January 27, 2020 SENT VIA EMAIL ([email protected]) Thomas Last Community Development Director City of Grass Valley 125 E. Main Street Grass Valley, CA 95945 RE: Dorsey Marketplace Final Environmental Impact Report SCH # 2016022053 Dear Mr. Last: These comments on the Final Environmental Impact Report (“FEIR”) for the Dorsey Marketplace project (“Project”) are submitted on behalf of Protect CEQA and its members. Formed in 2014, Protect CEQA is a statewide coalition of environmentalists, labor members, and concerned residents committed to protecting the California Environmental Quality Act, open space preservation, and promoting smart growth development. As we previously advised, “The new information and clarifications required to respond to the DEIR’s flaws as identified in this comment letter will require recirculation of the DEIR for a new round of public comment.” As described more fully below, the FEIR fails to confront the numerous environmental and human health impacts identified in our earlier letter in a transparent effort to simply avoid recirculation of the Draft EIR. 1. Human Health Implications from Automobile Air Emissions are Not Addressed We previously explained, “Despite being located literally next to state route 20/49, the DEIR does not address this issue at all. The DEIR does not even mention state route 20/49 as an emission source for future Project occupants, much less quantify those TAC emissions or correlate those TAC emissions to actual health risks, if feasible, as required by Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 522 (Sierra Club).” In response, the FEIR states, “[T]he traffic volumes on SR 20/49 do not warrant preparation of a health risk assessment . As shown in Draft EIR Table 9-5, SR 20/49 in the project area carries approximately 29,350 vehicles.” (FEIR, p. 2-292.) This statement is false; and the City knows it is false because on page 2-301 the FEIR states, “Table 9-5 states that the average daily traffic in 2016 was 29,350 when Caltrans identifies it as 41,000 . the comment is correct that the more approximate volume to use for this analysis is the volume given for State Thomas Last, Community Development Director City of Grass Valley January 27, 2020 Page 2 of 12 Route 20, which shows 41,000.” The City’s misstatement of traffic volumes in order to avoid analyzing health impacts is untenable.1 Thus, 41,000 AADT is much closer to the 50,000 AADT “threshold” than 29,350 as the FEIR incorrectly reports. That said, 50,000 AADT is no longer a meaningful threshold that can be used, as the City attempts, to avoid analyzing the issue. As the City knows, the CARB Land Use Handbook (“Handbook”) was prepared back in 2005; much more current and refined analyses are readily available such as BAAQMD’s “CEQA GUIDELINES Risk and Hazard Screening Analysis Process Flow Chart,” attached as Exhibit 1. Since the Northern Sierra Air Quality Management District (“NSAQMD”) does not address this issue, the City has a duty under CEQA to inform itself about available methodologies for assessing an impact. (Berkeley Keep Jets Over the Bay Comm. v. Board of Port Comm’rs (2001) 91 Cal.App.4th 1344, 1367.) Under BAAQMD guidance, the City must perform at least a screening level assessment when proposing sensitive receptors within 500 feet of roadways with a minimum volume of 10,000 AADT. Exhibit 1. Here, the FEIR acknowledges that “the nearest residences would be approximately 170 feet from the travel lanes” (approximately 1/3 the buffer distance) from a freeway with a 41,000 AADT (more than four times the minimum roadway volume). The City also attempts to justify its refusal to perform any analysis by citing certain mitigation measures such as vegetation or a sound wall that it generally claims might be able to reduce impacts. (FEIR, p. 2-292.) However, the FEIR provides no meaningful analysis of the effectiveness of such measures, nor does it identify these “strategies” as mitigation measures for an acknowledged potentially significant impact to human health. Finally, even if FEIR properly disclosed these “strategies” as mitigation measures and meaningfully discussed their effectiveness, the EIR would nonetheless remain defective without adequately analyzing the extent of the Project’s impact on human health prior to mitigation. (Sierra Club, supra, 6 Cal.5th at 522, citing Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 514.) In short, the FEIR fails to adequately justify the City’s refusal to ignore human health impacts to Project occupants resulting from Highway 20/49 TAC emissions that would be exacerbated by the Project. Our prior letter also explained that DPM was not the only TAC requiring analysis, stating in relevant part, “Beyond diesel exhaust, UFPs are another air quality impact not discussed in the DEIR. UFPs, particles with diameters less than 0.1 micrometers, are comprised mostly of metals that are known constituents of brake pads and drums, as well as additive in motor oil. The 1 This section only addresses automobile air emissions because the FEIR failed to even provide a response to prior comments on construction TAC emissions. (See FEIR, p. 2-294.) The FEIR merely added additional text to “restate” the DEIR’s conclusions. Further, the FEIR response to comment does not address the BAAQMD guidelines included in the prior letter, which were included to illustrate an appropriate, updated approach to evaluating TAC emissions that would apply to any air district. Thomas Last, Community Development Director City of Grass Valley January 27, 2020 Page 3 of 12 DEIR does not ever mention UFPs as a potentially significant air quality impact and therefore fails as an informational document.” In an attempt to dismiss this serious concern, the FEIR states, “[T]he comment recognizes that diesel engines are responsible for the majority of UFP associated with mobile emissions.” (FEIR, p. 2-293.) This statement is false. The scientific study attached as Exhibit 2 to our prior comment letter explains, “Very fine and ultrafine iron, nickel, copper, and zinc were identified as vehicular, with the most probable sources being brake drums and pads and the lubrication oil additive zinc thiophosphate.” (Emphasis added.) The scientific study attached as Exhibit 6 to our earlier comment letter explains that “a major source [of UFP] is known to be ultra-fine metals from abrasion of brake pads and drums (Cahill et al., 2014).” (Emphasis added.) The FEIR provides no evidence that diesel engines are the primary source of UFP. In fact, the scientific literature plainly states that DPM and UFP are different airborne contaminants. The City’s attempt to manufacture a demonstrably false reason to avoid addressing UFP emissions and resulting human health impacts is without merit.2 It is also noted that the City attempts to once again rely on knowingly false traffic volume data to excuse the DEIR’s failure to address UFP emissions. Similarly, the City’s attempt to rely on the Handbook is without merit since the Handbook, written in 2005, includes no discussion whatsoever of UFP emissions. The scientific community’s understanding of the human health impacts from UFP emissions have developed following publication of the Handbook. Finally, the City relies on CARB’s Technical Advisory Strategies to Reduce Air Pollution Exposure (“CARB Technical Advisory”) to claim, “[T]he distance between the proposed residences and the travel lane of the highway would ensure UFP concentrations near the residence would be substantially less than along the highway.” (FEIR, p. 2-293.) It is telling that the FEIR does not cite any specific distances from the CARB report. FEIR acknowledges that the Project would locate residential units between 170 and 800 feet away from the travel lanes. (FEIR, p. 2-292.) The CARB Technical Advisory explains that UFP emissions travel much longer distances: 2 Doubling down on its demonstrably false premise that heavy trucks are the source of UFP emissions, the FEIR attempts to distinguish the scientific study contained in Exhibit 1 to our prior comment letter by stating, “Exhibit 1 also discusses specific health concerns for students at Arden Middle School, noting that the school is downwind of roads that carry 65,000 vehicles per day, with 1.5% of those being heavy-trucks on Watt Avenue.” It is difficult to understand how this is helps the City’s position since it acknowledges that the percentage of trucks on Highway 20/49 is approximately 4 percent. Simple math reveals that 4 percent of 41,000 AADT is 1,640 trucks, which is more than 975 trucks (1.5% of 65,000). Thus, even if the City’s false theory were correct, UFP emissions along this segment of Highway 20/40 would be greater than facing the Arden Middle School students in the Exhibit 1 study. Thomas Last, Community Development Director City of Grass Valley January 27, 2020 Page 4 of 12 In a study measuring near-roadway ultrafine particulate matter (UFP) size distributions and concentrations along the Interstate 405 freeway, Zhu et al. [25] found that UFP concentrations decreased with downwind distance from the freeway at night, but at a slower rate than is typically observed during the day. This finding sparked additional studies to characterize night-time and pre-sunrise pollution concentrations. These studies were motivated by concerns that near roadway pollution exposure had been previously underestimated and that many people living more than 300 meters (984 feet) from freeways were being adversely impacted by poor air quality at night and in the early morning. Like Zhu et al., these studies found both seasonal and diurnal differences in the rate of decline for pollution concentrations with increasing distance from pollution sources.