904
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all activities at the site. The Contractor and the Environmental Professional also are required to abide by all applicable federal, state, and local regulations and codes relating to health and safety and are required by law to adhere to all California Occupational Safety and Health Administration regulations contained in Title 8 of the California Code of Regulations (8 CCR), as they apply to activities at the Project site.

CARECA-23 The commenter reiterates previous comments that Final EIR truck trip length is underestimated and that the “Warehousing and Distribution Center Facilities in Southern California: The Use of the Commodity Flow Survey Data to Identify Logistics Sprawl and Freight Generation Patterns” by the National Center for Sustainable Transportation (NCST) validates that the majority of facilities in the SCAG region receive goods from the Ports of Los Angeles and Long Beach. This comment is similar to Response to Comment A-18, A-19, and A-28 in the Final EIR, 1-16 in the RTC dated May 20, CARE-14, CARE-15, and CARE-16 in the RTC dated August 8. Refer to Final EIR Response to Comment A-18, A19, A-28 (Final EIR, pp. 2-43, 2-44, 2-45) and Response to Comment 1-16 (RTC, p. 7), and Response to Comment CARE-14, CARE-15, and CARE-16 (RTC, p. 5). Specifically, refer to Response to Comment CARE-16 regarding the low sample size of the study and that the study is not an accurate representation of warehouse facilities in the region. The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency. The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of the Project’s truck trips assumptions. No additions, revisions, or corrections are necessary and no further response is required.

CARECA-24 The commenter reiterates previous comments the use of a diesel generator was not accounted for in the Project’s air quality analysis and that diesel generators is a source of diesel particulate matter (DPM), which is a primary toxic air contaminant (TAC) associated with the Project. Refer to Response to Comment A-10 in the Final EIR (Final EIR, pp. 2-40 to 2-41) that addresses the use of diesel generator and which provided a table of calculations of emissions that would be generated from a 197 horsepower (hp) diesel-powered emergency water pump and a 762 hp diesel-powered emergency backup generator. As shown, emissions would be negligible and the Project’s total emissions would be less than the South Coast Air Quality Management District (SCAQMD)significance threshold. Thus, no further response is required.

CARECA-25 The commenter reiterates previous comments that the health risk impacts to the San Bernardino County West Valley Detention Center (WVDC) was not analyzed. Refer to Response to Comment CARE-31 in the RTC dated August 4 (RTC, p. 8). Thus, no further response is required.

CARECA-26 The commenter reiterates previous comments regarding the Project’s cumulative impacts analysis.

This comment is similar to Response to Comment A-14 in the Final EIR, 1-10 in the RTC dated May 20, CARE-9, CARE-10, and CARE-11 in the RTC dated August 8. Refer to Final EIR Response to Comment A-14 (Final EIR, pp. 2-41, 2-42), Response to Comment 1-8 (RTC, p. 4, 5), and Response to Comment CARE-9, CARE-10, and CARE-11 (RTC, pp. 3 to 4). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency. The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of air quality impacts including analysis of 3905
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cumulative air quality impacts. No additions, revisions, or corrections are necessary and no further response is required.

CARECA-27 The commenter reiterates previous comments related to building downwash. This comment is similar to Response to Comment 1-12 in the RTC dated May 20. Refer to Response to Comment 1-12 in the RTC (RTC, p. 5) for a full discussion on the reasoning why the Project would not be materially affected by downwash. Thus, no further response is required.

CARECA-28 The commenter provides a conclusionary statement, which does not present any additional information not covered in the previous comments. Thus, no additional response is required.

CARECA-29 This comment consists of introductory remarks from Smart Mobility and summarizes the findings of the commenter’s letter in October 2023, stating that the Draft EIR acknowledges a significant and unavoidable VMT impact, asserting that the proposed VMT mitigation measure is not fully specified or quantified, and claiming that the Project’s trip generation and GHG emissions could be much higher than assumed. As described in the following responses, the commenter’s assertions are incorrect.

Refer to Response to Comments CARECA-30 to CARECA-33. Thus, no further response is required CARECA-30 The commenter reiterates previous comments and responses made regarding the Project’s truck trip length. This comment is similar to Response to Comments A-18, A-19, and A-28 in the Final EIR, 1- 16 in the RTC dated May 20, CARE-14, CARE-15, and CARE-16 in the RTC dated August 8. Refer to Final EIR Response to Comment A-18, A-19, A-28 (Final EIR, pp. 2-43, 2-44, 2-45) and Response to Comment 1-16 (RTC, p. 7), and Response to Comment CARE-14, CARE-15, and CARE-16 (RTC, p. 5). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency.

CARECA-31 The commenter reiterates previous comments and responses made regarding the Project’s significant and unavoidable VMT impacts. The commenter’s statements have been previously addressed at Final EIR Response to Comment A-24, which included a calculation of feasible VMT mitigation measures.

As stated, measures associated with commute trip reduction (CTR) programs and their related commute trip reduction strategies have been excluded as they are not quantifiable, nor can their implementation be guaranteed and enforced since the Project is proposed to be developed as a speculative building without a known tenant (Final EIR pp. 2-44 to 2-45). Additionally, the commenter reiterated suggestions on requiring zero emission trucks, limiting daily number of trucks allowed at the Project site, and providing electric vehicle (EV) charging stations and electrical hookups for truckers. Refer to Response to Comment B-53 and B-60 in the Final EIR (Final EIR, pp. 2-97 to 2-100) regarding the infeasibility of using zero-emission vehicles and EV charging stations for trucks and 1- 33 in the RTC dated May 20 (RTC, p. 13) for limiting daily number of trucks allowed at the Project site.

Thus, no further response is required.
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CARECA-32 The commenter reiterates previous comments and responses made related to the Project’s trip generation assumptions. This comment is similar to Response to Comment A-18, A-19, and A-28 in the Final EIR, 1- 16 in the RTC dated May 20, CARE-14, CARE-15, and CARE-16 in the RTC dated August

8. Refer to Final EIR Response to Comment A-18, A-19, A-28 (Final EIR, pp. 2-43, 2-44, 2-45) and Response to Comment 1-16 (RTC, p. 7), and Response to Comment CARE-14, CARE-15, and CARE-16 (RTC, p. 5). The commenter raises no new or additional environmental issues not previously addressed in the Draft EIR, Final EIR, RTC, and the Responses provided herein, and the whole record before the Lead Agency. The Lead Agency maintains its position regarding accuracy and adequacy of the EIR analysis of the Project’s truck trips assumptions. No additions, revisions, or corrections are necessary and no further response is required.
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Attachment A:

Comment Letter
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KEVIN T. CARMICHAEL
CHRISTINA M. CARO
THOMAS A. ENSLOW
KELILAH D. FEDERMAN
RICHARD M. FRANCO
ANDREW J. GRAF
TANYA A. GULESSERIAN
DARION N. JOHNSTON
RACHAEL E. KOSS
AIDAN P. MARSHALL
ALAURA R. McGUIRE
TARA C. RENGIFO
Of Counsel
MARC D. JOSEPH
DANIEL L. CARDOZO

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

ADAMS BROADWELL JOSEPH & CARDOZO A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
601 GATEWAY BOULEVARD, SUITE 1000
SOUTH SAN FRANCISCO, CA 94080 - 7037
___________
TEL: (650) 589 - 1660
FAX: (650) 589 - 5062
[email protected]
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September 5, 2024
Via Online Portal Submission
Ontario City Council
Mayor Paul S. Leon
Mayor pro tem Debra Porada
City Council Members
Online Portal: https://automation.ontarioca.gov/onlinePermits Email: [email protected]
Via Email and Overnight Mail
Attn: Thomas Grahn, Senior Planner
City of Ontario Planning Department
303 E B St, Ontario, CA 91764
Email: [email protected]
Re: Appeal to City Council of Planning Commission Approval of the 5355 East Airport Drive Project (File No. PDEV22-017; SCH No. 2022090006)
Dear Mayor Leon, Mayor pro tem Porada, City Council Members, Mr. Grahn:

On behalf of Californians Allied for a Responsible Economy (“CARE CA”), we submit this appeal to the City Council of the Planning Commission’s (“Commission”) August 27, 2024 approvals of the 5355 East Airport Drive Project (File No. PDEV22-017; SCH No. 2022090006) (“Project”), proposed by Prologis Inc. (“Applicant”).

The scope of the Commission’s determination for File No. PDEV22-017 includes certification of a Final Environmental Impact Report (State Clearinghouse No. 202209006) (“FEIR”), including the adoption of a Mitigation Monitoring and Reporting Program and a Statement of Overriding Considerations, in conjunction with approval of a Development Plan to construct a 270,337-square-foot industrial building on 13.08 acres of land located at 5355 East Airport Drive, and related findings.

CARECA-1
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CARE CA submitted comments on the Project’s Draft EIR (“DEIR”) on October 5, 2023 during the public review period required by Section 15087 of the California Environmental Quality Act (“CEQA”) Guidelines.1 CARE CA’s comments on the DEIR demonstrated that the DEIR failed to comply with CEQA by failing to accurately disclose potentially significant health risk, air quality, GHG, energy, and soil contamination impacts, failing to support its significance findings with substantial evidence, and failing to mitigate the Project’s significant impacts to the greatest extent feasible, in violation of CEQA.

The City subsequently prepared the FEIR, which the City claims fully resolves the issues identified in CARE CA’s comments and by other commenters.

But CARE CA submitted comments demonstrating that the FEIR fails to meet CEQA’s requirements. Staff reports prepared for the Planning Commission erroneously claim that that the FEIR has adequately addressed CARE CA’s comments. This is incorrect. The staff reports mainly reiterate the flawed reasoning and conclusions of the FEIR. As such, although the City has prepared several documents which purport to respond to CARE CA’s comments, the City has not resolved the issues raised in CARE CA’s comments and the FEIR remains in violation of CEQA. The Planning Commission’s approval of the Project and certification of the FEIR violated CEQA and land use laws because the City has not complied with its duty to disclose and mitigate the Project’s potentially significant environmental and land use impacts, and the Planning Commission’s approval findings were not supported by substantial evidence.

CARE CA hereby appeals all actions taken by the Commission with regard to the Project under File No. PDEV22-017. This appeal is timely filed in compliance with the Ontario Development Code.2 The reasons for this appeal are set forth herein and in the attachments, which include CARE CA’s comments on the DEIR,3 FEIR,4 and two letters to the Planning Commission responding to staff reports 114 Cal. Code Regs. §§ 15000 et seq.; see Cal. Pub. Res. Code §§ 21000 et seq. 2 Section 2.04.010(B)(1). 3 Attachment A: Letter from Adams Broadwell Joseph & Cardozo (“ABJC”) to City re: Comments on the Draft Environmental Impact Report for 5355 East Airport Drive Project (SCH No. 2022090006; File No. PDEV22-017) (October 5, 2023). 4 Attachment B: Letter from ABJC to City re: Agenda Item B – File No. PDEV22-017: 5355 East Airport Drive Project (SCH No. 2022090006) (April 15, 2024).

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prepared for the Project.5 We incorporate by reference the attached comments and exhibits, which are in the City’s record of proceedings for the Project.6 The Commission abused its discretion and failed to proceed in the manner required by law by approving the Project in reliance on a deficient CEQA document and without substantial evidence to support the approval findings.7 CARE CA respectfully requests that the City Council vacate the Commission’s approval of the Project.

A. Standing to Appeal and Statement of Interest
Section 2.04.010(B)(1) of the Ontario Development Code provides that the decision of the Approving Authority may be appealed within 10 days of the action or decision. Because the Planning Commission approved the Project on August 27, the final day to submit an appeal is September 6. Thus, this appeal is timely filed.

Section 2.04.005 of the Code provides that “[a]ny person having legal standing, including but not limited to an applicant, resident, business owner, or any person owning real property within the City, that is aggrieved by an interpretation, action or decision made pursuant to this Development Code by any City agency or department, or by an Approving Authority, may appeal such action to the Appeal Authority in accordance with the provisions of this Division.” CARE CA is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards, and the environmental impacts of the Project. The coalition includes Ontario residents Daniel Brewer, David Audelo, Carlos Mendez, Rober Rubio, the District Council of Ironworkers and Southern California Pipe Trades DC 16, along with their members, their families, and other individuals who live and work in Ontario and in San Bernardino County. CARE CA’s comments on the DEIR, FEIR, to the Planning Commission, and this appeal, detail the specific issues over which CARE CA is aggrieved by the Planning Commission’s decision. 5 Attachment C: Letter from ABJC to City Re: Agenda Item D – File No. PDEV22-017: 5355 East Airport Drive Project (SCH No. 2022090006) (May 28, 2024); Attachment D: Letter from ABJC to City Re: Agenda Item B – File No. PDEV22-017: 5355 East Airport Drive Project (SCH No. 2022090006) (August 27, 2024). 6 We reserve the right to supplement these comments at later hearings and proceedings on the Project. Gov. Code § 65009(b); PRC § 21177(a); Bakersfield Citizens for Local Control v. Bakersfield (2004) 124 Cal. App. 4th 1184, 1199-1203; see Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal. App. 4th 1109, 1121, 7 Code Civ. Proc § 1094.5(b); Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.

CARECA-2
CARECA-1
(CONT.)
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CARE CA advocates for protecting the environment and the health of their communities’ workforces. CARE CA seeks to ensure a sustainable construction industry over the long-term by supporting projects that offer genuine economic and employment benefits, and which minimize adverse environmental and other impacts on local communities. CARE CA members live, work, recreate, and raise their families in the City of Ontario and surrounding communities. Accordingly, they would be directly affected by the Project’s environmental and health and safety impacts. Individual members may also work on the Project itself. They will be first in line to be exposed to any health and safety hazards that exist onsite.

B. The Commission’s Certification of the FEIR Was Contrary to Law and Unsupported by the Record
As summarized below, and demonstrated fully in the attached comments, the FEIR fails to adequately analyze and mitigate the project’s potentially significant impacts.

The FEIR fails to analyze the full scope of the Project – CEQA requires that an EIR analyze the reasonably foreseeable consequences of the Project, but the Project’s FEIR fails to analyze the Project’s reasonably foreseeable use as a parcel hub (a use that generates 2.6 times more trips than analyzed). The City has argued that the Project is not envisioned as a parcel hub and its design would not support use as a parcel hub, but the Project plainly meets the description of a potential high cube parcel hub in Institute of Transportation Engineers (“ITE”) land use code 156 (the Project would have adequate parking, square footage, and ceiling height). Any claim that the Project is not envisioned as a parcel hub is not supported by substantial evidence because the City has acknowledged that the Project is proposed as a speculative development and the user(s) of the building is not known at this time. Thus, the FEIR must be revised to analyze the heightened environmental impacts from the Project’s potential use as a parcel hub.

CARECA-3
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Similarly, the FEIR fails to analyze reasonably foreseeable truck trips to the Ports of Los Angeles and Long Beach, which are longer than the trips analyzed in the FEIR. Longer truck trips are associated with greater emissions of criteria air pollutants and GHG emissions. CARE CA presented numerous comment letters from the South Coast Air Quality Management District (“SCAQMD”) recommending that warehouses just like this one analyze trips to the Ports, and presented studies showing that trips to the Ports are a reasonably foreseeable consequence for a warehouse in the City of Ontario.

The FEIR fails to include sufficient investigation into energy conservation measures that might be available or appropriate for the Project, as required by the CEQA Guidelines. CARE CA’s comments discussed the decision in California Clean Energy Commission v. City of Woodland (“CCEC”),8 in which the Court of Appeal held that an EIR failed to comply with the requirements of Appendix F to the Guidelines by not discussing or analyzing renewable energy options.9 Here, the FEIR fails to analyze the feasibility and effectiveness of measures including onsite solar facilities, electric vehicle charging, and others discussed in CARE CA’s comments. The City maintains that discussion of energy consumption measures is not required for this Project because its energy impacts are less than significant, but makes the same error as the lead agency in CCEC because the EIR in that case also identified a less-than-significant energy impact.10 The FEIR’s analysis of cumulative air quality impacts is inadequate because it fails to consider the Project’s impacts in the context of the numerous other warehouses existing and planned in the area. The City’s approach to cumulative impacts, relying on SCAQMD guidance, is that emissions of criteria air pollutants or toxic air contaminants that do not exceed individual project thresholds are also not cumulatively considerable. CARE CA’s comments demonstrated that this approach fails to meet CEQA’s standards in light of the controlling caselaw,11 the Attorney General’s recent litigation on this issue in People of the State of California v. City of Fontana,12 and pending updates to the SCAQMD significance thresholds for cumulative impacts in response to this litigation. At no point have the City’s responses meaningfully addressed the caselaw proscribing the City’s invalid approach to cumulative impacts. The responses primarily reiterate that the City is complying with current SCAQMD guidance (as opposed to the pending updates to 8 (2014) 225 CA4th 173.
9 Id. at 213. 10 CCEC, supra, 225 CA4th 173 at 183. 11 Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d 692; Env't Prot. Info. Ctr. v.

California Dep't of Forestry & Fire Prot. (2008) 44 Cal. 4th 459; 12 San Bernardino Superior Court, Case No. CIVSB2121829; SCAQMD Working Group Meeting # 4, Cumulative Impacts from Air Toxics for CEQA Projects (June 6, 2023) pg. 6; CARECA-6
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the guidance). The FEIR must be revised to include a legally adequate discussion of cumulative impacts.

Regarding the Project’s individual health risk impacts, CARE CA’s air quality expert presented substantial evidence demonstrating that the FEIR’s quantified health risk analysis underestimates impacts. For example, the HRA only analyzes trucks travelling east along Airport Drive, away from sensitive receptors located west of the Project. CARE CA’s air quality expert also demonstrated that the HRA failed to account for building downwash and relied on unreliable input values. The City has not revised its HRA to address these flaws and others identified in Dr. Clark’s comments.

Regarding hazards, the FEIR identifies significant vapor intrusion impacts due to PCE contamination, but improperly defers formulation of mitigation measures. The FEIR fails to specify whether passive/engineered vapor intrusion mitigation may be employed as opposed to removal of all impacted soil, does not quantify the impacts associated with each form of mitigation (e.g. construction impacts associated with excavation, removal and backfilling contaminated soil versus impacts of installing vapor intrusion barriers), and does not commit the City or the Applicant to specific binding mitigation. The body of the FEIR also fails to disclose potentially significant impacts resulting from ethylbenzene concentrations in excess of the commercial/industrial screening level of 163 micrograms per cubic meter.

As a result of these issues and others raised in CARE CA’s prior comments, the FEIR is deficient as a matter of law and its conclusions are not supported by substantial evidence. Rather, substantial evidence demonstrates that the Project’s significant impacts are greater than analyzed in the FEIR. As such, the Commission’s certification of the FEIR was contrary to law and unsupported by the record. The Planning Commission’s approval decision must be vacated, and the EIR must be revised and recirculated in compliance with CEQA.

C. The Commission’s Approval of the Development Plan Was Contrary to Law and Unsupported by the Record
Section 4.02.025(D) of the City of Ontario Municipal Code sets forth findings necessary to approve a development plan. The Code provides that an application for a development plan shall be denied if the following finding (among others) cannot be clearly established: “The proposed development will complement and/or improve upon the quality of existing development in the vicinity of the project and the CARECA-10
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minimum safeguards necessary to protect the public health, safety and general welfare have been required of the proposed project.”13
The Project would have a significant and unavoidable VMT impact. And the Project has potentially health risk, air quality, GHG, energy, and soil contamination impacts which have been underestimated in the FEIR. Because the Project’s impacts on public health, safety and general welfare have not been adequately analyzed and mitigated, the City lacked substantial evidence to make the requisite findings to approve the Project. A revised EIR must be recirculated before the Project can be approved.

D. CONCLUSION
CARE CA respectfully requests that the City set a hearing on this appeal, and that the City Council uphold this appeal, vacate the Planning Commission’s approval of the Project, and direct staff to revise and recirculate the EIR to comply with CEQA before the Project can be reconsidered for approval.

Sincerely,
Aidan P. Marshall
Attachments
APM:acp
13 Section 4.02.025(D)(3).

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

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

ADAMS BROADWELL JOSEPH & CARDOZO A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
601 GATEWAY BOULEVARD, SUITE 1000
SOUTH SAN FRANCISCO, CA 94080 - 7037
___________
TEL: (650) 589 - 1660
FAX: (650) 589 - 5062
amarshall @adamsbroadwell.com
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October 5, 2023
Via Overnight Mail and Email
Thomas Grahn, Senior Planner
City of Ontario Planning Department
303 East B Street
Ontario, CA 91764
Email: [email protected]
Via Email Only
Rudy Zeledon, Planning Director
Email: [email protected]
Re: Comments on the Draft Environmental Impact Report for 5355 East Airport Drive Project (SCH No. 2022090006; File No. PDEV22-017) Dear Mr. Grahn and Mr. Zeledon:

We are writing on behalf of Californians Allied for a Responsible Economy (“CARE CA”) to provide comments on the Draft Environmental Impact Report (“DEIR”) prepared by the City of Ontario (“City”) for 5355 East Airport Drive Project (SCH No. 2022090006; File No. PDEV22-017) (“Project”), proposed by Prologis. Inc (“Applicant”).

The Project site is located on 13.08 acres at 5355 East Airport Drive in the City of Ontario, in San Bernardino County, California (Assessor Parcel Numbers:
0238-052-29 and 0238- 052-20). The Project proposes to demolish all existing on-site structures and redevelop the site as a warehouse distribution facility with approximately 270,337 square feet (sf”) of building area and 54 south-facing loading dock doors. Of the total building square footage, the Project design allocates 255,337 sf for ground floor space and 15,000 sf for mezzanine space. Development of the Project site would require demolition of the existing buildings and structures, onsite landscaping, and on-site parking. The proposed building would be a one-story, 49-foot-tall speculative warehouse/distribution facility with ancillary office space.

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The Project design includes surface parking with 251 parking spaces including 126 standard automobile parking stalls, 7 accessible parking stalls, 25 electric vehicle parking stalls, 93 additional standard stalls within the truck court, and 48 truck trailer parking spaces.

Based on our review of the DEIR and supporting documentation, we conclude that the DEIR fails to comply with the requirements of the California Environmental Quality Act (“CEQA”)1. The DEIR fails to adequately analyze the Project’s cumulative impacts in light of the community’s existing pollution burden resulting from similar warehouse projects, and fails to propose feasible and enforceable mitigation measures to reduce those impacts to a less than significant level, as required by CEQA. The DEIR also underestimates potentially significant air quality, greenhouse gas (“GHG”), and energy impacts by failing to concretely describe the Project – which may have significantly greater cold storage uses, transport refrigeration units (“TRUs”), and backup generators than disclosed in the DEIR. The DEIR also impermissibly fails to identify specific and effective mitigation to reduce the Project’s significant Vehicle Miles Traveled (“VMT”) impact to the greatest extent feasible before declaring the impact significant and unavoidable.2 The DEIR’s transportation analysis also underestimates VMT and resultant GHG emissions. We reviewed the DEIR and its technical appendices with the assistance of transportation expert Norm Marshall.3 We reserve the right to supplement these comments at a later date, and at any later proceedings related to this Project.4
As explained in these comments, the DEIR lacks substantial evidence to support its conclusions with regard to the Projects’ impacts relating to air quality, health risks, greenhouse gases, energy, and transportation. The City may not approve the Project until the City revises and recirculates the Project’s DEIR to adequately analyze the Project’s significant direct, indirect and cumulative impacts, and incorporates all feasible mitigation measures to avoid or minimize these impacts to the greatest extent feasible.
1 Pub. Resources Code §§ 21000 et seq.; 14 Cal. Code Regs (“CEQA Guidelines”) §§ 15000 et seq. (“CEQA Guidelines”).
2 Pub. Resources Code, § 21081(a)(3), (b); Covington v. Great Basin Unif. Air Pollution Control Dist. (2019) 43 Cal.App.5th 867, 879-883. 3 Mr. Marshall’s technical comments and curricula vitae are attached hereto as Exhibit A. 4 Gov. Code § 65009(b); PRC § 21177(a); Bakersfield Citizens for Local Control v. Bakersfield (“Bakersfield”) (2004) 124 Cal. App. 4th 1184, 1199-1203; see Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal. App. 4th 1109, 1121.

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I. STATEMENT OF INTEREST
CARE CA is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards, and the environmental impacts of the Project. The coalition includes the District Council of Ironworkers and Southern California Pipe Trades DC 16, along with their members, their families, and other individuals who live and work in Ontario and in San Bernardino County.

CARE CA advocates for protecting the environment and the health of their communities’ workforces. CARE CA seeks to ensure a sustainable construction industry over the long-term by supporting projects that offer genuine economic and employment benefits, and which minimize adverse environmental and other impacts on local communities. CARE CA members live, work, recreate, and raise their families in the City of Fontana and surrounding communities. Accordingly, they would be directly affected by the Project’s environmental and health and safety impacts. Individual members may also work on the Project itself. They will be first in line to be exposed to any health and safety hazards that exist onsite.

II. LEGAL BACKGROUND
CEQA requires public agencies to analyze the potential environmental impacts of their proposed actions in an EIR.5 “The foremost principle under CEQA is that the Legislature intended the act to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”6
5 PRC § 21100. 6 Laurel Heights Improvement Assn. v. Regents of Univ. of Cal (“Laurel Heights I”) (1988) 47 Cal.3d 376, 390 (internal quotations omitted).

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CEQA has two primary purposes. First, CEQA is designed to inform decisionmakers and the public about the potential significant environmental effects of a project.7 “Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR ‘protects not only the environment but also informed self-government.’”8 The EIR has been described as “an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.”9 As the CEQA Guidelines explain, “[t]he EIR serves not only to protect the environment but also to demonstrate to the public that it is being protected.”10
Second, CEQA requires public agencies to avoid or reduce environmental damage when “feasible” by requiring consideration of environmentally superior alternatives and adoption of all feasible mitigation measures.11 The EIR serves to provide agencies and the public with information about the environmental impacts of a proposed project and to “identify ways that environmental damage can be avoided or significantly reduced.”12 If the project will have a significant effect on the environment, the agency may approve the project only if it finds that it has “eliminated or substantially lessened all significant effects on the environment” to the greatest extent feasible and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns.”13 While courts review an EIR using an “abuse of discretion” standard, “the reviewing court is not to ‘uncritically rely on every study or analysis presented by a project proponent in support of its position. A clearly inadequate or unsupported study is entitled to no judicial deference.”14 As the courts have explained, a 7 Pub. Resources Code § 21061; CEQA Guidelines §§ 15002(a)(1); 15003(b)-(e); Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 517 (“[T]he basic purpose of an EIR is to provide public agencies and the public in general with detailed information about the effect [that] a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.”). 8 Citizens of Goleta Valley, 52 Cal.3d at p. 564 (quoting Laurel Heights I, 47 Cal.3d at 392). 9 County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810; see also Berkeley Keep Jets Over the Bay v.

Bd. of Port Comm’rs. (2001) 91 Cal.App.4th 1344, 1354 (“Berkeley Jets”) (purpose of EIR is to inform the public and officials of environmental consequences of their decisions before they are made). 10 CEQA Guidelines § 15003(b). 11 CEQA Guidelines § 15002(a)(2), (3); see also Berkeley Jets, 91 Cal.App.4th at 1354; Citizens of Goleta Valley, 52 Cal.3d at p. 564. 12 CEQA Guidelines § 15002(a)(2). 13 PRC § 21081(a)(3), (b); CEQA Guidelines §§ 15090(a), 15091(a), 15092(b)(2)(A), (B); Covington v.

Great Basin Unified Air Pollution Control Dist. (2019) 43 Cal.App.5th 867, 883. 14 Berkeley Jets, 91 Cal.App.4th at p. 1355 (emphasis added) (quoting Laurel Heights I, 47 Cal.3d at 391, 409, fn. 12).

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prejudicial abuse of discretion occurs “if the failure to include relevant information precludes informed decision-making and informed public participation, thereby thwarting the statutory goals of the EIR process.”15 “The ultimate inquiry, as case law and the CEQA guidelines make clear, is whether the EIR includes enough detail ‘to enable who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’”16 III. THE PROJECT DESCRIPTION IS INADEQUATE
The DEIR does not meet CEQA’s requirements because it fails to include an accurate and complete Project description, rendering the entire analysis inadequate.

California courts have repeatedly held that “an accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.”17 CEQA requires that a project be described with enough particularity that its impacts can be assessed.18 Without a complete project description, the environmental analysis under CEQA is impermissibly limited, thus minimizing the project’s impacts and undermining meaningful public review.19 Accordingly, a lead agency may not hide behind its failure to obtain a complete and accurate project description.20
CEQA Guidelines section 15378 defines “project” to mean “the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.”21 “The term “project” refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term project does not mean each separate governmental approval.”22 15 Berkeley Jets, 91 Cal.App.4th at p. 1355; see also San Joaquin Raptor/Wildlife Rescue Center v.

County of Stanislaus (1994) 27 Cal.App.4th 713, 722 (error is prejudicial if the failure to include relevant information precludes informed decision making and informed public participation, thereby thwarting the statutory goals of the EIR process); Galante Vineyards, 60 Cal.App.4th at p. 1117 (decision to approve a project is a nullity if based upon an EIR that does not provide decision-makers and the public with information about the project as required by CEQA); County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 946 (prejudicial abuse of discretion results where agency fails to comply with information disclosure provisions of CEQA). 16 Sierra Club, 6 Cal.5th at p. 516 (quoting Laurel Heights I, 47 Cal.3d at 405). 17 Stopthemillenniumhollywood.com v. City of Los Angeles (2019) 39 Cal.App.5th 1, 17; Communities for a Better Environment v. City of Richmond (“CBE v. Richmond”) (2010) 184 Cal.App.4th 70, 85– 89; County of Inyo v. City of Los Angeles (3d Dist. 1977) 71 Cal.App.3d 185, 193. 18 14 CCR § 15124; see, Laurel Heights I, supra, 47 Cal.3d 376, 192-193. 19 Id. 20 Sundstrom v. County of Mendocino (“Sundstrom”) (1988) 202 Cal.App.3d 296, 311. 21 CEQA Guidelines § 15378. 22 Id., § 15378(c).

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Courts have explained that a complete description of a project must “address not only the immediate environmental consequences of going forward with the project, but also all “reasonably foreseeable consequence[s] of the initial project.”23 “If a[n]…EIR…does not adequately apprise all interested parties of the true scope of the project for intelligent weighing of the environmental consequences of the project, informed decisionmaking cannot occur under CEQA and the final EIR is inadequate as a matter of law.”24
A. The DEIR Fails to Describe the Project’s End Uses with Sufficient Particularity to Adequately Evaluate Trips
Generated by the Project
The DEIR assumes that the Project would include approximately 27,034 sf of high-cube cold storage uses (10% of the building space), with remaining portions of the building consisting of warehouse uses.25 The DEIR explains that the Project’s end users are unknown.26 In order to develop the traffic characteristics of the proposed Project, trip-generation statistics published in the Institute of Transportation Engineers (“ITE”) Trip Generation Manual for the proposed Project’s land uses was utilized.27 For purposes of the trip generation assessment, the DEIR used ITE land use code 150 (Warehousing) and ITE land use code 157 (High-Cube Cold Storage Warehouse). Transportation expert Norm Marshall explains that these land use codes are just one of many land use codes potentially applicable to the Project.28 The figure below shows other warehousing land use codes and compares trips generated by each land use.
23 Laurel Heights I, 47 Cal. 3d 376, 398 (emphasis added); see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 449-50. 24 Riverwatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal. App. 4th 1186, 1201. 25 DEIR, pg. 3-13. 26 DEIR, pg. 4.7-17. 27 DEIR, pg. 4.10-5. 28 Marshall Comments, pg. 4.

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Figure 1: Trip Generation Rates for Different Warehouse Categories (Trips Per 1000 Square Feet per Day)29
The DEIR fails to address why the other land use codes shown above are inapplicable to the Project. And the DEIR fails to provide sufficient information about the Project’s expected uses and configuration for the public and decisionmakers to ascertain which of these end uses are possible for the Project.

This informational defect affects the entire DEIR, as different types of warehousing have different environmental impacts.

Mr. Marshall explains that the land use code selected by the DEIR may drastically underestimate the Project’s GHG and VMT impacts. Specifically, the Parcel Hub Warehouse trip generation rate is 2.6 times the rate used in the DEIR, and the Fulfillment Center Warehouse with Sorting rate is 5.2 times the rate used in the DEIR.30 A greater number of trips generated results in greater traffic impacts and greater emissions of GHGs. Given the large uncertainty in the trips generated by the Project, the DEIR fails to meet CEQA’s requirement that a project be 29 Marshall Comments, pg. 5. 30 Id.

1.40 1.71 1.81

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described with enough particularity that its impacts can be assessed.31 Mr.

Marshall recommends two approaches to resolve this issue: either a) applying a significantly higher and more conservative trip generation rate, or b) requesting as a condition of approval that trip generation will not exceed the number assumed in the EIR, and this be certified prior to beginning construction.32 The City should revise and recirculate the DEIR to correct these deficiencies and to present a revised trip generation analysis which reflects reasonably foreseeable conditions at the Project site, or condition Project approval on the limitations assumed in the DEIR.

B. The DEIR Fails to Substantiate Its Estimate that Just 10% Percent of the Project Will be Used for Cold Storage
The DEIR assumes, without support, that the Project would only include approximately 27,034 sf of high-cube cold storage uses (10% of the building space), with remaining portions of the building consisting of warehouse uses.33 The DEIR states that a limitation of 10% of the building for potential cold storage is based on the Project Applicant’s understanding of the cold storage market demand.34 However, this assumption, even if based on a reasonable interpretation of current market conditions, is subject to fluctuate during the life of the Project and is not otherwise reflected in any enforceable conditions related to Project use.

In order for the City to rely on the Applicant’s 10% cold storage assumption in the CEQA document, the DEIR would need to include binding measures or conditions which limit warehouse use at the Project to no more than 10% cold storage. Absent such a restriction, the DEIR may substantially estimate the air quality, public health, and energy impacts of cold storage use at the Project site.

Cold storage warehouse generates greater environmental impacts than a high cube warehouse. Cold storage generates more trips per square foot and has higher energy impacts due to the low temperatures required by the facility’s transport refrigeration units (“TRUs”) and on-site storage. TRUs are refrigeration systems powered by integral diesel engines.35 The refrigeration systems are used to control the environment of temperature-sensitive products transported in insulated 31 14 CCR § 15124; see, Laurel Heights I, supra, 47 Cal.3d 376, 192-193. 32 Marshall Comments, pg. 5. 33 DEIR, pg. 3-13. 34 Id. 35 California Air Resources Board, 2022 TRU Technology Assessment, pg. 1, https://ww2.arb.ca.gov/sites/default/files/2022-
10/CARB%202022%20TRU%20Technology%20Assessment%2010-14-22.pdf.

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trucks, trailers, shipping containers, or railcars. The California Air Resources Board (“CARB”) states that TRUs emit diesel particulate matter (“DPM”), fine particulate matter (“PM2.5”), oxides of nitrogen (“NOx”), and GHGs while in transit and during stationary operation at refrigerated warehouses or distribution centers, grocery stores, seaport facilities, intermodal railyards, and other locations of operation.

CARB explains that communities near facilities where TRUs operate bear a disproportionate health burden:

PM2.5 pollution contributes to more fatalities than other air pollutants and can lodge deep in the lungs or pass through the lungs to enter the blood stream and affect the heart, brain, and other organs. Adverse health effects from long-term exposure to PM2.5 pollution include increased risk of heart attacks and heart disease, impaired lung development in children, the development and exacerbation of asthma, and premature death. NOx is a precursor to ozone, which can cause irritation and damage lung tissue, worsen asthma and chronic illnesses including obstructive pulmonary disease and reduce lung function.36
CARB also explains that TRUs’ emissions of GHGs contribute towards climate change,37 and that TRUs generate noise impacts: “TRU operations produce noise that can be problematic when deliveries that often occur late evening or early morning are near residential neighborhoods, hotels, hospitals, and elder care facilities… One study conducted by LSA Associates found that a diesel-powered TRU operating at high idle produces an A-weighted decibel (dBA) noise rating of 104 dBA, while a diesel truck at idle produces a noise rating of 96 dBA.”38 By assuming the Project will only include 10% cold storage, the DEIR may drastically underestimate the Project’s impacts in each of these areas. The DEIR does not provide supporting evidence demonstrating that cold storage uses would be limited to 10% of the Project site for the duration of the Project’s life. Due to everincreasing population and market demands in Southern California, it is also reasonably foreseeable that the Project may attract end users, either now or in future years of the Project’s life, which require more than 10% cold storage. As a result, the DEIR’s assumption is not supported by substantial evidence. 36 California Air Resources Board, 2022 TRU Technology Assessment, pg. 10. 37 California Air Resources Board, 2022 TRU Technology Assessment, pg. 10. 38 California Air Resources Board, 2022 TRU Technology Assessment, pg. 17-18.

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In the California Attorney General’s (“AG”) guidance for warehouse projects, the AG recommends that, unless a developer adopts mitigation measures limiting cold storage impacts, the developer should record a covenant on the title of the underlying property to ensuring that the property cannot be used to provide refrigerated warehouse space.39 The City should include such a title restriction for the Project unless the DEIR’s 10% cold storage assumption is revised to analyze and mitigate impacts associated with a more conservative and fact-based cold-storage use percentage.

C. The Project Description Fails to Include Reasonably
Foreseeable Backup Generators
The DEIR fails to disclose potential backup/emergency stationary generators for the Project’s operations. The DEIR’s project description does not address whether backup generators are a reasonably foreseeable component of the Project, and the DEIR’s technical analyses assume no backup generators will be installed for operations. The DEIR does not disclose any conditions or mitigation measures that limit or prevent use of backup generators. Thus, the DEIR must disclose and analyze the potential use of backup generators because (1) they a reasonably foreseeable consequence of the Project, and (2) the use of backup generators will expand the Project’s environmental effects.40
In East Oakland Stadium Alliance v. City of Oakland,41 the Court of Appeal upheld an EIR’s analysis of emissions from backup generators. The EIR’s analysis assumed that generators would operate for 50 hours of testing and maintenance annually, while allocating no time for actual emergency use. In discussing the lead agency’s duty to analyze backup generator emissions, the Court stated that “if the annual need for emergency generator use is reasonably foreseeable, the EIR was not entitled to disregard such use merely because it would occur at unpredictable times.”42 The Court explained that use of a generator was reasonably foreseeable because, “[a]s noted in the EIR, some parts of the Bay Area are subject to 39 Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act (Updated September 2022), pg. 9, available at https://oag.ca.gov/system/files/media/warehouse-best-practices.pdf (“Unless the owner of the facility records a covenant on the title of the underlying property ensuring that the property cannot be used to provide refrigerated warehouse space, constructing electric plugs for electric transport refrigeration units at every dock door and requiring truck operators with transport refrigeration units to use the electric plugs when at loading docks.”). 40 Id. 41 (2023) 889 Cal. App. 5th 1226. 42 Id. at 1252.

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predictable, sustained power outages undertaken to reduce the risk of fire.”43 Thus, “[t]he EIR was required to make neither a generally applicable nor a worst-case assumption; rather it was required to make a reasonable estimate of likely annual use of the generators at the project site.”44
Here, as in East Oakland Stadium Alliance, back-up generators are a reasonably foreseeable consequence of the Project due to increasingly common Public Safety Power Shutoff (“PSPS”) events and extreme heat events. Extreme heat events (“EHE”) are defined as periods where in the temperatures throughout California exceed 100 degrees Fahrenheit.45 From January 2019 through December 2019, Southern California Edison reported 158 of their circuits underwent a PSP event.46 In Los Angeles County, two circuits had 4 PSPS events during that period, lasting an average of 35 to 38 hours. The total duration of the PSPS events lasted between 141 hours to 154 hours in 2019. According to the California Public Utilities Commission (CPUC) de-energization report47 in October 2019, there were almost 806 PSPS events that impacted almost 973,000 customers (~7.5% of households in California) of which ~854,000 of them were residential customers. The California Air Resources Board estimates that with 973,000 customers impacted by PSPS events in October 2019, approximately 125,000 back-up generators were used by customers to provide electricity during power outage.48 The widespread use of backup generators to adapt to PSPS and EHE events suggests that back-up generators are a reasonably foreseeable consequence of the Project.

Further demonstrating that backup generators are reasonably foreseeable is that the DEIR assumes that 10% of the building (27,034 sf) would be cold storage.49 A cold storage warehouse has the ability to keep temperature sensitive items in a 43 Id. at 1253. 44 Id. 45 Governor of California. 2021. Proclamation of a state of emergency. June 17, 2021. 46 SCAQMD. 2020. Proposed Amendment To Rules (PARS) 1110.2, 1470, and 1472. Dated December 10, 2020. http://www.aqmd.gov/docs/default-source/rule-book/Proposed-Rules/1110.2/1110- 2_1470_1472/par1110-2_1470_wgm_121020.pdf?sfvrsn=6. 47 https://www.cpuc.ca.gov/deenergization/ as cited in CARB, 2020. Potential Emission Impact of Public Safety Power Shutoff (PSPS), Emission Impact: Additional Generator Usage associated With Power Outage..
48 California Air Resources Board, Emission Impact: Additional Generator Usage Associated with Power Outage (January 30, 2020), available at
https://ww2.arb.ca.gov/resources/documents/emissions-impact-generator-usage-during-psps. 49 DEIR, pg. 3-2 (Although the future tenant(s) of the proposed building is unknown at this time, for purposes of analysis within this EIR it is assumed that the building would include approximately 27,034 s.f. of high-cube cold storage uses (10% of the building space), with remaining portions of the building consisting of warehouse uses).

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temperature-controlled environment, which requires a constant energy supply to power refrigeration. Cold storage warehouses thus commonly utilize backup generators.50 Backup generators commonly rely on fuels such as natural gas or diesel,51 and thus can significantly impact air quality, GHG emissions, and public health through toxic DPM emissions.52 Since the Project may include cold storage, it is reasonably foreseeable that the Project would require on-site backup generators.

Generators can emit criteria air pollutants, greenhouse gases, and toxic air contaminants (“TACs”). Backup generators commonly rely on fuels such as natural gas or diesel,53 and thus can significantly impact public health through DPM 50 California Air Resources Board, Comments re: Notice of Preparation (NOP) for the United States Cold Storage Hesperia Project (Project) Draft Environmental Impact Report (DEIR), State Clearinghouse No. 2020069036 (July 24, 2020), available at https://ww2.arb.ca.gov/sites/default/files/classic//toxics/ttdceqalist/uscoldstorage.pdf (stating that the HRA prepared for the Project should account for all potential health risks from Project-related diesel PM emission sources such as backup generators, TRUs, and heavy-duty truck traffic); Kusing Power Generator, http://ksdieselgenerator.com/2019/backup-generator-for-cold-storage-room.html, last visited 6/21/2021 (“Backup power supply is necessary for cold storage room to remain functional to avoid deterioration of high value-added goods such as vegetables and food stored in the room after long period of power failure”); East Coast Power Systems, Electrical Power Systems for Warehouses, https://www.ecpowersystems.com/resources/electrical-power-systems/electrical-power-systems-forwarehouses/ (explaining that some warehouses that deal with refrigeration have to have multiple power backup generators by law). 51 SCAQMD, Fact Sheet on Emergency Backup Generators, http://www.aqmd.gov/home/permits/emergency-generators (“Most of the existing emergency backup generators use diesel as fuel”). 52 California Air Resources Board, Emission Impact: Additional Generator Usage Associated with Power Outage (January 30, 2020), available at
https://ww2.arb.ca.gov/resources/documents/emissions-impact-generator-usage-during-psps (showing that generators commonly rely on gasoline or diesel, and that use of generators during power outages results in excess emissions); California Air Resources Board, Use of Back-up Engines for Electricity Generation During Public Safety Power Shutoff Events (October 25, 2019), available at https://ww2.arb.ca.gov/resources/documents/use-back-engines-electricity-generation-during-publicsafety-power-shutoff (“When electric utilities de-energize their electric lines, the demand for back-up power increases. This demand for reliable back-up power has health impacts of its own. Of particular concern are health effects related to emissions from diesel back-up engines. Diesel particulate matter (DPM) has been identified as a toxic air contaminant, composed of carbon particles and numerous organic compounds, including over forty known cancer-causing organic substances. The majority of DPM is small enough to be inhaled deep into the lungs and make them more susceptible to injury.

Much of the back-up power produced during PSPS events is expected to come from engines regulated by CARB and California’s 35 air pollution control and air quality management districts (air districts)”). 53 SCAQMD, Fact Sheet on Emergency Backup Generators, http://www.aqmd.gov/home/permits/emergency-generators (“Most of the existing emergency backup generators use diesel as fuel”).

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emissions.54 Diesel back-up generators emit significant amounts of Nitrogen Oxides (“NOx”), sulfur dioxides (“SO2”), particulate matter (“PM10”), carbon dioxide (“CO2”), carbon monoxide (“CO”), and volatile organic compounds (“VOC”).55 Omission of a generator system results in an underestimation of the Project’s air quality, greenhouse gas, and health risk impacts.

In sum, omission of the Project’s generator results in an underestimation of the Project’s air quality, greenhouse gas, energy, and health risk impacts. The DEIR must be revised to resolve this project description inconsistency and correct the affected impacts analyses to accurately disclose the Project’s potentially significant impacts.

IV. THE DEIR FAILS TO DISCLOSE, ANALYZE AND MITIGATE

POTENTIALLY SIGNIFICANT IMPACTS
An EIR must fully disclose all potentially significant impacts of a Project and implement all feasible mitigation to reduce those impacts to less than significant levels. The lead agency’s significance determination with regard to each impact 54 California Air Resources Board, Emission Impact: Additional Generator Usage Associated with Power Outage (January 30, 2020), available at
https://ww2.arb.ca.gov/resources/documents/emissions-impact-generator-usage-during-psps (showing that generators commonly rely on gasoline or diesel, and that use of generators during power outages results in excess emissions); California Air Resources Board, Use of Back-up Engines for Electricity Generation During Public Safety Power Shutoff Events (October 25, 2019), available at https://ww2.arb.ca.gov/resources/documents/use-back-engines-electricity-generation-during-publicsafety-power-shutoff (“When electric utilities de-energize their electric lines, the demand for back-up power increases. This demand for reliable back-up power has health impacts of its own. Of particular concern are health effects related to emissions from diesel back-up engines. Diesel particulate matter (DPM) has been identified as a toxic air contaminant, composed of carbon particles and numerous organic compounds, including over forty known cancer-causing organic substances. The majority of DPM is small enough to be inhaled deep into the lungs and make them more susceptible to injury.

Much of the back-up power produced during PSPS events is expected to come from engines regulated by CARB and California’s 35 air pollution control and air quality management districts (air districts)”). 55 University of California, Riverside Bourns College of Engineering—Center for Environmental Research and Technology, Air Quality Implications Of Backup Generators In California, (March 2005), pg. 8, available at
https://citeseerx.ist.psu.edu/document?repid=rep1&type=pdf&doi=84c8463118e4813a117db3d768151 a8622c4bf6b; South Coast AQMD, Fact Sheet on Emergency Backup Generators (“Emissions of Nitrogen Oxides (NOx) from diesel-fired emergency engines are 200 to 600 times greater, per unit of electricity produced, than new or controlled existing central power plants fired on natural gas.

Diesel-fired engines also produce significantly greater amounts of fine particulates and toxics emissions compared to natural gas fired equipment.”), available at http://www.aqmd.gov/home/permits/emergency-generators#Fact2.

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must be supported by accurate scientific and factual data.56 An agency cannot conclude that an impact is less than significant unless it produces rigorous analysis and concrete substantial evidence justifying the finding.57 Moreover, the failure to provide information required by CEQA is a failure to proceed in the manner required by CEQA.58 Challenges to an agency’s failure to proceed in the manner required by CEQA, such as the failure to address a subject required to be covered in an EIR or to disclose information about a project’s environmental effects or alternatives, are subject to a less deferential standard than challenges to an agency’s factual conclusions.59 In reviewing challenges to an agency’s approval of an EIR based on a lack of substantial evidence, the court will “determine de novo whether the agency has employed the correct procedures, scrupulously enforcing all legislatively mandated CEQA requirements.”60 Additionally, CEQA requires agencies to commit to all feasible mitigation measures to reduce significant environmental impacts.61 In particular, the lead agency may not make required CEQA findings, including finding that a project impact is significant and unavoidable, unless the administrative record demonstrates that it has adopted all feasible mitigation to reduce significant environmental impacts to the greatest extent feasible.62 Even when the substantial evidence standard is applicable to agency decisions to certify an EIR and approve a project, reviewing courts will not ‘uncritically rely on every study or analysis presented by a project proponent in support of its position. A clearly inadequate or unsupported study is entitled to no judicial deference.’”63
56 CEQA Guidelines § 15064(b). 57 Kings Cty. Farm Bur. v. Hanford (1990) 221 Cal.App.3d 692, 732. 58 Sierra Club v. State Bd. Of Forestry (1994) 7 Cal.4th 1215, 1236. 59 Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435.
60 Id., Madera Oversight Coal., Inc. v. County of Madera (2011) 199 Cal. App. 4th 48, 102. 61 CEQA Guidelines § 15002(a)(2). 62 PRC § 21081(a)(3), (b); CEQA Guidelines §§ 15090, 15091; Covington v. Great Basin Unified Air Pollution Control Dist. (2019) 43 Cal.App.5th 867, 883. 63 Berkeley Jets, 91 Cal.App.4th at 1355.

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A. The DEIR Fails to Adequately Disclose, Analyze and Mitigate the Project’s Cumulative Impacts
An EIR must evaluate a cumulative impact if the project’s incremental effect combined with the effects of other projects is “cumulatively considerable.”64 This determination is based on an assessment of the project’s incremental impacts “viewed in connection with the effects of past project, the effects of other current projects, and the effects of probable future projects.”65 Proper cumulative impact analysis is vital because “the full environmental impact of a proposed project cannot be gauged in a vacuum. One of the most important environmental lessons that has been learned is that environmental damage often occurs incrementally from a variety of small sources. These sources appear insignificant when considered individually, but assume threatening dimensions when considered collectively with other sources with which they interact.”66

1. The DEIR Fails to Provide a List of Cumulative Projects The CEQA Guidelines set forth two methods for satisfying the cumulative impacts analysis requirement: the list of projects approach and the summary of projections approach.67 Under the former, an adequate discussion of cumulative impacts requires “a list of past, present, and probable future projects producing related or cumulative impacts…”68 Relevant factors when compiling a list of related projects include the environmental resource being examined and the location and type of the project.69 The Guidelines expressly recognize that project type may be important “when the impact is specialized, such as a particular air pollutant or mode of traffic.”70
Here, the DEIR states that it uses a combination of the two methods as appropriate for each impact analysis:

The summary of projections approach is used in this EIR, except for the evaluation of cumulative transportation effects (for purposes of demonstrating General Plan policy compliance) and vehicular-related air 64 CEQA Guidelines § 15130(a). 65 Id., §§ 15065(a)(3), 15355(b). 66 Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 114.
67 CEQA Guidelines, § 15130(b)(1) and (2). 68 Id., § 15130(b)(1)(A). 69 Id., § 15130(b)(2). 70 Id.

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quality, greenhouse gas, and noise impacts, for which the analysis combines the summary of projections approach with the manual addition of past, present, and reasonably foreseeable projects (“combined approach”). The City determined the combined approach to be appropriate because long-range planning documents contain a sufficient amount of information to enable an analysis of cumulative effect for all subject areas, with the exception of transportation (and vehicular-related air quality, greenhouse gas, and noise effects), which requires a greater level of detailed study.71 However, the DEIR fails to provide a list of cumulative projects. And the appendices containing the air quality, greenhouse gas, and noise analyses do not consider past, present, and reasonably foreseeable projects. The air quality, greenhouse gas, and noise analyses should be revised to include consideration of cumulative projects, as recommended by the DEIR itself.

2. The DEIR’s Cumulative Air Emissions Analysis Does Not Comply with CEQA or Attorney General Warehouse
Guidance
The DEIR fails to adequately analyze the Project’s cumulative air quality emissions. The DEIR asserts that, under South Coast Air Quality Management District (“SCAQMD”) guidance, any exceedance of a regional or localized threshold for criteria pollutants also is considered to be a cumulatively-considerable effect, while air pollutant emissions that fall below applicable regional and/or localized thresholds are not considered cumulatively-considerable.72 The DEIR fails to note that SCAQMD’s approach is outdated, as evidenced by its ongoing process to update its cumulative impacts guidance.73 The DEIR’s approach has been also rejected by the courts for failing to comply with CEQA’s requirement that a project mitigate impacts that are “cumulatively considerable.”74 The City’s failure to actually examine the Project’s cumulative air quality impacts violates CEQA’s requirement to analyze cumulative impacts. 71 DEIR, pg. 4-2. 72 DEIR, Appendix B, pg. 53. 73 See e.g., http://www.aqmd.gov/docs/default-source/ceqa/documents/wgm-3_20230124.pdf?sfvrsn=6. 74 PRC § 21083(b)(2); 14 CCR § 15130; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.

App. 3d 692, 719-21.

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The leading case on this issue is Kings County Farm Bureau v. City of Hanford.
75 In Kings County, the city prepared an EIR for a 26.4-megawatt coal-fired cogeneration plant. Notwithstanding the fact that the EIR found that the project region was out of attainment for PM10 and ozone, the city failed to incorporate mitigation for the project’s cumulative air quality impacts from project emissions because it concluded that the Project would contribute “less than one percent of area emissions for all criteria pollutants.”76 The city reasoned that, because the project’s air emissions were small in ratio to existing air quality problems, that this necessarily rendered the project’s “incremental contribution” minimal under CEQA. The court rejected this approach, finding it “contrary to the intent of CEQA.” The court stated:

We find the analysis used in the EIR and urged by GWF avoids analyzing the severity of the problem and allows the approval of projects which, when taken in isolation, appear insignificant, but when viewed together, appear startling. Under GWF's "ratio" theory, the greater the over-all problem, the less significance a project has in a cumulative impacts analysis. We conclude the standard for a cumulative impacts analysis is defined by the use of the term "collectively significant" in Guidelines section 15355 and the analysis must assess the collective or combined effect of energy development. The EIR improperly focused upon the individual project's relative effects and omitted facts relevant to an analysis of the collective effect this and other sources will have upon air quality.77
The DEIR’s analysis is similarly flawed because while the DEIR admits that the Project region is out of attainment for ozone, PM10, and PM2.5, the City fails to analyze or mitigate the Project’s emissions’ cumulative air quality impacts.78 Given that there are multiple existing large warehouses immediately adjacent to the proposed Project site,79 as well as the proliferation of warehouse projects in the region and San Bernardino County, the DEIR is inadequate in its analysis of the Project’s potentially significant cumulative air quality impacts. 75 Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d 692 (“Kings County”); see also, Friends of Oroville v. City of Oroville (2013) 219 Cal. App. 4th 832, 841-42. 76 Id. at 719. 77 Id. at 721. 78 DEIR, pg. 5.2-17. 79 DEIR, pg. 2-4, Figure 2-1.

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The SCAQMD approach used in the DEIR also directly conflicts with the AG recent guidance document setting forth best practices for evaluating the environmental impacts of warehouse projects like this one under CEQA.80 With respect to cumulative air quality and GHG emissions analysis, the Attorney General’s guidance states that best practices include “[w]hen analyzing cumulative impacts, thoroughly considering the project’s incremental impact in combination with past, present, and reasonably foreseeable future projects, even if the project’s individual impacts alone do not exceed the applicable significance threshold [emphasis added].”81
The DEIR’s cumulative air quality impacts analysis does not comply with CEQA. The City must prepare a revised EIR that properly evaluates and mitigates such impacts.

3. The DEIR’s Health Risk Analysis Fails to Consider the Health Impacts of Cumulative Emissions from Nearby
Warehouses
The DEIR’s analysis of cumulative health risks is flawed for the same reason as the air quality analysis. The DEIR points to guidance from SCAQMD to reason that emissions of TACs are considered significant if a quantified health risk analysis (“HRA”) shows an increased risk of greater than 10 in 1 million.82 And the DEIR provides that Projects that exceed the project-specific significance thresholds are considered by the SCAQMD to be cumulatively considerable, and vice versa.83 This approach is inadequate because it fails to analyze the Project’s cumulative effects with the existing and proposed warehouses surrounding the Project site.

CEQA provides that the incremental effects of an individual project are cumulatively considerable if the effects are significant when “viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.”84 Courts have held that where a community already 80 Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act (Updated September 2022), available at https://oag.ca.gov/system/files/media/warehouse-best-practices.pdf . 81 Id., pg. 7. 82 DEIR, Appendix B2, pg. 5. 83 Id. 84 CEQA requires a lead agency consider whether the combined effects from both the proposed project and other projects would be “cumulatively considerable.” (CEQA Guidelines, § 15130, subd. (a).) The incremental effects of an individual project are cumulatively considerable if the effects are CARECA-12
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bears a high pollution burden, a lead agency must consider “whether any additional amount” of pollution caused by the project “should be considered significant in light of the serious nature” of the existing problem.85
Here, the DEIR’s approach of using a project-level analysis as a substitute for a cumulative impacts analysis fails to address that the Project would be impacting a community already bearing a high pollution burden. The DEIR’s CalEEMod output sheets show the community’ pollution burden as scoring 91.1 in AQ-Ozone, 95.7 in AQ-PM, and 96.6 in AQ-DPM.86 A high score reflects a higher pollution burden compared to other census tracts in the state, with a maximum CalEnviroScreen score of 100.87 Despite this high pollution burden, the DEIR concludes that the Project would not contribute to cumulative impacts because its own impacts would result in an increased risk of less than 10 in 1 million. This analysis violates principles of Kings County Farm Bureau v. City of Hanford and guidance from Attorney General. The City must revise and recirculate a DEIR that analyzes the Project’s potentially significant cumulative health risk impacts.

B. The DEIR’s Quantified Health Risk Analysis Underestimates Operational Mobile Source Impacts
The DEIR includes an HRA addressing the Project’s construction and operational impacts. The operational HRA is flawed because it omits analysis of TRUs.88
As explained above, TRUs emit DPM, PM2.5, NOx, and GHGs while in transit and during stationary operation at refrigerated warehouses or distribution centers, grocery stores, seaport facilities, intermodal railyards, and other locations of operation.89 CARB explains that communities near facilities where TRUs operate bear a disproportionate health burden:
significant when “viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (Id., §§ 15065, subd. (a)(3), 15355, subd. (b).) 85 Kings County Farm Bureau, supra, 221 Cal.App.3d at 718; San Joaquin Raptor/Wildlife Rescue Ctr. v. County of Stanislaus (1994) 27 Cal.App.4th 713, 720. 86 DEIR, Appendix B2, PDF pg. 64-65. 87 Id. 88 DEIR, Appendix B2, pg. 13-18. 89 California Air Resources Board, 2022 TRU Technology Assessment, pg. 1, https://ww2.arb.ca.gov/sites/default/files/2022-
10/CARB%202022%20TRU%20Technology%20Assessment%2010-14-22.pdf.

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PM2.5 pollution contributes to more fatalities than other air pollutants and can lodge deep in the lungs or pass through the lungs to enter the blood stream and affect the heart, brain, and other organs. Adverse health effects from long-term exposure to PM2.5 pollution include increased risk of heart attacks and heart disease, impaired lung development in children, the development and exacerbation of asthma, and premature death. NOx is a precursor to ozone, which can cause irritation and damage lung tissue, worsen asthma and chronic illnesses including obstructive pulmonary disease and reduce lung function.90
Thus, the omission of TRUs in the DEIR’s HRA results in an underestimate of the Project’s health risk impacts. The DEIR’s significance findings are thus not supported by substantial evidence. The DEIR must be revised to adequately disclose the health risk impacts from TRUs.

C. The DEIR Underestimates Project VMT and Mobile Source GHGs
Transportation expert Norm Marshall explains that the DEIR potentially underestimates average trip lengths for both trucks and passenger vehicles.91 Longer trip lengths results in greater impacts (including air quality, GHGs, and VMT). As a result, the analyses that rely on these trip lengths lack the support of substantial evidence. The DEIR air quality analysis relies on the follow trip lengths:

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CEQA requires full public disclosure of a project’s anticipated truck trips, which entails calculating truck trip length based on likely truck trip destinations, rather than the distance from the facility to the edge of the air basin, local jurisdiction, or other truncated endpoint. All air pollution associated with the project must be considered, regardless of where those impacts occur.94
In contrast to the approach recommended by the AG, the DEIR’s estimated trip distances did not account for the Project’s likely trip destinations. Mr. Marshall explains that, while it may be too early to determine specific truck trip origins and destinations, it is notable that important major freight origins and destinations are considerably further away than the trip lengths assumed in the DEIR.95 These include the Ports of Los Angeles and Long Beach – approximately 60 miles away.

The DEIR’s analysis thus likely underestimates trip distances.

The DEIR also underestimates lengths of passenger trips generated by the Project. Mr. Marshall observes that CalEEMod trip lengths were used for passenger trips.96 But in the DEIR’s VMT analysis, the DEIR acknowledges that the Project’s VMT per service population, i.e., the VMT per worker, is significantly higher than the average for the City of Ontario, and therefore, also significantly higher than the regional average.97 Mr. Marshall explains that the average auto trip lengths should be increased from the default values to account for the VMT-inefficient project location. Thus, the DEIR’s analysis lacks the support of substantial evidence, and must be revised.

D. The DEIR Fails to Identify All Feasible VMT Mitigation Measures
The DEIR concludes that the Project would result in a significant and unavoidable VMT impact despite mitigation included in the DEIR. Specifically, the DEIR estimates that the Project would exceed the VMT screening thresholds by a wide margin: 22.56% in the baseline year and 28.47% in the horizon year.98 The DEIR identifies the following mitigation for this significant impact:
94 Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act (Updated September 2022), pg. 7. 95 Marshall Comments, pg. 7. 96 Id.; DEIR, Appendix F, pg. 56 97 Marshall Comments, pg. 7. 98 Marshall Comments, pg. 1.

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MM 4.10-1: Prior to the issuance of a certificate of occupancy, the building operator shall prepare and submit for approval to the City of Ontario Community Development Department a Transportation Demand Management Program (TDMP). The TDMP shall specify measures that the building operator will commit to implementing in an effort to reduce vehicle miles traveled for its on-site employees. The TDMP shall include provisions, incentives, and programs for employee ridesharing programs, carpools, vanpools, transit use, bike travel, avoidance of peak periods of traffic congestion, and on-site parking preferences for zero-emission vehicles, among other items that have reasonable potential of reducing employee reliance on single-occupant gas-powered vehicles during peak time travel periods (rush hours).99
This measure fails to meet CEQA’s standards for mitigation. CEQA provides that if the project will have a significant effect on the environment, the agency may approve the project only if it finds that it has “eliminated or substantially lessened all significant effects on the environment” to the greatest extent feasible and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns.”100 Further, EIRs must mitigate significant impacts through measures that are “fully enforceable through permit conditions, agreements, or other legally binding instruments.”101 Deferring formulation of mitigation measures is generally impermissible.102 If identification of specific mitigation measures is impractical until a later stage in the Project, specific performance criteria must be articulated and further approvals must be made contingent upon meeting these performance criteria.103 Mitigation that does no more than allow approval by a county department without setting enforceable standards is inadequate.104 Here, the measure improperly defers identification of specific VMT-reducing mitigation measures to a future date. MM 4.10-1 does not commit to any particular measures to reduce VMT. Nor does the DEIR articulate specific performance criteria to ensure that impacts would be mitigated to the greatest extent feasible.

Mr. Marshall notes that, while MM 4.10-1 lists potential measures to reduce VMT, 99 DEIR, pg. S-24. 100 PRC § 21081(a)(3), (b); CEQA Guidelines §§ 15090(a), 15091(a), 15092(b)(2)(A), (B); Covington v.

Great Basin Unified Air Pollution Control Dist. (2019) 43 Cal.App.5th 867, 883. 101 CEQA Guidelines, § 15126.4, subd. (a)(2). 102 Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 308-309; Pub. Resources Code, § 21061.
103 Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1393; Quail Botanical, supra, 29 Cal.App.4th at pg. 1604, fn. 5.
104 Endangered Habitats League, Inc. v. County of Orange, (2005) 131 Cal.App.4th 777, 794.

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there is no clear commitment or description of the measures.105 Mr. Marshall explains that the measures listed in MM 4.10-1 can be formulated in a variety of ways that determine the magnitude of VMT reductions.106 MM 4.10-1 is thus improperly deferred mitigation that does no more than allow approval by a county department without setting enforceable standards.107
As a result of this improper deferral of mitigation, the DEIR also fails to comply with CEQA’s requirement to reduce all significant effects on the environment to the greatest extent feasible. MM 4.10-1 must be revised to clearly require the all feasible VMT-reducing measures be adopted until the expected

28.47% excess VMT is mitigated.

V. CONCLUSION
For the reasons discussed above, the DEIR for the Project is inadequate under CEQA. It must be revised to provide legally adequate analysis of, and mitigation for, all of the Project’s potentially significant impacts. These revisions will necessarily require that the DEIR be recirculated for additional public review.

Until the DEIR has been revised and recirculated, as described herein, the City may not lawfully approve the Project.

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

Sincerely,
Aidan P. Marshall
APM:ljl
105 Marshall Comments, pg. 2. 106 Id. 107 Endangered Habitats League, Inc. v. County of Orange, (2005) 131 Cal.App.4th 777, 794.

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EXHIBIT A
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5355 East Airport Drive (PDEV22-017) – Response to September 5, 2024 Appeal Letter from CARE CA September 13, 2024
1 794 Sawnee Bean Road
Thetford Center VT 05075
Norman Marshall, President
(802) 356-2969
[email protected]
October 4, 2023
Aidan P. Marshall
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080
Subject: 5355 East Airport Drive Project
Dear Mr. Marshall,
I have reviewed trip generation, vehicle miles traveled (VMT) impacts and greenhouse gas (GHG) impacts of the City of Ontario Draft Environmental Impact Report for a proposed warehouse project at 5355 East Airport Drive (“DEIR”). I make the following findings:
1) The DEIR acknowledges significant and unavoidable VMT impact. Furthermore, the DEIR documents that the project would exceed the VMT screening thresholds by a wide margin:

22.56% in the baseline year and 28.47% in the horizon year. 2) The proposed VMT mitigation is not fully specified or quantified in the DEIR and appears to fall far short of what would be required to reduce project VMT below the City’s threshold. Achieving significant VMT mitigation for this project may be impossible – but mitigation must be specified and quantified for the project to be properly evaluated. 3) Project trip generation could be much higher than assumed. Given the large uncertainty in the project’s trip generation, the applicant should take one of two paths -either a) applying a significantly higher and more conservative trip generation rate, or b) requesting as a condition of approval that trip generation will not exceed the number assumed in the EIR, and this be certified prior to beginning construction.
4) Project GHG emissions could be much higher than assumed. In addition to trip generation possibly being underestimated, average trip lengths for both trucks and passenger vehicles are likely to be underestimated in the DEIR.

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2 Significant and Unavoidable VMT impact
The DEIR states that the project would have a “Significant and Unavoidable [VMT] Impact.” (DEIR, p. S24) DEIR Appendix J, “IE Distribution Center #14 Vehicle Miles Traveled (VMT) Analysis,” evaluates the project relative to the City of Ontario’s VMT screens and concludes:
• TPA [Transit Priority Area] screening criteria is not met. • Low VMT Area screening criteria is not met.
• Project Type screening criteria is not met.

As the project fails these screens, a full VMT analysis was performed using the San Bernardino Transportation Analysis Model (SBTAM). The table below copied from DEIR Appendix J, p. 9 summarizes the results of this analysis.

As shown in the reproduced table, the proposed project would exceed the City’s VMT threshold by

22.56% in the baseline year and by an even larger 28.47% in the buildout year (2050).

The VMT Mitigation Described in the VMT is Inadequate
The City of Ontario’s VMT Resolution adopted June 16, 2020, reiterates General Plan Mobility Element M1-2: “Mitigation of impacts. We require development to mitigate its traffic impacts.” In the case of the proposed project, full mitigation would reduce VMT to below the threshold, i.e., the

28.47% excess VMT in the horizon year would be eliminated. The EIR should quantify the expected VMT reduction from mitigation. Unless the reduction is sufficient to achieve the VMT threshold, the EIR should justify why greater mitigation is infeasible.

The VMT mitigation described in the DEIR is:

MM 4.10-1 Prior to the issuance of a certificate of occupancy, the building operator shall prepare and submit for approval to the City of Ontario Community Development Department a Transportation Demand Management Program (TDMP). The TDMP shall specify measures that the building operator will commit to implementing in an effort to reduce vehicle miles traveled for its on-site employees. The TDMP shall include provisions, incentives, and programs for employee ridesharing programs, carpools, vanpools, transit use, bike travel, avoidance of peak periods of traffic congestion, and on-site parking preferences for zero-emission vehicles, among other items that have reasonable potential of reducing employee reliance on single-occupant gas-powered vehicles during peak time travel periods (rush hours). (DEIR, p. S-24) CARECA-12
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3 The above wording is ambiguous. Is this a commitment to include all the measures listed, or only to a subset of the measures. For the included measures, what are the magnitudes of the different incentives.

Are the included measures voluntary or mandatory? Is monitoring included? What is the total VMT reduction from the package, and is this reduction sufficient to adequately address the expected 28.47% excess VMT in the horizon year? If the planned reduction is not achieved, what are the consequences? The California Air Pollution Control Officers Association (CAPCOA) provides on quantifying VMT mitigation measures in its publication Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity: Designed for Local Governments, Communities, and Project Developers (Final Draft, December 2021). It states:

The Handbook builds on CAPCOA’s previous efforts to provide accurate and reliable quantification measures. In 2010, CAPCOA published Quantifying Greenhouse Gas Mitigation Measures: A Resource for Local Government to Assess Emissions Reductions from Greenhouse Gas Mitigation Measures (hereafter referred to as the “2010 Handbook”). Since that time, climate science has evolved and GHG reduction practices have advanced in sophistication. New priorities have also arisen, such as strengthening climate resilience and infusing health and equity into integrated planning efforts.

Therefore, CAPCOA decided it was time to develop an updated and expanded resource to provide the latest data and methods to quantify GHG emissions reductions, climate change vulnerability reductions, and equity improvements in a single resource: The Handbook. (p. 2-3)
The Handbook makes a critical distinction between voluntary and mandatory Commuter Trip Reduction (“CTR”) programs:

T-5 Implement Commute Trip Reduction Program (Voluntary) – up to 4% VMT reduction:

Voluntary CTR programs must include the following elements to apply the VMT reductions reported in literature. ▪ Employer-provided services, infrastructure, and incentives for alternative modes such as ridesharing (Measure T-8), discounted transit (Measure T-9), bicycling (Measure T-10), vanpool (Measure T-11), and guaranteed ride home. ▪ Information, coordination, and marketing for said services, infrastructure, and incentives (Measure T-7). (Handbook, p. 83)
T-5 Implement Commute Trip Reduction Program (Mandatory Implementation and Monitoring) – up to 26% VMT reduction:

The mandatory CTR program must include all other elements (i.e., Measures T-7 through T-11) described for the voluntary program (Measure T-5) plus include mandatory trip reduction requirements (including penalties for non-compliance) and regular monitoring and reporting to ensure the calculated VMT reduction matches the observed VMT reduction). (Handbook, p. 86)
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4 A 26% reduction at this site may be impossible given the relatively poor transit , bicycle and walk accessibility plus long commute distances that making walking and biking impractical. The DEIR states:

Public transit service in the region is provided by Omnitrans, a public transit agency that serves various jurisdictions within San Bernardino County. There are no public transit routes that run adjacent to the Project Site under existing conditions. The nearest transit routes to the Project Site are Route 61 which has a stop located along Fourth Street, approximately 0.9 mile north of the Project Site and Route 82 which has a stop located at South Etiwanda and Jurupa Avenue, approximately 1.2 miles southeast of the Project Site. There are no existing bicycle facilities within the vicinity of the Project Site.

The closest bike route to the Project Site is a Class III bike route located along Ontario Mills Parkway, approximately 0.4 mile north of the Project Site. There are no sidewalks on either side of East Airport Drive, with the exception of a small portion along the adjacent development frontage directly to the west at 5351 East Airport Drive. (DEIR, p. 2-11)
Furthermore, ridesharing and vanpooling would be complicated by a geographically dispersed workforce and likely multiple shifts.

Joining with other employers would be beneficial. The more employers that support these VMT reduction programs, the stronger these programs will be, and the regional benefit of participating may be greater than just the onsite VMT reductions. For example, a vanpool could include multiple employers IE Commuter, a program of the San Bernardino County Transportation Authority in partnership with the Riverside County Transportation Commission, offers a full range of services to help employers set up and manage VMT reduction programs.1
Achieving significant VMT mitigation for this project may be impossible – but mitigation must be fully specified and quantified for the project to be properly evaluated.

Project Trip Generation Could Be Much Higher Than Assumed The project is comprised of a 270,377 square feet warehouse building. (DEIR, Appendix K, p. 1) The tenants have not been identified, and the nature of the operations are unknown at this time. For the purpose of estimating project trip generation, the DEIR assumes a mix of 90% warehousing and 10% high-cube cold storage. (DEIR, Appendix K, p. 1) This mix is highly speculative, and the project may not even include either of the assumed trip generation categories.

The DEIR estimates trip generation based on the rates in the Institute of Transportation Engineers (“ITE”) Trip Generation manual. Trip Generation includes other categories of warehouses. As shown in the figure below, the trip generation rates applied in the DEIR are much lower than rates for some other warehouse categories.
1 https://www.iecommufter.org/rp2/home/EmployerSupport
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5 Trip Generation Rates for Different Warehouse Categories (Trips Per 1000 Square Feet per Day) The Parcel Hub Warehouse trip generation rate is 2.6 times the rate used in the DEIR, and the Fulfillment Center Warehouse with Sorting rate is 5.2 times the rate used in the DEIR.

A 2019 study of warehouse trip generation done by WSP for the Western Riverside COG documented even higher trip generation rates.
2 This study was based on counts at 16 warehouses, segmented between 11 fulfillment centers and 5 parcel hubs.

The observed trip generation rates at two of the parcel hub sites are even higher than the rates shown in the figure above.. As shown in the figure below, the highest trip generation rates were observed at two of the parcel hubs, with rates of about 14 trips per 1000 square feet per day, i.e., 8 times the rate used in the DEIR.

1.40 1.71 1.81

2.12 4.63

6.44 1.75
Transload and
Short-Term
Storage
Warehouse
Warehousing Fulfillment
Center
Warehouse -
Non-Sort
Cold Storage
Warehouse
Parcel Hub
Warehouse
Fulfillment
Center
Warehouse -
Sort
Rate Used in
DEIR
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6 Project VMT and GHG Emissions Could Be Much Higher Than Assumed Any underestimate of trip generation translates into underestimated GHG emissions. It is likely that the DEIR also underestimates average trip lengths.

The DEIR air quality analysis (Appendix B1) states:

To determine emissions from trucks for the proposed industrial uses, the analysis incorporated the SCAQMD recommended truck trip length of 15.3 miles for 2-axle (LHDT1, LHDT2), 14.2 miles for 3-axle (MHDT) trucks, and 40 miles for 4+-axle (HHDT) trucks and weighting the average trip lengths using traffic trip percentages. (DEIR, Appendix B1, p. 37)
The DEIR misstates that these truck trip distances are “recommended” by SCAQMD. The truck trip lengths are used in calculations of possible mitigation in Second Draft Staff Report Proposed Rule 2305 – Warehouse Indirect Source Rule – Warehouse Actions and Investments to Reduce Emissions (WAIRE) Program. And Proposed Rule 316 -Fees for Rule 2305.
3 The reference for these numbers is the 2016
SCAG travel demand model (p. 117) and there is no indication that these numbers are intended for any 3 www.aqmd.gov/docs/default-source/planning/fbmsm-docs/pr-2305_sr_2nd-draft_4-7-21_clean.pdf CARECA-12
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7 use beyond this single document. The 40-mile heavy truck trip length also appears in a 2014 slide presentation.4 In neither case, are these numbers presented as general recommendations for warehouse EIRs.

The Attorney General’s September 2022 guidance: Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act5 states:

CEQA requires full public disclosure of a project’s anticipated truck trips, which entails calculating truck trip length based on likely truck trip destinations, rather than the distance from the facility to the edge of the air basin, local jurisdiction, or other truncated endpoint. All air pollution associated with the project must be considered, regardless of where those impacts occur. (p. 7)
While it is too early to determine truck trip origins and destinations, it is notable that important major freight origins and destinations are considerably further away than the trip lengths assumed in the DEIR.

These include the Ports of Los Angeles and Long Beach that are approximately 60 miles away. It would be more conservative to assume longer average truck distances in the air quality and GHG analyses.

The DEIR states that CalEEMod trip lengths were used for passenger trips:

In order to determine emissions from passenger car vehicles, CalEEMod defaults for trip length and trip purpose were utilized. (DEIR, Appendix F, p. 56) In the VMT analysis, the DEIR documents that the project’s VMT per service population, i.e., the VMT per worker, is significantly higher than the average for the City of Ontario, and therefore, also significantly higher than the regional average. Therefore, the average auto trip lengths should be increased from the default values to account for the VMT-inefficient project location.

Underestimating truck and passenger vehicle VMT translates to underestimating GHG as well.

Sincerely,
Norman L. Marshall
4 https://www.aqmd.gov/docs/default-source/ceqa/handbook/high-cube-warehouse-trip-rate-study-for-airquality-analysis/sclc_warehouse-presentation-final.pdf 5 https://oag.ca.gov/system/files/media/warehouse-best-practices.pdf CARECA-12
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8 Resume
NORMAN L. MARSHALL, PRESIDENT
[email protected]
EDUCATION:

Chittenden County (2060 Land use and Transportation Vision Burlington Vermont region) – led extensive public visioning project as part of MPO’s long-range transportation plan update.

Chicago Metropolis Plan and Chicago Metropolis Freight Plan (6-county region)— developed alternative transportation scenarios, made enhancements in the regional travel demand model, and used the enhanced CARECA-12
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9 model to evaluate alternative scenarios including development of alternative regional transit concepts.

Developed multi-class assignment model and used it to analyze freight alternatives including congestion pricing and other peak shifting strategies.

City of Honolulu – Kaka’ako Transit Oriented Development (TOD) – applied regional travel demand model in estimating impacts of proposed TOD including estimating internal trip capture.

Freeway bottlenecks are modeled much more accurately than in the base TransCAD model.

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10 South Evacuation Lifeline (SELL) – In work for the South Carolina Coastal Conservation League, used Dynamic Travel Assignment (DTA) to estimate evaluation times with different transportation alternatives in coastal South Caroline including a new proposed freeway.

PUBLICATIONS AND PRESENTATIONS (partial list)
DTA Love: Co-leader of workshop on Dynamic Traffic Assignment at the June 2019 Transportation Research Board Planning Applications Conference.

Vermont Statewide Resilience Modeling. With Joseph Segale, James Sullivan and Roy Schiff. Presented at the May 2017 Transportation Research Board Planning Applications Conference.

Assessing Freeway Expansion Projects with Regional Dynamic Traffic Assignment. Presented at the May 2017 Transportation Research Board Planning Applications Conference.

Pre-Destination Choice Walk Mode Choice Modeling. Presented at the May 2017 Transportation Research Board Planning Applications Conference.

A Statistical Model of Regional Traffic Congestion in the United States, presented at the 2016 Annual Meeting of the Transportation Research Board.

MEMBERSHIPS/AFFILIATIONS
Associate Member, Transportation Research Board (TRB)
Member and Co-Leader Project for Transportation Modeling Reform, Congress for the New Urbanism (CNU) CARECA-12
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ATTACHMENT B
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SACRAMENTO OFFICE
520 CAPITOL MALL, SUITE 350
SACRAMENTO, CA 95814-4721
TEL: (916) 444 - 6201
FAX: (916) 444 - 6209

ADAMS BROADWELL JOSEPH & CARDOZO A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
601 GATEWAY BOULEVARD, SUITE 1000
SOUTH SAN FRANCISCO, CA 94080 - 7037
___________
TEL: (650) 589 - 1660
FAX: (650) 589 - 5062
[email protected]
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April 15, 2024
Via Email and Overnight Mail
Scott Ochoa, City Manager
Members of the City of Ontario Development Advisory Board 303 East B Street
Ontario, CA 91764
Email: [email protected]
Via Email Only
Thomas Grahn, Senior Planner
City of Ontario Planning Department
Email: [email protected]
Re: Agenda Item B – File No. PDEV22-017: 5355 East Airport Drive Project (SCH No. 2022090006)
Dear Mr. Ochoa, Development Advisory Board Members and Mr. Grahn:

On behalf of Californians Allied for a Responsible Economy (“CARE CA”), we submit these comments on the 5355 East Airport Drive Project (SCH No. 2022090006; File No. PDEV22-017) (“Project”), proposed by Prologis. Inc (“Applicant”), including the Final Environmental Impact Report (“FEIR”) prepared by the City of Ontario (“City”). The FEIR and development plan will be considered at the April 15, 2024 Development Advisory Board meeting as Agenda Item B. The Board will make a recommendation to the Planning Commission regarding certification of the EIR and approval of the Development Plan application.1 CARE CA submitted comments on the Draft EIR (“DEIR”) on October 5, 2023, accompanied by expert comments, showing that the DEIR failed to comply with the requirements of CEQA by failing to accurately disclose and mitigate potentially significant cumulative impacts, air quality and public health impacts, 1 Staff Report, pg. 1. The Staff Report incorrectly states that the Board recommendation to the Planning Commission is to “adopt the draft EIR.” (pg. 8). However, the operative CEQA document for the Project is currently the FEIR, which includes both the Draft EIR and the City’s responses to comments on the Draft EIR.

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greenhouse gas (“GHG”) emissions, energy and transportation impacts. We reviewed the Board Staff Report, the FEIR, and its technical appendices with the assistance of transportation expert Norm Marshall2 and air quality expert Dr.

James Clark.3 The FEIR contains responses to CARE CA’s comments. However, it fails to meaningfully address or correct major flaws CARE CA and its experts identified in the DEIR.

As explained herein, the FEIR still underestimates the number of trips generated by the Project and the distance of Project-related truck trips, thus continuing to underestimate the severity of the Project’s public health, air quality, GHG, and transportation impacts. The FEIR also continues to assume that cold storage uses would be limited to 10% of the Project, reasoning that a condition of approval will limit cold storage to 10% of the Project’s square footage, but no such condition of approval is included in the conditions of approval attached to the Staff Report. The FEIR still fails to provide an adequate cumulative impacts analysis that considers the Project’s combined impacts with other existing and proposed industrial developments near the Project, in violation of CEQA. And the FEIR’s quantified health risk analysis still underestimates impacts. As a result, the FEIR’s conclusions are not supported by substantial evidence. Rather, substantial evidence demonstrates that the Project’s significant impacts are greater than analyzed in the FEIR.

The Staff Report incorrectly concludes that the “draft EIR contains a complete and accurate reporting of the environmental impacts associated with the Project” and complies with CEQA.4 The Staff Report recommends that the Planning Commission adopt the draft EIR5 and approve the Project’s Development Plan Application.6 These recommendations are unsupported due to the major flaws in the Project’s environmental review.

CARE CA urges the Board to recommend that the City revise and recirculate the EIR to comply with CEQA before any further action is taken on the Project.

I. STATEMENT OF INTEREST
CARE CA is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker 2 Mr. Marshall’s technical comments and curricula vitae are attached hereto as Exhibit A. 3 Dr. Clark’s technical comments and curricula vitae are attached hereto as Exhibit B. 4 Staff Report, PDEV22-017 – Draft Environmental Impact Report, pg. 7, Part 3: Decision, Section 1. 5 Id., pg. 8, Part 3, Section 4. 6 Staff Report, PDEV22-017, Part 3, Section 5.

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health and safety hazards, and the environmental impacts of the Project. The coalition includes Ontario residents Daniel Brewer, David Audelo, Carlos Mendez, Rober Rubio, the District Council of Ironworkers and Southern California Pipe Trades DC 16, along with their members, their families, and other individuals who live and work in Ontario and in San Bernardino County.

A. CARE CA Has a Direct Interest in Enforcing Compliance with CEQA and Land Use Laws
The City, in FEIR Response A-3, claims that CARE CA’s “primary interest is securing jobs through a project labor agreement.”7 This statement is an improper ad hominem attack on members of the public who submitted comments on the Draft EIR. It is also incorrect, unsupported by any facts in the record, and contrary to the purpose of an FEIR’s responses to comments, which is to “describe the disposition of each significant environmental issue that is raised by commenters,”8 not to attack the commenter.

The FEIR’s statement appears intended solely to influence City decisionmakers to disregard the valid environmental concerns raised in CARE CA’s 7 FEIR, pg. 2-37. 8 Pub Res. Code §21091(d); 14 Cal Code Regs §§15088(c), 15132(d), 15204(a); City of Long Beach v Los Angeles Unified Sch. Dist. (2009) 176 Cal. App. 4th 889, 904.

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comments, and distract from the substantial evidence presented by CARE CA’s experts regarding the Project’s unmitigated environmental and public health impacts. This is an improper use of an FEIR, which is intended to ensure that “public participation in the environmental review process is meaningful.”9 It is also irrelevant, because community groups, labor organizations, and other members of the public have standing under CEQA to participate in the public comment period required by law, and California courts have explained that ad hominem responses are irrelevant.10
The FEIR’s statement is also factually incorrect. For decades, labor organizations like the union members of CARE CA have relied on the CEQA process to enforce environmental and public health protections – including worker health protections – for new development projects as a means of ensuring a safe working and living environment for the public, including themselves and their families.

CEQA is especially important to union members who construct projects because they are the first in line to be exposed to health and safety impacts that exist onsite – impacts like soil contamination, air pollution from construction equipment, and excess noise. For many, CEQA has become the only place where communities of color, which includes workers represented by labor unions, have a voice in the process of developing projects in their communities.

California unions regularly participate as interested members of the public in the CEQA process. Their participation has led to decades of stronger air quality and toxic material controls at construction sites and housing developments, lowered emissions at industrial sites, increased electrification and renewable gas and fuels, reductions in GHG emissions, reduced construction noise and traffic in residential areas, improved water quality, water conservation, and protections for natural landscapes and sensitive biological resources. Union participation in the CEQA process has resulted in improved analysis and mitigation in agencies’ CEQA documents, and, in some cases, successful litigation requiring agencies to comply with CEQA where the issues unions raised were not resolved during the administrative process. In short, union participation in the CEQA process leads to cleaner, safer, and more sustainable development in the State. This is exactly what CEQA is designed to accomplish – protecting people and the environment through active public engagement in the environmental process. 9 City of Long Beach, 176 Cal. App. 4th at 904. 10 Bakersfield Citizens for Local Control v. City of Bakersfield (Cal. Ct. App. 2004) 124 Cal.App.4th 1184, 1196 (“[W]e will not dignify with extended comment [developer]'s complaint that BCLC is just a ‘front’ for a grocery worker's union whose disgruntled members feel threatened by nonunionized Wal-Mart's entry into the grocery business. As will be explained, BCLC has standing to pursue this litigation and it exhausted its administrative remedies. This is sufficient.”) CARECA-12
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Public agencies have also acknowledged unions for their valuable contribution to the environmental review process. For example, when approving the Elk Hills project, the California Energy Commission Presiding Commissioner Michal Moore praised and thanked union coalition California Unions for Reliable Energy (“CURE”) for its participation in the proceeding: “We never would’ve gotten to some of the places that we did, and the resolution that we did, if it hadn’t been for the – the dogged efforts of [CURE]…we came to a good place, and probably couldn’t have gotten to that good place without some of the tension and – and rigor that was applied. So, thank you very much.”11 During the evidentiary hearings, a Commissioner “thank[ed] CURE for the technical help that Phyllis Fox [CURE expert] offered us, and certainly offered me an education that I wasn’t going to get any other place.”12 Some unions work on constructing and operating projects after they participate in the environmental permitting process. Some developers and critics allege this means that unions are using CEQA to induce developers to enter into project labor agreements, then abandon the environmental issues – just as the FEIR does here. These allegations are not only false, they demonstrate a fundamental misunderstanding of union participation. When the unions work on projects they have challenged, they do not walk away from the environmental and public health issues they raise. They enforce them through binding mitigation and environmental settlement agreements. This is consistent with CEQA’s environmental purpose, and with the historic values of organized labor to solve problems, engage in civic discourse and activism, advocate for safe working conditions, and effect changes that improve their members’ lives and communities.13
CARE CA asks that the City revise the EIR to remove this inaccurate and improper statement about CARE CA, and any other unsupported statements of dislike made about other members of the public who commented on the DEIR. 11 Elk Hills Power Project, Docket No. 99-AFC-1, CEC Business Meeting Transcript, pp. 24-25 (Dec. 6, 2000).)
12 Elk Hills Power Project, Docket No. 99-AFC-1, Transcript of Evidentiary Hearing, pg. 61 (Oct. 26, 2000).
13 See U.S. Department of Labor, Unions 101, available at https://www.dol.gov/general/workcenter/unions-101 (last visited 5/21/23); Economic Policy Institute, How Today’s Unions Help Working People: Giving Workers The Power To Improve Their Jobs And Unrig The Economy, August 24, 2017, available at https://www.epi.org/publication/how-todaysunions-help-working-people-giving-workers-the-power-to-improve-their-jobs-and-unrig-the-economy/ (last visited 5/21/23).

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II. THE FEIR FAILS TO ADEQUATELY ANALYZE, QUANTIFY, AND MITIGATE THE PROJECT’S POTENTIALLY SIGNIFICANT IMPACTS
An EIR must fully disclose all potentially significant impacts of a project and implement all feasible mitigation to reduce those impacts to less than significant levels. The lead agency’s significance determination with regard to each impact must be supported by accurate scientific and factual data.14 An agency cannot conclude that an impact is less than significant unless it produces rigorous analysis and concrete substantial evidence justifying the finding.15 Moreover, the failure to provide information required by CEQA is a failure to proceed in the manner required by law.16 Challenges to an agency’s failure to proceed in the manner required by CEQA, such as the failure to address a subject required to be covered in an EIR or to disclose information about a project’s environmental effects or alternatives, are subject to a less deferential standard than challenges to an agency’s factual conclusions.17 In reviewing challenges to an agency’s approval of an EIR based on a lack of substantial evidence, the court will “determine de novo whether the agency has employed the correct procedures, scrupulously enforcing all legislatively mandated CEQA requirements.”18 Even when the substantial evidence standard is applicable to agency decisions to certify an EIR and approve a project, reviewing courts will not ‘uncritically rely on every study or analysis presented by a project proponent in support of its position. A clearly inadequate or unsupported study is entitled to no judicial deference.’”19
CEQA requires that a lead agency evaluate and prepare written responses to comments in an FEIR.20 Agencies are required to provide “detailed written response to comments . . . to ensure that the lead agency will fully consider the environmental consequences of a decision before it is made, that the decision is well informed and open to public scrutiny, and the public participation in the environmental review process is meaningful.”21 When a comment raises a “significant environmental issue,” the written responses must describe the 14 14 CCR § 15064(b). 15 Kings Cty. Farm Bur. v. Hanford (1990) 221 Cal.App.3d 692, 732. 16 Sierra Club v. State Bd. Of Forestry (1994) 7 Cal.4th 1215, 1236. 17 Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435.
18 Id.; Madera Oversight Coal., Inc. v. County of Madera (2011) 199 Cal. App. 4th 48, 102. 19 Berkeley Jets, 91 Cal.App.4th at 1355. 20 PRC § 21091(d); 14 CCR §§ 15088(a), 15132. 21 City of Long Beach v. Los Angeles Unified Sch. Dist. (2009) 176 Cal.4th 889, 904.

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disposition of each such issue raised by commentators.22 Specifically, the lead agency must address the comment “in detail giving reasons why” the comment was “not accepted. There must be good faith, reasoned analysis in response. Conclusory statements unsupported by factual information will not suffice.”23 A. The FEIR Still Fails to Adequately Evaluate Trips Generated by the Project
CARE CA’s comments on the DEIR showed that the DEIR underestimated trips generated by the Project by relying on inappropriate Institute of Transportation Engineers (“ITE”) land use codes, thus underestimating the Project’s GHG and VMT impacts. Specifically, the DEIR relied on ITE land use code 150 (Warehousing) and ITE land use code 157 (High-Cube Cold Storage Warehouse), when other land use codes are applicable to the Project that have much higher trip generation rates. In particular, Mr. Marshall explained that the Parcel Hub Warehouse trip generation rate is 2.6 times the rate used in the DEIR, and the Fulfillment Center Warehouse with Sorting rate is 5.2 times the rate used in the DEIR.24
The FEIR responds that the Project’s design would not support a high-cube (sort) fulfillment center or high-cube parcel hub, pointing to the Project’s square footage and number of parking spaces.25 The FEIR states that the Project’s anticipated use and size (270,377 sf) most closely aligns with the ITE Warehousing land use category. But Mr. Marshall explains that the Project’s size equally aligns with ITE Land Use 156: High Cube Parcel Hub Warehouse, which accounts for warehouses with at least 200,000 gross square feet of floor area.26 Mr. Marshall also explains that the Project’s proposed number of parking spaces would further enable the Project to function as a High Cube Parcel Hub Warehouse.

In sum, the FEIR offers no support for is continued reliance on low trip generation rates. As a result, the City continues to rely on potentially underestimated trip generation rates which do not accurately reflect the Project’s operational impacts. To the contrary, substantial evidence shows that trip generation rates could be 2.6 times greater than analyzed. To ensure adequate analysis and mitigation of this impact, Mr. Marshall recommends either applying a 22 PRC §21091(d); 14 CCR §§15088(c), 15132(d), 15204(a). 23 14 CCR § 15088(c); see Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1124 (“Laurel II”); The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal. App. 4th 603, 615.
24 Marshall FEIR Comments, pg. 3. 25 FEIR, pg. 2-38, 39. 26 Marshall FEIR Comments, pg. 4.

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significantly more conservative trip generation rate, or implementing a condition of approval that trip generation will not exceed the number assumed in the EIR.27 The EIR must be revised and recirculated to provide an accurate analysis of trip generation.

B. The FEIR Still Fails to Substantiate Its Estimate that Just 10% Percent of the Project Will be Used for Cold Storage
CARE CA’s comments on the DEIR showed that the City lacked substantial evidence to assume that the Project would only include approximately 27,034 sf of high-cube cold storage uses (10% of the building space).28 In Response A-7, the FEIR states that the City has added a condition of approval to the Project limiting cold storage to 27,034 sf (10% of the total sf).29 But there is currently no indication any such condition of approval will be required. The April 15, 2024 Development Advisory Board agenda packet contains a Draft Development Advisory Board decision,30 Land Development Division conditions of approval,31 Landscape Planning Division conditions of approval,32 Engineering Division conditions of approval,33 and City of Ontario memoranda containing conditions of approval.34 None of these documents contain a condition limiting the Project’s cold storage uses.

The FEIR’s conclusion that the environmental impacts associated with cold storage would be limited to just 10% of the Project site therefore remains unsupported.

As explained in CARE CA’s comments on the DEIR, cold storage warehouses generate greater environmental impacts than other types of warehouse.35 CARE CA urges the City to revise and recirculate the EIR to analyze the impacts of additional cold storage use at the Project site, or to add a mitigation measure with a title restriction limiting cold storage to 10%.

C. The FEIR Still Fails to Adequately Disclose, Analyze and Mitigate the Project’s Cumulative Impacts
CARE CA commented that the DEIR fails to consider the cumulative impacts of past, present, and probable future projects producing related or cumulative 27 Marshall FEIR Comments, pg. 4. 28 DEIR, pg. 3-13. 29 FEIR, pg. 2-39. 30 April 15, 2024 Agenda Packet, pg. 3044. 31 Id. at 3073. 32 Id. at 3081. 33 Id. at 3084. 34 Id. at 3098, 3100. 35 CARE CA DEIR Comments, pg. 8-10.

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impacts. The DEIR’s approach to cumulative impacts, relying on South Coast Air Quality Management District (“SCAQMD”) guidance, is that emissions of criteria air pollutants or toxic air contaminants that do not exceed individual project thresholds are also not cumulatively considerable.36 CARE CA’s comments explained that rote application of SCAQMD significance thresholds without analysis of the context in which the Project is being proposed fails to satisfy the analytical and information requirements of CEQA, per caselaw such as Kings County Farm Bureau v. City of Hanford.37 CARE CA also explained that SCAQMD’s cumulative impacts significance thresholds, adopted in 2003, are being revised to reflect current conditions. The updated cumulative impacts significance thresholds will reflect projects’ existing background MATES cancer risk and additional criteria such as whether the project would generate a high volume of diesel-fueled trucks.38 CARE CA also discussed the Attorney General’s guidance on cumulative impacts, which states that best practices include “thoroughly considering the project’s incremental impact in combination with past, present, and reasonably foreseeable future projects, even if the project’s individual impacts alone do not exceed the applicable significance threshold [emphasis added].”39
In Responses 14, 15, and 16, the FEIR responds that “The Draft EIR and underlying technical studies were prepared in a matter consistent to the SCAQMD recommendation for determining cumulative impacts.” The FEIR’s response is nonresponsive because it does not address the City’s failure to comply with CEQA’s legal standards for evaluating cumulative impacts that were discussed in CARE CA’s comments. The FEIR also does not address the pending updates to SCAQMD’s cumulative impacts methodology, which are statedly prepared in response to recent CEQA cases such as People of the State of California v. City of Fontana.40 In People of the State of California v. City of Fontana, the Attorney General’s petition for writ of mandate challenged a Mitigated Negative Declaration (“MND”) 36 DEIR, Appendix B, pg. 53. 37 Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d 692 (“Kings County”); see also, Friends of Oroville v. City of Oroville (2013) 219 Cal. App. 4th 832, 841-42. 38 SCAQMD Working Group Meeting # 4, Cumulative Impacts from Air Toxics for CEQA Projects (June 6, 2023) https://www.aqmd.gov/docs/default-source/ceqa/documents/wgm4_20230602_final.pdf?sfvrsn=16; SCAQMD Working Group Meeting #5, Cumulative Impacts from Air Toxics for CEQA Projects (March 20, 2024) https://www.aqmd.gov/docs/defaultsource/ceqa/documents/wgm-5-20240320-final.pdf?sfvrsn=20. 39 Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act (Updated September 2022), pg. 7, available at https://oag.ca.gov/system/files/media/warehouse-best-practices.pdf. 40 San Bernardino Superior Court, Case No. CIVSB2121829; SCAQMD Working Group Meeting # 4, Cumulative Impacts from Air Toxics for CEQA Projects (June 6, 2023) pg. 6; CARECA-12
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that erroneously applied SCAQMD guidance in the same way as the instant EIR.

The petition explained:
[T]he MND’s cumulative air quality impact analysis does not account for—or even acknowledge—the multitude of other warehouses near the Project.

Rather than consider the environmental setting within which the Project will be situated, the MND simply states that the Project will not result in a cumulatively considerable increase in emissions because the Project’s individual air quality impacts will be less than significant. The MND even applies this reasoning to its analysis of health impacts from localized emissions, despite making no attempt to determine or disclose the severity of the existing health impacts from localized emissions in the community.41 The petition further explained that merely citing to SCAQMD guidance does not justify a failure to analyze a Project’s cumulative impacts:

The MND cites Appendix D of an August 2003 white paper published by the South Coast Air Quality Management District (“SCAQMD”) entitled “White Paper on Potential Control Strategies to Address Cumulative Impacts from Air Pollution” (“2003 SCAQMD White Paper”). To the extent that the 2003 SCAQMD White Paper asserts that any project with less than significant individual air quality impacts also necessarily has less than significant cumulative air quality impacts, it is inconsistent with CEQA for at least the reasons stated above. Moreover, the 2003 SCAQMD White Paper lacks substantial evidence to support such a contention, and thus the MND’s reliance on it violates CEQA. (Cal. Code Regs., tit. 14, § 15064.7, subd. (c).) The MND further violated CEQA by failing to provide substantial evidence to support its reliance on the 2003 SCAQMD White Paper, Appendix D as “guidance.” (Ibid.) Finally, even if the MND’s reliance on the 2003 SCAQMD White Paper were proper and supported by substantial evidence, the MND did not consider other evidence—such as public comments and the existence of many other sources of pollution near the Project site—showing that the Project could have a significant cumulative air quality impact. (See Cal. Code Regs., tit. 14, § 15064, subd. (b).) [emphasis added]42
41 People of the State of California v. City of Fontana, Case No. CIVSB2121829, Petition for Writ of Mandate, pg. 9, paragraph 32, available at https://climatecasechart.com/wp-content/uploads/casedocuments/2021/20210723_docket-CIVSB2121829_petition-for-writ-of-mandate.pdf. 42 People of the State of California v. City of Fontana, Case No. CIVSB2121829, Petition for Writ of Mandate, pg. 13, paragraph 49.

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The Attorney General’s litigation resulted in a settlement which requires compliance with an ordinance adopted on April 12, 2022 that establishes sustainability standards for warehouses in Fontana, including standards intended to address cumulative air quality impacts. For example, the standards include requirements that rooftop solar panels supply 100% of power for non-refrigerated portions of facilities with buildings over 400,000 square feet, trees in automobile parking areas, zero emission motorized operational equipment, other equipment electrification requirements, and solar-ready buildings roofs.43 These are just a few examples of feasible mitigation available to reduce cumulative air quality impacts, in compliance with CEQA.

The FEIR for the instant Project suffers from the same lack of analysis and legal errors as the MND in the Attorney General’s Fontana litigation. As a result of its refusal to analyze cumulative impacts, the FEIR fails to disclose or mitigate potentially significant local and regional cumulative impacts. In sum, the FEIR has not responded to CARE CA’s comments on this issue and fails to remedy the City’s inadequate cumulative impacts analysis. The Project cannot be approved until the City revises and recirculates an EIR that analyzes the Project’s potentially significant cumulative impacts.

D. The FEIR’s Quantified Health Risk Analysis Underestimates Impacts
The City prepared a Mobile Source Health Risk Assessment (“HRA”) to analyze health risk impacts on residential and non-residential (worker) receptors in the vicinity of the Project.44
The HRA underestimates the Project’s operational health risk impacts on residential receptors and workers by failing to account for building downwash in the AERMOD analysis.45 Dr. Clark explains that building downwash occurs as the wind flows over and around buildings and impacts the dispersion of pollution.46 This downwash effect leads to higher ground-level concentration of chemicals emitted from sources.47
43 Id., Stipulation For Entry Of Final Judgment On Consent, available at https://climatecasechart.com/wp-content/uploads/case-documents/2022/20220414_docketCIVSB2121605-CIVSB2121829_stipulation.pdf. 44 DEIR, Appendix B2, pg. 25. 45 Clark Comments, pg. 3. 46 Id. 47 Id.

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The HRA also underestimates the Project’s health risk impacts by relying on non-standard daily breathing rates for sensitive receptors. Dr. Clark explains that the HRA unjustifiably relies on breathing rates lower than recommended by the Office of Environmental Health Hazard Assessment’s Air Toxics Hot Spots Program Guidance Manual for Preparation of Health Risk Assessments.48 CEQA requires an accurate analysis of human health impacts. CEQA Guidelines Section 15065(a)(4) provides that the City is required to find a project will have a significant impact on the environment and require an EIR if the environmental effects of a project will cause a substantial adverse effect on human beings. The Supreme Court has also explained that CEQA requires the lead agency to disclose the health consequences that result from exposure to a project’s air emissions.49 Courts have held that an environmental review document must disclose a project’s potential health risks to a degree of specificity that would allow the public to make the correlation between the project’s impacts and adverse effects to human health.50
Because the City’s analysis underestimates the Project’s health risk impacts, the City fails to meet CEQA’s requirement to accurately disclose the Project’s impacts on public health and support its conclusions with substantial evidence. A revised HRA must be included in a recirculated EIR.

E. The FEIR Still Underestimates Truck Trip Lengths and Resultant Impacts
CARE CA commented that the DEIR underestimates truck trip lengths by applying a truck trip length of 15.3 miles for 2-axle trucks, 14.2 miles for 3-axle trucks, and 40 miles for 4+-axle trucks. The DEIR states that these truck trip distances are recommended by SCAQMD, but Mr. Marshall explained that the City must consider the reasonably foreseeable distance to the Project’s likely trip destinations.51 These include the Ports of Los Angeles and Long Beach – approximately 60 miles away. The FEIR responds in Response A-18:

The commenter fails to provide any evidentiary basis for the arbitrary number of 60 miles it suggests using… In fact, these recommendations are in direct opposition of the SCAQMD’s recommended truck travel distance for warehousing projects within its jurisdiction (based on SCAG regional travel 48 Id. at 5. 49 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516, 523. 50 Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184. 51 Marshall Comments, pg. 7.

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demand data)… The commenter’s recommended trip lengths are not supported by any substantial evidence provided by the SCAQMD and contradicts published material from SCAQMD that was utilized in the underlying analysis.52
The FEIR misinterprets the SCAQMD guidance. SCAQMD itself regularly comments on warehouse projects that it is essential to analyze the distance from warehouse projects to likely destinations and has emphasized that agencies should not rely solely on the 40-mile average trip length identified in its guidance. For example, SCAQMD recently commented on a warehouse project proposed for a location at a similar distance from the Ports as the instant Project:

South Coast AQMD recommended 15.3 miles, 14.2 miles, and 40 miles of truck trip lengths derived from the Southern California Association of Government's (SCAG) estimation of average truck trip length in its 2016 Regional Transportation Plan. However, it is essential to note that the distance from the Proposed Project site to the Port of Los Angeles or Long Beach is approximately 70 miles one-way. Thus, South Coast AQMD staff is concerned about underestimating truck emissions due to the shorter distance that HHDT is analyzed in the Draft SEIR. Hence, it is recommended that the Lead Agency revise the truck emissions analysis using the more conservative trip length between 40 to 70 miles, of which 40 miles could be used for local and 70 miles for Port trips and include the revision in the final CEQA document. Tailoring these parameters and assumptions to be based on project-specific data will ensure a more accurate assessment of emissions, accounting for the unique circumstances and logistical realities of the Proposed Project.53
52 FEIR, pg. 2-43. 53 Exhibit C, containing the following comment letters: SCAQMD, Comments on the Draft Subsequent Environmental Impact Report for the Hemlock Warehouse Development Project (SCH No.: 2009091089) (November 22, 2023), available at https://www.aqmd.gov/docs/defaultsource/ceqa/comment-letters/2023/november-2023/SBC231011-05.pdf; also attached as Attachment B to Mr. Marshall’s comments; SCAQMD, Comments on Notice of Availability of a Recirculated Draft Environmental Impact Report (EIR) for Rubidoux Commerce Park Project (Proposed Project) (SCH No. 2020110449) (October 9, 2023), available at https://www.aqmd.gov/docs/defaultsource/ceqa/comment-letters/2023/october-2023/RVC230901-01.pdf; SCAQMD, Comments on Draft Environmental Impact Report (DEIR) for the Optimus Logistics Center 2 (September 11, 2015), pg. 3, available at https://www.aqmd.gov/docs/default-source/ceqa/commentletters/2015/september/deiroptimus.pdf?sfvrsn=2 (“Since the port areas are over 70 miles away from the project site and that trucks will be serving other destinations within the basin and out of state, the SCAQMD staff recommends, absent a tenant-specific analysis with trip length information, that all applicable analyses be revised in the Final EIR using a one-way trip length that more accurately estimates air quality emission and related impacts based on the anticipated activities and distances CARECA-12
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In sum, the FEIR is incorrect when it states that CARE CA’s recommendation to use a 60-mile truck trip length for trips to Ports of Los Angeles and Long Beach is not supported by substantial evidence. Rather, it is the FEIR’s truck trip length assumptions which are not supported by substantial evidence – SCAQMD does not recommend blind reliance on truck trip lengths of 15.3 miles,

14.2 miles, and 40 miles for warehouse projects such as the instant Project for which longer trips to and from the ports are reasonably foreseeable.

Dr. Clark’s comments also discuss the relationship between the ports and warehouses like this Project. Dr. Clark discusses the large percentage of goods passing through the ports, the number of truck trips generated by the ports, and observes that the Project site is approximately 62 miles via Interstate 15 to Route 91 to Interstate 710.54 Substantial evidence therefore demonstrates that the Project’s truck trip lengths are underestimated, resulting in underestimation of transportation, air quality, and GHG impacts. The Project cannot be approved until this error is corrected in a revised and recirculated EIR.

F. The FEIR Fails to Include Sufficient Investigation into Energy Conservation Measures
The DEIR and FEIR do not include sufficient investigation into energy conservation measures that might be available or appropriate for the Project. In the DEIR, the City concludes that energy impacts of the Project would be less than significant because the Project’s construction and operations would comply with state regulations.55 But as discussed below, the Project’s environmental review does not sufficiently consider energy conservation measures like solar facilities, use of alternate fuel sources, and passive energy efficiency measures to ensure the Project’s energy consumption would not be wasteful, inefficient, or unnecessary. The FEIR briefly addresses some energy conservation measures in Responses B-59, B56, and B-53, but only to explain that none are required because air quality impacts are less than significant. This analysis fails to meet CEQA’s requirements.

CEQA requires an environmental document to discuss mitigation measures for significant environmental impacts, including “measures to reduce the wasteful, described in the DEIR.”); SCAQMD, Comments on Draft Environmental Impact Report (DEIR) for the Proposed Westgate Specific Plan (SCH No. 1995052002) (March 5, 2015), pg. 5, available at https://www.aqmd.gov/docs/default-source/ceqa/commentletters/2015/march/deirwestgate.pdf?sfvrsn=4; SCAQMD, Comments on Draft Mitigated Negative Declaration (Draft MND) for the Proposed Colton – DEXUS Project (February 1, 2013), available at https://www.aqmd.gov/docs/default-source/ceqa/comment-letters/2013/february/colton-dexus.pdf. 54 Clark Comments, pg. 6. 55 DEIR, pg. 4.4-5, 6.

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inefficient, and unnecessary consumption of energy.”56 The CEQA Guidelines require discussion of energy conservation measures when relevant, and provide examples in Appendix F:57
1) Potential measures to reduce wasteful, inefficient and unnecessary consumption of energy during construction, operation, maintenance and/or removal. The discussion should explain why certain measures were incorporated in the project and why other measures were dismissed. 2) The potential of siting, orientation, and design to minimize energy consumption, including transportation energy, increase water conservation and reduce solid waste.
3) The potential for reducing peak energy demand.
4) Alternate fuels (particularly renewable ones) or energy systems. 5) Energy conservation which could result from recycling efforts.

Courts have rejected EIRs that fail to include adequate analysis investigation into energy conservation measures that might be available or appropriate for a project.58 In California Clean Energy Commission v. City of Woodland (“CCEC”),59 the Court of Appeal reviewed an EIR for a shopping center on undeveloped agricultural land. The EIR concluded that, due to the proposed project’s compliance with Title 24 guidelines and regulations, the project would be expected to have a less-than-significant impact regarding the wasteful, inefficient, or unnecessary consumption of energy. But the lead agency’s EIR did not include discussion regarding the different renewable energy options that might be available or appropriate for the project. The Court held “the City's EIRs failed to comply with the requirements of Appendix F to the Guidelines by not discussing or analyzing renewable energy options.”60 The lead agency argued that compliance with the Building Code sufficed to address energy impact concerns for the project.61 But the Court explained:

Although the Building Code addresses energy savings for components of a new commercial construction, it does not address many of the considerations required under Appendix F of the CEQA Guidelines… These considerations include whether a building should be constructed at all, how large it should 56 Pub. Resources Code, § 21100(b)(3); Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912, 930. 57 14 Cal. Code Regs., § 15126.4(a)(1)(C) (stating “‘Energy conservation measures, as well as other appropriate mitigation measures, shall be discussed when relevant.”). 58 Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 CA4th 256; Spring Valley Lake Ass’n v.

City of Victorville (2016) 248 CA4th 91. 59 (2014) 225 CA4th 173. 60 Id. at 213. 61 Id. at 210, 211.

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be, where it should be located, whether it should incorporate renewable energy resources, or anything else external to the building's envelope. Here, a requirement that Gateway II comply with the Building Code does not, by itself, constitute an adequate assessment of mitigation measures that can be taken to address the energy impacts during construction and operation of the project.62
Here, the FEIR lacks analysis of common energy consumption measures in violation of CEQA Guidelines Appendix F. The FEIR fails to analyze the feasibility of onsite solar facilities, such as rooftop, parking lot, or ground-level solar photovoltaics. This analysis must address considerations such as the technical and economic feasibility of installing solar facilities on the Project site, the potential size of the Project’s solar zone, and the potential magnitude of mitigation provided by installing solar facilities. The FEIR also fails to evaluate the extent to which mobile source energy consumption could be reduced during Project operations through electric vehicle charging infrastructure (above what is required by existing regulations).

The FEIR acknowledges that a diesel backup generator may be required for Project operations,63 but fails to evaluate measures to reduce this source of energy consumption, such as use of alternative fuel sources.

The FEIR also fails to evaluate the feasibility of more stringent idling requirements over existing requirements.64
The FEIR’s discussion of construction energy conservation measures also violates CEQA Guidelines Appendix F. The City’s energy analysis fails to evaluate the feasibility of utilizing existing power sources (e.g., power poles) or alternative fuel generators rather than temporary power generators.65 The FEIR contains responses briefly addressing the measures discussed above.66 But the responses simply state: “[a]s concluded in Section 4.2, Air Quality, of the Draft EIR, Project operation-source emissions would not exceed the SCAQMD regional thresholds of significance for any criteria pollutants even when not taking 62 CECC (2014) 225 CA4th 173, 213. 63 FEIR, pg. 2-40. 64 Page 4.2-18 (CARB Rule 2485 (13 CCR 2485): Airborne Toxic Control Measure to Limit DieselFuel Commercial Vehicle Idling, which limits nonessential idling to five minutes or less for commercial trucks; CARB Rule 2449 (13 CCR 2449): In-Use Off-Road Diesel Idling Restricts, which limits nonessential idling to five minutes or less for diesel-powered off-road equipment.). 65 DEIR, Appendix D, pg. 37. 66 See FEIR, Responses B-59, B-56, and B-53.

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into account of existing development emissions (Refer to Draft EIR pp. 4.2-31 to 4.2- 32)… Thus, the City determines that additional mitigation is not warranted.”67 This type of response does not evaluate the feasibility or effectiveness of energyconservation measures, and thus does not provide the analysis required by CEQA Guidelines Appendix F.

In sum, the FEIR’s energy analysis fails adequately analyze measures to reduce the wasteful, inefficient, and unnecessary consumption of energy, and fails to meaningfully address Appendix F’s considerations of whether a building should be constructed at all, how large it should be, where it should be located, whether it should incorporate renewable energy resources, or anything else external to the building's envelope.68 This analysis must be provided in a revised and recirculated EIR.

III. THE BOARD CANNOT MAKE THE REQUISITE FINDINGS TO

RECOMMEND APPROVAL OF THE PROJECT
Section 4.02.025(D) of the City of Ontario Municipal Code sets forth findings necessary to approve a development plan. The Code provides that an application for a development plan shall be denied if the following finding (among others) cannot be clearly established: “The proposed development will complement and/or improve upon the quality of existing development in the vicinity of the project and the minimum safeguards necessary to protect the public health, safety and general welfare have been required of the proposed project.”69
The Staff Report states that the Project meets this requirement, but this finding lacks support.70 The Project would have a significant and unavoidable VMT impact. And the Project has potentially significant health risk, air quality, GHG, and energy impacts which have been underestimated in the FEIR. Because the Project’s impacts on public health, safety and general welfare have not been adequately analyzed and mitigated, the City cannot make the requisite findings to approve the Project.
67 FEIR, Response B-57. 68 Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 CA4th 256, 264. 69 Section 4.02.025(D)(3). 70 Staff Report, PDEV22-017, Part 3, Section 4.

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For the same reason, the Staff Report lacks support to make the following finding in recommending adoption of the FEIR: “[t]he draft EIR contains a complete and accurate reporting of the environmental impacts associated with the Project.”71 A revised EIR must be recirculated before the Project can be recommended for approval.

IV. CONCLUSION
As is explained herein, the FEIR’s air quality, health risk, energy, and transportation analyses remain substantially inaccurate and incomplete, failing to comply with the requirements of CEQA. As a result, the FEIR still fails to adequately disclose and mitigate the Project’s significant impacts. As a consequence of these impacts, the City cannot make the requisite findings under CEQA to recommend certification of the FEIR or under the City of Ontario Municipal Code to approve the Project’s development plan. CARE CA urges the Board to recommend that the City revise and recirculate the EIR before any further action is taken on the Project.

Sincerely,
Aidan P. Marshall
Attachments
APM:acp
71 Staff Report, PDEV22-017 – Draft EIR, Part 3, Section 1; Staff Report, PDEV22-017, Part 3, Section 1.

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EXHIBIT A
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1 794 Sawnee Bean Road
Thetford Center VT 05075
Norman Marshall, President
(802) 356-2969
[email protected]
April 15, 2023
Aidan P. Marshall
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080
Subject: 5355 East Airport Drive Project
Dear Mr. Marshall,
In October 2023, I reviewed trip generation, vehicle miles traveled (VMT) impacts and greenhouse gas (GHG) impacts of the City of Ontario Draft Environmental Impact Report for a proposed warehouse project at 5355 East Airport Drive (“DEIR”). I made the following findings:
1) The DEIR acknowledges significant and unavoidable VMT impact. Furthermore, the DEIR documents that the project would exceed the VMT screening thresholds by a wide margin:

22.56% in the baseline year and 28.47% in the horizon year. 2) The proposed VMT mitigation is not fully specified or quantified in the DEIR and appears to fall far short of what would be required to reduce project VMT below the City’s threshold. Achieving significant VMT mitigation for this project may be impossible – but mitigation must be specified and quantified for the project to be properly evaluated. 3) Project trip generation could be much higher than assumed. Given the large uncertainty in the project’s trip generation, the applicant should take one of two paths -either a) applying a significantly higher and more conservative trip generation rate, or b) requesting as a condition of approval that trip generation will not exceed the number assumed in the EIR, and this be certified prior to beginning construction.
4) Project GHG emissions could be much higher than assumed. In addition to trip generation possibly being underestimated, average trip lengths for both trucks and passenger vehicles are likely to be underestimated in the DEIR.

Now, I have reviewed the responses to these comments made in the project’s Final Environmental Impact Review (“FEIR”) dated February 2024.

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2 Truck trip lengths – The FEIR repeats the false assertion that the truck trip lengths follow SCAQMD’s recommendations (FEIR, A-18, p. 2-43). In my October 2023 comments, I addressed this, writing:

The FEIR does not use SCAQMD- recommended truck trip lengths. SCAQMD instead recommends: “Tailoring these parameters and assumptions to be based on project-specific data will ensure a more accurate assessment of emissions, accounting for the unique circumstances and logistical realities of the Proposed Project.” 1 www.aqmd.gov/docs/default-source/planning/fbmsm-docs/pr-2305_sr_2nd-draft_4-7-21_clean.pdf 2 https://www.aqmd.gov/docs/default-source/ceqa/handbook/high-cube-warehouse-trip-rate-study-for-airquality-analysis/sclc_warehouse-presentation-final.pdf CARECA-12
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3 VMT mitigation – The FEIR continues to state that the proposed project would exceed the VMT screening thresholds by a wide margin: 22.56% in the baseline year and 28.47% in the horizon year.

The Parcel Hub Warehouse trip generation rate is 2.6 times the rate used in the DEIR, and the Fulfillment Center Warehouse with Sorting rate is 5.2 times the rate used in the DEIR.

The FEIR argues that the highest generators that I discussed in my October 2023 comments could not be accommodated because “. . . the layout of the site with 251 parking spaces would not reasonable accommodate the on-site parking required to support these uses.” This point about parking may be valid for the highest generators per 1000 sq. ft. but not for the intermediate generators. The DEIR and FEIR estimate only 270 passenger car trips per day (DEIR Appendix K, p. 5), i.e., 135 vehicles in and 135 cars out. Therefore, if all cars were employees and they all worked the same single shift, the parking lot utilization would never exceed 54%. With multiple shifts and non-employee passenger car trips, the parking lot utilization would be much CARECA-12
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4 lower. Therefore, the parking lot is designed to support many more trips than assumed in the DEIR and FEIR.

The 251 parking spaces are consistent with ITE Land Use 156: High Cube Parcel Hub Warehouse.

This use is described:

Given the uncertainty concerning the proposed project and its size, 270,377 sq. ft., it could foreseeably end up being a High-Cube-Parcel-Hub Warehouse as defined above.

The number of parking spaces provided also is consistent with this usage. The trip generation rate for this category is 4.63 trips per 1000 sq. ft., i.e. 2.6 times the rate used in the DEIR and FEIR. This rate includes 0.58 truck trips per 1000 sq. ft. Therefore, the passenger car rate is 4.05 trips per 1000 sq. ft. As a High-Cube-Parcel-Hub Warehouse, the proposed project would generate 1095 passenger car trips per day.

The DEIR states:

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5 As I stated in my October 2023 comment letter:

Sincerely,
Norman L. Marshall
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6 Resume
NORMAN L. MARSHALL, PRESIDENT
[email protected]
EDUCATION:

Chittenden County (2060 Land use and Transportation Vision Burlington Vermont region) – led extensive public visioning project as part of MPO’s long-range transportation plan update.

Chicago Metropolis Plan and Chicago Metropolis Freight Plan (6-county region)— developed alternative transportation scenarios, made enhancements in the regional travel demand model, and used the enhanced CARECA-12
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7 model to evaluate alternative scenarios including development of alternative regional transit concepts.

Developed multi-class assignment model and used it to analyze freight alternatives including congestion pricing and other peak shifting strategies.

City of Honolulu – Kaka’ako Transit Oriented Development (TOD) – applied regional travel demand model in estimating impacts of proposed TOD including estimating internal trip capture.

Freeway bottlenecks are modeled much more accurately than in the base TransCAD model.

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8 South Evacuation Lifeline (SELL) – In work for the South Carolina Coastal Conservation League, used Dynamic Travel Assignment (DTA) to estimate evaluation times with different transportation alternatives in coastal South Caroline including a new proposed freeway.

PUBLICATIONS AND PRESENTATIONS (partial list)
DTA Love: Co-leader of workshop on Dynamic Traffic Assignment at the June 2019 Transportation Research Board Planning Applications Conference.

Vermont Statewide Resilience Modeling. With Joseph Segale, James Sullivan and Roy Schiff. Presented at the May 2017 Transportation Research Board Planning Applications Conference.

Assessing Freeway Expansion Projects with Regional Dynamic Traffic Assignment. Presented at the May 2017 Transportation Research Board Planning Applications Conference.

Pre-Destination Choice Walk Mode Choice Modeling. Presented at the May 2017 Transportation Research Board Planning Applications Conference.

A Statistical Model of Regional Traffic Congestion in the United States, presented at the 2016 Annual Meeting of the Transportation Research Board.

MEMBERSHIPS/AFFILIATIONS
Associate Member, Transportation Research Board (TRB)
Member and Co-Leader Project for Transportation Modeling Reform, Congress for the New Urbanism (CNU) CARECA-12
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EXHIBIT B
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April 15, 2024
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080
Attn: Mr. Aidan Marshall
Subject: Comments On Final Environmental Impact Report
(FEIR) 5355 East Airport Drive, City of Ontario, CA SCH No. 202209006
At the request of Adams Broadwell Joseph & Cardozo (ABJC), Clark and Associates (Clark) has reviewed materials related to the City of Ontario (the City) FEIR of the above referenced project.

Project Description:

According to the City of Ontario’s Development Advisory Board Decision File No. PDEV22-017 – Draft EIR (dated March 18, 2024), the Project consists of a Development Plan application to construct a 270,337 square-foot industrial building on the 13.08 acres of the Project site. The Project would require the demolition of the existing buildings and structures, on-site landscaping, and on-site parking. The design would also include the installation of site improvements, including drive aisles, landscaping, utility infrastructure, underground storm drain detection facilities, exterior lighting, walls/fencing, and signage along with improvements to East Airport Drive.

Clark & Associates
Environmental Consulting, Inc.

OFFICE
12405 Venice Blvd
Suite 331
Los Angeles, CA 90066
PHONE
310-907-6165
FAX
310-398-7626
EMAIL
[email protected]
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Figure 1: Site Location Map
Under existing conditions, the Project Site is developed with a grain processing company and a corn storage and distribution facility. The eastern portion of the Project Site contains grain storage silos, grain mill area, and five buildings that are used for maintenance and repair, grain storage, and service shop. The western portion of the Project Site contains enclosed grain storage, with an office trailer. A vehicle wash-down area is also present on the northeastern portion of the Site. Several subsurface septic systems are located beneath the Site to serve the existing uses.

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Specific Comments

1. The City’s Air Quality Analysis Did Not Incorporate Building Downwash In The AERMOD Analysis.

A review of the AQ Analysis and the Mobile Source Health Risk Assessment show that building downwash was not incorporated into the AERMOD analysis of the Project. Building downwash occurs as the wind flows over and around buildings and impacts the dispersion of pollution from nearby stacks. A plume caught in the path of this flow is drawn into the wake, temporarily trapping it in a recirculating cavity. This downwash effect leads to higher ground-level concentration of chemicals emitted from sources. The downwash effect increases as the relative difference between the release height and top of the building increases.1 Using a lower height for the building will underestimate the potential ground level concentrations of pollutants associated with the Project operation.

For the closest receptors to the site, this difference will create an additional air quality impact that is not accounted for in the City’s analysis. In addition to incorporating the building downwash impacts of the Project buildings, the AERMOD model should also incorporate the building downwash for receptors near the Project. Receptors farther away will still be subject to the downwash effect given the assumed emission height release incorporated into the model. Guidance from authoritative bodies in California regarding the preparation of health risk assessments of mobile sources of diesel emissions2 requires the inclusion of building heights and dimensions for building downwash calculations. Omission of the building downwash effect underestimates the exposure point concentrations for receptors near the building(s). The City should address the impact of this issue in a revised DEIR.
1 The so-called good engineering practice height (GEP) of the source. The GEP is defined in Section 123 of the Clean Air Act as “the height necessary to ensure that emissions from a stack do not result in excessive concentrations of any air pollutant in the immediate vicinity of the source as a result of atmospheric downwash, eddies or wakes which may be created by the source itself, nearby structures or nearby terrain obstacles.” 2 SCAQMD. 2003. Health Risk Assessment Guidance For Analyzing Cancer Risks From Mobile Source Diesel Emissions. August, 2003. Page 2.

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2. The Air Quality Analysis Relies On An Input Value From AP-42 That Is Rated As Poor And May Be Unreliable
The CalEEMOD analysis of the construction emissions incorporates various factors from U.S.

EPA’s Emission Factors Handbook (AP-42). The AP-42 emission factor for crushing stones used in the CalEEMOD analysis is rated E. This is the worst rating in AP-42. According to the AP-42 FAQ - E = Poor. Factor is developed from C and D rated test data from a very few number of facilities, and there may be reason to suspect that the facilities tested do not represent a random sample of the industry. There also may be evidence of variability within the source category population. This means that there is a lot of uncertainty in the AQ analysis regarding the amount of particulate matter that will be emitted from the construction phase of the Project. The City should assess the impacts of this variable in a revised DEIR.

3. The Health Risk Analysis Incorporates Non-Standard Daily Breathing Rates For Sensitive Receptors Analyzed In The HRA

According to the FEIR, a health risk assessment was prepared in accordance with SCAQMD’s guidance. For purposes of this Health Risk Assessment, receptors include both residential and nonresidential (worker) land uses in the vicinity of the Project. These receptors are included in the Health Risk Assessment since residents and workers may be exposed at these locations over a long-term duration of 30 and 25 years, respectively.3
The input values utilized in the HRA analysis included a variety of daily breathing rates that are favorable to reducing the potential health impacts. The HRA states that “Discrete variants for daily breathing rates, exposure frequency, and exposure duration were obtained from relevant distribution profiles presented in the 2015 OEHHA Guidelines.”4 The values listed in Table 2-7 include both the 95 percent upper confidence limit (95% UCL) values (for age in utero exposure and age 0 to 2) and the 80th percentile values for the remaining age groups (age 2 to 16 and age 16 to 30). 3 Urban Crossroads. 2022. 5355 East Airport Drive Mobile Source Health Risks Assessment. Prepared by Urban Crossroads. August 30, 2022. pg 5
4 Urban Crossroads. 2022. 5355 East Airport Drive Mobile Source Health Risks Assessment. Prepared by Urban Crossroads. August 30, 2022. pg 19-20
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The risk estimates for ages 2 to 30 is off by a factor of 1.3.

Figure 2: Daily Breathing Rates Utilized In HRA
The 2015 Air Toxic Hot Spots Program Guidance Manual 5 notes that residential estimates use 95th percentile breathing rates in Table 5.6. Table 5.6 shows values of 745 L/kg BW-day for children age 2 to 16 and 335 L/kg BW-day for adults age 16 to 30.

The City’s analysis is therefore incomplete, is not consistent with the guidance from OEHHA, and must be corrected in a revised final environmental impact report for the Project.

4. The Average Truck Trip Length Of 40 Miles Used In The Air Quality Analysis Does Not Match The Length(s) Used To Support Other Warehouse Projects.

According to the operations air quality analysis of Project,6 the analysis incorporated the SCAQMD recommended truck trip length of 15.3 miles for 2-axle (LHDT1, LHDT2), 14.2 miles for 5 Office of Environmental Health Hazard Assessment, Air Toxics Hot Spots Program Guidance Manual for Preparation of Health Risk Assessments, February 2015, http://oehha.ca.gov/air/hot_spots/hotspots2015.html 6 Urban Crossroads. 2022. 5355 East Airport Drive Air Quality Impact Analysis. August 30. 2022. Pg 37 CARECA-12
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3-axle (MHDT) trucks, and 40 miles for 4+-axle (HHDT) trucks and weighting the average trip lengths using traffic trip percentages.

This statement does not comport with the reality of where warehoused materials will ship from in the region. The 40-mile distance is insufficient to allow vehicles to travel to the major ports in the Southern California region – Los Angeles and Long Beach. These Ports are the largest source(s) of containerized products, and therefore the primary sources of heavy-duty truck traffic, on the West Coast of the United States are the Ports of Los Angeles and Long Beach. “In 2020, the Ports of Los Angeles, Long Beach, and Oakland collectively accounted for over 34% of all United States international container trade. The Ports of Los Angeles and Long Beach alone generate about 35,000 container truck trips every day. Accordingly, the South Coast Air Basin now contains approximately 3,000 warehouses of over 100,000 square feet each, with a total warehouse capacity of approximately 700 million square feet, an increase of 20 percent over the last five years”), 7 citing data from the
Bureau of Transportation Statistics, Container TEUs (Twenty-foot Equivalent Units)8 from 2020, the Ports of Los Angeles, Long Beach, and Oakland combined for 14.157 million TEUs, 34% of 41.24 million TEUs total nationwide.
9 The distance from the Port of LA to the Project site is approximately 62 miles via Interstate 15 to Route 91 to Interstate 710.

Using the 62-mile daily truck trip will nearly double the daily emissions of pollutants associated with the Project, increasing the Regional burden and resulting in a potentially significant impact. The City must address the impact of this issue in a revised DEIR.

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

Sincerely,
7 Available at https://oag.ca.gov/system/files/media/warehouse-best-practices.pdf 8 https://data.bts.gov/stories/s/Container-TEU/x3fb-aeda/ 9 U.S. Dept. of Transportation, Federal Highway Administration, FHWA Operations Support – Port Peak Pricing Program Evaluation (2020), available at https://ops.fhwa.dot.gov/publications/fhwahop09014/sect2.htm CARECA-12
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James J. J. Clark, Ph.D.

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

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

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

Significant projects performed by Dr. Clark include the following:

LITIGATION SUPPORT
Case: James Harold Caygle, et al, v. Drummond Company, Inc. Circuit Court for the Tenth Judicial Circuit, Jefferson County, Alabama. Civil Action. CV-2009 Client: Environmental Litgation Group, Birmingham, Alabama Dr. Clark performed an air quality assessment of emissions from a coke factory located in Tarrant, Alabama. The assessment reviewed include a comprehensive review of air quality standards, measured concentrations of pollutants from factory, an inspection of the facility and detailed assessment of the impacts on the community. The results of the assessment and literature have been provided in a declaration to the court.

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

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

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

NC041739
Client: Rose, Klein, Marias, LLP, Long Beach, California Dr. Clark performed a toxicological assessment of an individual occupationally exposed to multiple chemicals, including benzene, who later developed a respiratory distress. A review of the individual’s medical and occupational history was performed to prepare an exposure assessment. The exposure assessment was evaluated against the known outcomes in published literature to exposure to respiratory irritants. The results of the assessment and literature have been provided in a declaration to the court.