3 - The Bowery_PUBLIC COMMENT (SAFER)

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The Bowery Mixed-Use Project CEQA Comment May 11, 2020 Page 16 FEIR, 2-7. The City’s response does not clearly or adequately reply to DTSC’s comments. DTSC says that the DEIR incorrectly states that the Project site is not on the Cortese List, when in fact it is. DTSC therefore requested that the EIR be corrected to inform the public and decisionmakers of the listing and the potential hazards relating to the site. Rather than replying by fixing the EIR, or providing some evidence that the site is not on the Cortese List, the City neither admits that the Project is on the Cortese List nor denies that it is. Instead, the City tries to obfuscate the issue by noting that a previous remediation resulted in a Case Closure status as of August 2010. This is particularly troubling because the EIR admits that DTSC is an expert on this subject, noting that DTSC “is responsible for a portion of the information contained in the Cortese List.” DEIR, 5.7-4 If the City disagrees with DTSC’s conclusion that the Project is on the Cortese List, it must say so, accompanied by a reasoned explanation. “[W]here comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored.” Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal. 5th 918, 940. The FEIR does not include a good faith, reasoned explanation as to why it did not revise the EIR to correct the false statement that the Project site is not on the Cortese List. This was an abuse of discretion. The City also failed to respond at all to DTSC’s comments relating to the inadequacy of the EIR’s analysis of “whether the Project Site was remediated to meet the residential land use cleanup goals.” FEIR, 2-3. The FEIR’s response to DTSC’s comments never even mentions residential land use clean up goals, or provides evidence that the site has been remediated to such levels. 3. The EIR does not Adequately Mitigate Hazards and Hazardous Waste Impacts. Mitigation Measure HAZ-1 does not fully mitigate the Project’s hazardous materials impacts. As environmental consulting firm SWAPE explains in its expert comments: Mitigation Measure HAZ-1 requires a soil management plan to be used during construction to guide the removal and disposal of the areas of TPH-impacted soil. On its own, a soil management plan is insufficient. To ensure the adequacy and the health- protectiveness of the cleanup, engagement of the DTSC is necessary. DTSC engagement should be formalized through a voluntary cleanup agreement and the cleanup of the Project site should follow an assessment and cleanup program directed by DTSC. SWAPE, p. 1. SWAPE explains that “a soil management plan is not an instrument that is used by DTSC