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HomeMy WebLinkAbout5 - PUBLIC COMMENT_DAVIS (SAFER) VIA E-MAIL March 30, 2020 Commissioner Felix Rivera Commissioner Mark McLoughlin Commissioner Eric M. Alderete Commissioner Kenneth Nguyen Commissioner David Benavides Commissioner Cynthia Conteras-Leo Commissioner Angie Cano Planning Commission City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 eComments@santa-ana.org Vince C. Fregoso, Planning Manager City of Santa Ana Planning and Building Agency 20 Civic Center Plaza Santa Ana, CA 92701 Vfregoso@santa-ana.org Re: Public Comment on Addendum One to the One Broadway Plaza Project EIR Honorable Members of the Planning Commission: I am writing on behalf of the Supporters Alliance for Environmental Responsibility (“SAFER”), a California non-profit organization with members living in and around the City of Santa Ana, regarding the proposed One Broadway Plaza, including the proposed Addendum to the 2004 One Broadway Plaza Project EIR, located in Santa Ana, California (“Project”). SAFER is concerned that the City is proposing to approve the Project based on an Addendum prepared based on the assertion that the Project is consistent with the One Broadway Plaza EIR approved by the City in 2004 (“2004 EIR”). As discussed below, because this Proejct was not analyzed in the 2004 EIR, and there is substantial evidence that the Project will have significant impacts not analyzed in the 2004 EIR, a supplemental EIR must be prepared for the Project. Approval of the Project based on an addendum violates the California Environmental Quality Act (“CEQA”), Pub. Res. Code section 21000, et seq. PROJECT DESCRIPTION The 2004 One Broadway Plaza Project seeks to develop a 37-story mixed-use building in Santa Ana, California. The Project proposes to revise the existing entitlements of the One Broadway Plaza Project to allow conversion of a portion of the permitted office square footage SAFER Comments on Addendum to One Broadway Plaza EIR March 30, 2020 Page 2 of 11 to residential use. Addendum, p. 1. Specifically, the Project would incorporate residential uses within up to 19 floors that were previously designated for office uses under the 2004 Project. The Project would provide up to 402 apartment units for a total of approximately 254,472 square feet of residential space. Id. The residential units would include penthouse suites, standard and executive residential units, and affordable units. Id. The non-residential component of the Project would include office, restaurants, commercial uses, a wellness fitness center with spa, and a parking structure. LEGAL STANDARD CEQA contains a strong presumption in favor of requiring a lead agency to prepare an EIR. This presumption is reflected in the fair argument standard. Under that standard, a lead agency must prepare an EIR whenever substantial evidence in the whole record before the agency supports a fair argument that a project may have a significant effect on the environment. Pub. Res. Code § 21082.2; Laurel Heights Improvement Ass’n v. Regents of the University of California (1993) (“Laurel Heights II”) 6 Cal. 4th 1112, 1123; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 82; Quail Botanical Gardens v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602. The City relies on CEQA Guidelines § 15162 and 15164 to claim that no CEQA review is required. The court of appeal recently stated, “The addendum is the other side of the coin from the supplement to an EIR. This section provides an interpretation with a label and an explanation of the kind of document that does not need additional public review.” “It must be remembered that an addendum is prepared where ‘(2) Only minor technical changes or additions are necessary to make the EIR under consideration adequate under CEQA; and (3) The changes to the EIR made by the addendum do not raise important new issues about the significant effects on the environment.’ ([Guideline] 15164, subd. (a).)” Save Our Heritage Org. v. City of San Diego, 28 Cal. App. 5th 656, 664–65 (2018) (emphasis added). Section 15164(a) of the State CEQA Guidelines states that “the lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary, but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred.” Pursuant to Section 15162(a) of the State CEQA Guidelines, a subsequent EIR or Negative Declaration is only required when: (1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was SAFER Comments on Addendum to One Broadway Plaza EIR March 30, 2020 Page 3 of 11 certified as complete or the negative declaration was adopted, shows any of the following: (A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration; (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR; (C) Mitigation measures or alternatives previously found not to be feasible would, in fact, be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. DISCUSSION I. THE 2004 EIR HAS NO INFORMATIONAL VALUE TO THE RESIDENTIAL ASPECT OF THE PROJECT. As the California Supreme Court explained in San Mateo Gardens, subsequent CEQA review provisions “can apply only if the project has been subject to initial review; they can have no application if the agency has proposed a new project that has not previously been subject to review.” Friends of College of San Mateo Gardens v. San Mateo (2016) 1 Cal.5th 937, 950 (“San Mateo Gardens”). As the Supreme Court explains, “[a] decision to proceed under CEQA‘s subsequent review provisions must thus necessarily rest on a determination — whether implicit or explicit — that the original environmental document retains some informational value.” Id. at 951 (emph. added). Only if the original environmental document retains some informational value despite the proposed changes, changes in circumstances or new substantial information does the agency proceed to decide under CEQA’s subsequent review provisions whether such changes or substantial new information will require major revisions to the original environmental document because of the involvement of new, previously unconsidered significant environmental effects. 1 Cal.5th at 952. Reviewing the 2004 EIR, the City cannot reasonably claim that it addresses, i.e., provides some informational value regarding the potential environmental impacts of the 402 residential units proposed as part of the Project. The Project includes 402 units of residential housing that have never been analyzed in any previous CEQA document. A thorough review of the 2004 EIR confirms that no mention is made of any residential aspect of the project. Instead, the 2004 EIR evaluated the environmental impacts of an office tower, intended to be a landmark office project along Broadway at the center of the Midtown Specific Plan. Since the 2004 Project contained no residential element, none of the 2004 EIR’s discussion provides any information that would assist the City in determining the potential environmental impacts of the proposed 402 residential units. The project considered in the 2004 EIR simply has no relevance to the environmental impact of the construction and occupancy of 402 residential housing units. SAFER Comments on Addendum to One Broadway Plaza EIR March 30, 2020 Page 4 of 11 Since the residential element of the Project has never undergone CEQA review, it is a new project, and the City must start from the beginning of the CEQA process under section 21151, conduct an initial study, and determine whether there is substantial evidence of a fair argument that the project will have a significant environmental impact. Friends of College of San Mateo Gardens v. San Mateo, 1 Cal.5th at 951. The City should require CEQA review for the Project, and not approve the Project until CEQA review is completed. II. AN EIR MUST BE PREPARED FOR THE PROPOSED PROJECT BECAUSE THERE IS SUBSTANTIAL EVIDENCE OF A FAIR ARGUMENT THAT THE PROJECT MAY HAVE ONE OR MORE SIGNIFICANT ENVIRONMENTAL IMPACTS. As the California Supreme Court held, “[i]f no EIR has been prepared for a nonexempt project, but substantial evidence in the record supports a fair argument that the project may result in significant adverse impacts, the proper remedy is to order preparation of an EIR.” Communities for a Better Env’t v. South Coast Air Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 319-320 [“CBE v. SCAQMD”], citing, No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 88; Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 504–505. “Significant environmental effect” is defined very broadly as “a substantial or potentially substantial adverse change in the environment.” Pub. Res. Code [“PRC”] § 21068; see also 14 CCR § 15382. An effect on the environment need not be “momentous” to meet the CEQA test for significance; it is enough that the impacts are “not trivial.” No Oil, Inc., 13 Cal.3d at 83. “The ‘foremost principle’ in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” Communities for a Better Env’t v. Cal. Resources Agency (2002) 103 Cal.App.4th 98, 109 [“CBE v. CRA”]. The EIR is the very heart of CEQA. Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1214; Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927. The EIR is an “environmental ‘alarm bell’ whose purpose is to alert the public and its responsible officials to environmental changes before they have reached the ecological points of no return.” Bakersfield Citizens, 124 Cal.App.4th at 1220. The EIR also functions as a “document of accountability,” intended to “demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.” Laurel Heights Improvements Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392. The EIR process “protects not only the environment but also informed self- government.” Pocket Protectors, 124 Cal.App.4th at 927. Under the “fair argument” standard applicable to environmental review under Pub. Res. Code § 21151, an EIR is required if any substantial evidence in the record indicates that a project may have an adverse environmental effect—even if contrary evidence exists to support the agency’s decision. 14 CCR § 15064(f)(1); Pocket Protectors, 124 Cal.App.4th at 931; Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal.App.4th 144, 150-15; Quail Botanical Gardens Found., Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602. The “fair SAFER Comments on Addendum to One Broadway Plaza EIR March 30, 2020 Page 5 of 11 argument” standard creates a “low threshold” favoring environmental review through an EIR rather than through issuance of negative declarations or notices of exemption from CEQA. Pocket Protectors, 124 Cal.App.4th at 928. An effect on the environment need not be “momentous” to meet the CEQA test for significance; it is enough that the impacts are “not trivial.” No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 83. 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.App.4th 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.App.4th at 935 A. There is Substantial Evidence Supporting a Fair Argument that the Project may have a Significant Impact on Indoor Air Quality. Formaldehyde is a known human carcinogen. Many composite wood products typically used in residential and office building construction contain formaldehyde-based glues which off- gas formaldehyde over a very long time period. 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 residential and office building construction for flooring, cabinetry, baseboards, window shades, interior doors, and window and door trims. Given the prevalence of materials with formaldehyde-based resins that will be used in constructing the residential portion of the Project, there is a significant likelihood that the Project’s emissions of formaldehyde to air will result in very significant cancer risks to future residents and workers in the buildings. Even if the materials used within the buildings comply with the Airborne Toxic Control Measures (ATCM) of the California Air Resources Board SAFER Comments on Addendum to One Broadway Plaza EIR March 30, 2020 Page 6 of 11 (CARB), significant emissions of formaldehyde may still occur. The residential component of the Project will have significant impacts on air quality and health risks by emitting cancer-causing levels of formaldehyde into the air that will expose workers and residents to cancer risks well in excess of SCAQMD’s threshold of significance. A 2018 study by Chan et al. (attached as Exhibit A) measured formaldehyde levels in new structures constructed after the 2009 CARB rules went into effect. Even though new buildings conforming to CARB’s ATCM had a 30% lower median indoor formaldehyde concentration and cancer risk than buildings built prior to the enactment of the ATCM, the levels of formaldehyde will still pose cancer risks greater than 100 in a million, well above the 10 in one million significance threshold established by the SCAQMD. Based on expert comments submitted on other similar projects and assuming all the Project’s residential unit materials are compliant with the California Air Resources Board’s formaldehyde airborne toxics control measure, future residents and employees using the Project will be exposed to a cancer risk from formaldehyde greater than the SCAQMD’s CEQA significance threshold for airborne cancer risk of 10 per million. The City has a duty to investigate issues relating to a project’s potential environmental impacts. (See County Sanitation Dist. No. 2 v. County of Kern, (2005) 127 Cal.App.4th 1544, 1597–98. [“[U]nder CEQA, the lead agency bears a burden to investigate potential environmental impacts.”].) “If the local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record. Deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences.” (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.) Given the lack of study conducted by the City on the health risks posed by emissions of formaldehyde from new residential projects, a fair argument exists that such emissions from the Project may pose significant health risks. As a result, the City must prepare an EIR to analyze and mitigate this potentially significant impact. The failure to address the project’s formaldehyde emissions is contrary to the California Supreme Court’s decision in California Building Industry Ass’n v. Bay Area Air Quality Mgmt. Dist. (2015) 62 Cal.4th 369, 386 (“CBIA”). At issue in CBIA was whether the Air District could enact CEQA guidelines that advised lead agencies that they must analyze the impacts of adjacent environmental conditions on a project. The Supreme Court held that CEQA does not generally require lead agencies to consider the environment’s effects on a project. CBIA, 62 Cal.4th at 800- 801. However, to the extent a project may exacerbate existing adverse environmental conditions at or near a project site, those would still have to be considered pursuant to CEQA. Id. at 801 (“CEQA calls upon an agency to evaluate existing conditions in order to assess whether a project could exacerbate hazards that are already present”). In so holding, the Court expressly held that CEQA’s statutory language required lead agencies to disclose and analyze “impacts on a project’s users or residents that arise from the project’s effects on the environment.” Id. at 800 (emphasis added).) SAFER Comments on Addendum to One Broadway Plaza EIR March 30, 2020 Page 7 of 11 The Addendum fails to disclose, analyze, or mitigate these potential new significant impacts. An EIR must be prepared to disclose and mitigate those impacts B. There is Substantial Evidence that the Project may have a Significant Impact on Biological Resources as a Result of Window Collisions. The Project as planned would contribute to an ongoing national catastrophe in bird collision deaths caused by poorly planned incorporation of windows into building designs. Constructing a 37-story-story building, as the Project proposes to do, will not only take aerial habitat from birds, but it will also interfere with the movement of birds in the region and it will result in large numbers of annual window collision fatalities. Window collisions are often characterized as either the second or third largest source or anthropogenic-caused bird mortality. The numbers behind these characterizations are often attributed to Klem’s (1990)1 and Dunn’s (1993)2 estimates of about 100 million to 1 billion bird fatalities in the USA, or more recently Loss et al.’s (2014)3 estimate of 365-988 million bird fatalities in the USA or Calvert et al.’s (2013)4 and Machtans et al.’s (2013)5 estimates of 22.4 million and 25 million bird fatalities in Canada, respectively. Gelb and Delacretaz (2009)6 recorded 5,400 bird fatalities under buildings in New York City, based on a decade of monitoring only during migration periods, and some of the high-rises were associated with hundreds of fatalities each. Klem et al. (2009)7 monitored 73 building façades in New York City during 114 days of two migratory periods, tallying 549 collision victims, nearly 5 birds per day. Borden et al. (2010)8 surveyed a 1.8 km route 3 times per week 1 Klem, D., Jr. 1990. Collisions between birds and windows: mortality and prevention. Journal of Field Ornithology 61:120-128. 2 Dunn, E. H. 1993. Bird mortality from striking residential windows in winter. Journal of Field Ornithology 64:302-309. 3 Loss, S. R., T. Will, S. S. Loss, and P. P. Marra. 2014. Bird–building collisions in the United States: Estimates of annual mortality and species vulnerability. The Condor: Ornithological Applications 116:8-23. DOI: 10.1650/CONDOR-13-090.1 4 Calvert, A. M., C. A. Bishop, R. D. Elliot, E. A. Krebs, T. M. Kydd, C. S. Machtans, and G. J. Robertson. 2013. A synthesis of human-related avian mortality in Canada. Avian Conservation and Ecology 8(2): 11. http://dx.doi.org/10.5751/ACE-00581-080211 5 Machtans, C. S., C. H. R. Wedeles, and E. M. Bayne. 2013. A first estimate for Canada of the number of birds killed by colliding with building windows. Avian Conservation and Ecology 8(2):6. http://dx.doi.org/10.5751/ACE-00568-080206 6 Gelb, Y. and N. Delacretaz. 2009. Windows and vegetation: Primary factors in Manhattan bird collisions. Northeastern Naturalist 16:455-470. 7 Klem, D., Jr. 2009. Preventing bird-window collisions. The Wilson Journal of Ornithology 121:314-321. 8 Borden, W. C., O. M. Lockhart, A. W. Jones, and M. S. Lyons. 2010. Seasonal, taxonomic, and local habitat components of bird-window collisions on an urban university campus in Cleveland, OH. Ohio Journal of Science 110(3):44-52. SAFER Comments on Addendum to One Broadway Plaza EIR March 30, 2020 Page 8 of 11 during 12-month period and found 271 bird fatalities of 50 species. Parkins et al. (2015)9 found 35 bird fatalities of 16 species within only 45 days of monitoring under 4 building façades. In San Francisco, Kahle et al. (2016)10 found 355 collision victims within 1,762 days under a 5- story building. Ocampo-Peñuela et al. (2016)11 searched the perimeters of 6 buildings on a university campus, finding 86 fatalities after 63 days of surveys. One of these buildings produced 61 of the 86 fatalities, and another building with collision-deterrent glass caused only 2 of the fatalities. Here, there is ample evidence to support a fair argument that the Project will result in many collision fatalities of birds, and that this may result in a significant impact. Yet neither the 2004 EIR nor the Addendum make any attempt to analyze this potentially significant impact. An EIR is required to fully analyze and mitigate this impact. III. THE CITY MUST PREPARE AN EIR BECAUSE THE 2004 EIR ADMITS SIGNIFICANT AND UNAVAILABLE ENVIRONMENTAL IMPACTS. An EIR must be prepared for the Project because the 2004 EIR determined that the One Broadway Plaza Project would cause significant and unavoidable impacts on aesthetics, air quality, transportation/traffic, utilities and service systems, aesthetics, and cultural resources. Addendum, pp. 13-14. In the case of Communities for a Better Environment v. Cal. Resources Agency (2002) 103 Cal.App.4th 98, 122-125, the court of appeal held that when a “first tier” EIR admits a significant, unavoidable environmental impact, then the agency must prepare “second tier” EIRs for later projects to ensure that those unmitigated impacts are “mitigated or avoided.” (Id. citing CEQA Guidelines §15152(f).) The court reasoned that the unmitigated impacts was not “adequately addressed” in the first tier EIR since it was not “mitigated or avoided.” (Id.) Thus, significant effects disclosed in first tier EIRs will trigger second tier EIRs unless such effects have been “adequately addressed,” in a way that ensures the effects will be “mitigated or avoided.” (Id.) Such a second tier EIR is required, even if the impact still cannot be fully mitigated and a statement of overriding considerations will be required. The court explained, “The requirement of a statement of overriding considerations is central to CEQA’s role as a public accountability statute; it requires public officials, in approving environmental detrimental 9 Parkins, K. L., S. B. Elbin, and E. Barnes. 2015. Light, Glass, and Bird–building Collisions in an Urban Park. Northeastern Naturalist 22:84-94. 10 Kahle, L. Q., M. E. Flannery, and J. P. Dumbacher. 2016. Bird-window collisions at a west- coast urban park museum: analyses of bird biology and window attributes from Golden Gate Park, San Francisco. PLoS ONE 11(1):e144600 DOI 10.1371/journal.pone.0144600. 11 Ocampo-Peñuela, N., R. S. Winton, C. J. Wu, E. Zambello, T. W. Wittig and N. L. Cagle . 2016. Patterns of bird-window collisions inform mitigation on a university campus. PeerJ4:e1652;DOI10.7717/peerj.1652 SAFER Comments on Addendum to One Broadway Plaza EIR March 30, 2020 Page 9 of 11 projects, to justify their decisions based on counterbalancing social, economic or other benefits, and to point to substantial evidence in support.” (Id. at 124-125) Since the 2004 EIR admitted numerous significant, unmitigated impacts, a new EIR is required to determine if mitigation measure can now be imposed to reduce or eliminate those impacts. If the impacts still remain significant and unavoidable, a statement of overriding considerations will be required. IV. EVEN IF THE 2004 EIR WAS STILL RELEVANT TO THE PROJECT, A SUPPLEMENTAL OR SUBSEQUENT EIR IS NECESSARY BECAUSE SUBSTANTIAL CHANGES WILL RESULT IN NEW AND MORE SIGNIFICANT ENVIRONMENTAL IMPACTS. Even assuming that the 2004 EIR has some relevance to evaluating the environmental impacts of this Project, numerous substantial changes in the development plans have occurred such as the inclusion of 402 new residential units, new information of substantial importance has arisen, and substantial changes in circumstances have taken place that require a wholesale revision of the dated 2004 EIR. When changes to a project’s circumstances or new substantial information comes to light subsequent to the certification of an EIR for a project, the agency must prepare a subsequent or supplemental EIR if the changes are “[s]ubstantial” and require “major revisions” of the previous EIR. Friends of Coll. of San Mateo Gardens v. San Mateo Cty. Cmty. Coll. Dist. (2016) 1 Cal.5th 937, 943. “[W]hen there is a change in plans, circumstances, or available information after a project has received initial approval, the agency’s environmental review obligations “turn[ ] on the value of the new information to the still pending decisionmaking process.” Id., 1 Cal.5th at 951–52. The agency must “decide under CEQA's subsequent review provisions whether project changes will require major revisions to the original environmental document because of the involvement of new, previously unconsidered significant environmental effects.” Id., 1 Cal.5th at 952. Section 21166 and CEQA Guidelines § 15162 “do[] not permit agencies to avoid their obligation to prepare subsequent or supplemental EIRs to address new, and previously unstudied, potentially significant environmental effects.” Id., 1 Cal.5th at 958. All of the evidence indicates that the project considered by the 2004 EIR has undergone significant changes to the project and its circumstances requiring substantial revisions to that 16- year old EIR. A. A New EIR is Required Because the Addition of 402 Residential Units is a Substantial Change from the 2004 Project and there is Substantial Evidence that the Residential Element of the Project Will Result in Emissions of Formaldehyde to the Air that Will Have a Significant Health Impact on Future Residents. Even if the 2004 EIR was somehow relevant to the current Project, the City would still be required to prepare an SEIR. The inclusion of 402 new residential units as part of the Project is a substantial change from the 2004 project. “The purpose behind the requirement of a subsequent SAFER Comments on Addendum to One Broadway Plaza EIR March 30, 2020 Page 10 of 11 or supplemental EIR or negative declaration is to explore environmental impacts not considered in the original environmental document.” Friends of College of San Mateo Gardens v. San Mateo (2016) 1 Cal.5th 937, 949 (quoting Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288, 1296). As discussed above, there is substantial evidence that the residential component of the Project will result in a significant air quality impact to residential occupants of the Project. This impact is significant and new. It could not have been known in 2004 because there was no residential element of the Project at that time. Accordingly, the City violated CEQA by not preparing an SEIR to analyze and mitigate this new significant impact. There is no substantial evidence in the record to support a conclusion that the Project will not have a new significant indoor air quality impact as a result of significant changes to the Project when compared to the project analyzed in the 2004 EIR. Accordingly, the City’s decision to prepare an Addendum rather than an SEIR is not supported by substantial evidence, and approval of the Project based on the Addendum would constitute an abuse of discretion. V. THE ADDENDUM’S CONCLUSIONS ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. A. There is no Evidence that the Project Will Not Result in a New Significant Construction-Related Air Quality Impact The Addendum concludes that the Project will not have a significant new impacts on schools. This conclusion is not supported by substantial evidence because the Addendum never evaluates the capacity of the nearby schools, and their ability to absorb additional students created by the Project. The Project site is served by Heroes Elementary School, Willard Intermediate School, and Santa Ana High School. Addendum, p. 76. The Addendum finds that the “Project would generate up to 402 residential units and up to 965 residents at the Project Site, some of which are expected to be school-aged children.” Id. The Project is anticipated to generate approximately 227 students. Id. Specifically, it is expected to generate 117 elementary school students, 50 middle school students, and 60 high school students. Id. at 77. According to the Addendum: the Proposed Project would be required to pay SB 50 school impact fees to the SAUSD. Payment of school impact fees will ensure that the impact of the Proposed Project on school services are less than significant level; the Proposed Project would not result in the need for new or physically altered schools or result in the construction of a new school. The Proposed Project would not create a new significant impact or a substantial increase in the severity of previously identified effects. SAFER Comments on Addendum to One Broadway Plaza EIR March 30, 2020 Page 11 of 11 Id. These conclusions are not sufficient to support the Addendum’s conclusion that the Project would not result in the need for new or expanded schools in order to maintain acceptable service, the construction of which could cause significant environmental impacts. The Addendum provides no information on the student capacity of the schools serving the Project site, how close those schools are to capacity, and whether the addition of students from the Project would cause the capacity to be reached. Without this information, there is no evidence to support the Addendum’s finding that the Project will not have a school-related impact. CONCLUSION For the above reasons, the City must prepare an EIR to analyze and mitigate the impacts of the Project that were not previously analyzed in the 2004 EIR. The City may not rely on an addendum. Sincerely, Rebecca L. Davis     EXHIBIT A  Indoor Air Quality in New California Homes with Mechanical Ventilation Wanyu Chan1,*, Yang-Seon Kim1, Brett Singer1, Iain Walker1 1 Lawrence Berkeley National Laboratory, Berkeley, USA *Corresponding email:wrchan@lbl.gov SUMMARY The Healthy Efficient New Gas Homes (HENGH) study measured indoor air quality and mechanical ventilation use in 70 new California homes. This paper summarizes preliminary results collected from 42 homes. In addition to measurements of formaldehyde, nitroge n dioxide (NO2), and PM2.5 that are discussed here, HENGH also monitored other indoor environmental parameters (e.g., CO 2) and indoor activities (e.g., cooking, fan use) using sensors and occupant logs. Each home was monitored for one week. Diagnostic tests were performed to characterize building envelope and duct leakage, and mechanical system airflow. Comparisons of indoor formaldehyde, NO 2, and PM2.5 with a prior California New Home Study (CNHS) (Offermann, 2009) suggest that contaminant levels are lower than measured from about 10 years ago. The role of mechanical ventilation on indoor contaminant levels will be evaluated. KEYWORDS Formaldehyde; nitrogen dioxide; particles; home performance; field study 1 INTRODUCTION The HENGH field study (2016–2018) aimed to measure indoor air quality in 70 new California homes that have mechanical ventilation. Eligible houses were built in 2011 or later; had an operable whole-dwelling mechanical ventilation system; used natural gas for space heating, water heating, and/or cooking ; and had no smoking in the home. Study participants were asked to rely on mechanical ventilation and avoid window use during the one -week monitoring period. All homes had a venting kitchen range hood or over the range microwave and bathroom exhaust fans. This paper presents summary results of formaldehyde, NO2, and PM2.5 measurements in 42 homes. The full dataset is expected to be available in summer 2018. 2 METHODS Integrated one-week concentrations of formaldehyde and NOx were measured using SKC UMEx-100 and Ogawa passive samplers. Formaldehyde samplers were deployed in the main living space, master bedroom, and outdoors. PM2.5 were measured using a pair of photometers (ES-642/BT-645, MetOne Instruments) indoor in the main living space and outdoors. PM2.5 filter samples were collected using a co-located pDR-1500 (ThermoFisher) in a subset of the homes and time-resolved photometer data were adjusted using the gravimetric measurements. Results are compared with a prior field study CNHS (2007–2008) (Offermann, 2009) that monitored for contaminant concentrations over a 24-hour period in 108 homes built between 2002 and 2004, including a subset of 26 homes with whole-dwelling mechanical ventilation. 3 RESULTS Figure 1 compares the indoor concentrations of formaldehyde, NO 2, and PM2.5 measured by the two studies. Results of HENGH are one-week averaged concentrations, whereas CHNS are 24-hour averages. HENGH measured lower indoor concentrations of formaldehyde and PM2.5, compared to CNHS. For NO2, the indoor concentrations measured by the two studies are similar. Summary statistics of indoor and outdoor contaminant concentrations (mean and median concentrations; N=number of homes with available data) are presented in Table 1. 0 20 40 60 80 100 120020406080100 Formaldehyde (ppb)Cumulative Frequency (%)HENGH CANH 0 5 10 15020406080100 NO2 (ppb)Cumulative Frequency (%)0 10 20 30020406080100 PM2.5 (ug/m3)Cumulative Frequency (%) Figure 1. Comparisons of indoor contaminant concentrations measured by two studies. Table 1. Summary statistics of indoor and outdoor contaminant concentrations . HENGH - Indoor CNHS - Indoor HENGH - Outdoor CNHS - Outdoor N Median Mean N Median Mean N Median Mean N Median Mean Formaldehyde (ppb) 39 20.0 20.6 104 29.5 36.3 38 2.0 2.0 43 1.8 2.8 NO2 (ppb) 40 3.7 4.4 29 3.2 5.4 40 3.0 3.1 11 3.1 3.5 PM2.5 (ug/m3) 41 4.7 5.8 28 10.4 13.3 42 5.9 7.7 11 8.7 7.9 4 DISCUSSION The lower formaldehyde concentrations measured by HENGH in comparison to CNHS may be attributable to California’s regulation to limit formaldehyde emissions from composite wood products that came into effect between the two studies . Gas cooking is a significant source of indoor NO2 (Mullen et al., 2016). Even though NO2 concentrations measured by HENGH are similar to levels found in CNHS, the two studies differed in that HENGH homes all use gas for cooking, whereas almost all homes (98%) from the prior study used electric ranges. More analysis is needed to determine the ef fectiveness of source control, such as range hood use during cooking, on indoor concentra tions of cooking emissions such as NO2 and PM2.5. Lower PM2.5 indoors measured by HENGH compared to CNHS may be explained from a combination of lower outdoor PM2.5 levels, reduced particle penetration due to tighter building envelopes (Stephens and Siegel, 2012) combined with exhaust ventilation, and use of medium efficiency air filter (MERV 11 or better) in some HENGH homes. Further analysis of the data will evaluate the role of mechanical ventilation, including local exhaust and whole - dwelling ventilation system, on measured indoor contaminant levels. 5 CONCLUSIONS New California homes now have lower indoor formaldehyde levels than previously measured, likely as a result of California’s formaldehyde emission standards. Indoor concentrations of NO2 and PM2.5 measured are also low compared to a prior study of new homes in California. ACKNOWLEDGEMENT LBNL work on the project was supported by the California Energy Commission. Field data collection was performed by the Gas Technology Institute. Support for field teams was provided by Pacific Gas & Electric and the Southern California Gas Company. 6 REFERENCES Mullen NA et al. 2016 Indoor Air 26(2):231–245. Offermann FJ. 2009. California Air Resource Board and California Energy Commission Report CEC-500-2009-085. Stephens B, Siegel JA. 2012 Indoor Air 22(6):501–513.