Attachment 2 Responses to Appellant's Comments — Orange City Council, April 11, 2023

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Cover Letter
March 20, 2023
Monique Schwartz, Associate Planner
City of Orange Planning Division
300 East Chapman Avenue
Orange, CA 92866
Subject: Response to Comments—City of Orange 840 The City Drive Apartments Dear Ms. Schwartz:

FirstCarbon Solutions (FCS) is pleased to submit this Response to Comments letter for the proposed 840 The City Drive Apartments Project (proposed project) in the City of Orange.

This letter includes responses to the opposition letter from Lozeau Drury LLP, dated February 22, 2023, regarding the Draft Initial Study/Mitigated Negative Declaration (Draft IS/MND) for the proposed project.

Although a lead agency is not required to provide written responses to comments on an IS/MND under the California Environmental Quality Act (CEQA), the City of Orange has evaluated the comments received on the Draft IS/MND and has elected to provide responses to comments regarding environmental issues. None of the comments received require significant revisions to the Draft IS/MND, result in the need to prepare an Environmental Impact Report (EIR), or require recirculation of the Draft IS/MND.

If you should have any questions, please feel free to contact me by phone at cso@fcs- intl.com.

Sincerely,

Cecilia So, Senior Project Manager
FirstCarbon Solutions
250 Commerce, Suite 210
Irvine, CA 92602
Enc: Attachment A: Comment Letter

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RESPONSES TO COMMENTS
List of Authors
The comment letter from Lozeau Drury, LLP , dated February 22, 2023, regarding the Draft IS/MND for the proposed project is included in Attachment A and is transcribed below. In the following responses to comments memorandum, the text of the communication is summarized and followed by the corresponding response. Individual comments within each communication are numbered so comments can be cross-referenced with responses.

Author Code
Lozeau Drury, LLP ................................................................................................................................. DRURY

2 Responses to
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Letter from Lozeau Drury LLP, dated February 22, 2023
Comment DRURY-1
This comment pertains to the Draft IS/MND’s CEQA adequacy. The commenter asserts that there is a fair argument that the proposed project may have adverse environmental impacts. The comment claims that an IS/MND pursuant to CEQA Guidelines 15162 and 15164 is not the appropriate level of review and requests that the City prepare an EIR.

The comment introduces the commenters and consultants who have been hired to contribute to this opposition letter. The comment claims that an IS/MND does not include the appropriate level of environmental analysis that would be afforded by an EIR and urges the City to prepare a Draft EIR for the proposed project.

Response to DRURY-1
To show that a Mitigated Negative Declaration (MND) is not adequate and that an EIR is required by CEQA, commenters must demonstrate that the record contains substantial evidence supporting a fair argument that the project may have a significant adverse environmental impact. For purposes of CEQA, “substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact” (Public Resources Code [PRC] § 21080(e)(1)). “Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment” (PRC § 21080(e)(2)).

For a fair argument to be supported by substantial evidence, it must be based upon an accurate, factual understanding of the proposed project. Based on the analysis conducted for this project, there would be no significant adverse environmental impacts associated with the proposed project; therefore, an IS/MND is the appropriate level of environmental documentation pursuant to CEQA. Furthermore, after review of the comment letter, the City has concluded that there is no substantial evidence in the comments, or elsewhere in the administrative record, to support a fair argument that the project may have a significant environmental impact on any resource evaluated under CEQA. Therefore, an EIR is not necessary or required for this project. Comments about project approval, including general opposition to the proposed project, will be forwarded to the City Council for consideration.

Comment DRURY-2
This comment describes the legal standard of an EIR and its purpose. The California Supreme Court has held that if no EIR has been prepared for a nonexempt project, but substantial evidence exists in the record that suggests that the project may result in significant adverse impacts, then the proper remedy is to order the preparation of an EIR. Significant environmental effect is defined broadly as a substantial or potentially substantial adverse change in the environment. An EIR is required if there is substantial evidence in the record that the proposed project may have a significant effect on the environment. A negative declaration can only be issued if there is not a "fair argument" that the project will have a significant environmental effect.

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Response to DRURY-2
The City properly prepared an Environmental Checklist, technical studies, and associated analyses to determine the appropriate scope of environmental review under CEQA. As documented in the Draft IS/MND, the Environmental Checklist concluded that the proposed project would not result in any significant environmental impacts that would not be able to be mitigated to a less than significant level.

The Draft IS/MND fully discloses potential environmental impacts and mitigation, as appropriate, and reduces impacts to below significance. Based on these conclusions, an EIR was not warranted or required by CEQA. In the following sections, the commenter discusses the proposed project’s impacts to air quality, greenhouse gas (GHG) emissions, energy, and hazardous materials, and claims that there is ample evidence to support a fair argument that the proposed project would result in significant impacts relating to the aforementioned resource areas. Please see Response to DRURY-1 regarding the appropriate level of CEQA documentation for the proposed project.

The information provided by the commenter is noted. The Draft IS/MND incorporates all relevant statutory, regulatory, and legal guidance. No revision to the Draft IS/MND in response to this comment’s general recitation of legal concepts is necessary.

Comment DRURY-3
This comment states that air quality experts from Baseline Environmental Consulting reviewed the Draft IS/MND and related documents for the proposed project and found substantial evidence of a fair argument that the proposed project would have significant air quality, GHG emissions, energy, and hazardous waste impacts. The comment recommends that an EIR must be prepared to further evaluate and mitigate these impacts.

Response to DRURY-3
Please see Response to DRURY-1 regarding the appropriate level of CEQA documentation for the proposed project. Please see Response to DRURY-2 for explanations why the potential fair arguments raised are not based on substantial evidence.

Comment DRURY-4
This comment discusses the Draft IS/MND’s analysis of air quality. Specifically, the comment states that there are issues with the Draft IS/MND’s claims about diesel particulate matter (DPM) and toxic air contaminant (TAC) emissions and the methods used in the analyses. Baseline Environmental Consulting also claims the Draft IS/MND failed to include a quantified Health Risk Assessment (HRA) for the proposed project, which will produce toxic DPM emissions during construction for approximately 1.5 years. The comment states that an EIR must be prepared to further address and mitigate these impacts.

Response to DRURY-4
The air quality analysis adequately analyzes potential health risk impacts to nearby sensitive receptors.

Specifically, the South Coast Air Quality Management District (SCAQMD) Localized Significance

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Thresholds (LST) were used to assess localized impacts from nitrogen oxide (NOX), carbon monoxide (CO), particulate matter less than 10 microns in diameter (PM10), and particulate matter less than 2.5 microns in diameter (PM2.5). The primary pollutant of concern during construction that would be assessed in a construction HRA is DPM. DPM differs from other TACs in that it is not a single substance, but a complex mixture of hundreds of substances. PM10 and PM2.5 are commonly used as proxies for the purposes of estimating and assessing DPM. As described in the Draft IS/MND, the SCAQMD LSTs represent the maximum emissions from a project that are not expected to cause or contribute to an exceedance of the most stringent applicable National Ambient Air Quality Standard (NAAQS) or California Ambient Air Quality Standard (CAAQS). The LSTs are developed based on the ambient concentrations of that pollutant for each source receptor area and distance to the nearest sensitive receptor. To assess impacts from the proposed project, the LST lookup values used were for a 2-acre project site and for sensitive receptors located within 25 meters from the source of emissions to present a conservative analysis. As described in the Draft IS/MND, if a project exceeds an applicable LST, then the SCAQMD recommends that project-specific air quality modeling be performed (such as a construction HRA). Furthermore, the LST thresholds are set to analyze on-site impacts during construction and the effect on nearby sensitive receptors. The following is from SCAQMD's Final Localized Significance Threshold Methodology:

The LST lookup tables provided in Appendix C allow a user to readily determine if the daily emissions for proposed construction or operational activities could result in significant localized air quality impacts. If the calculated emissions for the proposed construction or operational activities are below the LST emission levels found on the LST lookup tables, then the proposed construction or operation activity is not significant.

Proposed projects whose calculated emission budgets for the proposed construction or operational activities are above the LST emission levels found in the LST lookup tables should not assume that the project would necessarily generate adverse impacts.

Detailed emission calculations and/or air dispersion modeling may demonstrate that pollutant concentrations are below localized significant levels. 1 As such, if a project’s construction emissions would not exceed LST thresholds, a project-specific air quality modeling report, such as an HRA, would not be necessary.

DPM can be represented by PM10 and PM2.5 because the primary source of DPM emissions during construction would be from construction equipment operating on the project site and emitting particulate matter. As shown in Table 7 of the Draft IS/MND, the proposed project would not generate significant daily PM
10 and PM2.5 emissions and would not exceed the maximum daily on-site LST thresholds. Furthermore, the primary source of DPM emissions would occur during the most intense phase of construction activity, which as shown in Table 7 would be from demolition activity, which would only occur for an estimated 42 days. Health risks related to DPM emissions are due to long-term

1 South Coast Air Quality Management District (SCAQMD). 2003, revised 2008. Final Localized Significance Threshold Methodology.

Website: http://www.aqmd.gov/docs/default-source/ceqa/handbook/localized-significance-thresholds/final-lst-methodology- document.pdf. Accessed March 20, 2023.

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exposure and not from acute exposure, as evident from the lack of non-cancer acute reference exposure level for DPM in the Consolidated Table of Office of Environmental Health Hazard Assessment (OEHHA)/California Air Resources Board (ARB) Approved Risk Assessment Health Values.2 When referring to the 2-month recommendation, the commenter is referencing language included in OEHHA's 2015 Guidance Manual for Preparation of Health Risk Assessments.3 Specifically, OEHHA's guidance recommends that assessing health impacts for project lasting less than 2 months is not advised due to the uncertainty in assessing cancer risk from very short-term exposures. However, this guidance does not mandate that a HRA should be conducted for project construction lasting longer than two months.

Furthermore, the OEHHA guidance is not specifically for construction impacts or impacts from DPM. The SCAQMD and ARB assess risks to DPM by assuming that exposure would occur for 24-hours per day, 350 days per year, over a 30-year period. In addition, SCAQMD provides a screening method in the form of LSTs to assess localized impacts from construction without needing to perform a refined project-level HRA to determine significance. As previously discussed, the proposed project would not generate PM 10 or PM2.5 emissions that exceed LST thresholds and by extension would not generate DPM emissions that would be considered significant.

Furthermore, the nature of the proposed project’s operations does not warrant or trigger the need for an operational HRA. The commenter references the OEHHA Guidance Manual for Preparation of Health Risk Assessments as requiring an HRA. The OEHHA Guidance Manual for Preparation of Health Risk Assessments, as referenced by commenter, is largely intended to assess health risk from industrial stationary sources, which are often characterized by stationary point sources, including those within the Air Toxics Hot Spots Program. The title of that publication expressly exists under the Air Toxics Hot Spots Program—Air Toxics Hot Spot Program Guidance Manual for the Preparation of Risk Assessments.

OEHHA notes that the manual was developed “for use in implementing the Air Toxics Hot Spots Program.” Generally, a facility is subject to the Hot Spots Program if it: (1) manufactures, formulates, uses, or releases a substance subject to the Act (or a substance which reacts to form such a substance) and emits 10 tons or more per year of total organic gases, particulate matter, nitrogen oxides or sulfur oxides; (2) is listed in any district's existing toxics use or toxics air emission survey, inventory or report released or compiled by a district; or (3) manufactures, formulates, uses, or releases a substance subject to the Hot Spots Program (or substance which reacts to form such a substance) and emits less than 10 tons per year of criteria pollutants and is subject to emission inventory requirements. HRAs are often prepared in conjunction with CEQA review for facilities that will emit sources of contaminants in significant quantities, consistent with the concepts and facilities identified in the Air Toxics Hot Spot Program Guidance Manual.
4 However, project operations are not expected to generate meaningful amounts of TACs or DPM because the project’s proposed uses as a residential and commercial mixed-use development are not of the nature that are associated with such emissions, such as heavy industrial

2 California Air Resources Board (ARB). 2022. Consolidated Table of OEHHA/ARB Approved Risk Assessment Health Values. December 9.

Website: https://ww2.arb.ca.gov/sites/default/files/classic/toxics/healthval/contable12092022.pdf. Accessed March 13, 2023. 3 Office of Environmental Health Hazard Assessment (OEHHA). 2015. Air Toxics Hot Spots Program Risk Assessment Guidelines: Guidance Manual for Preparation of Health Risk Assessments. February. Website:
https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf. Accessed March 20, 2023. 4 California Office of Environmental Health Hazard Assessment (OEHHA). Air Toxics Hot Spots. Website: https://oehha.ca.gov/air/air-toxics- hot-spots. Accessed March 10, 2023.

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uses. According to the ARB’s Air Quality and Land Use Handbook: A Community Health Perspective,5 projects should avoid siting new sensitive receptors within specific distances of certain sources of air pollutants. Specifically, Table 1-1 of the Air Quality Land Use Handbook: A Community Health Perspective describes several sources such as freeways, distribution centers, refineries, and dry cleaners, and the distance which lead agencies should avid siting new sensitive receptors. For example, this handbooks states that project should avoid siting new sensitive receptors within 1,000 feet of warehouse-type land uses that accommodate more than 100 trucks per day, more than 40 trucks with operating Transport Refrigeration Units (TRUs) per day, or where TRU unit operations exceed 300 hours per week. The proposed project would not be located within the screening distances of any of the listed sources in Table 1-1 of the Air Quality Land Use Handbook: A Community Health Perspective. Furthermore, the proposed project’s ground level retail/restaurant space would not generate more than 100 truck trips per day or include the use of TRUs because the proposed land uses would not warrant such large amounts of truck activity. Therefore, an operational HRA would not be warranted because the proposed project would not generate significant amounts of truck trips that would concentrate DPM emissions near sensitive receptors. The following is from SCAQMD's Final Localized Significance Threshold Methodology:

Detailed emission calculations and/or air dispersion modeling may demonstrate that pollutant concentrations are below localized significant levels. 6 As such, if a project’s construction emissions would not exceed LST thresholds, a project-specific air quality modeling report, such as an HRA, would not be necessary.

Project operations would not result in meaningful quantities of DPM or TAC emissions because the project’s uses as a mixed-use development with residential and commercial uses are not those typically associated with such contaminants, and on-site emissions would be well below the SCAQMD operational LST thresholds as a result. The project would not be a large emitter, such as a chemical manufacturing plant, nor would it contain several smaller sources concentrated in a single area, such as industrial projects with truck loading docks. The proposed project would include residential and commercial land uses and not include a land use type that operates with a truck fleet, such as a warehouse or light

5 California Air Resources Board (ARB). 2005. Air Quality and Land Use Handbook: A Community Health Perspective. Website:
https://www.arb.ca.gov/ch/handbook.pdf. Accessed March 14, 2023. 6 South Coast Air Quality Management District (SCAQMD). 2003, revised 2008. Final Localized Significance Threshold Methodology.

Website: http://www.aqmd.gov/docs/default-source/ceqa/handbook/localized-significance-thresholds/final-lst-methodology- document.pdf. Accessed March 20, 2023.

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industrial logistics center. The commenter does not identify any substantial sources of TACs associated with project operation. The commenter’s reference to operational DPM emissions resulting from vehicle trips, such as trucks, is not supported by evidence, as the vast majority of vehicles that would be owned and operated by future residents and employees would be gasoline-powered and not diesel-powered, which do not generate significant amounts of DPM or other TAC emissions. While it is possible that some portion of residents and employees will drive diesel-fueled vehicles and some deliveries to the commercial land use could be from heavy-duty trucks, these emissions would not be concentrated at the project site and any truck deliveries would not be in the amount to present a health risk. Rather, vehicle emissions would be dispersed throughout the local and regional roadways. In addition, the percentage of diesel-fueled vehicles from the project occupants would be comparable to regional fleet mix; therefore, the project would not cause a substantial increase in DPM emissions during project operations.

Considering this information, it is highly unlikely that long-term operations of the mixed-use, residential, and commercial uses would generate TAC emissions that expose sensitive receptors to substantial health risks. Consistent with the California OEHHA guidelines, the nominal quantity of TAC emissions from the proposed land uses do not trigger the need for an HRA for operational activities.

Comment DRURY-5
The commenter discusses the Draft IS/MND’s analysis of GHG emissions. The commenter states that the Draft IS/MND found that impacts related to GHG resulting from the proposed project to be insignificant because its estimated emissions rate is below the draft interim GHG threshold set by SCAQMD. However, the commenter claims that the SCAQMD has never formally adopted the interim threshold of 3,000 metric tons of carbon dioxide (MT CO2e), and that the Draft IS/MND failed to consider the State's long-term climate goals. The commenter claims that the Draft IS/MND also did not evaluate building decarbonization methods such as an all-electric building design, which the commenter claims is inconsistent with the key GHG reduction strategies under the 2022 Scoping Plan. The comment states that an EIR must be prepared to accurately assess and mitigate the proposed project's significant GHG emissions impact.

Response to DRURY-5
The Draft IS/MND’s use of the SCAQMD Draft Guidance Document Interim CEQA GHG Significance Threshold is the appropriate threshold to measure project impacts against because it is the only threshold SCAQMD has provided and is based on guidance from the City in 2020, as mentioned by the commenter.

Contrary to the commenter's assertion that the threshold is not supported by substantial evidence, the 3,000 MT CO2e per year threshold is based on a 90 percent emission “capture” rate methodology. Prior to its proposed use by the SCAQMD, the 90 percent emissions capture approach was one of the options suggested by the California Air Pollution Control Officers Association (CAPCOA) in their CEQA and Climate Change white paper (2008). A 90 percent emission capture rate means that unmitigated GHG emissions from the top 90 percent of all GHG-producing projects within a geographic area—the South Coast Air

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Basin (SoCAB) in this instance—would be subject to a detailed analysis of potential environmental impacts from GHG emissions, while the bottom 10 percent of all GHG-producing projects would be excluded from detailed analysis. A GHG significance threshold based on a 90 percent emission capture rate is appropriate to address the long-term adverse impacts associated with global climate change because medium and large projects will be required to implement measures to reduce GHG emissions, while small projects, which are generally infill development projects that are not the focus of the State’s GHG reduction targets, are allowed to proceed. Further, a 90 percent emission capture rate sets the emission threshold low enough to capture a substantial proportion of future development projects and demonstrate that cumulative emissions reductions are being achieved while setting the emission threshold high enough to exclude small projects that will, in aggregate, contribute approximate 1 percent of projected Statewide GHG emissions in the Year 2050.7

In setting the proposed threshold at 3,000 MT CO2e per year, SCAQMD researched a database of projects kept by the Governor’s Office of Planning and Research (OPR). That database contained 798 projects, 87 of which were removed because they were very large projects and/or outliers that would skew emissions values too high, leaving 711 as the sample population to use in determining the 90th percentile capture rate. The SCAQMD analysis of the 711 projects within the sample population combined commercial, residential, and mixed-use projects. It should be noted that the sample of projects included warehouses and other light industrial land uses but did not include industrial processes (i.e., oil refineries, heavy manufacturing, electric generating stations, mining operations, etc.). Emissions from each of these projects were calculated by SCAQMD to provide a consistent method of emissions calculations across the sample population and from projects within the sample population. In calculating the emissions, the SCAQMD analysis determined that the 90th percentile ranged between 2,983 to 3,143 MT CO2e per year.

The SCAQMD set their significance threshold at the low-end value of the range when rounded to the nearest hundred tons of emissions (i.e., 3,000 MT CO2e per year) to define small projects that are considered less than significant and do not need to provide further analysis.

As discussed above, use of this threshold is also consistent with guidance provided in the CAPCOA CEQA and Climate Change handbook. The SCAQMD’s draft threshold uses the Executive Order S-3-05 goal as the basis for the 3,000 MT CO2e annual threshold and provides substantial evidence to support the logic behind the development of this threshold in its Working Group Meetings.8 Achieving the Executive Order’s objective would contribute to worldwide efforts to cap carbon dioxide (CO2) concentrations at 450 parts per million (ppm), thus stabilizing global climate and ensuring the project would contribute its fair share to necessary GHG emission reductions. Moreover, the proposed project would be required to comply with California Green Building Standards Code (CALGreen)

7 South Coast Air Quality Management District (SCAQMD). December 5. Working Group Board Meeting. 2008. Website:
http://www.aqmd.gov/docs/default-source/ceqa/handbook/greenhouse-gases-(ghg)-ceqa-significance-thresholds/ghgboardsynopsis.pdf.

Accessed March 10, 2023.
8 Ibid.

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mandatory measures, which include four electric vehicle (EV) charging spaces on Basement Level B1.5 and B2 as well solar-ready infrastructure.

Finally, the 3,000 MT CO2e per year threshold has been used as the significance threshold by many local government lead agencies for mixed-use projects throughout the Southern California Association of Governments (SCAG) region since it was developed by the SCAQMD. While the commenter notes that several agencies throughout California have adopted lower GHG thresholds, they ignore the fact that other agencies have adopted numeric thresholds as high as 100,000 MT CO2e/year.9 For all of the reasons discussed above, the City has determined that the 3,000 MT CO2e per year threshold is supported by substantial evidence, and recommends that it be used in evaluating GHG impacts.

As described in the Draft IS/MND, the proposed project would increase residential density in a developed area within walking distance of existing transit, such as the Orange County Transportation Authority (OCTA) bus stops along Garden Grove Boulevard and The City Drive South, a Class I Bikeway along the Santa Ana River, and would not conflict with the measures proposed in the 2017 Scoping Plan.

As a result, the proposed project would be located in an area with existing alternative transportation infrastructure that could reduce the use of passenger vehicles, which produce the majority of GHG emissions associated with residential development. Additionally, the proposed project would include four EV charging spaces and bicycle lockers for the residents to use, which would provide further reduce the per capita GHG emissions of future residents. Moreover, the Draft IS/MND quantified all potential project GHG emissions and demonstrated that the proposed project would not exceed the 3,000 MT CO2e GHG threshold. Therefore, the Draft IS/MND does describe the proposed project’s contribution to GHG reductions, and GHG emissions have been adequately assessed in accordance with standard industry practice and applicable thresholds of significance for the region. Additionally, the installation of all-electric building design is not required, as the project does not need to reduce emissions to meet SCAQMD air quality emissions thresholds.

The commenter’s statement that the Draft IS/MND should evaluate the proposed project’s impacts against the newly released 2022 Scoping Plan is incorrect because the Public Draft IS/MND is dated November 14, 2022, and the public review period started November 23, 2022, both of which is prior to the formal adoption of the 2022 Scoping Plan on December 15, 2022. Therefore, it would have been impossible for the Draft IS/MND to consider measures in the 2022 Scoping Plan as the final measures were unknown at that time. (See A Local & Regional Monitor v. City of Los Angeles (“City of LA”) (1993) 12 Cal.App.4th 1773, 1801 ["F[airness and the need for finality” require that the adequacy of a CEQA document “be measured against those regulations in effect” when it was presented for public review]; CEQA Guidelines § 15007.)

9 See, e.g., Website: https://www.mdaqmd.ca.gov/home/showpublisheddocument/ 8510/637406182097070000 at p. 9.

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Comment DRURY-6
The commenter discusses the Draft IS/MND’s analysis of energy. The commenter states that CEQA requires projects to include measures to reduce wasteful energy consumption and define energy conservation as wise and efficient use of energy achieved by decreasing per capita consumption, reducing reliance on fossil fuels, and increasing reliance on renewable resources.

The commenter further states that compliance with building energy efficiency standards alone is not enough and cites recent court rulings that have emphasized the need to consider all feasible renewable energy options. The comment claims that the Draft IS/MND for the project evaluated the utility provider's energy mix but did not adequately consider feasible measures to reduce fossil fuel consumption.

Response to DRURY-6
The commenter cites no evidence specific to the proposed project to support the claim that the proposed project is wasteful, inefficient, or results in unnecessary consumption of energy warranting mitigation. The Draft IS/MND does not merely rely on compliance with Title 24 to determine impacts, and the commenter does not state what other regulations the Draft IS/MND did not consider. As shown in Appendix D, Energy Calculations, the Draft IS/MND included a detailed calculation of the proposed project’s energy consumption during construction and operation and considered and disclosed to the public all potential sources of energy demand. Therefore, the proposed project has disclosed all potential project energy impacts, and no other energy regulations or policies would be applicable to the project. The commenter is incorrect that the proposed project must consider feasible mitigation measures to reduce energy impacts because the project would result in less than significant impacts to energy resources. As described in the Draft IS/MND, the proposed project would not conflict or obstruct applicable policies related to energy efficiency. Environmental documents are not required to discuss mitigation measures for insignificant environmental impacts. A discussion of mitigation measures is only required for significant environmental effects (PRC § 21100(b)(3); CEQA Guidelines § 15126.4(a)(3)). For example, in North Coast Rivers Alliance v. Marin Mun. Water Dist. (2013) 216 CA4th 614, 649, the court held that an EIR was not required to discuss green energy credits as a mitigation measure for energy impacts where the environmental document determined that the project's energy impacts would be less than significant. As evaluated and disclosed in the Draft IS/MND, impacts would be less than significant and no further mitigation is required. Nonetheless, the analysis is expanded below to address concerns raised by the commenter. Considering the guidance provided by Appendix F of the CEQA Guidelines and the Appellate Court decision in League to Save Lake Tahoe Mountain etc. v. County of Placer (2022) 75 Cal.App.5th at pp. 164-168, the proposed project would be considered to result in wasteful, inefficient, or unnecessary consumption of energy resources if it would conflict with the following energy conservation goals:
• Decreasing overall per capita energy consumption;
• Decreasing reliance on fossil fuels such as coal, natural gas, or oil; and • Increasing reliance on renewable energy sources.
11 Responses to
Comments
Decreasing Overall Per Capita Energy Consumption
The project site is located in an urban area near existing OCTA transit routes as well as highways, and the project would provide bicycle lockers for resident use, as a result, the proposed project would not lead to excessive fuel consumption due to mobile vehicle use. As a mixed-use project the proposed land uses would serve multiple functions and lead to lower Vehicle Miles Traveled (VMT) compared to the majority of existing development in the region. As such, the proposed project would not increase per capita energy consumption or conflict with efforts being made to decrease overall per capital energy consumption in the region.

Decreasing Reliance on Fossil Fuels
As described in the Draft IS/MND Project Description, the proposed project would include four EV charging spaces and bicycle lockers for resident use, which would allow for the use of Zero-Emission Vehicles (ZEVs) and alternative transportation methods that would not generate energy demand.

Moreover, the Draft IS/MND disclosed all of the renewable power options available to the proposed project, including how Southern California Edison (SCE), the applicable utility provider, would meet California’s Renewable Portfolio Standard (RPS) of 60 percent by 2030 and carbon-free electricity by 2045. Therefore, the proposed project would decrease reliance on fossil fuels.

Increasing Reliance on Renewable Energy Sources
The proposed project would be served by SCE, which as mentioned previously, is on track to meet the RPS of 60 percent of electricity served by 2030 would be carbon-free. SCE also offers the SCE Green Rate 50 Percent option, which includes 67.5 percent eligible renewable (geothermal, solar, and wind), 4 percent large hydroelectric, 8.1 percent natural gas, 4.1 percent nuclear and 16.3 percent unspecified sources of power, and the SCE Green Rate 100 Percent option, which includes 100 percent eligible renewable (solar).10 In addition, the proposed project would comply with all applicable rules and regulations, including building code requirements that are aimed to increase reliance on renewable energy sources. As such, the proposed project would facilitate a greater dependance on renewable energy sources and would not conflict with any efforts being made to increase reliance on renewable energy sources. Therefore, the proposed project would be consistent with this criterion.

Comment DRURY-7
This comment claims that the Draft IS/MND fails to address and mitigate potential adverse impacts associated with hazardous materials. The comment claims that there was a release of tetrachloroethene (PCE) from a dry cleaning business located at the project site, and that additional environmental investigation activities were performed at the site in 2022 but not disclosed in the Draft IS/MND. The commenter claims a mitigation measure should be prepared that requires the applicant to submit a copy of the Department of Toxic Substances Control (DTSC) letter of No Further Action to the City prior to the issuance of building permits. The 10 See, e.g., Website: https://www.mdaqmd.ca.gov/home/showpublisheddocument/ 8510/637406182097070000 at p. 9.

12 Responses to
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comment states an EIR must be prepared to evaluate and mitigate these impacts until these corrective actions are taken.

Response to DRURY-7
As discussed in Section 5.9, Hazards and Hazardous Materials, of the Draft IS/MND it is disclosed that the PCE release from the prior dry cleaning use occurred and was discovered in a 1999 soils investigation.

Furthermore, the current property owner entered into a Voluntary Cleanup Agreement with DTSC in November 2017 for assessing and remediating the PCE at the project site. Furthermore, MM HAZ-1 requires the Owner/Developer to retain a hazards specialist to conduct biweekly site visits to observe for areas of possible contamination. Should any hazardous materials be encountered, MM HAZ-1 requires notification and coordination with Orange County Health Care Agency (OCHCA).

OCHCA provided a comment letter, dated December 14, 2022, during the public review period of the Draft IS/MND. As requested by OCHCA, MM HAZ-1 was modified to include the contact information for the Orange County Solid Waste–LEA Supervisor and the Environmental Health Main Line, should hazardous materials be encountered.

It should be noted that the developer has been working with the DTSC for several years to ensure the site is properly treated for environmental risks. There were several testing bores drilled through the site, with soil samples taken from 10 to 35 inches at 5-inch increments. Groundwater testing indicated that the groundwater is clean for residential construction. Therefore, any potential environmental risks for this site were adequately explored and the current remediation plan in place is adequate to ensure the health of the future occupants.

Comment DRURY-8
The commenter claims that an EIR is required to evaluate new significant environmental effects.

Specifically, the commenter notes that indoor air emissions would result in significant impacts related to indoor air quality, particularly formaldehyde emissions. The commenter recommends various mitigation measures to reduce these impacts, including installing high-capacity air filters throughout the building and using only ARB approved no-added formaldehyde (NAF) resins or ultra-low emitting formaldehyde (ULEF) resins for all the building's interior spaces. The commenter states the City is required to prepare an EIR to evaluate and mitigate these impacts.

Response to DRURY-8
As an initial matter, CEQA is concerned with the potential adverse effects of the project on the environment. Notably, in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 C4th 369, 377, the California Supreme Court held that CEQA does not require an agency to consider the effects of existing environmental conditions on a proposed project's future users or residents. The Court reasoned that CEQA requires analysis of the impacts of a project on the environment, including whether a project could exacerbate hazards that are already present, but not impacts of the environment on a project. The Court specifically found that the effects of existing air pollution on future residents are not impacts that are required under CEQA’s evaluations. Accordingly,

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impacts of the environment on the project are not impacts under CEQA unless the project would exacerbate risks. As demonstrated in the Draft IS/MND the proposed project would be consistent with all applicable regulations pertaining to building materials and therefore would not exacerbate any risks.

Accordingly, none of the various mitigation measures suggested by commenter are necessary or required.

SAFER’s conclusion that “there is substantial evidence of a fair argument that the project will have significant adverse indoor air quality and health impacts,” presupposes that formaldehyde-containing composite wood products will be used in building materials as part of the project, particularly for all interior finish systems. The project proponent has not commissioned (and does not intent to commission) the use of formaldehyde-containing composite wood products in project building materials.

Consequently, the conclusion that there are significant impacts related to indoor formaldehyde emissions warrant additional evaluation and mitigation under CEQA is based on a false assumption and should be rejected.

Moreover, Mr. Offerman’s comments regarding potential effects on future residents significantly overestimates the amount of daily formaldehyde exposure that might occur from the proposed project.

Moreover, the conclusions are based on the following inaccurate exposure assumptions: (1) that the proposed project will not comply with applicable laws and regulations such the California Composite Wood Products Regulation (California CWP Regulation) or United States Environmental Protection Agency (EPA) Toxic Substances Control Act Title IV Regulation; (2) that the formaldehyde daily emissions from construction materials would be constant over 45 years; (3) that residents would have continuous exposure and would inhale 20 cubic meters of air per day and live in the proposed project for an average 70-year lifetime and occupy their units 24 hours per day 52 weeks per year; and (4) that the employees would work at the project site for eight hours per day, five days per week, 50 weeks per year for 45 years (starting at 20 years and retiring at age 65).

It is unreasonable to assume that applicable laws and regulations pertaining to building materials would not be followed. Formaldehyde in wood products is regulated by the California Code of Regulations, Title 17, Sections 93120 through 93120.12.1. The purpose of the Airborne Toxic Control Measure is to reduce formaldehyde emissions from composite wood products, and finished goods that contain composite wood products, that are sold, offered for sale, supplied, used, or manufactured for sale in California. All manufacturers of hardwood plywood, particleboard, and medium density fiberboard products must comply with the emission requirements of California Code of Regulations (CCR) Section 93120.2(a) as tested in accordance with ASTM E 1333. Thus, all wood products and finished goods used during construction of buildings in the State of California would be compliant with the emission standards as promulgated in the CCRs. The assumptions for both residents and employees are unreasonable, highly speculative and are not supported by empirical evidence. Thus, the comment substantially overestimates the amount of formaldehyde emissions to which future residents and employees could be exposed, as well as potential health impacts.

Commenter has failed to provide any credible or peer-reviewed studies which assess long-term indoor concentrations and associated lifetime exposure to formaldehyde in new homes and commercial spaces

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or provide a fair argument that the existing rules and regulations on formaldehyde in building materials are ineffective. The lead agency is within its discretion to find that the existing rules and regulations are robust and adequate to ensure that issues related to formaldehyde from building materials will not be an issue for indoor air quality for the proposed project. Compliance with relevant regulatory standards provides a reasonable basis for determining that the project will not have a significant environmental impact. Tracy First v City of Tracy (2009) 177 CA4th 912.

The commenter has not presented substantial evidence that the presence of formaldehyde in composite wood products would result in a significant impact for this project. Furthermore, formaldehyde is subject to extensive regulations to address human health and environmental impacts, and the project and any procured building materials would be subject to these regulations to minimize formaldehyde emissions.

Formaldehyde use in composite wood products is regulated by both the EPA and the ARB through the Formaldehyde Emission Standard for Composite Wood Products and the Composite Wood Products Airborne Toxic Control Measure, respectively. These regulations limit the amount of formaldehyde emissions from hardwood, plywood, particleboard, and medium density fiberboard panels, and finished goods, such as furniture and cabinets fabricated with those materials. In addition, as required by law, the proposed project would comply with CALGreen mandatory measures for building materials to limit formaldehyde emissions (e.g., CALGreen Section 4.504.5, Composite Wood Products, City of Orange Ordinance Numbers 10-19 and 06-22). All materials purchased for the construction of the project would be required to comply with these limits, which would reduce any potential impacts from formaldehyde emissions.

Furthermore, the following laws and regulations help control and reduce formaldehyde emissions from building materials:

Toxic Substances Control Act
The Toxic Substances Control Act provides the EPA with the ability to require reporting, testing, and recordkeeping requirements and restriction for chemical substances and mixtures. Toxic Substances Control Act (TSCA) Title VI regulates formaldehyde emissions from composite wood products. In addition, significant new uses of formaldehyde are regulated pursuant to Section 5(a)(2) of TSCA, which are listed at 40 Code of Federal Regulations Part 721, Subpart E.

California Hazardous Waste Control Law
The Hazardous Waste Control Law is the primary hazardous waste regulation in the State of California, and implements Resource Construction and Recovery Act (RCRA) as a “cradle-to-grave” waste management system for handling hazardous wastes in a manner that protects human health and the environment. The law specifies that generators have the primary duty to determine whether their waste is hazardous and to ensure proper management. The Hazardous Waste Control Law also establishes criteria for the reuse and recycling of hazardous waste used or reused as raw materials. The law exceeds federal requirements by mandating source reduction planning, and a much broader requirement for

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permitting facilities that treat hazardous waste. It also regulates a number of types of waste and waste management activities that are not covered by federal law.

Clean Water Act
The Clean Water Act (CWA) (Title 33 § 1251 et seq. of the United States Code [33 USC 1251, et seq.]) is the major federal legislation governing water quality. The CWA established the basic structure for regulating discharges of pollutants into waters of the United States (not including groundwater). The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” The CWA establishes the basic structure for regulating the discharge of pollutants into waters of the United States. Section 311(b)(2)(A) regulates release of hazardous substances, including formaldehyde. Formaldehyde is included on the list of designated hazardous substances (40 Code of Federal Regulations [CFR] 116.4), and a table of reportable quantities of hazardous substances along with liability provisions, applicability, and notice can be found at 40 Code of Federal Regulations 117.

Clean Air Act
Congress established much of the basic structure of the Clean Air Act in 1970 and made major revisions in 1977 and 1990. The air quality standards provide benchmarks for determining whether air quality is healthy at specific locations and whether development activities will cause or contribute to a violation of the standards. The federal standards were set to protect public health, including that of sensitive individuals; thus, the EPA is tasked with updating the standards as more medical research is available regarding the health effects of the criteria pollutants. Primary federal standards are the levels of air quality necessary, with an adequate margin of safety, to protect the public health. Formaldehyde is designated as a hazardous air pollutant and regulated pursuant to national emissions standards of Section 112 of the Clean Air Act.

Comment DRURY-9
The commenter claims that the Draft IS/MND for the proposed project violates CEQA due to substantial evidence of potentially significant impacts on air quality, GHG, energy use, and hazardous materials, which the commenter claims the Draft IS/MND failed to mitigate adequately. The commenter states that the City of Orange Planning Commission should decline to adopt the Draft IS/MND and prepare an EIR for the proposed project.

Response to DRURY-9
The Draft IS/MND did provide substantial evidence that all potential impacts related to air quality, GHG, energy use, and hazardous materials were evaluated and disclosed. The commenter does not provide credible evidence that the proposed project would result in significant GHG, energy, air quality or hazardous materials impacts that would warrant additional environmental analysis or mitigation measures. The Draft IS/MND appropriately concluded that the proposed project would not result in any significant impacts when applying all existing laws, regulations, and requirements and identified mitigation measures. Further, the information provided by commenter does not identify any deficiencies or inadequacies in the Draft IS/MND’s analysis based on facts relevant to the proposed project that

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would warrant revisions or recirculation of the Draft IS/MND. Thus, the Draft IS/MND satisfies the environmental review requirements pursuant to CEQA, the State CEQA Guidelines, and the City’s policies for implementing CEQA.

See Responses to DRURY-2 through DRURY-8.

Comment DRURY-10
This commenter states that Baseline Environmental Consulting identified flaws in the analysis related to GHG, energy, air quality, and hazardous materials.

Response to DRURY-10
The commenter summarizes their view that the Draft IS/MND did not adequately analyze the proposed project’s impacts to GHG emissions, energy, air quality, and hazardous materials but does not provide specific examples of the alleged inconsistencies. Please refer to Responses to DRURY-2 through DRURY-9 for additional information about the Draft IS/MND’s air quality, GHG, energy, and hazardous materials analysis.

Comment DRURY-11
This commenter claims that the proposed project’s GHG emissions, which is considered less than significant in the Draft IS/MND, are based on an invalid threshold. The SCAQMD proposed a GHG significance threshold of 3,000 MT CO2e. The commenter claims this threshold is not valid for the proposed project because they believe it has not been adopted by any state or regional agencies, is not supported by substantial evidence, and does not meet the State's long-term climate action goals.

Response to DRURY-11
See Response to DRURY-5.

Comment DRURY-12
The commenter claims that the GHG emissions significance threshold of 3,000 MT CO2e per year was not adopted by any state or regional agencies. The commenter then describes how the City issued a memorandum recommending the use of the 3,000 MT CO2e per year threshold for residential/commercial projects, but they believe this threshold is not supported by substantial evidence.

Response to DRURY-12
As the commenter describes, the Draft IS/MND analyzed the proposed project’s GHG emissions against the City of Orange’s Guidance for Greenhouse Gas Emissions Analysis memorandum11, which is the most

11 City of Orange. 2020. Guidance for Greenhouse Gas Emissions Analysis. March 24. Website:
https://cityoforange.prod.govaccess.org/home/showpublisheddocument/44/637707607308500000. Accessed March 13, 2023.

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applicable threshold available. The commenter is incorrect that the SCAQMD 3,000 MT CO2e threshold is not based on substantial evidence, as described in Response to DRURY-5. Furthermore, the commenter does not present a more appropriate threshold.

Comment DRURY-13
This commenter states that the GHG emissions threshold varies on approach, the 90 percent market capture approach and the gap-based approach. The Working Group recommends a GHG emissions threshold of 3,000 MT CO2e per year for GHG emissions is based on a 90 percent market capture approach. The commenter states that other agencies have adopted different GHG thresholds, including the California Air Pollution Control Offices Association (900 MT CO2e), the Sacramento Metropolitan Air Quality Management District (1,100 MT CO2e), the Bay Area Air Quality Management District (1,100 MT CO2e), the San Luis Obispo County Air Pollution Control District (1,150 MT CO2e), and the County of San Diego (2,500 MT CO2e).

Response to DRURY-13
As described in Response to DRURY-5, the Draft IS/MND used the most appropriate and applicable threshold recommended by the City of Orange and the SCAQMD.

Comment DRURY-14
This commenter claims the SCAQMD did not adopt the recommended threshold of 3,000 MT CO2e due to lack of consensus among the Working Group on the scientific approach and numerical values, as well as concerns that an efficiency-based threshold or separate sector thresholds may be more appropriate. The commenter suggests that the approach used in the Draft IS/MND is not supported by substantial evidence and is now outdated because it does not account for current projections in long-term market growth.

Response to DRURY-14
See Response to DRURY-5.

Comment DRURY-15
This commenter asserts that the Draft IS/MND’s analysis of carbon neutrality is inadequate. The commenter believes that the Draft IS/MND's analysis of the project's GHG emissions based on the numeric threshold of 3,000 MT CO2e is inadequate because it fails to demonstrate how the project would meet the State’s long-term climate action goal of carbon neutrality by 2045. The commenter states the analysis should focus on incorporating design elements or performance standards that support carbon neutrality.

Response to DRURY-15
See Response to DRURY-5 regarding the adequacy of the GHG emissions analysis provided in the Draft IS/MND.

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Comment DRURY-16
This commenter asserts that the Draft IS/MND failed to evaluate consistency with ARB's current 2022 Scoping Plan. The commenter claims the Draft IS/MND conflicts with the GHG reduction strategies of the 2022 Scoping Plan, potentially having a significant impact on GHG emissions.

Response to DRURY-16
The commenter’s statement that the Draft IS/MND should evaluate the project’s impacts against the newly released 2022 Scoping Plan is incorrect because the Public Draft IS/MND is dated November 14, 2022, and the public review period started November 23, 2022, both of which is prior to the formal adoption of the 2022 Scoping Plan on December 15, 2022. Therefore, it would have been impossible for the Draft IS/MND to consider measures in the 2022 Scoping Plan as they were not publicly available.

Comment DRURY-17
This commenter asserts that the Draft IS/MND’s analysis of energy impacts is inadequate. The Draft IS/MND provides estimates of the project's construction and operational energy consumption and concludes that the project's energy impacts would be less than significant, based on compliance with Title 24 and implementation of mitigation measures. The commenter asserts that compliance with Title 24 does not adequately address potential energy impacts during project construction and operation.

Response to DRURY-17
Please refer to the Response to DRURY-6. The Draft IS/MND describes how the proposed project would be located in an urban area with existing transit, such as the OCTA bus stops along Garden Grove Boulevard and The City Drive South, which would reduce the use of passenger vehicles. As described in the Draft IS/MND Project Description, the proposed project would include four EV charging spaces and bicycle lockers for resident use, which would allow for the use of ZEVs and alternative transportation methods that would not generate energy demand and reduce per capita energy use and reliance on fossil fuels. Moreover, the Draft IS/MND disclosed all of the renewable power options available to the proposed project including how SCE, the applicable utility provider, would meet California’s RPS of 60 percent by 2030 and carbon-free electricity by 2045. As described in the Draft IS/MND, impacts related to energy consumption would not be wasteful or inefficient and no further mitigation would be required.

Therefore, the proposed project would allow for increasing reliance on renewable energy sources and would not result in the need for mitigation or renewable energy resources.

Comment DRURY-18
The commenter asserts that the Draft IS/MND’s analysis of air quality impacts are inadequate.

Specifically, the commenter claims that there are issues with the Draft IS/MND’s DPM emissions analysis. Furthermore, the commenter states that an HRA should be prepared for project construction and that the Draft IS/MND incorrectly used the SCAQMD’s LSTs.

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Response to DRURY-18
See Response to DRURY-4. The air quality analysis provided in the Draft IS/MND adequately analyzes potential health risk impacts to nearby sensitive receptors due to construction activity and a separate HRA would not be warranted. The impacts associated with DPM have not been “underestimated” because potential impacts from construction were adequately addressed in the Draft IS/MND and the nature of the proposed project’s operations would not warrant or trigger the need for an operational HRA. As described in Response to DRURY-4, residential and commercial mixed-use developments are not typically associated with substantial sources of TAC emissions, and the project would not generate TAC emissions that expose sensitive receptors to substantial health risks during project construction or operations. Consistent with the OEHHA guidelines, the nominal quantity of TAC emissions from the proposed land uses do not trigger the need for an HRA for operational activities.

Comment DRURY-19
This commenter asserts that the Draft IS/MND’s analysis of hazardous material impacts are inadequate. Specifically, the commenter raises concerns that the Indoor Air Quality Assessment was not reviewed and approved by the DTSC, and the Draft IS/MND did not properly disclose the additional investigation activities performed on-site. The commenter recommends that the findings from the most recent environmental investigations be disclosed, and a mitigation measure be prepared to require the applicant to submit a copy of the DTSC letter of No Further Action prior to the issuance of building permits.

Response to DRURY-19
Assessment of the historical Cecilia’s Cleaners located on the proposed project property has been conducted under a Voluntary Cleanup Agreement with the DTSC since 2017. As stated in the Draft IS/MND, Indoor Air Quality Investigation Report indicated that a DTSC-approved workplan was prepared for the project site dated March 12, 2018, which concluded that PCE was not present in indoor air at concentrations above its residential or commercial/industrial DTSC-Recommended screening level (SL).

On December 21, 2022, SCS Engineers submitted to DTSC an Additional Investigation and Human Health Risk Assessment Report. This report summarizes the findings of soil, soil vapor, and groundwater sampling at the proposed project property. The investigation activities have addressed all DTSC requests for site characterization sampling. Based on communication with DTSC’s Project Manager, Mr. Nicholas Ta, and DTSC’s technical support staff assigned to the case, requests for further site investigation are not warranted and have not been requested.

The Additional Investigation and Human Health Risk Assessment Report documents that chemical concentrations in soil do not represent a risk to groundwater or human health. The report contains the results of a Screening Level Human Health Risk Assessment (SL-HHRA), which evaluated potential soil vapor exposure pathways to construction (trench) workers during the planned redevelopment project.

Based on the results of the SL-HHRA, no significant health risks to construction workers were identified.

The SL-HHRA also evaluated vapor intrusion risk scenarios for the proposed project. The proposed project calls for the construction of three levels of underground parking garage, which will entirely

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underlie the residential structures. The parking garages, which will be constructed in accordance with building code ventilation requirements, disrupt the pathway into the overlying structures.

Based on multiple lines of evidence, including soil sampling, evaluation of volatile organic compounds (VOCs) in soil vapor both vertically and laterally, groundwater sampling, and indoor air quality sampling at the existing building, SCS concluded that there was no significant risk to human health, risk to groundwater, or risk of vapor intrusion. According to the latest communication from DTSC, the project proponent expects that a conditional “No Further Action” (NFA) letter will be issued in the near future, and well before any building permits are to be issued. The only expected condition to the NFA is expected to be that the redevelopment project be constructed with the proposed multi-level underground parking garage. If the nature of the project were to change such that the project were not to include said parking garage, DTSC will require notification and additional consideration under the revised development plan would be required. Since a NFA findings is expected in the near future and the matter will be open for public comment prior to being finalized, and the finding of NFA under the site- specific redevelopment plan does not call for mitigation measures outside of already-necessary building code measures with which the project must comply, the contention that a full EIR must be prepared to further evaluate and/or mitigate impacts related to hazardous materials should be rejected.

The commenter does not provide substantial evidence that future occupants would be exposed to substantial concentrations of hazardous chemicals from vapor intrusion. The site-specific redevelopment plan does not call for mitigation measures outside of already-necessary building code standards with which the project must comply, the contention that a full EIR must be prepared to further evaluate and/or mitigate impacts related to hazardous materials should be rejected. Compliance with applicable regulations would ensure indoor air quality impacts are less than significant. No additional mitigation measures are needed.

Comment DRURY-20
The commenter concludes that there is a fair argument that the project may have a significant effect on the environment related to GHG emissions, energy, air quality, and hazardous materials. The commenter concludes that the City of Orange prepare an EIR to address environmental concerns.

Response to DRURY-20
The Draft IS/MND determined that impacts to air quality, energy, GHG emissions, and hazardous materials would be less than significant with mitigation incorporated based on the technical analyses conducted for the project. Since the project would result in either no impacts or less than significant impacts to air quality, energy, GHG emissions, and hazardous materials, the level of impacts does not justify the preparation of an EIR. Comments relating to project approval will be forwarded to the City Council for consideration.

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Comment DRURY-21
The commenter highlights the importance of indoor air quality in buildings including adequate ventilation and reduction of indoor sources of contaminants.

Response to DRURY-21
The Draft IS/MND accurately determined that the project would not generate significant indoor air quality impacts with implementation of State and SCAQMD rules and regulations.

Comment DRURY-22
The commenter expresses concern for indoor formaldehyde concentration impacts. Specifically, the commenter states that the California New Home Study found that formaldehyde was the indoor air contaminant with the highest cancer risk in new homes, and all homes exceeded the daily intake level that would result in one excess case of cancer in an exposed population of 100,000. The commenter states that formaldehyde is primarily emitted from composite wood products used in building construction. The commenter states that while a follow-up study found that homes built with ARB Phase 2 Formaldehyde Airborne Toxic Control Measures (ATCM) materials had lower indoor formaldehyde concentrations, the median lifetime cancer risk is still 120 per million, which the commenter claims is more than 12 times the cancer risk threshold established by OEHHA.

Response to DRURY-22
See Response to DRURY-8.

Comment DRURY-23
The commenter expresses concern that residents will potentially have continuous exposure to formaldehyde released by the building materials and furnishing commonly found in residential construction which could result in significant cancer risks.

Response to DRURY-23
Please see Response to DRURY-8.

The comments provided in Exhibit B did not utilize standard modeling procedures provided by the ARB and OEHHA to calculate cancer risk, and did not account for the fact that all building products will need to meet both California Phase 2 formaldehyde compliant standards and the EPA TSCA Title VI formaldehyde regulations. In addition, the Exhibit B comments did not account for the fact that the proposed project is required, per Section 150.0(m)12.C of the 2022 Building Energy Efficiency Standards (also known as Title 24), to install in each residential unit a positive static pressure forced air heating, ventilation, and air conditioning (HVAC) system that is equipped with high efficiency Minimum Efficiency Reporting Values (MERV) 13 air filters, which will reduce the formaldehyde concentrations by an additional 15 to 52 percent over traditional air filters. Based on these modeling inputs reflecting State

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and federal requirements, the City appropriately determined that there would be a less than significant impact related to interior formaldehyde concentrations. The commenter’s claim is not supported by substantial evidence and does not constitute a fair argument that the proposed project would have an airborne cancer risk impacts caused by formaldehyde.

Comment DRURY-24
The commenter expresses concern for employees who work in commercial spaces may be exposed to significant levels of formaldehyde, which could result in a higher risk of cancer. The commenter suggests that an EIR should be conducted, and feasible mitigation measures should be implemented to reduce this risk.

Response to DRURY-24
Please see Response to DRURY-8 and DRURY-23.

Comment DRURY-25
The commenter notes that the indoor formaldehyde exposures will increase the pre-existing cancer risk resulting from outdoor formaldehyde exposures, as well as exacerbate the existing cancer risk at the project site due to high levels of vehicle traffic. The commenter claims that the use of ARB Phase 2 Formaldehyde ATCM materials does not ensure acceptable cancer risks, and only composite wood products made with NAF resins can ensure that the OEHHA cancer risk of 10 per million is met.

Response to DRURY-25
See Response to DRURY-8 and DRURY-23.

Comment DRURY-26
The commenter suggests a design analysis be conducted before construction to determine whether the formaldehyde emissions of specific building materials/furnishings selected exceed cancer and non-cancer guidelines. This would allow alternative lower-emitting materials/furnishings to be selected or higher minimum outdoor air ventilation rates to be increased as mitigation measures to achieve acceptable indoor concentrations and incorporated into the project prior to the completion of the City’s CEQA review and project approval.

Response to DRURY-26
See Response to DRURY-8 and DRURY-23. Based on the project’s analysis of indoor air quality impacts, additional assessment is not warranted.

Comment DRURY-27
The commenter suggests that an assessment of formaldehyde emissions should be used in the environmental review to assess indoor formaldehyde concentrations from proposed building

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materials/furnishings. This assessment should be used in the environmental review process to determine whether the emissions will exceed cancer and non-cancer guidelines, and if necessary, make changes to the material/furnishing selection or design minimum outdoor air ventilation rates to prevent guideline exceedance. This assessment should be conducted before finalizing material/furnishing selection, purchase, and installation.

Response to DRURY-27
See Responses to DRURY-8 and DRURY-23.

Comment DRURY-28
The commenter suggests dividing the building into Indoor Air Quality Zones (IAQ Zones) for effective assessment of formaldehyde emission rates from construction materials/furnishings.

The commenter proposes that each ventilation system with recirculating air should be considered as a single zone, and each room or group of rooms with 100 percent outdoor air as a separate zone. IAQ Zones with the same construction materials and design outdoor air ventilation rates can be assessed for formaldehyde emission rates for a single IAQ Zone of that type.

Response to DRURY-28
As detailed in Responses to DRURY-8 and DRURY-23, the comments provided in Exhibit B are not supported by substantial evidence and do not constitute a fair argument that the proposed project would have an airborne cancer risk impact caused by formaldehyde. Furthermore, the suggested assessment methods are not supported by standard modeling procedures established by the ARB or SCAQMD’s thresholds. Therefore, the suggested assessments are not warranted.

Comment DRURY-29
The commenter recommends determining the material and furnishing loadings for each IAQ Zone by conducting an inventory of potential indoor formaldehyde sources, including flooring, ceiling tiles, furnishings, finishes, insulation, sealants, adhesives, and any products constructed with composite wood products containing urea-formaldehyde resins.

Response to DRURY-29
See Response to DRURY-28.

Comment DRURY-30
The commenter suggests calculating the formaldehyde emission rate for each building material and furnishing by multiplying the area-specific or unit-specific formaldehyde emission rate with the area of material or the number of units in the IAQ Zone, respectively.

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Response to DRURY-30
See Response to DRURY-28.

Comment DRURY-31
The commenter notes that most manufacturers of building materials and furnishings in the United States conduct chemical emission rate tests using recognized testing methods and certifications, which provide data that the formaldehyde emission rates do not exceed the maximum allowed for the certification. The commenter claims that these certifications do not provide the actual area-specific formaldehyde emission rate but can be used as an initial estimate.

Response to DRURY-31
See Response to DRURY-8, DRURY-23, and DRURY-28.

Comment DRURY-32
The commenter claims that if the actual area-specific emission rates of a building material or furnishing is needed, the data can be acquired by requesting the complete chemical emission rate test report from the manufacturer. The commenter claims that the complete California Department of Public Health (CDPH) emission test report provides actual emission rates for a range of chemicals, including formaldehyde, listed in various safety guidelines.

Response to DRURY-32
See Response to DRURY-8, DRURY-23, and DRURY-28. The analysis provided in the Draft IS/MND was based on modeling inputs reflecting State and federal requirements. Therefore, no further analysis is required.

Comment DRURY-33
The commenter suggests an alternative to the complete CDPH emission test is to submit samples of building materials or furnishings to chemical emission rate testing laboratories.

Response to DRURY-33
See Response to DRURY-8, DRURY-23, and DRURY-28. As described previously, it has been appropriately determined that there would be a less than significant impact related to interior formaldehyde concentrations. Formaldehyde is regulated by both the EPA and the ARB and is required to comply with the applicable laws and regulations outlined in Response to DRURY-8. Therefore, no further analysis is required.

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Comment DRURY-34
The commenter suggests that for each IAQ Zone, the total formaldehyde emission rate should be calculated from the individual formaldehyde emission rates from each building materials or furnishings as determined in Response to DRURY-30.

Response to DRURY-34
See Response to DRURY-33. No further analysis of formaldehyde warranted.

Comment DRURY-35
The commenter suggests that for each IAQ Zone, the indoor formaldehyde concentration should be calculated from the total formaldehyde emission rates as determined in Response to DRURY-34.

Response to DRURY-35
See Response to DRURY-33. No further analysis of formaldehyde is warranted.

Comment DRURY-36
The commentor suggests that for each IAQ Zone, the indoor exposure cancer and non-cancer health risks should be calculated from the indoor formaldehyde concentrations as determined in Response to DRURY-35.

Response to DRURY-36
See Response to DRURY-33. No further analysis of formaldehyde is warranted.

Comment DRURY-37
The commenter suggests that for each IAQ Zone, source and/or ventilation mitigation should be provided for any formaldehyde exposure risk, as determined in Response to DRURY-36, that exceeds the CEQA cancer risk of 10 per million or the CEQA non-cancer Hazard Quotient of 1.0.

Response to DRURY-37
See Response to DRURY-33. No further analysis of formaldehyde is warranted.

Comment DRURY-38
The commenter notes the most cost-effective way to reduce formaldehyde emissions is by using fewer materials/furnishings or using those with lower emissions.

Response to DRURY-38
As detailed in Response to DRURY-23, it has been appropriately determined that there would be a less than significant impact related to interior formaldehyde concentrations. Therefore, additional action is not required.

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Comment DRURY-39
The commenter suggests during the design stage, builders should select composite wood materials based on the formaldehyde emission rates to ensure that the materials selected achieve acceptable cancer risks from material off-gassing of formaldehyde.

Response to DRURY-39
As detailed in Response to DRURY-8 and DRURY-23, formaldehyde is regulated by both the EPA and the ARB and is required to comply with the applicable laws and regulations outlined in Response to DRURY-

8. No further action is required.

Comment DRURY-40
The commenter states the California New Home Study (CNHS) found that outdoor air ventilation rates in homes were very low. The median 24-hour measurement was 0.26 air changes per hour (ach), with 67 percent of homes having outdoor air exchange rates below the minimum California Building Standards Code requirement of 0.35 ach, resulting in higher indoor air contaminant concentrations.

Response to DRURY-40
This comment does not raise any new concerns related to the proposed project’s air quality impacts or the analysis conducted as part of the Draft IS/MND. Therefore, this comment does not warrant any additional analysis.

Comment DRURY-41
The commenter states the project site is located near high traffic roads which make it a sound impacted site with noise levels ranging from 66.6 A-weighted decibel (dBA) to 68.3 dBA Community Noise Equivalent Level (CNEL). Because of the high noise levels, a mechanical supply of outdoor air ventilation will be required to maintain a habitable interior environment with closed windows and doors, enabling occupants to control exterior noise within the building interiors.

Response to DRURY-41
To analyze the project’s specific noise and groundborne vibration impacts, noise calculations were prepared for the proposed project and are included in Appendix H of the Draft IS/MND. The analysis determined that the project’s construction noise, construction traffic noise, operation traffic noise, and groundborne vibration impacts would be less than significant with mitigation incorporated and would not exceed any applicable thresholds. Therefore, the proposed project would not result in a significant noise impact.

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Comment DRURY-42
The commenter suggests that the nearby motor vehicle traffic associated with the project will impact the outdoor concentrations of PM2.5, which exceeds the California and National PM2.5 annual and 24-hour standards. The commenter recommends the installation of high efficiency air filters in all mechanically supplied outdoor air ventilation systems.

Response to DRURY-42
Potential impacts to future residents of the project due to existing air pollution is not a project impact for purposes of CEQA. (California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 C4th 369, 377.

Further, the Air Quality and Greenhouse Gas Supporting Information provided in Appendix A of the Draft IS/MND provides an estimate of the PM2.5 concentration at the project site from all cumulative sources.

Pursuant to the 2022 Building Energy Efficiency Standards, the proposed project is required to install a positive static pressure forced air HVAC systems that are equipped with high efficiency MERV 13 air filters with an outside air intake that will be installed in each residential unit. As such, the commenter’s recommendation for the type of air filtration system to be installed in the proposed project is already required by State regulations.

Comment DRURY-43
The commenter recommends the use of ARB-approved NAF resins for all interior finish systems to mitigate indoor formaldehyde concentrations to ensure that the OEHHA cancer risk of 10 per million is met.

Response to DRURY-43
As detailed in the responses above, the commenter’s assertion that a significant impact would occur from formaldehyde is based upon flawed assumptions and calculations. Impacts related to formaldehyde emissions would be less than significant. As such, no reduction or mitigation measures for formaldehyde are required.

Comment DRURY-44
This commenter suggests an alternative to Response to DRURY-41 by conducting a Pre- Construction Building Material/Furnishing Chemical Emissions Assessment to ensure that formaldehyde emissions from building materials and furnishings do not exceed CEQA cancer and non-cancer health risks. The commenter recommends selecting composite wood materials based on formaldehyde emission rates and conducting the assessment at the design stage to achieve acceptable cancer risks from material off-gassing of formaldehyde.

28 Responses to
Comments
Response to DRURY-44
As detailed in the responses above, the commenter’s assertion that a significant impact would occur from formaldehyde is based upon flawed assumptions and calculations. Impacts related to formaldehyde emissions would be less than significant. As such, no reduction or mitigation measures for formaldehyde are required.

Comment DRURY-45
The comment recommends providing each habitable room with a continuous mechanical supply of outdoor air that meets the California 2016 Building Energy Efficiency Standards, conducting testing and balancing to ensure the required amount of outdoor air is entering each room, and providing a manual for occupants or maintenance personnel that describes the purpose of the mechanical outdoor air system and its maintenance requirements.

Response to DRURY-45
Pursuant to the 2022 Building Energy Efficiency Standards, the proposed project is required to install a positive static pressure forced air HVAC systems that are equipped with high efficiency MERV 13 air filters with an outside air intake that will be installed in each residential unit. As such, the commenter’s recommendation for the type of air filtration system that should be installed in the proposed project is already required to be installed by State regulations.

Comment DRURY-46
The commenter suggests installing air filtration with a MERV 13 or higher to remove outdoor PM2.5 particles and reduce indoor concentrations to meet California and National standards. The air filters should be easily accessible and instructions on how to replace them should be included in the mechanical outdoor air ventilation system manual.

Response to DRURY-46
Pursuant to the 2022 Building Energy Efficiency Standards, the proposed project is required to install a positive static pressure forced air HVAC systems that are equipped with high efficiency MERV 13 air filters with an outside air intake that will be installed in each residential unit. As such, the commenter’s recommendation for the type of air filtration system that should be installed in the proposed project is already required to be installed by State regulations.

Responses to
Comments
Appendix A:

Comment Letter
Febr
uary 22, 2023
Via E
-mail
Re: Pla
nning Commission, Regular Session of February 23, 2023, Agenda Item No. 6.2; 840 The City Drive Apartments; Conditional Use Permit No. 3138-21; Major Site Plan Review No. 1040-21; Design Review No. 5030-21; Administrative Adjustment No. 0051-21; Mitigated Negative Declaration No. 1875-21 (City File No. 22-0718) Dear Honorable Members of the Planning Commission:

I am writing on behalf of Supporters Alliance for Environmental Responsibility (“SAFER”) regarding the Initial Study and Mitigated Negative Declaration (“IS/MND” or “MND”) prepared for the 840 The City Drive Apartments Project (“Project”), for Applicant SLR Orange Development, LLC (hereinafter the “Applicant”), including all actions related or referring to the demolition of an existing retail building and proposed construction of a new 225- unit mixed-use apartment development, open parking structure for the adjacent office complex use, related site improvements, and a reduction of 48 parking spaces and 670 square feet of open space, located at 840 The City Drive South.

SAFER is concerned that the MND prepared for the Project is legally inadequate.

SAFER’s review of the Project has been assisted by air quality experts Patrick Sutton, PE and Yilin Tian, Ph.D. of Baseline Environmental Consulting (“Baseline”), and certified industrial hygienist Francis “Bud” Offermann, PE, CIH. The expert comments of Baseline and Mr.

Offermann are attached as Exhibit A and Exhibit B, respectively.

After reviewing the MND, it is evident that it is inadequate and fails as an informational document. Also, there is a “fair argument” that the Project may have unmitigated adverse David Vazquez, Chair
Ernest Glasgow, Vice Chair
Davie Simpson, Commissioner
Rick Martinez, Commissioner
Jonathan Trapesonian, Commissioner
Planning Commission
City of Orange
300 E. Chapman Avenue
Orange, CA 92866
[email protected]
Monique Schwartz, Associate Planner
Community Development Department
City of Orange
300 E. Chapman Avenue
Orange, CA 92866
[email protected]
Pamel
a Coleman, City Clerk
City of Orange
300 E. Chapman Avenue
Orange, CA 92866
[email protected]
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Comments to the City of Orange Planning Commission
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February 22, 2023

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environmental impacts. Therefore, CEQA requires that the City of Orange (“City”) prepare an environmental impact report (“EIR”) for the Project, pursuant to the California Environmental Quality Act (“CEQA”), Public Resources Code section 21000, et seq. SAFER respectfully requests that you do not adopt the MND and instead undertake the necessary efforts to prepare an EIR, as required under CEQA.

GAL STANDARD
As
the California Supreme Court has held, “[i]f no EIR has been prepared for a nonexempt project, but substantial evidence in the record supports a fair argument that the project may result in significant adverse impacts, the proper remedy is to order preparation of an EIR.” (Communities for a Better Env’t v. South Coast Air Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 319-320 (CBE v. SCAQMD) (citing No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 88; Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 504–505).) “Significant environmental effect” is defined very broadly as “a substantial or potentially substantial adverse change in the environment.” (Pub. Res. Code (“PRC”) § 21068; see also 14 CCR § 15382.) An effect on the environment need not be “momentous” to meet the CEQA test for significance; it is enough that the impacts are “not trivial.” (No Oil, Inc., 13 Cal.3d at 83.) “The ‘foremost principle’ in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Communities for a Better Env’t v. Cal. Res.

Agency (2002) 103 Cal.App.4th 98, 109 (CBE v. CRA).)
T
he EIR is the very heart of CEQA. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1214 (Bakersfield Citizens); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927.) The EIR is an “environmental ‘alarm bell’ whose purpose is to alert the public and its responsible officials to environmental changes before they have reached the ecological points of no return.” (Bakersfield Citizens, 124 Cal.App.4th at 1220.) The EIR also functions as a “document of accountability,” intended to “demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.” (Laurel Heights Improvements Assn. v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 392.) The EIR process “protects not only the environment but also informed self-government.” (Pocket Protectors, 124 Cal.App.4th at 927.) A
n EIR is required if “there is substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment.” (PRC § 21080(d); see also Pocket Protectors, 124 Cal.App.4th at 927.) In very limited circumstances, an agency may avoid preparing an EIR by issuing a negative declaration, a written statement briefly indicating that a project will have no significant impact thus requiring no EIR (14 CCR § 15371), only if there is not even a “fair argument” that the project will have a significant environmental effect. (PRC §§ 21100, 21064.) Since “[t]he adoption of a negative declaration . . . has a terminal effect on the environmental review process,” by allowing the agency “to dispense with the duty [to prepare an EIR],” negative declarations are allowed only in cases where “the proposed project will not affect the environment at all.” (Citizens of Lake Murray v.

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San Diego (1989) 129 Cal.App.3d 436, 440.)
Unde
r the “fair argument” standard, an EIR is required if any substantial evidence in the record indicates that a project may have an adverse environmental effect—even if contrary evidence exists to support the agency’s decision. (14 CCR § 15064(f)(1); Pocket Protectors, 124 Cal.App.4th at 931; Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal.App.4th 144, 150-51; Quail Botanical Gardens Found., Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602.) The “fair argument” standard creates a “low threshold” favoring environmental review through an EIR rather than through issuance of negative declarations or notices of exemption from CEQA. (Pocket Protectors, 124 Cal.App.4th at 928.) The
“fair argument” standard is virtually the opposite of the typical deferential standard accorded to agencies. As a leading CEQA treatise explains:

Thi
s ‘fair argument’ standard is very different from the standard normally followed by public agencies in their decision making. Ordinarily, public agencies weigh the evidence in the record and reach a decision based on a preponderance of the evidence. [Citation]. The fair argument standard, by contrast, prevents the lead agency from weighing competing evidence to determine who has a better argument concerning the likelihood or extent of a potential environmental impact. (K
ostka & Zishcke, Practice Under the California Environmental Quality Act, §6.37 (2d ed. Cal.

CEB 2021).) The Courts have explained that “it is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency’s determination. Review is de novo, with a preference for resolving doubts in favor of environmental review.” (Pocket Protectors, 124 Cal.App.4th at 928 (emphasis in original).) I. There i
s Substantial Evidence of a Fair Argument That the Project Will have Significant Air Quality, Greenhouse Gas, Energy, and Hazardous Waste Impacts.

Air quality experts Patrick Sutton, PE and Yilin Tian, Ph.D. of Baseline Environmental Consulting (“Baseline”) reviewed the IS/MND and related documents for the Project. Baseline’s comments are attached as Exhibit A. Baseline found that there is substantial evidence of a fair argument that the Project will have significant air quality, greenhouse gas, energy, and hazardous waste impacts. Therefore, an EIR must be prepared to further evaluate and mitigate these impacts.

A. Air
Quality.

Ac
cording to the MND, project construction will produce emissions of toxic diesel particulate matter (“DPM”) and will last approximately one and a half years. (Ex. A., p. 6.).

However, the MND failed to include a quantified health risk assessment for the Project. This is directly contrary to guidance from the Office of Environmental Health Hazard Assessment DRURY

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(“OEHHA”), which provides that a health risk assessment (“HRA”) should be prepared for any project lasting substantially longer than two months.

Fu
rthermore, any future HRA “should be conducted to calculate the incremental increase in cancer risk for sensitive receptors (e.g., single‐family homes south of the southern project site boundary) exposed to diesel particulate matter emissions during project construction in accordance with the OEHHA guidance for sources with variable emission rates,” including by accounting for age and pregnancy status (Id.)
Addi
tionally, the MND suggests that “health risks from exposure to diesel particulate matter would not be significant because the project would not exceed the SCAQMD’s Localized Significance Thresholds (LSTs) for construction‐generated criteria pollutants.” (Id., p. 7.) However, as Baseline explains, “LSTs only apply to criteria air pollutants and were not designed to evaluate localized health risks from exposure to diesel particulate matter.” (Id.) CE
QA requires an analysis to determine whether a Project’s toxic air contaminant (“TAC”) emissions—including DPM emissions—will have potentially adverse impacts on human health. Sierra Club v. Cty. of Fresno (2018) 6 Cal. 5th 502, 518 (an EIR must make “a reasonable effort to substantively connect a project’s air quality impacts to likely health consequences.”) The failure to address potential health-related impacts resulting from the Project’s likely air emissions is problematic because operation of construction equipment during construction, as well as truck trips during future operations, will release DPM emissions into the air, affecting local and regional air quality.

DP
M is a known human carcinogen which poses unique health risks to nearby sensitive receptors.. DPM contains 40 toxic chemicals, including benzene, arsenic and lead. (www.p65warnings.ca.gov/fact-sheets/diesel-engine-exhaust.) DPM is also listed by t he State of California as a toxic air contaminant known to cause cancer in humans. (https://oehha.ca.gov/media/downloads/proposition-
65//p65chemicalslistsinglelisttable2021p.pdf.) According to the U.S. Environmental Protection Agency, “Exposure to diesel exhaust can lead to serious health conditions like asthma and respiratory illnesses and can worsen existing heart and lung disease, especially in children and the elderly. These conditions can result in increased numbers of emergency room visits, hospital admissions, absences from work and school, and premature deaths.” (https://www.epa.gov/dera/learn-about-imp
acts-diesel-exhaust-and-diesel-emissions-reduction-
act-dera).

Wi
thout an HRA, the MND’s conclusion that the Project will not have a significant impact on human health from the Project’s construction-related and operational DPM emissions is not supported by substantial evidence. An EIR must be prepared to further address and mitigate these impacts.

B. Green
house Gas Emissions.

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The MND states that the Project’s greenhouse gas (“GHG”) emissions impact would be less than significant because the Project’s estimated emissions rate is below the draft interim GHG threshold set by the South Coast Air Quality Management (“SCAQMD”). However, this finding is improper because SCAQMD has never formally adopted the interim threshold (Ex. A., p. 2.). Furthermore, the 3,000 MTCO2e annual GHG threshold fails to comply with the State’s long term climate goals, as detailed by the 2022 California Air Resources Board (“CARB”) Scoping Plan (Id.)
In
fact, neither the SCAQMD Governing Board, nor the California Air Resources Board or the California Air Pollution Control Officers’ Association – nor any state or regional agency – has adopted the 3000 MTCO2e annual GHG threshold. (Id.) The City issued guidance recommending use of the threshold in 2020; but this, too, is improper because the threshold is not supported by substantial evidence. (Id). In contrast, local and regional agencies throughout California have adopted significantly lower GHG thresholds, ranging from 900 to 2,500 MTCO2e (Id., p. 3.)
In accord
ance with the Supreme Court’s decision in Center for Biological Diversity v.

Department of Fish & Wildlife (2015) 62 Cal.4th 204, a project’s GHG emissions should be evaluated based on its effect on California’s efforts to meet the State’s long-term climate goals.

Pursuant to Executive Order B-55-18, California is committed to achieving carbon neutrality by 2045. However, the City has failed to evaluate to what extent, if any, the Project will contribute its “fair share” in GHG reductions that will be necessary to meet this ambitious goal. (Id., p. 4.) For i
nstance, the MND states that the project would be served with natural gas provided by Southern California Gas. However, the project “could replace natural gas with electric power which will support California’s transition away from fossil fuel–based energy sources and will bring the project’s GHG emissions associated with building energy use down to zero as the electric supply becomes 100 percent carbon free.” (Id.) Similarly, the “project could be designed to provide sufficient electric vehicle (EV) charging infrastructure beyond the CalGreen mandatory level to support the shift to zero-emission vehicles (e.g., implement the voluntary CalGreen Tier 2 EV charging standards). The ISMND does not evaluate and incorporate the use of all‐electric buildings or EV charging infrastructure into the project design.” (Id.) Las
tly, the MND fails to evaluate consistency with CARB’s 2022 Carbon Neutrality Scoping Plan, and instead only evaluates compliance with the 2017 Scoping Plan. (Id., p. 5.) This is improper because the 2022 Scoping Plan is the agency’s most current guidance.

Moreover, the 2022 Scoping Plan specifically identifies building decarbonization as a “key strategy for achieving California’s climate change mitigation and air quality goals.” (Id.) According to the 2022 Scoping Plan, “several studies estimate that the costs of constructing all‐ electric homes are lower than constructing mixed‐fuel new homes, primarily due to the avoided costs of fossil gas infrastructure at the building site, with cost savings in the range of $2,000 to $10,000 per unit.” (Id.)
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Accordingly, by “failing to evaluate building decarbonization methods such as an all- electric building design, the ISMND has not demonstrated consistency with the key GHG reduction strategies under the 2022 Scoping Plan.” (Id.) Therefore, there is a fair argument that the Project may have a significant GHG emissions impact. As such, an EIR must be prepared to more accurately account for and mitigate this impact.

C. En
ergy Use.

CEQA provides that all Projects must include mitigation measures “to reduce the wasteful, inefficient, and unnecessary consumption of energy.” (Pub. Res. Code § 21100(b)(3).) Energy conservation under CEQA is defined as the “wise and efficient use of energy.” (CEQA Guidelines, app. F, § I.) The “wise and efficient use of energy” is achieved by “(1) decreasing overall per capita energy consumption, (2) decreasing reliance on fossil fuels such as coal, natural gas and oil, and (3) increasing reliance on renewable energy resources.” (Id.) Mer
e compliance with the California Building Energy Efficiency Standards (Cal. Code Regs., tit. 24, part 6 (“Title 24”) does not constitute an adequate analysis of energy. League to Save Lake Tahoe, 75 Cal. App. 5th at 165; Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal. App. 4th 256, 264-65. Notably, in California Clean Energy v. City of Woodland, the court held unlawful an EIR’s energy analysis which relied solely upon compliance with Title 24 to conclude that energy impacts would be less than significant. California Clean Energy Committee v. City of Woodland (2014) 225 Cal. App. 4th 173, 209-13 (City of Woodland).

The co
urts have recently affirmed City of Woodland, explaining that even where “[an] EIR [has] determined the project’s impacts on energy resources would be less than significant,” a lead agency must still analyze implementation of all “renewable energy options that might have been available or appropriate for [a] project,” including to achieve 100 percent on-site renewable power generation. (League to Save Lake Tahoe Mountain Area Preservation Foundation v.

County of Placer (2022) 75 Cal.App.5th 63, 166-67.) Furthermore, the court explained, a lead agency’s failure to consider implementation of all feasible renewable energy proposals raised during the environmental review process constitutes a “prejudicial error.” (Id. at 168.) Her
e, the MND “evaluates the local utility provider’s energy mix, including the percentages of eligible renewable, but fails to adequately consider feasible design features or mitigation measures to reduce the project’s fossil fuel consumption, such as eliminating natural gas heating and appliances, installing rooftop solar panels, or installing EV charging infrastructure that exceeds the minimum Title 24 requirements.” (Ex. A., p. 6.) Therefore, the MND’s energy impacts analysis is inadequate and its conclusion that the Project’s energy impacts will be less than significant is unsupported. Stated otherwise, there is substantial evidence of a fair argument that the Project will have a significant energy impact and an EIR is required.

D. Haz
ardous Materials.

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According to the MND, a dry-cleaning business was located at the residential portion of the Project site from at least 1989 until 2012. Accordingly, a “release of tetrachloroethene (PCE) from the dry cleaning service has affected soil and soil gas at the project site.” (Ex. A., p. 7).

Therefore, in 2017, “the current property owner entered into a Voluntary Cleanup Agreement with the Department of Toxic Substances Control (DTSC) for assessing and remediating the PCE at the project site.” (Id.) However, “according to the DTSC EnviroStor database, it does not appear that the Indoor Air Quality Assessment has been reviewed and approved by DTSC.” (Id.) Finally, “It also appears that additional environmental investigation activities were performed at the project site in October and September 2022 to further evaluate the chemical quality of soil gas and groundwater, but the results of those investigation activities were not disclosed in the ISMND.” (Id.)
The
findings from the most recent environmental investigations at the project site should be disclosed in the ISMND for public review. In addition, DTSC should review and approve the findings of all investigative reports and issue a letter of No Further Action prior to the issuance of buildings permits. Accordingly, “To ensure that future residents, workers, and patrons are not exposed to substantial concentrations of hazardous chemicals from vapor intrusion, a mitigation measure should be prepared that requires the applicant to submit a copy of the DTSC letter of No Further Action to the City prior to the issuance of buildings permits.” (Id.) Un
less and until these corrective actions are taken, there is substantial evidence of a fair argument that the Project will have significant hazardous waste impacts which may continue to affect the environment and the health of future residents. Therefore, an EIR must be prepared to further evaluate and more appropriately mitigate these impacts.

II. The
re is Substantial Evidence of a Fair Argument That the Project Will Have Significant Adverse Indoor Air Quality and Health Impacts.

Certified Industrial Hygienist, Francis “Bud” Offermann, PE, CIH, has reviewed the MND and all relevant documents regarding the Project’s indoor air emissions. Based on this review, Mr. Offermann concludes that the Project will likely expose future residents living at the Project to significant impacts related to indoor air quality, and in particular, emissions of the cancer-causing chemical formaldehyde. Mr. Offermann is a leading expert on indoor air quality and has published extensively on the topic. Mr. Offermann’s CV and expert comments are attached as Exhibit B.

For
maldehyde is a known human carcinogen and is listed by the State of California as a Toxic Air Contaminant (“TAC”). The South Coast Air Quality Management District (“SCAQMD”), the agency responsible for regulating air quality within the South Coast Air Basin—which includes the City of Orange—has established a cancer risk significance threshold from human exposure to carcinogenic TACs of 10 per million. (Ex. B., p. 2.) Mr
. Offermann explains that many composite wood products routinely used in indoor building materials and furnishings commonly found in offices, residences, and hotels contain DRURY

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formaldehyde-based glues which off-gas formaldehyde over long periods of time. He states that “[t]he primary source of formaldehyde indoors is composite wood products manufactured with urea-formaldehyde resins, such as plywood, medium density fiberboard, and particleboard.

These materials are commonly used in building construction for flooring, cabinetry, baseboards, window shades, interior doors, and window and door trims.” (Id., pp. 2-3.) Mr.

Offermann concludes that future residents of the proposed Project will be exposed to a cancer risk from formaldehyde of approximately 120 per million, even assuming compliance with the California Air Resources Board’s formaldehyde airborne toxics control measure. (Id., p.

4.) This risk level is 12 times greater than the SCAQMD’s CEQA significance threshold for airborne cancer risk of 10 per million.

The
California Supreme Court has emphasized the importance of air district significance thresholds in providing substantial evidence of a significant adverse environmental impact under CEQA. (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 327 [“As the [South Coast Air Quality Management] District’s established significance threshold for NOx is 55 pounds per day, these estimates [of NOx emissions of 201 to 456 pounds per day] constitute substantial evidence supporting a fair argument for a significant adverse impact.”].) Since expert evidence demonstrates that the Project will exceed the SCAQMD’s CEQA significance threshold, there is substantial evidence that an “unstudied, potentially significant environmental effect[]” exists. (See, Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 958.)
Mr
. Offermann concludes that these significant impacts should be further mitigated to reduce the significant health risks that will result from indoor formaldehyde emissions. (Id., pp. 12-14.) Mr. Offermann proposes various feasible mitigation measures to reduce these impacts, including by imposing a requirement that the Project applicant install high-capacity air filters throughout the building and commit to using only composite wood materials that are made with CARB approved no-added formaldehyde (NAF) resins, or ultra-low emitting formaldehyde (ULEF) resins, for all of the buildings’ interior spaces.

Mr.

Offermann’s observations constitute substantial evidence of a fair argument that the Project will likely produce potentially significant air quality and health impacts which the MND has failed to address. Therefore, the City must prepare an EIR to further evaluate and mitigate these impacts to the Project’s future residents.

III. CONCL
USION
For
the foregoing reasons, the MND for the proposed Project fails to comply with CEQA.

Namely, there is substantial evidence of a fair argument that the Project may have significant impacts on air quality, greenhouse gas emissions, energy use, and hazardous materials.

Moreover, the MND failed to adequately mitigate the Project’s likely impacts. SAFER therefore respectfully requests that you decline to adopt the MND and instead direct staff to undertake the DRURY

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necessary efforts to prepare an EIR for the proposed Project. Thank you for considering these comments.

Si
ncerely,
Ad
am Frankel
LOZEAU | DRURY LLP
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EXHIBIT A
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388 17th Street, Suite 230, Oakland, CA 94612 | P: (510) 420-8686 | www.baseline-env.com 16 January 2023
22228‐00
Adam Frankel
Lozeau Drury LLP
1939 Harrison St., Suite 150
Oakland, CA 94612
Subject: Review of Greenhouse Gas Emissions, Energy, Air Quality, and Hazardous Materials Impacts Analyzed in the Initial Study and Mitigated Negative Declaration for the 840 The City Drive Apartment Project Dear Mr. Frankel:

Baseline Environmental Consulting (Baseline) has reviewed the Initial Study and Mitigated
Negative Declaration (ISMND) for 840 The City Drive Apartment Project (project) in the City of Orange (City), California to determine whether potential environmental impacts related to Greenhouse Gas (GHG) emissions, energy, air quality, and hazardous materials were appropriately evaluated. Based on our review, we have identified flaws in the ISMND analysis used to support the significance determinations, such as inadequate analysis to demonstrate the project’s consistency with the State’s long‐term climate goals. The specific concerns identified in the ISMND analysis for potential environmental impacts related to GHG emissions, energy, air quality, and hazardous materials are described in detail below.

INVALID USE OF GHG SCREENING LEVEL THRESHOLD
In 2008, the South Coast Air Quality Management District (SCAQMD) released a draft guidance document1 prepared by the GHG Significance Threshold Working Group (Working Group) that proposed an interim CEQA GHG significance threshold of 3,000 metric tons of carbon dioxide equivalents (MTCO2e) for residential/commercial projects. As stated on page 98 of the ISMND, the 3,000 MTCO2e threshold was used to determine whether the project would have a significant GHG emissions impact, as the City has not adopted its own GHG thresholds or
Climate Action Plan. In Section 5.8.(a) of the ISMND, the project’s net GHG emissions were estimated to be 2,318 MTCO2e per year, which would be less than significant because the emission rate is below the draft interim GHG threshold. This impact dete rmination is not valid for the following three reasons:
1 South Coast Air Quality Management District (SCAQMD), 2008. Draft Guidance Document – Interim CEQA Greenhouse Gas (GHG) Significance Threshold. October.

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1. Neither the lead agency nor any other state or regional agencies have adopted the 3,000 MTCO2e per year threshold.

2. The 3,000 MTCO2e per year threshold is not supported by substantial evidence.

3. The 3,000 MTCO2e per year threshold does not meet the State’s long‐term climate action goal of achieving carbon ne utrality by 2045.

Each of these concerns are discussed further, below.

Threshold Not Adopted
Regarding thresholds of significance, CEQA Guidelines §15064.7(a) states, "Each public agency is encouraged to develop and publish thresholds of significance that the agency uses in the determination of the significance of environmental effects.” Subsection (b) of the same section states further, “Thresholds of significance to be adopted for general use as part of the lead agency’s environmental review process must be adopted by ordinance, resolution, rule or regulation, and
developed through a public review process and be supported by substantial evidence.”
The SCAQMD Governing Board did not adopt the numerical threshold of 3,000 MTCO2e per year recommended by the Working Group for residential/commercial projects in 2008.

Similarly, neither the California Ai
r Resources Board, California Air Pollution Control Officers Association, the City (lead agency), nor any other state or regional agency has adopted the proposed significance threshold of 3,000 MTCO2e per year for assessing GHG emissions impacts for land use projects.

In 2020, the City issued a Guidance for Greenhouse Gas Emissions Analysis memorand um2 (memo) to provide a local framework for analyzing GHG emissions in CEQA documents for non‐ exempt projects in which the City of Orange is the CEQA lead agency. While not formally adopting a GHG threshold for CEQA analysis, the memo recommends using a significance threshold of 3,000 MTCO2e per year for residential/commercial projects because it is supported by substantial evidence in the SCAQMD’s Interim Thresholds. As discussed below, this threshold is not supported by substantial evidence.

Lack of Substantial Evidence
In 2008, the Working Group recommended 3,000 MTCO2e per year as a bright‐line threshold based on a 90‐percent market capture approach. This approach is intended to take into account expected development and the amount of market capture necessary to support GHG reduction 2 Ashley Brodkin, 2020. Guidance for Greenhouse Gas Emissions Analysis. March 24 DRURY

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efforts through further project‐level evaluation and mitigation. Another common approach for developing a bright‐line threshold for GHG emissions is a gap‐based analysis, where the necessary reduction in GHG emissions from the land use sector to meet statewide climate action goals (i.e., the “gap”) is evaluated after taking into account the GHG reductions from adopted Scoping Plan regulations. Examples of bright‐line thresholds that have been adopted for the evaluation of GH
G emissions from land use projects include:
 900 MTCO2e: California Air Pollution Control Offices Association.  1,100 MTCO2e: Sacramento Metropolitan Air Quality Management District.  1,100 MTCO2e: Bay Area Air Quality Management District.  1,150 MTCO2e: San Luis Obispo County Air Pollution Control District.  2,500 MTCO2e: County of San Diego.

The SCAQMD never adopted the threshold of 3,000 MTCO2e that was recommended by the Working Group in 2008. This was because the Working Group could not come to a consensus on either the scientific approach or the estimated
numerical values used for the proposed
threshold, as documented in the minutes and presentations of numerous meetings held by the Working Group from 2008 until 2010 when the group became inactive.3 Some of the reasons the Working Group could not establish substantial evidence to support the 3,000 MTCO2e threshold included the following:
 The 3,000 MTCO2e is substantially higher than the bright‐line thresholds adopted by other agencies (see examples above).
 An efficiency‐based threshold may be more appropriate than a bright‐line threshold.  Separat
e land use sector thresholds may be more appropriate (e.g., 1,400 MTCO2e/year was recommended by the Working Group for commercial projects).  The 90‐percent market capture rate approach is inadequate.  All projects should be subject to some kind of GHG reduction requirement or performance standard.
3 South Coast Air Quality Management District (SCAQMD), 2022. GHG Significance Thresholds webpage. Available at: https://www.aqmd.gov/home/rules‐compliance/ceqa/air‐quality‐analysis‐handbook/ghg‐significance‐ thresholds. Last updated 2022.

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Furthermore, the approach used by the Working Group for developing the draft 3,000 MTCO2e threshold in 2008 is now outdated because it does not account for current projections in long‐ term market growth. As a result, the 3,000 MTCO2e threshold used in the ISMND is not supported by substantial evidence.

Inadequate Analysis of Carbon Neutrality by 2045
Based on the California Supreme Court findings for Center for Biological Diversity v. Department of Fish & Wildlife (2015) (62 Cal.4th 204), a project’s GHG emissions should be evaluated based on its effect on California’s efforts to meet its long‐term climate goals. As the Supreme Court held in that case, a project that would be consistent with meeting those goals can be found to have a less‐than‐significant impact on climate change under CEQA. If a project would contribute
its “fair share” of what will be required to achieve those long‐term climate goals, then a reviewing agency can find that the impact will not be significant becaus e the project will help to solve the problem of global climate change (62 Cal.4th 220–223).

In accordance with Executive Order B‐55‐18, California is committed to achieving carbon neutrality by 2045. The 3,000 MTCO2e threshold used in the ISMND has no correlation to the State’s carb
on neutrality goal for 2045. To determine an individual project’s “fair share,” the ISMND analysis should have focused on the design elements or performance standards that need to be incorporated into the project to support carbon neutrality by 2045. The primary sources of GHG emissions from the project would be from b uilding energy use and transportation; therefore, the ISMND should have evaluated if the project can be designed to ensure it will achieve carbon neutrality by 2045.

With respect to building energy use, as stated in the ISMND (page 88), the project would be served with gas provided by Southern California Gas. The project could replace natural gas with electric power which will support California’s transition away from fossil fuel–based energy sources and will bring the project’s GHG emissions associated with building energy use down to zero as the electric supply becomes 100 percent carbon free. With respect to transportation, the ISMND states that the project would be designed in accordance with Title 24, California’s Energy Efficiency Standards. The project
could be designed to provide sufficient electric vehicle (EV) charging infrastructure beyond the CalGreen mandatory level to support the shift to zero‐ emission vehicles (e.g., implement the voluntary CalGreen Tier 2 EV ch arging standards). The ISMND does not evaluate and incorporate the use of all‐electric buildings or EV charging infrastructure into the project design. Therefore, the ISMND analysis of the project’s impact on the environment from GHG emissions based on the numeric threshold of 3,000 MTCO2e is inadequate because it fails to demonstrate how the project would meet the State’s long‐term climate action goal of carbon neutrality by 2045.

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FAILURE TO EVALUATE CONSISTENCY WITH 2022 SCOPING PLAN
The ISMND evaluates the project’s consistency with the GHG reduction strategies described in the California Air Resources Board’s (CARB’s) 2017 Scoping Plan Update. As stated on page 102 of the ISMND, the proposed project is consistent with the applicable strategies of the 2017 Scoping Plan Update.

The ISMND fails to discuss the project’s consistency with CARB’s curr ent 2022 Scoping Plan,4 which lays out a path to achieve carbon neutrality no later than 2045. According to the 2022 Scoping Plan, decarbonization of California’s buildings is a key strategy for achieving California’s climate change mitigation and air quality goals. Building decarbonization refers to an umbrella of strategies to reduce residential and commercial building emissions. All‐electric new construction is one of the most cost‐effective near‐term applications for building decarbonization efforts. As stated in the 2022 Scoping Plan, several studies estimate that the costs of constructing all‐electric homes are lower than constructing mixed‐fuel new homes, primarily due to the avoided costs of fossil gas infrastructure at the building site, with cost‐ savings in the range of $2,000 to $10,000 per unit.

As stated in
the ISMND (page 88), the project would be served with gas provided by Southern California Gas. By failing to evaluate building decarbonization methods such as an all‐electric building design,
the ISMND has not demonstrated consistency with the key GHG reduction strategies under the 2022 Scoping Plan. By conflicting with the GHG reductions strategies of the 2022 Scoping Plan, the project could have a potentially significant impact related to GHG emissions.

INADEQUATE ANALYSIS OF ENERGY IMPACTS
The ISMND provides quantitative estimates of the project’s construction energy consumption and annual operational energy consumption (pages 87‐88), and then states that the project would be designed in accordance with Title 24, California’s Energy Efficiency Standards for Residential and Nonresidential Buildings, as applicable. The ISMND then concludes that the proposed project’s construction and operational energ y use would result in a less‐than‐ significant impact on the environment.

In both the California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173 (CCEC) and Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256, the courts found that compliance with the Title 24 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 a project. As stated in CCEC, that is because Title 24 “does not extend beyond the buildings themselves” and “does not address many of the 4 California Air Resources Board, 2022. 2022 Scoping Plan for Achieving Carbon Neutrality. November 16.

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considerations required under appendix F of the CEQA Guidelines.” According to Appendix F of the CEQA Guidelines, energy conservation is defined as the “wise and efficient use of energy” which is achieved by “(1) decreasing overall per capita energy consumption, (2) decreasing reliance on fossil fuels such as coal, natural gas and oil, and (3) increasing reliance on renewable energ
y resources.” Therefore, the ISMND reliance on Title 24 does not adequately address potential energy impacts during project construction and operation.

The court recently affirmed in League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer (2022) 75 Cal.App.5th 63 that even where “[an] EIR [has] determined the project’s impacts on energy resourc
es would be less than significant,” a lead
agency must still analyze implementation of all “renewable energy options that might have been available or appropriate for [a] project,”. The ISMND states that “The proposed project would be served with gas provided by Southern California Gas (SoCalGas)” and “The proposed project would be served with electricity provided by SCE, which was required to meet California’s renewable portfolio standard (RPS) of 33 percent by 2020.” The ISMND evaluates the local utility provider’s energy mix, including the percentages of eligible renewable, but fails to adequately consider f
easible design features or mitigation measures to reduce the project’s fossil fuel consumption, such as eliminating natural gas heating and appliances, installing rooftop solar panels, or installing EV charging infrastructure that exceeds the minimum Title 24 requirements. Therefore, the ISMND’s analysis of energy impacts is inadequate and the conclusion that the project’s en
ergy impacts are less than significant is unsupported.

INADEQUATE ANALYSIS OF AIR QUALITY IMPACTS

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matter emissions are short‐term in nature. Moreover, the current methodological protocols required by the SCAQMD and ARB when studying the health risk posed by diesel particulate matter assume the following: (1) 24‐hour constant exposure; (2) 350 days a year; (3) for a continuous period lasting 30 years. In addition, as shown in Impact 5.3(b), the proposed project would not exceed the LST for construction‐generated criteria pollutants. “ According to the ISMND (page 60), construction of the project would take approximately one and a half years. For health risk assessments, the Office of Environmental Health Hazard Assessment (OEHHA) does not recommend assessing cancer risk for projects lasting less than two months due to the uncertainty in assessing cancer risk from short‐term exposures. Since the construction of the project would be substantially longer than two months, a health risk assessment should be conducted to calculate the incr
emental increase in cancer risk for
sensitive receptors (e.g., single‐family homes south of the southern project site boundary) exposed to diesel particulate matter emissions during project construction in accordance with the OEHHA guidance for sources with variable emission rates.

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Furthermore, it appears that the ISMND is suggesting on page 60 that the health risks from exposure to diesel particulate matter would not be significant because the project would not exceed the SCAQMD’s Localized Significance Thresholds (LSTs) for construction‐generated criteria pollutants. The LSTs only apply to criteria air pollutants and were not designed to evaluate localized health risks from exposure to diesel particulate matter.

INADEQUATE ANALYSIS OF HAZARDOUS MATERIALS IMPACTS
As stated on page 110 of the ISMND, a dry cleaning service called Cecilia’s Cleaners was located at the residential portion of the project site from at least 1989 until 2012. A release of tetrachloroethene (PCE) from the dry cleaning service has affected soil and soil gas at the project site. In 2017, the current property owner entered into a Voluntary Cleanup A greement with the Department of Toxic Substances Control (DTSC) for assessing and remediating the PCE at the project site.

An Indoor Air Quality Assessment was prepared by SCS Engineers on January 16, 2019. The Indoor Air Quality Assessment concluded that there is no significant risk to groundwater, that the former dry cleaning operatio
n poses no significant risk of vapor intrusion, and that further investigation of soil, soil vapor, or groundwater at the project site is not recommended.

However, according to the DTSC EnviroStor database, it does not appear that the Indoor Air Quality Assessment has been review
ed and approved by DTSC. It also appears that additional environmental investigation activities were performed at the project site in October and September 2022 to further evaluate the chemical quality of soil gas and groundwater, but the results of those investigation activities were not disclosed in the ISMND.

The findings from the most recent
environmental investigations at the project site should be disclosed in the ISMND for public review. In addition, the DTSC should review and approve the findings of all the investigation reports and issue a letter of No Further Action prior to the issuance of buildings permits. To ensure that future residents, workers, and patrons are not
exposed to substantial concentrations of hazardous chemicals from vapor intrusion, a mitigation measure should be prepared that requires the applicant to submit a copy of the DTSC letter of No Further Action to the City prior to the issuance of buildings permits.

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CONCLUSIONS
Based on our review of the ISMND, there is substantial evidence to support a fair argument that the project may have a significant effect on the environmental related to GHG emissions, energy, air quality, and hazardous materials. Therefore, Baseline recommends that the City of Orange prepare an Environmental Impact Report to address the environmental co ncerns described above.

Sincerely,
Patrick Sutton, Yilin Tian, PhD
Principal Environmental Engineer Environmental Engineer DRURY

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Patrick Sutton, P.E.

Principal Environmental Engineer
Areas of Expertise
Air Quality, GHGs, Noise, Hazardous
Materials, Geology, and Hydrology
Education
M.S., Civil and Environmental
Engineering, University of
California – Davis
B.S., Environmental Science,
Dickinson College
Registration
Professional Engineer No. 13609 (RI)
Years of Experience
19 Years
Patrick Sutton is an environmental engineer who specializes in the assessment of hazardous materials released into the environment.

Mr. Sutton prepares technical reports in support of environmental review, such as Phase I/II Environmental Site Investigations, Air Quality Reports, Greenhouse Gas (GHG) Reduction Plans, and Health Risk Assessments. He has prepared numerous CEQA/NEPA
evaluations for air quality, GHGs, geolo gy, hazardous materials, and water quality related to residential, commercial, and industrial projects, as well as large infrastructure developments. His proficiency in a wide range of modeling software (AERMOD, CalEEMod, RCEM, CT‐EMFAC) as well as relational databases, GIS, and graphics design allows him to thoroughly and efficiently assess and mitigate environmental concerns.

For mixed‐use development projects, Mr. Sutton has prepared health risk assessments for sensitive receptors exposed to toxic air contaminants based on air dispersion modeling. He has also prepared GHG Reduction Plans to demonstrate how projects can comply with State and/or local GHG reduction goals. For large high way infrastructure improvement projects, Mr. Sutton has prepared air quality and hazardous materials technical reports in accordance with Caltrans requirements. Air quality assessments include the evaluation of criteria air pollutants, mobile source air toxics, and GHG emissions to support environmental review of the project under CEQA/NEPA and to determine conformity with the State Implementation Plan.

Hazardous materials investigations include sampling and statistically analysis of aerially‐deposited lead adjacent to highway corridors.

Project Experience
Oakland Downtown Specific Plan EIR. Prepared a program‐ and project‐level Air Quality and GHG Emissions analysis. Developed a mitigation measure with performance standards to ensure GHG emissions from future projects comply with the Citywide 2030 GHG reduction target.

I‐680 Express Lanes from SR 84 to Alcosta Boulevard Project. Prepared Initial Si te Assessment and Preliminary Site Investigation to evaluate contaminants of potential concern in soil and groundwater. Prepared Air Quality Report to determine the project’s conformity to federal air quality regulations and to support environmental review of the project under CEQA and NEPA.

Altamont Corridor Expressway (ACE/Forward) Project EIR/EIS. Prepared a program‐ and project‐ level Hazardous Materials analysis for over 120 miles of railroad corridor from San Jose to Merced. Hazardous materials concerns, such as release sites, petroleum pipelines, agricultural pesticides, and nearby school sites were evaluated in GIS.

Stonegate Residential Subdivision EIR. Prepared a project‐level Hydrology and Water Quality analysis for a residential development lo
cated within the 100‐year floodplain. The proposed project included modifications to existing levees and flood channels.

BART Silicon Valley Extension Project. Prepared Initial Site Assessment and Hazardous Materials EIS/EIR section for extending 6 miles of proposed BART service through the Cities of San Jose and Santa Clara.

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Yilin Tian, Ph.D
Environmental Engineer
Areas of Expertise
Air Quality, GHGs, Noise, Energy, and
Environmental Compliance
Education
Ph.D./M.S., Environmental Science
and Engineering, Clarkson University
B.S., Environmental Science, Beijing
University of Technology
Registrations/Certifications
40‐hour HAZWOPER training
Engineer‐In‐Training, No. 167986
Years of Experience
10 Years
Yilin Tian is an environmental engineer who specializes in the analysis of air quality and human exposure to toxic air contaminants. For CEQA environmental review, Yilin assists in the analysis of air quality, greenhouse gas (GHG), noise and vibration, and energy impacts. She is also familiar with state/local environmental regulations and guidelines related to CEQA review. Yilin has worked on variety of land uses develop
ment projects, including large mixed‐use infill, wetland restoration, levee improvement, and highway expansion projects. She is experienced with preparing health risk assessments for sensitive receptors exposed to toxic air contaminants during construction and operation. Yilin is proficient with air pollution models (e.g., CalEEMod and AERMOD
), noise models (e.g., FHA TNM and SoundPLAN),
geospatial data analysis, and database management.

Besides CEQA studies, Yilin has worked with the Bay Area Air Management District (BAAQMD) to improve existing emissions estimation techniques and update emission inventories related to wood‐burning devises and ammonia emissions in the Bay Area. Her strong
background in statistics and air pollutants emissions allows her to process and analyze data properly and efficiently.

Yilin has assisted the City of Berkeley and the San Francisco Public Utilities Commission (SFPUC) with environmental compliance and mitigation monitoring, including reviewing submittals and performing environmental field
inspections. Beyond that, Yilin has experience
with Phase I Environmental Site Assessments, air monitoring, noise monitoring, and the state’s Underground Storage Tank Cleanup Fund application.

Project Experience
Belvedere Lagoon Levee Project. Prepared project‐level Air Quality, GHG Emissions, and Noise and Vibration analyses for construction of a coastal levee system for the City of Belvedere.

Metro Center Hotel Project. Prepared a project‐level Air Quality and GHG Emissions analysis for the development of a new, seven‐story hotel in central Fo ster City.

I‐80/Ashby Avenue Interchange Improvement Project. Prepared Air Quality Report to determine the project’s conformity to federal air quality regulations and to support environmental review of the project under CEQA and NEPA.

Residential Wood Combustion for San Francisco Bay Area. Updated the methodology and datasets used by the BAAQMD to quantify residential wood combustion emissions within the Sa n Francisco Bay Area Air Basin. This
methodology will be used to update the BAAQMD’s residential wood‐burning emissions inventory and reduce uncertainties in the existing emission inventory.

Environmental Compliance Monitoring for the SFPUC. Managed three SFPUC projects including the Sunol Long Term Improvements Projects,
Southeast Community Center Project, and the Force Main Rehabilitation at Embarcadero & Jackson Street.

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EXHIBIT B
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INDOOR ENVIRONMENTAL ENGINEERING
1448 Pine Street, Suite 103 San Francisco, California 94109 Telephone: (415) 567-7700
E-mail: [email protected]
http://www.iee-sf.com
Date: December 31, 2022
To: Adam Frankel
Lozeau | Drury LLP
1939 Harrison Street, Suite 150
Oakland, California 94612
From: Francis J. Offermann PE CIH
Subject: Indoor Air Quality: 840 The City Drive Apartments Project – City of Orange, CA (IEE File Reference: P-4664)
Pages: 19
Indoor Air Quality Impacts
Indoor air quality (IAQ) directly impacts the comfort and health of building occupants, and the achievement of acceptable IAQ in newly constructed and renovated buildings is a well- recognized design objective. For example, IAQ is addressed by major high- performance building rating systems and building codes (California Building Standards Commission, 2014; USGBC, 2014). Indoor air quality in homes is particularly important because occupants, on average, spend approximately ninety pe rcent of their time indoors with the majority of this time spent at home (EPA, 2011). Some segments of the population that are most susceptible to the effects of poor IAQ, such as the very young and the elderly, occupy their homes almost continuously. Additionally, an increasing number of adults are working from home at least some of the time during the workweek. Indoor air quality also is a serious concern for workers in hotels, offices and other business establishments.

The concentrations of many air pollutants often are elevated in homes and other buildings relative to outdoor air because many of the materials and products used indoors contain and release a variety of pollutants to air (Hodgson et al., 2002; Offermann and Hodgson, DRURY

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2011). With respect to indoor air contaminants for which inhalation is the primary route of exposure, the critical design and construction parameters are the provision of adequate ventilation and the reduction of indoor sources of the contaminants.

Indoor Formaldehyde Concentrations Impact . In the California New Home Study (CNHS) of 108 new homes in California (Offermann, 2009), 25 air contaminants were measured, and formaldehyde was identified as the indoor air contaminant with the highest cancer risk as determined by the California Proposition 65 Safe Harbor Levels (OEHHA, 2017a), No Significant Risk Levels (NSRL) for carcinogens. The NSRL is the daily intake level calculated to result in one excess case of cancer in an exposed population of 100,000 (i.e., ten in one million cancer risk) and for formaldehyde is 40 µg/day. The NSRL concentration of formaldehyde that represents a daily dose of 40 µg is 2 µg/m3, assuming a continuous 24- hour exposure, a total daily inhaled air volume of 20 m 3, and 100% absorption by the respiratory system. All of the CNHS homes exceeded this NSRL concentration of 2 µg/m 3. The median indoor formaldehyde concentration was 36 µg/m 3, and ranged from 4.8 to 136 µg/m 3, which corresponds to a median exceedance of the 2 µg/m3 NSRL concentration of 18 and a range of 2.3 to 68.

The
refore, the cancer risk of a resident living in a California home with the median indoor formaldehyde concentration of 36 µg/m 3, is 180 per million as a result of formaldehyde alone. The CEQA significance threshold for airborne cancer risk is 10 per million, as established by the South Coast Air Quality Management District (SCAQMD, 2015).

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

The
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particleboard. These materials are commonly used in building construction for flooring, cabinetry, baseboards, window shades, interior doors, and window and door trims.

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

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

Thus
, while new homes built after the 2009 CARB formaldehyde ATCM have a 33% lower median indoor formaldehyde concentration and cancer risk, the median lifetime cancer risk is still 120 per million for homes built with CARB compliant composite wood products .

This median lifetime cancer risk is more than 12 times the OEHHA 10 in a million cancer risk threshold (OEHHA, 2017a).

Wit
h respect to the 840 The City Drive Apartments Project – City of Orange, CA , the buildings consist of residential and commercial spaces.

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

Becau
se these residences will be constructed with CARB Phase 2 Formaldehyde ATCM materials, and be ventilated with the minimum code required amount of outdoor air, the indoor residential formaldehyde concentrations are likely similar to those concentrations observed in residences built with CARB Phase 2 Formaldehyde ATCM materials, which is a median of 24.1 µg/m
3 (Singer et. al., 2020)
As
suming that the residential occupants inhale 20 m 3 of air per day, the average 70- year lifetime formaldehyde daily dose is 482 µg/day for continuous exposure in the residences.

This exposure represents a cancer risk of 120 per million, which is more than 12 times the CEQA cancer risk of 10 per million. For occupants that do not have continuous exposure, the cancer risk will be proportionally less but still substantially over the CEQA cancer risk of 10 per million (e.g. for 12/hour/day occupancy, more than 6 times the CEQA cancer risk of 10 per million).

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

Becau
se the commercial spaces will be constructed with CARB Phase 2 Formaldehyde ATCM materials, and be ventilated with the minimum code required amount of outdoor air, the indoor formaldehyde concentrations are likely similar to those concentrations observed in residences built with CARB Phase 2 Formaldehyde ATCM materials, which is a median of 24.1 µg/m3 (Singer et. al., 2020)
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Assuming that the employees of commercial spaces work 8 hours per day and inhale 20 m3 of air per day, the formaldehyde dose per work-day at the offices is 161 µg/day.

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

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

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

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

Addi
tionally, the SCAQMD’s Multiple Air Toxics Exposure Study (“MATES V”) identifies an existing cancer risk at the Project site of 446 per million due to the site’s elevated ambient air contaminant concentrations, which are due to the area’s high levels of vehicle traffic. These impacts would further exacerbate the pre-existing cancer risk to the building occupants, which result from exposure to formaldehyde in both indoor and outdoor air.

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

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

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

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

Pre-Construction Building Material/Furnishing Formaldehyde Emissions Assessment This formaldehyde emissions assessment should be used in the environmental review under CEQA to assess the indoor formaldehyde concentrations from the proposed loading of building materials/furnishings, the area -specific formaldehyde emission rate data for building materials/furnishings, and the design minimum outdoor air ventilation rates. This assessment allows the applicant (and the City) to determine , before the conclusion of the environmental review process and the building materials/furnishings are specified, purchased, and installed, if the total chemical emissions will exceed cancer and non-cancer guidelines, and if so, allow for changes in the selection of specific material/furnishings and/or the design minimum outdoor air ventilations rates such that cancer and non- cancer guidelines are not exceeded.

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

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

3.) Calculate the Formaldehyde Emission Rate. For each building material, calculate the formaldehyde emission rate (µg/h) from the product of the area -specific formaldehyde emission rate (µg/m 2-h) and the area (m 2) of material in the IAQ Zone, and from each furnishing (e.g. chairs, desks, etc.) from the unit -specific formaldehyde emission rate (µg/unit-h) and the number of units in the IAQ Zone.

NO
TE: As a result of the high- performance building rating systems and building codes (California Building Standards Commission, 2014; USGBC, 2014), most manufacturers of building materials furnishings sold in the United States conduct chemical emission rate tests using the California Department of Health “Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers ,” (CDPH, 2017), or other equivalent chemical emission rate testing methods. Most manufacturers of building furnishings sold in the United States conduct chemical emission rate tests using ANSI/BIFMA M7.1 Standard Test Method for Determining VOC Emissions (BIFMA, 2018), or other equivalent chemical emission rate testing methods.

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CDPH, BIFMA, and other chemical emission rate testing programs, typically certify that a material or furnishing does not create indoor chemical concentrations in excess of the maximum concentrations permitted by their certification. For instance, the CDPH emission rate testing requires that the measured emission rates when input into an office, school, or residential model do not exceed one -half of the OEHHA Chronic Exposure Guidelines (OEHHA, 2017b) for the 35 specific VOCs, including formaldehyde, listed in Table 4-1 of the CDPH test method (CDPH, 2017). These certifications themselves do not provide the actual area-specific formaldehyde emission rate (i.e., µg/m 2-h) of the product, but rather provide data that the formaldehyde emission rates do not exceed the maximum rate allowed for the certification. Thus, for example, the data for a certification of a specific type of flooring may be used to calculate that the area -specific emission rate of formaldehyde is less than 31 µg/m
2-h, but not the actual measured specific emission rate, which may be 3, 18, or 30 µg/m 2-h. These area- specific emission rates determined from the product certifications of CDPH, BIFA, and other certification programs can be used as an initial estimate of the formaldehyde emission rate.

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

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

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

5.) Calculate the Indoor Formaldehyde Concentration. For each IAQ Zone, calculate the indoor formaldehyde concentration (µg/m 3) from Equation 1 by dividing the total formaldehyde emission rates (i.e. µg/h) as determined in Step 4, by the design minimum outdoor air ventilation rate (m3/h) for the IAQ Zone.

𝐶𝐶𝑖𝑖𝑖𝑖 =
𝐸𝐸𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡𝑡
𝑄𝑄𝑡𝑡𝑡𝑡
(Equation 1)
wh
ere:

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

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

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

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

7.) Mitigate Indoor Formaldehyde Exposures of exceeding the CEQA Cancer and/or Non- Cancer Health Risks. In each IAQ Zone, provide mitigation for any formaldehyde exposure risk as determined in Step 6, that exceeds the CEQA cancer risk of 10 per million or the CEQA non-cancer Hazard Quotient of 1.0.

Pr
ovide the source and/or ventilation mitigation required in all IAQ Zones to reduce the DRURY

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health risks of the chemical exposures below the CEQA cancer and non-cancer health risks.

Sour
ce mitigation for formaldehyde may include:

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

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

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

NO
TE: Mitigating the formaldehyde emissions through use of less material/furnishings, or use of lower emitting materials/furnishings, is the preferred mitigation option, as mitigation with increased outdoor air ventilation increases initial and operating costs associated with the heating/cooling systems.

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

Outdoor Air Ventilation Impact . Another important finding of the CNHS, was that the outdoor air ventilation rates in the homes were very low. Outdoor air ventilation is a very important factor influencing the indoor concentrations of air contaminants, as it is the primary removal mechanism of all indoor air generated contaminants. Lower outdoor air exchange rates cause indoor generated air contaminants to accumulate to higher indoor air concentrations. Many homeowners rarely open their windows or doors for ventilation as a DRURY

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result of their concerns for security/safety, noise, dust, and odor concerns (Price, 2007). In the CNHS field study, 32% of the homes did not use their windows during the 24‐hour Test Day, and 15% of the homes did not use their windows during the entire preceding week.

Most of the homes with no window usage were homes in the winter field session. Thus, a substantial percentage of homeowners never open their windows, especially in the winter season. The median 24‐hour measurement was 0.26 air changes per hour (ach), with a range of 0.09 ach to 5.3 ach. A total of 67% of the homes had outdoor air exchange rates below the minimum California Building Code (2001) requirement of 0.35 ach. Thus, the relatively tight envelope construction, combined with the fact that many people never open their windows for ventilation, results in homes with low outdoor air exchange rates and higher indoor air contaminant concentrations.

Th
e Project is close to roads with moderate to high traffic (e.g., Garden Grove Freeway, I- 5, Garden Grove Boulevard, etc.), and thus the Project site is a sound impacted site.

Ac
cording to the Initial Study/Mitigated Negative Declaration – 840 The City Drive Apartments Project (FirstCarbon Solutions, 2022), the 2024 plus Project traffic noise levels reported in Table 19, range from 66.6 dBA to 68.3 dBA CNEL.

As
a result of the high outdoor noise levels, the current project will require a mechanical supply of outdoor air ventilation to allow for a habitable interior environment with closed windows and doors. Such a ventilation system would allow windows and doors to be kept closed at the occupant’s discretion to control exterior noise within building interiors.

PM2.5 Outdoor Concentrations Impact. An additional impact of the nearby motor vehicle traffic associated with this project, are the outdoor concentrations of PM 2.5. According to the Initial Study/Mitigated Negative Declaration – 840 The City Drive Apartments Project (FirstCarbon Solutions, 2022), the Project is located in the South Coast Air Basin, which is a State and Federal non-attainment area for PM2.5.

Addi
tionally, the SCAQMD’s MATES V study cites an existing cancer risk of 446 per million at the Project site due to the site’s high concentration of ambient air contaminants resulting from the area’s high levels of motor vehicle traffic.

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An a
ir quality analyses should be conducted to determine the concentrations of PM2.5 in the outdoor and indoor air that people inhale each day. This air quality analyses needs to consider the cumulative impacts of the project related emissions, existing and projected future emissions from local PM 2.5 sources (e.g. stationary sources, motor vehicles, and airport traffic) upon the outdoor air concentrations at the Project site. If the outdoor concentrations are determined to exceed the California and National annual average PM

2.5 exceedence concentration of 12 µg/m 3, or the National 24- hour average e xceedence concentration of 35 µg/m3, then the buildings need to have a mechanical supply of outdoor air that has air filtration with sufficient removal efficiency, such that the indoor concentrations of outdoor PM

2.5 particles is less than the California a nd National PM 2.5 annual and 24-hour standards.

It
is my experience that based on the projected high traffic noise levels, the annual average concentration of PM 2.5 will exceed the California and National PM 2.5 annual and 24-hour standards and warrant installation of high efficiency air filters (i.e. MERV 13 or higher) in all mechanically supplied outdoor air ventilation systems.

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

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

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

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

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

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

PM2.5 Outdoor Air Concentration Mitigation. Install air filtration with sufficient PM 2.5 removal efficiency (e.g. MERV 13 or higher) to filter the outdoor air entering the mechanical outdoor air supply systems, such that the indoor concentrations of outdoor PM

2.5 particles are less than the California and National PM 2.5 annual and 24- hour standards.

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occupants or maintenance personnel. Include in the mechanical outdoor air ventilation system manual instructions on how to replace the air filters and the estimated frequency of replacement.

Re
ferences
BIFA. 2018. BIFMA Product Safety and Performance Standards and Guidelines. www.bifma.org/page/standardsoverview
Cal
ifornia Air Resources Board. 2004. Formaldehyde in the Home. https://ww3.arb.ca.gov › research › indoor › formaldgl08-04.pdf Cal
ifornia Air Resources Board. 2009. Airborne Toxic Control Measure to Reduce Formaldehyde Emissions from Composite Wood Products. California Environmental Protection Agency, Sacramento, CA.
https://www.arb.ca.gov/regact/2007/compwood07/fro-final.pdf Cal
ifornia Air Resources Board . 2011. Toxic Air Contaminant Identification List.

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

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

Ca
lifornia Energy Commission, PIER Program. CEC -500-2007-033. Final Report, ARB Contract 03-326. Available at: www.arb.ca.gov/research/apr/past/03-326.pdf.

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California Energy Commission, 2015. 2016 Building Energy Efficiency Standards for Residential and Nonresidential Buildings, California Code of Regulations, Title 24, Part 6. http://www.energy.ca.gov/2015publications/CEC-400-2015-037/CEC-400-2015-037- CMF.pdf
CDP
H. 2017. Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers, Version 1.1.

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

Environmental Impact Report. SCH No. 2018011001.

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

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

Fir
stCarbon Solutions. 2022. Initial Study/Mitigated Negative Declaration – 840 The City Drive Apartments Project – City of Orange, CA.

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

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

OEH
HA (Office of Environmental Health Hazard Assessment). 2017a. Proposition 65 Safe Harbor Levels. No Significant Risk Levels for Carcinogens and Maximum Allowable Dose Levels for Chemicals Causing Reproductive Toxicity. Available at:
http://www.oehha.ca.gov/prop65/pdf/safeharbor081513.pdf DRURY

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OEHHA - Office of Environmental Health Hazard Assessment. 2017b. All OEHHA Acute, 8-hour and Chronic Reference Exposure Levels. Available at:
http://oehha.ca.gov/air/allrels.html
Off
ermann, F. J. 2009. Ventilation and Indoor Air Quality in New Homes. California Air Resources Board and California Energy Commission, PIER Energy‐Related Environmental Research Pro gram. Collaborative Report. CEC -500-2009-085. https://www.arb.ca.gov/research/apr/past/04-310.pdf
Off
ermann, F. J. and A. T. Hodgson. 2011. Emission Rates of Volatile Organic Compounds in New Homes. Proceedings Indoor Air 2011 (12th International Conference on Indoor Air Quality and Climate 2011), June 5-10, 2011, Austin, TX.

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

South C
oast Air Quality Management District (SCAQMD). 2015. California Environmental Quality Act Air Quality Handbook. South Coast Air Quality Management District, Diamond Bar, CA, http://www.aqmd.gov/home/rules-comp liance/ceqa/air-quality- analysis-handbook
USG
BC. 2014. LEED BD+C Homes v4. U.S. Green Building Council, Washington, D.C. http://www.usgbc.org/credits/homes/v4
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APPENDIX A
INDOOR

FORMALDEHYDE CONCENTRATIONS

AND THE

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

Just
how much protection do the CARB ATCM regulations provide building occupants from the formaldehyde emissions generated by composite wood products? Definitely some, but certainly the regulations do not “assure healthful indoor air quality” when CARB Phase 2 products are utilized. As shown in the Chan 2019 study of new California homes, the median indoor formaldehyde concentration was of 22.4 µg/m 3 (18.2 ppb), which corresponds to a cancer risk of 112 per million for occupants with continuous exposure, which is more than 11 times the CEQA cancer risk of 10 per million.

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

For t
his calculation I utilized the floor area (2,272 ft 2), the ceiling height (8.5 ft), and the number of bedrooms (4) as defined in Appendix B (New Single-Family Residence Scenario) of the Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers, Version 1.1, 2017, California Department of Public Health, DRURY

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Richmond, CA. https://www.cdph.ca.gov/Programs/CCDPHP/
DEODC/EHLB/IAQ/Pages/VOC.aspx.

For t
he outdoor air ventilation rate I used the 2019 Title 24 code required mechanic al ventilation rate (ASHRAE 62.2) of 106 cfm (180 m3/h) calculated for this model residence.

For the composite wood formaldehyde emission rates I used the CARB ATCM Phase 2 rates.

The c
alculated maximum number of square feet of composite wood product that can be in a residence, without exceeding the CEQA cancer risk of 10 per million for occupants with continuous occupancy are as follows for the different types of regulated composite wood products.

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

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

Medi
um Density Fiberboard (MDF) – 3.6 % (offices) and 4.6% (hotel rooms), or Particle Board – 7.2 % (offices) and 9.4% (hotel rooms), or Hardwood Plywood – 13 % (offices) and 17% (hotel rooms), or Thin MDF – 11 % (offices) and 14 % (hotel rooms)
Cle
arly the CARB ATCM does not regulate the formaldehyde emissions from composite wood products such that the potentially large areas of these products, such as for flooring, baseboards, interior doors, window and door trims, and kitchen and bathroom cabinetry, could be used without causing indoor formaldehyde concentrations that result in CEQA DRURY

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cancer risks that substantially exceed 10 per million for occupants with continuous occupancy.

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

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

If
CARB Phase 2 compliant or ULEF composite wood products are utilized in construction, then the resulting indoor formaldehyde concentrations should be determined in the design phase using the specific amounts of each type of composite wood product, the specific formaldehyde emission rates, and the volume and outdoor air ventilation rates of the indoor spaces, and all feasible mitigation measures employed to reduce this impact (e.g. use less formaldehyde containing composite wood products and/or incorporate mechanical systems capable of higher outdoor air ventilation rates). See the procedure described earlier (i.e.

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

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

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Orange City CouncilApril 11, 2023

Orange City Council
April 11, 2023