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MainPlace Transformation Project City Council Agenda Item 75D June 4, 2019 Page 6 The "fair argument" standard is virtually the opposite of the typical deferential standard accorded to agencies. As a leading CEQA treatise explains: This `fair argument' standard is very different from the standard normally followed by public agencies in making administrative determinations. Ordinarily, public agencies weigh the evidence in the record before them and reach a decision based on a preponderance of the evidence. [Citations]. The fair argument standard, by contrast, prevents the lead agency from weighing competing evidence to determine who has a better argument concerning the likelihood or extent of a potential environmental impact. The lead agency's decision is thus largely legal rather than factual; it does not resolve conflicts in the evidence but determines only whether substantial evidence exists in the record to support the prescribed fair argument. Kostka & Zishcke, Practice Under CEQA, §6.29, pp. 273-274. The Courts have explained that "it is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency's determination. Review is de novo, with a preference for resolving doubts in favor of environmental review." Pocket Protectors, 124 Cal.AppAth at 928. As a matter of law, "substantial evidence includes ... expert opinion." Pub.Res.Code § 21080(e)(1); 14 Cal. Code Regs. § 15064(f)(5). CEQA Guidelines demand that where experts have presented conflicting evidence on the extent of the environmental effects of a project, the agency must consider the environmental effects to be significant and prepare an EIR. 14 Cal. Code Regs. § 15064(f)(5); Pub. Res. Code § 21080(e)(1); Pocket Protectors, 124 Cal.AppAth at 935. A. There is Substantial Evidence Supporting a Fair Argument that the Project Will Result in a Significant Air Quality Impact. Certified Industrial Hygienist, Francis "Bud" Offermann, PE, CIH, has conducted a review of the proposed Project and relevant documents regarding the Project's indoor air emissions. Indoor Environmental Engineering Comments (May 31, 2019) (Exhibit A). Mr. Offerman concludes that it is likely that the Project will expose future residents of the Project's residential units to significant impacts related to indoor air quality, and in particular, emissions of the cancer -causing chemical formaldehyde. Mr. Offermann is one of the world's leading experts on indoor air quality and has published extensively on the topic. See attached CV. Mr. Offermann explains that many composite wood products typically used in modern home construction contain formaldehyde -based glues which off -gas formaldehyde over a very long time period. He states, "The primary source of formaldehyde indoors is composite wood products manufactured with urea -formaldehyde resins, such as plywood, medium density fiberboard, and particle board. These materials are commonly used in building construction for flooring, cabinetry, baseboards, window shades, interior doors, and window and door trims." Offermann Comment, pp. 2-3.