Sacramento Citizens Concerned About Railyards v. City of Sac. CA3 ( 2015 )

Filed 10/7/15 Sacramento Citizens Concerned About Railyards v. City of Sac. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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SACRAMENTO CITIZENS CONCERNED ABOUT C065220
THE RAILYARDS et al.,
(Super. Ct. No.
Plaintiffs and Appellants, 34200800000504CUWMGDS)
v.
CITY OF SACRAMENTO et al.,
Defendants and Respondents;
IA SACRAMENTO HOLDINGS, L.L.C., et al.,
Real Parties in Interest and Respondents.
The present appeal involves litigation over the City of Sacramento’s (City) plan to
develop a large parcel of land once occupied by maintenance facilities of the Southern
Pacific and Union Pacific Railroads. The parcel, located near the city’s downtown, major
freeways, and the confluence of the American and Sacramento Rivers, has significant
historic and archaeological resources but, during the course of its earlier use as a railroad
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facility, suffered major releases of toxic substances, resulting in its listing as a state
“Superfund” site. (See Health & Saf. Code, § 25300 et seq.) Remediation efforts have
been underway since 1984, supervised by the state Department of Toxic Substances
Control (DTSC). The remediation activities are the subject of separate environmental
review.
With the cessation of railroad activity and the progress of remediation efforts, the
city formulated plans for development of the site. The plan, ultimately adopted as the
“Sacramento Railyards Specific Plan” (Specific Plan), contemplates development of
mixed uses on the 244-acre site over a 15- to 20-year period (the Project). In addition to
the strictures of the Specific Plan, development is further constrained by the “Sacramento
Railyards Design Guidelines” (Design Guidelines) and two ordinances: Sacramento
Ordinance No. 2007-101, the Sacramento Railyards Special Planning District Ordinance
(SPD Ordinance), and Sacramento Ordinance No. 2007-103, the Central Shops Historic
District Ordinance.
According to respondents, the protracted development time period, with the
prospect of changing market conditions, suggested a need for flexibility in determining
the precise mix of land uses and in making specific development decisions for specific
parcels. For that reason, the City prepared a “tiered” or “program” environmental impact
report (EIR) pursuant to the California Environmental Quality Act (CEQA; Pub.
Resources Code, § 21000 et seq.) and its implementing regulations (CEQA Guidelines;
Cal. Code Regs., tit. 14, § 15000 et seq.). (CEQA Guidelines, § 15168.) The EIR set
forth a detailed environmental analysis of the Project’s environmental effects where the
type and timing of development had been decided. However, where future development
options remained abstract or speculative, the EIR provided a programmatic level of
analysis which recognized that additional environmental review would be required as
specific development options were chosen in light of market conditions and other factors.
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Consistent with rules governing program EIR’s, if a later Project-related activity
would have effects not previously examined in the EIR, a new initial study would be
required, leading to either another EIR or a negative declaration. Moreover, all
development in the area covered by the Specific Plan requires a subsequent discretionary
urban development permit pursuant to the SPD Ordinance. Each development
application will be subject to evaluation as to whether additional environmental review is
required under CEQA.
In a petition for a writ of mandate against defendant City, Sacramento Citizens
Concerned About the Railyards (Citizens) challenged the adequacy of CEQA review of
the City’s adoption of the Specific Plan and related actions. The trial court denied the
petition.
On appeal, Citizens asserts five main inadequacies in the City’s EIR. According
to Citizens, the EIR does not adequately describe historic or archaeological resources;
fails to provide adequate information regarding the Project’s water quality impacts;
changes the Project description; improperly segments review of the cistern, “an
underground basin designed to retain the first flush drainage runoff from the Railyards
site and to attenuate peak flows from storm events”; and inadequately analyzes traffic
impacts and air quality impacts. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Railyards Specific Plan
In the heart of downtown Sacramento sit 244 acres ripe for development. The site
is north of the central business district, east of the Sacramento River and Interstate 5,
south of North B Street and the Richards Boulevard area, and west of the Alkali Flat
neighborhood.
In 1862, before construction of the Transcontinental Railroad began, the
Sacramento Board of Supervisors granted part of the site to the Central Pacific Railroad.
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The railroad used the land to construct and repair train cars, engines, and other
equipment. The repair shops in the railyards were used until 1995.
In 1994 the ROMA Design Group prepared, and the City adopted, an initial plan
for the railyards (ROMA Plan). The ROMA Plan preserved the Southern Pacific Depot
and the central shops area on the site. It included 2,800 residential units, 9.6 million
square feet of office space, and 500,000 square feet of retail and entertainment space.
In 2005 the developer filed an application with the City to develop a master plan
for the railyards. The mixed-use plan included housing and a transportation facility.
The following year, the City issued a notice of preparation of the draft EIR (DEIR)
for the Specific Plan. The plan proposed up to 11,085 mixed use, high density residential
units; up to 2,986,500 square feet of office space; up to 1,370,000 square feet of retail; up
to 1,000 hotel rooms; and up to 421,700 square feet for entertainment and cultural uses.
The Specific Plan established five land use designations: (1) residential/
commercial mixed use, (2) office/residential mixed use, (3) residential mixed use,
(4) transportation use, and (5) open space. To provide flexibility, the Specific Plan sets
forth the maximum densities for each use allowed within the first three mixed-use
designations. The subsequent DEIR included an “EIR Analysis Scenario” assuming a
level and mix of uses similar to the maximum development levels in the Specific Plan, on
which the DEIR impact analyses were based.
In 2007 the City released the DEIR for the Specific Plan. The DEIR also served
as program EIR. According to the DEIR, most of the impacts caused by the Project were
less than significant or could be mitigated to a less than significant level. However, the
generation of the ozone precursors NOx and ROG, temporary production of loud noise
during construction, permanent exposure of sensitive receptors to traffic and rail noise
levels, and traffic impacts could not be mitigated to a less than significant level. In
addition, traffic impacts were severe, slowing traffic flow and congesting freeways.
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Extensive commentary by various agencies and the public followed. The
California Regional Water Quality Control Board, Central Valley Region (Water Quality)
inquired as to the cleanup levels needed in groundwater and the vadose zone to protect
inhabitants of buildings on the site. Water Quality also questioned the potential adverse
impact on surface water from graded contaminated materials in storm water runoff.
Caltrans stated the Project would cause regional and interregional traffic impacts,
including impacts to Interstate 5 and local roadways. Caltrans, which views the
completion of the region’s light rail lines as essential to a complete regional
transportation system, was concerned that the Project’s anticipated generation of 140,000
to 149,000 vehicle trips per day would far exceed the capacity of a fully built out light
rail system. Caltrans noted the Project should provide fair share funding contributions to
improve both the freeways and light rail.
The Sacramento Metropolitan Air Quality Management District (Air Quality)
faulted the DEIR for suggesting the threshold of significance for toxic air contaminant
(TAC)-induced cancer cases was 446 per million. Air Quality noted the district protocol
does not provide an acceptable cancer risk level or regulatory threshold.
Approval of Specific Plan and Certification of EIR
The City scheduled and publicized a 45-day comment period on the DEIR.
During this period, the City held public hearings on the Specific Plan and the DEIR.
On September 11, 2007, the Sacramento City Design Commission, Preservation
Commission, Planning Commission, and Development Oversight Commission held a
joint meeting on the Specific Plan. A representative of the Sacramento Metropolitan
Chamber of Commerce stated the Project had to be approved by the end of the year to be
eligible for Proposition 1C housing bonds that were targeted for transit-friendly housing
projects.
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At a subsequent Sacramento City Council (City Council) public hearing on
December 4, 2007, the City Council learned that the residential phases of the Specific
Plan were not economically feasible.
On December 11, 2007, the City Council held a final public hearing on the
Specific Plan. The council adopted a resolution certifying the EIR (consisting of the
DEIR and the final EIR (FEIR)), passed an ordinance approving the “Development
Agreement for Sacramento Railyards Project” (Development Agreement), adopted the
Specific Plan, approved the Design Guidelines, and entered into a memorandum of
understanding with DTSC and S. Thomas Enterprises for remediation of toxic substances
at the railyards, along with other entitlements. The Redevelopment Agency of the City of
Sacramento adopted the Project EIR and its mitigation monitoring program as the
responsible agency and approved the “Sacramento Railyards Owner Participation
Agreement Business Terms,” which required the agency to provide an owner
participation agreement containing specific provisions.
Writ of Mandate
Citizens filed a petition for a writ of mandate. Following oral argument, the court
denied the petition. Citizens filed a timely notice of appeal.
DISCUSSION
Standard of Review
The Legislature intended CEQA to be interpreted to afford the fullest possible
protection to the environment within the reasonable scope of that statute. The EIR
provides the means of achieving this goal and may provide an environmental alarm bell,
alerting the public and their governmental representatives to environmental changes
before they become irreversible. In addition, the EIR’s purpose is to provide the public
with evidence that the responsible agency has analyzed and considered the ecological
impacts of its action. As a document of accountability, the EIR allows the public to know
the basis on which public officials approve or reject environmentally significant action.
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Armed with this knowledge, the public can respond to official acts that impact the
environment. (Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal. 3d 376, 390-392 (Laurel Heights).)
When considering a challenge to the legal adequacy of an EIR, we presume an
agency’s decision to certify the EIR is correct, placing the burden of establishing
otherwise on the party challenging the EIR. (Sierra Club v. City of Orange (2008)
163 Cal. App. 4th 523, 530 (Sierra Club).) We must determine whether the agency abused
its discretion by not proceeding in a manner required by law or making a decision not
supported by substantial evidence. We do not second-guess the correctness of the EIR’s
environmental conclusions, but we consider only its sufficiency as an informational
document. (Laurel Heights, supra, 47 Cal.3d at p. 392.) We will not set aside an
agency’s approval of an EIR on the ground that a different conclusion would have been
more reasonable or equally compelling. (Citizens of Goleta Valley v. Board of
Supervisors (1990) 52 Cal. 3d 553, 564.)
We review the agency’s decision, not that of the trial court. (In re Bay-Delta etc.
(2008) 43 Cal. 4th 1143, 1162.) When considering whether an agency followed the
correct procedures, we conduct a de novo review. However, when reviewing an agency’s
substantive factual conclusions, we afford the agency greater deference and employ the
substantial evidence test. In reviewing the record for substantial evidence we do not
reweigh the evidence. Instead, we focus on the adequacy, completeness, and good faith
effort at full disclosure. (Sierra Club, supra, 163 Cal.App.4th at p. 531; Association of
Irritated Residents v. County of Madera (2003) 107 Cal. App. 4th 1383, 1390.)
Description of Historic and Archaeological Resources
“An EIR must include a description of the physical environmental conditions in
the vicinity of the project, as they exist at the time the notice of preparation is
published . . . . The description of the environmental setting shall be no longer than is
necessary to an understanding of the significant effects of the proposed project and its
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alternatives. [¶] . . . [¶] . . . Special emphasis should be placed on environmental
resources that are rare or unique to that region and would be affected by the project.”
(CEQA Guidelines, § 15125, subds. (a), (c).)
Citizens challenges the EIR’s description of historic and archaeological resources.
According to Citizens, the EIR fails to identify the route of the Transcontinental Railroad,
provides inadequate information from which to establish the boundaries of the Central
Shops Historic District, and fails to identify archaeological resources and respond to
agency comments.
Transcontinental Railroad
The DEIR states: “The route over the Sierra Nevada originally began by
traversing the Railyards, passing in an arc to the north of where the roundhouse once
stood and where the Car Machine Shop is located. . . . [¶] . . . The records search
conducted for the EIR identified several recorded points of the route of the First
Transcontinental Railroad located east of the Railyards . . . , but no points in the
Railyards were previously recorded.” In addition, “Camille Lane is proposed to be
constructed in an arc-shaped footprint that generally follows the path of the First
Transcontinental Railroad route as it passed through the Railyards property in
Sacramento.”
Citizens argues this description of the route in general terms fails to satisfy CEQA.
According to Citizens, the EIR states that the location of the First Transcontinental
Railroad route is known but fails to identify it. Instead, the EIR leaves the location to be
determined at a later date as a mitigation measure. Citizens claims the deferral of
identification of the route allows the route to be paved over and lost in the development
process. Since the railroad’s location is necessary for informed decisionmaking as to
whether historic resources would be protected, this dearth of information violates CEQA.
We disagree.
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A description of a project’s environmental setting need not be exhaustive. (Cadiz
Land Co. v. Rail Cycle (2000) 83 Cal. App. 4th 74, 88-91.) Here, the DEIR provides an
adequate description of the path of the First Transcontinental Railroad and recognizes the
Project “could cause a substantial adverse change in the significance of the remnant
portion of . . . the First Transcontinental Railroad [route].” The FEIR noted the City has
adopted measures that require preservation in place of any remaining features of the First
Transcontinental Railroad.
The route has been identified adequately to allow the impact analysis required by
CEQA. In addition, the mitigation measures adopted protect any remaining features of
the Transcontinental Railroad route.
Central Shops Historic District
Citizens also objects to the FEIR’s description of the Central Shops Historic
District. Specifically, Citizens claims the FEIR does not include an adequate discussion
of the district’s features, fails to explain why the boundaries were drawn so tightly around
the buildings, and fails to identify archaeological resources. We disagree.
Citizens’s objection to the discussion of character-defining features springs from a
comment by the Department of Parks and Recreation, Office of Historic Preservation that
the EIR should include a clear description of all buildings, structures, and other “district
character defining features.”
The DEIR designated the boundaries of the district, described the resources in the
district, considered potential impacts, and proposed mitigation measures. The FEIR,
using criteria established by a National Register of Historic Places bulletin (Nat. Park
Service, Div. of Cultural Resources, Nat. Register Bull.: How to Complete the Nat.
Register Registration Form (1997) pp. 56-57, referred to in the FEIR as the NPS
Boundary Guidelines), outlined the factors for determining district boundaries.
Following public comment, a boundary revision expanding the district was incorporated
into the Specific Plan. More public comment ensued and the City considered the
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objections. The City acknowledged lingering disagreement over the district’s boundaries
but urged that the district boundaries be approved as proposed.
According to Citizens, the FEIR inadequately discussed the character-defining
features of the district.
Noting that the Office of Historic Preservation commented that there was no
documented justification for the drawing of the district’s boundaries, Citizens contends
the City’s response to this comment was inadequate.
The City set forth the criteria that it considered in drawing the district boundaries.
The City utilized the NPS Boundary Guidelines for historic districts, which provide that
the boundaries should “encompass the single area of land containing the significant
concentration of buildings, sites, structures, or objects making up the district. The
district’s significance and historic integrity should help determine the boundaries.” In
addition, the NPS Boundary Guidelines suggest consideration of the following factors:
visual barriers, visual changes in the character of the area, boundaries at a specific time in
history, and clearly differentiated patterns of historical development.
Citizens also claims the FEIR failed to adequately respond to the Office of
Historic Preservation’s comments that the district’s boundaries were too narrowly drawn.
In response, the FEIR stated the district’s boundaries were consistent with the NPS
Boundary Guidelines since the “Central Shops Historic District is a geographically
definable area which possesses a significant concentration, linkage, and continuity of
contributing resources that are united by past events, aesthetic features, and physical
development . . . .”
We disagree with Citizen’s characterizaton of the City’s response as “conclusory.”
The FEIR addresses the Office of Historic Preservation’s concerns sufficiently, revealing
the rationale behind the boundaries. The City considered and provided a thoughtful
response to public comments. Nothing more is required.
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Archaeological Resources
Citizens contends the FEIR did not properly respond to the comments of the
Office of Historic Preservation concerning archaeological resources and failed to identify
such resources. According to Citizens, the archaeological deposits in the Specific Plan
area, which include a wealth of information, will be impacted and potentially destroyed.
The Office of Historic Preservation stated the site’s archaeological deposits “have
the potential to provide unique and significant information on prehistoric through early
historic Native American cultures, the early Gold Rush period, the development of the
Transcontinental Railroad, the interrelationship of different ethnic communities in early
Sacramento, and the development of one of the largest industrial complexes on the West
Coast.” The office requested that identification and evaluation of archaeological deposits
take place prior to construction.
The DEIR described the existing setting and identified archaeologically sensitive
areas and the types of resources that might be found in the areas. The DEIR also
identified measures to mitigate potential impacts to archaeological resources. However,
the DEIR did not specifically identify archaeological sites because the area is covered
with buildings and fill. Given the physical constraints, predictions as to the location of
archaeological resources have been made through research into the archival record and
previous experience in identifying other archaeologically sensitive areas.
In response to the Office of Historic Preservation’s concerns, the FEIR provided
more information. In response to queries concerning mitigation measures, the City
rewrote one mitigation measure, explained the specifics of others, and provided a lengthy
description of the identification of historic resources.
The FEIR also set forth a mitigation measure applicable to the entire Project. A
monitoring and unanticipated discovery plan is required for each phase of the Project.
The plan will be prepared by a qualified archaeologist and must be approved by the
City’s preservation director prior to any earth-moving activities.
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Citizens objects to the adequacy of the mitigation measure, arguing the FEIR fails
to provide information on the timing of excavation strategy, techniques to be utilized, or
preconstruction identification of archaeological sites. During oral argument the trial
court discussed Citizens’s objections. The court noted: “There is no law, no case law
even in a program EIR situation, and even in a situation when the initial evidence is very
strong that there’s multiple archeological [sic] sites of one type or another, variety of
historical buildings that a thorough detailed specific assessment and identification of all
of the historical archeological [sic] resources be done at the outset with the identification
of specific mitigation measures as opposed to requiring it in a staged fashion consistent
with the kind of mitigation measures suggested in the EIR.” Both at oral argument before
the trial court and on appeal, Citizens concedes there is no authority to support its
argument concerning archaeological resources. Nonetheless, Citizens contends we
should construe CEQA to require an EIR to identify the archaeological and historic
resources prior to construction. However, CEQA imposes no such stringent requirement.
CEQA only requires an agency to respond to comments questioning its environmental
analysis to reflect a good faith and reasoned analysis. (CEQA Guidelines, §§ 15088,
subd. (c), 15204.)
Water Quality Impacts
Citizens argues the FEIR failed to provide adequate information about water
quality impacts caused by the Specific Plan; it did not adequately describe the soil and
groundwater contamination levels on the site, discuss the necessary cleanup levels,
analyze the toxic impact of storm water runoff from the site, and respond to proposed
reasonable mitigation measures and concerns expressed by Water Quality.
Under CEQA, an agency must respond to queries regarding significant
environmental issues with good faith, reasoned responses. (CEQA Guidelines, §§ 15088,
subd. (c), 15204.) The EIR addressed Water Quality’s concerns regarding “Hazards and
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Hazardous Substances” and “Hydrology and Water Quality” in detail. Citizens’s primary
focus appears to be with the adequacy of the City’s responses.
Soil and Groundwater Contamination
Volatile Organic Compounds
At the outset, Citizens faults the FEIR’s response to Water Quality’s comment that
“An evaluation also needs to be made for the potential for vapor intrusion from VOC
[volatile organic compound] pollution in the groundwater in the [Sacramento Station]
area. It is likely that the vapor intrusion pathway was not evaluated [in] 1994 to the
standards that are applied today.”
The DEIR stated that remediation in the Sacramento Station area had been mostly
completed and that a deed restriction was recorded requiring full remediation of the area
prior to redevelopment activities. According to the DEIR, contamination by VOC’s was
not widespread and occurred only in a few limited areas. In addition, the DEIR listed
remediation methods for potential VOC impacts. (AR 1605)
The FEIR, in addressing Water Quality’s concerns, explained that mitigation
measure No. 6.5-3(e) was revised to ensure that compliance with building design
requirements will prevent “the intrusion of subsurface vapors into buildings and enclosed
spaces” and “would apply to the existing Sacramento Station and Central Shops
buildings.” This approach, which ties mitigation measures to future building design
requirements, is compliant with CEQA. (See Laurel Heights, supra, 47 Cal.3d at p. 418.)
Citizens argues these responses are not adequate, since VOC’s may affect ambient
air as well as buildings. However, CEQA requires a good faith, reasoned response to
significant environmental issues, not an exhaustive analysis of each and every potential
issue. (CEQA Guidelines, §§ 15088, subd. (c), 15204.) The responses provided satisfy
CEQA.
Water Quality also commented that the EIR’s mitigation measures should consider
potential exposure to contaminated soils and inhalation of VOC’s from contaminated soil
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and groundwater in ambient and indoor air. Citizens argues the FEIR failed to
adequately respond to the risk of exposure in ambient air.
The FEIR discussed the risk to construction workers during earth-disturbing
construction activities. During soil remediation activities air is monitored under an air
monitoring plan, asbestos contingency plan, and a health and safety plan. These plans
provide guidelines for monitoring and controlling potential exposure to airborne
emissions of VOC’s and airborne dust containing metals. Monitoring stations are located
throughout the Specific Plan area.
In addition, the FEIR stated no development may take place until a particular
development site has been cleaned to DTSC target cleanup level standards. On-site air
quality monitoring is a “component of the construction worker health and safety plan
required under Mitigation Measure 6.5-1(b) and (c).”
Mitigation measure No. 6.5-3(e) requires buildings to be designed according to
code specifications to prevent the intrusion of subsurface vapors into buildings and
enclosed spaces. Before the City issues a grading permit or occupancy permit, the
applicant must demonstrate proper design features to the City’s satisfaction.
Citizens contends the FEIR’s response is inadequate, in part because the FEIR
does not cross-reference its response to Water Quality’s comment: “Therefore, the public
would have no means of learning where to look in the FEIR for the answer to Comment
6.9. CEQA does not require the public to search the FEIR to find an answer to a
comment. Failing to identify the response to a comment violates the public participation
policies of CEQA.”
The public should not have to sift through mountains of material to ferret out the
basic assumptions being used in environmental analysis. However, the responses to
Water Quality’s comments are clearly indicated—this is not a case of looking for a
needle in a haystack or burying pertinent information in obscure minutiae.
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Citizens also contends the FEIR’s response is directed at mitigating risks to only
construction workers, leaving the residents vulnerable to airborne contaminants.
However, the air monitoring mitigation measures are designed to protect occupants as
well as construction workers.
Runoff Impacts
Citizens says the EIR’s response on storm water runoff is inadequate because it
fails to provide information about the impact of runoff from contaminated soil on the site.
Water Quality opined that if construction was not limited to the dry season, impacts
should be mitigated by containing the runoff and either discharging it to a storm sewer
system or physically treating the runoff prior to land or surface water discharge.
The FEIR states contaminants at the site are managed by DTSC in consultation
with Water Quality as part of a separate remediation project. According to the FEIR, the
DEIR “does not need to further evaluate how existing contaminants in stormwater runoff
will be managed.” Storm water runoff from graded portions of the site will be controlled
in accordance with the City’s “Storm Water Quality Improvement Plan.” Construction
affecting more than one acre falls under the National Pollutant Discharge Elimination
System (NPDES) general construction permit. Collectively, these systems and entities
address contamination of surface water by storm water runoff.
Water Quality also proposed mitigation to combat the potential for contaminated
surface water to be released into groundwater. Water Quality proposed two measures:
Project design should minimize the amount of pervious surfaces; and runoff should be
retained in a lined basin for gradual discharge into the storm sewer system to delay surge
of peak flows. Citizens contends the EIR failed utterly to adequately respond to these
comments.
Mitigation measure No. 6.6-1 in the DEIR requires the landowner to minimize the
migration of contaminated runoff into receiving water bodies in compliance with NPDES
requirements, the City’s Storm Water Quality Improvement Plan, and the implementation
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of an erosion and sediment control plan. The FEIR states monitoring of groundwater
pollutant levels will be reported by the landowners to DTSC and Water Quality. If
necessary, the City will take corrective action and notify DTSC.
Citizens also claims the FEIR failed to respond to Water Quality’s comment that it
should include information about the cleanup levels of VOC’s in groundwater and the
vadose zone. However, the FEIR discussed groundwater quality and analyzed site
investigation and cleanup. The FEIR determined these concerns fell within the scope of
DTSC’s analysis of the separate remediation project and the information requested was
not a significant environmental issue.
We find the FEIR’s responses to Water Quality’s concerns both reasoned and
made in good faith.
Accuracy of the Project Description
Citizens argues the City impermissibly changed the Project description in the
transition from the DEIR to the FEIR and Development Agreement. According to
Citizens, the FEIR and Development Agreement allow more retail development than the
DEIR, and the FEIR eliminated all Project phasing that had been included in the DEIR.
These changes render the Project description “unstable.”
An accurate project description is necessary to determine the scope of
environmental review. Only an accurate view of the scope of a project can provide
decision makers and the public with the information necessary to balance the project’s
benefits against its environmental costs and to evaluate the efficacy of mitigation
measures. (County of Inyo v. City of Los Angeles (1977) 71 Cal. App. 3d 185, 199.)
Amount of Retail Development
Citizens argues that the amount of retail space approved in the Development
Agreement exceeded that outlined in the DEIR. The trial court rejected this argument,
finding the “type and maximum amounts of land that would be developed in the [Specific
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Plan] area do not shift even though, to respond to market demands, their extent and order
of development is flexible.”
Citizens argues the Development Agreement the City approved allows the
landowner to develop a total of 1,870,190 square feet of retail space, an amount greater
than the approximately 1.4 million square feet of retail space described in the public
review draft of the Specific Plan, released after the DEIR comment period closed. Since
the Development Agreement increased the amount of retail space, the DEIR did not
analyze the resulting increased traffic and other environmental impacts.
The Development Agreement grants the applicant a vested right to develop the
property in a manner substantially consistent with the “Development Plan” and “with the
Plans and Project Entitlements.” The Development Agreement describes the
Development Plan as “The Landowner’s plan for Development of the Property for the
Project pursuant to the Specific Plan and based on the EIR Analysis Scenario as modified
in terms of the schedule of development in the Initial Phase Development Plan by the
Phase 1 Development Plan.”
The DEIR states that the Specific Plan’s five land use designations allow for
“some combination of typical land uses, such as office, commercial, residential, and open
space. . . .
“In order to provide as much flexibility as possible, the Specific Plan sets
maximum densities for each use that would be allowed within the three mixed use land
use designations . . . . The Specific Plan does not, however, proscribe any particular mix
of uses within each category or block. Consequently, allowable development for each
use that is developed in the future will depend, in part, on the amount of development
capacity that is taken up by other uses.”
The uses allowed in the mixed land use designations of the Specific Plan are
permitted to vary in amount, subject to specified maximum densities and intensities by
parcel and specified maximum amounts within the entire Specific Plan area. The pace of
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development within these maximum densities may respond to market demands. This
flexibility to respond to market forces does not change the mixed-use character of the
Specific Plan development. No single category of land use can expand beyond the
specified maximums to the point where other land uses are excluded. In this respect we
find the Project description accurate.
Phasing Program
Citizens argues the Project description shifted or is inconsistent as to whether the
Specific Plan includes phasing. According to Citizens, the DEIR contained a four-phase
development schedule; however, the FEIR abandoned the phased approach.
The FEIR, reflecting the Specific Plan’s flexible approach to land use, states the
Project does not include any “per se” or “specific” phasing program. The FEIR states:
“Notwithstanding the lack of a project phasing program, because the EIR, especially the
traffic and related analyses, requires the use of specific horizon years for analytical
purposes, the Draft EIR presented a set of assumptions about an initial phase of the
project that were used in the analysis, as discussed in Chapter 3 of the Draft EIR.”
The trial court found the Specific Plan Development Agreement sets forth phasing
plans for the development of mixed uses, roads, parking, public facilities, and
infrastructure. The fact that the phasing plan might become outdated or be discarded in
response to market conditions did not change the Specific Plan’s Project description.
We agree. The phasing plans are based on current market conditions and are
subject to change based on changing market conditions. Such flexibility does not change
the Specific Plan’s Project description, which sets forth specified types and maximum
amounts of land use.
The Cistern
Citizens labels the FEIR’s analysis of the cistern, a component of the Specific
Plan’s storm water management system, improper segmentation in violation of CEQA.
According to Citizens, the City segmented the FEIR by failing to specify when the cistern
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would be built and failing to provide design details or an analysis of impacts stemming
from its construction.
To comply with CEQA, an agency must evaluate the whole of any project that
may result in either direct or reasonably foreseeable impacts on the environment. (CEQA
Guidelines, § 15378, subd. (a).) An agency may not segment parts of the project by
splitting it into pieces. Such segmentation can minimize consideration of a project’s
environmental consequences in violation of CEQA. (Burbank-Glendale-Pasadena
Airport Authority v. Hensler (1991) 233 Cal. App. 3d 577, 592.)
The cistern forms a part of the Specific Plan’s storm water facilities. Ultimately,
the Project foresees replacing the City’s existing drain system, which currently discharges
sewer and storm water into the sewer system, with a new gravity system of pipelines and
inlets that will drain into an underground storage facility, the cistern.
The DEIR provides a description of the cistern: “The cistern would serve as a
means of providing additional detention capacity and as a stormwater quality-
management facility. The cistern would be able to store approximately 27 acre-feet,
which would be sufficient to capture the ‘first flush’ of a storm event for water quality
purposes. . . . The cistern would have two compartments: the first would capture the
most polluted stormwater runoff from the first flush. Up to one-third of the entire water
quality volume (approximately five acre-feet) would be pumped at about five cubic feet
per second rate into the [existing sewer-storm water system]. The residual two-thirds of
the water quality volume (approximately 10 acre-feet) would discharge to the Sacramento
River over the course of 24 to 48 hours. . . . Drainage flows that exceed the first-flush
storage capacity would be collected in the second chamber and then pumped to the
Sacramento River.”
The FEIR, responding to comments, provided a further description of the cistern.
The Sacramento Department of Utilities reviewed and approved a technical memorandum
analyzing the Project’s storm drain system. Although the date of the cistern’s
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construction is not established, the FEIR requires that prior to construction “the proposed
project would be required to submit drainage and wastewater studies prior to the
submittal of improvement plans to demonstrate the drainage runoff and sewer generation
amounts that will contribute towards the maximum peak flow . . . .”
Citizens faults the FEIR’s description of the cistern for failing to provide “the
dimensions of the cistern, design details, and maintenance requirements for the Cistern.”
However, an EIR does not have to provide working drawings or blueprint-level detail of
a project’s components. Instead, the EIR must provide sufficient detail to understand the
project’s possible environmental impacts. (Dry Creek Citizens Coalition v. County of
Tulare (1999) 70 Cal. App. 4th 20, 27-28.)
In the alternative, Citizens contends the FEIR fails to analyze the environmental
impacts of constructing the cistern. However, in conjunction with construction of the
cistern, the City adopted mitigation measure Nos. 6.11-1 and 6.11-2. Measure No. 6.11-1
states that prior to completion of the cistern, the City shall limit development of the
Project so that the combined wastewater and storm water flows do not exceed the
Project’s peak flow sewage generation rate of 9.43 million gallons per day. Measure
No. 6.11-2 provides that the City shall limit development of the Project so that the
combined wastewater and storm water flows do not exceed a flow rate of five cubic feet
per second until the cistern and outfall for storm water flows are constructed, and/or
planned sewer-storm water system improvements for wastewater flows are implemented.
Mitigation measures to mitigate particulate emissions from the construction of the
cistern are provided. These measures include watering all soil to maintain moistness;
maintaining two feet of freeboard space on haul trucks; expeditious removal of mud or
dirt from adjacent public streets at the end of each workday; installation of wheel washers
for all exiting trucks, or washing off of all trucks and equipment leaving the site;
suspension of excavation and grading activity when winds exceed 20 miles per hour;
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periodic watering of exposed surfaces, including haul roads; and limiting vehicle speeds
on unpaved roads to 15 miles per hour.
Traffic Impacts
Citizens mounts a multipart attack on the adequacy of the FEIR’s analysis of
traffic impacts. Specifically, Citizens argues (1) the scope of the traffic study is too
limited, (2) the EIR is required to include a queuing analysis for downtown intersections,
(3) the City failed to consider mitigation measures for 44 intersections, (4) the FEIR does
not include mitigation measures for a freeway ramp, and (5) fee-based mitigation of an
interchange does not comply with CEQA.
Traffic Study Scope
Preliminarily, Citizens points to expert opinion in opposition to the Specific Plan
that the FEIR should analyze the intersection on the west side of the I Street Bridge in
West Sacramento. According to Citizens, traffic studies are generally required to analyze
all intersections that may attract 100 or more peak-hour trips based on their projected
impact. Plaintiff’s traffic engineer stated the Specific Plan would generate more than
100 peak-hour trips through an intersection just west of the I Street Bridge.
The DEIR states the traffic study area was defined in collaboration with the City’s
and Caltrans’s staff based on anticipated volume and distributional patterns of traffic and
known locations of operational difficulty. The two entities agreed upon a geographic
region to be studied that includes 64 intersections, 32 street segments, 11 freeway
segments, 11 freeway merges/diverges/weaves, and six freeway ramps.1
1 Citizens notes Caltrans requested analysis of traffic impacts for the entire freeway ring
surrounding the Sacramento central area. However, as the trial court noted, Citizens
failed to present any evidence in support of its request for additional traffic studies to
indicate that evaluation of additional locations would generate additional significant
information about traffic impacts or was otherwise necessary to a valid traffic study. In
addition, Caltrans, on whose comments Citizens relies, never pursued its general request
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As for Citizens’s claim that traffic studies typically are required to analyze all
intersections that may result in 100 additional peak-hour trips, the FEIR explained that
the City’s traffic engineers concluded the Specific Plan would result in no significant
impacts to “intersections west of intersection #48” (the intersection just west of the
I Street Bridge). This conclusion was based on the result of an assessment incorporating
traffic demand models developed by the Sacramento Area Council of Governments
(SACOG) and standard trip generation procedures, adjusted to reflect dense development
in an environment much like downtown Sacramento.
In addition, the FEIR pointed out traffic studies are not required to analyze all
intersections that may result in 100 peak-hour trips. The City’s standard regulation uses
the 100 peak-hour trip threshold as an overall measure to determine whether any traffic
study is required for a project, not whether a particular intersection must be studied.
Under CEQA, an EIR must identify and analyze potentially significant
environmental impacts. (CEQA Guidelines, § 15126, subd. (a).) We reject challenges to
the EIR’s scope of analysis if substantial evidence supports the agency’s decision and the
EIR is not clearly inadequate or unsupported. (Federation of Hillside & Canyon
Associations v. City of Los Angeles (2000) 83 Cal. App. 4th 1252, 1259.) In determining
the geographic reach of the traffic study, the City relied on expertise and advice from its
own staff and Caltrans’s staff as well as traffic demand models developed by SACOG.
We find substantial evidence supports the traffic study’s geographic delineation.2
for additional studies. Instead, Caltrans requested a modification of the FEIR’s measures
for mitigating impacts to freeways.
2 Citizens argues we do not apply the substantial evidence test, but instead determine the
issue as a matter of law de novo. We disagree. Citizens contends the FEIR violated
CEQA’s procedural provisions by omitting information and failing to provide a reasoned
response to expert comments. However, Citizens’s argument concerns the adequacy of
the traffic study scope and questions the City’s reasoning behind its analysis. These are
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Traffic Queues
Citizens contends the EIR should have analyzed the impact of excessive traffic
queueing at downtown intersections. The dearth of information on this subject deprived
decision makers of information about significant environmental impacts in violation of
CEQA.
Citizens’s traffic engineer postulated that an analysis of queuing was necessary to
understand the traffic impact of the Specific Plan, noting “there is a reasonable
expectation that queues from those intersections might stack back sufficiently to impact
upstream intersections, creating gridlock conditions.” In response, the FEIR stated the
City does not currently assess traffic queues except on freeway exit ramps, where
excessive queueing may impede freeway operations. In addition, “Excessive queuing on
city streets is expected to occur at intersections where level of service and delay estimates
are high. Excessive queues on city streets are not as critical as queues that affect
freeways because vehicles on city streets may not legally block upstream intersections.”
The EIR does provide analysis of traffic queues under several conditions, with and
without mitigation. The City analyzed the impacts using software designed to estimate
levels of service and potential delay. Utilizing this software, queues are reported for all
approaches to all intersections, and queues that cannot be accommodated within available
storage areas, turn bays, and between intersections are identified.
As the trial court noted, traffic queues were adequately studied using computer
modeling, and shifts in traffic patterns and route choices resulting from development
were taken into account by using a computer model from SACOG. In addition, the City
relies on the requirement that the Project optimize signal timing.
questions of the factual basis for the FEIR’s conclusions, not questions of omissions or
procedural failures.
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Mitigation Measures for 44 Intersections
Citizens faults the DEIR’s “summary dismissal” of mitigation for 44 intersections
within the Specific Plan area. According to Citizens, the DEIR based its conclusion that
mitigation would not be feasible on the DEIR’s determination that any mitigation would
conflict with the City’s pedestrian-friendly street design guidelines and “Smart Growth”
policies that discourage the addition of traffic lanes. Citizens disputes this conclusion.
The DEIR concluded there was no additional mitigation for the 44 intersections
other than the widening of roadways. The City found widening or restriping the
roadways, suggested by Citizens, was not feasible because these actions were contrary to
the City’s adopted “Smart Growth” principles and policies. These actions would also
conflict with the City’s objective of providing pedestrian-friendly streets. In addition,
widening streets would create secondary impacts to adjacent properties through
acquisition of additional rights-of-way for new lanes.
Citizens criticizes the City for applying these pedestrian-friendly guidelines “on a
blanket basis to supersede the General Plan traffic level-of-service criteria and standard
of significance adopted in the EIR.” However, the FEIR stated that the DEIR “does not
imply that the pedestrian-friendly street goal supersedes the City’s level-of-service
policy. It is one factor to be considered in determining whether to override a residual
significant level-of-service impact. Other considerations including impacts to adjacent
properties and financial viability were considered in determining whether additional
mitigation would be feasible.”
The City’s General Plan identifies level of service as a goal, not a mandatory
policy, providing that City “[w]ork[s] towards achieving an overall Level of Service C on
the City’s local and major street systems.” The City’s Smart Growth policies were part
of the formulation of the Specific Plan and are also General Plan policies. In addition,
the FEIR noted that good-faith attempts were made to mitigate level-of-service impacts
on arterial streets where feasible. It is within the City’s discretion to balance competing
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policy goals. (Families Unafraid to Uphold Rural etc. County v. Board of Supervisors
(1998) 62 Cal. App. 4th 1332, 1336-1338.)
Citizens does not contest that in determining whether a mitigation measure is
feasible “the City may consider economic, legal, social, and technological factors and to
an extent desirability.” However, Citizens argues the City must identify the mitigation
measure for each and every one of the 44 intersections “and then determine on an
intersection-by-intersection basis whether the mitigation is infeasible based on the
conditions at the intersection and application of the City’s pedestrian-friendly guidelines
as well as other environmental factors.”
Citizens concedes no authority supports its argument yet urges us to adopt such a
requirement. We decline. The City may reject mitigation measures if it finds them to be
not feasible on the basis of specific economic, legal, social, technological, or other
considerations. (CEQA Guidelines, § 15091; Pub. Resources Code, § 21080, subd. (a).)
Such a determination is based on a reasonable balancing of the relevant factors. (CEQA
Guidelines, § 15364.) CEQA does not mandate a stringent, exhaustive consideration of
each and every environmental impact to be analyzed, but a general balancing of the
factors in support of or in opposition to mitigation.
Here, the City balanced the competing policy considerations in determining the
feasibility of mitigation measures on intersections within the Specific Plan area.
Substantial evidence supports the FEIR’s conclusion that widening or restriping
roadways was not feasible.
Interstate 5 Off-Ramp
According to Citizens, the FEIR provides no mitigation for the initial phase of the
Specific Plan’s impact on the Richards Boulevard/Interstate 5 off-ramp in the southbound
direction. Since Caltrans stated the Project would cause traffic queues that might create a
safety hazard, the failure to provide such mitigation violates CEQA.
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In commenting on the DEIR, Caltrans requested that the City expand its analysis
of freeway impacts. In response, the City consulted with Caltrans to address
improvements to the state highway system and modified the mitigation measures set forth
in the DEIR to reduce potential impacts. Substantial evidence supports the City’s
assertion that it identified all feasible mitigation measures for freeway ramps, including
the off-ramp in question.
Fee-Based Mitigation
Citizens disputes that the fee-based mitigation proposed by the City for the
Richards Boulevard interchange satisfies CEQA. The FEIR proposes replacing the
existing Richards Boulevard interchange with a split diamond interchange. Citizens
contends the fee-based mitigation is not part of an enforceable plan.
Fair-share payments may adequately mitigate impacts if they are “part of a
reasonable plan of actual mitigation that the relevant agency commits itself to
implementing.” (Anderson First Coalition v. City of Anderson (2005) 130 Cal. App. 4th
1173, 1188.) In Anderson First, an EIR proposed highway improvements to alleviate
traffic impacts and concluded the impacts could be mitigated to a less than significant
level. The appellate court held that the EIR had to include an identification of the
required improvement; an estimate of the cost of the required improvement; sufficient
information to determine how much the project would pay toward the improvement; and
a requirement that fees be part of a reasonable, enforceable plan sufficiently tied to the
mitigation. (Id. at pp. 1187-1190.)
Citizens contends the DEIR fails to establish the fees are part of a reasonable,
enforceable mitigation plan and when mitigation will take place. However, the fair share
mitigation fees outlined in the EIR satisfy these two requirements. The City adopted
mitigation measures that identify traffic improvements to reduce specific traffic impacts
and tie the fee payments to the improvements. The City also adopted a Public Facilities
Financing Plan (Financing Plan), which includes the costs of the improvements. In
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addition, the method for determining the fair share payments is set forth in the Financing
Plan and is part of an enforceable program.
Citizens argues the EIR’s reliance on a future nexus study connotes a failure to
identify the amount of the Specific Plan’s fair-share contribution. In fact, Citizens
claims, there is no evidence that the proposed fees are anything more than a “proposal.”
The DEIR estimated the costs of roadway improvements needed to mitigate the
Specific Plan’s significant traffic impacts. In calculating Project contributions, the DEIR
states, “[t]he applicant’s fair share contribution shall be calculated pro rata, on a per unit
and/or square foot basis, based upon the land uses identified in development applications
submitted to the City.” Under the Financing Plan, a nexus study will be prepared to
determine how public facility costs are allocated among the new development benefiting
from the facility and infrastructure improvements.
The fair share mitigation measures are enforceable through the Financing Plan,
tentative map conditions of approval, and the Development Agreement. In addition,
building permits are conditioned on payment of the fair-share contribution to the City.
The FEIR identified development of a split-diamond interchange at Interstate 5
and Richards Boulevard as mitigation. The Financing Plan includes allocation for this
improvement by 2030. The Financing Plan estimates $69,681,000 for the building cost
for freeway improvements, including “Initial phase estimate of improvement costs based
on the I-5 Richards Interchange Ultimate Split Diamond cost estimates.” The FEIR states
the Specific Plan is “required to provide fair-share funding for these interchange
improvements through payment of development impact fees as specified in the Financing
Plan.” The FEIR’s determination that the fair-share plan will mitigate the impact on the
Richards Boulevard interchange is supported by substantial evidence and satisfies CEQA.
Air Quality Impacts
Citizens argues the EIR fails to adequately analyze PM10 and PM2.5 emissions
from Project construction and mitigate them to less than significant levels. According to
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Citizens, the City imposed no limitation on the amount of land that could be graded
within the railyards at any one time, and therefore the FEIR’s proposed mitigation
measures were inadequate.
The DEIR analyzed potential impacts on air quality from fugitive dust particulate
matter emissions during the 20-year anticipated life of the Specific Plan. The DEIR
found that compliance with seven proposed mitigation measures would decrease fugitive
dust (PM10) impacts to a less than significant level. In reaching this conclusion, the
DEIR followed approaches set forth in Air Quality’s “Guide to Air Quality Assessment
in Sacramento County.” Air Quality supported approval of the Specific Plan, noting all
issues identified had been addressed.
The trial court found the City’s air quality evaluation complied with CEQA. The
court noted the DEIR set forth seven mitigation measures to reduce particulate matter
based on the PM10 threshold of significance recommended by Air Quality. In addition,
the court pointed out the FEIR explained that construction would be occurring on
subareas much smaller than the total Project area at any given time, and the construction
particulate control measures were appropriate to the intensity and area of activity for each
Project phase described in the FEIR.
However, Citizens argues that Air Quality’s screening guidelines are not sufficient
and the City should have conducted a more detailed analysis to ensure the Project’s
impacts would be mitigated. According to Citizens, Air Quality’s mitigation measures
adopted by the FEIR are designated as “level one” mitigation. The City improperly
adopted the mitigation measure, since level one mitigation applies only to an actively
disturbed area of between 5.1 and 8 acres, and the City failed to impose an 8-acre limit on
grading.
The FEIR states that Specific Plan development will occur in several phases over
various subareas of the Project over a span of about 20 years. At any given point in time,
construction activity will be occurring on portions of the Project site that are much
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smaller than the entire site. The City incorporated Air Quality’s “Rule 403” to ensure
that particulate emissions during grading and construction will be less than significant
using conservative assumptions regarding the number of acres to be graded at any one
time.
Substantial evidence supports the trial court’s conclusion that mitigation measures
derived from Air Quality, coupled with conservative assumptions about the number of
acres to be graded at one time, adequately address the impact of emissions from Project
construction.
Citizens also contends the City used “an incorrect standard of significance” for
TAC’s. CEQA defines “threshold of significance”: “Each public agency is encouraged
to develop and publish thresholds of significance that the agency uses in the
determination of the significance of environmental effects. A threshold of significance is
an identifiable quantitative, qualitative or performance level of a particular environmental
effect, non-compliance with which means the effect will normally be determined to be
significant by the agency and compliance with which means the effect normally will be
determined to be less than significant.” (CEQA Guidelines, § 15064.7, subd. (a).)
The lead agency determines whether an environmental impact is significant and
also determines the corresponding threshold of significance. In exercising this discretion,
the agency may rely on threshold of significance data developed by experts, and may also
rely on a regulatory agency. (Napa Citizens for Honest Government v. Napa County Bd.
of Supervisors (2010) 91 Cal. App. 4th 342, 362-363; California Native Plant Society v.
City of Rancho Cordova (2009) 172 Cal. App. 4th 603, 625-626.)
Thresholds of significance do not automatically determine whether an
environmental impact will be significant. Instead, they serve as a marker to determine
whether a particular impact will normally be determined to be significant or less than
significant. (Protect the Historic Amador Waterways v. Amador Water Agency (2004)
116 Cal. App. 4th 1099, 1108-1109.)
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Citizens argues its expert presented evidence that use of a 100-in-one-million
standard would create excessive cancer risk. According to Citizens, typically cancer risks
from construction equipment are compared to the significance threshold of 10 in one
million.
Air Quality is the agency responsible for TAC emissions, which contain diesel
particulate matter (DPM), in the Project area. However, Air Quality does not have a
threshold of significance to recommend on TAC emissions.
The DEIR recognized that Project construction and operations would cause TAC
emissions. To evaluate the potential health impacts from exposure to DPM, the primary
TAC of concern, two health risk assessments were prepared by the ENVIRON
Corporation.
One of the health risk assessments evaluated the potential cancer risk to the
community surrounding the Project area from chemicals that may become airborne
during construction on contaminated soil and from DPM emissions from construction
equipment. Using computer modeling, the assessment estimated emissions from
construction activities on 23 parcels within the Project area during four phases of Specific
Plan development. The assessment also utilized guidance from both the state and federal
Environmental Protection Agencies to estimate cancer and noncancer hazard risks from
emissions and applied the National Contingency Plan (NCP) target cancer risk levels, a
lifetime incremental cancer risk not in excess of one in a million to 100 in a million. The
assessment determined that the health risk from soil and DPM emissions during
construction activities fell below the NCP target risk levels for airborne soil chemicals
and was slightly higher than the 10 in a million for DPM emissions, a risk level that
would likely be reduced to less than 10 in a million by mitigation measures such as diesel
particulate filters, reduced idling, and newer construction equipment. The FEIR
determined a cancer risk level from DPM slightly higher than 100 in a million, a figure
that would likely be reduced by 45 percent as a result of implementing an air quality
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management plan for Project construction to a level within the NCP target risk range of
one in a million to 100 in a million.
Air Quality, despite some earlier questions, ultimately accepted the TAC impact
analysis. It reasoned it was sufficient for a program level analysis based on limited
information about actual projects. Air Quality concurred in the methodology used in the
FEIR to assess TAC impacts but noted that the methodology had evolved and future
projects may be required to use a different or modified analytical approach.
Citizens, relying on its expert’s opinion, contends the qualitative standard used by
the DEIR to assess the significance of cancer risk posed by TAC’s from mobile sources
should have used the standard of significance for cancer risk posed by TAC’s from
stationary sources. The FEIR responded to this objection by explaining the technical
difficulties involved in setting a quantitative standard for cancer risk from mobile
emissions. Instead, the EIR employed a qualitative standard derived by quantitative
analysis based on Air Quality’s protocol.
Citizens also claims that, based on its expert’s opinion, the assessment of health
risk to the surrounding community from construction TAC’s improperly applied the NCP
target levels of 100 cases per million. However, we agree with the trial court’s finding
that “the differing opinion of petitioners’ expert on the proper application of the NCP
target rate in the assessment [citation] does not clearly establish that the EIR’s application
of the target rate was wrong. [Citation.] And the update in the assessment did not
change the standard of significance in the Final EIR: the DPM data changed but the NCP
target range remained the same.”
The health risk assessment states: “The National Contingency Plan (NCP)
(40 Code of Federal Regulations [CFR] §300) is commonly cited as the basis for target
risk and hazard levels. According to the NCP, lifetime incremental cancer risks posed by
a site should not exceed one in a million (1 x 10-6) to one hundred in a million (1 x 10-4),
and noncarcinogenic chemicals should not be present at levels expected to cause adverse
31
health effects (i.e., HI greater than one).” The health risk assessment also notes that other
agencies have reached different conclusions regarding the toxicity of DPM. The
assessment concludes: “Consistent with the findings of CalEPA, other health agencies
and scientific bodies have concluded that diesel exhaust is a probable human carcinogen.
However, with the exception of the World Health Organization (WHO), these agencies
have concluded that there is insufficient information from which to determine a
quantitative dose-response relationship and thus to derive a unit risk factor.” The City
did not abuse its discretion in utilizing a standard based on Air Quality’s protocol.
DISPOSITION
The judgment is affirmed. The City shall recover costs on appeal.
RAYE , P. J.
We concur:
NICHOLSON , J.
HULL , J.
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