Comment Letters on Final EIR (available in the Clerk's Reading File) — Santa Clarita City Council, August 22, 2023 (part 1 of 2)

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

Of Counsel
MARC D. JOSEPH
DANIEL L. CARDOZO

SACRAMENTO OFFICE

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

ADAMS BROADWELL JOSEPH & CARDOZO

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW

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

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

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July 18, 2023

Via Email and Hand Delivery

Renee Berlin, Chair
Tim Burkhart, Vice Chair
Patsy Ayala, Commissioner
Lisa Eichman, Commissioner
Dennis Ostrom, Commissioner
City of Santa Clarita Planning
Commission
23920 Valencia Blvd., Suite 140
Santa Clarita, CA 91355

Jason Crawford, Director of Community
Development
Erika Iverson, Associate Planner
City of Santa Clarita Planning Division
23920 Valencia Blvd., Suite 302
Santa Clarita, CA 91355
Email: [email protected];
[email protected]

Re: Agenda Item #1 - July 18, 2023 Planning Commission Meeting Shadowbox Studios Project (Master Case 21-109)

Dear Chair Berlin, Honorable Planning Commission members, Mr. Crawford and Ms. Iverson:

We are writing on behalf of the Coalition for Responsible Equitable Economic Development Los Angeles (“CREED LA”) with respect to the July 18, 2023 Planning Commission Meeting Agenda Item #1, the Shadowbox Studios Project (Master Case 21-109) (“Project”) proposed by L.A. Railroad 93, LLC (“Applicant”).

The Project proposes to develop a full-service film and television studio campus that would consist of approximately 476,000-square feet of sound stages; approximately 571,000-square feet of workshops, warehouses, and support uses; approximately 210,000-square feet of production and administrative offices, and approximately 37,500-square feet of catering and specialty service areas. The approximately 93-acre Project site is generally located at the northeast corner of Railroad Avenue and 13th Street and bounded by 12th Street, Arch Street, and 13th Street on the south; Railroad Avenue on the west; Metropolitan Water District (MWD) right-of-way (ROW) on the east; and HOA maintained slopes associated with adjacent residential uses to the north.

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The staff report for the July 18 meeting recommends that the Planning Commission take the following actions:

1. Receive the staff presentation and continue the public hearing;

2. Close the public hearing;

3. Adopt a resolution recommending that the City Council certify the Draft Final Environmental Impact Report prepared for the Project;

4. Adopt a resolution recommending that the City Council approve the Project’s entitlements, including Architectural Design Review, Conditional Use Permit, General Plan Amendment, Hillside Development Review, Minor Use Permit, Oak Tree Permit (Class 4), Ridgeline Alteration Permit, Zone Change, and Tentative Tract Map; and

5. Take other action as determined by the Planning Commission. 1 The Planning Commission cannot recommend approval at this time because the City has not complied with the California Environmental Quality Act (“CEQA”).2 Rather than recommending that the City Council (“Council”) certify the Draft Final EIR (“FEIR”), the Commission should instead direct staff to revise and recirculate the DEIR to address the numerous deficiencies described herein and in CREED LA’s previous comments. In our May 22, 20233 and June 20, 2023 comment letters, we detailed several ways in which the DEIR fails to comply with CEQA. The FEIR fails to respond to or resolve many of these deficiencies.

We reviewed the FEIR with the assistance of air quality expert James Clark, noise expert Ani Toncheva, biological resources expert Shawn Smallwood, and transportation expert Norman Marshall. The further comments and qualifications of these experts are attached hereto
4 and are incorporated by reference as if set

1 City of Santa Clarita Planning Commission Agenda Report (July 18, 2023) (“Staff Report”), pg. 1. 2 Pub. Resources Code §§ 21000 et seq.; 14 Cal. Code Regs (“CEQA Guidelines”) §§ 15000 et seq. (“CEQA Guidelines”).
3 May 22, 2023 letter from Richard M. Franco, Adams Broadwell Joseph & Cardozo to Jason Crawford and Erika Iverson, City of Santa Clarita re Comments on Draft Environmental Impact Report for Shadowbox Studios Project (Master Case 21-109; SCH Number 2022030762) (“DEIR Comments”).
4 Exhibit A , July 17, 2023 Letter from James J.J. Clark to Richard M. Franco, Adams Broadwell Joseph & Cardozo re: Comment Letter on Final Environmental Impact Report ( FEIR) Shadowbox Studios Project, SCH NO. 2022030762 (hereinafter “Clark FEIR Comments”); Exhibit B , July 17, 2023 Letter from Ani Toncheva, Wilson Ihrig to Richard M. Franco, Adams Broadwell Joseph & July 18, 2023

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forth herein. As explained below, the FEIR fails to address or resolve many of the issues raised in our DEIR Comments, and fails to mitigate potentially significant impacts to the greatest extent feasible. Moreover, the FEIR includes significant new information which requires that the DEIR be recirculated for further public review and comment. Accordingly, we respectfully request that the Planning Commission direct staff to prepare and circulate a revised DEIR that fully complies with CEQA.

I. STATEMENT OF INTEREST

CREED LA is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential public and worker health and safety hazards, and the environmental and public service impacts of the Project. The coalition includes Santa Clarita residents Corey Wood, Greg Lewis and Michael de Francis, the Sheet Metal Workers Local 105, International Brotherhood of Electrical Workers Local 11, Southern California Pipe Trades District Council 16, and District Council of Iron Workers of the State of California, along with their members, their families, and other individuals who live and work in the City of Santa Clarita and surrounding areas.

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

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

Cardozo re: City of Santa Clarita Shadowbox Studio Project FEIR Comments on the Draft EIR and Responses (hereinafter “Toncheva FEIR Comments”); Exhibit C, July 15, 2023 Letter from Shawn Smallwood to Erika Iverson, City of Santa Clarita re: Shadowbox Studios Project (hereinafter “Smallwood FEIR Comments”); Exhibit D , July 17, 2023 Letter from Norman Marshall, Smart Mobility to Richard M. Franco re: Responses to the Shadowbox Studios Project Draft Final EIR (hereinafter “Marshall FEIR Comments”).

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II. THE CITY MUST PREPARE AND CIRCULATE A REVISED DEIR

Lead agencies are required to recirculate an EIR for further public review and comment if significant new information is added to the EIR after notice of public review but before certification.5 Recirculation is required when the addition of new information deprives the public of a meaningful opportunity to comment on a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect.6 New information can include “changes in the project or environmental setting as well as additional data or other information.”7 The purpose of recirculation is to give the public and other agencies an opportunity to evaluate the new data and the validity of conclusions drawn from it. 8 Recirculation is also required where significant new information surfaces prior to certification of an EIR but the lead agency failed to add that information to the EIR.9 Such information must be added to the EIR—and the EIR must be recirculated—if the information would trigger the recirculation requirement under CEQA Guidelines section 15088.5. Failure to include such information thwarts the goals of the EIR process by not disclosing to the public and government agencies critical information necessary to evaluate the significance of the Project’s impacts. 10 CREED LA’s DEIR Comments described a number of ways in which the DEIR failed to comply with CEQA, requiring that the City revise and recirculate the DEIR for further public review and comment. In addition, in response to DEIR comments from the California Department of Fish and Wildlife (“CDFW”), the FEIR includes new information regarding the Project’s potentially significant impacts to biological resources and proposes several new mitigation measures purportedly designed to mitigate such impacts.11 However, the FEIR lacks the facts or analysis necessary to provide decision makers or the public with the information needed assess these impacts, in violation of CEQA. Moreover, without a proper analysis of the Project’s impacts to biological resources, the City is unable to evaluate whether the newly proposed mitigation measures will be effective.

In its DEIR comments, CDFW notes that the Project may result in loss of suitable nesting and foraging habitat for Crotch’s bumblebee, a species that is a

5 Pub. Resources Code § 21092.1; 14 CCR § 15088.5.
6 14 CCR § 15088.5(a).
7 Id.
8 Spring Valley Lake Ass’n v. City of Victorville (2016) 248 Cal.App.4th 91, 108. 9 Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 95. 10 Id.
11 FEIR, pgs. 2-50—2-60.

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candidate for California Endangered Species Act (“CESA”) listing.12 The CDFW letter explains why impacts would occur and provides evidence that such impacts would be significant, and points out that the DEIR fails to discuss the species or the Project’s impacts on it.13 CDFW also provides a number of recommendations, including that prior to finalizing the CEQA document, “the DEIR should provide full disclosure of the presence of Crotch’s bumble bee within the Project site” and “should analyze the Project’s impacts on floral resources, nesting habitat and overwintering habitat.”
14 CDFW further recommends that conclusions regarding
habitat quality and suitability be substantiated by scientific and factual date, and that potential direct and indirect impacts on the species be discussed in the DEIR.15

In response to CDFW’s comments, the City acknowledges that the Project site may provide suitable nesting and foraging habitat for Crotch’s bumblebee, and purports to revise the DEIR to “discuss the potential for the species to occur, evaluate potential project impacts, and provide species-specific avoidance and mitigation measures” in accordance with CDFW’s recommendations. 16 The DEIR
was revised to include proposed mitigation measure MM-BIO-6, requiring a qualified biologist to conduct surveys to determine the species’ presence or absence.17 If the surveys detect Crotch’s bumblebee on the Project site, then proposed new mitigation measures MM-BIO-7, MM-BIO-8 and MM-BIO-9 would require buffer zones around any active nests and replacement of floral resources.

None of this information was included in the DEIR and has not been provided to the public for review and comment, as required by CEQA.

Additionally, while these revisions include some of the recommendations from CDFW, the City ignores the most important ones: to “provide full disclosure” of the species’ presence on the Project site, to analyze the Project’s direct and indirect impacts on the species, and to support its conclusions with scientific and factual data prior to finalizing the CEQA document.
18 Without such disclosure, analysis
and supporting data, the Project’s impacts are unknown and the efficacy of the newly proposed mitigation measures in the FEIR cannot be evaluated.

The City admits that none of these steps have been completed: “[f]ocused site surveys are currently underway to confirm that the absence of Crotch’s bumble bee

12 May 22, 2023 letter from CDFW to Erika Iverson, City of Santa Clarita, re Shadowbox Studios Project Draft Environmental Impact Report (“CDFW Letter”). 13 Id., pgs. 4-5.
14 Id., Attachment A: Draft Mitigation and Monitoring Reporting Plan. 15 Id.
16 FEIR, pg. 2-51.
17 Id., pg. 2-52.
18 CDFW Letter, Attachment A, pg. 1.

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on the Project Site [sic].”19 Without disclosure of the results of completed surveys and analysis of potential Project impacts and mitigation, responsible agencies, the public and the City’s decision makers are deprived of any meaningful opportunity to comment on a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect.20 This violates CEQA. The City must revise and recirculate the DEIR after completion of surveys for Crotch’s bumblebee.

III. THE FEIR FAILS TO ADEQUATELY DISCLOSE, ANALYZE OR
MITIGATE THE PROJECT’S POTENTIALLY SIGNIFICANT NOISE

IMPACTS

A. The Noise Impact Analysis Violates CEQA Because it Fails to Consider Increases Over Ambient Noise Levels

CREED LA’s DEIR Comments explained in detail how the DEIR’s failure to evaluate the Project’s construction and operational noise impacts using an ambient- based significance threshold violated CEQA. These comments were based on the settled legal principle that lead agencies “do not have discretion…to consider only maximum noise levels and ignore increases in noise relative to existing conditions.

In applying significance thresholds, the lead agency must consider both the ‘absolute noise level’ associated with a project as well as the increase in the level of noise that will result from a project [emphasis added].” 21 The DEIR
failed to include this analysis and the FEIR fails to correct this omission.

In King & Gardiner Farms, the Court of Appeal held that the lead agency violated CEQA by “using a single standard relating to the absolute noise level as a threshold of significance for evaluating all ambient noise impacts.” 22 The approach
used by the City “does not provide a complete picture of the noise impacts that may result from the project.”23 Similarly, in Keep our Mountains Quiet, the Court of Appeals held the “the lead agency should consider both the increase in noise level and the absolute noise level associated with a project.” 24 Despite the clear holdings

19 Staff Report, pg. 5.
20 14 CCR § 15088.5(a).
21 Kostka & Zischke, Practice Under the California Environmental Quality Act (2d ed Cal CEB), §13.63A, citing King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal. App. 5th 814, 887 and 893 and Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal. App. 4 th 714, 733. 22 King & Gardiner Farms, supra, 45 Cal. App. 5th at 893. 23 Id. at 894.
24 Keep Our Mountains Quiet, supra, 236 Cal. App. 4th at 733. See also, Berkeley Keep Jets Over the Bay Comm. v. Board of Port Cmrs. (2001) 91 Cal. App. 1344, 1382 (potential noise impact of nighttime flights required further study where there had been no meaningful analysis of existing ambient noise levels.)
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by California courts regarding the need to evaluate noise impacts using both an absolute threshold and an ambient threshold, the FEIR fails to evaluate the Project’s impacts using an increase over ambient threshold. Instead, the FEIR attempts to justify this failure by misstating the law: “King & Gardiner Farms…does not explicitly require an analysis of an increase over ambient noise.”25 Rather, the FEIR suggests, the City may rely solely on an absolute noise threshold and dispense with use of an ambient noise increase threshold if that approach “is properly supported,” and claims that there is substantial evidence to support the exclusive use of an absolute threshold as the basis of its noise analysis. 26 As an initial matter, the City’s statement of the law is flatly contradicted by the decisions quoted above. At best, King & Gardiner Farms suggests that, while the lead agency should consider both the increase in noise level and the absolute noise level associated with a project, it may be able to show substantial evidence that the magnitude of a noise increase may not be relevant in determining the significance of a change in noise.27 This does not support the City’s position that it need not analyze the Project’s increase over ambient noise levels at all.

In addition, the FEIR falsely claims that there is substantial evidence supporting its sole use of an absolute noise threshold.

First, the FEIR asserts that the single, absolute threshold approach is “consistent with many jurisdictions within the State…which do not have a threshold for numeric increase in ambient noise levels.” 28 The fact that other cities’
noise ordinances lack a numerical threshold for evaluating the significance of a project’s increase over ambient noise levels is neither surprising, nor is it relevant.

Whether or not the municipal codes of Beverly Hills, Fresno and Pasadena contain such thresholds does not affect the City’s duty to comply with CEQA’s disclosure requirements with regard to the Project’s noise impact. CEQA would require those other cities to evaluate their projects’ noise increases over ambient levels, just as CEQA requires the City to perform such an analysis with respect to this Project.

The FEIR also cites Caltrans as an example of an agency that does not have a threshold for a numeric increase in ambient noise levels. 29 Even if true, that does
not change CEQA’s requirement to evaluate the Project’s increase in noise over ambient levels. In fact, as Ms. Toncheva points out, Caltrans’ Traffic Noise

25 FEIR, pg. 2-1005.
26 Id.
27 King & Gardiner Farms, supra, 45 Cal. App. 5th at 894. 28 FEIR, pg. 2-1005.
29 Id.

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Analysis Protocol (“Caltrans Noise Protocol”) that the significance of noise impacts is determined based on the project-related increase in noise and, while no single numerical threshold is used on all projects, what is considered a substantial increase can vary depending on current environment.
30 The City’s citation to the
Caltrans Noise Protocol directly contradicts the City’s position that it may rely solely on an absolute noise threshold and ignore ambient noise increases.

Next, the FEIR contends that, because construction would be limited to daytime hours, its absolute 80 dBA threshold for construction noise would avoid sleep disruption.
31 It also claims that, since daytime construction noise will be limited to 80 dBA, the Project would not cause hearing loss which according to OSHA can begin to occur at 90 dBA.32 The FEIR is logically flawed, essentially arguing that if the Project complies with the absolute 80 dBA significance threshold, the City need not analyze the Project’s noise increase over ambient. This is a non sequitur that is directly at odds with the CEQA jurisprudence cited above. Nor is there support for the FEIR’s false implication that sleep disturbance and hearing loss are the only relevant noise impacts that the City must consider. As pointed out in her DEIR comments, CREED LA’s noise expert identified speech interference, cardiovascular and other physiological effects, and impaired cognitive performance as other adverse effects of noise on humans.

In addition, relying solely on an 80 dB absolute limit for construction noise would allow a 31 dB increase at receptor NM4 and a 33 dB increase at NM6. 33 The
DEIR’s noise analysis actually predicts construction noise increases of 20 dB over ambient levels.34 The City does not, and cannot, provide any rational explanation for why an increase of 20-30 dB over ambient is insignificant. Ultimately, the City has no support for its failure to evaluate the Project’s noise increase over ambient levels.

With regard to operational noise, the FEIR makes similar specious arguments. It claims, without support or explanation, that “the significance of the magnitude of an ambient noise level increase is inherently accounted for by the City’s fixed noise limits utilized for the noise analysis in the Draft EIR.” 35 Again,
the City’s approach violates CEQA because it relies on “a single standard relating to the absolute noise level as a threshold of significance for evaluating all ambient

30 Toncheva FEIR Comments, pg. 1.
31 Id.
32 Id.
33 Toncheva FEIR Comments, pg. 2.
34 Toncheva DEIR Comments, pg. 3.
35 Id., pg. 2-1006.

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noise impacts.”36 The FEIR admits that operational noise will exceed ambient levels at some receptor locations, but suggests there will be no significant impact because the increase does not exceed 5 dBA over ambient levels.37 If the City intends to adopt “5 dBA over ambient” as a significance threshold to evaluate the Project’s noise impacts, it must do so in a revised DEIR and support its chosen threshold with substantial evidence.

Ultimately, the City’s position that it is not required to “evaluate increased ambient noise levels attributable to Project construction and operation”38 violates CEQA, and the FEIR fails to remedy this violation. The DEIR must be revised and recirculated for further public review and comment.

IV. THE FEIR FAILS TO ADEQUATELY DISCLOSE, ANALYZE OR
MITIGATE THE PROJECT’S SIGNIFICANT TRANSPORTATION

IMPACTS

In CREED LA’s DEIR Comments (including expert comments by Mr.

Marshall), we explained the ways in which the DEIR’s analysis with respect to the Project’s vehicle miles traveled (“VMT”) was unsupported by substantial evidence.

The FEIR fails to correct those issues. Moreover, the FEIR directly contradicts the DEIR with respect to the significance threshold used to evaluate VMT impacts. As discussed below, the VMT analysis is so unclear as to be indecipherable. The City must revise and recirculate the DEIR to address these issues.

A. The FEIR Lacks a Clear VMT Significance Threshold
Supported by Substantial Evidence

In its VMT analysis, the DEIR stated “[t]he City’s threshold of significance is

15.7 VMT per employee based on the 2012 Citywide home-based work VMT per employee of 21.0.”
39 It further stated that “only the 2012 base year with project scenario was executed in the model.”40 In direct contrast, the FEIR now states that the “14.0 work VMT per employee calculated for the Project was compared to the calculated 2028 threshold of 14.0 work VMT per employee.”41 The purported significance threshold of “14.0 work VMT per employee is an interpolation between the citywide threshold of 15.7 for Year 2020 conditions and the projected 11.5

36 King & Gardiner Farms, supra, 45 Cal. App. 5th at 893. 37 FEIR, pg. 2-1007.
38 Id., pg. 2-1006.
39 DEIR, pg. 4.14-18.
40 Id., pg. 4.14-10.
41 FEIR, pg. 2-1011.

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threshold for 2040 conditions. The 14.0 represents the threshold for year 2028 conditions, which is the Opening Year of the Project.”42

In short, the DEIR claimed to use a VMT significance threshold of 15.7 based on a Citywide 2012 VMT of 21.0 (though it doesn’t explain how 15.7 was derived from 21.0). The FEIR now asserts a VMT significance threshold of 14.0, which is a 2028 estimate based on an “interpolation” between Year 2020 and Year 2040 conditions. Beyond the obvious discrepancy between the 15.7 and 14.0 significance thresholds set forth in the DEIR and FEIR, respectively, it appears that the FEIR is comparing Project VMT estimates calculated on 2012 base year conditions with a significance threshold calculated on 2028 conditions. Adding to the confusion are the following additional inconsistencies:

• DEIR Appendix L
43 states “[a]s shown in Table 10 and the VMT Memo44 the Project is estimated to generate an average home-based work VMT per employee of 14.0, which is less than the Citywide impact threshold of 15.7 and, therefore, would not result in a significant VMT impact.” 45 • Appendix L’s Table 10, however, sets forth an “Impact Threshold (2028 Estimate)” of 14.0.46 Additionally, Table 10 notes that the 2028 threshold is extrapolated based on the 2020 regional (not citywide) VMT estimate of 15.7 and 2040 regional estimate of 11.5.47

• The VMT Memo sets forth the City’s VMT significance threshold as 17.9, which is “15% below” the “2012 Citywide Home-Based Work VMT per Employee.”
48 “Table 4 [in the VMT Memo] indicates that project Home-Based Work VMT per employee is forecast to be below the City’s threshold of significance of 17.9 Home-Based Work VMT per employee.”49

Based on the foregoing, it is impossible to know what VMT significance threshold the City is actually relying on, how it was derived, or whether it is valid.

The threshold is variously set forth as 14.0, 15.7 and 17.9 home-based work VMT

42 Id.
43 DEIR Appendix L, January 2023 Transportation Assessment for Shadowbox Studios Project (“Transportation Assessment”).
44 “VMT Memo” refers to the technical memorandum Blackhall Studios-City of Santa Clarita VMT Modeling Summary (Iteris, August 24, 2021).
45 DEIR, Appendix L, pg. 48.
46 DEIR, Appendix L, Table 10 at pg. 50.
47 Id.
48 DEIR, Appendix L VMT Memo, pgs. 3-4.
49 Id., pg. 4.

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per employee. The DEIR stated that the threshold was “based on the 2012 Citywide home-based work VMT per employee of 21.0,”50 while the FEIR states that the threshold “represents the threshold for Year 2028 conditions,” interpolated between “the citywide thresholds for Year 2020 and Year 2040 conditions.”51 The DEIR’s technical transportation analysis stated that the 2028 threshold was extrapolated based on 2020 and 2028 regional, not citywide, estimates,52 which is inconsistent with the discussion in the FEIR. Given that the DEIR and FEIR reach the same conclusions regarding the severity of the Project’s transportation impacts, it is critical that the public (and City decision makers) understand the threshold used to derive the conclusions in the FEIR’s transportation analysis in order to evaluate the accuracy of the FEIR. Given these many discrepancies, the FEIR violates the basic CEQA requirement that it include “an identifiable, quantitative, qualitative or performance level” for VMT that is supported by substantial evidence.53 These discrepancies can only be resolved in a revised and recirculated DEIR, so that the public and City decision makers can evaluate the validity of the City’s VMT analysis.

B. The FEIR’s Use of the 2016 SCAG Travel Demand Model to Estimate VMT is Not Supported by Substantial Evidence

As Mr. Marshall explained in his DEIR comments, the DEIR’s significance threshold and Project VMT estimates were derived using an outdated model known to underestimate VMT.
54 The DEIR used the 2016 Southern California Association of Governments (“SCAG”) 2016 travel demand model, rather than the updated 2020 model. A crucial difference between the two models is that the 2020 version incorporates census data (which was not used in the 2016 version) to calibrate the tail of the trip length distribution, because there were few observations of these long commute patterns captured in the California Household Travel Survey (“CHTS”) data used to calibrate the 2016 model.
55 Importantly, the census data showed
average commute lengths 65% higher than the average in the CHTS data used to calibrate the outdated model.56

The FEIR does not address or refute Mr. Marshall’s criticisms of the 2016 model. Rather, the FEIR attempts to justify the use of the outdated model by asserting that because the 2016 SCAG model was used to establish the VMT

50 DEIR, pg. 4.14-18.
51 FEIR, pg. 2-1011.
52 DEIR, Appendix L, Table 10, note c.
53 CEQA Guidelines §15064.7.
54 DEIR Comments, Exhibit D.
55 Marshall FEIR Comments, pg. 1.
56 Id., pgs. 1-2.

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thresholds in the Santa Clarita area, it is “the most logical model to use in the analysis of the Project.”57 The City’s response ignores the underlying issue of whether it was valid to use the 2016 model in the first place, and provides no evidence refuting Mr. Marshall’s criticisms. Instead, the FEIR simply asserts that is making an “apples-to-apples” comparison between Project-generated VMT and the thresholds of significance.58 As Mr. Marshall points out, though, such comparisons are of little value when both “apples” are rotten.59 In other words, if the model used to generate significance thresholds and Project VMT is suspect, the resulting analysis is similarly suspect. Moreover, given the many discrepancies in the description of the City’s VMT significance threshold described above, it is far from clear that the DEIR’s analysis even used an “apples-to-apples” approach.

The City’s VMT analysis lacks substantial evidence supporting the methodology used to evaluate the Project’s transportation impacts or the threshold of significance used in the analysis. The DEIR must be revised to include a proper VMT analysis supported by substantial evidence.

V. THE FEIR FAILS TO ADEQUATELY DISCLOSE, ANALYZE OR
MITIGATE THE PROJECT’S POTENTIALLY SIGNIFICANT AIR

QUALITY IMPACTS

CREED LA’s DEIR Comments identified a number of significant defects in the DEIR’s analysis of the Project’s air quality and related health impacts. The FEIR still fails to justify the use of optional and unenforceable Project Design Features (“PDFs”) with respect to construction equipment. The FEIR also still fails to adequately address health risks from diesel emissions from generators that will be used during Project operations, and completely ignores expert evidence of a significant health risk to nearby residents from such operations.

A. The FEIR Continues to Rely on Unenforceable Project Design Features in Analyzing Construction Emissions

As discussed in detail in CREED LA’s DEIR Comments, the DEIR underestimates the significance of Project construction emissions by relying on optional and unenforceable emissions controls to support the conclusion that such emissions will be less than significant. PDF AQ-1 and PDF-AQ-2 “propose” that the Project use off-road diesel-powered construction equipment that meets or exceeds the CARB and USEPA Tier 3 off-road emissions standards with Level 3 diesel

57 FEIR, pg. 2-1011.
58 Id.
59 Marshall FEIR Comments, pg. 1.

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particulate filters or be alternatively (non-diesel) fueled to reduce diesel exhaust emissions during Project construction.60 The DEIR Comments explained why this violates CEQA, as these PDFs are in fact unenforceable mitigation of the Project’s construction emissions.

In response to another commenters’ comment on the same issue, the FEIR admits that “PDFs typically provide a benefit or a reduction to impacts [emphasis added].”
61 Under CEQA, this is a mitigation measure. CEQA defines mitigation as including any measures designed to avoid, minimize, rectify, reduce, eliminate, or compensate for a significant impact.62 Still, the FEIR claims that these measures, admittedly designed to reduce impacts, “are not considered mitigation because [they] are part of the construction design of the Project, and there are no current regulations requiring specific construction equipment to be used.”
63 This statement has nothing to do with the definition of “mitigation” under CEQA, and does not remedy the City’s failure to make its construction emissions mitigation binding.

CEQA requires that mitigation measures be fully enforceable through permit conditions, agreements or other legally binding instruments. 64 Because the City
has not characterized PDF AQ-1 or PDF AQ-2 as mitigation measures, they are not binding on the Applicant, and will not be included in the Project’s Mitigation Monitoring and Reporting Program (“MMRP”).65 Reliance on “proposed” nonmandatory and unenforceable PDFs to reduce impacts therefore provides no assurance that the Applicant would later comply with the “design features.” The PDFs therefore fail to provide the binding mechanism required by CEQA to compel the Applicant’s compliance with mitigation following Project approval. Indeed, after we commented on the lack of enforceability of the PDFs at the June 20, 2023 Planning Commission meeting, Chair Berlin requested that the PDFs be included in the Conditions of Approval.
66 However, they have not been included in the draft
Conditions of Approval attached to Resolution P23-12 that will be considered by the Commission at its July 18 meeting. Staff therefore failed to follow the Commission’s direction.

The DEIR further violates CEQA by failing to first disclose the Project’s unmitigated construction emissions (i.e., construction emissions before applying the

60 DEIR, p. 4.2-18.
61 FEIR, pg. 2-739.
62 14 CCR § 15370.
63 FEIR, pgs. 2-739—2-740.
64 14 CCR §15126.4(a)(2).
65 DEIR, Table ES-1 at pgs. ES-6—ES-26.
66 July 18, 2023 Planning Commission Meeting Agenda Packet, pg. 5.

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PDFs). Without disclosing the Project’s unmitigated construction emissions, the DEIR only discloses estimated emissions with the application of PDF-AQ-1 and PDF-AQ-2. This “downward adjustment” of the Project’s construction emissions artificially reduces their significance. The DEIR concludes that the Project’s construction emissions (mitigated by PDF-AQ-1 and PDF-AQ-2) are less than significant, without application of any binding mitigation measures.67

This approach violates CEQA’s requirement that an EIR disclose the significance of an impact prior to mitigation.
68 The purpose of this analysis is both
to require public disclosure of a project’s impacts, and to require the lead agency to “identify and focus on the significant environmental effects of the proposed project.”69 In evaluating the significance of an impact, an EIR must discuss the physical changes in the environment that the project will cause, including:

relevant specifics of the area, the resources involved, physical changes, alterations to ecological systems, and changes induced in population distribution, population concentration, the human use of the land (including commercial and residential development), health and safety problems caused by the physical changes, and other aspects of the resource base such as water, historical resources, scenic quality, and public services. 70 Only after this discussion occurs may the agency identify and apply mitigation measures to reduce potentially significant impacts to less than significant levels.
71 The discussion is rendered meaningless (or, as here, omitted entirely) if the EIR falsely concludes that a project’s impact is less than significant based on premature application of mitigation measures. In this case, the DEIR failed to undertake the requisite analysis required by CEQA Guidelines Section 15126.2 for the Project’s construction emissions because the DEIR did not disclose the Project’s air quality impacts prior to incorporating PDF AQ-1 and PDF-AQ-2.

The FEIR responds to this argument by claiming that “application of all Tier 3 equipment in the CalEEMod emissions analysis does not result in meaningfully different emissions than the default construction equipment fleet in the model.” 72 But this raises additional unanswered questions. Is the City suggesting that the “default construction equipment fleet” represents the Project’s unmitigated

67 DEIR, 4.2-19—21.
68 14 CCR § 15126.2.
69 14 CCR § 15126.2(a).
70 14 CCR § 15126.2(a).
71 14 CCR § 15126.4.
72 FEIR, pg. 2-740.

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emissions? What is the composition of the default construction fleet? The FEIR states that the default fleet includes “some Tier 4 equipment,” but does not otherwise define the default fleet.
73 Why were the “default fleet” emissions not
reported in the DEIR? Indeed, the FEIR includes Table O5-1, purporting to report CalEEMod Default Fleet Emissions; the table, however, indicates that the source of information set forth is “Rincon Consultants, Inc., June 2023.” 74 This suggests it
was prepared after the close of the public review and comment period for the DEIR.

The FEIR claims that “without or with the PDFs that require a minimum of Tier 3 equipment, Project emissions would be below the South Coast AQMD thresholds of significance and, therefore, less than significance.”75 This statement is not supported by substantial evidence and therefore does not comply with CEQA.

The City must revise and recirculate the DEIR to address the many defects discussed above.

B. The FEIR Does Not Resolve the Failure to Analyze the Potential Health Risks to Nearby Residents from Project Emissions

CREED LA’s DEIR comments set forth the legal requirements under CEQA for agencies to analyze public health impacts of the Project. 76 The comments also
explained that the DEIR’s justification for not performing a health risk analysis is unfounded, as it is based on a misapplication of SCAQMD’s localized significance thresholds (“LSTs”). LSTs are not intended to provide health risk significance thresholds for toxic air contaminants (“TACs”) such as diesel particulate matter (“DPM”). Finally, we provided substantial evidence of the Project’s significant health impacts to neighboring residents from exposure to DPM from diesel generators used during Project operations. Dr. James Clark used the DEIR’s CalEEMod analysis of the Project’s emissions from diesel generators to assess cancer risk to nearby sensitive receptors, and found a risk at one of several nearby residents to be approximately 20 in one million, exceeding the 10 in one million significance threshold set by SCAQMD and representing a significant impact under CEQA.
77 73 Id.
74 Id.
75 FEIR, 2-740.
76 See e.g., Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 518–522; see also, Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 514–515. 77 DEIR Comments, pg. 17 and Exhibit A.

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In the FEIR, the City continues to incorrectly maintain that a health risk analysis for the Project’s operational DPM emissions is not required, and completely ignores the substantial evidence of a significant health impact provided by Dr.

Clark.78 CEQA requires a good faith, reasoned analysis in response to comments on a DEIR, particularly in response to comments made by experts or other agencies.79 Indeed, another agency has echoed Dr. Clark’s comments that a health risk analysis for the Project’s operation DPM emissions should be performed. In its May 19, 2023 comment letter on the Project, the SCAQMD recommends that the City “conduct an operational phase HRA [Health Risk Assessment]…which is essential for determining the potential cancer risk impacts associated with the operation of the Proposed Project to the offsite sensitive receptors and workers so that they can be compared to the South Coast AQMD Air Quality Significance Thresholds for TACs [footnote omitted] to determine whether there will be a potentially significant air quality impact.”
80 In response to the SCAQMD’s recommendation, the City suggests that it need not evaluate the health risk from diesel generators that would be used during Project operations, stating that “generators would not be part of the Project and, as needed, would only be implemented by production that was leasing space from the studio. These generators would need to be permitted through the South Coast AQMD and the risk associated with the generators would be required to be below regulatory thresholds as part of the permitting process.” 81 However, the DEIR
assumed that the Project would utilize six diesel generators, and analyzed DPM emissions from those generators though, as noted, did not assess health risks from their operation. Regardless of who will use the generators on the Project site, the City is aware that such generators will be used and will emit DPM, and the EIR must therefore disclose and analyze the associated emissions and health risks.

Finally, the DEIR’s CalEEMod analysis of the six generators expected to be used on the Project site assumed that the generators would be equipped with Tier 3 emissions controls.
82 This assumption, like the PDFs relating to the Project construction fleet, is an unenforceable mitigation measure. Because there is nothing requiring the Project utilize only Tier 3 diesel generators, the emissions reported are unreliable and likely underestimated.

78 FEIR, pgs. 2-1003—2-1004.
79 CEQA Guidelines §15088(c); Berkeley Keep Jets Over the Bay, supra, 91 Cal. App. 4 th at 1367, 1371.
80 May 19, 2023 letter from Sam Wang, South Coast Air Quality Management District to Erika Iverson, City of Santa Clarita re Draft Environmental Impact Report for the Proposed Shadowbox Studios Project, pgs. 3-4.
81 FEIR, pg. 2-73.
82 Id., pg. 2-71.

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The City must revise and recirculate the DEIR with accurate estimates of the Project’s DPM emissions supported by substantial evidence, and must perform a health risk analysis that discloses the health risks to the Project’s neighbors.

VI. THE FEIR FAILS TO ADEQUATELY DISCLOSE, ANALYZE OR MITIGATE THE PROJECT’S POTENTIALLY SIGNIFICANT

IMPACTS TO BIOLOGICAL RESOURCES

CREED LA’s DEIR comments include a lengthy letter from wildlife biologist Shawn Smallwood in which he details numerous deficiencies in the DEIR’s analysis of the Project’s impacts to biological resources.
83 The FEIR fails to adequately
address or resolve many of these issues, as explained in Dr. Smallwood’s reply to the FEIR.84 Chief among these issues is the FEIR’s failure to correct the DEIR’s errors with respect to evaluating and reporting the environmental baseline on the Project site.

Dr. Smallwood commented at length regarding the DEIR’s serious flaws in its disclosure of the baseline environmental conditions related to the presence of wildlife, including special status species, on the Project site. Describing the environmental setting accurately and completely for each environmental condition in the vicinity of the Project is critical to an accurate, meaningful evaluation of environmental impacts. The courts have clearly stated that “[b]efore the impacts of a project can be assessed and mitigation measures considered, an [environmental review document] must describe the existing environment. It is only against this baseline that any significant environmental effects can be determined.” 85 Dr. Smallwood’s DEIR comments also explained that the DEIR failed to adequately assess the Project site’s background setting with respect to wildlife species. In particular, he noted that the DEIR’s surveys of the Project site for biological resources and review of literature, databases and local experts for documented occurrences of special-status species were incomplete and misleading, and that none of those limitations were disclosed.
86 Among other things, the DEIR
relied on an “unrealistically short list of potentially occurring species as a starting point for the analysis.”87 Indeed, Dr. Smallwood’s associate surveyed the Project site from the perimeter with binoculars and detected multiple wildlife species on

83 See DEIR Comments, Exhibit C.
84 See Smallwood FEIR Comments.
85 County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 952. 86 See generally, Smallwood DEIR Comments, pgs. 13-29.
87 Smallwood FEIR Comments, pg. 3.

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and near the Project site that the City’s consultants failed to detect or report, including 4 special-status species.88

The FEIR’s response to Dr. Smallwood’s evidence is that the reconnaissance survey performed by its consultants was not intended to be a comprehensive inventory of all species that inhabit the Project site, and that such a comprehensive inventory is unnecessary to support a sound impacts analysis. 89 Dr. Smallwood did
not assert, however, that a “comprehensive inventory” of all species on the Project site is necessary. Rather, he noted that the survey that was performed in support of the DEIR’s analysis did not accurately characterize the existing environmental setting, and therefore could not support inferences made by the City’s consultants regarding the likelihood of various species being present or absent from the Project site.
90 Dr. Smallwood also analyzed and commented on the shortcomings in the DEIR’s focused burrowing owl survey. His discussion was based on City’s consultants’ failure to comply with CDFW standards for performing and reporting such surveys. Dr. Smallwood noted that the consultant’s report met none of the CDFW standards on reporting qualifications of survey personnel, and fewer than half of the standards for habitat assessment.91 He specifically identified more than 30 specific CDFW standards for burrowing owl surveys, and indicates that the survey done for the DEIR met about half of the standards. 92 In response, the FEIR describes what the City’s consultant did (which was previously reported in the DEIR), but does not correct their errors or omissions.

Rather than address Dr. Smallwood’s specific listing of standards not followed, the FEIR simply reiterates the standards that were followed.93 The FEIR claims, therefore, that the burrowing owl survey “complied with established protocol” and CEQA. However, Dr. Smallwood’s specific comments regarding the DEIR’s failure to meet 16 of the 34 applicable minimum burrowing owl protocol survey standards remain unresolved and uncontested. The FEIR’s conclusions regarding the burrowing owl therefore remain unsupported by substantial evidence.

88 Id., pg. 4.
89 FEIR, pg. 2-1023.
90 Smallwood FEIR comments, pg. 3.
91 Smallwood DEIR Comments, Table 3; Smallwood FEIR comments, pg. 13. 92 Id.
93 FEIR, pg. 2-1000.

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VII. THE FEIR CONTINUES TO IMPROPERLY RELY ON

UNENFORCEABLE PROJECT DESIGN FEATURES IN ITS IMPACT

ANALYSES

CREED LA’s DEIR Comments explained how the DEIR violated CEQA by improperly relying on proposed and unenforceable project design features (“PDFs”) to mitigate Project impacts with respect to air quality (discussed above), geology, energy, public services and wildfire. While none of these PDFs are mandatory nor enforceable, the DEIR assumed that the PDFs would be implemented and would reduce the Project’s impacts, and were used as supported for the DEIR’s conclusions that impacts will be less than significant. As discussed in the DEIR Comments and below, this approach violates CEQA.

CREED LA’s DEIR Comments explained why, under CEQA, the PDFs are actually mitigation measures. CEQA defines mitigation as including any measures designed to avoid, minimize, rectify, reduce, or compensate for a significant impact.
94 The PDFs described in the DEIR are actually mitigation measures because they perform these functions. Indeed, the FEIR admits that this is the purpose of the PDFs: “PDFs typically provide a benefit or a reduction to impacts [emphasis added].”95

As detailed in our DEIR Comments, CEQA requires that mitigation measures be fully enforceable through permit conditions, agreements or other legally binding instruments.96 Because the City has not characterized any of the PDFs as mitigation measures, they are not binding on the Applicant, and will not be included in the Project’s MMRP. Reliance on “proposed” nonmandatory and unenforceable PDFs to reduce impacts therefore provides no assurance that the Applicant will later comply with the “design features.” The PDFs therefore fail to provide the binding mechanism required by CEQA to compel the Applicant’s compliance with mitigation following Project approval.

The Courts have made clear that mitigation must be incorporated directly into a project’s MMRP to be considered enforceable. In Lotus v. Department of Transportation,
97 an EIR approved by Caltrans contained several measures “[t]o help minimize potential stress on the redwood trees” during construction of a highway. Although those measures were clearly separate mitigation, the project proponents considered them “part of the project.” The EIR concluded that due to

94 14 CCR § 15370.
95 FEIR, pg. 2-739.
96 14 CCR §15126.4(a)(2).
97 Lotus v. Dep't of Transp. (2014) 223 Cal. App. 4th 645, 651-52.

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the planned implementation of those measures, the project would not result in significant impacts. The Court disagreed, finding that the EIR had “disregard[ed] the requirements of CEQA” by “compressing the analysis of impacts and mitigation measures into a single issue.” The Court continued, stating “[a]bsent a determination regarding the significance of the impacts … it is impossible to determine whether mitigation measures are required or to evaluate whether other more effective measures than those proposed should be considered.” 98 The FEIR fails to address any of the legal standards and case law set forth above and in CREED LA’s DEIR Comments. Instead, it simply offers the conclusory statement that “PDFs are features of the Project that would be included in the construction and operation of the Project that would be implemented above and beyond compliance with specific regulations and requirements.” 99 As in the Lotus
case, the City h as compressed the analysis of impacts and mitigation into a single issue by insisting that the PDFs are part of the Project , and assuming the implementation of the PDFs in performing its impact analysis with respect to geology, energy, public service and wildfire impacts.
100 By failing to first analyze and disclose
the Project’s impacts without consideration of the PDFs, the F EIR does not comply with CEQA.

VIII. CONCLUSION

For the reasons discussed above, the FEIR for the Project is wholly inadequate under CEQA. It must be revised to provide legally adequate analysis of, and mitigation for, all of the Project’s potentially significant impacts. These revisions will necessarily require that the DEIR be recirculated for additional public review. Until the DEIR has been revised and recirculated, as described herein, the City may not lawfully approve the Project.

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

Sincerely,

Richard M. Franco
Attachments
RMF:acp

98 Id.
99 FEIR, pg. 2-1015.
100 See DEIR Comments, pgs. 35-39.

EXHIBIT A
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July 17, 2023

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

Attn: Mr. Richard Franco
Subject: Comment Letter on Final Environmental Impact Report (FEIR) Shadowbox Studios Project, SCH NO.
2022030762.

Dear Mr. Franco:

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

The FEIR concludes that only minor changes to the text of the Draft EIR occurred since public circulation, and none of the chan ges constitute “significant new information,” which would require its recirculation. This conclusion is in conflict with the facts provided within the DEIR and FEIR.

Specific Comments:

1. The City’s Response That Generators Should Not Be
Included In The FEIR Analysis Is Illogical.

The City’s response to comments about the emissions from generators on site is illogical. In my analysis of the D EIR, I demonstrated that the emissions from the generators would be result in a cancer risk in excess of the S outh Coast Air Quality Management District (SCAQMD) threshold levels (10 in 1,000,000) using the Tier 3 EPA certified generators. Whether the Proponent is responsible for permitting the generators or 3rd parties are responsible is immaterial to Clark & Associates
Environmental Consulting, Inc.

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

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the air quality analysis. The generators will produce the same amount of air toxins independent of the responsible party . The City’s response that “Generators, as needed, would be brought on -site by individual production entities, which would need to permit the generator use independent of the Project development.”1 Since the City cannot predict the actual usage of the BUG onsite it is clear that t hey must use a predictive method to ensure that they do not underestimate their impacts on the community.

The City’s logic is in conflict with the need to accurately assess emissions from the Project in the CEQA process.

The City did not address the concerns over power outages and need for BUGs noted in the Air Quality Analysis of the DEIR. According to Note 2 of the Blackhall Studios – Santa Clarita Project Generator Assumptions (page 66 of Appendix C to DEIR) the analysis clearly demonstrates the need for BUGs. The note states “ In 2021 the entire Santa Clarita area (54 circuits) had an average of 1.1 disruptions for an average of 180 minutes for the entire year of 2021…. In statistical terms it appears that the Shadowbox Studio project circuit would actually have a 1 in 54 chance of a sustained outage one time per year. For purposes of this analysis we utilized the most extreme potential of one city - wide power outage per year.”
Among the commenting agencies, SCAQMD, which woul d permit any generator for the Project, provided comments in line with my own regarding the emissions from diesel back -up generators (BUGs) onsite and the need for a comprehensive dispersion model of emissions and a health risk assessment. Whether the BUGs are brought on by the individual production entities or are brought on by the Shadowbox facility, they will be present and emitting onsite. The City must revise the FEIR to include all sources of pollutants from the Project in a supplemental FEIR.

2. The City’s Response To Questions Regarding Flaws In The Air Quality Analysis And The Need To Perform A Quantitative Health Risk Assessment Of The Impacts Of Toxic Air Contaminants (including Diesel Particulate Matter (DPM) and Other Air Toxins) Emissions From The Construction & Operational Phase Of The Project For The Nearest Sensitive Receptor(s) Is Not In Line With The Comments From The Air Permitting Agency (SCAQMD) & The Generally Accepted Practice Among Environmental Professionals.

1 FEIR. 2023. Pg. 2-71 and page 2-1000
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In response to comm ents from myself and the SCAQMD regarding the health impacts from diesel generators onsite, the City has chosen to respond by saying that as “part of the permitting process, the risk associated with the generators would be required to be below regulatory t hresholds. See Response to Comment Nos. A3-3, A3-4, and A3-6 for additional information. As demonstrated therein, the Draft EIR adequately disclosed the health risks from exposure to DPM ”2 The responses to A3-3, A3-4, and A3-6 do not address the concerns, rather they place the burden for determining which BUGs will be used on unknown production entities, ignores the clearly defined health risk from exposure to diesel particulate matter, and fails to assess the long-term impacts for residents located immediately adjacent to the Project site from the emissions produced onsite.

By relying on the Air Quality Management Plan (AQMPs) control strategies for construction equipment and other activities to mitigate DPM emissions, and lo calized significance thresholds (LSTs) which analyze criteria pollutants but do not specifically evaluate TACs, the City cannot attest as to whether there is a cancer risk presented to the community by the Project. The City must address this concern by performing an air dispersion model of the sources on site and off site, quantifying the annual concentrations of DPM for each of the receptors, and performing a health risk assessment of the DPM concentrations. Using a risk assessment process in which the age adjustment factors (ADAF) for various age groups would the California Air Resources Board Toxic Hot Spot Guidance, and present the results in a supplement FEIR.

Under CEQA the City is required to provide a detailed health risk analysis for all projects that emit TACs with potential human exposure. TACs, including diesel particulate matter (DPM) 3, contribute to a host of respiratory impacts and may lead to the development of various cancers. Failing to quantify those impacts places the community at risk for unwanted adverse health impacts. Even brief exposures to the TACs could lead to the development of adverse health impacts over the life of an individual.

2 FEIR. 2023. Pg 2-1004
3 Because DPM is a TAC, it is a different air pollutant than criteria particulate matter (PM) emissions such as PM10, PM2.5, and fugitive dust. DPM exposure causes acute health effects that are different from the effects of exposure to PM alone.
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3. The City’s Response To Comment O6-13 Ignores The Substantial Evidence That The Project Site Will Emit Significant Quantities Of TACs.

The City’s response in Comment O6-13 ignores the evidence provide in my previous comment letter and the SCAQMD’s comment letter that the Project Site wi ll have toxic air contaminants that will be released from the construction and operational phases of the Project. The method for assessing the risk from exposure to these known human carcinogens is clearly outlined in guidance from OEHHA, DTSC, and SCAQMD. Failing to assess the health risks to nearby residents and sensitive receptors in the area is a significant flaw in the DEIR and FEIR.

Given the volume of TACs previously identified that will be emitted during the construction and operational phases of the Project and the proximity of the Project to the receptors, the failure to assess the risk a priori is a critical flaw in the City’s analysis.

Conclusion
The facts identified and referenced in this comment letter lead me to reasonably conclude that the Project could result in significant impacts (including an increase in the potential for residents along Alderbrook Avenue to be exposed to DPM, resulting in an increased health risk) if allowed to proceed.

A supplemental FEIR should be prepared to address these substantial concerns.

Sincerely,

Exhibit A:

Curriculum Vitae

James J. J. Clark, Ph.D.

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

Education:

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

Professional Experience:

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

Significant projects performed by Dr. Clark include the following:

LITIGATION SUPPORT

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

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

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

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

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

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

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