Oxnard City Council
December 6, 2022

117.7 tons of NOx into the South Central Coast Air Basin that same year.179 Auto carrier ships emitted the greatest amount of NOx at 58.1 tons in 2018.180 The DEIR erroneously omits these emissions stemming from Port activity and their potential to grow given the increasing capacity the Project is intended to create. OHD has long held leveraging off-port infrastructure as part of its strategic plan for significantly increasing cargo throughput and velocity.181 Without acknowledging the impact that this increased activity will have on the region’s air quality, the DEIR shows only a small part of the environmental impact from the Project and is therefore unreliable.

The DEIR is Replete with Fundamental Modeling Errors and Omissions that Make the Emissions Findings Unreliable
The DEIR uses the California Emissions Estimator Model (CalEEMod), version 2016.3.2 to calculate emissions for both construction and operations of the Project.182An analysis of the underlying model inputs used to form the DEIR’s air quality impact analysis reveals several flaws that call into question the DEIR conclusions about air quality and VMT. In their expert report183, Matt Hagemann and Dr. Paul E. Rosenfeld explain how the DEIR conclusions on Air Quality impacts are flawed and cannot be relied upon. Several model inputs for CalEEMod were not consistent with the information disclosed in the DEIR. As a result, the Project’s construction and operational emissions are underestimated. We briefly summarize the findings of their review here:
• Failure to Model All Proposed Land Uses - the DEIR modelling inputs fail to include land uses for all 34-acres that the proposed Project will occupy. This, in turn, skews CalEEMod’s analysis which relies on the proper designation of land uses which are each assigned a set of energy usage emissions factors and trip rate factors that are used to calculate mobile-source emissions. Without proper modeling of proposed land uses, the calculations generated are unverifiable and unreliable.184 • Mixing Construction Phase Lengths - the DEIR arbitrarily changes default construction phase lengths without justification as is required, therefore making verification of the resulting calculations impossible. It also obscures the analysis as it arbitrarily spreads construction emissions out over a longer period for some phases but not other. This results in an underestimate of the peak daily emission associated with construction.185 • Changes to various default units result in unsubstantiated calculations for VMT - the DEIR imposes changes to the default off-road construction equipment amounts used for the modeling but fails to provide documentation to substantiate the changes as required 179 Starcrest Consulting Group, LLC, Draft Inventory of Air Emissions for Calendar Years 2018, 2017 and 2008, prepared for Oxnard Harbor District, (August 2020) [hereinafter, OHD Draft Air Emissions Inventory], pp 15 and

42. 180 Id. at 44. 181 See, 2030 Strategic Plan Port Infrastructure Workshop 182 DEIR, p. 5.3-10 183 Letter from Matt Hagemann and Dr. Paul E. Rosenfeld to Fernando Gaytan (February 9, 2022), [hereinafter “Hagemann & Rosenfeld”] attached as Addendum A.
184 Hagemann & Rosenfeld, p. 5 185Id. pp. 6-8
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under the CalEEMod User’s Guide. Changes to the default vendor trip number, without proper documentation to show justification for modifications, can result in an underestimate of construction-related emissions making the DEIR figures presented unreliable.186
• Presenting incorrect weekday and Saturday Operational Vehicle Trip Rates - the model used is inconsistent with the information provided in the DEIR by underestimating the number of weekend and Saturday vehicle trips to the site, therefore, making the emissions findings unreliable.187
• Incorrectly Analyzing Mobile-Source Operational Emissions for the Project - The modeling did not include a breakdown of the purpose of trips to the site, and in doing so, it failed to calculate annual VMT. Because no trip purpose is included- CalEEMod calculates the average overall trip length of zero, resulting in an annual VMT of zero. The model underestimates the Project’s operational emissions and should not be relied upon to determine the Project’s operational emissions.188
• Incorrectly Applying Construction-related and Energy-related Operational Mitigation Measures - The DEIR’s modeling includes alleged compliance with mitigation measures to justify changes without fully committing to their implementation, therefore potentially underestimating the Project’s construction-related impacts. In the case of energy-related operational mitigation, the DEIR bases its changes to default settings in the modeling with unsupported claims that nineteen solar light fixtures would result in a 75% energy reduction.189 Each of these errors calls into question the DEIR’s conclusions concerning air quality impact.

When these errors and omissions are removed, updated CalEEMod models result in much higher construction-related and operational emissions, as demonstrated in modeling conducted by Hagemann and Rosenfeld. In the case of construction-related VOC and NOx emissions, for example, the revised modeling results in increases of approximately 1,579% and 11%, respectively—amounts that substantially exceed VCAPCD significance thresholds.190 This updated analysis shows how air quality impacts in the DEIR may be significantly underestimated, and the Project has the potential to cause greater harm than is presented by the City’s findings.

In short, Hagemann and Rosenfeld conclude that the Project is likely to have significant air quality impacts related to construction and operation and the DEIR must conduct a full, detailed VMT analysis and adopt appropriate mitigation measures or pursue alternatives accordingly. The full analysis and conclusions reached by Hagemann and Rosenfeld can be found in the expert comment letter attached hereto and incorporated by reference as Addendum A. The City must respond to each of the points raised in the Hageman and Rosenfeld comment letter. 186 Id., pp. 6-10 187 Id. pp. 10-11 188 Id. pp. 11-12 189 Id., pp. 12-14 190 Hagmann & Rosenfeld, p. 15 1042
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The DEIR fails to adequately address the health impacts & toxic air pollutants of emissions
The DEIR improperly concludes that the Project will have less-than-significant health risk impacts without conducting a health risk impact assessment. To justify this omission from its analysis, the DEIR claims that the proposed Project would not be a potential source of Toxic Air Contaminants (TACs) because it is a temporary vehicle storage facility.191This cursory analysis of the Project’s potential exposure to nearby sensitive receptors is flawed, and the conclusion that TAC impacts would be less than significant is incorrect for several reasons, including the following.

1. The DEIR should include a quantified construction and operational Health Risk Assessment
The DEIR concludes that the Project will have a less-than-significant health risk impact without conducting a quantified construction or operational Health Risk Assessment (HRA).192 It bases its evaluation on an unsubstantiated conclusion that the land use does not involve TAC emissions based solely on the list of potential land use sources of toxic emissions from the California Air Resources Board (CARB) Air Quality and Land Use Handbook from 2005.193 The 2030 General Plan, however, requires the City to utilize the VCAPCD Air Quality Assessment Guidelines (AQAG) in preparing its environmental review194—a policy requirement the DEIR simply ignores. In doing so, the DEIR fails to compare the excess health risk impact of the Project to VCAPCD’s specific numeric threshold of 10 in one million.195 Under CEQA, the DEIR must go further in assessing air quality impacts on health. A Friant Ranch-type analysis that connects pollution levels with actual human health impacts196 can and must be done for this Project. Under this type of analysis, a study of the Project’s NOx emissions on ozone formation in the South Central Coast Air Basin and the resulting cumulative impact of these air emissions on human health is vital to the analysis.197 No such analysis was done for this Project.

The DEIR erroneously concludes that the land use does not involve TAC emissions, and therefore no health risk assessment is required.198 Had the AQAG been followed, however, the DEIR would reflect that a sufficient inquiry was conducted into the types and amounts of toxic 191 DEIR, p. 5.3-14 192 Id. 193 DEIR, p. 5.3-3 194 City of Oxnard, 2030 General Plan (amended June 2017) [hereinafter “Oxnard 2030 General Plan”], Policy ER14.12, p.9-24, available at https://www.oxnard.org/wp-content/uploads/2017/06/Oxnard-2030-General-PlanAmend-06.2017-SM.pdf.; See also, DEIR, p. 5.3-6 195 Ventura County Air Quality Assessment Guidelines.” Ventura County Air Pollution Control District (VCAPCD), October 2003, available at: http://www.vcapcd.org/pubs/Planning/VCAQGuidelines.pdf, p. 3-5 (hereinafter “October 2003 VCAPCD Guidelines”); See also, Hagemann & Rosenfeld, p. 17. 196 Sierra Club v. County of Fresno (Friant Ranch) (2018) 6 Cal.5th 502, 510 (the California Supreme Court found that CEQA requires analysis correlating increased project air emissions to the probable resulting human health effects).
197 Id. at 519-522 198 DEIR, p. 5.3-3
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substances the Project may end up using or emitting into the atmosphere at different stages.199 The AQAG also requires that projects proposed within one-quarter mile of an existing source (or sources) of TAC’s should be evaluated for the potential to be impacted by those TACs.200 There is no evidence that such an inquiry was made here. Furthermore, the CARB Air Quality and Land Use Handbook, which the DEIR relies upon for its assessment, refers to projects having to consult with local air districts to determine whether a health risk assessment must be performed.201 The DEIR does not show that this inquiry was made.

By failing to prepare a quantified construction and operational HRA, the Project precludes the requisite Friant Ranch-type analysis of the Project’s potential adverse impacts on human health.

The DEIR, for example, fails to address how the Project’s use of equipment producing diesel particulate matter (“DPM”) emissions during a construction phase lasting over 180 to 200 days202, will impact the region’s air quality and public health. The Project will also result in approximately 316 daily vehicle trips203, each generating additional emissions in the region. The DEIR, however, does not attempt to evaluate Project-generated TACs or indicate the concentrations at which the pollutants would trigger adverse health effects to the surrounding communities.204 The DEIR is therefore inconsistent with CEQA requirements to correlate increased emissions with the potential for human health impacts.

The Office of Environmental Health Hazard Assessment’s (OEHHA) recent Risk Assessment Guidelines published in February 2015205 recommends that all short-term projects lasting at least two months be evaluated for cancer risks to nearby sensitive receptors.206 The Construction of this project will go well beyond the 2-month threshold set forth under the OEHHA Risk Assessment Guidelines. Therefore, a quantified HRA may be warranted in this case.207 An analysis of health risk impacts posed to nearby sensitive receptors from the Project-generated DPM emissions must be included in an EIR for the Project as recommended under OEHHA guidelines.208

2. The DEIR should Examine Cumulative Health Risks from Increased Air Quality Impacts
The DEIR must also assess the health impacts of the project’s air quality impacts on impacted residents as an indirect impact from expanded operations.209 The clustering and centralization of 199 October 2003 VCAPCD Guidelines, p. 6-6. 200 Id. at 6-8 201 CARB Air Quality and Land Use Handbook (2005), available at https://ww3.arb.ca.gov/ch/handbook.pdf 202 DEIR, p. 5.3-10 203 See Traffic Study, p. 9, Table 2) 204 Hagemann & Rosenfeld, p. 6. 205 Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments, Office of Environmental Health Hazard Assessment (OEHHA), February 2015, available at:
http://oehha.ca.gov/air/hot_spots/hotspots2015.html
206 Id. at 8-17 through 8-18 207 Hagemann & Rosenfeld, p.17. 208 Id. 209 Berkeley Keep Jets Over the Bay Comm. v. Bd. of Port Comm'rs (2001) 91 Cal. App. 4th 1344, 1364, 1367, 1371. (Holding that the Port of Oakland’s EIR was insufficient because it did not analyze the health effects of toxic air contaminants from mobile sources on residents near the airport) 1044
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container vessels, yard equipment, rail operations, and truck traffic along freight transportation corridors places a heavy health burden on adjacent communities. Internal combustion vehicles create highly localized health hazards near busy roadways, including high levels of particulate matter and TAC exposures. The short- and long-term effects of exposure to high levels of ambient air pollution on children, and adults, is a major concern based on a large body of research documenting associations between exposure to pollution from traffic-related sources and illness.210
A “good faith reasoned analysis” of the health effects of any increase in TAC’s caused by the Project is required.211 This analysis should include a discussion of the health impact of TACs that would result from the combustion of diesel and gasoline engines associated with the entire car storage complex- including the 34-acres and the 250-acre sites, increased Port-related emissions due to augmented cargo throughput, and construction related to both sites.

Furthermore, as discussed above, the City should recognize that the Port’s proposed 34-acre storage site will likely shift Port emissions towards Oxnard populations adjacent to the Portserving freight corridors like Hueneme Rd. and may lead to an increase in traffic volume and vehicle emissions in these areas. The 250-acre project would only serve to shift Port emissions further inland and increase the magnitude of those emissions.

The analysis of health impacts to sensitive receptors- including those tied to all port expansion and infrastructure projects, was specifically requested as part of the commenters previous comments in response to the Notice of Preparation.212 Rather than address these concerns, the DEIR summarily dismisses them, stating that the Project is unrelated to the Ports.213 In doing so, the DEIR fails to adequately analyze the potential harms associated with the increased traffic and pollution that the Project will trigger and is therefore flawed.

Health Impacts Assessment should, at a minimum, address the following:
• Particulate matter. Numerous studies have documented a wide range of adverse health impacts from PM exposure, including increased rates of respiratory illness and asthma, cardiovascular disease, heart attacks, strokes, emergency room visits, and premature death.214 Exposure to PM has also been linked to birth defects, low birth weights, and 210 See, e.g., Univ. S. Cal., USC Children’s Health Study: Study Findings, https://healthstudy.usc.edu/study-findings/ (last accessed Oct. 1, 2019); “The Children’s Health Study,” https://ww3.arb.ca.gov/research/chs/chs.htm (last accessed Oct. 1, 2019); John M. Peters, Univ. S. Cal., Epidemiologic investigation to identify chronic effects of ambient air pollutants in Southern California (2004), available at https://ww3.arb.ca.gov/research/singleproject.php?row_id=60245; Andrea Hricko, Glovioell Rowland, Sandrah Eckel, Angelo Logan, Maryam Taher, and John Wilson, Global Trade, Local Impacts: Lessons from California on Health Impacts and Environmental Justice Concerns for Residents Living near Freight Rail Yards, INT.J. ENVIRON. RES. PUBLIC HEALTH (2014), available at https://doi.org/10.3390/ijerph110201914. 211 See Berkeley Keep Jets Over the Bay, Supra,19 Cal.App.5th at 1371 (quoting Laurel II, 6 Cal. 4th at 1124); compare with City of Long Beach, 19 Cal.App.5th at 487. 212 See Letter from CAUSE, et al., to the City of Oxnard Planning Department (July 24, 2020), p.2. 213 DEIR, p. 2-9 214See Nino Künzli et al., Ambient Air Pollution and Atherosclerosis in Los Angeles, 113 ENVTL. HEALTH PERSP. 201, 201–06 (2005); Kristin A. Miller et al., Long-Term Exposure to Air Pollution and Incidence of Cardiovascular Events in Women, 356 NEW ENG. J. MED. 447, 447–58 (2007); B. Hoffman et al., Residential Exposure to Traffic Is 1045
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premature births.215 Recent studies have shown a potential connection between exposure to fine PM and diabetes, cognitive decline, and other serious impacts on the brain.216 Exposure to particulate matter, even for a short period, can elevate the risk of death.217 Here, particulate matter must be analyzed not only for the construction and operation of the project, but in connection with the larger expansion efforts that include port capacitybuilding projects and the Multimodal Logistics Park that this Project is a part of. • Diesel exhaust. Of special concern is the soot in diesel exhaust—diesel PM,218 which is especially toxic, not only because of its very small size, but also because the soot particles contain roughly forty different TACs, fifteen of which are recognized carcinogens.219 In 2013, the International Agency for Research on Cancer, a branch of the World Health Organization, concluded that diesel engine exhaust is “carcinogenic to humans.”220 Dozens of studies have shown high risks of lung cancer in occupations with high diesel exposures, including rail workers, truck drivers, and miners. Not only do the risks of lung cancer approach that of heavy smokers for the most exposed workers, but the elevated risks of lung cancer apply to the general population in areas with high levels of diesel PM (e.g., communities near freeways and busy freight corridors).221 Other studies have also documented the health hazards of living near busy roadways heavily Associated With Coronary Atherosclerosis, 116 CIRCULATION 489 (2007); C. Arden Pope III et al., Ischemic Heart Disease Events Triggered by Short-Term Exposure to Fine Particulate Air Pollution, 114 CIRCULATION 2443 (2006); Michael Jerrett et al., Spatial Analysis of Air Pollution and Mortality in Los Angeles, 16 EPIDEMIOLOGY 727, 727–36 (2005); Hazrije Mustafic et al, Main Air Pollutants and Myocardial Infarction: A Systematic Review and Meta-Analysis, 307 J. AM. MED. ASS’N 713 (2012); Gregory A. Wellenius et al, Ambient Air Pollution and the Risk of Acute Ischemic Stroke, 172 ARCHIVES INTERNAL MED. 229 (2012). 215See Beate Ritz et al., Air Pollution and Infant Death in Southern California, 1989–2000, 118 PEDIATRICS 493, 493–502 (2000); Michelle Wilhelm & Beate Ritz, Residential Proximity to Traffic and Adverse Birth Outcomes in Los Angeles County, California, 1994–1996, 111 ENVTL HEALTH PERSP. 207, 207–16 (2003); Michelle Wilhelm & Beate Ritz, Local Variations in CO and Particulate Air Pollution and Adverse Birth Outcomes in Los Angeles County, California, USA, 113 ENVTL. HEALTH PERSP. 1212, 1212–21 (2005). 216 See Heather E. Volk et al., Residential Proximity to Freeways and Autism in the CHARGE Study, 119 ENVTL.

HEALTH PERSP. 873 (2011); Zorana J. Anderson et al., Diabetes Incidence and Long-Term Exposure to Air Pollution: A Cohort Study, 35 DIABETES CARE 92 (2011); Lilian Calderón-Garcidueñas et al., Neuroinflammation, Hyperphosphorylated Tau, Diffuse Amyloid Plaques, and Down-Regulation of the Cellular Prion Protein in Air Pollution Exposed Children and Young Adults, 28 J. ALZHEIMER’S DISEASE 93 (2012); Jennifer Weuve et al., Exposure to Particulate Air Pollution and Cognitive Decline in Older Women, 172 ARCHIVES INTERNAL MED. 219 (2012).
217 U.S. Environmental Protection Agency, How Does PM Affect Human Health? https://www3.epa.gov/region1/airquality/pm-human-health.html (last visited Jan. 27, 2020) 218 Diesel PM is generally more harmful than non-diesel forms of particulate matter. See State of New Jersey, Department of Environmental Protection, Bureau of Mobile Sources, Health Concerns of Diesel, http://www.state.nj.us/dep/stopthesoot/dieselhealthconcerns.htm (last visited Sept. 15, 2019); Krivoshto, et al., The Toxicity of Diesel Exhaust: Implications for Primary Care, J AM BOARD FAM MED, , vol. 21, no. 1, at 55–62 (Jan– Feb. 2008), available at http://www.jabfm.org/content/21/1/55.full. 219 See, Air: Health Effects of Diesel Exhaust, Cal. Off. Envtl Health Hazard Assessment, https://oehha.ca.gov/air/health-effects-diesel-exhaust (last visited Sept. 15, 2019); The Report on Diesel Exhaust, Cal. Air Res. Bd., http://www.arb.ca.gov/toxics/dieseltac/de-fnds.htm (last visited Sept. 15, 2019). 220 Press Release, International Agency for Research on Cancer, World Health Organization, IARC: Diesel Engine Exhaust Carcinogenic (June 12, 2012), available at https://www.iarc.fr/wp-content/uploads/2018/07/pr213_E.pdf (last visited Jan. 31, 2020)
221 See Debra T. Silverman et al., The Diesel Exhaust in Miners Study: A Nested Case–Control Study of Lung Cancer and Diesel Exhaust, 104 J. NAT’L CANCER INST. 1 (2012). 1046
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traveled by diesel trucks.222 In California, diesel emissions are responsible for about 70 percent of California's cancer risks related to air toxins. 223 These health impacts are of
particular concern for residents who live near roadways used by diesel trucks serving the Port of Hueneme. While the DEIR claims that the project will eliminate the use of diesel trucks, this does not provide sufficient analysis of potential impacts of the Project when viewed as a whole. As stated previously, this Project must be analyzed in context with its role in facilitating the larger Multimodal Logistics Park that it will help support as well as OHD’s port expansion endeavors. Even the limited analysis provided, however, is flawed in that it is narrowly focused on only certain construction-related equipment and fails to include the broad inventory of equipment that will be utilized at the Project, including potentially diesel-powered water trucks likely to become part of routine operations. • Nitrogen oxides and ground-level ozone. NOx also has a toxic effect on human airways, leading to inflammation, asthmatic reactions, and worsening of allergies and asthma symptoms.224 In addition, NOx reacts with VOCs in the sunlight to form ozone— also known as smog. This layer of brown haze contributes to decreased lung function, increased respiratory symptoms, asthma, emergency room visits, hospital admissions, and premature deaths.225 Ozone can also cause irreversible changes in lung structure, eventually leading to chronic respiratory illnesses, such as emphysema and chronic bronchitis.226 The Project’s potential health impacts to the surrounding community must be examined as a whole to include the larger Multimodal Logistics Park and Port expansion as described above.
222 Nino Kunzli et al., Ambient Air Pollution and the Progression of Atherosclerosis in Adults, PLOS ONE, vol. 5, issue 2 (Feb 2010), available at
http://www.plosone.org/article/related/info%3Adoi%2F10.1371%2Fjournal.pone.0009096;jsessionid=46505FD078 D22F6B9543D5BB5C4BDF0D; W James Gauderman et al., Effect of exposure to traffic on lung development from 10 to 18 years of age: a cohort study, THE LANCET (Jan. 26, 2007); Living Close to Freeways Decreases Lung Development, AAP GRAND ROUNDS, Vol 18, No. 6 (Dec. 2007), available at http://aapgrandrounds.aappublications.org/content/18/6/67.extract; Laura Perez et al., Global Goods Movement and the Local Burden of Childhood Asthma in Southern California, AM J PUB HEALTH, Vol. 99, No. S3 (2009), available at
http://ajph.aphapublications.org/doi/full/10.2105/AJPH.2008.154955?prevSearch=mcconnell&searchHistoryKey=. 223 Cal. Air Res. Bd., “Overview: Diesel and Health,” (last accessed: Dec. 30, 2019), https://ww2.arb.ca.gov/resources/overview-diesel-exhaust-and-health. 224 See R.J. Davies et al., Allergen-Irritant Interaction and the Role of Corticosteroids, 52 ALLERGY 59, 59–65 (1997); R.J. Davies et al., Why is Allergy Increasing?—Environmental Factors, 28 CLINICAL & EXPERIMENTAL ALLERGY 8, 8–14 (1998). 225 See U.S. Envtl. Protection Agency, Provisional Assessment of Recent Studies on Health and Ecological Effects of Ozone Exposure (2009).
226See J.E. Hodgkin et al., COPD Prevalence in Nonsmokers in High and Low Photochemical Air Pollution Areas, 86 CHEST 830, 830–38 (1984); David E. Abbey et al., Long-Term Ambient Concentrations of Total Suspended Particulates, Ozone, and Sulfur Dioxide and Respiratory Symptoms in a Nonsmoking Population, 48 ARCHIVES OF ENVTL. HEALTH 33, 33–46 (1993)
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VIII. The DEIR Underestimates the Impact to Biological Resources An EIR must provide sufficient analysis to allow decision-makers to make informed choices based on a full account of the environmental consequences.227 CEQA does not require perfection, but it does call on lead agencies to “use its best efforts to find out and disclose all that it reasonably can.”228
Here, the City has failed to carry out the best efforts in evaluating the special-status species that could depend on the site as habitat or for movement. Therefore, the DEIR contains deep gaps and lacks the information necessary to allow the City to make an informed decision on how the Project could impact biological resources. Based on the report and analysis of Dr. Shawn Smallwood, “essential steps remain incomplete and insufficiently informative in the DEIR.”229 Due to this incomplete analysis, the DEIR does not (and cannot until a new draft EIR is recirculated) fully evaluate the potential impacts, must less whether the impacts exceed the significant thresholds for habitat loss (BIO-1, BIO-2), wildlife movement (BIO-4), conflicts with protective policies, ordinances, and/or plans (BIO-5. BIO-6), or cumulative impacts.230 Furthermore, where the DEIR does acknowledge significant impacts, the described mitigation measures are inadequate to address even the limited impacts identified.

DEIR underestimates the impact of the Project on sensitive or special status biological resources (BIO-1, BIO-2)
The DEIR identifies a “Potentially Significant Impact” to ground-nesting species such as the western meadow lark, burrowing owl, and the California horned lark, and “Potentially Significant Impact” to suitable habitat for the latter two species of birds.231 The City acknowledges that migratory birds, bird species with protected status, and birds of prey are all protected under California or federal laws from having their nesting sites disturbed or destroyed in any way.232 The DEIR further acknowledges that construction activities with the proposed Project would adversely affect nesting birds through either mortality or abandonment of nests.233 The DEIR fails to analyze impacts from the destruction of habitat for the burrowing owl and the California horned lark- two species identified as potentially impacted by the Project construction and activity. Instead, the DEIR focuses exclusively on construction-related activity without considering the potential impact oflong-term destruction of habitat and activity at the site, even if temporary. Furthermore, the DEIR severely underestimates the wildlife, including special-status species, that use the site.
227 Cal. Code Regs., tit. 14 §15151; see also Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712, reh'g denied and opinion modified (July 20, 1990) (“A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decision making and informed public participation, thereby thwarting the statutory goals of the EIR process.”).
228 Cal. Code Regs., tit. 14, §15144. 229 Letter from Shawn Smallwood, PhD. To Jay Dobrowalski (February 9, 2022) [hereinafter “Smallwood”] p. 14. 230 DEIR, p. 5.4-1. 231 DEIR, pp. 5.4-20 to 5.4-22. 232 Id. 233 Id. 1048
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1. DEIR fails to analyze the impact of permanent habitat loss The DEIR does not address the impact of permanent habitat loss on wildlife that depends on the site, including special-status species like the burrowing owl.234 Dr. Smallwood estimates that the GLOVIS project could deny California approximately 190,720 birds over the next century due to habitat loss.235 Despite the “temporary” nature of this project, the habitat loss impacts would likely be permanent as grading and packing of the soils over a five-year period would permanently degrade the soil and reduce the habitat values of the property.236 The DEIR should be revised to assess the impacts from this habitat loss, including the impact on the neighboring wetland restoration project, and study alternatives or develop mitigation measures as necessary.

2. DEIR relies on incomplete biological resources reports and incorrectly states that no special-status species rely on the site
DEIR relies solely on flawed biological resources inventories that present an incomplete and incorrect assessment of the special-status species that could use the site. The biological resources report carried out by consultant Rincon Consultants is based on two field surveys of only three person-hours total in 2018 and 2020.237 The surveys and literature review conducted by Rincon Consultants are inadequate in multiple ways, as described at more length in Dr. Smallwood’s report, such as the failure to discuss wildlife on adjacent properties like The Nature Conservancy property undergoing wetland restoration.238 Furthermore, Rincon Consultants were not provided with a project description to inform their analysis.

The DEIR also improperly relies solely on the California Natural Diversity Data Base (CNDDB) to establish the environmental baseline of the site.239 While the CNDDB “can be helpful for confirming occurrences of special-status species where they have been reported, it cannot be relied upon for determining absences of species.”240 Instead of using the CNDDB as a starting point, the DEIR assumes that because none of the special-status species listed in the CNDDB within a 5-mile radius were detected, no special-status species must use the site. If the DEIR had also consulted with other wildlife occurrence data sources, such as eBird and iNaturalist, several more special-status species occurrences at and near the project could have been incorporated into the biological report.241 Furthermore, their conclusion that no special-status species use the site is not only an improper use of the CNDDB, but also incorrect based on Rincon’s own 2018 survey, and Dr. Smallwood’s more comprehensive surveys.

The biologists who carried out the surveys only identified 7 wildlife species in total and stated that no special-status species were detected.242 However, despite the very low number of species 234 Smallwood, p. 17-22. 235 Smallwood, p. 22. 236 Smallwood, p. 17. 237 DEIR, Vol II, Appendix E (2018) and Appendix F (2020). 238 Smallwood, pp. 14-17. 239 DEIR, pp. 5.4-17 to 5.4-19. 240 Smallwood, p.15. 241 Id. at p. 15 242 DEIR, pp. 5.4-17, 5.4-20; see also DEIR Vol II, Appendix E, pp. 6-7; Appendix F, p. 2; 1049
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they detected, the biologists did, in fact, detect two special-status species: red-tailed hawk and double-crested cormorant.243 The red-tailed hawk is protected by California Fish and Game Code § 3503.5, which prohibits the taking, possession, or destruction of birds of prey.244 The doublecrested cormorant is on the Department of Fish and Wildlife’s (CDFW) Special Animals List as a species with an extensive range and/or sizeable population, but with cause for concern as a result of recent local declines, threats, or other factors.245 The CDFW Special Animals List states that the list “is also referred to as the list of ‘species at risk’ or ‘special status species.’” The DEIR applies an improperly narrow definition of “special-status species,” leaving out species protected by the CDFW Special Animals List.246
Dr. Smallwood conducted two biological surveys on January 27 and 28, 2022, and detected 47 vertebrate wildlife species, including 12 special-status species.247 However, as his report makes clear, the survey results can only be a starting point toward a full characterization of the wildlife that depend on a site.248 Based on his statistical analysis and data from over 150 previous surveys, Dr. Smallwood estimated that he had a 64% chance of detecting a listed species, whereas Rincon Consultants had a 10.5% chance based on their survey methods.249 The fact that Rincon Consultants only detected 16% of the number of species Dr. Smallwood did over the same person-hours is further evidence of the inadequacy of their survey methods.250

3. There is evidence special-status species use the site Overall, while the DEIR does acknowledge potentially significant impacts to the burrowing owl, the California horned lark, and the western meadow lark from construction activities,251 there is ample evidence to suggest that this falls short of a full assessment of the range of special-status species that could be significantly impacted by the GLOVIS project.252 Dr. Smallwood is confident listed species use the site and believes that with another 4 or 5 survey hours, he would have detected one, and in fact, may have detected at least one.253 The DEIR incorrectly states that due to “the high degree of urbanization surrounding the project site coupled with no suitable habitat available, other special-status species are not likely to occur.”254 Not only is there evidence that several special-status species do use the site, but this 243 DEIR p. 5.4-16. 244 Cal. Fish & Game Code §3503.5. 245 See, Department of Fish and Wildlife, Special Animals List (Jan. 2022), https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=109406&inline 246 DEIR p. 5.4-17. DEIR only defines “special status species” as those listed, proposed for listing, or candidates for the ESA, those listed or candidates for listing under the CESA, those identified as Fully Protected under California Fish and Game Code Sections 3511, 4700, 5050, and 5515; Species of Special Concern (SSC) identified by the CDFW; and plants occurring on Ranks 1 and 2 of the California Native Plant Society's California Rare Plant Rank system.
247 Smallwood, pp. 1-9 248 Id. at pp. 13-17. 249 Id. at p. 13. 250 Id. at p. 14. 251 DEIR, p. 5.4-21. 252 Smallwood, pp. 2-17. 253 Id. at pp. 4-13 (noting that savannah sparrow may have been a listed species). 254 DEIR, p. 5.4-20. 1050
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statement also mischaracterizes how special-status species depend on even degraded habitat. Dr.

Smallwood describes how “most special-status species will make sure of whatever remains of the environment in which they evolved, so long as soils have not been covered by impervious surfaces and vegetation can grow to provide forage and cover and nest sites.” 255 Furthermore, this characterization ignores that most of the southern border of the property is directly adjacent to an active wetland restoration project. It also downplays this project’s own role in intensifying urbanization and industrialization in this area by further degrading almost 34-acres of grasslands.

There is evidence that suggests that the property, despite its previous uses, historical disturbances, and possible contamination, maintains high ecological value.256 In addition to the special-status species detected at and near the site, Dr. Smallwood also detected an ecological keystone species, the California ground squirrel, which increases the likelihood of species that rely on ground squirrels for forage or on their burrows as refuge, such as burrowing owls.257 Furthermore, based on a review of publicly available data, Dr. Smallwood determined that 87 special-status species of wildlife have the potential to occur at the project site and that there was ample evidence to believe the proposed project as described in the DEIR would have significant impact on special-status species.258
As stated above, survey results alone cannot present a full characterization of a site’s use by wildlife, but the amount of wildlife Dr. Smallwood detected during his surveys presents undeniable evidence that the site’s ecological value is much higher than articulated by the DEIR.

In addition to the double-crested cormorant and the red-tailed hawk, Dr. Smallwood detected several special-status species on the property or just off the site. 259
Species Name Status
Large-billed savannah sparrow or
Belding’s savannah sparrow
S2* (Imperiled) (large-billed) / S3* (Vulnerable) and
California Endangered* (Belding’s)
Vaux’s swift S2S3* (between Imperiled and Vulnerable)
Northern harrier S3* (Vulnerable)
Merlin S3S4* (between Vulnerable and Apparently Secure) Double-crested cormorant S4* (Apparently Secure)
Great blue heron S4* (Apparently Secure)
Great egret S4* (Apparently Secure)
Loggerhead shrike S4* (Apparently Secure)
California gull S4* (Apparently Secure), Bird of Conservation Concern#
Allen’s hummingbird Bird of Conservation Concern#
Western gull Bird of Conservation Concern#
Turkey vulture Taking prohibited by CA Fish and Game Code 3503.5 255 Smallwood, p. 15. 256 It should be noted that the site has not been disturbed since 2013, but even before then only portions of the property were graded or compacted due to stockpiling. DEIR p. 5.4-10. 257 Smallwood, p. 16. 258 Id. 259 Id., pp. 2-4. 1051
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Red-tailed hawk Taking prohibited by CA Fish and Game Code 3503.5 American kestrel Taking prohibited by CA Fish and Game Code 3503.5 * - listed by the California Department of Fish and Wildlife # - listed by U.S. Fish and Wildlife Service

4. DEIR fails to consider the impact from artificial lights, fence mortality, and car collisions
Nineteen security lights will be installed on the perimeter of the property, which will not only illuminate the property itself, but also the Ormond Beach wetlands directly to the south. These lights would likely disturb nocturnal wildlife on the adjacent property that rely on darkness for stealth or that will be confused by stark light/shadow contrasts.260 These disturbances can disrupt foraging activity, movement patterns, navigation, development of eggs and juveniles, or even lethally attract flying birds.261 The DEIR fails to analyze this impact.

The DEIR also fails to study the impact of the 6-foot security fences on wildlife. Based on studies on bird-fence collision mortality, an estimated 26.5 birds may be killed annually by the fence.262 Since the DEIR describes that the fence will remain beyond the five-year permit, these impacts will continue as long as the fence is up.

Lastly, the DEIR fails to study how the project will contribute to wildlife-automobile mortality.263 Based on projections carried out by Dr. Smallwood based on the VMT estimates for the project, he estimated that over the five-year period the project would accumulate 1,030 wildlife fatalities.264 As such, project-generated traffic would result in significant impact to wildlife using the site and the surrounding areas, including the Ormond Beach wetland restoration project.

The DEIR should be revised to assess these impacts and study alternatives or develop mitigation measures as necessary.

DEIR fails to consider the full impacts of the Project on wildlife movement (BIO-4)
The DEIR does not adequately analyze the impact of the Project on wildlife movement. First, it too narrowly focuses on whether the site itself could be used as a wildlife movement corridor.

However, the CEQA guidelines define significant impact on wildlife movement as to whether an action would “interfere significantly with the movement of any native resident or migratory fish or wildlife species or with establish native resident or migratory wildlife corridors, or impede the use of a native wildlife nursery site.”265 A broader understanding of how wildlife use habitats to 260 Smallwood, p. 21 261 Id. at p. 21. 262 Id. at p. 22. 263 Id. at pp. 23-24 264 Id. at p. 26. 265 CEQA Guidelines, Cal. Code. Regs., tit.14, 15000 et seq., App. G, Section IV 1052
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move and migrate is necessary to adequately assess whether the project will have a significant impact on wildlife movement.

Second, since the DEIR largely ignores the value of this property for wildlife, it also assumes wildlife is unlikely to use the site for regional movement.266 However, Dr. Smallwood disputes this assertion based on his biological surveys; he witnessed birds using the site to gain lift for long-distance glides and use the thermals generated by the natural soils of the site to circle.267 Furthermore, based on the types of species that are likely to use the site, Dr. Smallwood determined that many species likely use the site for movement across the region.268 The DEIR must be revised to include a complete study of how converting 34-acre of undeveloped land into car storage with a 6-foot fence and 24-hour security lights could impact the wildlife that may use the site for stopover or staging opportunities. If a significant impact is identified, appropriate alternatives and mitigation measures should also be developed and studied.

Lastly, the DEIR ignores the impact that the project could have on wildlife in the neighboring wetlands. Instead, the DEIR merely names that the land is “vacant and undeveloped” and slated for restoration.269 This is an incorrect characterization of the neighboring land, which is the most important coastal wetland restoration opportunity in California, and a critical and sensitive habitat home to many species.270
As noted by UCLA researcher Brenton Spies, who serves on U.S. Fish and Wildlife Service (USFWS) Tidewater Goby Recovery Team, the Project may pose additional threats to the northern tidewater goby (Eucyclogobius newberri)– a federally endangered species. According to Mr. Spies, the DEIR does not thoroughly address the Project’s potential impacts to the northern tidewater goby “suitable occupied habitat” in the Ormond Lagoon Waterway that runs directly south and southeast of the proposed 34-acre site. Mr. Spies has documented numerous northern tidewater gobies in the Ormond Lagoon Waterway channel during surveys conducted between 2014 and January 2020. The channel was not included in surveys done for the DEIR’s Biological Resource Inventory. In failing to do so, the DEIR does not properly assess whether the proposed construction and operation at the site will cause indirect effects to the Ormond Lagoon Waterway aquatic habitat and biota. Full analysis, conclusions, and recommendations by Mr. Spies can be found in Addendum C to these comments. The City must respond to each of the points raised in his comment letter.
266 DEIR, p. 5.4-25. 267 Smallwood, p. 23. 268Id. at p. 23. 269 DEIR, p. 5.4-25. 270 Ormond Beach Restoration and Public Access Project Plan, p. ES-1. 1053
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DEIR fails to consider conflict with local policies or ordinances and improperly finds no impact (BIO-5, BIO-6)
The DEIR incorrectly states that there are no biological resources on-site that would be subject to policies or ordinances.271 As discussed above, there is substantial evidence that the property is an important wildlife habitat, including for special-status species. Therefore, there are a number of local policies and ordinances in the Oxnard General Plan, the Oxnard Local Coastal Plan, the Ventura Local Coastal Plan, among others, that apply to this property that either were not referenced or studied in the DEIR. For example, the Oxnard General Plan calls for the protection of “City’s natural resource areas, fish and wildlife habitat, scenic areas, open space areas, parks, and cultural and historic resources from unnecessary encroachment or harm and if encroachment or harm is necessary, fully mitigate the impacts to the maximum extent feasible.”272 As discussed in detail above, there is substantial evidence that this project would have such impacts on the City’s biological resources and so a recirculated DEIR would need to develop and include mitigation measures.

The DEIR does reference the Ormond Beach Restoration and Public Access Project but finds that the project does not conflict with this Plan.273 There is evidence, described above as well as in other comments to their DEIR, that the project would in fact conflict with the goals of the Ormond Beach restoration plan by further degrading (at best) or permanently destroying (at worse) habitat necessary for species living in the adjacent property.

The cumulative impacts assessment for biological resources is flawed and incomplete
As discussed above, the DEIR provides an incomplete list of other projects that cause or will cause related impacts, and therefore provides a deficient analysis of the cumulative impacts from the project.274 Due to this deficiency, the DEIR fails to consider how these cumulative impacts may further degrade the habitat on this property, which is important for the connectivity of the surrounding wetland restoration project. These include the cumulative impact on wildlife mortality from an increase in VMT from housing, industrial and port expansion projects, among other impacts described by Dr. Smallwood in his report.275 DEIR finds that cumulative impacts are less than significant based on the assumption that all future development will comply with all applicable federal, state, and city regulation regarding the preservation of biological resources.276 This flies in the face of how CEQA defines cumulative impacts. CEQA requires that a lead agency must issue a finding of significant impacts if the project “has possible environmental effects that are individually limited but cumulatively considerable. ‘Cumulatively considerable’ means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the 271 DEIR, p. 5.4-25 272 Oxnard 2030 General Plan, Policy ER-1.1, p. 9-21 273 DEIR, pp. 5.4-25 to 26. 274 See Cal. Code Regs., tit. 14, §15130(a)(1). 275 Smallwood p. 27. 276 DEIR, p. 5.4-29. 1054
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effects of other current projects, and the effects of probable future projects.”277 As discussed in more detail above, the DEIR has failed to adequately characterize the Project itself by piecemealing this 34-acre project from reasonably foreseeable projects. But even viewing the GLOVIS project in isolation, CEQA requires that a lead agency evaluate how the project at issue may cumulatively contribute to significant impacts. The DEIR fails to do so here.

The full analysis and conclusions reached by Dr. Smallwood can be found in the expert comment letter attached hereto and incorporated by reference as Addendum B. The City must provide responses to each of the points raised in the Smallwood comment letter.

IX. Cultural Impact Assessment: Fails to properly consider Tribal Cultural Resources in the area
As stated above, we join the Wishtoyo Chumash Foundation in its criticism of the DEIR for failing to properly account for the Project’s potential impacts on Tribal Cultural resources and ancestral remains.278 Not only does the City inappropriately conflate the meaning of “cultural sites” with “archeological sites,” but it also failed to conduct the proper analysis and use of best available technology and methods for identifying Tribal Cultural Resources. The Project site is in a region replete with examples of sensitive cultural sites found using more rigorous methods than those proposed in the DEIR. The DEIR’s analysis of the potential impact on Cultural Resources is therefore flawed, unreliable, and should be rejected.

X. DEIR Presents Insufficient Analysis of Land Use Impacts from the Proposed Project
All counties and cities in California must adopt comprehensive general plans279 for future physical development, and all land use decisions must be consistent with the policies expressed in those plans.280 The general plan is “located at the top of the hierarchy of local government law regulating land use.”281 It serves as a “constitution” or “charter” for all future development in the region.282 State law requires that all subordinate land use decisions, including conditional use permits, be consistent with the general plan.283
Courts recognize that not every decision will be in perfect conformity with every policy expressed in adopted plans, but land use decisions must be compatible with the objectives, policies, general land uses, and programs specified in applicable plans.284 Therefore, CEQA 277 Cal. Code Regs., tit. 14, §15065(a)(3). 278 See Letter from Wishtoyo Chumash Foundation to Jay Dobrowalski (February 14, 2022) (submitted as comment to the DEIR for this Project).
279 Cal. Pub. Res. Code §30500(a) (In addition to General Plans, municipalities within the Coastal Zone must also develop Local Coastal Plan to guide coastal development). 280 See Gov. Code § 65300; see also Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 815. 281 See DeVita v. County of Napa (1995) 9 Cal.4th 763,773 (internal quotations omitted) 282 Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531,540. 283 See Gov. Code§65860(a)(2); See also, Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176,1184.
284 Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1511. 1055
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requires agencies to discuss inconsistencies between the proposed project and applicable plans, including land use plans.285A project cannot be found consistent with a general plan if it conflicts with a general plan policy that is “fundamental, mandatory, and clear,” regardless of whether it is consistent with other general plan policies.286 Even in the absence of such a direct conflict, an ordinance or development may not be approved if it interferes with or frustrates the general plan’s policies and objectives. 287
Here, despite the assertion that the Project is consistent with land use policy, the DEIR provides only cursory analysis of City of Oxnard Threshold LU-1— to determine whether the proposed project could conflict with the City of Oxnard General Plan. The rationale provided by the City for claiming that the proposed project is consistent with the General Plan is that 1) it is consistent with the Light Industrial288 Designation, and 2) that the proposed temporary use for the site for outdoor vehicle storage does not preclude other uses in the future.289 This does not address the incompatible use for which the site will be altered and completely ignores the portion of the site designated as “Park” (PRK) in the 2030 General Plan. The DEIR, therefore, fails to adequately assess land use impacts.

Regarding the General Plan land use designations, the DEIR claims that they are Industrial Limited (ILM) and Park (PRK) and claims that the proposed Project is “consistent with the General Plan Industrial Limited designation” because the project is temporary and does not include any permanent structures or preclude future development. The actual 2030 General Plan designation for the site includes “Industrial Light” and “Park” use.290 “Light Industrial” is defined as “[m]anufacturing uses where the principal activity occurs within a building [with] outdoor assembly, fabrication, work/live, public services, and storage.”291 While it is conceivable that certain vehicle storage sites might fall under the “Light Industrial” designation, it is inconsistent with the “Park” designation that applies to over four acres of the proposed site. In determining whether the Project is consistent with the 2030 General Plan land use designation, the DEIR simply ignores the fact that the current proposal takes the portion of the project site designated as a park on the General Plan Map and unilaterally converts it to industrial uses.

The DEIR attempts to justify this inconsistency by arguing that the City’s Zoning designation of M-1-PD (Light Manufacturing Zone with Planned Development Additive Zone) applies to both parcels of the site and should therefore govern even if part of the site is designated for park use 285 Cal. Code Regs., tit. 14 § 15135(d), (e); see also Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1566.
286 See Endangered Habitats League v. County of Orange (2005) 131 Cal.App.4th 777, 782-83; Families Unafraid to Uphold Rural El Dorado County v. Bd. Of Supervisors (1998) 62 Cal.App.4th 1332, 1341-42. 287 See Napa Citizens for Honest Gov. v. Napa County Bd. Of Supervisors (2001) 91 Cal.App.4th at 378-79. 288 The DEIR erroneously refers to the Project site being designated as “Industrial Limited” (ILM) when it is actually designated as “Light Industrial”(ILT) in the Oxnard 2030 General Plan; See, Oxnard 2030 General Plan Map available at https://www.oxnard.org/wp-content/uploads/2016/06/2030-GENERAL-PLAN-11x17-04.16.pdf 289 DEIR, Sections 5.11, P. 5.11-15 290 Oxnard 2030 General Plan Map, available at https://www.oxnard.org/wp-content/uploads/2016/06/2030- GENERAL-PLAN-11x17-04.16.pdf 291 Oxnard 2030 General Plan at 3-17. 1056
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under the 2030 General Plan.292 However, where a city’s zoning ordinance is inconsistent with the general plan, the city must enact a consistent zoning ordinance that conforms to the general plan within a “reasonable time.”293 Moreover, although Oxnard’s Zoning Ordinance has designated the Project site to exist in a Light Manufacturing Zone, it is also distinguished by a “planned development additive zone” designation.294 The P-D designation permits departures from the restrictions imposed within the basic zones as specified in the Zoning Ordinance, especially in instances when it offers advantages to protect nearby uses such as areas of natural beauty, natural resources, and public parks.295 The DEIR acknowledges that “the purpose of zoning is to implement the policies of the General Plan.”296 Therefore, the DEIR cannot avoid reconciling the designation of part of the Project site as park land, even if it is zoned for “light industrial.”
The DEIR Severely Underestimates Land Use Impacts and Fails to Adequately Assess Conformity with the City of Oxnard 2030 General Plan Contrary to the DEIR findings, the Project will likely cause significant land use impacts.

Inconsistency with just a single policy or goal of a general plan can be the basis for a finding of significant impacts under CEQA.297 The land use impact analysis is deficient in several respects.

First, under LU-3, the DEIR fails to address how the Project has the potential to disrupt and divide the communities of South Oxnard immediately adjacent to the site. Second, under LU-1, the DEIR understates the land use impacts created by expanding traffic onto local streets, and into the community and the conflicts this creates with the City of Oxnard 2030 General Plan.

Finally, the DEIR does not adequately address the cumulative impact of existing and planned future projects on land uses in the region.

The Project will Disrupt or Divide Communities
The City’s 2030 General Plan Goal- CD-3, aims to create a city of stable, safe, attractive, and revitalized neighborhoods with adequate parks, schools, infrastructure, and community identity and pride.298 To implement this goal, the 2030 General Plan sets out CD-3.1— a policy for neighborhood preservation designed to protect existing residential neighborhoods from the encroachment of incompatible activities and land uses. The 2030 General Plan also sets out a goal to ensure appropriate industrial development that will allow industrial activity in “appropriate areas” with a policy of encouraging “adequate separation between sensitive land uses (residential, educational, open space, healthcare) to minimize land use incompatibility with noise, odors, and air pollutant emissions” to ensure appropriate land use.299 292 DEIR, Section 3.2, pp. 3-1 through 3-2 293 See Gov’t Code Section 65860(c). 294 City of Oxnard Zoning Map, available at https://www.oxnard.org/wp-content/uploads/2017/01/ZoneMap-01.17- AH11x17.pdf
295 See City of Oxnard Zoning Code Section 16-270, available at https://codelibrary.amlegal.com/codes/oxnard/latest/oxnard_ca/0-0-0-39746 296 DEIR, Section 3.2, p. 3-1 297 See San Bernardino Valley Audubon Soc’y v. County of San Bernardino (1984) 155 Cal.App.3d 738,753. 298 Oxnard 2030 General Plan, p. 3-23. 299 Id., pp. 3-25, 3-26, Policy CD-5.2 Compatible Land Use. 1057
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In analyzing the compatibility of the Project with these goals, the DEIR fails to acknowledge the heightened impact of increased traffic to and from the Project site and the long-term effects that even temporary development of the site will have on the surrounding ecosystem. Moreover, as previously mentioned, the DEIR simply ignores the Project’s larger role in expanding Port activity by augmenting off-port storage, including its role in facilitating the 250-acre site that the City has long planned in order to accommodate GLOVIS in storing an additional 60,000 new vehicles.300
The DEIR also underestimates the impacts of substantially increased throughput from the Port and the impact that an increased number of cars on the road have on surrounding neighborhoods trying to access the Ormond Beach Wetlands and Ormond Beach, including safety implications.

The Ventura County Freight Corridors Study, for example, identified the need to create a crossing at Hueneme Road to protect residents of the neighborhoods in South Oxnard attempting to access Ormond Beach.301 As described in further detail below, public access opportunities were also identified close to the northeast corner of the Project site on W. Hueneme Rd., as well as other points along the perimeter of the site.302 The DEIR does not address the incompatibility that increased traffic on Hueneme and Perkins Roads will have on safety and the City’s desire to preserve public access to natural areas.

In doing so, the DEIR fails to acknowledge the heightened impacts and disruptive effects that the entire Project will have on the South Oxnard residential neighborhoods that surround the Project site. Worse still, the DEIR offers no mitigation for land use impacts. Instead, the DEIR dismisses any inconsistency by claiming that for the residences closest to the site, “there is a minimum 30- foot setback from Hueneme Road with a sidewalk and landscaping to the back wall of the residences.” 303 In response to the neighborhood preservation policy, CD-3.1, the DEIR concludes that the Project remains compatible because “the proposed project does not introduce industrial uses north of Hueneme Road, thus, the existing residential neighborhoods north of Hueneme Road would not be subject to encroachment of industrial uses.”304 This dismissal of the land use impact not only ignores the effect that nearly 240 additional cars driven daily305 on local roads will have on surrounding residential neighborhoods, but also ignores the linkages to larger off-port expansions will have on the region overall306. The DEIR, for example, does not address the traffic and safety implications of having the proposed site directly across Hueneme Road from existing logistics and freight-related operations with outdoor vehicle storage.307 300 2017 Letter from Kristin Decas to Greg Nyhoff at 3. 301 Ventura County Freight Corridors Study at 16. 302 Id. at 4-17 303 DEIR, Table 5.11-1, p. 5.11-16- 5.11-17 304 Id. 305 DEIR, Section 1.3, p. 1-5 (description of operations) 306 Project objectives include providing operational flexibility for the transport of goods already flowing through the Port for purposes of sale, while maintaining existing goods movement and the existing number or capacity of cargo ships. DEIR, Section 1.2, p. 1-1 307 DEIR, p. 4-2, Table 4-1 (listing Cumulative Projects- including Pantoja Trucking- a warehouse shipping facility with outdoor vehicle storage and offices located on Hueneme Road). 1058
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The Project will Substantially Affect Existing Types of Land Uses in the Area This Project is unique in several ways, not the least of which is the fact that the site lies immediately adjacent to the Ormond Wetlands Restoration area. The Coastal Conservancy is currently undergoing a restoration effort of over a thousand acres of what is considered by wetland experts to be the most important wetland restoration opportunity in southern California.308 The Project is also near the Ormond Lagoon Waterway, which feeds into the wetlands.309 In the vicinity of the Project site, the Ormond Lagoon Waterway is an open channel.310The site is also bordered by Perkins Road, which provides the limited access that adjacent neighborhoods have to Ormond Beach.311
The 2030 General Plan describes the City’s clear goal to “transition of the area south of the Oxnard Transit Center from industrial to mixed use (Downtown East Transit Oriented District)” and “participation in the restoration of the Ormond Beach wetlands.”312 It also sets the City’s policy to “ensure that harbor-related activities are compatible with adjacent land uses and activities, especially the restoration of Ormond Beach wetlands.”313 The DEIR, at best, provides an incomplete analysis of the Project’s compatibility with the 2030 General Plans Policy 20.1 as it focuses exclusively on the Project’s role in enhancing port trade by providing temporary outdoor vehicle storage, while saying nothing about how the Project would harmonize with the Ormond Beach Wetlands Restoration currently underway.314 The DEIR, at a minimum, should analyze whether expanding vehicle storage off-port, as this project will do, is compatible with the adjacent land uses and wetlands restoration activities currently underway to its south.

The DEIR also misses several other important goals and policies from the 2030 General Plan that are central to this project—especially as they relate to compatibility with Ormond Beach Wetland Restoration and residential access to the wetlands. Under Policy CD-22.2, Development of Ormond Beach Visitor Access, the City committed to “develop and implement, as resources allow, an Ormond Beach visitor access plan that includes a gateway park and visitor center near the southern terminus of Saviers Road,” including trails and walkways and other appropriate facilities.315 The Project presents several challenges to this policy given its location as a gateway to the Ormond Wetlands and Ormond Beach and the activities it proposes. 308 The Coastal Conservancy Webpage, https://scc.ca.gov/ormond-beach/ (Last visited February 12, 2022). 309 DEIR, Exhibit 5.4-6 310 Id. 311 See, Ormond Beach Restoration and Public Access Project: Preliminary Restoration Plan (hereinafter “Ormond Beach Restoration and Public Access Plan”); Figure 6-17 “Preferred Alternative of Ormond Beach Restoration and Public Access”, at 6-83; available at https://oxnard.org/wp-content/uploads/2019/06/ORMOND-BEACHRESTORATION-AND-PUBLIC-ACCESS-PROJECT-Preliminary-Restoration-Plan-Final.pdf 312 Oxnard 2030 General Plan, p. 3-2. 313 Oxnard, 2030 General Plan, Policy 20.1, p. 3-39. 314 DEIR, Table 5.11-1, p. 5.11-19 315 Id. at 3-41 1059
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Perkins Road, for example, provides bike access through bike trails leading to Ormond beach and Ormond Lagoon.316 Public access opportunities were also identified close to the northeast corner of the Project site on W. Hueneme Rd., west of Saviers Rd. and east of Cypress Road317, and several opportunities for new and enhanced entrances, including a northwest entrance that utilizes Perkins Rd. as a route to both the wetlands and the beach.318 Protecting crossings at Hueneme Road to provide access for the neighborhoods in Oxnard and the Southwinds community, was also identified as essential for Ormond Beach access.319 The park designation for the northeast portion of the proposed Project site is closest to the area currently being considered as an ideal entry point to the wetlands restoration area.

In contrast, the Project would call for vehicles to enter through Perkins Road with an emergency access point on Saviers Road at Hueneme Road.
320 Both of these access points are in close
proximity to those also contemplated for the wetlands area and trails. The DEIR should consider how the Project might impact this land use goal and address this conflict either through mitigation or a project alternative. Similarly, through Policy ER-9.4 (Human Scale Development), the City commits to ensuring that all new development emphasizes a human, pedestrian scale and minimizes the effect on the area’s sensitive visual resources. The Project site is at the nexus of several proposed trails, bike paths, and proposed pedestrian pathways to provide residents of South Oxnard an opportunity to access Ormond Beach and the wetlands.321 The DEIR must analyze the Project’s impact on these opportunities and the impediments it may cause to the City’s human-scale development policy.

The City also commits to preserving species of significant small-scale plant communities, including wetlands.322 The proposed Project proposes erecting a six-foot-high chain-link fence along the perimeter to “screen potential visual character impacts of the site,” and the fence would remain as a permanent feature.323 At a minimum, the DEIR should assess whether this proposed mitigation measure would also run afoul of Policy ER-6.3 of the 2030 General Plan by disrupting views of the wetlands and other flora in the area. The fence, which is proposed to be permanent324, will have the further effect of creating additional barriers to wetland and beach access for local residents.

Once a project is determined to be inconsistent with land use policies, an agency is required to discuss the impacts of those inconsistencies and analyze all feasible mitigation measures.325 The DEIR should discuss and evaluate the impacts to air quality, public health, traffic (among others) 316 See, Ormond Beach Restoration and Public Access Plan; Figure 6-17 at 6-83; available at https://oxnard.org/wpcontent/uploads/2019/06/ORMOND-BEACH-RESTORATION-AND-PUBLIC-ACCESS-PROJECT-PreliminaryRestoration-Plan-Final.pdf 317 Id. Figure 4-1, at p. 4-13 318 Id. at 4-17 319 Ventura County Freight Corridors Study, p.15, (citing to the Ormond Beach Restoration Public Access Plan) 320 DEIR at 3-17. 321 See, Ormond Beach Restoration and Public Access Plan, supra, Figure 6-17 322 Oxnard 2030 General Plan, Policy ER-6.3, p. 5-7 323 DEIR, p. 5.1-9 324 DEIR, p. 3-23 325 Cal. Code Regs., tit. 14, § 15135(d). 1060
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that would result from the proposed inconsistent land use. We discuss proposed mitigation measures to consider later in this comment letter.

Finally, the proposed project will call for cars to be driven individually from the Port Naval Base Ventura County (NBVC) property, exiting through the NBVC Pleasant Valley gate and heading south on Ventura Road and then East on Hueneme Rd until the vehicles reach the Project site.326 Once the vehicles reach Perkins Road, they will turn south and access the vehicle storage facility through driveways off of Perkins.327 Vehicles leaving would follow the same path to return to NBVC.328Because the Project site is located at the border with the coastal zone329, the Project’s operations call for much of this traffic to occur within the coastal zone with trips starting and ending at the NBVC. “All public agencies carrying out or supporting activities outside the coastal zone that could have a direct impact on resources within the coastal zone shall consider the effect of such actions on coastal zone resources in order to assure that these policies are achieved.”330The DEIR fails to conduct any analysis of the impact that the Project will have within the coastal zone in light of operations that will cause thousands more cars to travel daily through that area.

The DEIR fails to Address the Secondary Impacts that the Project will have on Surrounding Areas
The DEIR makes the reference to secondary impacts in connection with CEQA Guidelines Sections 151269(c) and 15126.2(c) requires all projects to evaluate uses of nonrenewable resources as well as secondary impacts that “commit future generations to similar uses” or cause “irreversible environmental changes.”331 In analyzing this requirement, the DEIR simply runs through the resources that would be consumed during the construction of the Project without analyzing secondary impacts to the surrounding communities.332 This Project proposes to change the landscape. As Dr. Smallwood reports, despite past disturbances at the site, the current pattern of species detections indicates that the site is relatively rich in wildlife and maintains high ecological integrity.333 Whether temporarily or permanently, the DEIR should not ignore the connection to the expansion of storage facilities proliferating throughout the region or the fact that the changes made to the 34 acres may be irreversible, despite the plan to remove gravel.

CEQA defines “secondary effects” or “indirect effects” much more broadly to include “effects related to induced changes in the pattern of land use” in neighboring communities.334This is an important inquiry- especially for projects that involve expanding the functions of a port off-site, as is the case here where the Project literally seeks “off-port” capacity to store vehicle imports.

As this Project unfolds, it will add to the increasing concentration of off-port areas of operation in places not immediately within the Port’s boundaries. The DEIR must analyze this 326 DEIR, p. 3-22. 327 Id. 328 Id. 329 DEIR, Exhibit 3-4 330 Cal. Pub Res. Code §30200(a) 331 Cal. Code Regs., tit. 14§15126.2(c) 332 DEIR, Section 7.2, p. 7-4. 333 Smallwood, p. 16. 334 Cal. Code Regs., tit. 14 § 15358; 40C.F.R. §1508.8(b). 1061
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encroachment of Port activity into the residential neighborhoods of South Oxnard. Increasingly, these industrial land uses intended to support OHD’s plan to keep important customers (GLOVIS) and solidify the Port’s place in the national goods movement industry, are found near homes, playgrounds, and schools. Should the City decide to move forward, revisions to the DEIR must evaluate these secondary impacts and propose feasible mitigation measures for the adverse effects this will have on community land use.

XI. The DEIR’s Analyses of Other Relevant Impacts are Also Flawed and Should be Redone
Greenhouse gas impacts
As explained in detail in prior sections of these comments, the City based much of its emissions analysis on a flawed process that calls into question the conclusions reached in the DEIR. As Hagemann and Rosenfeld further explain in their report, the DEIR estimate that the Project will fall below the South Coast Air Quality Management District (SCAQMD) thresholds of 3,000 MT CO2e/year for Greenhouse Gas (GHG) emissions is equally flawed.335 Hagemann and Rosenfeld’s assessment of the many problems with the DEIR’s treatment of GHG is summarized here:
• The DEIR’s quantitative GHG analysis relies on an incomplete and unsubstantiated air model. The Project’s CalEEMod output files (available in the Air Quality and Greenhouse Gas Study336) show that several values were inputted into the model that are inconsistent with the information disclosed in the DEIR. An updated DEIR needs to be prepared to adequately assess the potential GHG impacts for both construction and operation.
• The DEIR incorrectly relies on an outdated quantitative GHG threshold. The threshold used was developed under AB 32. Post 2020, the thresholds were to be revised based on a new gap analysis. The SCAQMD threshold of 3,000 MT CO2e/year used in the DEIR is outdated and inapplicable to the proposed Project. Therefore, the DEIR’s “less-thansignificant” GHG impact conclusion cannot be relied on. Instead, the SCAQMD 2035 efficiency target of 3.0 MT CO2e/SP/year would provide a more accurate marker. Under that threshold, the DEIR’s “less-than-significant” conclusion does not hold. • The DEIR fails to identify a potentially significant GHG impact. The DEIR estimates that the Project would generate net annual GHG emissions of 62.3 MT CO2e/year. 337 Based
on the service population for the Project comprised of the estimated number of employees at the site, the Project is projected to emit approximately 4.45 MT CO2e/SP/year—an amount higher than the target of 3.0 MT CO2e/SP/year. • The DEIR relies on the Project’s consistency with the City’s Energy Action Plan (EAP) to determine GHG significance, even as it fails to demonstrate consistency with the EAP.

Without including Project Design Features as a formal mitigation measure with a commitment to implementation, monitoring, and enforcement at the Project, the DEIR’s basis for asserting conformity with the EAP is flawed and cannot be relied on. 335 Hagemann & Rosenfeld, p.17. 336 DEIR, Appendix D, Air Quality and Greenhouse Gas Study 337 DEIR, p. 5.8-13 1062
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In addition, the DEIR fails to offer any mitigation measure to account for GHG emissions at the site during construction and operation. Once the calculation of GHG emissions is revised to more accurately assess the Project’s impact, the DEIR should include an assessment of potential mitigation measures including, but not limited to, forgoing construction, and using existing sites while deploying zero-emissions strategies for new vehicle transport to existing locations.

Full analysis, conclusions, and recommendations by Hagemann and Rosenfeld can be found in Addendum A to these comments. The City must respond to each of the points raised in their comment letter. In short, Hagemann and Rosenfeld conclude the Project has the potential to result in significant GHG impacts, and the DEIR must conduct a full and transparent GHG analysis and propose viable mitigation measures to any impacts identified.338 Noise
CEQA requires a discussion of the type and level of noise impacts both from construction and operations of the project.339 The DEIR cannot merely consider only maximum noise levels at the site and ignore increases in noise relative to existing conditions. In examining noise thresholds, the City must consider both the “absolute noise level” associated with the Project as well as increases in noise levels overall that will result from the project.340 Particularly if there will be increased diesel truck or rail travel, it is likely there will be noise impacts to the surrounding community, which includes residential areas, local businesses, and facilities such as clinics and schools.

Noise is a serious, and often dismissed, public health problem, which causes numerous health and social effects, ranging from hearing loss to cardiovascular problems, and from learning problems in school to sleep disturbances at home. For example, noise above 60 decibels (“db”) has been shown to have psychological impacts, such as worsening children’s mental health, concentration, and classroom behavior at school.341 It can also result in noise-induced hearing loss for workers and chronic noise exposure may even contribute to the progression of heart disease and increased risk of stroke, even when accounting for associated air pollution.342 The DEIR offers no mitigation for noise impacts, with one exception related to noise exposure to non-human species.343 It concludes that the Project will have “less than significant” impacts related to temporary, periodic, or permanent increases in noise as well as ground-borne vibrations.344It makes this conclusion for both the construction and operation phases, while acknowledging that sensitive receptors may be just feet away from the Project in some 338 Hagemann & Rosenfeld, pp. 18-19. 339 Cal. Pub. Res. Code §21001(b) 340 See King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 887 and 893. 341 Martha Matsuoaka, Andrea Mricko, Rovert Hottlieb and Juan DeLara, Occidental College and University of Southern California, Global Trade Impacts: Addressing the Health, Social and Environmental Consequences of Moving International Freight through Our Communities, at 18-19 (2011), available at https://scholar.oxy.edu/cgi/viewcontent.cgi?article=1410&context=uep_faculty. 342 Ibid. 343 DEIR, pp. 5.13-9 through 5.13-12. 344 DEIR, pp. 5.13-8 through 5.13-11. 1063
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instances.345 To justify the conclusion of a “less than significant” impact for construction, the DEIR states:

Grading and construction for the proposed project would comply with the Noise Ordinance requirement that no construction occur at night, on Sundays, or on federal holidays, and would take place during the daytime hours of 7:00 a.m. to 6:00 p.m.

Monday through Saturday. Thus, noise level increases would occur sporadically when construction equipment is operated in the proximity of sensitive receptors.346 For project operations, the DEIR claims that while “on-site ambient noise levels” are likely to increase during the hours of operation, 7:30 a.m. to 3:30 p.m., the noises would “likely be masked” by adjacent roadway and ambient noises.347 The DEIR’s assessment of noise impacts is flawed for three reasons.

First, OHD claims that its project will not cause an increase in the number of heavy-duty truck or rail trips in the area.348 Even if this were true, the DEIR must analyze how shifting traffic patterns towards the new storage site, away from the existing Ventura site, will impact traffic noise in the vicinity of the Project.349 The DEIR states that the hours of operation will be 7:30 a.m. to 3:30 p.m., which coincides roughly with the same hours that children in most school districts are in school during weekdays. Despite the assertion that noise levels will be contained to the Project site, the DEIR offers no evidence to support this claim. It is equally probable that the ambient noise that the City is counting on to “mask” increased noise from the Project’s operations will be caused by increased traffic generated by Port-expansion endeavors that the Project itself is a part of. Moreover, the DEIR offers no evidence that increased noise levels will become “masked” by existing traffic. In failing to do so, the DEIR lacks an adequate inquiry into whether both the increase in noise level and the absolute level associated with the Project exceeded maximum levels.350
Second, simply stating that the proposed Project will not result in ground-borne vibrations or noise during the 180-200 days of construction does not make it so. The DEIR baldly asserts that the off-road equipment slated to import soil, grade the land, and construct the Project site— including “dozers, tractors/loaders/backhoes, excavators, forklifts, paving equipment, or rollers”351—are not sources of ground-borne vibration requiring mitigation. The DEIR offers no evidence to support this conclusion. Instead, the DEIR simply asserts that the Project construction will not involve “pile driving” or “other vibratory activities.”352 To protect the 345 Id. 346 Id. at Pp. 5.13-9 through 5.13-10. 347 Id. at P. 5.13-10. 348 See OHD 34-acre Site FAQs at 1 349 See Keep Jets over the Bay, supra, 91 Cal. App. 4th at 1381 (holding lead agency’s EIR insufficient for failing to analyze how overhead flights could raise noise levels in communities surrounding airport to unacceptable levels at certain time periods); see also City of Long Beach, 19 Cal. App. 5th at 487 (holding an EIR insufficient in part for failing to analyze how project’s effect on traffic patterns would shift areas of high air pollution to areas containing homes and schools).
350 King and Gardiner Farms, LLC v. County of Kern, supra, 45 Cal.App.5th at 887. 351 DEIR, p. 5.13-11 352 Id. 1064
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sensitive receptors such as schools and residences within feet of the Project site, the DEIR must include a robust and thorough assessment of construction-related noise impacts.

Finally, the DEIR performs only a cursory analysis of cumulative impacts for noise. To justify its conclusion of “less-than-significant” impact, the DEIR asserts the Project’s “adherence to the City’s Noise Ordinance” and assumes that “related projects” will likely have to comply with applicable City Municipal Code and/or Noise Ordinances and implement mitigation measures.353 However, simply stating that the proposed Project and related projects will adhere to local laws does not guarantee that the Project will result in “less-than-significant” cumulative impacts. Each of these projects could very well comply with limited hours and still trigger excessive noise levels, whether acutely or over time. Without conducting the proper analysis, the DEIR fails to offer the proper alternatives or mitigation measures to address this potentially serious impact.

As stated throughout these comments, the impact of this Project cannot be assessed in a vacuum.

The Project is intended to increase cargo throughput and will likely contribute to larger volumes of new vehicle cargo being processed at the Port.354 Despite these connections to Port expansion, which the City has acknowledged, the DEIR ignores the potential added impact of noise from increased activity flowing from the Ports and extending into surrounding communities, including South Oxnard.

The DEIR must also address the indirect noise impacts that result from any increases in vehicle and ship traffic that the project causes.355 Heavy-duty trucks, rail cars, and ships used to transport cars present the biggest problem, as they often have particularly noisy engines and use loud, blaring horns to warn surrounding traffic of their presence. The City’s analysis must account for the possibility of “single-event” noise levels (e.g., a ship or large truck’s horn blaring) disturbing surrounding communities.356
As with air quality, the DEIR should also analyze the cumulative noise impacts the project will have when considered in concert with other past, present, and reasonably foreseeable projects with similar noise impacts.357 This analysis must also consider expected growth projections for the Port as this Project will occur while Port expansion endeavors are underway. The DEIR must account for larger shipping volume resulting from the increased Port capacity this Project is intended to facilitate. So, while the ships and trucks associated with moving the new vehicles are not at the site, the Project’s relationship to the Port and its role in increasing capacity, and therefore noise levels, cannot be ignored.

In failing to adequately assess the Projects contribution to noise levels and account for cumulative noise impacts that may arise, the DEIR overlooks significant environmental effects that the Project will have on surrounding communities in violation of CEQA. 353 DEIR, P. 5.13-15 354 See, FY2018 Port Performance Analysis- Oxnard Harbor District, Page. 7 355 See Keep Jets over the Bay, supra, 91 Cal. App. 4th at 1372; Pfeiffer, supra, 200 Cal. App. 4th at 1574. 356 See Keep Jets over the Bay, supra, 91 Cal. App. 4th at 1381. 357 See Cal. Code Regs., tit. 14 § 15130(b)(1); City of Long Beach, 19 Cal. App. 5th at 488–89. 1065
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Energy conservation
The DEIR should also conduct a more detailed analysis of the project’s impacts on energy conservation, following Appendix F of the CEQA Guidelines,358especially as they relate to cumulative impacts. Appendix F states that CEQA “requires that EIRs include a discussion of the potential energy impacts of proposed projects, with particular emphasis on avoiding or reducing inefficient, wasteful and unnecessary consumption of energy.”359 CEQA sets out a goal of energy conservation, and states that means of achieving energy conservation include decreasing overall per capita energy consumption, decreasing reliance on natural gas and oil, and increasing reliance on renewable energy resources.360 An analysis of energy conservation impacts should include, among others, total estimated daily trips generated by the project and the additional energy consumed per trip; energy used during construction, grading, and removal phases of the Project; mitigation measures including alternate and renewable fuels; and discussion of estimated energy consumption of growth induced by the project.361 The DEIR recognizes that short-term energy demands will result from construction activities, and long-term demands will result from operation of the Project.362 Yet, its conclusion of “less than significant impact” is flawed for three key reasons.

First, despite acknowledging that the Project would commit energy and water resources as a result of construction, operation, and maintenance, and that much of the energy would be generated through combustion of fossil fuels, the DEIR erroneously concludes that the Project will not have a significant impact based on the assumption that “market-rate conditions” encourage efficiency and that regional utility purveyors already participate in conservation programs.363This dismissal of potential impacts lacks even the minimal review of energy impacts required under CEQA. The DEIR’s analysis should assess all relevant construction, transportation, and operational energy impacts that may be potentially significant along with other relevant criteria in Appendix F of the CEQA Guidelines.364 Under CEQA, the DEIR is “fatally defective” when it fails to “include a detailed statement setting forth the mitigation measures proposed to reduce wasteful, inefficient, and unnecessary consumption of energy.”365 Here, the DEIR fails to even get to the inquiry of proper mitigation because it does not follow the guidelines under Appendix F. Rather than conduct the necessary inquiry into the potential for waste, the DEIR merely assumes energy conservation based on the theory that market forces will push for the highest efficiency standards. This approach avoids even the basic inquiry required under the Appendix F guidelines to assess wasteful, inefficient, and unnecessary energy consumption. A proper analysis of energy consumption for this Project must also look at the impact of the Project as a whole- including its role in facilitating the 358 CEQA Guidelines Appendix F, available at
https://resources.ca.gov/CNRALegacyFiles/ceqa/docs/2016_CEQA_Statutes_and_Guidelines_Appendix_F.pdf . 359 Id. at § I. 360 Ibid. 361 Id. at § 2. 362 DEIR, p. 5.6-9 363 Id. 364 See, California Clean Energy Comm. V. City of Woodland (2014) 225 Cal.App.4th 173, 208. 365 Id. at 209. 1066
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creation of the larger Multimodal Logistics Park and the expansion of Port operations. Without this level of analysis, the DEIR remains flawed and cannot support a finding of less-thansignificant impact on energy use.

Second, the DEIR analysis relies on flawed modeling and unsupported assumptions about energy use reductions that do not support the conclusion of less-than-significant impact. The DEIR relies on estimates derived from the Traffic Study (Appendix J) and the Air Quality and Greenhouse Gas Study (Appendix D) using CalEEMod Model.366 As mentioned in the Hagemann and Rosenfeld letter, the DEIR’s modeling for these calculations is deeply flawed and cannot be relied on.367 The DEIR and supporting documents fail to provide substantial evidence to support the conclusion that the Project would reduce energy consumption by 75% merely by installing solar lights at the Project site.368 Similarly, the DEIR fails to demonstrate consistency with the City of Oxnard’s Energy Action Plan.369
Finally, the DEIR states that “the proposed project would comply with California Code of Regulations Title 24 for energy efficiency, ensuring that the proposed project would not result in the wasteful or inefficient use of energy resources.” 370 The DEIR, however, cannot rely solely on compliance with Title 24 standards to mitigate construction and energy impacts and cannot assume that GHG emission mitigation will substitute for a full analysis of energy use impacts.371 Also, as mentioned throughout these comments, the DEIR cannot simply confine the analysis for energy conservation impacts to the 34-acre site. The scope of the project is too narrow and does not include port expansion endeavors or the Multimodal Logistics Park that this Project is slated to be a part of. As such, the DEIR’s analysis does not begin to encompass the totality of energy consumption issues that the Project presents- including that associated with transportation. The DEIR’s conclusions of “less-than-significant” and “no impact” for each of the energy-related thresholds are flawed.

Hazards and Hazardous Materials
The City of Oxnard 2030 General Plan requires that new projects address hazardous material concerns through the preparation of Phase I and Phase II hazardous materials studies for each site identified as part of the design phase for a project.372 The DEIR does not show that a Phase I Environmental Site Assessment (ESA) was prepared for the site, making the DEIR inconsistent with the City’s 2030 General Plan.373 As Hageman and Rosenfeld explain, the purpose of the Phase I ESA, which is often done during the preparation of CEQA documents, is to identify and 366 Id. 367 Hagemann & Rosenfeld, pp. 5-15 368 Id., P. 15 369 Id., P. 19. 370 DEIR, p. 5.6-9. 371 See Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256, 264; California Clean Energy Comm. v. City of Woodland (2014) 225 CalApp.4th 173, 208. 372 Oxnard 2030 General Plan, Policy SH-7.12, p. 9-27; Hagemann & Rosenfeld, p.2. 373 Hagemann & Rosenfeld, p. 2. 1067
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disclose hazardous waste issues that may impact the public, workers, or the environment and that may require additional investigation, including environmental sampling and cleanup.374 The Phase I ESA would help identify recognized environmental conditions (RECs) and develop recommendations to address those conditions at a site.375 If past land uses show signs of residual concentrations of contaminants in soils that are above regulatory screening levels, then further evaluation and clean-up must be done in coordination with regulatory agencies.376This is vital for the current Project site as its past agricultural use very likely included the use of pesticides and other contaminants377yet no such evaluation has been conducted for the site as part of this environmental review. Moreover, there is evidence that the site was once used to store materials and equipment as shown in a Google Earth image from 2011, which depicts material and equipment staging at the site with the potential for improper leakage or spills to have occurred.378 At a minimum, a Phase I ESA is necessary to determine whether these past uses resulted in contamination of the soil.

Source: Google Earth, April 2011
XII. The DEIR violates CEQA Because it Fails to Address Environmental Justice Impacts, Which Renders it Inconsistent with State law and Oxnard’s 2030 General Plan
Despite calls from commenters to the MND and Notice of Preparation that the City must include an environmental justice analysis for the project given its proximity to a low-income, densely populated neighborhood in south Oxnard, without justification, the City simply dismisses that it has any obligation to look into environmental justice concerns. In response, the DEIR states that 374 Id. 375 Id. 376 Id. 377 Id. at p. 3 378 Hagemann & Rosenfeld, p.3. 1068
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“environmental justice is not required by CEQA.”379 The City lacks authority for such a claim.

Because the DEIR does not include analysis of the environmental justice impacts of the Project, it is defective as an informational document and cannot be relied upon to approve the proposed Project until this error is corrected.

The DEIR must include an environmental justice analysis pursuant to CEQA and California’s anti-discrimination law, Government Code section 11135. According to a Report prepared by the California Office of Attorney General (OAG), provisions of CEQA and Section 11135380 require lead agencies to study the environmental justice impacts of projects and to mitigate those impacts.381 Government Code section 11135 prohibits discrimination by any state agency and requires that Oxnard consider environmental justice impacts in its EIR.382 CEQA separately requires that lead agencies “consider how the environmental and public health burdens of a project might specially [sic] affect certain communities.”383 Part of the discussion should include an evaluation of the location of the project because the significance of an impact on people and the environment may change based on the project’s setting.384 Moreover, as part of its climate action and adaptation plan, the City’s 2030 General Plan advises agencies to incorporate environmental justice in “City planning, policies, programs, projects and operations.”385 “An action, program, or project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment”. 386 Here,
the City must assess impacts in the full context of the environmental setting, including the current pollution burdens faced by the South Oxnard residents impacted by the build-out of storage lots, warehouses, and associated port expansion.387 In California, communities of color and low-income communities bear a disproportionate burden of the state’s diesel trucking emissions.388 Diesel exhaust contributes to disproportionately higher 379 DEIR, p. 2-8 380 Government Code § 11135, subdivision (a) provides in relevant part:

No person in the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state . . .
381 Office of the California Attorney General, Environmental Justice at the Local and Regional Level (2012), p. 3, available at https://oag.ca.gov/sites/all/files/agweb/pdfs/environment/ej_fact_sheet.pdf [hereinafter “OAG Report”]. 382 Ibid. 383 Ibid. 384 Ibid. (“For example, a proposed project’s particulate emissions might not be significant if the project will be located far from populated areas, but may be significant if the project will be located in the air shed of a community whose residents may be particularly sensitive to this type of pollution, or already are experiencing higher-thanaverage asthma rates.”) 385 Oxnard 2030 General Plan, Policy SC-1.4, p. 2-11. 386 Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1562-63. 387 See Office of Envtl. Health Hazard Assessment, Cumulative Impacts: Building a Scientific Foundation, Exec.

Summary (Dec. 2010), at ix, http://oehha.ca.gov/ej/cipa123110.html (“[A] number of studies have reported increased sensitivity to pollution, for communities with low income levels, low education levels, and other biological and social factors. This combination of multiple pollutants and increased sensitivity in these communities can result in a higher cumulative pollution impact.) 388 Union of Concerned Scientists, Inequitable Exposure to Air Pollution from Vehicles in California, fact sheet (Feb. 2019), available at https://www.ucsusa.org/sites/default/files/attach/2019/02/cv-air-pollution-CA-web.pdf. 1069
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risks of cancer in individuals who live and/or work near rail yards, ports, freeways with diesel trucks, and warehouses.389 In Oxnard, many of the neighborhoods adjacent to the proposed site, and those most impacted by the Port-adjacent goods movement, are low-income communities and communities of color. Thus, build-out of the car storage lots and associated port expansion could have a disproportionate impact on environmental justice communities.

The census tract data for the Project site shows that 77% of residents are identified as Hispanic or Latino, and 86% identify as people of color.390 The area is already in the 94th percentile of pollution burden in the state of California, according to the CalEnviroScreen mapping tool managed by the Office of Environmental Health Hazard Assessment.391 Neighborhoods closest to the Port are also in the 86th percentile of diesel exhaust, which poses one of the highest cancer risks of any toxic air contaminants. Meanwhile, residents in the Project’s specific census tracts endure a pollution burden heavier than most parts of the State of California.

Source: CalEnviroScreen 4.0 from OEHHA; available at https://arcg.is/1bWPzO0 The proposed Project site is surrounded by sensitive receptors, including schools and residences in nearly every direction. The nearest school is only 780 feet from the Project site.392The Proposed project would also be located just 360 feet from residences located to the northwest, south, and northeast of the Project site.393 Despite this close proximity to these sensitive receptors, the DEIR fails to analyze and mitigate the environmental justice impacts of this large vehicle storage site, much less its impact once expanded to the 250-acre Multimodal Logistics Park just east on Hueneme Road. Even with the paltry and ineffective mitigation measures 389 Univ. S. Cal., Env. Health Ctr., References: Living Near Diesel Exhaust, (last accessed: Dec. 30, 2019), https://envhealthcenters.usc.edu/infographics/infographic-living-near-diesel-exhaust/references-living-near-dieselexhaust. 390 Office of Environmental Health Hazard Assessment- CalEnviroScreen 4.0, https://arcg.is/14baii (Last visited February 8, 2022)
391 Id. 392 DEIR, p. 5.3-9 393 Id.
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proposed, the Project will expose sensitive receptors to substantial pollution concentrationsespecially when placed in context with larger logistics operations that this Project will serve.

Source: From Google My Maps, annotations by Nataliz Ospina Moreover, the DEIR must discuss and develop mitigation measures and alternatives to the project to address environmental justice impacts. According to the Office of the Attorney General, “[w]here a local agency has determined that a project may cause significant impacts to a particular community or sensitive subgroup, the alternative and mitigation analyses should address ways to reduce or eliminate the project’s impacts to that community or subgroup.”394 If the implementation of the project will affect communities that are disproportionately people of color and low-income people already overburdened with pollution and health risks, mitigation is required to address those environmental justice concerns. Pursuant to CEQA’s requirements and the OAG’s guidance, the City should work with the public and impacted community to develop mitigation measures.395
The DEIR must be revised once the City has conducted the proper analysis by examining the potential cumulative impacts to the communities in the immediate vicinity of the Project as well as those along the freight corridor that will serve the Port’s capacity-building endeavors and connect to the 250-acre Multimodal Logistics Park. It must also demonstrate that proper consideration of mitigation measures and alternatives was exhausted to reduce or eliminate the Projects impact on these communities. Until it does so, the DEIR is flawed and cannot be relied on.
394 OAG Report at 4; see also CEQA Guidelines, Cal. Code Regs., tit. 14 § 15041 (a). 395 See OAG Report, at 5. 1071
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XIII. Mitigation measures that are offered in the DEIR are inadequate Under CEQA, a public agency cannot approve a project as proposed if there are “feasible mitigation measures which substantially lessen the significant environmental effects” of the project.396 Feasibility is defined under CEQA as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.”397 The CEQA Guidelines add “legal” factors to this definition.398 A potential mitigation measures cannot be properly labeled mitigation measures unless they are at least partially effective in reducing the significance of the impacts at issue.399 Notably, of the 22 impact areas identified in the DEIR, only 6 are afforded mitigation measures.400 As mentioned throughout these comments, the DEIR fails to offer adequate mitigation measures for several impacts that will be significant given the true scope of the Project. Because the DEIR fails to embrace the true scope of the Project—one that reflects the Port expansion plans of OHD and the use of the proposed use of the 34-acre site as a “stop gap measure” for completing the 250-acre port logistics park,
401 the DEIR fails to analyze, much less address, the impacts that can be expected from a much larger project. For similar reasons, the few mitigation measures that are offered in the DEIR are inadequate and will not substantially lessen the significant environmental effects of the full scope of the Project.

Biological Resources
As mentioned in the previous section on biological resources impacts, the mitigation offered in the DEIR to protect identified species is woefully inadequate. The DEIR discusses only a narrow range of potential impacts from construction-related activity and ignores the impacts from the permanent removal of habitat, the full range of impacts from vehicles, and increasing VMT in the surrounding area, among other potential impacts on biological resources. However, even where mitigation measures are identified to address a narrow set of impacts, they fail in the following ways:

MM BIO-1 offers to avoid disturbance of nesting and special status birds by having activities related to the project, including “vegetation removal, ground disturbance, demolition, and construction” by scheduling these activities to occur outside of the bird breeding season (February 1 through August 31)- but only if “practicable.” 402 It further offers that a preconstruction survey would be conducted and if nesting sites are found, an un-defined avoidance “buffer” would be created to avoid disturbance and construction workers would be advised not to disturb the site. This “buffer” would be developed and demarcated by an unidentified biologist.

This mitigation measure is inadequate for several reasons. 396 Cal. Pub. Res. Code § 21002. 397 Cal. Pub. Res. Code §2106.1. 398 Cal. Code Regs., Tit. 14, §15364. 399 Sierra Club v. County of Fresno, (2018) 431 P.3d 1151,1166. 400 DEIR, pp. 1-10 through 1-28. 401 Oxnard & POH Commercial Viability Report. 402 DEIR, p. 5.4-21. 1072
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First, it simply does not address the destruction of habitat for the California horned lark or the burrowing owl, two species identified as having potential significant impact on habitat due to the proposed Project. The grading of the site, and the introduction of ongoing activity- in this case, the driving of cars on and off the site once it becomes a vehicle storage site- would remove the habitat, and make it unusable for the two species. No mitigation measure is proposed to address this issue. Instead, the DEIR concludes “less than significant impact with mitigation incorporated” to suitable habitat for the two species without any specific mitigation measure being proposed to address what happens during Project operation.

Second, the MM BIO-1 only speaks to construction-related activity when it comes to protecting nesting birds during the breeding season. It says nothing about the operation of the Project which would also have an impact on the special status species ability to nest in the area and could potentially result in the destruction or removal of future nests on the site after construction is completed.

Third, even the meager measures offered by the DEIR to mitigate impacts on biological resources will not meaningfully reduce the potential impact on special-status species from construction activity. Pre-construction surveys typically detect small fractions of wildlife actually present, particularly where wildlife (such as nesting birds) is taking great care to conceal their nests from predators.403 Therefore, there is evidence that nests would be missed, and the construction activity would destroy nests, including those of special-status species.

Finally, MM BIO-1 does not offer a clear measure for mitigation that will guide activities at the site in the long term. CEQA requires that an EIR describe the full actions taken to feasibly mitigate significant impacts and not defer the formulation of these measures unless it is impractical or infeasible to include those details.404 Even where the description of mitigation measures is deemed impractical or infeasible, the lead agency must also adopt specific performance standards the mitigation will achieve and the type of potential actions that can feasibly achieve that performance standard.405 While on the one hand it seems to suggest mitigation pre-construction, the proposal also seems to suggest that construction will commence and nests will be “buffered” even when construction is ongoing.406 This would make the measure even more unsuitable given the acknowledgment that construction-related activity will disrupt nesting. As mentioned previously, the mitigation measure does not meaningfully reduce the potential impact on special-status species and is improperly vague as it does not specify how it will be determined that construction must occur during the breeding season, nor does it describe what type of buffer would be used.407
403 Smallwood, p. 27. 404 CEQA Guidelines, Cal. Code Regs., tit. 14, § 15126.4(a)(1)(B); see also Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 281 (finding that an EIR was deficient when “the success or failure of mitigating the project’s impacts . . . largely depends on what actions the approved habitat plan will require” and no justification was provided for why specifying performance standards or guidance in the EIR was impractical or in feasible). 405 Ibid. 406 DEIR, p. 5.4-21. 407 Smallwood, p.27. 1073
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Following a complete evaluation of the potential impacts from the project, if a substantially similar project were to move forward, the City must develop mitigation measures to address any significant impacts.408 Among these possible mitigation measures, the City could consider:
• compensatory mitigation such as protecting an equal and equivalent area of open space in perpetuity, funding research to identify roadway fatality patterns, investing in effective impact reduction measures such as wildlife crossings, or to wildlife rehabilitation facilities;
• a reduction in the number of lights; or
• use of fencing with gaps to support wildlife movement and that increases opacity and minimizes the risk of entablement and mortality.

Full analysis of the shortcomings of these proposed mitigation measures is found in Dr.

Smallwood’s comment letter (see Addendum B). The City must provide responses to each of the points raised in Dr. Smallwood’s letter.

Aesthetics
Proposed mitigation measure MM AES-1, MM AES-2 and MM AES-3- each having to do with the installation of a chain-link fence and/or gates around the perimeter of the proposed Project, conflict with the conclusion that the proposed Project would not interfere with wildlife species movement in response to Threshold BIO-2 as discussed above. 409 There is no analysis of how
erecting a fence around the Project would not impact wildlife movement by cutting off existing movement corridors or habitat linkages. Instead, the DEIR concludes that there is no impact on wildlife movement, and no mitigation measures are required.410 The site is currently undeveloped, vacant411, and does not have a perimeter fence around it. The Ormond Lagoon Waterway is located next to the proposed Project site 412and adjacent to and north of the Ormond Beach Restoration and Public Access Project area. 413 The DEIR, at a minimum, should include some analysis on the impact that six-foot fencing around 34 acres immediately adjacent to these natural areas will likely have on the movement of wildlife in the region. The proposed mitigation measures to address aesthetics and the analysis of the impact on wildlife movement are therefore inadequate. A full critique of the problems posed to wildlife and natural resources by this proposed mitigation measure is found in Dr. Smallwood’s comment letter (Addendum B).
408 Cal. Pub. Res. Code §§ 21002.1(a), 21061, 21100(b)(3); 14 Cal Code Regs § 15126.4(a)(1); CEQA Guidelines § 15126.4(a)(B)
409 DEIR, pp. 5.4-24 through 5.4-25. 410 DEIR, p. 5.4-25 411 DEIR, p. 3-13 412 DEIR, p. 5.4-17 413 DEIR, p. 5.4-25 1074
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Cultural and Tribal Cultural Resources
The DEIR offers just two mitigation measures in addressing the host of potentially significant impacts identified under thresholds CTC-2 through CTC-6.414 Both measures fail to fully address issues previously raised by commenters in response to the Notice of Preparation. MM CUL-1 calls for OHD to contract with a “qualified archeologist” to be on-site during initial grading and excavation to determine whether any “historic or prehistoric” cultural resources are “discovered.”415Similarly, MM CUL-2 calls for contracting with a “Native American monitor” who will be present during the initial construction and grading phase of the Project and report any qualifying cultural materials found on the site.

The problem with both approaches is that it does not address how these consultants will be selected nor how their qualification will be vetted to ensure that they are capable of identifying qualifying cultural materials on this site. In the case of MM CUL-2, the DEIR does not provide any assurances that once items are determined to be of cultural significance, that they will actually be preserved. Instead, it merely calls for a meeting between the City and the hired monitor to determine the “appropriate course of action.” 416 This approach does not safeguard against the substantial adverse change in the significance of historical resources as called for by the CEQA Guidelines.417 A project that causes a substantial adverse change in the significance of historical resources is one that is has a significant effect on the environment.418 MM CUL-2 does not even follow the recommendation by the Native American Heritage Commission (NAHC) to consult with California Native American tribes that are traditional and culturally affiliated with the geographic area of the proposed Project.419 Instead, the mitigation measure proposed makes a vague reference to contracting a “Native American Monitor” without offering more detail as to the selection or unique qualifications of the contractor who will be asked to determine the cultural significance of materials found on this site.

The DEIR also claims that no tribe requested consultation for the project.420 There is no evidence, however, that the City properly issued notice pursuant to SB 52 or SB 18, or reached out to those listed in the Native American Trible Consultation List from NAHC.

Finally, we join with the comments to the DEIR submitted by our colleagues at the Wisthoyo Chumash Foundation in calling for additional mitigation measures to ensure that vital cultural resources are not lost during the construction or operation of this proposed Project, should it go forward. The City must do better to locate Tribal Cultural Resources through the use of the best available technology and methods. The DEIR is flawed because it fails to identify those methods with a proven track record, such as canine forensics and ground-penetrating radar, that will preserve cultural resources before any construction takes place. Therefore, the DEIR’s finding of 414 DEIR, pp. 1-15 through 1-17 415 DEIR, Section 1.5, p.1-16. 416 Id. 417 Cal. Code Regs., tit. 14, §15064.5 418 Cal. Code Regs., tit. 14, §15064.5 (a)(3). 419 DEIR, Table 2-1, Notice of Preparation Comments Summary, p. 2-11 420 DEIR, pp. 3-1 and 5.5-17 1075
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“less than significant impact” on Tribal Cultural Resources, even with the mitigation proposed, must be rejected as unreliable.

Land Use
Because the DEIR fails to address several significant land use impacts, its evaluation of feasible mitigation of the off-port land use impacts of vehicle storage sites–whether temporary or permanent–is severely lacking. The DEIR is incomplete without taking into account the full scope of land use impacts that are triggered by the Project, and the mitigation required to address those impacts if applicable. Here, the DEIR proposes no mitigation measures in its analysis of each of the three threshold areas, including conflicts with the Zoning Code and the prospect that the Project might physically divide an established community.421 Similarly, because the DEIR failed to adequately account for potential cumulative impacts by limiting the scope of projects reviewed, it inadequately assesses the mitigation measures that would be required XIV. Once Proper Assessment of the Project is completed, the DEIR must Consider Viable Mitigation Measures to Any Identified Significant Impacts As mentioned above, because the DEIR failed to properly describe the scope of the Project, it also failed to properly identify significant impacts that the project is likely to have. Once a proper and more holistic analysis of the Project’s impact is conducted, the DEIR should identify additional mitigation measures for any significant impacts that arise after analyzing the Project in connection with ongoing Port-expansion endeavors and the creation of the 250-acre Multimodal Logistics Park.

While these measures will depend on the scope of the significant impacts identified once a proper assessment is done for the Project, some measures targeting air quality and constructionrelated impacts may include, but are not limited to, the following:
• Using zero-emissions equipment and technology during the construction, maintenance, and operation of the proposed Project sites, including the 250-acre segment of the Multimodal Logistics Park.
• Building the infrastructure necessary to electrify the Port as proposed in the Port Electrification Master Plan.
• Electrifying Port terminals that new vehicle storage facilities, including the Multimodal Logistics Park, are intended to serve.
• Building and utilizing zero-emissions rail options in connection with new vehicle transportation.422
• Further reducing emissions from ocean-going vessels by using technology that allow emissions reductions to go beyond California Air Resources Board at-berth control measures.423
421 DEIR, Section 5.11, pp.,5.11-22 and 5.11-26 422 See, Ventura County Freight Corridors Study, p.37 (recommending feasibility study for Ventura County Railroad Emissions Reduction strategy by converting to low or zero emissions locomotives for operation by the VCRR). 423 California Air Resources Board, Control Measure for Ocean-Going Vessels At Berth; Cal. Code Regs. Tit. 17, § 93118.3 (2020)
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This is not an exhaustive list of potential mitigation measures the City should consider in a revised DEIR, should it decide to continue with the Project. Mitigation measures will depend on the significant impacts that are identified once the entire Project is properly assessed.

XV. The DEIR fails to Consider a Range of Reasonable Alternatives Because the Project Objectives are Too Narrowly Defined
Even with unlawful Project objectives, the DEIR must consider a reasonable range of alternatives. Alternatives are central to an EIR, and their assessment is a major function of an EIR.424 The purpose of the requirement to contemplate alternatives is to identify ways to mitigate or avoid the significant effects of a project.425 “[A[n, agency may not approve a proposed project if feasible alternatives exist that would substantially lessen its significant environmental effects.”426 The alternatives discussion must be “meaningful” and must “contain analysis sufficient to allow informed decision making.”427
“The process of selecting the alternatives to be included in the EIR begins with establishment of project objectives by the lead agency.”428 The DEIR must include “[a] clearly written statement of objectives,” as this will guide the City in developing a reasonable range of alternatives.429 An alternatives analysis under CEQA must focus on potentially feasible alternatives to the project, even if these alternatives would impede to some degree the attainment of project objectives, or would be more costly.430
The DEIR outlines several objectives for the project that include: facilitating commercial success for Port clients to ensure they keep their business in the region; reducing and consolidating offPort satellite storage locations by finding locations closest to the Port; and promote efficiency and provide operational flexibility for goods already flowing through the Port.431 The objectives listed are overly narrow such that they exclude a host of feasible Project alternatives.

By referencing the “commercial success” of Port clients in its objectives, the DEIR demonstrates that OHD intends to focus its range of alternatives on the business needs and profitability of logistics operators that handle vehicle cargo from the Ports.432 424 Laurel Heights Improvement Ass’n v. Regents of the Univ. of California (1988) 47 Cal.3d 376,400 425 Cal. Pub. Res. Code § 21002.1 426 Save Panoche Valley v. San Benito Cnty., (2013) 217 Cal.App.4th 503, 52 (citations omitted); See also Cal. Pub.

Res. Code §21081(a); 14 Cal.Code Regs. §15091(a)(3); California Native Plant Soc. V. City of Santa Cruz (2009)177 Cal.App.4th 957, 1002. 427 Laurel Heights, supra, 47 Cal.3d at 403-4. 428 North Coast Rivers Alliance v. Kawamra (2015) 243 Cal. App.4th 647, 666 [196 Cal.Rptr.3d 559,573] (Citing Pub. Resources Code §21001(g)(internal quotation omitted); see also Cal. Code Regs. Tit. 14 §15124(b) (stating an EIR requires a statement of the objectives sought by the proposed project). 429 Cal. Code Regs., Tit. 14, § §15124(b). 430 Cal. Code Regs., Tit. 14, §§ 15126.6(b), (f); see also Cal. Pub. Res. Code § 21102.1(a) (“The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.”).
431 DEIR Section 3.5., p. 3-15 432 DEIR, Section 1.2, p. 1-1 1077
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The DEIR also states OHD’s desire to “reduce and consolidate” reliance on off-port satellite storage locations as an objective, without mentioning how this objective will continue to meet its client’s needs through a temporary 34-acre site.433 Unless existing off-Port sites are being kept in operation or an additional more permanent site is planned as part of this Project, the temporary nature of the Project calls into question how it will provide “operational flexibility for transportation of goods that already flow through the Port for purposes of sale, while maintaining existing goods movement and the existing number or capacity of cargo ships.”434 The objectives are contradictory—on the one hand, calling for consolidation and the other offering to accommodate existing throughout on a site that will allegedly only be available for a limited term.

Two alternatives are listed as “considered but not carried forward.” The first involves reducing the 34-acre site to 24 acres.435 The second involves the use of electric car carrier trucks. As discussed later in these comments, the use of zero-emissions car carrier trucks presents a viable alternative that is environmentally superior because it does not involve the disturbance of the 34- acre site. However, because the objectives are so narrowly focused on facilitating the commercial success of the Port’s logistics clients, the option is summarily dismissed without conducting an analysis of long-term benefits and economic viability.

For similar reasons, the DEIR is able to reject Alternative 1- “No Project” because it would presumably not eliminate car carrier trucks or consolidate the off-port sites. Alternative 2- continuing existing off-port sites, is similarly rejected because it would not lead to consolidation closer to the Port. And, Alternative 3- developing the land for light manufacturing use as zoned, is rejected because it would not meet any of the objectives.436 Each of these alternatives is rejected without the necessary analysis required under CEQA because the DEIR relies on overly restrictive objectives to force a desired outcome.

While there is a “rule of reason” that governs the City’s consideration of alternatives and the DEIR need “set forth only those alternatives necessary to permit a reasoned choice,” the City’s restrictive objectives prevent it from discussing alternatives “in a manner to foster meaningful public participation and informed decision making.” Kawamura, supra,243 Cal.App.4th at 667 (citing Guidelines, §15126.6, subd.(f)). This taints the entire analysis and ultimately violates CEQA.

The DEIR fails to assess alternatives to the Project in a meaningful way because it too narrowly defines the objectives of the Project and arbitrarily segments the 34-acre site from larger portexpansion plans and the growth of off-port vehicle storage sites. In doing so, the DEIR offers only a cursory analysis of alternatives that are not only viable and reasonable, but also present 433 Id. 434 Id. 435 DEIR Sections 1.4, 1-6. Note: It is unclear how the applicant considers Alternative 1 a viable alternative as it would still require grading and some construction on half the acreage on the site. Without providing any rational for how the 34-acre site will lead to the consolidation of acres currently available at existing sites used for vehicle storage, the DEIR dismisses this alternative for failing to fulfill a key objective for reducing and consolidating reliance on off-Port storage locations or reducing the need for a car carrier truck 436 Id. 1078
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environmentally superior paths that avoid the substantial environmental changes that permanently altering 34-acres of land will have on the region.

Below is a discussion of some of options that OHD should consider as alternatives.

Park and Coastal Access
The City should include alternatives and mitigation measures related to park and coastal access, particularly in light of the Ormond Beach Restoration Plan and the 2030 General Plan’s designation of a portion of the 34-acre site as intended for park use. In fact, Oxnard indicated in its 2030 General Plan that intends to establish a “gateway park” and visitor center near Saviers Rd.437 This alternative would not only reflect the City’s 2030 General Plan objectives, but would adhere to community concerns and desires for public access to Ormond Beach and the Ormond Beach Wetlands.

The DEIR fails to address the possibility of utilizing the parcels as a park or as a nature center, even as it acknowledges that the two suggested alternatives were raised during public comments to the Notice of Preparation and are identified as “areas of controversy.”438 Instead of addressing these concerns, the DEIR focuses on the zoning designation as “light manufacturing” to reject an alternative that would develop the parcels in line with General Plan land use designation. The 2030 General Plan land use designation, however, designated a portion of the 34-acre site for use as a “park.”439Therefore, it is not inconceivable that the proposed Project site would be utilized as a recreational space as community residents have demanded.

There are several reasons why the DEIR should consider the use of the 34 acres as a gateway park to Ormond Beach and the Ormond Wetlands Restoration area as an alternative to the current Project. This alternative would place the parcels in line with the land use outlined in City’s 2030 General Plan and would eliminate the negative impacts of using the site as yearround car storage and further increasing traffic on Hueneme Road and Perkins Road. This alternative would also bring the site’s use in line with the Ormond Beach Wetlands Restoration Plan, which identified suitable entrances to the wetlands restoration area at the northeast corner of the 34-acre site at the intersection of Savier and Hueneme Roads, as well as improving bike access to trials as an alternate entrance to the wetlands starting at Perkins Road.440 Under this alternative, the Project’s objectives could best be met by utilizing alternate storage sites already in use or being considered, preferably using zero-emissions transport as discussed below. The park alternative would avoid further disruption of the 34-acre site, provide a buffer to protect sensitive wetlands, and help mitigate some of the environmental harms of Port expansion by preserving open green space, eliminating the need for hundreds of individual car trips on local roads and foregoing construction and operation that threaten wildlife. 437 Oxnard 2030 General Plan, Goal CD-22 “Environmentally sound Ormond Beach wetlands with appropriate public access”, p.9-4; Policy CD 22.2- Develop and Ormond Beach Visitor Access, p. 9-12, and ICS-23.5, p.9-19- Resident access to scenic areas and Ormond beach, pp.3-41 and 4-27. 438 DEIR, p. 2-3 439 Oxnard 2030 General Plan, Figure 3-1, Land Use Map, p. 3-3. 440 Ormond Beach Restoration and Public Access Project: Preliminary Restoration Plan, pp. 4-11 through 4-19; 1079
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Navy Yard Expansion as an Alternative to Vehicle Storage needed to accommodate GLOVIS.

The Navy Base Ventura County (NBVC) has had a long-standing partnership with OHD to provide backup storage and access at the Port of Hueneme.441 In fact, NBVC recently partnered with OHD to make a shipping berth and nearly 30 acres of land available for storage of incoming cargo shipments under a reactivated Joint Use Agreement.442 GLOVIS already leases land from NBVC for its operations.443
The DEIR should include an alternative that explores expanded leasing opportunities at NBVC to accommodate GLOVIS vehicle imports. This alternative would: 1) avoid increasing traffic on public roads by forgoing the individual transport of cars to the proposed Project site; 2) avoid construction and environmental effects associated with the Project; and 3) meet each of the objectives listed for the Project. At a minimum, the DEIR should assess expanding use of leasing opportunities from the Navy site as a viable and reasonable alternative to grading and transforming currently undeveloped open space into vehicle storage. Such an alternative may also include expansion of vehicle storage parking structures to potentially double auto capacity on the dock as has previously been contemplated for the Port facility.444 When coupled with mitigation measures that integrate zero-emissions technology and port electrification strategies, this alternative would present an environmentally superior option.

Requiring the Usage of Zero-Emissions Class 7 and 8 trucks to Transport Automobiles to Existing Storage Sites
The DEIR does not offer any mitigation or alternative for driving hundreds of cars individually along public roads each day to and from the proposed Project site. The DEIR rejects Alternative 1- no project, although deemed environmentally superior445, in part because it requires carcarrier truck trips to deliver new vehicles from the Port to existing sites. The DEIR claims that the Alternative 2- keeping the two existing off-port vehicle storage locations would result in “greater impacts relative to air quality, energy, greenhouse gas emissions, hydrology and water quality, land use, mineral resources, noise and transportation.” 446 This assumes, however, that diesel-powered car-carrying trucks would be utilized to transport new vehicles to these sites.

The use of zero-emissions car carriers would provide an alternative that would not only reduce the number of vehicles on the road but would also reduce or eliminate significant environmental impacts related to the storage of vehicles off-port. The DEIR, however, summarily dismisses this alternative as “considered but not carried forward”- citing costs and the fact that electric vehicles 441 Brian J. Varela, Port of Hueneme, Navy Partner to Assist Los Angeles County Port Backlog, Ventura County Star, November 28, 2021, 10:40 a.m.; https://www.vcstar.com/story/news/2021/11/28/port-hueneme-assist-lacounty-ports-through-agreement-navy/8771397002/ 442 Id. 443 DEIR, p. 1-2 444 See 2020 OHD Comprehensive Economic Development Strategy, p. 29; See also, Oxnard Harbor District, Economic-Environment Partnership, Slide presentation (undated) , Slides 29 and 30. 445 DEIR, p. 1-7 446 DEIR, p. 1-8. 1080
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are not currently used by GLOVIS.447 Yet the idea of using zero-emissions trucks to transport goods out of ports is not without precedent. In the fall of 2021, for example, the Port of San Diego, where GLOVIS is also a major customer, announced plans to require all drayage trucks to be 100% zero emissions by 2030.448 The idea of using zero-emissions trucks for port cargo is therefore not infeasible. In rejecting zero-emissions strategies as an alternative, the DEIR skips the level of analysis requiring consideration of a full range of alternatives that would mitigate or avoid significant environmental impacts of the proposed Project.

Here, two of the Project’s prominent impacts are GHG, and air quality impacts due to the increased amount of fossil-fueled car and truck trips associated with the Project. Requiring the usage of zero-emission Class 7 and 8 semi-trucks to haul vehicles in lieu of independently driving each imported combustion vehicle to the project site, offers a superior alternative under CEQA because these zero-emission vehicles have no tailpipe emissions, and much lower lifecycle GHG emissions.

According to the Union of Concerned Scientists, battery-electric Class 7 and 8 trucks have lower life cycle GHG emissions than diesel trucks, no matter the operating characteristics of the vehicle or the electric grid.449 While battery-electric vehicles do not have tailpipe GHG emissions like diesel vehicles, there are still GHG emissions associated with the generation of the electricity used to power the vehicle. With the current mix of electricity generation sources in the United States, the Union of Concerned Scientists found that a battery-electric semi-truck operating locally offers 65% life cycle GHG reductions compared to its diesel counterpart.450 Battery-electric semi-trucks operating on highways offer 50% GHG reductions compared to diesel semi-trucks.451 These reductions are likely even higher in California, since California has a larger proportion of renewable electricity generation sources than the national average.452 Further, the GHG reductions associated with operating battery-electric semi-trucks will only increase as California moves closer to its goal of ending its dependence on fossil fuels for electricity generation. Thus, requiring battery-electric Class 7 and 8 semi-trucks to efficiently carry multiple (on average, between 5 and 9) vehicles in lieu of requiring each of these mostlikely gasoline or diesel-powered vehicles to individually drive to the project site would significantly reduce the amount of GHG emissions associated with the Project, making it effective mitigation measure for the Project’s significant GHG impacts.

Zero-emission vehicles, including Class 7 and 8 battery-electric semi-trucks, also cause significantly less air pollution than combustion vehicles. Light-duty combustion vehicles are a 447 DEIR , p. 1-6. 448 Press Release, Port of San Diego Adopts Most Ambitious Maritime Clean Air Strategy of its Kind in California (October 14, 2021), https://www.portofsandiego.org/press-releases/general-press-releases/port-san-diego-adoptsmost-ambitious-maritime-cleanair#:~:text=A%20goal%20of%20100%20percent,in%20some%20cases%2C%20even%20more. 449 Union of Concerned Citizens, Ready for Work: Now is the Time for Heavy Duty Electric Vehicles, at 6 (Dec. 11, 2019) https://www.ucsusa.org/sites/default/files/2019-12/ReadyforWorkFullReport.pdf. 450 Id. at 7. 451 Id. 452 Nuclear Energy Institute, State Electricity Generation Fuel Shares https://www.nei.org/resources/statistics/stateelectricity-generation-fuel-shares (last visited February 12, 2022) [hereinafter, “Nuclear Energy Institute”] 1081
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major source of both Particulate Matter 2.5, and well as Nitrogen Oxides (“NOx”), a precursor for ozone.453 These air pollutants have serious health consequences, as exposure to them is associated with asthma, bronchitis, increased cancer risk, increased hospitalization, and even premature death.454 Battery-electric semi-trucks have no tailpipe emissions.455 The only significant air pollutant associated with the operation of battery-electric semi-trucks is the Particulate Matter emitted from brake wear.456 However, according to the California Air Resources Board (“CARB”), zero-emission vehicles produce 50% less Particulate Matter from brake wear when compared to diesel vehicles.457 This is because zero-emission vehicles utilize “regenerative braking,” which reduces brake usage.458 Thus, requiring zero-emission Class 7 and 8 semi-trucks in lieu of multiple additional combustion passenger car trips and not moving forward with building the 34-Acre site would greatly reduce the air quality impacts associated with transporting vehicles to storage, and is therefore a far superior alternative under CEQA.

1. The Current Total Cost of Ownership of Battery-Electric Semi-Trucks is Less than Diesel Semi-Trucks
The total cost of ownership advantage of zero-emission class 7-8 tractors is now a wellestablished fact. Numerous studies have compared battery-electric semi-trucks with their diesel and natural gas counterparts using a Total Cost of Ownership (“TCO”) analysis. A TCO analysis attempts to capture the total cost of purchasing and operating a vehicle throughout its entire life.

While each study has a slightly varied methodology, each TCO analysis generally consists of vehicle purchase cost, lifetime fuel and maintenance costs, and necessary infrastructure costs.

Some studies analyze additional factors, including California’s available financial incentives, the charging infrastructure investments made by California’s utilities, and the environmental externalities associated with Class 7 and 8 semi-trucks. A recent TCO analysis by UC Berkeley’s School of Public Policy, examining upfront costs, fuel costs, maintenance, health, and environmental externalities, and the cost of infrastructure installation, shows the dramatic cost advantage for Class 7-8 tractor EVs over their diesel equivalents.459 453 CARB, Mobile Source Strategy Presentation (Oct 28, 2021) at slide 9 https://ww3.arb.ca.gov/board/books/2021/102821/21-11-2pres.pdf. . 454 Id. 455 California Air Resources Board, Updated Costs and Benefits Analysis for the Proposed Advanced Clean Truck Regulation, at 3 (April 28, 2020) https://ww3.arb.ca.gov/regact/2019/act2019/30dayattc.pdf. 456 Id. 457 Id. 458 Id. 459 2035 The Report Appendecies- Transportation: Plummeting Costs and Dramatic Improvements in Batteries can Accelerate Our Clean Transportation Future, Goldman School of Public Policy, University of California, Berkeley (June 2021), Available at http://www.2035report.com/transportation/wp-content/uploads/2020/05/GridLab_2035- Transportation-Appendix.pdf?hsCtaTracking=c4d392a4-96ff-474c-86c3-bfa335c67aa2%7Ce2107ae8-40d7-44ff8b5b-72016d87fe98. 1082
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Even setting aside the environmental damage costs, ZE Class 7-8 tractors have a comparable TCO to diesel tractors as of 2 years ago and have a clear TCO advantage by 2025.460 Further, studies indicate that the cost of battery-electric Class 7 and 8 semi-trucks will continue to decrease as the 2020s progress, whereas the cost of diesel trucks will either increase or remain stagnant.

CARB undertook a TCO analysis that compared battery-electric and diesel Class 8 Day Cab semi-trucks.461 Day Cabs are a type of truck generally used for day trips less than 250 miles, and are also known as regional-haul or short-haul trucks. CARB’s analysis also includes the cost of infrastructure investment, but does not factor in environmental damages or any subsidies or grants. Nevertheless, the battery-electric day cabs proved especially cost-effective. The study finds that battery-electric day cabs yield significant savings as early as 2025. By 2030, a batteryelectric day cab operating in drayage duty cycle is expected to have a 31 percent lower TCO versus diesel, equal to savings of $239,000.462
Both of these studies indicate the current TCO of a battery-electric semi-truck is already either comparable or favorable compared to a diesel equivalent and that battery-electric semi-trucks will have a vastly superior TCO sometime by 2025 (within 3 years). Notwithstanding these favorable findings, these assessments should be treated as conservative. Neither study takes into account the financial incentives available in California, and the CARB study only considers the Low Carbon Fuel Standard. California has many more incentives available, with the most prominent being the Hybrid and Zero-Emission Truck and Bus Voucher Incentive Project (“HVIP”).463 For certain Class 7 battery-electric trucks, this HVIP program provides $95,000 as a voucher to offset some of the purchase price.464 For certain Class 8 battery-electric trucks, the voucher amount is $150,000.465 Further, in their respective analyses of charging infrastructure costs, neither study incorporates the hundreds of millions of dollars that California utilities have 460 Id. at 29. 461 CARB, Draft Advanced Clean Fleets Total Cost of Ownership Discussion Document (Sept. 2021) https://ww2.arb.ca.gov/sites/default/files/2021-08/210909costdoc_ADA.pdf. . 462 Id. at 8. 463 California Hybrid and Zero-Emission Truck and Bus Voucher Program (Last visited February 12, 2022) https://www.californiahvip.org/. 464 See generally, California HVIP Eligible Vehicle Catalog (Last visited February 12, 2022) https://www.californiahvip.org/how-to-participate/#Eligible-Vehicle-Catalog. 465 Id. 1083
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already committed to supporting the development of heavy-duty charging infrastructure,466the billions committed and proposed through California’s State budgets in 2022 and 2023,467 nor the funding already signed into law by the Federal Bipartisan Infrastructure Law – including $5 billion for medium- and heavy-duty vehicle infrastructure, and an additional $2.25 billion specifically for electrification at Ports.468
In addition to financial incentives and utility charging infrastructure investment, when the environmental externalities of air pollution and GHG emissions are monetized and incorporated into a TCO analysis, battery-electric trucks are even cheaper compared to diesel. A study done by the Lawrence Berkeley National Laboratory (“LBNL”) monetizes the reductions in GHG emissions and air pollution associated with battery-electric trucking in three different scenarios:
when the electricity comes from 90% renewable sources and 10% gas, when it comes from 100% gas, and when it comes from 100% coal.469 The study found that, when battery-electric trucks are fueled by electricity generated with 90% renewables and 10% gas, these trucks save $0.28 per mile compared to diesel.470 When battery-electric trucks are powered by electricity generated with 100% gas, these trucks save $0.20 per mile compared to diesel.471 California’s electricity generation mix is somewhere in between these two extremes of 100% gas and 90% renewable.472 Therefore, battery-electric trucks operating within California would likely save somewhere between $0.20 and $0.28 per mile in GHG and air pollution costs compared to a diesel truck operating in California. Further, even without the monetization of environmental externalities, the LBNL study concludes that the current TCO of a Class 8 semi-truck with a 400-mile range is about 20% less than a diesel equivalent.473
Battery-electric Class 7 and 8 semi-trucks are currently an economically feasible alternative to diesel and natural gas semi-trucks. If incentive programs like the HVIP and LCFS, as well as the significant investment made by California utilities in charging infrastructure are incorporated into a TCO analysis, battery-electric trucks are dramatically cheaper than diesel equivalents. As the 2020s progress, battery-electric trucks will yield positive cashflows in shrinking payback periods, as diesel trucks become more expensive.
466 California Public Utilities Commission, Transportation Electrification Activities Pursuant to Senate Bill 350 https://www.cpuc.ca.gov/sb350te/. 467 Office of the California governor, Governor Newsom Outlines Historic $10 Billion Zero-Emission Vehicle Package to Lead the World’s Transition to Clean Energy, Combat Climate Change (Jan. 26, 2022) https://www.gov.ca.gov/2022/01/26/governor-newsom-outlines-historic-10-billion-zero-emission-vehicle-packageto-lead-the-worlds-transition-to-clean-energy-combat-climate-change/. 468 Infrastructure Investments and Jobs Act (2021) Pub. L. No. 117-58, 135 Stat. 429. 469 Amol Phadke, et al., Why Regional and Long-Haul Trucks are Primed for Electrification Now, Lawrence Berkeley National Lab, International Energy Analysis Department (March 2021) [hereafter, “Lawrence Berkeley”] at 20 https://eta-publications.lbl.gov/sites/default/files/updated_5_final_ehdv_report_033121.pdf. 470 Id.at 27. 471 Id. 472 Nuclear Energy Institute, supra. 473 Lawrence Berkeley, supra, at 3. 1084
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2. The Most Significant Technological Barriers to Widespread Usage of BatteryElectric Semi-Trucks Have Been Overcome with Immense Public and Private Investment
Battery-Electric Trucks are Already Technologically Feasible for the Majority of Trucks In-Use, and Particularly for Class 7-8 Day Cabs. Battery Technology has Advanced to Support Long Range Freight Movement A recent market assessment of the medium- and heavy-duty market by analysts at MJ Bradley & Associates examines the in-use truck fleet to assess readiness for adoption of zero-emission trucks.474 The analysis factors in charging patterns, operating requirements, market status, and business case. It relies on conservative assumptions (from a 2019 ICF study), but nevertheless, finds that 66% of the truck fleet has “strong potential for nearterm [pre-2025] uptake.”475 A separate report by industry experts at the North American Council on Freight Efficiency (“NACFE”), titled “Electric Trucks Have Arrived” documents the positive results from a realworld truck demonstration.476 The demonstration of 13 trucks over a 3-week period had the following conclusion: “The event proved that four market segments – vans and step vans, medium-duty box trucks, terminal tractors, and heavy-duty regional haul tractors – are ready to go electric.”477
Not only are battery prices falling significantly, but battery technology is progressing to such an extent that it is technologically feasible for battery-electric semi-trucks to operate effectively over the long ranges necessary for some kinds of freight movement. The LBNL study referenced above found that “recent technological developments indicate that electric trucks, like electric cars, can be fully charged in thirty minutes.”478 This is consistent with claims by Tesla that its Tesla Semi can be fully charged in under thirty minutes.479 Fast-charging is crucial for freight movement, as approximately 40% of large semi-trucks travel 500 miles or more per trip.480 Each thirty-minute charging session is estimated to provide 4-6 hours of driving time, allowing longhaul battery-electric truck operators to effectively compete with operators using diesel and/or natural gas trucks.481 The International Council on Clean Transportation (“ICCT”) study referenced above found that with fast charging, a battery-electric semi-truck operator would spend approximately two hours charging on a trip between Los Angeles and Chicago.482 Although two hours is more time than a diesel or natural gas semi-truck operator would spend 474 MJ Bradley, Market Medium- and Heavy-Duty Vehicle Market Structure and EV Readiness (July 2021) https://www.mjbradley.com/reports/medium-heavy-duty-vehicles-market-structure-environmental-impact-and-evreadiness. 475 Id. 476 NACFE Report, Executive Summary, Electric Trucks Have Arrived, Documenting A Real-World Electric Trucking Demonstration (Jan 2022) https://nacfe.org/wp-content/uploads/edd/2022/01/RoL-Report-ExecutiveSummary-FINAL.pdf 477 Id. at 4 (Emphasis Added). 478 Lawrence Berkeley, supra, at 4. 479 Id. 480 Shashank Sripad and Vekatasubramanian Viswanathan, Quantifying the Economic Case for Electric SemiTrucks, at 149 (available at https://pubs.acs.org/doi/pdf/10.1021/acsenergylett.8b02146). 481 Lawrence Berkeley, supra, at 4. 482 Hall, Dale and Nic Lutsey, (August 2019), Estimating the Infrastructure Needs and Costs for the Launch of Zero Emissions Trucks, International Council on Clean Transporation,[hereafter, “ICCT Report”], p.17 1085
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refueling, ICCT concludes this time “does not significantly affect total daily driving time within legal limits.”483 Therefore, not only are battery prices falling dramatically, but battery technology is advancing exponentially, making it technologically feasible for battery-electric trucks to operate over both short and long ranges. In the case of OHD’s proposed project, having zeroemissions trucks carry new cars to existing sites is ideal given the fixed-route they would travel on and the relatively short distances from the Port.

3. California’s Electric Utilities have Committed Hundreds of Millions of Dollars to Build Medium and Heavy-Duty Charging Infrastructure
While it has been shown that battery prices are falling significantly, and battery technology is increasing rapidly, this means little if there is insufficient charging infrastructure. According to CARB, charging infrastructure has emerged as the largest current issue preventing the widespread usage of heavy-duty battery-electric trucks.484 Fortunately, there has been significant investment by California public utilities in medium and heavy-duty charging infrastructure.

Further, the cost of charging infrastructure per vehicle diminishes significantly as the volume of vehicles increases. Therefore, the utilities’ investment allows the battery-electric semi-truck market to circumvent the high costs currently associated with early charging infrastructure development and helps to create economies of scale for future buyers.

The California Public Utilities Commission (“CPUC”) has approved significant investments proposed by California’s major public utilities in medium and heavy-duty charging infrastructure.485 For example, in 2018, the CPUC approved Pacific Gas & Electric’s (“PG&E”) proposed investment of $236 million to support medium and heavy-duty charging infrastructure installations across their service territory.486 The CPUC in 2018 also approved Southern California Edison’s (“SCE”) proposed investment of $343 million to support medium and heavyduty charging infrastructure installations in its service territory.487 In 2019, the CPUC approved a similar program proposed by the San Diego Gas and Electric (“SDG&E”), although the exact dollar amount is unclear at this point.488 Altogether, these investments will support the development of charging infrastructure for at least 18,000 trucks and busses. Therefore, although charging infrastructure is a significant barrier to widespread usage of heavy-duty vehicles, the almost $1 billion already committed to building this infrastructure by California’s utilities is a huge step in overcoming this barrier.

This investment by California’s utilities is vital because it has been shown that the cost of charging infrastructure per truck diminishes significantly as the amount of infrastructure installations increases. In the ICCT study referenced above, the ICCT calculates the expected cost of charging infrastructure per Class 8 long-haul battery-electric truck. With 100 trucks and 150 charging installations, the cost of infrastructure per vehicle is $189,000.489 With 1,000 trucks 483 Id. 484 California Air Resources Board, Heavy-Duty Investment Strategy, at D-41 (Sep. 20, 2019) https://ww2.arb.ca.gov/sites/default/files/2019-09/fy1920fundingplan-appd.pdf. 485 In Concordance with SB 350 (De Leon, Chapter 547, Statutes of 2015), https://www.cpuc.ca.gov/sb350te/. 486 Id. 487 Id. 488 Id. 489 ICCT Report, Executive Summary at i. 1086
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and 1,200 installations, the cost drops to $114,000 per truck; with 10,000 trucks and 9,700 installations, the cost drops even further to $71,000 per truck.490 The economies of scale associated with charging infrastructure shows why the utilities’ investments are so crucial in ensuring the technological feasibility of battery-electric semi-trucks. The utilities’ committed investment will help early battery-electric truck purchasers avoid the high costs currently associated with charging infrastructure. Further, the investment will aid the battery-electric market generally, as these hundreds of millions of dollars will create the economies of scale needed to significantly lower the cost of charging infrastructure for future buyers. This is partly why, as the ICF study shows, when these utility investments are incorporated into a TCO analysis, large battery-electric semi-trucks currently have a favorable TCO when compared to diesel. Thus, with these investments, the cost of charging infrastructure is no longer an obstacle to the widespread usage of Class 7 and 8 battery-electric semi-trucks at freight facilities.

4. Class 7 and Class 8 Battery-Electric Semi-Truck Models are Available for Purchase, and Many Freight Facilities are Have Committed to Utilizing these Trucks
Countering any claims that the technology is unavailable, there are numerous models of Class 7 and 8 Battery-Electric semi-trucks that are currently available for purchase, and are already in operation across the nation. Based on company announcements, there are at least ten Class 7 or 8 models with ranges up to 550 miles that are slated for commercial deployment by 2021.491 As early as January of 2018, 19 companies had already ordered 375 Tesla Semis, with UPS ordering 125 and PepsiCo ordering 100.492 BYD, a Chinese zero-emission vehicle manufacturer, announced in January 2020 that it had delivered its 100th battery-electric truck within the United States, which was a second-generation Class 8 semi-truck.493 The German company Daimler announced it delivered its first battery-electric semi-truck in 2019, and had delivered five more by early 2020.494 Daimler is planning on significantly increasing the volume of its batteryelectric semi-trucks on the road in 2021.495 Not only are there multiple Class 7 and 8 battery-electric semi-truck models available for purchase and currently on the road, but many freight facilities have already committed to incorporating these trucks into their fleets. Walmart announced that it would be opening a fulfillment center in British Columbia in 2022, which will feature a fully electric fleet.496 Anheuser-Busch announced in 2018 that it had ordered 800 electric and hydrogen semi-trucks.497 Frito-Lay is currently working on upgrading an existing freight facility, which will include use of 490 Id. 491 Id. at 2. 492 Business Insider, Companies that Have Ordered Tesla Semis (April 25, 2018), https://www.businessinsider.com/companies-that-ordered-tesla-semi-2017-12. 493 BYD, BYD Delivers its 100th Battery-Electric Truck in the United States (Jan. 8, 2020), https://en.byd.com/newsposts/byd-delivers-100th-battery-electric-truck-in-the-united-states/. 494 Electrek, Daimler Delivers More Electric Freightliner eCascadia Semi-Trucks (Mar. 4, 2020), https://electrek.co/2020/03/04/daimler-electric-freightliner-semi-trucks-ecascadia/. 495 Id. 496 CleanTechnica, Walmart Orders 30 More Tesla Semi Electric Trucks (Sep. 7, 2018), https://cleantechnica.com/2018/09/07/walmart-orders-30-more-tesla-semi-electric-trucks/. 497 Transport Topics, Anheuser-Busch, Nikola, BYD Complete First Zero-Emission Run (Nov. 21, 2019), https://www.ttnews.com/articles/anheuser-busch-nikola-byd-complete-first-zero-emission-beer-run. 1087
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15 Tesla Semis and a 1 Megawatt photovoltaic array with charging infrastructure.498 Loblaw, a Canadian supermarket company, has committed to fully transforming its fleet to zero emission vehicles by 2030, and had already ordered 25 Tesla Semis by late 2017.499 Further, the Port of Los Angeles has committed to deploying ten Kenworth and Toyota Class 8 fuel cell trucks, and two battery-electric yard tractors.500 The South Coast Air Quality Management District has committed to deploying 23 Class 8 Volvo battery-electric trucks to move freight across the Inland Empire.501
In addition to multiple studies demonstrating that battery-electric semi-trucks are cheaper on a lifetime basis than diesel semi-trucks, these examples of semi-trucks currently available for purchase, and facilities committed to transforming their fleets, indicate that widespread usage of Class 7 and 8 battery-electric trucks at freight facilities is currently feasible.

5. California Regulatory Agencies are Aggressively Pushing for Increased Utilization of Battery-Electric Semi-Trucks
Multiple government agencies within California are attempting to increase the number of battery-electric semi-trucks on the road through regulatory mandates, grant programs, and incentive programs. These are in addition to the Low Carbon Fuel Standard, the HVIP program, and the utility investments in charging infrastructure referenced above. In addition to the favorable TCO of battery-electric semi-trucks, these various agency actions increase the feasibility of widespread usage of these types of trucks at freight facilities.

The South Coast Air Quality Management District (“SCAQMD”) has recently proposed an Indirect Source Rule that would apply to freight facilities within the South Coast region.502 Under this rule, freight facilities above 100,000 square feet would be required to accumulate a certain number of Warehouse Actions and Investments to Reduce Emissions (“WAIRE”) points per year.503 WAIRE points can be generated through the purchase and usage of zero-emission and near zero-emission equipment, including vehicles and charging infrastructure.504 Zeroemissions and near-zero-emission truck trips also generate WAIRE points. The most points that 498 Frito-Lay, Frito-Lay Transforms California Production Site into First-of-its-Kind Showcase for Sustainability (Oct. 3, 2019), https://www.fritolay.com/news/frito-lay-transforms-california-production-site-into-first-of-its-kindshowcase-for-sustainability. 499 Financial Post, Loblaw Says it Ordered 25 Tesla Semis, Wants Fully Electric Fleet by 2030 (Nov. 17, 2017), https://business.financialpost.com/news/retail-marketing/loblaw-says-it-ordered-25-tesla-electric-trucks-wants-fullyelectric-fleet-by-2030. 500 California Air Resources Board, CARB Announces More than $200 Million in New Funding for Clean Freight Transportation (Sep. 26, 2018), https://ww2.arb.ca.gov/news/carb-announces-more-200-million-new-funding-cleanfreight-transportation. 501 Id. 502 South Coast Air Quality Management District, Proposed Rule 2305: Warehouse Indirect Source Rule (Nov. 10, 2019), http://www.aqmd.gov/docs/default-source/planning/fbmsm-docs/warehouse-isr_prelim-1stdraft.pdf?sfvrsn=6. 503 Id. at 2305-3. 504 South Coast Air Quality Management District, Draft WAIRE Menu Technical Report at 1 (Mar. 3, 2020), http://www.aqmd.gov/docs/default-source/planning/fbmsm-docs/waire-menu-technical-report_draft_3-3-

20.pdf?sfvrsn=6.
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can be allocated for a singular action is for the purchase and usage of Class 8 battery-electric or fuel cell trucks.505
SCAQMD cites the commercial availability of battery-electric Class 7 and 8 trucks in the technical document supplementing the regulatory language.506 While the specific acquisition and usage of Class 7 and Class 8 zero-emission trucks is not per se required, this rule would strongly incentivize, if not force, many freight facilities to acquire these types of trucks and/or ensure that a certain number of truck trips made to their warehouse each year are by these trucks. With the proposal of this rule, SCAQMD indicates that increased usage of Class 7 and 8 battery-electric trucks is feasible and seeks to ensure more of these trucks are on the road.

SCAQMD is not the only California agency attempting to increase the usage of battery-electric trucks in the state. CARB has proposed an update to its Advanced Clean Truck rule, which will increase the number of zero-emission vehicles that medium-duty and heavy-duty manufacturers are required to sell into California.507 Further, CARB oversees an over $200 million program designed to facilitate the transition to zero-emission freight fleets.508 This CARB program funded the deployment of zero-emission semi-trucks done by the Port of Los Angeles and the SCAQMD, referenced above. CARB also oversees a grant program called the Carl Moyer Memorial Air Quality Standards Attainment Program.509 This program provides funding to vehicles that have less particulate matter and NOx emissions than is currently required by state and federal law. In addition, CARB oversees the Air Quality Improvement Program (“AQIP”), which is almost exclusively used to provide financing for small fleet owners to purchase clean fleets.510
This is certainly not an exhaustive list of the grant programs and incentives available in California. Altogether, CARB indicates that more than a dozen California agencies issue hundreds of millions of dollars annually to support the deployment of heavy-duty vehicles.511 These grant programs, regulations, and incentives further illustrate the feasibility of widespread usage of battery-electric semi-trucks at freight facilities. None of the TCO studies analyzed above incorporate these programs and regulations into their calculation. Even without considering any of these, the TCO of a battery-electric semi-truck is currently less than a diesel equivalent. When these programs, regulations, and incentives are also considered, the case for the feasibility of requiring Class 7 and 8 battery-electric semi-trucks at freight facilities becomes even stronger.
505 Id. at 2. 506 Id. at 4. 507 See generally California Air Resources Board, Advanced Clean Trucks Regulation, https://ww2.arb.ca.gov/rulemaking/2019/advancedcleantrucks. 508 California Air Resources Board, CARB Announces More than $200 Million in New Funding for Clean Freight Transportation (Sep. 26, 2018), https://ww2.arb.ca.gov/news/carb-announces-more-200-million-new-funding-cleanfreight-transportation. 509 California Air Resources Board, Carl Moyer Air Quality Standards Attainment Program, https://ww2.arb.ca.gov/our-work/programs/carl-moyer-memorial-air-quality-standards-attainment-program. 510 California Air Resources Board, AQIP Formal Regulatory Documents, https://ww2.arb.ca.gov/resources/documents/aqip-formal-regulatory-documents. 511 California Air Resources Board, Heavy-Duty Investment Strategy, at D-90 (Sep. 20, 2019) https://ww2.arb.ca.gov/sites/default/files/2019-09/fy1920fundingplan-appd.pdf. 1089
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6. There are Multiple Co-Benefits Associated with the Widespread Usage of Class 7 and 8 Zero-Emission Semi-Trucks as an Alternative
i. Requiring the Usage of Class 7 and 8 Battery-Electric Semi-Trucks will Reduce Local Air Pollution
The operation of Class 7 and 8 diesel semi-trucks within and around communities has devastating, sometimes deadly, air quality impacts. As mentioned above, diesel semi-trucks are significant sources of particulate matter and NOx pollution. The impacts of these pollutants are so severe that the International Agency for Research on Cancer, which is part of the World Health Organization, has classified diesel exhaust as carcinogenic to humans.512 According to the California Office of Environmental Health Hazard Assessment (“OEHHA”), particulate matter pollution is linked to increased hospital visits, emergency room visits, asthma attacks, and premature deaths among those suffering from respiratory illnesses.513 Children are especially susceptible to this harmful pollution, as their lungs and respiratory systems are still developing.514 NOx emissions are also quite harmful and can damage lung tissue, lower the body’s resistance to respiratory infection, and worsen chronic lung diseases. Further, NOx reacts with other pollutants in the atmosphere to form ozone, a precursor to smog.515 Class 7 and 8 zero-emission semi-trucks almost fully eliminate the creation of these potentially deadly pollutants. As referenced above, zero-emission vehicles, including battery-electric trucks, have no tailpipe emissions. The only significant air pollutant associated with these semi-trucks is the particulate matter caused by braking. However, according to CARB, battery-electric trucks emit about 50% less particulate matter from braking than diesel semi-trucks, using “regenerative braking.” Therefore, requiring the usage of Class 7 and 8 zero-emission semi-trucks is not only economically and technologically feasible but will provide significant health benefits to the people of Oxnard and Ventura County. Thus, the usage of these trucks not only offers the City a reasonable alternative to building a temporary parking lot near wetlands but is also a moral imperative. No person within the surrounding communities should be subjected to asthma lung cancer when it is clearly possible to meet the objective of facilitating vehicle storage at existing sites using better technology.
ii. Requiring Usage of Class 7 and 8 Battery-Electric Semi-Trucks will Aid California in Reaching its GHG and Air Pollution Reduction Goals California has multiple stringent GHG and air pollution reduction goals, and electrification of freight fleets is a vital component to achieving these goals. California is mandated under the federal Clean Air Act to reduce its air pollution consistent with the National Ambient Air Quality 512 American Cancer Society, Diesel Exhaust and Cancer, https://www.cancer.org/cancer/cancer-causes/dieselexhaust-andcancer.html#:~:text=The%20EPA%20classifies%20diesel%20exhaust,a%20%E2%80%9C potential%20occupational%20carcinogen.%E2%80%9D. 513 California Office of Health Hazard Assessment, Health Effects of Diesel Exhaust (May 21, 2001), https://oehha.ca.gov/air/health-effects-diesel-exhaust. 514 Id. 515 Id. 1090
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Standards (“NAAQS”).516As mentioned above, diesel semi-trucks are a significant source of NOx tailpipe emissions, whereas battery-electric semi-trucks have zero tailpipe emissions. Thus, requiring the usage of these vehicles in Port operations and throughout the existing network of off-port storage facilities, will aid California in achieving compliance with the federal NAAQS.

California also has aggressive GHG reduction goals. State Bill 32 mandates that GHG emissions be reduced 40% below 1990 levels by 2030. Executive Order S-3-05 mandates that GHG emissions be reduced 80% below 1990 levels by 2050. Executive Order B-55-18 mandates that California achieve economy-wide carbon neutrality by 2045. According to a report by the Energy Futures Initiative, meeting the goals for 2045 and 2050 will be “extremely challenging.”517 According to the ICF study mentioned above, the deployment of 100,000 electric medium and heavy-duty vehicles is necessary to achieve both the 2030 and 2050 GHG reduction goals.518 Heavy-duty vehicles, including diesel semi-trucks, are a significant source of GHG emissions. According to the Union of Concerned Scientists, heavy-duty vehicles constitute 10% of vehicles in the United States but emit 28% of vehicle-related GHG emissions. 519 Batteryelectric trucks, as shown above, have significantly less life cycle GHG emissions than diesel semi-trucks, and the GHG emissions from battery-electric trucks will continue to decrease as California increases the proportion of electricity generated by renewable sources. Thus, requiring the usage of battery-electric semi-trucks will aid California in meeting its aspirational GHG emissions reduction goals.
iii. Electrification of Freight Fleets has Positive Economic Impacts for California
In addition to the TCO calculation, the ICF study referenced above also analyzes the economic impacts associated with the electrification of freight fleets in the state of California. The report concluded that widespread electrification has multiple positive economic impacts. For one, transitioning from petroleum fuels to electricity allows funds that would otherwise flow out of California’s economy to be retained within the state.520 Further, investment in battery-electric vehicles results in greater net employment, Gross Regional Product, and industrial activity per dollar invested, when compared to investment in natural gas vehicles.521 Also, investment in the electrification of freight fleets results in a doubling of jobs in the medium and heavy-duty sectors relative to investment in natural gas and diesel vehicles.522 These economic benefits are consistent with the findings of the LBNL. In a letter to CARB regarding its Advanced Clean Truck Rule, LBNL indicates that a mandate that manufacturers must sell 100% zero-emission 516 ICF, Comparison of Medium and Heavy Duty Technologies in California, Executive Summary (December 2019) [hereafter, “ICF Study”], available at https://caletc.com/assets/files/ICF-Truck-Report_Final_December-2019.pdf, p.3.
517 Energy Futures Initiative, Optionality, Flexibility, and Innovation: Pathways for Deep Decarbonization in California at x (April 2019),
https://static1.squarespace.com/static/58ec123cb3db2bd94e057628/t/5cadebd04cd61c00017a563b/1554901977873/ EFI+California+Summary+DE+PM.pdf. 518 ICF Study, supra, 28. 519 Union of Concerned Scientists, supra, at 2. 520 ICF Study, supra, at 6. 521 Id. 522 Id. 1091
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vehicles across all truck classes would result in $49 billion in savings to the state economy compared when to a “business-as-usual” scenario.523
The DEIR should consider each of benefits stemming from deployment of zero-emissions trucks as part of existing and future Port operations- including in distribution to the network of existing off-Port storage facilities. Not only is this good for the economy, but it is a better alternative for the environment and for public health. Exploring this option further will allow the City to avoid the potentially harmful consequences of pursuing a Project that will permanently alter 34-acres of land near sensitive receptors and bring harmful environmental impacts to the environment.

XVI. Conclusion
There are many flaws with this DEIR. These flaws are significant and must be fixed if the OHD and the City want to proceed with this Project. We urge the City to reject this Draft Environmental Impact Report at this time. Should you have any questions about this comment letter, please do not hesitate to contact us at [email protected], [email protected], and [email protected]. Thank you for considering our comments.

Sincerely,
Fernando Gaytan
Earthjustice
Natalia Ospina
Heather Kryczka
Natural Resources Defense Counsel
Maricela Morales
Central Coast Alliance United for a Sustainable Economy (CAUSE) Mati Waiya
Wishtoyo Chumash Foundation
Attachments
Addendum A – Matt Hagemann & Dr. Paul Rosenfeld Letter
Addendum B – Dr. Shawn Smallwood Letter
Addendum C – Brenton Spies Letter
523 Lawrence Berkeley National Laboratory, Letter to CARB Regarding Proposed Amendments to the ACT Standard Yield $11 Billion in Savings and 50% Emissions Reductions over Original Standards (May 20, 2020), https://www.arb.ca.gov/lists/com-attach/4122-act2019-AWBdOAZzAzMKYwFs.pdf. 1092
ATTACHMENT 2
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July 1, 2022
Via Email and Federal Express
Jay Dobrowalski
Senior Planner
City of Oxnard Planning Division
214 South C Street
Oxnard, CA 93030
Email: [email protected]
Re: Supplemental Comments on The Port of Hueneme – Temporary Outdoor Vehicle Storage Facility Project (#2020069039) and PZ 18-500-02 (Special Use Permit) Dear Mr. Dobrowalski:

We write on behalf of the Central Coast Alliance United for a Sustainable Economy (“CAUSE”), Earthjustice, Natural Resources Defense Council (“NRDC”), and Wishtoyo Chumash Foundation (“Wishtoyo”) to provide supplemental comments for the Port of Hueneme – Temporary Outdoor Vehicle Storage Facility Project (“Project”).

On March 21, 2022, the City of Oxnard Planning Division (“OPD”) hosted a Virtual Community Workshop with presentations from the OHD discussing its plans for the 34-acre Vehicle Storage Site currently under review. At the conclusion of the Virtual Community Workshop, OPD invited additional written comments from the public concerning the proposed Project and the presentation by the Oxnard Harbor District (“OHD” or the “Port”). In line with this invitation, these comments supplement our previous letter submitted on February 14, 2022. We incorporate by reference all previous comments submitted raising issues regarding the Draft Environmental Impact Report (“DEIR”) and reiterate our position that the DEIR is inadequate and cannot support the Special Use Permit sought through the relevant application to the Planning Commission.

In our prior letter, we explained how the DEIR for the Project failed to comply with the California Environmental Quality Act (“CEQA”). There is new evidence that has emerged under production in response to Public Records Act (“PRA”) requests to the Port that should be part of the record such that decisionmakers and the public have all substantial relevant information to participate in the CEQA process and make an informed decision on the project, as required by CEQA.1 The 1 Cal. Code Regs. tit. 14, § 15151 (1992) (“An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences”); Laurel Heights Improvement Ass’n v. Regents of Univ. of California 47 Cal. 3d 367, 394 (1988), as modified in denial of reh’g (Jan. 26, 1989)(“A fundamental purpose of an EIR is to provide decision makers with information they can use in deciding whether to approve a proposed project… If post-approval environmental review were allowed, EIR’s would likely become nothing more than post hoc 1094

released documents substantiate the serious CEQA violations described in our February 14 letter:
in compiling the DEIR, the Port knowingly piecemealed other expansion projects, willfully ignored significant environmental issues and did not include adequate detail in the DEIR, and failed to translate the DEIR for meaningful public review.

Furthermore, we are concerned that the City of Oxnard is withholding additional relevant information due to their egregious delay in responding to our PRA request from June 2021 and their failure to meet with requestors to identify responsive records. We ask, once again, that the City set up a meeting with requestors as soon as possible to develop a path forward to producing records responsive to our June 2021 request.

Simply put, the current DEIR is inadequate. Given the significant flaws described further below, the DEIR should be rejected, and the special use permit must be denied. If the City wishes to move forward, it must recirculate a DEIR that contains sufficient information and detail to allow decision makers to make an informed decision on the entire Project, as required by CEQA. Should the City fail to conduct a full, thorough, and transparent environmental analysis in compliance with CEQA, the Planning Commission must decline to certify any final EIR. rationalizations to support action already taken”); Sierra Club v. County of Fresno, 6 Cal. 5th 502, 510, 431 P.3d 1151, 1158 (2018) (holding that an EIR must include “sufficient detail to enable those who did not participate in its preparation to understand and to consider meaningfully the issues the proposed project raises…”). 1095

TABLE OF CONTENTS
PROCEDURAL BACKGROUND................................................................................................. 4 I. The DEIR Improperly Piecemealed the Project..................................................................... 4 II. The DEIR’s Project Description is Inaccurate and Misleading............................................. 9 The City has not Demonstrated how the Project is Temporary in the DEIR. ................ 9 The City has not Explained the Permanence of the Alleged Benefits of the Project. .. 10 III. The DEIR Failed to Incorporate Critical Environmental Information in Violation of CEQA. ................................................................................................................................. 11 The DEIR Failed to Incorporate an Accurate Cumulative Impact Assessment. .......... 11 The Traffic Study Incorporated into the DEIR was Rubberstamped. .......................... 13 The Port Failed to Provide a Reasonable Explanation for not Considering a ZeroEmission Vehicle Alternative....................................................................................... 15 IV. The Port has not Provided a Meaningful Public Review of the DEIR. ............................... 16 CONCLUSION............................................................................................................................. 17 1096

PROCEDURAL BACKGROUND
Given the lack of publicly available information on expansion planned by the Port, CAUSE and NRDC submitted Public Records Act (“PRA”) requests to both the City and the Port in June 2021.

The City has almost entirely ignored the aforementioned PRA requests and has produced only 20 documents to date, despite the statutory and constitutional right under California law to public access to governmental records.2 This failure by the City to fully respond to our request not only violates the PRA, but also undermines a core principle of CEQA: public participation.

Since we submitted comments on the Draft EIR in February 2022, the Port produced additional documents responsive to the PRA requests on February 22, March 18, April 22, April 29, and May 26, 2022, and continues to make documents available on a rolling basis. The produced documents provided additional information previously unavailable to commenters regarding the 34-acre site, the permanent 250-acre site, and other reasonably foreseeable development in the Port. Based on our review of these new documents, commenters have the right to supplement our earlier comments.3 Since this supplemental letter is based on new information revealed in the Port’s responses to our PRA Requests, the comments raised herein and the attached produced documents should become part of the administrative record.

CEQA requires agencies to recirculate an EIR when “significant new information” is disclosed and provide an opportunity for a renewed public notice and comment.4 “Significant new information” includes documents that reveal that “the draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.”5
As detailed below, the documents produced by the Port under the PRA reveal precisely how the DEIR was inadequate: (1) the DEIR improperly piecemealed the Project; (2) the DEIR’s Project Description is inaccurate and misleading; (3) the DEIR failed to incorporate critical environmental information in violation of CEQA; and (4) the City has not provided a meaningful public review of the DEIR.

I. The DEIR Improperly Piecemealed the Project.

The DEIR failed to consider the 250-acre site as a reasonably foreseeable extension and therefore improperly piecemealed the Project. CEQA prohibits the piecemealing of projects to avoid a more robust review of the potential direct or indirect physical changes to the environment caused by a 2 See Cal. Gov. Code §§ 6253(b), 6253.1(a).
3 Cal. Gov. Code § 65009(b); Cal. Pub. Res. Code § 21177(a); Bakersfield Citizens for Local Control v. Bakersfield 124 Cal. App. 4th 1184, 1199-1203, 22 Cal. Rptr. 3d 203, 214 (2004); see Galante Vineyards v. Monterey Peninsula Water Mgmt. Dist. 60 Cal. App. 4th 1109, 1121, 71 Cal.

Rptr. 2d 1, 8 (1997).
4 Cal. Code Regs., tit.14, § 15088.5(d), (f); see also Cal. Pub. Res. Code § 21092.1 (West). 5 Cal. Code Regs., tit.14, § 15088.5(a)(4).
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project.6 An EIR must include an analysis of the environmental effects of future expansions or other actions when: a) a project is a reasonably foreseeable consequence of the initial project; and b) the future expansion or action is significant in that it will likely change the scope or nature of the initial project or its environmental effects.7
The Port produced “significant new information” which revealed that the DEIR “was so fundamentally and basically inadequate and conclusory in nature” with respect to the 250-acre site that meaningful public review was precluded—thus triggering the need for recirculation as stated in the CEQA Guidelines § 15088.5(a)(4). The record indicates that the 34-acre site is an allegedly temporary measure with the Port already discussing future action plans to move the site to the 250- acre lot; and the Port and the City are contemplating multiple projects with a singular goal: to reduce capacity constraints for vehicle storage. Because these documents reveal serious gaps in the DEIR, they must not only be made part of the record, but the agency must also revise and recirculate the DEIR giving full consideration to the 250-acre site.

The Port has repeatedly emphasized, in different contexts, that the 250-acre site would operate as a logical outgrowth, i.e., a reasonably foreseeable consequence, of the 34-acre site and that it would be a permanent structure with a larger environmental footprint. For instance, the Port has started drafting conceptual plans, pursuing financial arrangements with customers, considering the 250- acre project for grants, and designating the site as an Opportunity Zone. More egregiously, records indicate that the Port might have commenced the CEQA process for the 250-acre project as early as 2018. As such, this new evidence further demonstrates that the 250-acre site meets the CEQA test for a future project that must be considered in an EIR for the 34-acre site.8 In addition to the evidence and comments already raised in our February 14, 2022 letter, recent PRA productions further show that the 250-acre project is intended as a reasonable future consequence of the 34-acre site and that concrete steps have been taken to bring the project into fruition. The subsequent paragraphs detail a chronology of the Port’s various grant applications, meetings with landowners, communications with potential tenants and clients, and Community Workshop meetings with stakeholders, which together demonstrate that the Port has known for many years, and at least since 2019, that the 250-acre site would be a reasonably foreseeable consequence of 34-acre site.9
In August 2019, the Port began working with the 16 owners to get a non-binding commitment that the 250-acre property would be designated as an opportunity zone.10 As early as November 2019, 6 Berkeley Keep Jets Over the Bay Comm. v. Bd. Of Port Comm’rs, 91 Cal.App. 4th 1344, 1358, 111 Cal. Rptr. 2d 598, 608 (2001), as modified on denial of reh'g (Sept. 26, 2001). 7 Laurel Heights Improvement Ass’n v. Regents of Univ. of California 47 Cal. 3d 367, 396, 764 P.2d 278 (1988), as modified on denial of reh’g (Jan. 26, 1989). 8 Id. 9 Aegir Property Advisors, Project Update on Proposed Port of Hueneme Logistics Park at p. 9 (Feb. 2021) (this presentation highlights a timeline wherein the CEQA process for the 250-acre site started in 2018).
10 See Email from Kristin Decas to Commissioners, Subject: Weekly Update (Aug. 5, 2019). 1098

GLOVIS had already committed to 140 acres of the 250 site.11 In these conversations, contacts at GLOVIS discussed Letters of Intent for the 250-acre and 34-acre sites together.12 Emails from Port customers indicate that they viewed the 250-acre project, 34-acre project, and the STACKED parking structure as reaching the same goal of expanding port vehicle capacity.13 Thereafter in February 2020, OHD and GLOVIS began discussing arrangements for an MOU for the use of the 250-acre site as a long-term project. These email communications also reflect GLOVIS’ interest in an on-dock parking structure and additional properties for use. More critically, it flags a 10-acre storage site at 6001 Arcturus, which has to go through renovations to be able to land cars.14
In March 2020, the Port signed a Memorandum of Understanding (“MOU”) with the property owners for the 250-acre site.15 The MOU says that the Port and the landowners will cooperate in drafting and considering a purchase option for the 250-acre site.16 The MOU lists the following property owners:
• William Ito, Ito Farms
• Allen Camp, South Shore Land Company LLC
• Steven Murata, Plum Vista LP / Ume Properties LLC
• Ito Family Trust
• White Family Trust
• Katsuda trust(s)
The newly produced documents by the Port indicate that they were in conversation with landowners, including Allen Camp and Bill Ito, in 2020.17 Beginning in June 2020, multiple budget documents list the 34-acre site and the 250-acre site as a single line item, e.g., “34 Acre/250 Acre Project,” suggesting that the projects are inextricably 11 See Email from Dona T. Lacayo to GLOVIS USA at p.2 (Feb. 8, 2021). 12 See Email between Dona T. Lacayo and GLOVIS USA (Nov. 7, 2019), Email between Dona T. Lacayo and GLOVIS USA (Aug. 20, 2019), Email between Dona T. Lacayo and GLOVIS USA (Sept. 2019).
13 Id.
14 Email from Dona T. Lacayo to Charles Franklin Re GLOVIS real estate update at p. 2 (Feb. 21, 2020).
15 Memorandum of Understanding, Oxnard Harbor District (March 3, 2020). 16 Id. at p. 2.
17 See Email from Kristin Decas to Commissioners, Subject: Weekly Update (Oct. 16, 2020); Email from Sandra Cruz to Kristin Decas, Subject: End of Day Review (Dec. 2, 2020). 1099

linked.18 In October 2020, the Port continued meeting with the negotiating team for the owners to determine an accurate market value for the site.19
From late 2020 to early 2021, GLOVIS and OHD continued correspondence about coordination for port vehicle storage expansion that tied the 250-acre site with an on-dock parking structure, the 34-acre site, and Naval base property.20 In early 2021, OHD noted in a presentation that it has already invested $230,000 in developing the 250-acre site, including: development structure analysis; extensive analysis on CEQA, real estate, park development, engineering, rail; and discussions with City/County officials.21 The same presentation also highlighted that OHD needed “firm commitments” and “fast track permitting” for the 250-acre project and the “stop gap measure”—referring to the 34-Acre site.22
At the same time, the Port re-applied for federal funding for the 250-acre project and successfully designated the 250-acre site in census tracks as an Opportunity Zone.23 Beginning in February 2021, OHD started to line up potential customersfor the 250-acre site and began securing MOUs.24 In an email, subject line: ”250 Acres Development Update Call to Action,” the Port noted that “in discussions with several potential port clients, we have identified potential demand from them for approximately 160 acres.”25 Although this estimate did not translate to firm commitments, the Port noted that they could not accommodate more than three to four tenants, one of which would be the Port itself. Thereafter in May, the Port sent a draft MOU with an expected deadline of “July 2nd, 2021.”26 The Draft MOU provides that Port customers will put down a deposit ($12,000 per acre) to use land on the 250-acre site, with the deposit being refundable until the Port secures legal entitlements to the 250-acre site.27 An April 2021 Board Meeting also notes that the Port has engaged in “advanced discussions with auto customers on the 250 acres site.”28 Thereafter, in June, the emails noted that there was a “strong indication from WWL, Del Monte and GLOVIS that they 18 The Port of Hueneme Oxnard Harbor District, Fiscal Year 2021 Budget Schedule at pp. 3-4 (2021); The Port of Hueneme Oxnard Harbor District, FY 2022 Capital Outlay Plan (2021); The Port of Hueneme, FY2021/2022 Preliminary Budget Presentation at p. 17 (May 17, 2021); The Port of Hueneme Oxnard Harbor District, FY 2021 Capital Outlay Plan Draft (2020). 19 See Email from Kristin Decas to Commissioners, Subject Weekly Update (Oct. 16, 2020). 20 See Email from Dona T. Lacayo to Charles Franklin Re: GLOVIS real estate update (Feb. 21, 2020).
21 Aegir Property Advisors, Project Update on Proposed Port of Hueneme Logistics Park at p. 5 (February 2021).
22 Id at p. 6.
23 See OHD, Collaboration Call with City of Oxnard at p.2 (Ongoing). 24 See Email from Dona T. Lacayo to Port of Hueneme Staff and Aegir Ports at pp. 4-6 (June 2021).
25 Id. at p. 5.
26 Id. at p. 2.
27 Memorandum of Understanding for Deposit and Right to Lease Land in a Proposed Port Related Logistics Park in the City of Oxnard (Form as of May 11, 2021). 28 Board of Harbor Commissioners, Board Meeting Materials at p. 14 (Apr. 19, 2021). 1100

are in” and an update indicating the amount of space each customer wants to be reserved via the MOU “40-50 acres for Del Monte, 100 for WWL.”29
In September 2021, the OHD received an Infrastructure for Rebuilding America (“INFRA”)-Extra grant for the Hueneme Modernization Project.30 The INFRA-Extra initiative provides an opportunity to apply for Transportation Infrastructure Finance and Innovation Act (“TIFIA”) credit assistance for up to 49% of eligible project costs. The 2021 request for the INFRA grants states, “[t]he Project advances a critical component of the 2020 Plan that calls for … increased auto capacity.”31 The application goes on to state that the “[m]odernization Project [would] increase the Port’s ability to accommodate automobile exports” and that the “Port’s automobile customers have high demand for additional space to accommodate their cargo.”32 Most recently, during the March 2022 virtual Community Workshop, Oxnard Planning Division officials and OHD officials stated that the 34-acre site and the 250-acre site would operate “like Legos.”33 That is, the 250-acre site would build off of the “stop-gap” 34-acre site. The Port had already recognized the link between a more permanent solution to their capacity issues and a stopgap measure for their clients’ space constraints.

Finally, the City of Oxnard was also aware of the Port’s plans for the 250-acre site. For example, the Port produced a document titled “Collaboration Call with City of Oxnard” with the goal of “Partnership for Economic Development.”34 The document has an “ongoing deadline” and is supplemented with information about the 250-acre site, including grant applications and the inclusion of the 250-acre site in census tracks as an Opportunity Zone.35 Furthermore, a flyer published by both the City of Oxnard and the Port indicates that “[t]he stop gap 34-acre measure … will ensure that the City of Oxnard and the PoH will have sufficient time to structure and meet all regulatory requirements for the longer term 250-acre port logistics park with access to rail.”36 As all the above information demonstrates, it was reasonably foreseeable that the 250-acre site would be a necessary component of this Project. Separating the 250-acre site as a “separate and 29 Email between Dona T. Lacayo and Port of Hueneme Staff and Aegir Ports at p. 1 (June 2021).
30 The Port of Hueneme, Port of Hueneme Projects & Events (March 2019). 31 The Port of Hueneme, The Hueneme Modernization Project – Dep’t of Transportation – INFRA Grant Application FY 2021 at p. 6.
32 Id. 33 City of Oxnard, Community Workshop-34 Acre Vehicle Storage Facility Project available online at https://oxnardca.civicclerk.com/web/player.aspx?id=4561 at 2:57:19 (Mar. 21, 2022). 34 OHD, Collaboration Call with City of Oxnard at p. 2 (Ongoing). 35 Id. Private investments made within this zone will expect return on their investment over a period of time. This strongly suggests that an increased movement of cars and other goods through this corridor was reasonably foreseeable.
36 City of Oxnard & The Port of Hueneme: Partners in Economic Development, Flyer Re:

Ensuring the commercial viability of a major Ventura County Economic Engine - The Port of Hueneme (PoH) - for a better tomorrow at the City of Oxnard. 1101

distinct” project in the EIR is not only piecemealing in violation of CEQA but also entirely disingenuous.

II. The DEIR’s Project Description is Inaccurate and Misleading.

OHD staff have repeatedly emphasized the temporary nature of the Project to downplay the project’s impacts. The Port also noted that the 34-acre project could be taken apart to make another future possible. Yet, when stakeholders asked the Port about a) where the Port would store the 5,000 cars after the 3-5 years; and b) whether workers will be laid off after 3-5 years – the Port evaded answering major questions about the expiration of the temporary permit.37 The Project description in the DEIR also suffers from these fatal flaws. The Port produced “significant new information” revealing that the DEIR was “fundamentally and basically inadequate” for two key reasons. First, neither the City nor the Port explains why the Project is truly temporary. Second, assuming the Project is temporary, neither the City nor the Port explains why the benefits of the Project would be permanent. For these reasons, the new documents must not only be made part of the record, but they also demonstrate how the project description is inadequate under CEQA, and the agency must revise and recirculate the Draft EIR with a proper project description so that decisionmakers can properly assess the impacts of this project.

The City has not Demonstrated how the Project is Temporary in the DEIR.

Although OPD and OHD officials have repeatedly stated that the project would be “temporary,” the documents produced by the Port in response to our PRA requests have demonstrated that the project is likely to become permanent.

The Port has repeatedly raised concerns about an unsustainable “serious off port land deficit” of about 300 acres. More recently, the Port has noted that “storage is becoming an issue now not just for automobiles but containers now as well.”38 While the City has highlighted these space issues, it has not provided the public with any information that would buttress the alleged temporary nature of the site. For example, OHD has not provided specifics regarding plans to transition the site post-project (e.g., into a park) or that the Port will undertake specific mitigation measures to prevent the environmental impact of that reversion. Instead, the space issues that the Port has repeatedly raised in internal documents lead us to believe that the site will be used to increase the carrying capacity of the Port. The lack of transparency on these points calls into question the temporary nature of the site as well as OHD’s long-term intentions for the site.

We reiterate that the temporary nature of the project does not align with the objectives outlined for the project, i.e., to “reduce and consolidate” reliance on off-port satellite storage locations. Unless existing off-Port sites are being kept in operation or an additional more permanent site is planned 37 City of Oxnard, Community Workshop-34 Acre Vehicle Storage Facility Project available online at https://oxnardca.civicclerk.com/web/player.aspx?id=4561 (Mar. 21, 2022) (questions regarding future of cars at 1:48:55 and temporary employment at 1:30:26 and 1:53:10. Vague answers from the Port beginning at 2:43 -3:00)
38 OHD, Collaboration Call with City of Oxnard at p.4 (Ongoing). 1102

as part of this Project, the temporary nature of the Project blurs the sincerity of the objectives— and by extension—the adequacy of the project description. The City cannot seem to reconcile the objectives in the project description with the purported temporary nature of the site.

If truly temporary, the project would fail to satisfy the stated objectives—making Alternative One:

No Project/No Build by far the environmentally superior alternative that the City should adopt. As we stated in our February 14, 2022 comment letter, the City’s concern over reducing diesel truck traffic, if genuine, could be addressed with the deployment of zero-emission trucks and related technologies that are increasingly becoming available in the market. Indeed, at the March 21, 2022 Community Workshop, Port staff touted that the Project’s presumptive tenant, GLOVIS, has led the industry in producing Class-8 zero-emissions trucks.39 This information serves to counter the argument that deploying zero-emission trucks to serve the Port’s vehicle storage operations is infeasible. Therefore, we reiterate our call to the City and the Port to broadly consider deploying zero-emission trucks and other technology as an alternative to building an unnecessary temporary vehicle storage parking lot next to sensitive wetlands.

The City has not Explained the Permanence of the Alleged Benefits of the Project.

Logically, this project cannot provide the promised permanent benefits—increasing economic activity, bringing sustainable jobs, and consolidating existing sites from Camarillo and Ventura— while also being temporary.

In its ongoing collaboration calls with the City, the Port has repeatedly emphasized that the Project will “create 40+ new jobs and add $2.2 million in local salaries annually.”40 However, it does not explain where these jobs and salaries will go after the allegedly temporary project expires. Indeed, when stakeholders asked the Port about potential layoffs for the new workers in the March 2022 Community Workshop, the Port responded that the jobs that the 34-acre site would create are temporary construction jobs, implying contracts that will expire.41 Simply put, the Project is not actually creating any long-term, unionized, and adequately paying jobs. Additionally, in its Project 34 FAQs, the Port has also repeatedly emphasized that the Project will create capacity for 4,944 vehicle storage spaces. The Port fails to explain where these cars will go after the allegedly temporary project expires. Again, when stakeholders asked the Port whether GLOVIS intends to cancel car shipments after the temporary storage facility expires in the March 2022 Community Workshop, the answer was murky at best – stakeholders remain unclear about the future of 39 City of Oxnard, Community Workshop-34 Acre Vehicle Storage Facility Project available online at https://oxnardca.civicclerk.com/web/player.aspx?id=4561 at 2:49:30 – 2:52:00 (Mar. 21, 2022).
40 OHD, Collaboration Call with City of Oxnard – Partnership for Economic Development at p. 2 (Ongoing).
41 City of Oxnard, Community Workshop-34 Acre Vehicle Storage Facility Project available online at https://oxnardca.civicclerk.com/web/player.aspx?id=4561 at 2:44:40 (Mar. 21, 2022). 1103

imported cars and other imports.42 If the other projects are truly “separate and detached,” then they will not serve as sites for moving these vehicles.43
These are integral components of the full project that remain unknown, and as such, the DEIR fails to disclose all the impacts of the project.

III. The DEIR Failed to Incorporate Critical Environmental Information in Violation of CEQA.

Without complete environmental reporting, as well as public commentary from an adequately informed public, officials cannot make informed decisions on projects.44 CEQA procedure is intended to not only provide for adequate environmental assessment, but also to “demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.”45 The integrity of the CEQA process is “dependent on the adequacy of the EIR.”46
The “significant new information” produced by the Port reveals that the DEIR was inadequate and conclusory because it failed to incorporate and inform the public and decisionmakers about the Project’s cumulative impacts, rubberstamped an important traffic analysis, and omitted from consideration reasonable, zero-emission alternatives. The lead agency’s fundamental exclusions in its DEIR deprived the public of informed commentary. As such, the agency also failed to demonstrate how it has taken a hard look at the environmental implications of its actions with respect to the Project. Because these documents reveal serious gaps in the DEIR, they must not only be made part of the record, but the agency must revise and recirculate the DEIR giving full consideration to the environmental consequences.

The DEIR Failed to Incorporate an Accurate Cumulative Impact Assessment. 42 Id. at 2:44:05-2:44:55 (providing vague statements regarding “long term developments” and “future sites to help support the Port” and that such developments will be managed in an “open and transparent” way but not specifically responding to how car shipments will be managed.) 43 Id. at 23:04 and 2:44:00 (the Port acknowledging that they are in preliminary discussions for allegedly “separate and detached” projects – such as the 250-acre site.) 44 Neighbors for Smart Rail v. Exposition Metro Line Constr. Auth., 57 Cal. 4th 439, 447, 452, 304 P.3d 499 (2013) (see also Save the Hill Grp. v. City of Livermore, 76 Cal. App. 5th 1092, 1109, 292 Cal. Rptr. 3d 120, 133 (2022) and League to Save Lake Tahoe Mountain etc. v. Cnty. of Placer, 75 Cal. App. 5th 63, 95, 290 Cal. Rptr. 3d 218, 244 (2022), review denied (May 18, 2022) for recent California courts affirming this approach to prejudicial omissions in EIRs). 45 Laurel Heights Improvement Assn. v. Regents of Univ. of California, 47 Cal. 3d 376, 392, 764 P.2d 278 (1988), as modified on denial of reh'g (Jan. 26, 1989). 46 California Native Plant Soc'y v. City of Santa Cruz, 177 Cal. App. 4th 957, 979-80, 99 Cal Rptr. 3d 572 (2009), as modified on denial of reh’g (Oct. 14, 2009). 1104

CEQA requires that the DEIR address cumulative impacts.47 Cumulative impacts are those that result from “the combination of the project evaluated in the EIR together with other projects causing related impacts.”48 Failure to include a complete list of projects that produce related or cumulative impacts is a violation of CEQA.49 This is especially critical if the proposed 34-acre site is not, in fact, temporary and would add to the overall cumulative impacts.

In addition to the projects, the City listed in the DEIR as “reasonably foreseeable, planned and approved future projects” (which, despite being listed, were not considered in a cumulative impact assessment), our review of the recently produced documents provides further evidence that there are planned projects left out of the DEIR, resulting in a cumulative impacts analysis that is “so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.”50
For example, the City recently produced an application for a Special Use Permit, which shows that a project site is proposed for a large trailer truck storage facility just east of the 34-acre project site.51 This would presumably increase truck traffic in the general vicinity of the proposed project site. The City also indicated in a Market Street Landing Summary that the Port is pursuing a 2- acre site to create additional space for cargo movement. The summary notes indicate that the space is expected to “yield a 30% increase in capacity” in the long term.52 The newly produced documents further indicate that the Port anticipates significant growth in the coming years, which has not been included in the DEIR nor in any cumulative impact assessment – a fact that the Port itself acknowledges in its correspondence.53 For example, the Port’s deepening and dredging projects are explicitly intended to accommodate anticipated cargo growth on larger vessels and expand the Port’s capacity.54 Yet the cumulative impacts of dredging at the Port were completely left out of the DEIR. This is especially troubling because a portion of its dredging proposal has already undergone environmental review under CEQA and the National Environmental Policy Act (“NEPA”) and received federal funding last year,55 which further 47 Cal. Code Regs., tit.14, § 15130; see also Cal. Code Regs., tit.14, § 15355 48 Cal. Code Regs., tit.14, § 15130(a)(1).
49 Id. at § 15130(b)(1).
50 Cal. Code Regs., tit.14, § 15088.5(a)(4).
51 Port of Hueneme Draft Project Description - Temporary Storage Facility at p. 4. 52 The Port of Hueneme, Market Street Landing – Essential to the Port’s Future as an Economic Engine at p. 1.
53 Email between Dona T. Lacayo and Port of Hueneme Staff at p. 1 (Feb. 2019) (Discussing that the impact of more ships and the resulting increase in new business and automotive traffic has not been part of the Project assessment).
54 See, e.g., Oxnard Harbor District, Port Makes Another Splash - $5M Economic Development Grant, September 22, 2021, available at: https://www.portofhueneme.org/eda-grant-09-22-2021. 55 Id. (the U.S. Economic Development Administration awarded the Port $5.1 million to dredge Berth 3 to facilitate larger vessels carrying fresh produce to arrive at the Port); See also The D3 Project: The Dredge, Demo and Delivery Project, U.S. Economic Development Administration – EDA Grant Application PWEAA2020, June 10, 2020.
1105

substantiates that the Port dredging projects are “reasonably foreseeable, planned and approved future projects.”
In addition to the dredging project, as commenters noted in their February letter, beginning in April 2020, the Port published a “Priority List for 2020 Grants” which lists the STACKED project, the 34-Acre Temporary Expansion, and the 250 Acre Port Enterprise Zone.

Thereafter in its April 2021 Board Meeting, the Port notes that it anticipates “[i]ncreas[ing] rail and land capacity” (i.e., 34 acres, 250 acres, parking structure).56 The Port has also noted that it is working on securing additional property owned by Arcturus.57 The Port hired consultants to undertake a study of a parking structure for the STACKED project to use in grant applications during summer 2021. This parking structure would be shorter and cover a larger footprint than the multilevel parking structure studied in 2016.58 In the 2021 Comprehensive Economic Development Strategy, the Port noted that the STACKED Project would “have 7,500 bays nearly doubling the Port’s current automobile capacity.”59 The first phase will include the base and the next two stories of the structure.60 The second phase is set to add an additional two levels, making it a five-story tall structure.61 Additionally, the Port noted that to retain business, “it will be necessary for the Port to provide infrastructure such as an on-dock parking structure for staging automobiles [and] an off-port multi modal logistics park.”62 In its Financial Year 2022 Capital Outlay Plan, the Port sets aside $5 million in Financial Year 2022 and Financial Year 2023 (a total of $10 million) for the Engineering of a “Parking Structure.”63 Although the vague term “Parking Structure” is unclear, what is clear is that funding has already been allocated for capacity growth projects in the Port.

Inevitably, all these projects tie into the same goal – to resolve the serious space constraints the Port is facing. Clearly, OHD has already invested considerable time and resources into preparing for the development of these related projects – including applying for federal funding. Because these developments are all planned and reasonably foreseeable, the cumulative impacts of these additional projects must be considered in the DEIR.

The Traffic Study Incorporated into the DEIR was Rubberstamped.

As indicated by the documents produced by the City and the OHD in response to the PRA requests, the Port may not have conducted a comprehensive and independent traffic study. 56 Board of Harbor Commissioners, Board Meeting Materials at p. 10 (Apr. 19, 2021). 57 Email from Kristin Decas to Commissioners, Subject: Weekly Update (June 11, 2021). 58 Oxnard Harbor District, Professional Services Agreement (May 26, 2021). 59 Oxnard Harbor District Comprehensive Economic Development Strategy at p. 50 (2021). 60 Id. 61 Id. 62 Id.
63 The Port of Hueneme Oxnard Harbor District, FY 2022 Capital Outlay Plan (2021). 1106

An EIR required by CEQA must include sufficient detail to enable those who did not participate in its preparation to understand and meaningfully consider the issues raised by the proposed project.64 An omission in a DEIR significant impacts analysis is deemed prejudicial if it deprives the public and decisionmakers of substantial relevant information about the project’s likely adverse impacts.65 Here, the produced documents make clear that there was never any intention for the Port to vet the real traffic impacts of the 34-acre site. Instead, the documents demonstrate that the Port seems to willingly turn a blind eye to the full impacts.

In an email dated August 11, 2018, a land-use planning specialist asked whether an expert could “prepare a letter report for the argument against needing a traffic study.”66 Thereafter on August 27, 2018, the same land-use planning specialist noted that “the City just needs a paper trail – this way they can cover themselves with a letter from a professional.”67 The next day on August 28, 2018, the expert responded, noting that “[e]verything we do will be based on that [Project] description. I will just have to take the time to type up a trip generation analysis based on the trips in noted in the Jensen Design letter and charge the Port for my time.”68 Thus, the Associated Transportation Engineers Traffic Study (“Traffic Study”) that the DEIR relies on appears to have been based solely on a Project Description and a Design letter – omitting consideration of CEQA guidelines and the Ventura County Freight Corridors Study.

Because of the shoddy traffic analysis that was performed, the numbers cited by the Port for the vehicle impacts of the 34-acre site vary across documents and are unreliable. For example, in one document, the Port notes that “32 additional vehicles would be imported/exported per day (576 vehicles per month)”69 In another document, GLOVIS notes that they expect to “shuttle 10 - 12 vehicles at one time … between the hours of 7:00 am and 4:00 pm Monday through Friday” which amounts to an “average of 54 vehicles a day” (or 972 vehicles per month).70 The Associated Transportation Engineers’ Traffic Assessment notes, “76 vehicles will be transported to and from the Port to the Storage Lot for approximately 18 days of every month”71 (or a total of 1368 vehicles per month).
64 Cal. Pub. Res. Code § 21100.
65 See Neighbors for Smart Rail v. Exposition Metro Line Constr. Auth., 57 Cal. 4th 439, 304 P.3d 499 (2013) (see also Save the Hill Grp. v. City of Livermore, 76 Cal. App. 5th 1092, 1109, 292 Cal. Rptr. 3d 120, 133 (2022) and League to Save Lake Tahoe Mountain etc. v. Cnty. of Placer, 75 Cal. App. 5th 63, 95, 290 Cal. Rptr. 3d 218, 244 (2022), review denied (May 18, 2022) for recent California courts affirming this approach to prejudicial omissions in EIRs). 66 See Emails between Dona T. Lacayo, Hollee King, and Darryl F. Nelson at p. 7 of 8 (Aug. 2018) (emphasis added).
67 See Emails between Dona T. Lacayo and Kevin Waldron at p. 2 of 8 (Aug. 2018) (emphasis added).
68 See Emails between Dona T. Lacayo and Darryl F. Nelson at p. 1 of 11 (Aug. 2018). 69 See Letter from The Port of Hueneme to City of Oxnard, Subject SUP Project Description – Temporary Outdoor Vehicle Storage at p. 4 (Aug. 27, 2018). 70 See Letter from Frank Cerrito (GLOVIS) to Ashley Golden Re: Oxnard Storage Lot (Aug. 9, 2018).
71 Assoc. Transportation Engineers, Traffic Impact Study for the Port of Hueneme Temporary Vehicle Storage Special Use Permit – City of Oxnard at p.2 (Aug. 29, 2018). 1107

There remains confusion as to the exact number of vehicles to be transported and the extent to which additional trucks/shuttles will be needed. As such, this lack of consistency deprives the public and decisionmakers of substantial relevant information about the project’s likely adverse traffic impacts as required under CEQA.

The Port Failed to Provide a Reasonable Explanation for not Considering a Zero-Emission Vehicle Alternative.

In our February 2022 letter, we recommended that the City should more thoroughly consider zeroemissions trucks as a reasonable and viable alternative and mitigation measure for this Project.

The viability of this alternative is supported by OHD’s own statements touting GLOVIS as one of the region’s only makers of HD Class 8 zero-emission trucks. OHD reiterated this commitment to zero-emission technology during the Community Workshop held on March 21, 2022.72 Yet, OHD summarily dismisses this alternative as infeasible.

Currently, the DEIR does not offer any mitigation or alternative for driving hundreds of cars individually along public roads each day to and from the proposed Project site. As mentioned above, the ambiguity surrounding whether the 34-Acre site will truly be temporary calls into question whether this Project will meet the stated objectives. The “no-build” alternative, by far, is the environmentally superior alternative. When coupled with the deployment of zero-emission trucks for car transport, the Port and the City have an opportunity to mitigate the impact of operations and offer the community a chance for cleaner air. Despite claiming this approach would prove infeasible, the Port also acknowledges that its own client, GLOVIS, is a leader in producing zero-emissions Class 8 trucks.73 In fact, GLOVIS noted that operations at the Port would transition trucks to hydrogen fuel cell technology, similar to what is being done as a pilot at the Port of Oakland.74 Moreover, GLOVIS itself touts being a leader in driving decarbonization and is committed to being a zero-emissions company by 2040.75 This reality belies the argument that a zero-emissions transition for the Port and GLOVIS’ operations is infeasible.

Furthermore, the Port claims that the site may be used as storage for zero-emission cars. Port representatives claim that of the vehicles likely to be stored at the proposed 34-acre site, “many of these vehicles will be zero emission electric cars.”76 Yet, there is no mention of zero-emission cars in the DEIR or an estimate of the number of zero-emission cars expected in the 34-acre site.

Suppose the Port intends to use the site for purposes of storing electric vehicles. In that case, this potentially raises a host of additional questions including, but not limited to, whether additional infrastructure is needed to support battery electric vehicles being stored there for long periods of time. This further shows that the information presented in the DEIR does not offer the public or 72 City of Oxnard, Community Workshop-34 Acre Vehicle Storage Facility Project available online at https://oxnardca.civicclerk.com/web/player.aspx?id=4561 at 2:57:19 (Mar. 21, 2022). 73 Id. 74 Id. at 1:03:30 – 1:04:00.
75 Id. at 1:03:20 – 1:03:30; 1:05:00 – 1:05:14. 76 Id. at 18:40 – 19:00. 1108

decisionmakers sufficient facts to support an adequate analysis of the Project’s environmental impacts.

IV. The Port has not Provided a Meaningful Public Review of the DEIR.

In violation of CEQA, neither the DEIR nor the Community Workshop was properly translated into Spanish. Limiting public access in this way contravenes one of the core tenets of CEQA – that “the public holds a ‘privileged position’ in the CEQA process ‘based on a belief that citizens can make important contributions to environmental protection and on notions of democratic decision making.’”77
According to the latest census data, in Oxnard as a whole, 66% of residents speak a language other than English at home, and 30% speak English less than “very well.” Indeed, the City itself has also acknowledged that a significant percentage of Oxnard residents speak Mixteco, particularly in south Oxnard. Yet, as described in the commenters’ February letter, the public does not have access to Spanish or Mixteco translations for any of the close to 1,000 pages of documents that provide the environmental review undertaken by the City and the details of the Project.

The language access issues have persisted through the March Community Workshop, which was primarily held in English. There was no simultaneous interpretation of the information presented by the Port. Instead, staff were invited to provide only a “summary” of the presentation in Spanish and Mixteco. More egregiously, the City’s presentation was entirely in English without interpretation.

Language access reports and studies show that such summaries do not provide for meaningful public review of important project development information. Over a decade ago, the Institute for Local Government published a guide for local officials on language access. In this guide, the authors highlighted how “providing language access increases the opportunities that residents have to communicate with their local leaders and public service providers and ensures the flow of information between public agencies and residents and among residents that is vital to effective community-building.”78
Furthermore, California’s Bilingual Services Act was created with the intent to safeguard democracy and public participation in California’s diverse landscape.79 State agencies must distribute applicable translated written materials if the State agency “serves a substantial number of non-English-speaking persons” and “[t]he information solicited, required, or furnished affects or may affect the individual’s rights, duties, or privileges with regard to that agency’s services or benefits.” Although, as local agencies, the City and Port are not directly subject to this rule, refusing to translate environmental documents restricts non-English speaking individuals’ ability 77 Cal. Code Regs. Tit. 14, § 15201 (1992).
78 INSTITUTE FOR LOCAL GOVERNMENT, Language Access Laws and Legal Issues: A Local Official’s Guide, (2011), http://ca-ilg.org/sites/main/files/file-attachments/language_ access_ guide_ formatted_9-27-11_2.pdf
79 Cal. Gov. Code § 7290 et seq. (1973)
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and right to meaningfully participate in environmental decisions that impact their health and safety.

As such, the City and Port should commit to equivalent language access services.

Given the high percentage of Spanish and Mixteco-speaking Oxnard residents, if the City truly aims to provide meaningful opportunities for engagement and public review of the information provided on the Project, it must translate the entirety of any written information provided into Spanish and any oral information into Spanish and Mixteco.

CONCLUSION
In light of the numerous flaws in the DEIR and the broader CEQA process, the Planning Division should not certify a final EIR at this time and must deny the requested Special Use Permit. The public deserves an opportunity to review and comment on a comprehensive EIR that discloses the full extent of the Project’s environmental impacts. Additionally, the comments raised in this letter, along with the attached produced documents, should become part of the administrative record.

Lastly, we ask that the City of Oxnard comply with its legal obligations under the California Public Records Act and set up a meeting with requestors as soon as possible. Should you have any questions, or would like to discuss the contents of this letter, please do not hesitate to contact us at [email protected], [email protected], [email protected], [email protected], and [email protected]. Thank you for considering our supplemental comments.

Sincerely,
Radhika Kannan
Fernando Gaytan
Earthjustice
Natalia Ospina
Heather Kryczka
Natural Resources Defense Counsel
Lucia Marquez
Central Coast Alliance United for a Sustainable Economy (CAUSE) Mati Waiya
Wishtoyo Chumash Foundation
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ATTACHMENT 3
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October 19, 2022
Via Email and Federal Express
Jay Dobrowalski
Senior Planner
City of Oxnard Planning Division
214 South C Street
Oxnard, CA 93030
Email: [email protected]
[email protected]
[email protected]
Re: Comments on The Final Environmental Impact Report for the Port of Hueneme – Temporary Outdoor Vehicle Storage Facility Project (#2020069039) and PZ 18-500- 02 (Special Use Permit)
Dear Mr. Dobrowalski:

We submit these comments on the Final Environmental Impact Report (“FEIR”) for the Port of Hueneme – Temporary Outdoor Vehicle Storage Facility Project (“Project”) on behalf of the Central Coast Alliance United for a Sustainable Economy (“CAUSE”), Earthjustice, Natural Resources Defense Council (“NRDC”), and Wishtoyo Chumash Foundation (“Wishtoyo”).

The FEIR fails to address several fundamental deficiencies in the Draft Environmental Impact Report (“DEIR”) that commenters had previously identified. Despite the submission of over 200 comments on the DEIR, the City of Oxnard Planning Division (“OPD” or “City”) has only made minor revisions to its analysis in finalizing the FEIR. 1 Even when confronted with
new knowledge, facts, and expertise, including record evidence from the Oxnard Harbor District’s (“OHD” or the “Port”) internal documents, the City has refused to reevaluate its mistaken analysis. Consequently, the FEIR is legally deficient and unfit for certification under the California Environmental Quality Act (“CEQA”).

I. The Record Must Include Commenters’ Submitted Evidence on July 1, 2022 Following the close of the public comment period for the DEIR in February 2022, commenters became aware of new evidence through documents produced in response to a Public Records Act request to the OHD. These documents contained substantial relevant information for decisionmakers to be aware of ahead of deciding whether to approve this proposal.

Furthermore, on March 21, 2022, the City hosted a Virtual Community Workshop with presentations from the OHD discussing its plans for the 34-acre Vehicle Storage Site currently under review. At the conclusion of the Virtual Community Workshop, OPD invited additional 1 Final Environmental Impact Report, Port of Hueneme – Temporary Outdoor Vehicle Storage Facility Project, SCH No. 2020069039 (Sept. 2022) (hereinafter “FEIR”).
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written comments from the public concerning the proposed Project and the presentation by the Port. In line with this invitation, and to ensure that the Commissioners and other decisionmakers were provided with information necessary to make an informed decision, commenters submitted supplemental comments on July 1, 2022, in addition to the comments submitted on February 14, 2022.

The City of Oxnard Planning Division has acknowledged receipt and noted that the letter and all supporting documents would be entered into the record. The confirmation email is attached hereto as Attachment 1, Dobrowalski July 13, 2022 Email. Although the July 1 letter appears in Attachment F of the Staff Report (along with other letters submitted after February 14, 2022), the supporting evidence does not. When commenters realized that the supporting documents had not been entered into the record as part of the FEIR documentation, commenters sent an email to Mr. Dobrowalski requesting an erratum. This request is attached hereto as Attachment 2, Commenters’ October 11, 2022 Errata Request. This erratum has not been filed.

As Planning Commissioners are tasked with deciding whether to approve this controversial project, they should have access to the entire record. In an abundance of caution, we are attaching the July 1, 2022 letter, as well as the February 14th letter, and all supporting documents to each of these comments as Attachment 3, Previous Comment Letters and Attachments.

Commenters request that the Commissioners strongly consider both the July 1, 2022, supplemental letter, and all supporting evidence in deciding this permit. We realize that this is a significant amount of information to review in a short amount of time which is also why we previously asked for the Commission’s decision to be delayed for 30 days until the Commissioners have had an opportunity to hear from the public and have full access to the entire record in this considerable matter.

II. The FEIR Fails to Adequately Respond to Comments
When comments raise significant environmental issues through expert declarations or evidence-based assertions, the FEIR’s response must provide a reasoned, good-faith analysis and “describe the disposition of significant environmental issues raised.”2 Comments must be “addressed in detail giving reasons why specific comments and suggestions were not accepted.”3 Detailed responses are required to “ensure that the lead agency will fully consider the environmental consequences of a decision before it is made.”4 Generally, the level of detail in the response must match the level of detail in the comment.5 “[C]onclusory statements unsupported by factual information” are never an adequate response.6 Yet, such conclusory statements are precisely what the City has proffered in its FEIR.

Firstly, other than the Vehicle Miles Traveled (“VMT”) analysis, the City has not made any substantive changes to the DEIR. Mere editorial changes do not rise to the level of fully engaging with public comments. Secondly, and more egregiously, while commenters have 2 Cal.Code Regs., tit.14, §15088(c). 3 Id.
4 City of Long Beach v. Los Angeles Unified Sch. Dist. (2009) 176 Cal.App.4th 889, 904. 5 Pfeiffer v. City of Sunnyvale (2011) 200 Cal.App.4th 1552, 1568. 6 Cal.Code Regs., tit.14, §15088(c); City of Maywood v. Los Angeles Unified Sch. Dist. (2012) 208 Cal.App.4th 362, 391.
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provided detailed explanations including several citations to documents produced by the OHD, the City’s response to these detailed and well-supported objections has been to overwhelmingly refer commenters to “Global Responses.” See e.g., FEIR Comment Response 206-15; 206-24 (the response containing nothing more than “Please refer to Global Response GR-3, Relation of Project to the Multimodal Logistics Park and Global Response GR-8, Cumulative Projects.”) At the same time, no additional details can be found in these Global Responses. These Global Responses do not grapple with OHD’s emails, grant applications, internal memos and other logical inconsistencies pointed out by the commenters. This failure to engage extends to most responses to the comments.

As such, the City has failed in its CEQA obligation to provide detailed reasoning for why commenters’ suggestions were not accepted. Overall, the City has not shown a good faith effort to consider public input.

III. The FEIR Improperly Piecemeals the Analysis of the Whole Project and Fails to Analyze the Impacts of Important Project Components
The FEIR’s flawed Project Description violates the fundamental goal of CEQA, which is to provide complete and accurate information about the environmental impacts of a proposed project before it is approved. The City claims that the design of the Project is meant to “[r]educe and consolidate, where feasible, Port vehicle customer reliance on off-Port satellite storage locations, which would reduce the need for car carrier truck movement to distribute vehicles to those locations.”7 The FEIR also notes in the Project Description that the 34-acre outdoor vehicle storage facility is meant to be temporary – for a maximum of 5 years.8 Yet, the FEIR misstates the true scope of the 34-acre site, leading to an incorrect analysis regarding the design of the Project.

A. The FEIR Misstates and Improperly Rewrites CEQA Requirements The FEIR attempts to re-write the CEQA process for what must be considered in the Project Description.

The law requires that an EIR must include an analysis of the environmental effects of future expansions or other actions when: a) a project is a reasonably foreseeable consequence of the initial project; and b) the future expansion or action is significant in that it will likely change the scope or nature of the initial project or its environmental effects.9 “[T]he environmental review accompanying the first discretionary approval must evaluate the impacts of the ultimate development authorized by that approval. … Even though further discretionary approvals may be required before development can occur, the agency’s environmental review must extend to the development envisioned by the initial approvals. It is irrelevant that the 7 FEIR, Section 3.5, p. 3-15. 8 FEIR, Section 3.6, p. 3-15. 9 Laurel Heights Improvement Ass’n v. Regents of Univ. of California 47 Cal. 3d 367, 396 (1988), as modified on denial of reh’g (Jan. 26, 1989).
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development may not receive all necessary entitlements or may not be built. Piecemeal environmental review that ignores the environmental impacts of the end result will not be permitted.”10 CEQA mandates “that environmental considerations do not become submerged by chopping a large project into many little ones – each with a minimal potential impact on the environment – which cumulatively may have disastrous consequences.”11 The FEIR’s failure to recognize the 250-acre site stems from its erroneous interpretation of CEQA requirements. The FEIR claims that the 250-site does not need to be integrated in this project description and no environmental analysis needs to be conducted because: (1) “the City of Oxnard has not received an application for proposed development of a 250-acre site” 12; and (2) a 250-acre parcel would require annexation which would be subject to future environmental review.
13 Whether a project is a “reasonably foreseeable consequence of the initial project” does not depend upon whether the City has received an application for it or whether that project might trigger additional CEQA review. Indeed, such a requirement is nowhere to be found in the City’s or the State’s CEQA Guidelines. The City cites to no authority for these “requirements” for which projects need to be included in its project description.14 These additional elements are created out of whole cloth by the City to avoid re-writing the project description to include what is clearly a foreseeable project. As described above, the City cannot use the fact that the entitlement will be subject to further environmental review as an excuse to avoid integrating the extension in its analysis currently.

B. The FEIR’s Conclusions Regarding the 250-Acre Site Are Not Supported By Substantial Evidence.

The City concludes that because “the future development of a 250-acre site is unspecified and uncertain, the City has determined that potential future development of a 250-acre site is not reasonably foreseeable and is speculative.”15 However, this conclusion flies in the face of the wealth of documents presented to the City demonstrating how the City was well aware of the depth of the planning for the 250-acre site.

As commenters have highlighted in their previous letters, several documents from the Port (including new documents released in response to commenters’ Public Records Act request) indicate that beginning in 2018, the Port has started drafting conceptual plans, pursuing financial arrangements with customers, hiring consultants related to the project, considering the 250-acre project for grants, and designating the site as an Opportunity Zone.16 Yet, in response, the FEIR 10 See Kostka, et al., Practice Under the California Environmental Quality Act, § 6.52, p. 298. 11 Bozung v. LAFCO, 13 Cal.3d 263, 283-84 (1975); City of Santee v. County of San Diego, 214 Cal.App.3d 1438, 1452 (1989).
12 FEIR, Section 12.4.2, p. 12-9. 13 Id. 14 Id. 15 Id. 16 Attachment 3, February Comment letter, pp. 9-11 (hereinafter “Commenters’ February Letter”); see also Attachment 3, July Comment Letter, pp. 4-5 (hereinafter “Commenters’ July Letter”). 1115

Global Responses makes no effort to address these documents. The City’s response is entirely inadequate.

First, the FEIR selectively ignores evidence that the Port has coordinated with the City a more permanent solution to the auto storage issue through the 250-acre site. The Port produced a document titled “Collaboration Call with City of Oxnard” with the goal of “Partnership for Economic Development.”17 The document has an “ongoing deadline” and is supplemented with information about the 250-acre site, including grant applications and the inclusion of the 250- acre site in census tracks as an Opportunity Zone.18 Furthermore, a flyer published by both the City of Oxnard and the Port indicates that “[t]he stop gap 34-acre measure … will ensure that the City of Oxnard and the PoH will have sufficient time to structure and meet all regulatory requirements for the longer term 250-acre port logistics park with access to rail.”19 Thus, the City was well aware that the 250-acre site was a reasonably foreseeable extension of the 34-acre site.

Second, the Global Response to Comments regarding piecemealing the 250-acre site, is primarily devoted to explaining how the 250-acre Multimodal Logistics Park site “was conceptual at the time of the Notice of Preparation and is one possible concept for potential future development” (emphasis added).20 But the Port’s communications to landowners, the Memoranda of Understanding (“MOU”) and Letters of Intent (“LOI”) between GLOVIS and the Port, and the funding applications demonstrate that concrete steps have indeed been taken to bring the project into fruition and render the 250-acre site very far from merely “conceptual.”21 Third, the FEIR’s Project Description fails to consider the timescale of the Project. It makes no sense to assume, as the FEIR does, that given the serious land deficits (over 300-acres) the Port is facing, that there will be no further land use planned for automobile storage once the five-year temporary site expires.22 The FEIR summarily dismisses these land deficits by referring commenters to its superficial Global Responses. 23 This is not substantial evidence to
support a conclusion that the 250-acre site is speculative. By postponing review of this component, the FEIR improperly bifurcates the project in violation of CEQA, and in doing so, severely underestimates the impact on human health and the environment. 17 Commenters’ July Letter, p. 8 (citing OHD, Collaboration Call with City of Oxnard at p. 2). 18 Id. (Commenters also noted that “Private investments made within this zone will expect return on their investment over a period of time. This strongly suggests that an increased movement of cars and other goods through this corridor was reasonably foreseeable.”) 19 Commenters’ July Letter, p. 8 (citing City of Oxnard & The Port of Hueneme: Partners in Economic Development, Flyer Re: Ensuring the commercial viability of a major Ventura County Economic Engine - The Port of Hueneme (PoH) - for a better tomorrow at the City of Oxnard.) 20 FEIR, Section 12.4.2, Global Response 3, p. 493. 21 Commenters’ July Letter, pp. 6-8 (citing Email between Dona T. Lacayo and GLOVIS USA (Nov. 7, 2019), Email between Dona T. Lacayo and GLOVIS USA (Aug. 20, 2019), Email between Dona T. Lacayo and GLOVIS USA (Sept. 2019); Memorandum of Understanding, Oxnard Harbor District (March 3, 2020); Email from Kristin Decas to Commissioners, Subject Weekly Update (Oct. 16, 2020); OHD, Collaboration Call with City of Oxnard at p.2 (Ongoing)).
22 Commenters’ February Letter, p. 9; Commenters’ July Letter, p. 9 (citing Oxnard & POH Commercial Viability Report, p.1. PROD-PHCN0000828). 23 FEIR, Section 12.5, Response to Comment Letter #206, Response No. 206-15, p. 12-1162. 1116

IV. The FEIR’s Project Description is Inaccurate and Misleading and Impedes Meaningful Public Review
As stated in prior comments, the City has disingenuously omitted analysis of the broader Port logistics expansion that this Project represents. The City has strained to create a project description that artificially limits the scope of the Project to the 34-acre site, despite substantial evidence demonstrating a much broader plan to increase storage capacity in the region, including at the 250-acre Multimodal Logistics Center. In doing so, the City has produced a FEIR with a flawed project description under CEQA that contradicts its own objectives and fails to offer the Planning Commission the information necessary to properly assess the impacts of this project.

This is discussed further in Section V.

The City simply ignores the multiple comments submitted concerning the inadequacy of the project description itself—more specifically, the incompatibility of the Project’s objectives with the alleged “temporary” nature of the storage site.24 One of the key objectives listed for this Project is to “reduce and consolidate” reliance on off-port satellite storage locations.25 Yet, the City maintains that the project will be temporary, stating: “[t]he project proposes a temporary outdoor vehicle storage facility (vehicle storage facility or facility) for a maximum of 5 years on the approximately 34-acre project site. Future expansion of Port facilities based on the project is speculative at this time.”26 The FEIR fails to reconcile this inherent conflict nor explain how the Project, allegedly limited to a maximum of 5 years, will actually result in the consolidation of existing sites to meet the Project’s objectives.

As we stated in our July 1, 2022 comment letter, the City has failed to explain how the Project will be both “temporary” and fulfill its objectives to consolidate off-port storage.27 There are no details, for example, for how the site will be transitioned post-Project but continue to serve the consolidation objective and meet the Port’s known need for more land to accommodate its expansion.28 Moreover, if this project is truly temporary, it would fail to satisfy the stated objectives—making Alternative One: No Project/No Build by far the environmentally superior alternative29 that the City should adopt. The rejection of this alternative in the FEIR is based on deficient and incomplete analysis.

The inadequacy of the project description means that the Planning Commission is being called to make a decision “in the dark”—without the necessary information to fully appreciate the full scope of this Project or its impact. The approval actions before the Commission, therefore, involve much more than a straightforward EIR approval. Here, Planning 24 See Commenters’ July Letter 25 FEIR, Section 3.5, p. 3-15. 26 FEIR, Section 12.5, Response to Comment Letter #206, Response No. 206-20, p. 12-1163. 27 Commenters’ July Letter, pp. 9-10. 28 Id. 29 The FEIR also identified Alternative Two: Two Existing Off-Port Vehicle Storage Locations as the environmentally superior option among the Project alternatives. FEIR, Section 6.9.4, pp. 6-16. This conclusion is as flawed as the rejection of the No Project/No Build alternative, as the analysis of this alternative is not only incomplete, but also fails to incorporate feasible mitigation measures to address air quality impacts, such as the implementation of zero-emission technology. See Commenters’ February Letter, p 69; FEIR, Section 6.7, pp. 6-5 to 6-10.
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Commissioners are not simply being asked whether to certify the FEIR and approve a Special Use Permit for a single project. Despite how the Planning Division has decided to reframe this project as a “Temporary” Vehicle Storage Facility to make it seem benign, this Project sets the stage for an unprecedented expansion of Port activities into the very neighborhoods that have already borne the brunt of air pollution, traffic, noise, and lack of greenspace and coastal access.

This is not simply a storage lot; it will hasten the expansion of commercial and industrial activity in the region— an expansion for which we do not know the true extent of environmental impact.

Because of these flaws in the project description, the FEIR remains inadequate as an informational document and precludes meaningful public review. It should therefore be rejected in its current form and recirculated for further public review if revised to fix these discrepancies.

V. The FEIR Fails to Consider a Reasonable Range of Alternatives and Improperly Rejects Existing Alternatives
A major function of an EIR is the lead agency’s full assessment of a reasonable range of alternatives stemming from a well-prepared project description and statement of objectives. 30 However, where a project description is inadequate or overly narrow—as in the case here—the alternatives analysis risks being equally flawed. As discussed at more length in commenters’ February and July letters,31 the project objectives are narrowly tailored in a way that facilitates the City’s improper rejection of alternatives that could offer substantial environmental advantages and avoid worsening air quality and further concentrating industrial uses and harms adjacent to an over-burdened residential neighborhood, while still meeting most project objectives. As a result, the FEIR contains a flawed and incomplete analysis of feasible alternatives and fails as an informational document that facilitates meaningful public engagement. It, therefore, cannot be certified.

The FEIR fails to address the deficiencies in the DEIR’s alternatives analysis. First, the lack of detail provided in the EIR prevents a meaningful public review and a reasonable choice of alternatives.32 For instance, it is impossible to know based on the limited discussion and lack of detailed information provided in the EIR whether there are no feasible alternative sites for car storage that would meet most of the stated objectives.33 Lead agencies are required to disclose in their EIR their reasons for concluding that no feasible alternative locations exist.34 However, the City’s failure to consider the Navy Base Ventura County (“Navy”) property as an alternative site 30 Cal. Pub. Resources Code, § 21002; Cal.Code Regs., tit.14, § 15124(b); Laurel Heights Improvement Ass’n v.

Regents of the Univ. of California (1988) 47 Cal.3d 376, 400; In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1163, citing Cal.Code Regs., tit.14, § 15124(b).
31 Commenters’ February Letter, pp. 68-83; Commenters’ July Letter, p. 15. 32 See Residents Ad Hoc Stadium Com. v. Board of Trustees (1979) 89 Cal.App.3d 274, 287 (“Absolute perfection is not required; what is required is the production of information sufficient to permit a reasonable choice of alternatives so far as environmental aspects are concerned.”)
33 FEIR, Section 1.5, pp. 1-11 to 1-12. 34 Cal.Code Regs., tit.14, § 15126.6(f)(2)(B); see also Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 405, as modified on denial of reh'g (Jan. 26, 1989) (“Those alternatives and the reasons they were rejected, however, must be discussed in the EIR in sufficient detail to enable meaningful participation and criticism by the public.” (citations omitted)). 1118

in the EIR and to instead address its feasibility solely in a General Response, violates CEQA and is further evidence of the FEIR’s failings as an informational document.

Second, the FEIR continues to apply circular logic to reject alternatives for not lessening project impacts. By failing to carry out the full analysis required under CEQA, the FEIR underestimates the Project impacts. As a result, it comes to the incorrect conclusion that the project would not result in significant or unavoidable impacts and therefore the City has no obligation to consider alternatives. However, as discussed at length in this and other comments, there is substantial evidence that the project will have significant impacts on the environment and public health.

Third, the FEIR improperly conflates the City’s jurisdiction with feasibility. Alternatives cannot be rejected simply because they are beyond the lead agency’s authority.35 And yet, the City relies on this argument to avoid even considering alternatives raised by commenters. For instance, the City relies on the 34-acre property being privately-owned to conclude that a park alternative is infeasible.36 Similarly, the City refuses to consider the Navy property37 as a feasible alternative in part because it does not have jurisdiction over Navy property.38 This ignores the definition of feasibility under CEQA39 and fails to address the central question of whether the OHD as the project proponent has reasonable access, ownership, or control over alternative sites.
40 In the case of the Navy property alternative, the close relationship between the OHD and the Navy evidenced by a 2021 Joint Use Agreement demonstrates that it is a viable alternative worth considering. Nevertheless, this goes undiscussed in the FEIR. The City should apply the CEQA definition of feasibility and fully evaluate all reasonable alternative locations41, including the Navy property.
35 See Residents Ad Hoc Stadium Com. v. Board of Trustees (1979) 89 Cal.App.3d 274, 286–287 (“[I]t is not appropriate to disregard alternatives simply because the alternative may be beyond the scope of expertise of the agency or because the alternative may require implementing legislation since CEQA was intended to provide a basis for consideration and choice by all branches of government.”) 36 FEIR, Section 12.4.2, p. 12-15. 37 It is disingenuous for the City to claim it is not informed about the Joint Use Agreement between the Navy and the Port given the coverage the agreement received in the local press. See, e.g., Commenters’ February Letter, p. 71 (citing Brian J. Varela, Port of Hueneme, Navy Partner to Assist Los Angeles County Port Backlog, Ventura County Star, November 28, 2021, 10:40 a.m.; https://www.vcstar.com/story/news/2021/11/28/port-hueneme-assist-lacounty-ports-through-agreement-navy/8771397002/). 38 FEIR, Section 12.4.2, p. 12-15. 39 CEQA Guidelines define feasibility as capable of “being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social and technological factors. Cal.Code Regs., tit.14, § 15364. 40 Cal.Code Regs., tit.14, § 15126.6(f)(1). See, e.g., Residents Ad Hoc Stadium Com. v. Board of Trustees (1979) 89 Cal.App.3d 274, 288 (finding that an alternative to develop a university athletic stadium jointly with the city was properly rejected based on a prohibition to spend funds on a non-university stadium and the city’s documented lack of interest in a joint stadium project). 41 Another such alternative site could include prioritizing the on-dock parking structure for which the OHD has sought federal funding over the past several years, which is intended to store over 7,000 vehicles. Commenters’ February Letter, p. 71 (citing Oxnard Harbor District, Economic-Environment Partnership, Slide presentation (undated), Slides 29 and 30); see also https://maritime.dot.gov/PIDPgrants. While not all information about this proposal is public, it is apparent that it is not speculative; the Port has hired consultants to study this parking 1119

Finally, the FEIR once again ignores the current availability of zero-emission technology42 and GLOVIS’ role as a leading regional maker of heavy-duty Class 8 zeroemission trucks in its rejection of the Electric Car Carrier Truck Alternative. During public meetings and in public statements, the OHD frequently highlights its alleged commitment to a zero-emission transition, and yet when an opportunity arrives to make a clear commitment that investment is not even considered or analyzed. In order to begin to address the air quality impacts from the Port on the surrounding community, the OHD must invest in a zero-emission transition and establish near-term milestones to achieve that vision, such as the use of zeroemission car-carriers. In their expert reply to the FEIR, Matt Hagemann and Dr. Paul E.

Rosenfeld identify several mitigation measures related to zero-emission technology that the City should consider and evaluate to address air quality impacts from the Project.43 Due to deficiencies described above and in previous letters, the EIR contains an inadequate discussion of project alternatives in violation of CEQA.

VI. Mitigation Measures Offered in FEIR Continue to be Inadequate Under CEQA, a public agency cannot approve a project if there are “feasible mitigation measures which substantially lessen the significant environmental effects” of the project.44 Any potential mitigation measure must be at least partially effective in reducing the significance of the impacts at issue.
45 The FEIR fails to offer mitigation measures that meet this standard. Since the FEIR does not evaluate the full scope of the Project due to an overly narrow project description and project objectives, it fails to analyze, much less address, the significant impacts that would result from the Project. Given that most mitigation measures in the FEIR went unaltered,
46 those measures continue to be inadequate and will not substantially lessen the significant environmental effects of the full scope of the Project.

Moreover, the few updates made to mitigation measures for biological resources and cultural and tribal resources in the FEIR continue to fall short of addressing the impacts from the Project. For instance, the addition of a preconstruction wildlife survey to the biological resource mitigation measures will be insufficient in detecting special status species, as discussed in detail by Dr. Shawn Smallwood.
47 As a result, the FEIR’s mitigation measures are deficient, and new measures must be considered following a complete evaluation of the Project’s full impacts. structure proposal. Commenters’ July Letter, p. 13 (citing Oxnard Harbor District, Professional Services Agreement (May 26, 2021); and Oxnard Harbor District Comprehensive Economic Development Strategy at p. 50 (2021)). 42 Commenters’ February Letter, pp. 71-83; Commenters’ July Letter, p. 15. There are companies working on developing zero-emissions Class 6-8 car carrier trucks and a commitment by the OHD to order and use these carriers could drive additional investments in this type of technology. See Namrita Chow, Electric car carriers promise to pack a punch, Automotive Logistics, access Oct. 17, 2022 at 4:52pm, https://www.automotivelogistics.media/finished-vehicle-logistics/electric-car-carriers-promise-to-pack-apunch/42868.article, attached hereto as Attachment 6. 43 Attachment 4, SWAPE Report, pp. 12-13 (hereinafter “SWAPE report”). 44 Cal. Pub. Res. Code § 21002. 45 Sierra Club v. County of Fresno, (2018) 431 P.3d 1151,1166. 46 Commenters’ February Letter, pp. 63-67. 47 See Attachment 5, Smallwood Reply Letter (Oct. 18, 2022), pp.8-9 (hereinafter “Smallwood Reply Letter”). 1120

VII. The FEIR Inadequately addresses the Cumulative Impacts The FEIR’s flawed cumulative analysis violates CEQA. The City claims that Table 4-1 lists all projects that could contribute to considerable cumulative impacts.48 The FEIR also acknowledges various Port projects that are in development, including the 250-acre Multimodal Logistics Park, channel deepening, berth widening, on-dock expansions, expansion of rail lines, the Structure for Transfer of Automobiles Creating Key Economic Development (STACKED) Project, off-Port Cargo storage yards and overall expansion of Port Operations, the INVEST Project, the BUILD Project, and the Port Intermodal Corridor (Hueneme Modernization Project).49 Yet, the FEIR fails to include relevant projects in its cumulative analysis.

A. The FEIR Misstates and Improperly Rewrites CEQA Requirements for Cumulative Impacts
The FEIR attempts to re-write the CEQA process for what must be considered in a cumulative impact analysis.

The City admits that CEQA requires that the FEIR address cumulative impacts.50 Cumulative impacts are those that result from “the combination of the project evaluated in the EIR together with other projects causing related impacts.”51 The incremental effects of an individual project “are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.”52 Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time.53 A relatively “small” impact is not insignificant under CEQA if it contributes to an existing environmental problem.54
The City also admits CEQA requires a cumulative impact analysis to contain, at minimum, either 1) a list of past, present, and reasonably anticipated future projects, including those projects outside the agency’s control that produce related or cumulative impacts55 or 2) a summary of such projections contained in an adopted general plan or related planning document 48 FEIR, Section 4.2, p. 4-2. 49 FEIR, Section 12.4.2, pp. 12-17 to 12-18. 50 FEIR, Section 4.1, p. 4-1; Cal.Code Regs., tit.14, § 15130; see also Cal.Code Regs.,tit.14, § 15355 51 Cal.Code Regs., tit.14, § 15130(a)(1). 52 Id. at § 15065(a)(3). 53 Id. at § 15355(b) (The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time). 54 “[A] project’s cumulative environmental impact cannot be deemed insignificant solely because its individual contribution to an existing environmental problem is relatively small.” See, San Francisco Baykeeper, Inc. v. State Lands Comm’n (2015) 242 Cal.App.4th 202, 223. “In fact, ‘the greater the existing environmental problems are, the lower the threshold should be for treating a project's contribution to cumulative impacts as significant.’” Id. (quoting Cmtys for a Better Env’t v. Cal. Res. Agency (2002) 103 Cal.App.4th 98, 120). 55 FEIR, Section 4.1, p. 4-1; CEQA suggests that agencies consider factors such as the nature of the environmental resource examined, location of project, and type. Cal. Code Regs., tit.14, § 15130(b)(2). 1121

that evaluates regional or areawide conditions.56 The cumulative impacts analysis of this Project continues to remain flawed.

As with the Project Description, the FEIR’s failure to include several projects in its cumulative impacts analysis stems from its erroneous understanding of the CEQA requirements.

The FEIR claims that several pertinent projects need not be considered in its list of past, present, and reasonably anticipated future projects because (1) “each cumulative development project represented in Table 4-1 was “determined to be reasonably foreseeable by the City based on applications that the City received at the time the Notice of Preparation (NOP) for the Draft EIR was released (June 25, 2020)”57; and (2) the City does not consider conceptual long-range projects under the jurisdiction of another lead agency to be reasonably foreseeable.58 Commenters address each of these excuses in turn. First, whether a project is a “reasonably anticipated” does not turn on whether the City has received an application for it.

Indeed, such a requirement is nowhere to be found in the City’s or the State’s CEQA guidelines.

Because this element is not required under law, it should not factor into which projects are listed.

Second, as plainly stated in the law, the agency must consider any project that can reasonably have cumulative impacts even if “those projects [are] outside the agency’s control.” Thus, the legal excuses provided by the City do not pass muster.

B. The FEIR’s Conclusions Regarding the Projects Included in the Cumulative Analysis Are Not Supported by Substantial Evidence
The City cites to three different reasons why the projects commenters list should not be considered: (1) that some cumulative impacts are speculative; (2) they are not within the proposed geographic zone; and (3) despite proposed increases in passageways for rail and freight traffic, this project doesn’t change capacity requirements.59 These objections are unfounded.

First, commenters have pointed to several projects that could impact the area surrounding the 34-acre site with supporting evidence demonstrating why they are not speculative. For example, the proposed widening of Hueneme Road to four lanes included in the Roads and Transportation Five-Year Capital Improvement Program; how the Port has invested in a new rail line with GLOVIS; and the capital investments to deepen berths to accommodate larger capacity vessels.60 The City makes no effort to engage with the wealth of evidence of these substantial 56 Id. at § 15130(b)(1). 57 FEIR, Section 12.4.2, p. 12-17. 58 Id., at p. 12-18. 59 Id., at pp. 12-17 to 12-18. 60 Commenters’ February letter at pp. 19-20 (citing INFRA FY19: Multimodal Optimization & Vehicle Efficiency Project Summary, PROD-00002504; INFRA FY20 Application Project Summary; 2020 OHD Comprehensive Economic Development Strategy, PHCN0002370; 2020 OHD Comprehensive Economic Development Strategy, PROD-PHCN0002353; INFRA FY19 Multimodal Optimization & Vehicle Efficiency Project, PRODPHCN00005158; OHD Board of Commissioners Meeting Agenda- September 11, 2017-Press Report Attachment, PROD-00002699; The Hueneme Modernization Project BCA Appendix - March 17 2021, PROD-0004367; The Hueneme Modernization Project INFRA Grant Application FY2021, PROD-0003201; Ventura County Freight Corridor Study, (October 2021), Prepared by Iteris, Inc., on behalf of Southern California Council of Governments, The Port of Hueneme, Caltrans and Ventura County Transportation Commission at 36, PROD-PHCN0001900- 2126).
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plans. The record evidence demonstrates that concrete steps have been taken to bring the listed projects into fruition and disprove the City’s conclusion that these projects are “speculative.”61 Second, commenters have provided figures for the proposed developments including a figure showing the relative locations of the 34-acre site to the 250-acre site, a figure showing the relative position of the STACKED project (on the North Terminal), and another showing the traffic pathways and the potential widening of Hueneme Road.62 The City’s response to these relevant images has been to claim that these images “do[] not raise an issue related to the adequacy of any specific section or analysis of the Draft EIR.”63 At the same time, the City notes that the cumulative impacts are only assessed in the geographic area “bound by Bard Road to the north; Ormond Lagoon Waterway/Edison Drive to the east; the Pacific Ocean to the south; and Ventura Road and other areas within the City of Port Hueneme to the west, but not within the Port of Hueneme or Naval Base Ventura County (“Navy”) Port Hueneme.”64 As described above, the City cannot shirk its duty to review cumulative impacts just because a project may be in another agency’s control. Thus, delineating a line for any project “within the Port of Hueneme” is legally void, particularly given how the Port is viewing its many expansion projects as interconnected and in furtherance of their stated goal of expanding throughput. Furthermore, the lines drawn at Bard Road, Ventura Road, and Edison Drive are internally inconsistent. For example, the City addresses air quality concerns arising from Port operations and agricultural use which are outside these boundaries.65 The City also extends the VMT analysis to Camarillo Airport and Tuff shed – both of which are outside these arbitrary lines.66 The City cannot cherry pick instances in which to apply these arbitrary boundaries in a self-serving manner. The City cites to no authority for setting these specific limitations. At the very least, the city must explain why it chose these boundaries as supported by substantial evidence e.g., scientific studies indicate that emissions from facilities do not travel beyond “X” miles. In summary, these geographic boundaries are arbitrary and not supported by substantial evidence.

Even within these arbitrary boundaries that the City has set, several projects listed have at least some portion of their operations within this geographic region. The City cannot dismiss all these projects as outside the geographic area without taking a hard look at the impacts that portions of these proposed projects will likely have.

Third, the City admits that the “project would result in less trucking and more rail on/off moves compared to existing conditions” yet, the City concludes that it doesn’t need to conduct a cumulative impact analysis because “the City has not received an application for a new rail project.”67 Similarly, in response to commenters noting that there are berth widening and 61 FEIR, Section 12.5, Responses to Comment Letter #206, Response Nos. 206-35 to 206-38, pp. 12-1164 to 12- 1165.
62 See FEIR, Section 12.5, Responses to Comment Letter #206, Response No. 206-17, p. 12-1162; Response No. 206-25, FEIR p. 12-1163; and Response No. 206-38, FEIR p. 12-1165. 63 Id. 64 FEIR, Section 12.4.2, pp. 12-17 to 12-18. 65 FEIR, Section 5.33, p. 5.3-8. 66 FEIR, Section 12.4.1, p. 12-13 67 FEIR, Section 12.5, Responses to Comment Letter #206, Response 206-23, p. 12-1163. 1123

dredging projects that would increase shipping traffic, the City concludes that new cars stored at the vehicle storage facility would not require additional ships.68 Even assuming that the temporary 34-acre site will neither facilitate an increase in goods movement by ship nor rail nor truck in the area (a fact that commenters do not concede), the fact that all three pathways propose to be extended in this exact area reflect, without a question, significant impacts. Simply, the City fundamentally and mistakenly conflates these points in the FEIR and leaves the Planning Commission and the public with an incomplete cumulative impacts analysis.

Finally, even with the projects that have been listed in Table 4-1, the City undertakes no analysis of how the listed projects will impact the area surrounding the 34-acre site – including but not limited to additional emissions that might result and how that could impact vulnerable populations.69 In summary, the EIR’s cumulative impacts analysis remains deficient such that the FEIR cannot be certified.

VIII. The FEIR Fails to Consider Environmental Justice Impacts and Violates CEQA The temporary 34-acre storage site is located next to low-income, densely populated neighborhoods in south Oxnard. As commenters note in their February letter, a Report prepared by the California Office of Attorney General (“OAG”), provisions of CEQA, and Government Code Section 11135 require lead agencies to study the environmental justice impacts of projects and to mitigate those impacts.70 Part of the discussion in the FEIR must include an evaluation of the location of the project because the significance of an impact on people and the environment may change based on the project’s setting.71 Commenters pointed to studies demonstrating how California communities of color and low-income communities bear a disproportionate burden of the state’s diesel trucking emissions.72 Commenters also highlighted that the nearest school is only 780 feet from the Project site and the proposed Project would also be located as close as 360 feet from residences located to the northwest, north, and northeast of the Project site.73 To these points, the City’s response has been to point the public to Global Response No. 5 on environmental justice impacts. 74 This response is insufficient. Although the City admits that the proposed Project would “result in a minor increase in vehicle traffic…[due to] worker vehicle trips, delivery of heavy-duty equipment and materials, and haul trips,” it nevertheless concludes “impacts would be less than significant on sensitive receptors.” This conclusion is based entirely on the assertion that the project site is “not located in an area with poor circulation or heavy traffic.” The City points to no study supporting its circulation finding and proffers no 68 FEIR, Section 12.5, Responses to Comment Letter #206, Response 206-21, p. 12-1163. 69 FEIR, Section 4.2, Table 4-1, p. 4-2. 70 FEIR, Section 12.5, Responses to Comment Letter #206, Response 206-180 to 206-182, p. 12-1189 (citing the Office of the California Attorney General, Environmental Justice at the Local and Regional Level (2012), p. 3, available at https://oag.ca.gov/sites/all/files/agweb/pdfs/environment/ej_fact_sheet.pdf). 71 Id. 72 FEIR, Section 12.5, Responses to Comment Letter #206, Response No. 206-183, p.12-1189 (citing Union of Concerned Scientists, Inequitable Exposure to Air Pollution from Vehicles in California, fact sheet (Feb. 2019), available at https://www.ucsusa.org/sites/default/files/attach/2019/02/cv-air-pollution-CA-web.pdf.) 73 FEIR, Section 12.5, Responses to Comment Letter #206, Response No. 206-185, p. 12-1190 (citing DEIR, p. 5.3- 9)
74 FEIR, Section 12.4.2, p. 12-11
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evidence in support of the traffic patterns. In fact, with the additional projects described above, it would seem that the City has conveniently omitted several projects in the pipeline that would increase traffic and emission patterns.

Commenters appreciate that the City has added language responding to commenters’ concerns associated with nearby power plants, superfund site, and factories.75 The City summarily concludes that the “distance between the project” and these sites would not create a significant hazard to the public.76 However, the City fails to provide the underlying data, study, or processes used to come to this determination. Neither the Commissioners nor the public should accept conclusions that have not been properly substantiated – especially where the health and safety of vulnerable populations and overburdened communities are at stake.

IX. The City has Failed to Address Deficiencies in Language Access, Which has Further Frustrated Meaningful Public Review of the EIR Documents The City claims that it is under no obligation under State law (CEQA or otherwise) to translate environmental review documents into Spanish or any other language.77 This response completely ignores comments previously submitted highlighting the fact that limiting public access violates a core tenet of CEQA78 – that “the public holds a ‘privileged position’ in the CEQA process ‘based on a belief that citizens can make important contributions to environmental protection and on notions of democratic decision making.’”79 While the City acknowledges that CEQA, “deems public participation and comment during any environmental review process as an essential part of the CEQA process,” it has done very little to offer document translation or interpretation. In fact, according to the FEIR’s response to comments, only the Port has offered the minimal language access services in the form of a Spanish-translated Executive Summary from the DEIR, and “a video in Mixteco explaining the contents of the Draft EIR.”80
Under the California Bilingual Services Act, State agencies must distribute applicable translated written materials if the State agency “serves a substantial number of non-Englishspeaking persons” and “[t]he information solicited, required, or furnished affects or may affect the individual’s rights, duties, or privileges with regard to that agency’s services or benefits.” Although, as local agencies, the City and Port are not directly subject to this rule, refusing to translate environmental documents restricts limited or non-English speaking individuals’ ability and right to meaningfully participate in environmental decisions that impact their health and safety. Given the importance of this Project to the many residents for whom English is not a primary language, we reiterate our call to translate the EIR and make it accessible by recirculation in order to ensure meaningful public review. 75 Id. 76 Id. 77 FEIR, Section 12.4.2, p.12-9. 78 See Commenters’ July Letter. 79 Cal. Code Regs. tit. 14, § 15201 (1992). 80 FEIR, Section 12.4.2, p.12-9. 1125

X. The FEIR’s Vehicle Miles Travelled Analysis Remains Woefully Inadequate and Does Not Support a Finding of No Significant Traffic of VMT Impacts The City admits that neither it, nor the City of Port Hueneme have adopted guidelines or significant criteria for assessing VMT by development projects81 — a requirement under California Public Resources Code §21099 and 14 Cal. Code Regs § 156064.3 (CEQA Guidelines). Rather than directly responding to our comments highlighting the need for a more robust VMT analysis for the Project, the FEIR points to the same conclusory and vague explanation in its Global Response No. 6 to justify not doing more to provide the Planning Commission and the public with sufficient information to appreciate the full scope of traffic impacts. The FEIR’s conclusion that no VMT impacts would result from the Project is unsupported by what little analysis is offered for three key reasons.

First, the FEIR’s application of Governor’s Office of Planning and Research’s (“OPR”) Technical Advisory on Evaluating Transportation Impacts (“Technical Advisory”) is flawed. The FEIR fails to adopt any specific methodology or criteria for its evaluation of the Project’s VMT that would make its conclusions verifiable based on OPR’s guidance. It inappropriately adopts a screening threshold when no such threshold applies to this Project and it misapplies the qualitative analysis outlined in the Technical Advisory. The FEIR’s conclusions that no VMT or traffic impacts are present are therefore unreliable.

The FEIR contends that the qualitative analysis approach outlined in OPR’s Technical Advisory is the appropriate evaluation for the Project’s VMT impact.82 It also summarily adopts the DEIR’s conclusion that no VMT impacts would result from the implementation of the Project without showing how the qualitative analysis approach was specifically applied in this case. The City admits based on the screening thresholds outlined in OPR’s Technical Advisory — which apply to residential, office, retail projects, land use plans, and transportation projects — that this project would not “screen out”83, i.e., that further analysis would be required even under a qualitative approach. Yet, the FEIR reaches the conclusion that “the project would lead to a lessthan-significant transportation impact” using the same retail threshold it admits is inapplicable.84 The Technical Advisory does recommend, however, that “[a]gencies should consider whether their actions encourage development in a less travel-efficient location by limiting development in travel-efficient locations.”85 No such data-supported analysis was provided in this FEIR.

Second, the FEIR’s analysis on VMT and traffic impacts is conclusory and relies on contradictory assumptions. For example, in its assessment of alleged VMT reductions, the City assumes the elimination of two existing vehicle storage facilities to conclude overall VMT reduction while at the same time defending the DEIR’s analysis of the traffic effect of the Project 81 FEIR, Section 12.4.2, p.12-13. 82 Id. 83 Id. 84 Id. 85 California Governor’s Office of Planning and Research, Technical Advisory on Evaluating Transportation Impacts on CEQA (OPR Technical Advisory) (December 2018), p. 17; available at:
https://opr.ca.gov/docs/20190122-743_Technical_Advisory.pdf 1126

“under existing and cumulative conditions, with due consideration of other related projects in the area.”86 These inconsistencies lead to self-serving conclusions that simply cannot be relied on.87 If current conditions are assumed, then VMT analysis would have to account for the higher VMT that the Project would produce as a result of having the approximately 240 daily trips made in individual cars (according to one estimate provided), compared to the more limited car carrier truck trips making the haul to the furthest existing site. Even using that simplistic comparison, which we do not concede qualifies as a VMT threshold under either the Technical Advisory or CEQA guidelines, the Project would still generate more vehicle miles travelled on its own as compared to the furthest existing site.88 The FEIR attempts to avoid dealing with this increase in VMT by attempting to shoehorn a threshold analysis for new retail facilities that is inapplicable to the Project.

Third, the FEIR ignores evidence submitted showing that the traffic report that underlies much of the City’s environmental review was merely rubber stamped and created in a way to offer cover for predetermined conclusions. It therefore cannot be relied upon to conclude that no impacts will result from the project.

As commenters pointed out in their July 1, 2022 comment letter to the City, documents made available in response to Public Records Act requests suggest that there was never any intention on the part of the Port applicant or the City to vet the real traffic impacts of the 34-acre site. In fact, emails between Port staff and a land-use planning specialist suggest that the City might forgo a traffic report altogether by providing a letter, noting, “the City just needs a paper trail - this way they can cover themselves with a letter from a professional.”89 In subsequent emails, the hired consultant confirmed that they would prepare the trip generation analysis based solely on the Project Description and a Design letter90— without considering the requirements outlined in CEQA guidelines or the recommendations found in the Ventura County Freight Corridors Study. These revelations, which the FEIR neglects to address, cast further doubt on the reliability of calculations, information, and analysis used to support the FEIR ‘s conclusion that no significant traffic or VMT-related impacts will occur.

Given the cursory manner in which the traffic study and VMT analysis were conducted, it is unsurprising that the FEIR is replete with inconsistencies and contradictions that call into question its reliability as an informational document. We call on the Planning Commission to reject this FEIR. Moreover, the City should fix its lack of baseline methodologies and thresholds for assessing the impact of VMT from this Project. Until these errors are corrected, the FEIR fails to meet basic standards under CEQA.
86 FEIR, Section 12.5, Responses to Comment Letter #206, Response 206-51, pp. 12-1166 to 12-1167. 87 Note: the FEIR does not address the inconsistent assumptions highlighted in our February 14, 2022 comment letter wherein we highlight that in order to switch to an analysis that would presume the elimination of two existing sites, the agency must first justify this decision by showing that the existing conditions are somehow misleading or without informational value. No such analysis has been done in the FEIR. See Commenters’ February Letter, p. 25. 88 See id., at pp. 24-25. 89 Commenters’ July Letter (citing emails between Dona T. Lacayo and Kevin Waldron at p. 2 of 8 (Aug. 2018). 90 Id. (citing emails between Dona T. Lacayo and Darryl F. Nelson at p. 1 of 11 (Aug. 2018). 1127

XI. The FEIR Continues to Rely on Flawed Air Emissions Modeling, Lacks the Requisite Health Impact Analysis, and Fails to Properly Assess Greenhouse Gas Emissions.

The FEIR fails to justify its modelling used to calculate greenhouse gas emissions (“GHG”) and air quality impacts and continues to lack the necessary analysis on health impacts. These flaws were originally outlined in a findings report submitted by experts Matt Hagemann and Dr.

Paul Rosenfeld and incorporated into commenters’ February 14, 2022 letter. 91 Hagemann and
Rosenfeld have reviewed the FEIR and responses to those comments and have concluded that many of the justifications used by the City for their approach to air emissions, health hazards, and GHG emissions remain fundamentally flawed.92 Several of these flaws in the FEIR are outlined below:
• Hazards and Hazardous Materials – The FEIR fails to address the lack of a Phase I ESA analysis, despite being a key element called for in the City of Oxnard 2030 General Plan Safety and Hazards Chapter. More specifically, the FEIR does not explain why Policy H7.12, which requires a hazardous materials study for any new development, was not followed.
• Air Quality and CalEEMod Model - The FEIR again fails to provide access to, or justify the use of, the underlying data inputs used to calculate the Project’s emissions. More specifically, the FEIR refers to “applicant provided” information for its inputs on the length of construction for the site, yet the underlying data, and the justification for using it, are not made publicly available in the documents attached to the FEIR. This makes it impossible to verify whether the changes to defaults accurately reflect the proposed construction schedule.

Despite the City’s claims that relying on “applicant provided” information is sufficient, CalEEMod requires that information used to change defaults be supported by substantial evidence as required under CEQA.93 The calculations, therefore, remain unreliable and the City must either justify these modifications with substantial evidence or revise its calculations. Similarly, the FEIR’s modeling concerning construction activities is flawed as the FEIR arbitrarily modified construction lengths based on different phases of development – potentially underestimating peak daily emissions. Similarly, the FEIR fails to provide substantial evidence for changing off-road construction equipment amounts therefore making it challenging, if not impossible, to verify if these changes are accurate. • Greenhouse Gas Emissions – The conclusion that GHG impacts are “less-than-significant” relies on the same incorrect and unsubstantiated air modelling described above. Moreover, the FEIR relies on outdated thresholds which the City fails to justify through substantial evidence. This has resulted in the FEIR failing to identify any potentially significant GHG impact from the project.
91 See Letter from Matt Hagemann and Dr. Paul E. Rosenfeld to Fernando Gaytan (February 9, 2022), Attachment A to Commenters’ February Letter. 92 See Letter from Matt Hagemann and Dr. Paul E. Rosenfeld to Fernando Gaytan (October 17, 2022), attached hereto as Attachment 4, SWAPE Report. 93 See SWAPE Report. 1128

This flawed analysis of air pollution impacts also extends to the FEIR’s treatment of the necessary mitigation and health impacts associated with it. In concluding that the project will not reach the thresholds set by Ventura County Air Pollution Control District (“VCAPCD”), the FEIR relies on an arbitrarily restrictive view of the Project without accounting for the inconsistencies between the Project Description and Objectives and ample evidence demonstrating that this project encompasses more than the 34-acres described and for longer than five years. This arbitrarily restrictive scope is also used by the City to claim that the Project will not pass emissions thresholds set by the VCAPCD94 and to justify its refusal to conduct the type of Health Impact Assessment required under the California Supreme Court case, FriantRanch.

In short, the FEIR’s conclusion misses the mark. While CEQA may not mandate an indepth risk assessment outright:
“CEQA requires that the EIR have made a reasonable effort to discuss relevant specifics regarding the connection between two segments of information already contained in the EIR, the general health effects associated with a particular pollutant and the estimated amount of that pollutant the project will likely produce.”95
Because the FEIR fails to address flaws in its modeling, its estimation of the pollutants generated by the Project is unreliable. Moreover, the narrow and cursory analysis that the FEIR does offer on air pollutants and potential health impacts, is unverifiable given the lack of access to the underlying data. This foundational information is necessary for informed decision-making and public participation. The City, therefore, cannot support its conclusion that the Project falls under the VCAQCD’s thresholds. Even so, the FEIR misinterprets Friant-Ranch wherein the California Supreme Court found that CEQA requires analysis correlating increased air emissions to probable resulting human health effects.6 The City cannot claim that no emissions will result from this Project just as it cannot avoid the necessary health impact analysis required under Friant-Ranch by simply stating that emissions will not surpass thresholds it has arbitrarily chosen to apply.

As further highlighted in Hagemann and Rosenfeld’s review and commenters’ letters, the FEIR also fails to address the following:
• Diesel Particulate Matter emissions – The City fails to include a health impact of using equipment producing diesel particulate matter (“DPM”) emissions during a construction phase of the Project slated to last over 180 to 200 days and its justification for not doing so is not supported by the evidence. More specifically, as the Hagemann and Rosenfeld report points out, “until both the Project’s construction and operational health risks are quantified, summed together, and compared to the VCAPCD threshold of 10 in one million, the 94 SWAPE Report, pp. 5-6. 95 Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 521 1129

FEIR’s response is inadequate” and does not evaluate the Project’s potential health risk impacts.
• Comprehensive assessment of Toxic Air Contaminants – The FEIR fails to provide a “good faith reasoned analysis” of the health effects of any increase in Toxic Air Contaminants caused by the Project, including those that result from the combustion of diesel and gasoline engines associated with the entire car storage complex, the 34-acre and the 250-acre sites, increased Port-related emissions due to augmented cargo throughput, and construction related to the aforementioned projects. • Encroachment of Port-Related Activities – The FEIR also fails to adequately address comments concerning the shift in port-activity emissions towards south Oxnard populations adjacent to the Port-serving freight corridors like Hueneme Road.

In short, the FEIR ignores critical flaws in its analysis and inadequate data verification that call into question its reliability as an informational document for environmental assessment. The law requires that the public and the Planning Commission have an accurate assessment of potential health risks and air quality impacts – which this FEIR fails to deliver.

XII. FEIR Continues to Underestimate Impacts on Special Status Species, Habitats, and Wildlife Movement
The City failed to provide good-faith, reasoned responses to the comments raised regarding the DEIR’s biological impacts analysis.96 Instead, the City offered partial responses and conclusionary statements that ignores large swaths of commenters’ concerns and failed to make significant changes to its analysis to ensure the full scope of direct, indirect, and cumulative biological impacts from the Project are evaluated by the FEIR. Therefore the FEIR’s conclusions that there will not be a significant impact on biological resources from the Project remains unsupported by substantial evidence.

In its responses, the City avoided addressing the full concerns raised in the expert report prepared by Dr. Shawn Smallwood that determined that significantly more special status species likely rely on the property for habitat, foraging, hunting, mating, or other needs.97 The FEIR dismisses this evidence entirely and continues instead to rely on flawed reconnaissance surveys that failed to observe or detect special status species. 98 Further, Dr. Smallwood identified flaws
in the additional assessment attached to the FEIR as Appendix FA. 99 In fact, he explains that the
databases relied upon by the FEIR show bird species using nearby sites with similar levels of disturbance as the Project site, which undermines the FEIR’s conclusion that the Project site cannot be habitat to special status species.100 The FEIR’s over-reliance on inadequate analysis and surveys means it grossly underestimates the special status species that may use the site and the value of this Project property as important habitat. Eliminating 34-acres of habitat (regardless 96 These comments are laid out in significant detail in Commenters’ February Letter, at pp. 39-46 (citing Smallwood report).
97 Commenters’ February Letter, at pp. 39-42. 98 See Commenters’ February Letter, at pp. 40-41 (citing Smallwood report); Smallwood Reply Letter (Oct. 18, 2022), at pp. 3-5. 99 Smallwood Reply Letter (Oct. 18, 2022), at pp. 4-5, 15. 100 Smallwood Reply Letter (Oct. 18, 2022), at p. 8. 1130

of whether it is used for breeding or wintering) would result in a significant impact on special status species, thereby meeting the City’s threshold of significance for a biological resources impact.

The slight update to the proposed mitigation measures is not sufficient to lessen the impact below the threshold level of significance. As was raised in previous comments, an additional pre-construction survey is unlikely to detect species that are notoriously difficult to detect in surveys, such as the burrowing owl.101 Moreover, the fact that there may be a detectable presence of a special status species at the time of the pre-construction survey does not change the fact that after five years of intensive use as a parking lot this habitat will be, at best, unavailable during that period and at worst irreparably damaged or destroyed. 102
The City’s refusal to acknowledge the value of this property to wildlife extends to its alternative analysis as well. The FEIR concludes that using the 34-acre site as open space would not lessen the significant impacts from the Project, but that is based on an erroneous conclusion that building a parking lot on un-developed property would not impact special status species or wildlife movement, which is not supported by substantial evidence. 103
Commenters incorporate by reference all points raised in Dr. Smallwood’s October 18, 2022 reply letter.

XIII. The FEIR must be Recirculated Before Project Approval and Certification Under CEQA, an EIR must be re-circulated for review and comment whenever significant new information becomes known to the lead agency and is added to the EIR, after public notice of the availability of the draft document has been made, and before the EIR is certified.104 Under such circumstances the lead agency is specifically required to re-notice the environmental review document to the public and all responsible agencies, and is required to obtain comments from the same, before certifying the document’s impacts and alternatives analyses as well as any mitigation measures.105 A lead agency’s decision not to recirculate an EIR must be supported by substantial evidence.106
“Significant new information” includes any information regarding changes in the environmental setting of the project under review.107 It also includes information or data that has been added to the EIR and is considered “significant” because it deviates from that which was presented in the draft document, depriving the public of a meaningful opportunity to comment upon a significant environmental effect of the project, or a feasible way to mitigate or avoid such an effect at the time of circulation of the draft.108 Recirculation is further required where the 101 Smallwood Reply Letter (Oct. 18, 2022), at pp. 8-9. 102 See id., at p. 9. 103 FEIR, Section 12.4.2, p. 12-16. 104 Pub. Res. Code § 21092.1 105 See id.; see also, Pub. Res. Code § 21153. 106 Cal. Code Regs. tit. 14, § 15088.5(e) 107 Id., at § 15088.5(a). 108 Id. 1131

draft EIR is “so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.”109 While re-circulation is an exception and not the rule in the preparation of final environmental review documents, it is an exception that must be invoked here – where the absence of significant information rendered the DEIR ineffective in meeting CEQA’s substantive mandates, and now, where included, the addition of significant new information substantially changes the FEIR’s analyses and conclusions regarding the Project’s impacts, feasible alternatives and required mitigation.110
As stated in numerous comments to the DEIR, that document failed to provide critical information regarding the duration, scope, and mitigation of the Project’s impacts; it failed to adequately describe fundamental information relating to the phasing and timing of the project’s implementation and phase out by claiming to add permanent jobs to the region; it lacked adequate detail specifically regarding the construction and operations phases of the Project, including mitigation; and it contained analyses and mitigation measures relating to the Project’s air quality, traffic, human health and biological resources impacts based on incorrect datasets and formulas.

In some instances, the FEIR erratically and arbitrarily includes selective new data into its analysis of the Project’s impacts, and in others critical information remains absent from the document.

The FEIR contains significant new information and must be recirculated for public review and comment before being considered by the Planning Commission.111 Although this new information does not cure the inadequacies pointed out in comments to the DEIR, the City has added new information that that the public should be allowed to thoroughly review and evaluate with sufficient opportunity to further comment prior to a decision by the Planning Commission. This new information includes, but is not limited to: a revision of Mitigation Measure MM-BIO01 related to biological resources; the addition of land use policies to be considered pertaining to aesthetics; different data on maximum daily construction emissions and maximum daily operational emissions; the addition of a new 2022 California Native Diversity database search performed and new analysis performed resulting from a revised habitat assessment concerning biological resources; alleged revisions to the analysis and evaluation of archaeological resources and mitigation measures proposed as MM-CUL-1 and MM-CUL-2; alleged revisions to the analysis of project impacts and mitigation measures under Tribal Cultural Resources; a new listing of potential hazardous sites; a new summary of significant unavoidable impacts not previously disclosed; remodeling of the project in CalEEMod used for the project to project emissions during construction and operation; and, a list of additional previously undisclosed alternative locations considered by the City. In addition, Appendix D, Air Quality 109 Id. 110 Laurel Heights Improvement Assn. v. Regents of Univ. of Cal. (1993) 6 Ca4th 1112, 1132. 111 Cal. Code Regs. tit. 14, §15088.5. 1132

and Greenhouse Gas Study and Appendix FA – Biological Resources Inventory 2022 were updated with new information previously not disclosed.

The FEIR also contains new references to the storage of electric vehicles at the site without any details as to whether these vehicles will require charging infrastructure at the site while the cars are being stored.112 Thus, it is unclear whether further alterations to the site will be necessary in the near future. In short, this new information adds greater uncertainty and highlights the document’s failure as an informational document.

The public must have an adequate opportunity to comment on these many changes and address any new impacts this new information may reveal. Providing just 10 days before a hearing with the Planning Commission does not provide that opportunity for meaningful public engagement concerning the new information contained in the FEIR. Given these revisions, the myriad other information, and alternative analysis added in the FEIR, recirculation is required.

Moreover, on March 21, 2022, our organizations requested that the City schedule a special meeting of the Planning Commission before deciding on whether to approve the Project113. Not only would this give the Commission an opportunity to hear from stakeholders and members of the public and provide for adequate language access, but it would also give the Commission time to review additional evidence that has become available after the comment period. Given the tremendous interest that this Project has garnered with over 200 written comments received, setting a special pre-determination hearing before the Commission is more than appropriate.

The City released its responses to our comments less than ten full days prior to the October 20, 2022 hearing.114 To provide Commissioners with the opportunity to thoroughly review all the evidence, including the evidence and comments from stakeholders, the special meeting of the Planning Commission should be set at least 30 days prior to it making a final decision on this FEIR and pending Special Use Permit.

XIV. Conclusion
The FEIR’s continuing informational deficiencies render it unlawful. The City’s responses to commenters do not address their arguments against the adequacy of the DEIR. The FEIR contains an incomplete project description, a deficient cumulative impact analysis that omits relevant projects and impacts, inadequate alternatives analysis, and an incomplete evaluation of environmental justice, air quality, traffic, language access, public health and biological resources impacts. Accordingly, the Planning Commission should not certify an FEIR at this time and must deny the requested Special Use Permit until the City is able to present a comprehensive and accurate report of the Project’s scope, impacts, alternatives, and mitigation measures.
112 City of Oxnard, Planning Commission Report, (October 20, 2022), p.10. 113See Letter from CAUSE et.al., to Jay Dobrowalski, Re: Port of Hueneme =Vehicle Storage Site Environmental Impact Report Comment Period, (March 21, 2022); available at page 141 of the Planning Commission Staff Report for October 20, 2022.
114 Response to the comments submitted by our organizations were sent out from the email account of Senior Planner, Jay Dobrowalski at 5:00 p.m. on Monday, October 10, 2022. 1133