18 (2)
Public Comment
Subject:Invitation Anaheim Project Comment Letter
Attachments:2020.10.27 Invitation Anaheim MND - SAFER Comment Letter.pdf
From: Paige Fennie <paige@lozeaudrury.com>
Sent: Tuesday, October 27, 2020 12:49 PM
To: Harry Sidhu (Mayor) <HSidhu@anaheim.net>; Stephen Faessel <SFaessel@anaheim.net>; Denise Barnes
<DBarnes@anaheim.net>; Jordan Brandman <JBrandman@anaheim.net>; Jose Moreno <JMoreno@anaheim.net>;
Lucille Kring <LKring@anaheim.net>; Trevor O'Neil <TONeil@anaheim.net>; Theresa Bass <TBass@anaheim.net>; Scott
Koehm <SKoehm@anaheim.net>
Cc: Richard Drury <richard@lozeaudrury.com>; Komalpreet Toor <komal@lozeaudrury.com>; Stacey Oborne
<stacey@lozeaudrury.com>
Subject: Invitation Anaheim Project Comment Letter
Dear Mayor Sidhu and Honorable Members of the City of Anaheim City Council, Ms. Bass, and Mr.
Koehm:
Please find attached a letter on behalf of the Supporters Alliance for Environmental Responsibility
("SAFER") regarding the Invitation Anaheim Project for tonight's City Council hearing.
Thank you,
--
Paige Fennie
Legal Fellow
Lozeau | Drury LLP
1939 Harrison Street, Suite 150
Oakland, California 94612
(510) 836-4200
(510) 836-4205 (fax)
paige@lozeaudrury.com
1
BY E-MAIL
October 27, 2020
Mayor Harry S. Sidhu Theresa Bass, City Clerk
Mayor Pro Tem Stephen Faessel City of Anaheim
Council Member Denise Barnes200 S. Anaheim Boulevard, Room 217
Council Member Jordan Brandman Anaheim, CA 92805
Council Member Jose F. Moreno tbass@anaheim.net
Council Member Lucille Kring
Council Member Trevor O’Neil Scott Koehm, Senior Planner
City of Anaheim City Council Planning & Building Department
200 S Anaheim Boulevard, 7th FloorCity of Anaheim
Anaheim, CA 92805 200 S Anaheim Boulevard, 1st Floor
hsidhu@anaheim.net Anaheim, CA 92805
sfaessel@anaheim.net skoehm@anaheim.net
dbarnes@anaheim.net
jbrandman@anaheim.net
jmoreno@anaheim.net
lkring@anaheim.net
toneil@anaheim.net
Re: Comment on the Initial Study/Mitigated Negative Declaration for The
Invitation Project; DEV2019-00087; RCL2019-00324; CUP2019-06040
Dear Mayor Sidhu and Honorable Members of the City of Anaheim City Council, Ms.
Bass, and Mr. Koehm:
I am writing on behalf of Supporters’ Alliance for Environmental Responsibility and
its members living in and around the City of Anaheim (“SAFER”) regarding the Initial
Study/Mitigated Negative Declaration (“IS/MND”) prepared for the Invitation Project, a
multi-family rental residential development proposed for a 4.49-acre lot area located at
1122 North Anaheim Boulevard in the City of Anaheim, and the related project approvals
(the “Project”).
SAFER previously submitted comments to the City of Anaheim (“City”) pointing out
that the Project may have significant unmitigated environmental impacts and that the
The Invitation Project Mitigated Negative Declaration
SAFER Comments
October 27, 2020
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IS/MND fails to impose all feasible mitigation measures to address these impacts. See
Certified Industrial Hygienist Francis Offermann’s comments dated August 10, 2020, and
environmental consulting firm Soil/Water/Air Protection Enterprise’s (“SWAPE”)
comments dated August 19, 2020.
After reviewing the Project, IS/MND, and the City’s responses to our comments, a
“fair argument” remains that the Project may have unmitigated adverse environmental
impacts. Therefore, pursuant to the California Environmental Quality Act (“CEQA”), Public
Resources Code section 21000, et seq., the City must prepare an environmental impact
report (“EIR”) for the Project.
Additionally, SAFER urges the City to continue the City Council hearing currently
scheduled for October 27, 2020 until after the lifting of the COVID-19 State of Emergency.
It is not possible for the interested public to adequately participate in the decision-making
process during the State of Emergency. The City will be conducting the hearing virtually
through the City’s website, without adequate provisions to allow the public to directly
address the City Council. Since this is not an emergency matter, there is no reason to
conduct this hearing during the State of Emergency, and the matter should be continued
to a time when the public can participate fully and actively. As discussed later in this
comment letter, the City’s procedures violate the Brown Act and render any decision null
and void.
I. PROJECT DESCRIPTION
The Project proposes to develop a multi-family rental residential project on a 4.49-
acre site consisting: 1) 269 for-rent multi-family dwelling units; 2) wrap-style building with
four levels of residential units and common building areas totaling 302,011 square feet
(“sq. ft.”); and 3) six levels of parking structure area totaling 226,545 sq. ft. The Project
would have a density of 60 dwelling units per acre (du/ac), and provide 49 studio units,
119 one-bedroom units, and 101 two-bedroom units ranging from 594 square feet to
1,144 square feet with a net rentable space of 230,103 sq. ft. The Project also involves
demolishing the existing tow yard facility – totaling 16,750 sq. ft. of building space in four
buildings, a carport, and associated surface asphalt paving.
II. CEQA LEGAL STANDARD
As the California Supreme Court has 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
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SAFER Comments
October 27, 2020
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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 thefullest possible protection to the environment within the reasonable scope of the
statutory language.” Communities for a Better Env’t v. Cal. Res. 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 (Bakersfield Citizens); 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 Univ. of Cal. (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.
An EIR is required if “there is substantial evidence, in light of the whole record
before the lead agency, that the project may have a significant effect on the environment.”
PRC § 21080(d); see also Pocket Protectors, 124 Cal.App.4th at 927. In very limited
circumstances, an agency may avoid preparing an EIR by issuing a negative declaration,
a written statement briefly indicating that a project will have no significant impact thus
requiring no EIR (14 CCR § 15371), only if there is not even a “fair argument” that the
project will have a significant environmental effect. PRC, §§ 21100, 21064. Since “\[t\]he
adoption of a negative declaration . . . has a terminal effect on the environmental review
process,” by allowing the agency “to dispense with the duty \[to prepare an EIR\],” negative
declarations are allowed only in cases where “the proposed project will not affect the
environment at all.” Citizens of Lake Murray v. San Diego (1989) 129 Cal.App.3d 436,
440.
Where an initial study shows that the project may have a significant effect on the
environment, a mitigated negative declaration may be appropriate. However, a mitigated
negative declaration is proper only if the project revisions would avoid or mitigate the
potentially significant effects identified in the initial study “to a point where clearly no
significant effect on the environment would occur, and…there is no substantial evidence
in light of the whole record before the public agency that the project, as revised, may have
a significant effect on the environment.” PRC §§ 21064.5 and 21080(c)(2); Mejia v. City of
Los Angeles (2005) 130 Cal.App.4th 322, 331. In that context, “may” means a reasonable
possibility of a significant effect on the environment. PRC §§ 21082.2(a), 21100,
21151(a); Pocket Protectors, 124 Cal.App.4th at 927; League for Protection of Oakland's
etc. Historic Res. v. City of Oakland (1997) 52 Cal.App.4th 896, 904–05.
Under the “fair argument” standard, 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
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SAFER Comments
October 27, 2020
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Protectors, 124 Cal.App.4th at 931; Stanislaus Audubon Society v. County of Stanislaus
(1995) 33 Cal.App.4th 144, 150-51; Quail Botanical Gardens Found., Inc. v. City of
Encinitas (1994) 29 Cal.App.4th 1597, 1602. The “fair 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.
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 (emphasis in original).
CEQA requires that an environmental document include a description of the
project’s environmental setting or “baseline.” CEQA Guidelines § 15063(d)(2). The CEQA
“baseline” is the set of environmental conditions against which to compare a project’s
anticipated impacts. CBE v. SCAQMD, 48 Cal.4th at 321. CEQA Guidelines section
15125(a) states, in pertinent part, that a lead agency’s environmental review under
CEQA:
…must include a description of the physical environmental conditions in the
vicinity of the project, as they exist at the time \[environmental analysis\] is
commenced, from both a local and regional perspective. This environmental
setting will normally constitute the baseline physical conditions by which a
Lead Agency determines whether an impact is significant.
See Save Our Peninsula Committee v. County of Monterey (2001) 87 Cal.App.4th 99,
124–25 (“Save Our Peninsula”).) As the court of appeal has explained, “the impacts of the
project must be measured against the ‘real conditions on the ground,’” and not against
hypothetical permitted levels. Id. at 121–23.
The Invitation Project Mitigated Negative Declaration
SAFER Comments
October 27, 2020
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III. CEQA DISCUSSION
Substantial EvidenceExists to Support a Fair Argument that the
Project Will Have a Significant Health Risk Impact from the Project’s
Indoor Air Quality.
SAFER previously submitted comments on the Project’s potential significant health
impacts on future residents from formaldehyde emissions that will be emitted by finishing
materials used to construct interiors of the residential as well as the reasonably
foreseeable emissions of formaldehyde from furniture and other materials that will be
brought into the residences and office buildings. See Indoor Environmental Engineering
Comment dated August 10, 2020 (“August 10 Offermann Comment”).
SAFER’s concerns regarding health risks posed by the Project’s formaldehyde
emissions are based on the expert analysis and opinions of industrial hygienist and
engineer Francis Offermann, PE CIH. Formaldehyde is a potent carcinogen and toxic air
contaminant (“TAC”). Mr. Offermann’s comments identified a significant health risk posed
by the Project’s emissions of formaldehyde from composite wood products typically used
in residential building construction containing formaldehyde-based glues which off-gas
formaldehyde over a very long time period. The formaldehyde emissions are from
composite wood products manufactured with ureaformaldehyde resins, such as plywood,
medium density fiberboard, and particle board. These materials are commonly used for
flooring, cabinetry, baseboards, window shades, interior doors, and window and door
trims. Id., p. 3. In his August 10 comments, Mr. Offermann concluded that it is likely that
the Project will expose future residents of the Project to significant impacts related to
indoor air quality, and in particular, emissions of the cancer-causing chemical
formaldehyde. Id., p. 4. Mr. Offermann calculated that the residential exposure represents
a cancer risk of 112 per million, assuming all materials are compliant with the California
Air Resources Board’s (“CARB”) formaldehyde airborne toxics control measure (“ATCM”).
Id., p. 4. This is more than 11 times SCAQMD’s CEQA significance threshold for airborne
cancer risk of 10 per million. Id.
Despite the City’s duty to investigate issues relating to a project’s potential
environmental impacts, the City has, thus far, attempted to deny the indoor air quality
analysis and refuse to consider with any informed expertise the likely impacts of indoor
formaldehyde emissions posed by the Project to future residents. 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.”). Rather
than objectively study this serious health threat, staff denies Mr. Offermann’s expert
analysis and the 2019 Chan study he cites without itself bringing any expertise to bear on
the Project’s formaldehyde emissions.See City’s September 28, 2020 Staff Report p. 2-
39.
Instead of analyzing the Project’s formaldehyde emissions, the City concludes that
the Project will comply with the California Green Building Standards Code (CALGreen),
The Invitation Project Mitigated Negative Declaration
SAFER Comments
October 27, 2020
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which requires that all composite wood products used on the interior of a building to meet
CARB ATCM for composite wood, and therefore, the Project will not have significant
indoor air quality impacts. Id. However, this response ignores Mr. Offermann’s expert
analysis and the Chan study. The Chan study analyzed the indoor concentrations of
formaldehyde for homes built between 2011 and 2015, of which most of the homes in the
study were constructed with materials that complied with CARB’s ATCM Phase 2
compliant materials. The Chan study showed that while these buildings had a lower
median formaldehyde concentration and cancer risk, the median lifetime cancer risk for
homes built with CARB Phase 2 compliant composite wood products still greatly
exceeded the OEHHA 10 in a million cancer risk threshold. Mr. Offermann relied in part
on the indoor formaldehyde concentrations determined in the Chan study to conclude that
the Project will have similar indoor concentrations of formaldehyde as observed in the
Chan study and exceed the CEQA significance threshold for airborne cancer risk. Mr.
Offermann’s expert analysis and calculations of the Project’s CARB compliant building
materials finding the Project will have significant indoor air quality impacts is substantial
evidence of a fair argument that the Project will have a significant impact and the City is
required to analyze and mitigate this impact in an EIR.
The City also states that impacts on future residents of the Project are not an
impact cognizable under CEQA. See City’s September 28, 2020 Staff Report p. 2-39.
This is based on an erroneous reading of California Building Industry Ass’n v. Bay Area
Air Quality Mgmt. Dist. (2015) 62 Cal.4th 369, 386 (“CBIA”). The failure to address the
Project’s indoor air quality impacts is contrary to the California Supreme Court’s decision
in 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-
01. 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 requires 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). Here, the
carcinogenic formaldehyde emissions identified by Mr. Offermann are not an existing
environmental condition – they are created by the Project. Therefore, these impacts must
be analyzed in an EIR.
Because Mr. Offermann’s expert review is substantial evidence of a fair argument
of a significant environmental impact to future users of the project, an EIR must be
prepared to disclose and mitigate those impacts.
The IS/MND Relies on Unsubstantiated Input Parameters to Estimate Project
Emissions and Thus the Project May Result in Significant Air Quality
Impacts.
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SAFER Comments
October 27, 2020
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SAFER previously submitted comments on the Project’s potential air quality
impacts. See environmental consultant SWAPE Comment dated August 19, 2020
(“August 19 SWAPE Comment”). SAFER’s concerns regarding the Project’s air quality
impacts are based on the expert analysis and opinions of environmental consulting firm
SWAPE. Among the issues identified by SWAPE were the errors in the City’s air quality
modeling. SWAPE has reviewed the City’s responses to their comments and prepared a
response, which is attached as Exhibit A to these comments.
SWAPE previously identified several issues with the City’s air model, which
artificially reduced the Project’s construction and operation emissions. See August 19
SWAPE Comment, pp. 3-13. After reviewing the City’s responses to SWAPE’s previous
comments, SWAPE maintains that the analysis fails to address their concerns regarding
the Project’s flawed California Emissions Estimator Model “CalEEMod” air model and fails
to accurately estimate the Project’s criteria air pollutant emissions. See Ex. A, p. 1.
i. Unsubstantiated changes to construction schedule.
The IS/MND’s CalEEModmodel includes unsubstantiated changes to the Project’s
anticipated construction schedule and review of the City’s responses demonstrates that
the City again fails to justify or correct this modeling error. Id. at 2. In response to
SWAPE’s comments, the City states,
Appendix A of the IS/MND documents the changes to the construction
schedule subphases. As identified in Appendix A, the CalEEMod defaults
was modified based on the project-specific construction schedule provided
by the Project Applicant. In instances where data from the Project
Applicant is available, CalEEMod defaults should be modified since they
are based on surveys of other construction sites in the South Coast
AQMD region. As a result, the construction emissions modeling in
Appendix A more accurately reflects the project-related emissions than if
CalEEMod default construction phasing and duration was utilized.
City’s September 28, 2020 Staff Report p. 2-42.
However, this justification is insufficient because while Appendix A
provides the assumed construction schedule, the source for this construction
schedule is “based on info provided by applicant, normalized to fit duration
provided by applicant.” Appendix A, p. 84; see Ex A, p. 2. The IS/MND fails to
mention these changes or disclose the referenced information provided by the
applicant. Ex. A, p. 2. Without this information, including assumptions and
information used to estimate these phase lengths, SWAPE cannot verify that the
assumed construction schedule is correct for the Project. Id.
The significant and disproportional changes in length to each construction
phase included in the model present an issue, as spreading out construction
emissions over a longer period than anticipated results in an underestimation of
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SAFER Comments
October 27, 2020
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the maximum daily emissions associated with the Project’s construction. Id. at 2-
3.
ii.Unsubstantiated changes to wastewater treatment system percentages.
The IS/MND’s CalEEMod model also includes unsubstantiated changes to
the Project’s anticipated wastewater treatment system percentages, assuming
that 100% of the Project’s wastewater would be treated aerobically. Id. at 3.
However, review of the City’s responses to SWAPE’s comments demonstrates
that the City again fails to justify or correct this modeling error. Id. The City
states,
The default wastewater percentages to calculate indirect GHG emissions
from wastewater treatment processes in the CalEEMod model are based
on statewide data of the primary treatment methods. For example, in the
state 10.33 percent of wastewater is treated using septic tanks, 87.46
percent aerobic, and 2.21 percent lagoons. The project clearly does not
involve use of septic tanks; and therefore, septic tanks was zeroed out in
the model. The Orange County Sanitation District’s (OCSD) wastewater
treatment is a tertiary-treated wastewater. The first step of this process is
aerobic treatment prior. While there may be some anaerobic bacteria
digest sludge during the wastewater treatment process, OCSD does not
primarily treat wastewater in open-air facultative lagoons; and hence why
lagoons was zeroed out in the model.
CalEEMod has a separate module for direct emissions from the anaerobic
digestion process. OCSD’s anerobic processes (part of the tertiary treated
wastewater system) are enclosed in an anerobic digester that generates
electricity to offset the plant’s energy use. As identified in the model,
CalEEmod correctly reflects 100 percent anaerobic digester with
combustion of digester gas for emissions associated with the anaerobic
treatment of wastewater emissions. As a result, modeling in CalEEMod is
conservative for OCSD’s facilities and correctly adjusts the wastewater
percentages to reflect the tertiary treatment processes of OCSD’s
facilities.
City’s September 28, 2020 Staff Report p. 2-42 – 2-43. However, this justification is
incorrect for two reasons. Ex. A, p. 4.
First, there may be some anaerobic bacteria digest sludge during the wastewater
treatment process, which means that assuming 100% of the Project’s water would be
treated aerobically is incorrect. Id. The “Anaerobic and Facultative Lagoons” wastewater
treatment percentage type include both anaerobic and facultative lagoon wastewater
treatment processes. As such, the model should have assumed that a percentage of the
Project’s wastewater would be treated via “Anaerobic and Facultative Lagoons” as stated
by the City. Id.
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SAFER Comments
October 27, 2020
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Second, review of Orange County Sanitation District’s website reveals that
anaerobic bacteria digests sludge during the primary wastewater treatment process. See
“Orange County Sanitation District Show Document.” OCSD, available at:
https://www.ocsd.com/Home/ShowDocument?id=29045
, p. 6; see also Ex. A, p. 4. Since
some of the Project’s wastewater would be treated anaerobically, the Project’s
operational emissions should be modeled as such. Ex. A, p. 4. By incorrectly modeling
the Project’s operational emissions under the assumption that 100% of the Project’s
wastewater would be treated aerobically, the model may underestimate the Project’s
greenhouse gas (“GHG”) emissions, as each type of wastewater treatment system is
associated with different GHG emission factors, which are used by CalEEMod to
calculate the Project’s total GHG emissions. Id.
iii. Incorrect reduction to number of fireplaces.
The IS/MND’s CalEEMod model includes unsubstantiated changes to the Project’s
anticipated number of fireplaces, which the City fails to justify or correct. Id. The City
states,
Modeling correctly identifies that the Proposed Project would not include
wood burning or gas fireplaces in the individual residential units. The open
spaces areas would not include woodburning fireplaces as South Coast
AQMD Rule 445, Woodburning Devices, prohibits installation of fireplaces
in urban areas of Southern California. The amenities in the outdoor area
are conceptual only. If ultimately installed, the gas-burning firepit would be
used occasionally by residents. CalEEMod does not include a module for
this type of recreational use. Conservatively, assuming a 50,000 British
Thermal Unit (BTU) natural gas burning fire feature would be installed and
would be used for up to two hours per day, emissions would be nominal
(See Appendix B to this Response to Comments) and would generate a
maximum of 0.01 lbs/day of NOx and 2 MTCO2e annually. As a result, the
emissions profile for Proposed Project estimated included in the IS/MND
accurately reflects the Proposed Project emissions.
City’s September 28, 2020 Staff Report p. 2-43.
However, this justification is insufficient. Ex. A, p. 5. While the City states that the
Project would not include wood burning or gas fireplaces in the residential units, it does
include a 50,000 BTU natural gas burning fire feature that would be used up to 2 hours
per day. Id. Therefore, the Project would include a fireplace and the Project’s CalEEMod
model should account for these emissions. Id. By failing to include a fireplace that would
be included as part of the Project, the CalEEMod model’s area-source operational
emissions would be incorrect and underestimated. Id.
iv. Unsubstantiated changes to operational vehicle fleet mix.
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SAFER Comments
October 27, 2020
Page 10 of 22
The IS/MND’s CalEEMod model includes unsubstantiated changes to the Project’s
anticipated operational vehicle fleet mix, but review of the City’s response demonstrates
that the Project again fails to justify or correct this modeling error. Id. The City states,
Appendix A in the IS/MND fully substantiates the changes to the project’s
vehicle mix. The default vehicle mix in CalEEMod is based on regional,
county-wide travel on roadways. Because heavy duty truck trips travel
substantially longer distances than passenger vehicle car trips, the fleet
mix profile in CalEEMod is inaccurately skewed toward a larger number of
truck trips than realistic for land use development projects. As a result, it is
appropriate to modify the default fleet mix in CalEEMod to more
realistically reflect the vehicle mix profile anticipated for a residential
project. For example, CalEEMod default values for Orange County for the
Proposed Project would be 161 medium duty trucks and 101 heavy duty
trucks, buses, and motorhomes, for a total of 162 truck trips out of 1,464
vehicle trips (18 percent). This number of truck trip clearly is not accurate
for a residential project where the vast majority of vehicle trips are
associated with passenger vehicle employee commute trips and service-
based trips (school, shopping, etc.). Consequently, the fleet mix in
CalEEMod was appropriately adjusted to account for a higher percentage
of passenger vehicle trips that correspond to the types of trips residential
projects generate. As identified in Appendix A, modeling is based on a
conservative fleet mix of 97 percent passenger vehicles and assumes a
maximum of 44 truck trips (e.g., delivery, moving trucks, etc.) out of the
1,464 vehicle trips generated by the Proposed Project. Because this still
reflects a conservative number of truck trips associated with a residential
type project, emissions in the IS/MND are not underestimated. The
IS/MND provides a conservative estimate of mobile source emissions
generated by the Proposed Project.
City’s September 28, 2020 Staff Report p. 2-43.
However, the City’s claim that modeling is based on a conservative fleet mix of 97
percent passenger vehicles and assumes a maximum of 44 truck trips is incorrect and
contradictory. Ex. A, p. 6. With regards to the Project’s assumed vehicle fleet mix
percentages, Appendix A to the IS/MND actually states “\[f\]leet mix for the project is
modified to reflect a higher proportion of passenger vehicles that the regional VMT.
Assumes a mix of approximately 58% passenger vehicles, 24% medium duty trucks, and
18% heavy duty trucks and buses, based on driveway counts from Urban Crossroads.”
Appendix A, p. 90.
The model therefore should have included passenger vehicle, medium duty truck,
and heavy-duty truck and bus fleet mix percentages of 58%, 24%, and 18% respectively.
Ex. A, p. 6. However, this directly contradicts the City’s claim that the correct passenger
car fleet mix percentage would be 97%, with only 44 truck trips. Id. These unsubstantiated
changes to the Project’s anticipated operational fleet mix present an issue, as CalEEMod
The Invitation Project Mitigated Negative Declaration
SAFER Comments
October 27, 2020
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uses the fleet mix percentages to calculate the Project’s operational emissions associated
with on-road vehicles. Id.
v.Unsubstantiated change to carbon intensity factor.
The IS/MND’s CalEEModmodel includes an unsubstantiated change to the
Project’s anticipated CO intensity factor but review of the City’s responses demonstrates
2
that the City again fails to justify or correct this modeling error. Id. at 6-7. The City states,
The utility provider for the Proposed Project is the City of Anaheim.
CalEEMod does not have carbon intensity values for Anaheim’s municipal
utility. As a result, the City of Anaheim utility was contacted to obtain the
current carbon intensity for Anaheim’s electricity. The Carbon Intensity
values in CalEEMod were replaced with the carbon intensity for Anaheim’s
utility, as documented in Appendix A.
City’s September 28, 2020 Staff Report p. 2-43.
However, this justification is insufficient because both the IS/MND and the City’s
response fail to disclose any information or provide a source from the City of Anaheim
utility that includes the adjusted CO intensity factor. Ex. A, p. 7. Without disclosing the
2
information received when “the City of Anaheim utility was contacted to obtain the current
carbon intensity,” the reduced CO intensity factor inputted into the CalEEMod model
2
cannot be verified. Id. This unsubstantiated reduction presents an issue since CalEEMod
uses the CO intensity factor to calculate the Project’s GHG emissions associated with
2
electricity use. Id.
vi.Unsubstantiated inclusion of construction-related mitigation measures.
The IS/MND’s CalEEMod model includes unsubstantiated construction-related
mitigation measures. Id. Specifically, the CalEEMod output files demonstrate that the
following construction-related mitigation measures were included in the model: “Replace
Ground Cover,” “Water Exposed Area,” “Reduce Vehicle Speed on Unpaved Roads,” and
“Clean Paved Roads.” The model also includes a 9 percent reduction in particulate matter
(“PM”) as a result of the “Clean Paved Roads” mitigation measure as well as a 15 miles
per hour (“MPH”) reduced vehicle speed as a result of the “Reduce Vehicle Speed on
Unpaved Roads” mitigation measure. See id. However, review of the City’s responses
demonstrates that the City again fails to justify or correct these modeling errors. Id.
The City states,
The measures referenced by the Commenter are the South Coast
AQMD’s requirements under Rule 403, Fugitive Dust. For justification
regarding limiting vehicle speed to 15 miles per hour, please see South
Coast AQMD Rule 403, Table 2 for Unpaved Roads. The percent
reductions are based on the Mitigation Measures and Control Efficiencies
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SAFER Comments
October 27, 2020
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documented by South Coast AQMD online:
http://www.aqmd.gov/home/rulescompliance/ceqa/air-quality-analysis-
handbook/mitigation-measures-and-controlefficiencies: CalEEMod clean
paved road percent mitigation module is based on use of street sweepers
on paved public roads, which is required under Rule 403. Therefore, we
disagree with the commenter that this measure does not apply to the
project, as street sweepers would eliminate track-out on public roads
during construction activities. For justification regarding 9 percent
particulate matter (PM) reduction on a public road from South Coast
AQMD Rule 1186, please see South Coast AQMD Fugitive Dust Mitigation
Measures Table XI-C. Rule 403 requires that visible dust emissions must
not exceed 20 percent opacity and/or remain visible in the atmosphere
beyond the property line, and these measures are the primary mechanism
to achieve the mandatory requirements of South Coast AQMD Rule 403.
Table 1, Best Available Control Measures, of Rule 403 include the
measures that are explicitly required for all construction projects in the
South Coast Air Basin (SoCAB). As identified in this table, the measures
include watering, ground cover, and vehicle speed requirements. As such,
modeling accurately reflects the reductions from the mandatory
requirements of South Coast AQMD Rule 403. Additionally, Mitigation
Measure AQ-1 requires enhanced water three times per day during
grading activities.
City’s September 28, 2020 Staff Report p. 2-44. However, this justification is insufficient
for several reasons.
First, the City’s response misinterprets SWAPE’s previous comment, which does
not claim that SCAQMD Rule 403 is applicable to the Project, but that the mitigation
measures included in the IS/MND’s CalEEMod model are not explicitly required by
SCAQMD Rule 403. Ex. A, p. 8. The Project is not required to implement, monitor, or
enforce the aforementioned mitigation measures unless they are included in the Project’s
Mitigation Monitoring and Reporting Program (“MMRP”) or Project Design Features. Id.
Second, review of the IS/MND’s MMRP demonstrates that only the “Water
Exposed Areas” mitigation measure is included. See Appendix M, p. 3. The MMRP fails to
mention the “Replace Ground Cover,” “Reduce Vehicle Speed on Unpaved Roads,” and
“Clean Paved Roads” construction-related mitigation measures whatsoever. See Ex. A, p.
8. Additionally, the MMRP fails to include the 9 percent reduction in PM as a result of the
“Clean Paved Roads” mitigation measure as well as a 15 MPH reduced vehicle speed as
a result of “Reduce Vehicle Speed on Unpaved Roads” mitigation measure. Id. Therefore,
it cannot be verified that these measures would be implemented, monitored, or enforced
on the Project site.
Third, the City’s claim that the source for the 9 percent PM reduction is the
SCAQMD “Fugitive Dust Mitigation Measures Table XI-C” is unsubstantiated. Id. at 9.
Specifically, review of the source demonstrates that the calculations for this 9 percent
The Invitation Project Mitigated Negative Declaration
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reduction include several assumptions, including: a once per month sweeping frequency,
86% efficiency sweeping, an 8.6-day return time, a CA-VMT weighted sweeping
frequency, and 15 centerline miles swept per day. Id. However, review of the IS/MND and
City’s responses demonstrate that the City failed to mention any of these assumptions for
the Project and therefore the 9 percent PM reduction included for this measure and its
inclusion in the model is incorrect and unsubstantiated.
The IS/MND Failed to Adequately Analyze the Project’s Diesel Particulate
Matter Health Risk Emissions.
In its August 19 comment, SWAPE also identified the City’s failure to adequately
evaluate the Project’s potential health risk impacts. After reviewing the City’s responses to
its previous comments, SWAPE maintains that the City fails to justify its omission of a
quantified construction and operational health risk assessment (“HRA”), which is
inadequate for the following reasons. See Ex. A, p. 9.
The City incorrectly relies on an LST analysis.
i.
The IS/MND incorrectly relies on a localized significance threshold (“LST”) analysis
to determine the significance of the Project’s health risk impacts and the City continues to
incorrectly rely on the LST analysis. In its responses to SWAPE’s comments, the City
stated,
We disagree with the Commenter that use of the localized significance
thresholds (LSTs) to determine the health risk impacts on nearby sensitive
receptors is incorrect. As documented in the Initial Study, use of LSTs to
correlate the cancer and non-cancer risks from project-related
construction diesel particulate matter (DPM) has been clearly identified as
the preferred methodology by staff at the South Coast Air Quality
Management District (South Coast AQMD) since the 2015 Office of
Environmental Health Hazards Assessment (OEHHA) guidelines were
adopted.
City’s September 28, 2020 Staff Report p. 2-46.
As previously discussed in the August 19 SWAPE Comment, the City cannot rely
on an LST analysis because it only evaluates impacts from criteria air pollutants. See Ex
A., p. 10. Additionally, according to the Final Localized Significance Threshold
Methodology document prepared by the SCAQMD, the LST analysis is only applicable to
NO, CO, PM, and PM emissions, which are collectively referred to as criteria air
x102.5
pollutants. See “Final Localized Significance Threshold Methodology.” SCAQMD, Revised
July 2008, available at: http://www.aqmd.gov/docs/default-
source/ceqa/handbook/localized-significance-thresholds/final-lst-methodology-
document.pdf. Since the LST method can only be applied to criteria air pollutants, it
cannot be used to determine whether emissions from toxic air contaminants (“TACs”),
specifically diesel particulate matter (“DPM”), a known human carcinogen, will result in a
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significant health risk impact to nearby sensitive receptors. Ex. A, p. 10. Additionally,
SCAQMD guidance states “\[p\]rojects that emit toxic air contaminants (TAC) typically
undergo an analysis of localized air quality impacts relative to cancer and non-cancer
health risks.” “Fact Sheet: Localized Significance Thresholds.” SCAQMD, available at:
file:///C:/Users/SWAPE/Downloads/SCAQMD%20LST%20Fact%20Sheet.pdf
, p. 2.
Here, however, health impacts from exposure to TACs, including DPM, associated
with the Project’s operation were not analyzed relative to cancer health risks, thus leaving
a gap in the IS/MND and City’s analysis. Ex. A, p. 10. As such, the Project’s health risk
impacts were not adequately analyzed and an EIR should be prepared to adequately
analyze these impacts.
Incorrect and unsubstantiated construction HRA.
ii.
The IS/MND failed to conduct a quantified HRA evaluating the potential health risk
impacts associated with the Project’s construction. Id. In response, the City provided a
quantified construction HRA, stating,
None-the-less, a construction health risk assessment (HRA) has been
conducted and has been included in Appendix B of this Response to
Comments to supplement the analysis under in Section 3.2, Air Quality, of
the Initial Study. As identified in Appendix C, the incremental cancer risk of
9.6 in a million was determined for residents proximate to the project site.
Additionally, the chronic non-cancer hazard index of 0.020 was calculated
for nearby residents. The calculated health risks are below the South
Coast AQMD’s significance thresholds of 10 in a million for cancer risk
and 1.0 for chronic hazards, and project-related construction health
impacts would be less than significant. The results of the HRA in Appendix
C further substantiate that construction emissions would not pose a threat
to sensitive receptors and no additional mitigation measures are
necessary.
City’s September 28, 2020 StaffReport p. 2-46. However, the City’s conclusion that the
Project’s cancer risk from construction emissions would not exceed the SCAQMD
threshold of 10 in one million is not sufficient. Ex. A, p. 10.
First, the City’s construction HRA is incorrect since it relies on an exhaust PM
10
estimate from a flawed air model. Id. at 11. The HRA therefore uses an underestimated
DPM concentration to calculate the health risk associated with the Project’s construction.
Id. Since these underestimated emissions produce a cancer risk estimate almost exactly
equal to the threshold, it is likely that an HRA based on an accurate model would result in
a cancer risk that exceeds this threshold, demonstrating a significant impact not
previously identified or addressed. Id.
Second, the City’s construction HRA fails to sum the cancer risk calculated for
each age group for both Project construction and operation together. Id. According to the
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Office of Environmental Health Hazard Assessment (“OEHHA”) guidance referenced by
the IS/MND, “the exceed cancer risk is calculated separately for each age grouping and
then summed to yield cancer risk at the receptor location.” See IS/MND, p. 57; see also
“Guidance Manual for preparation of Health Risk Assessments.” OEHHA, February 2015,
available at: https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdfp. 8-4.
However, the HRA failed to evaluate the cumulative lifetime cancer risk to nearby,
existing receptors as a result of the Project’s construction and operation together. Ex. A,
p. 11. As the IS/MND and City acknowledge that the Project’s operations would include
truck trips associated with move-in and deliveries, which will produce DPM, these
emissions should be quantified and summed with the construction-related cancer risk in
order to calculate the Project’s cumulative health risk impact. Id. Without any substantial
evidence to demonstrate that these impacts would not be significant, as claimed by the
City, the City’s conclusion cannot be verified. Id.
Failure to conduct an operational HRA.
iii.
The IS/MND failed to conduct a quantified HRA evaluating the health risk impacts
associated with the Project’s operation. Id. However, review of the City’s responses to
SWAPE’s comments demonstrates that the City still failed to conduct a quantified
operational HRA, stating,
Consistent with the South Coast AQMD guidelines (see Appendix A, page
17 to the IS/MND), residential projects do not warrant a full health risk
assessment to substantiate less than significant health risk impacts in this
regard. The Commenter asserts that the project would generate
thousands of daily vehicle trips. However, only a small fraction of the
project-related trips would be truck trips associated with move-in and
deliveries (conservatively 15 truck trips, or approximately 8 trucks).
Additionally, these type of delivery trucks are not idling for substantial
durations like they would at warehouse and/or industrial operations.
Furthermore, the Proposed Project replaces an existing tow yard facility
that generates substantially more trucks than that generated by the
Proposed Project. According to the traffic analysis prepared by Urban
Crossroads, the tow yard currently generate 58 trucks trips (29 trucks) on
a daily basis. As a result, the Proposed Project would generate less trucks
(21 fewer trucks). Consequently, the Proposed Project would provide an
environmental benefit because it would reduce diesel particulate matter
(DPM) associated with trucks. The Initial Study provides sufficient
justification on why there would be no significant long-term impacts.
City’s September 28, 2020 Staff Report p. 2-46. However, this justification is insufficient
for several reasons. Ex. A, p. 12.
First, once construction of the Project is complete, the Project will operate for a
long period of time. According to the Traffic Impact Analysis (“TIA”) provided as Appendix
J to the IS/MND, Project operational will generate approximately 1,464 daily vehicle trips,
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which will generate additional exhaust emissions and continue to expose nearby sensitive
receptors to DPM emissions. See IS/MND Appendix J, p. 34, Table 4-1. Additionally,
according to the fleet mix proposed in Appendix A, 24% and 18% of these vehicle trips
would be medium duty truck and heavy-duty truck and bus trips, respectively. Ex. A, p.
12. The Project would therefore generate 351 and 264 medium duty truck and heavy-duty
truck and bus trips, respectively. Id. As such, the City’s claim that the Project would
generate only 15 and 8 truck trips for move-in and deliveries is incorrect. Id. Regardless,
the City acknowledges that the Project will generate operational truck trips that will
generate additional exhaust emissions. Without quantifying these emissions to sum with
the cancer risk calculated by the City’s quantified construction HRA, the City should not
conclude that these impacts will be less than significant.
Second, by failing to conduct a quantified operational HRA, the Project is
inconsistent with the most recent guidance published by OEHHA, the organization
responsible for providing guidance on conducting HRAs in California. Id. OEHHA’s most
recent guidance describes the types of projects that warrant the preparation of an HRA.
The guidance recommends that exposure from projects lasting more than 6 months be
evaluated for the duration of the project, and recommends that an exposure duration of
30 years be used to estimate individual cancer risk for the maximally exposed individual
resident (“MEIR”). See “Risk Assessment Guidelines Guidance Manual for Preparation of
Health Risk Assessments.” OEHHA, February 2015, available at:
http://oehha.ca.gov/air/hot_spots/2015/2015GuidanceManual.pdf, p. 8-6, 8-15. Even
though the lifetime of the Project was not provided, it is reasonably presumed that the
Project will operate for 30 years, if not more. Ex. A, p. 13. Therefore, SWAPE
recommends that health risks from the Project’s operation also be evaluated in an EIR
since the 30 year exposure duration vastly exceeds the 6 month requirement as set forth
by OEHHA.
Substantial Evidence Exists to Support a Fair Argument that the Project Will
result in Significant Health Risk Impacts from Diesel Particulate Matter
In an effort to demonstrate the Project’s potential risk due to construction and
operation to nearby sensitive receptors, SWAPE prepared a simple screening-level HRA,
as shown in its August 19 comment letter. SWAPE estimated that the excess cancer risk
over the course of a residential lifetime as the MEIR, with age sensitivity factors, would be
approximately 131 in one million. See August 19 SWAPE Comment, p. 19. SWAPE also
estimated that the excess cancer risk over the course of a residential lifetime at the MEIR,
without age sensitivity factors, would be approximately 25 in one million. Id. In response
to SWAPE’s findings, the City stated,
At the request of the Commenter, a construction HRA was conducted and
the results are provided in Appendix C. The construction HRA included air
dispersion modeling with AERMOD which incorporates local
meteorological and terrain data to generate more refined health risk
results than the screening-level HRA prepared by the Commenter. As
documented in Appendix B, construction emissions would not exceed 10
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in a million cancer risk at the nearest offsite sensitive receptor and no
additional mitigation measures are necessary.
City’s September 28, 2020 Staff Report p. 2-47. However, this response is insufficient for
several reasons.
First, the City ignored SWAPE’s screening level HRA. If an unacceptable air quality
hazard is determined to be possible using AERSCREEN, a more refined modeling
approach is required prior to approval of the Project. Ex. A, p. 13. Since SWAPE’s
screening-level HRA indicates a potentially significant health risk impact, further analysis
should be conducted to identify the health risk associated with the Project and mitigation
should be implemented, if necessary.
Second, SWAPE prepared screening-level operational HRA to sum with the City’s
purported construction-related cancer risk of 9.6 in one million. See id. at 13-17. SWAPE
concluded that the cancer risk over the course of a residential lifetime at the MEIR, with
age sensitivity factors, is approximately 38.6 in one million, and without age sensitivity
factors is approximately 21.4 in one million. Id. at 16-17. These both exceed the
SCAQMD threshold of 10 in one million, resulting in a significant impact not previously
addressed or identified by the IS/MND or City. Id. Therefore, the Project should not be
approved until an EIR is prepared to adequately identify and mitigate the Project’s
anticipated construction and operational health risk impacts to less than significant levels.
Substantial Evidence Exists to Support a Fair Argument that the Project May
Result in Significant GHG Impacts.
In its August 19 comment, SWAPE also identified the City’s failure to adequately
evaluate the Project’s GHG impacts. After reviewing the City’s responses to its previous
comments, SWAPE maintains that the City again failed to adequately evaluate the
anticipated GHG impacts. Id. at 17.
First, the City’s quantitative GHG analysis relies on an incorrect and
unsubstantiated air model, as discussed above. Id. Second, the City’s quantitative GHG
analysis relies on an incorrect and unsubstantiated threshold. Id. at 18. According to the
IS/MND, the Project’s anticipated GHG emissions would not exceed the SCAQMD bright-
line threshold of 3,000 MTCOe/year for mixed-use projects and the City reiterated that
2
the net increase in emissions associated with the Project would not exceed this threshold
so the GHG impacts would be less than significant. See IS/MND, p. 73; see also City’s
September 28, 2020 Staff Report p. 2-47. However, this is incorrect since the SCAQMD
threshold of 3,000 MTCOe/year is outdated and inapplicable to the Project. Ex. A, p. 18.
2
The SCAQMD developed this threshold when the Global Warming Solutions Act of
2006, known as AB 32, was the governing statute for GHG reductions in California. Id. AB
32 requires California to reduce GHG emissions to 1990 levels by 2020. See Health &
Safety Code section 38550, available at:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC§io
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nNum=38550. Since the Project has not yet been approved and 2021 is only several
months away, the Project will not be operational before 2020. Ex. A, p. 18. The SCAQMD
bright-line threshold is therefore outdated and inapplicable to the Project, and the City’s
less than significant GHG impact conclusion should not be relied upon. Id. In September
2016, Governor Brown signed Senate Bill 32 which requires California to achieve a new,
more aggressive 40% reduction in GHG emissions over the 1990 level by the end of
2020. See Health & Safety Code section 38566, available at:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC§io
nNum=38566. The Project should therefore comply with SB 32 and SAWPE recommends
that the Project rely on the SCAQMD efficiency threshold of 3.0 metric tons of CO
2
equivalents per service population per year (“MT COe/SP/year”) for year 2035, which
2
was calculated based on a 40% reduction from the 2020 GHG efficient target. Ex. A, p.
19; see“Minutes for the GHG CEQA Significance Threshold Stakeholder Working Group
#15.” SCAQMD, September 2010, available at: http://www.aqmd.gov/docs/default-
source/ceqa/handbook/greenhouse-gases-(ghg)-ceqa-significance-thresholds/year-2008-
2009/ghg-meeting-15/ghg-meeting-15-minutes.pdf, p. 2.
Using the Project-specific information provided in the IS/MND and in the City’s
responses, SWAPE analyzed the Project’s GHG emissions and compared it to this
updated efficiency threshold. See Ex. A, p. 19. SWAPE found that the Project would emit
approximately 3.38 MT COe/SP/year,exceeding the SCAQMD efficiency target of 3.0
2
MT COe/SP/year and resulting in a significant GHG impact not previously identified or
2
addressed in the IS/MND. Id.
IV. BROWN ACT DISCUSSION
The City’s Procedures Violate the Brown Act and Render Any Decision Null
A.
and Void.
SAFER requests that the City continue consideration of the Project until after the
COVID-19 State of Emergency is lifted. The state of emergency makes it impossible for
the public to actively participate in public meetings at which the Project will be considered
as required by the Brown Act. Since the Project does not pose any emergency, there is
no reason that its consideration cannot be continued until after the state of emergency is
lifted and the City is once again able to conduct regular meetings with public attendance.
Members of the public would like to address the City Council, but the City Council’s
agenda has made clear that there will be no opportunity for the public to make oral
comments to the Council, in clear violation of the Brown Act. If the City approves the
Project without full compliance with the Brown Act, the decision will be null and void.
i. The City must comply with the Brown Act as codified regardless of the Governor’s
executive orders.
To the extent that Governor Newsom’s Executive Order (“EO”) N-29-20 of March
17, 2020 (“March 17 EO”) and EO N-35 20 of March 21, 2020 (“March 21 EO”) modified,
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SAFER Comments
October 27, 2020
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amended, or otherwise revised the Brown Act, the EOs are invalid under the California
Constitution, article I, section 3(b)(7) (“section 3(b)(7)”).
In 2014, California voters passed Proposition 42 which amended the California
Constitution to read, in relevant part:
\[E\]ach local agency is hereby required to comply with . . . the Ralph M.
Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of
Division 2 of Title 5 of the Government Code), and with any subsequent
statutory enactment amending either act, enacting a successor act, or
amending any successor act that contains findings demonstrating that the
statutory enactment furthers the purposes of this section. (Cal. Const., art.
1
I § 3(b)(7))
By the plain language of section 3(b)(7), local agencies are required to comply with
the Brown Act as codified. Furthermore, “statutory enactment”—not executive order—is
the only constitutionally permissible means of amending the Brown Act under section
3(b)(7). Black Law’s Dictionary defines “statute” as “An act of the legislature; a
particular law enacted and established by the will of the legislative department of
government, expressed with the requisite formalities.” Since the California legislature has
not amended the Brown Act, the California Constitution requires that local agencies
comply with the Brown Act as codified regardless of Governor Newsom’s EOs.
In both the March 17 EO and March 21 EO, Governor Newsom cites Government
Code sections 8567 and 8571 as the authority for his power to amend the Brown Act
during the COVID-19 state of emergency. March 17 EO, p. 1; March 21 EO, p. 1.
However, neither of these provisions are part of the Constitution, unlike the Brown Act
itself. Therefore, neither of those provisions grant—nor could they grant—the executive
the power to override the California Constitution. Government Code section 8567 states:
(a) The Governor may make, amend, and rescind orders and
regulations necessary to carry out the provisions of this
chapter. The orders and regulations shall have the force and effect
of law. . . .
(b) Orders and regulations, or amendments or rescissions thereof,
issued during a state of war emergency or state of emergency shall
1 The full text of Cal. Const., art. I § 3(b)(7):
In order to ensure public access to the meetings of public bodies and the writings of
public officials and agencies, as specified in paragraph (1), each local agency is
hereby required to comply with the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the Government Code)
and the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1
of Division 2 of Title 5 of the Government Code), and with any subsequent statutory
enactment amending either act, enacting a successor act, or amending any
successor act that contains findings demonstrating that the statutory enactment
furthers the purposes of this section.
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October 27, 2020
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be in writing and shall take effect immediately upon their issuance.
Whenever the state of war emergency or state of emergency has
been terminated, the orders and regulations shall be of no further
force or effect.
Gov. Code § 8657. Government Code section 8571 states:
During a state of war emergency or a state of emergency the Governor may
suspend any regulatory statute, or statute prescribing the procedure for
conduct of state business, or the orders, rules, or regulations of any state
agency . . . where the Governor determines and declares that strict
compliance with any statute, order, rule, or regulation would in any way
prevent, hinder, or delay the mitigation of the effects of the emergency. (Gov.
Code § 8571.)
Although these provisions allow the Governor to make orders and regulations to
carry out the Government Code (including the Brown Act) and to suspend certain
statutes, Government Code sections 8567 and 8571 do not grant the Governor the
authority to override the California Constitution, which requires compliance with the Brown
Act subject to amendment only by the legislative branch. Cal. Const., art. I § 3(b)(7). Most
importantly, neither of these provisions are in the Constitution. It is black-letter law that a
statutory provision may not contradict a Constitutional provision. As such, to the extent
that a local agency relies on Governor Newsom’s March 17 EO and March 21 EO instead
of on the Brown Act directly, the agency is in in violation of the California Constitution,
article I, section 3(b)(7).
The Brown Act requires that the public be allowed to comment at a hearing.
ii.
The Brown Act already contains provisions for conducting public meetings by
teleconferencing and video conferencing. Under the Brown Act, “\[T\]he legislative body
of a local agency may use teleconferencing for the benefit of the public and the
legislative body of a local agency in connection with any meeting or proceeding
authorized by law.” Gov. Code § 54953(b)(1). The Brown Act defines “teleconference” as
“a meeting of a legislative body, the members of which are in different locations,
connected by electronic means, through either audio or video, or both.” Gov. Code §
54953(b)(4).
When a local agency uses teleconferencing, the Brown Act requires that the
teleconference information be available in the meeting agenda and that the
teleconference be accessible to the public. Gov. Code § 54953(b)(3). Importantly, the
Brown Act further requires that the agenda “provide an opportunity for members of the
public to address the legislative body directly pursuant to Section 54954.3 at each
teleconference location.” Gov. Code § 54953(b)(3). The above requirement of section
54953(b)(3) of the Brown Act allows for the use of teleconferencing to satisfy the
requirements of section 54954.3 that members of the public have the opportunity to
comment on an agenda item either before or during a meeting. Gov. Code § 54954.3(a)
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\[“Every agenda for regular meetings shall provide an opportunity for members of the
public to directly address the legislative body on any item of interest to the public, before
or during the legislative body’s consideration of the item.”\]. As such, any public meeting
conducted by teleconference but does not allow for public comment during the meeting is
in violation of the Brown Act.
Local agencies must allow for public comment during a public meeting.
iii.
The Brown Act does contain emergency provisions—however, none of these
provisions provide for prohibiting public comment during a meeting.
First, the Brown Act allows public meetings in certain emergency circumstances
with limited (one-hour) or no prior notice. Gov. Code § 54956.5. Second, the Brown Act
contains authority allowing action on items not included on a posted regular agenda in
certain emergency situations. Gov. Code § 54954.2(b)(2). Lastly, in certain emergency
situations, the Brown Act allows for a public meeting location to change without notice as
long as local media is notified “by the most rapid means of communication available at the
time.” Gov. Code § 54954(e).
Notably, the emergency provisions above in the Brown Act pertain only to notice,
location, and agency action. No provision of the Brown Act contemplates abrogating the
public’s right to provide comment during a public meeting either in-person or, if
necessary, by teleconferencing or video conferencing. See Gov. Code §§ 54953(b)(1),
(b)(3), (b)(4).
Even if Governor Newsom’s March 17 EO and March 21 EO were valid under the
California Constitution as to the Brown Act, a local agency which does not permit public
comment during a public meeting fails to comply with those orders. The March 17 EO
explicitly states:
All state and local bodies are urged to use sound discretion and to
make reasonable efforts to adhere as closely as reasonably
possible to the provisions of the Bagley-Keene Act and the
Brown Act, and other applicable local laws regulating the conduct of
public meetings, in order to maximize transparency and provide
the public access to their meetings.
March 17 EO, p. 4.
Many municipalities are making public comment during teleconferenced meetings
possible, which shows that adherence to the Brown Act provisions discussed above is
possible during the COVID-19 state of emergency. Thus, any local agency which does
not providefor public comment during a public meeting—teleconferenced or otherwise—
is in violation of the California Constitution, article I, section 3(b)(7) and the Brown Act as
well as in violation of Governor Newsom’s executive orders.
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October 27, 2020
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V. CONCLUSION
In light of the above comments, the City must prepare an EIR for the Project and
the draft EIR should be circulated for public review and comment in accordance with
CEQA, and the City must continue consideration of the Project until after the lifting of the
COVID-19 State of Emergency to allow full public participation and full compliance with
the Brown Act and the California Constitution. Thank you for considering these
comments.
Sincerely,
Paige Fennie
LOZEAU DRURY LLP
2656 29 th Street, Suite 201
Santa Monica, CA 90405
Matt Hagemann, P.G, C.Hg.
(949) 887-9013
mhagemann@swape.com
Paul E. Rosenfeld, PhD
(310) 795-2335
prosenfeld@swape.com
October 2, 2020
Paige Fennie
Lozeau Drury LLP
1939 Harrison Street, Suite 150
Oakland, CA 94612
Subject: Comments on The Invitation Project (SCH No. DEV2019-00087)
Dear Ms. Fennie,
We have reviewed the September 2020 Planning Commission Report (“PCR”) for The Invitation Project
(“Project”) located in the City of Anaheim (“City”). After our review of the PCR, we find that the PCR is
insufficient in addressing our concerns regarding the Project’s air quality, health risk, and greenhouse
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gas impacts. As we asserted in our August 19 comment letter, a Project-specific EIR should be prepared
to adequately evaluate the Project’s potential impacts.
Unsubstantiated Input Parameters Used to Estimate Project Emissions
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In our August 19 comment letter, we identified several issues with the IS/MND’s air model (California
Emissions Estimator Model, “CalEEMod”)1 that artificially reduced the Project’s construction and
operational emissions. After review of the PCR, we found that the PCR fails to address all of our
concerns and maintain that the IS/MND’s CalEEMod model is flawed and fails to accurately estimate the
Project’s criteria air pollutant emissions. As such, we find the IS/MND and PCR to be inadequate and
maintain that an EIR should be prepared to adequately evaluate the Project’s local and regional air
quality impacts. Until a proper air quality analysis is conducted, the Project should not be approved.
http://caleemod.com/
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As discussed in our August 19 comment letter, the IS/MND’s CalEEMod model includes
unsubstantiated changes to the Project’s anticipated construction schedule. Review of the PCR
demonstrates that the Project again fails to justify or correct this modeling error. As discussed below,
we find the IS/MND and PCR to be inadequate and maintain that the air quality impact significance
determination is unsubstantiated.
Regarding the unsubstantiated changes to the Project’s anticipated construction schedule, the PCR
states:
“Appendix A of the IS/MND documents the changes to the construction schedule subphases. As
identified in Appendix A, the CalEEMod defaults was modified based on the project-specific
construction schedule provided by the Project Applicant. In instances where data from the
Project Applicant is available, CalEEMod defaults should be modified since they are based on
surveys of other construction sites in the South Coast AQMD region. As a result, the
construction emissions modeling in Appendix A more accurately reflects the project-related
emissions than if CalEEMod default construction phasing and duration was utilized” (p. 2-42).
However, this justification is insufficient. As previously stated in our August 19 th comment letter, while
Appendix A provides the assumed construction schedule, the source for this construction schedule is
“based on info provided by applicant, normalized to fit duration provided by applicant” (see excerpt
below) (Appendix A, pp. 84).
However, the IS/MND fails to mention these changes or disclose the referenced “info provided by
applicant.” Absent the “info provided by applicant,” including assumptions and information used to
estimate these phase lengths, we are unable verify that the assumed construction schedule is correct for
the proposed Project. Thus, the revised construction schedule inputted into the model is
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unsubstantiated. As previously stated in our August 19 comment letter, the significant and
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disproportional changes in length to each construction phase included in the model present an issue, as
spreading out construction emissions over a longer period than anticipated results in an
underestimation of the maximum daily emissions associated with Project construction. In addition,
according to the CalEEMod User’s Guide, each construction phase is associated with different emissions
activities (see excerpt below).2
By disproportionately increasing and decreasing individual construction phases, without providing
proper justification or disclosing the relevant information, the model’s emissions calculations are altered
and potentially distributed incorrectly. Thus, by including unsubstantiated changes to the Project’s
anticipated construction schedule and individual phases, the model may underestimate the Project’s
construction-related emissions. As such, we maintain our August 19 th comment that the less-than-
significant air quality impact conclusion should not be relied upon.
As discussed in our August 19 th comment letter, the IS/MND’s CalEEMod model includes
unsubstantiated changes to the Project’s anticipated wastewater treatment system percentages,
assuming that 100% of the Project’s wastewater would be treated aerobically. Review of the PCR
demonstrates that the Project again fails to justify or correct this modeling error. As discussed below,
we find the IS/MND and PCR to be inadequate and maintain that the air quality impact significance
determination is unsubstantiated.
Regarding the unsubstantiated changes to the Project’s anticipated wastewater treatment system
percentages, the PCR states:
“The default wastewater percentages to calculate indirect GHG emissions from wastewater
treatment processes in the CalEEMod model are based on statewide data of the primary
treatment methods. For example, in the state 10.33 percent of wastewater is treated using
septic tanks, 87.46 percent aerobic, and 2.21 percent lagoons. The project clearly does not
“CalEEMod User’s Guide.” CAPCOA, November 2017, available at: http://www.caleemod.com/, p. 31.
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involve use of septic tanks; and therefore, septic tanks was zeroed out in the model. The Orange
County Sanitation District’s (OCSD) wastewater treatment is a tertiary-treated wastewater. The
first step of this process is aerobic treatment prior. While there may be some anaerobic bacteria
digest sludge during the wastewater treatment process, OCSD does not primarily treat
wastewater in open-air facultative lagoons; and hence why lagoons was zeroed out in the
model.
CalEEMod has a separate module for direct emissions from the anaerobic digestion process.
OCSD’s anerobic processes (part of the tertiary treated wastewater system) are enclosed in an
anerobic digester that generates electricity to offset the plant’s energy use. As identified in the
model, CalEEmod correctly reflects 100 percent anaerobic digester with combustion of digester
gas for emissions associated with the anaerobic treatment of wastewater emissions. As a result,
modeling in CalEEMod is conservative for OCSD’s facilities and correctly adjusts the wastewater
percentages to reflect the tertiary treatment processes of OCSD’s facilities” (p. 2-42 – 2-43).
However, this justification is insufficient for two (2) reasons.
First, we agree with the PCR’s statement that “there may be some anaerobic bacteria digest sludge
during the wastewater treatment process,” which means that assuming 100% of the Project’s water
would be treated aerobically is incorrect. The “Anaerobic and Facultative Lagoons” wastewater
treatment percentage type includes both anaerobic and facultative lagoon wastewater treatment
processes. As such, the model should have assumed that a percentage of the Project’s would be treated
via “Anaerobic and Facultative Lagoons,” as stated by the PCR.
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Second, as previously stated in our August 19 comment letter, review of Orange County Sanitation
District’s website reveals that anaerobic bacteria digests sludge during the primary wastewater
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treatment process. Thus, as some of the Project’s would be treated anaerobically, the Project’s
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operational emissions should be modeled as such. As previously stated in our August 19 comment
letter, by incorrectly modeling the Project’s operational emissions under the assumption that 100% of
the Project’s wastewater would be treated aerobically, the model may underestimate the Project’s
greenhouse gas (“GHG”) emissions, as each type of wastewater treatment system is associated with
different GHG emission factors, which are used by CalEEMod to calculate the Project’s total GHG
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emissions. As such, we maintain our August 19 comment that the Project’s modeling and less-than-
significant air quality and GHG impact conclusions should not be relied upon.
As discussed in our August 19 th comment letter, the IS/MND’s CalEEMod model includes
unsubstantiated changes to the Project’s anticipated number of fireplaces. Review of the PCR
demonstrates that the Project again fails to justify or correct this modeling error. As discussed below,
“Orange County Sanitation District Show Document.” OCSD, available at:
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https://www.ocsd.com/Home/ShowDocument?id=29045, p. 6.
CalEEMod User Guide, available at: http://www.caleemod.com/, p. 45.
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we find the IS/MND and PCR to be inadequate and maintain that the air quality impact significance
determination is unsubstantiated.
Regarding the unsubstantiated changes to the Project’s anticipated number of fireplaces, the PCR states:
“Modeling correctly identifies that the Proposed Project would not include wood burning or gas
fireplaces in the individual residential units. The open spaces areas would not include
woodburning fireplaces as South Coast AQMD Rule 445, Woodburning Devices, prohibits
installation of fireplaces in urban areas of Southern California. The amenities in the outdoor area
are conceptual only. If ultimately installed, the gas-burning firepit would be used occasionally by
residents. CalEEMod does not include a module for this type of recreational use. Conservatively,
assuming a 50,000 British Thermal Unit (BTU) natural gas burning fire feature would be installed
and would be used for up to two hours per day, emissions would be nominal (See Appendix B to
this Response to Comments) and would generate a maximum of 0.01 lbs/day of NOand 2
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MTCOe annually. As a result, the emissions profile for Proposed Project estimated included in
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the IS/MND accurately reflects the Proposed Project emissions” (p. 2-43).
However, this justification is insufficient, as the PCR’s response is insufficient. While the PCR claims that
“that the Proposed Project would not include wood burning or gas fireplaces in the individual residential
units,” the PCR later states that “a 50,000 British Thermal Unit (BTU) natural gas burning fire feature
would be installed and would be used for up to two hours per day” (p. 2-43). Thus, the proposed Project
would, in fact include a fireplace, as stated by the IS/MND and PCR and, as such, the Project’s CalEEMod
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model should account for these emissions. Furthermore, as previously stated in our August 19
comment letter, failing to include a fireplace that would be included as part of the proposed Project
presents an issue, as CalEEMod uses the number of fireplaces to calculate the Project’s area-source
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operational emissions.As such, we maintain our August 19 comment that the less-than-significant air
quality impact conclusion should not be relied upon.
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As discussed in our August 19 comment letter, the IS/MND’s CalEEMod model includes
unsubstantiated changes to the Project’s anticipated operational vehicle fleet mix. Review of the PCR
demonstrates that the Project again fails to justify or correct this modeling error. As discussed below,
we find the IS/MND and PCR to be inadequate and maintain that the air quality impact significance
determination is unsubstantiated.
Regarding the unsubstantiated changes to the Project’s anticipated operational vehicle fleet mix, the
PCR states:
“Appendix A in the IS/MND fully substantiates the changes to the project’s vehicle mix. The
default vehicle mix in CalEEMod is based on regional, county-wide travel on roadways. Because
heavy duty truck trips travel substantially longer distances than passenger vehicle car trips, the
fleet mix profile in CalEEMod is inaccurately skewed toward a larger number of truck trips than
“CalEEMod User’s Guide.” CAPCOA, November 2017, available at: http://www.caleemod.com/, p. 40.
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realistic for land use development projects. As a result, it is appropriate to modify the default
fleet mix in CalEEMod to more realistically reflect the vehicle mix profile anticipated for a
residential project. For example, CalEEMod default values for Orange County for the Proposed
Project would be 161 medium duty trucks and 101 heavy duty trucks, buses, and motorhomes,
for a total of 162 truck trips out of 1,464 vehicle trips (18 percent). This number of truck trip
clearly is not accurate for a residential project where the vast majority of vehicle trips are
associated with passenger vehicle employee commute trips and service-based trips (school,
shopping, etc.). Consequently, the fleet mix in CalEEMod was appropriately adjusted to account
for a higher percentage of passenger vehicle trips that correspond to the types of trips
residential projects generate. As identified in Appendix A, modeling is based on a conservative
fleet mix of 97 percent passenger vehicles and assumes a maximum of 44 truck trips (e.g.,
delivery, moving trucks, etc.) out of the 1,464 vehicle trips generated by the Proposed Project.
Because this still reflects a conservative number of truck trips associated with a residential type
project, emissions in the IS/MND are not underestimated. The IS/MND provides a conservative
estimate of mobile source emissions generated by the Proposed Project” (p. 2-43).
However, the PCR’s claim that “modeling is based on a conservative fleet mix of 97 percent passenger
vehicles and assumes a maximum of 44 truck trips,” as identified in Appendix A, is incorrect and
contradictory. Regarding the Project’s assumed vehicle fleet mix percentages, Appendix A to the IS/MND
actually states:
“Fleet mix for the project is modified to reflect a higher proportion of passenger vehicles that
the regional VMT. Assumes a mix of approximately 58% passenger vehicles, 24% medium duty
trucks, and 18% heavy duty trucks and buses, based on driveway counts from Urban Crossroads”
(Appendix A, pp. 90).
As such, based on information provided by Appendix A, the model should have included passenger
vehicle, medium duty truck, and heavy-duty truck and bus fleet mix percentages of 58%, 24%, and 18%
respectively. This directly contradicts the PCR’s claim that the correct passenger car fleet mix percentage
would be 97%, with only 44 truck trips. We agree with the PCR’s claim that “heavy duty truck trips travel
substantially longer distances than passenger vehicle car trips,” and as such, by incorrectly including a
97% passenger vehicle fleet mix percentage, the model underestimates the Project’s mobile-source
operational emissions. Furthermore, as previously stated in our August 19 th comment letter, these
unsubstantiated changes to the Project’s anticipated operational vehicle fleet mix present an issue, as
CalEEMod uses the fleet mix percentages to calculate the Project’s operational emissions associated
with on-road vehicles.6 As a result, we maintain our August 19 th comment that the less-than-significant
air quality impact conclusion should not be relied upon.
As discussed in our August 19 th comment letter, the IS/MND’s CalEEMod model includes an
unsubstantiated change to the Project’s anticipated CO intensity factor. Review of the PCR
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CalEEMod User Guide, available at: http://www.caleemod.com/, p. 35.
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demonstrates that the Project again fails to justify or correct this modeling error. As discussed below,
we find the IS/MND and PCR to be inadequate and maintain that the air quality impact significance
determination is unsubstantiated.
Regarding the unsubstantiated change to the Project’s anticipated COintensity factor, the PCR states:
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“The utility provider for the Proposed Project is the City of Anaheim. CalEEMod does not have
carbon intensity values for Anaheim’s municipal utility. As a result, the City of Anaheim utility
was contacted to obtain the current carbon intensity for Anaheim’s electricity. The Carbon
Intensity values in CalEEMod were replaced with the carbon intensity for Anaheim’s utility, as
documented in Appendix A” (p. 2-43).
However, this justification is insufficient, as both the IS/MND and PCR fail to disclose any information or
provide a source from the City of Anaheim utility that includes the adjusted CO
intensity factor.
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Without disclosing the information received when “the City of Anaheim utility was contacted to obtain
the current carbon intensity,” we are unable to verify the reduced COintensity factor inputted into the
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CalEEMod model. As such, we find the PCR to be inadequate in addressing our comment and maintain
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that the CO intensity factor change is unjustified. As previously stated in our August 19 comment
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letter, this unsubstantiated reduction presents an issue, as CalEEMod uses the CO intensity factor to
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calculate the Project’s greenhouse gas (“GHG”) emissions associated with electricity use.7 As a result,
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we maintain our August 19 comment that the less-than-significant air quality impact conclusion should
not be relied upon.
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As discussed in our August 19 comment letter, the IS/MND’s CalEEMod model includes
unsubstantiated construction-related mitigation measures. Specifically, the CalEEMod output files
demonstrate that the following construction-related mitigation measures were included in the model:
“Replace Ground Cover,” “Water Exposed Area,” “Reduce Vehicle Speed on Unpaved Roads,” and “Clean
Paved Roads.” Furthermore, the model includes a 9% reduction in particulate matter (“PM”) as a result
of the “Clean Paved Roads” mitigation measure, as well as a 15 miles per hour (“MPH”) reduced vehicle
speed as a result of the “Reduce Vehicle Speed on Unpaved Roads” mitigation measure. However,
review of the PCR demonstrates that the Project again fails to justify or correct these modeling errors.
As discussed below, we find the IS/MND and PCR to be inadequate and maintain that the air quality
impact significance determination is unsubstantiated.
Regarding the unsubstantiated changes to the Project’s anticipated construction-related mitigation
measures, the PCR states:
“The measures referenced by the Commenter are the South Coast AQMD’s requirements under
Rule 403, Fugitive Dust. For justification regarding limiting vehicle speed to 15 miles per hour,
please see South Coast AQMD Rule 403, Table 2 for Unpaved Roads. The percent reductions are
based on the Mitigation Measures and Control Efficiencies documented by South Coast AQMD
“CalEEMod User’s Guide.” CAPCOA, November 2017, available at: http://www.caleemod.com/, p. 17.
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online: http://www.aqmd.gov/home/rulescompliance/ceqa/air-quality-analysis-
handbook/mitigation-measures-and-controlefficiencies: CalEEMod clean paved road percent
mitigation module is based on use of street sweepers on paved public roads, which is required
under Rule 403. Therefore, we disagree with the commenter that this measure does not apply
to the project, as street sweepers would eliminate track-out on public roads during construction
activities. For justification regarding 9 percent particulate matter (PM) reduction on a public
road from South Coast AQMD Rule 1186, please see South Coast AQMD Fugitive Dust Mitigation
Measures Table XI-C. Rule 403 requires that visible dust emissions must not exceed 20 percent
opacity and/or remain visible in the atmosphere beyond the property line, and these measures
are the primary mechanism to achieve the mandatory requirements of South Coast AQMD Rule
403. Table 1, Best Available Control Measures, of Rule 403 include the measures that are
explicitly required for all construction projects in the South Coast Air Basin (SoCAB). As identified
in this table, the measures include watering, ground cover, and vehicle speed requirements. As
such, modeling accurately reflects the reductions from the mandatory requirements of South
Coast AQMD Rule 403. Additionally, Mitigation Measure AQ-1 requires enhanced water three
times per day during grading activities” (p. 2-44).
However, this justification is insufficient for three (3) reasons.
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First, the PCR misinterprets our August 19comment, which does not claim that SCAQMD Rule 403 is
applicable to the proposed Project, but that the mitigation measures included in the IS/MND’s
CalEEMod model are not explicitly required by SCAQMD Rule 403. As such, we reiterate that the Project
is not required to implement, monitor, or enforce the aforementioned mitigation measures unless they
are included in the Project’s Mitigation Monitoring and Reporting Program (“MMRP”), or Project Design
Features.
Second, review of the IS/MND’s MMRP demonstrates that only the “Water Exposed Areas” mitigation
measure is included (see excerpt below) (Appendix M, p. 3).
As you can see in the excerpt above, the MMRP states that “exposed ground surfaces and disturbed
areas shall be watered a minimum of three times per day during construction activities,” failing to
mention the “Replace Ground Cover,” “Reduce Vehicle Speed on Unpaved Roads,” and “Clean Paved
Roads” construction-related mitigation measures whatsoever. Furthermore, the MMRP fails to include
the 9% reduction in particulate matter (“PM”) as a result of the “Clean Paved Roads” mitigation
measure, as well as a 15 miles per hour (“MPH”) reduced vehicle speed as a result of the “Reduce
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Vehicle Speed on Unpaved Roads” mitigation measure. Thus, we cannot verify that these measures
would be implemented, monitored, and enforced on the Project site.
Third, the PCR’s claim that the source for the 9% PM reduction is the SCAQMD “Fugitive Dust Mitigation
Measures Table XI-C” is unsubstantiated. Specifically, review of the source demonstrates that the
calculations for this 9% reduction include several assumptions, including: a once per month sweeping
frequency, 86% efficient sweeping, an 8.6-day return time, a CA-VMT weighted sweeping frequency, and
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15 centerline miles swept per day.However, review of the IS/MND and PCRdemonstrate that the
Project failed to mention any of these assumptions for the proposed Project. As such, we are unable to
verify the 9% PM reduction included for this measure, and its inclusion in the model is incorrect and
unsubstantiated.
By including unsubstantiated construction-related mitigation measures, the IS/MND’s models may
underestimate the Project’s construction-related emissions. As such, we maintain our August 19 th
comment that the less-than-significant air quality impact conclusion should not be relied upon.
Diesel Particulate Matter Health Risk Emissions Inadequately Evaluated
As discussed in our August 19 th comment letter, the IS/MND failed to adequately evaluate the proposed
Project’s potential health risk impacts. Review of the PCR demonstrates that the Project again fails to
justify the omission of a quantified construction and operational health risk assessment (“HRA”). As
discussed below, we maintain that the IS/MND and PCR are inadequate for three (3) reasons.
(1)The IS/MND and PCR incorrectly rely upon an LST analysis;
(2)The PCR’s construction HRA relies upon an incorrect and unsubstantiated air model; and
(3)The IS/MND and PCR fail to justify the omission of a quantified operational HRA.
1)
As discussed in our August 19 th comment letter, the IS/MND incorrectly relies upon a localized
significance threshold (“LST”) analysis to determine the significance of the Project’s health risk impacts.
The PCR continues to incorrectly rely upon an LST analysis, stating:
“We disagree with the Commenter that use of the localized significance thresholds (LSTs) to
determine the health risk impacts on nearby sensitive receptors is incorrect. As documented in
the Initial Study, use of LSTs to correlate the cancer and non-cancer risks from project-related
construction diesel particulate matter (DPM) has been clearly identified as the preferred
methodology by staff at the South Coast Air Quality Management District (South Coast AQMD)
since the 2015 Office of Environmental Health Hazards Assessment (OEHHA) guidelines were
adopted” (p. 2-46).
“Table XI-C – Mitigation Measure Examples: Fugitive Dust from Paved Roads.” SCAQMD, April 2007, available at:
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https://www.google.com/url?q=http://www.aqmd.gov/docs/default-source/ceqa/handbook/mitigation-measures-and-control-
efficiencies/fugitive-dust/fugitive-dust-table-xi-
c.doc?sfvrsn%3D2&sa=D&ust=1601656498817000&usg=AFQjCNGrLhhW7JCXGpmveWI1oHzZ8_l5RQ.
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However, the IS/MND and PCR’s reliance upon an LST analysis is incorrect. As previously discussed in our
August 19 th comment letter, the LST analysis only evaluates impacts from criteria air pollutants.
Furthermore, according to the Final Localized Significance Threshold Methodology document prepared
by the SCAQMD, the LST analysis is only applicable to NO, CO, PM, and PMemissions, which are
x102.5
collectively referred to as criteria air pollutants.9 Because the LST method can only be applied to criteria
air pollutants, this method cannot be used to determine whether emissions from toxic air contaminants
(“TACs”), specifically diesel particulate matter (“DPM”), a known human carcinogen, will result in a
significant health risk impact to nearby sensitive receptors. Finally, SCAQMD guidance states:
“Projects that emit toxic air contaminants (TAC) typically undergo an analysis of localized air
quality impacts relative to cancer and non-cancer health risks” (emphasis added).10
Here, however, health impacts from exposure to toxic air contaminants (“TACs”), including DPM,
associated with Project operation were not analyzed relative to cancer health risks, thus leaving a gap in
the IS/MND and PCR’s analysis. As such, we maintain our August 19 th
comment that the Project’s health
risk impacts were inadequately evaluated and that an EIR should be prepared to adequately evaluate
the Project’s health risk impacts.
2)
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As discussed in our August 19 comment letter, the IS/MND failed to conduct a quantified HRA
evaluating potential health risk impacts associated with Project construction. In response, the PCR
provides a quantified construction HRA, stating:
“None-the-less, a construction health risk assessment (HRA) has been conducted and has been
included in Appendix B of this Response to Comments to supplement the analysis under in
Section 3.2, Air Quality, of the Initial Study. As identified in Appendix C, the incremental cancer
risk of 9.6 in a million was determined for residents proximate to the project site. Additionally,
the chronic non-cancer hazard index of 0.020 was calculated for nearby residents. The
calculated health risks are below the South Coast AQMD’s significance thresholds of 10 in a
million for cancer risk and 1.0 for chronic hazards, and project-related construction health
impacts would be less than significant. The results of the HRA in Appendix C further substantiate
that construction emissions would not pose a threat to sensitive receptors and no additional
mitigation measures are necessary” (p. 2-46).
As you can see in the excerpt above, the PCR concludes that Project construction would result in an
incremental cancer risk of 9.6 in one million, which would not exceed the SCAQMD threshold of 10 in
one million. However, this response is insufficient for two (2) reasons.
“Final Localized Significance Threshold Methodology.” SCAQMD, Revised July 2008, available at:
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http://www.aqmd.gov/docs/default-source/ceqa/handbook/localized-significance-thresholds/final-lst-methodology-
document.pdf.
“Fact Sheet: Localized Significance Thresholds.” SCAQMD, available at:
10
file:///C:/Users/SWAPE/Downloads/SCAQMD%20LST%20Fact%20Sheet.pdf, p. 2.
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First, the PCR’s construction HRA is incorrect, as it relies upon an exhaust PMestimate from a flawed
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air model, as reiterated above (pp. 3712). Thus, the HRA utilizes an underestimated DPM concentration
to calculate the health risk associated with Project construction. As these underestimated emissions
produce a cancer risk estimate almost exactly equal to the threshold, it is likely that an HRA based on an
accurate model would result in a cancer risk that exceeds this threshold, demonstrating a significant
impact not previously identified or addressed. Thus, the PCR’s construction HRA, which relies upon an
incorrect and unsubstantiated air model, should not be relied upon to determine Project significance. As
a result, we reiterate that the health risk impacts associated with Project construction are inadequately
evaluated and that an updated EIR should be prepared to adequately evaluate and mitigate the Project’s
anticipated health risk impacts.
Second, while the PCR includes a quantified construction HRA, the PCR’s HRA fails to sum the cancer risk
calculated for each age group for both Project construction and operation together. This is incorrect
and, as a result, the PCR’s evaluation and significance conclusion should not be relied upon. According to
the OEHHA guidance referenced by the IS/MND, “the excess cancer risk is calculated separately for each
age grouping and then summed to yield cancer risk at the receptor location,” as previously stated (p.
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57).However, review of the PCR demonstrates that, while the health risk was conducted to nearby
receptors for the Project’s construction-related emissions, the HRA fails to evaluate the cumulative
lifetime cancer risk to nearby, existing receptors as a result of Project construction and operation
together. As the IS/MND and PCR acknowledge that the Project’s operations would include “truck trips
associated with move-in and deliveries,” which will produce DPM, these emissions should be quantified
and summed with the construction-related cancer risk in order to calculate the proposed Project’s
cumulative health risk impact. Without any substantial evidence to demonstrate that these impacts
would not be significant, as claimed by the PCR, we are unable to verify the IS/MND and PCR’s less than
significant impact conclusions. Therefore, the HRA should have also quantified the Project’s operational
health risk, as well as totaled both the construction and operational health risks, as stated in the OEHHA
guidance referenced by the IS/MND (p. 57). This is incorrect and thus, an updated analysis should
quantify the Project’s construction and operational health risks and then sum them to compare to the
SCAQMD threshold of 10 in one million, as referenced by the PCR (p. 2-46). As a result, we reiterate our
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August 19comment that the Project’s health risk impacts are inadequately evaluatedand that an
updated EIR should be prepared to adequately evaluate and mitigate these impacts.
3)
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As discussed in our August 19 comment letter, the IS/MND fails to conduct a quantified HRA evaluating
the health risk impacts associated with Project operation. However, review of the PCR demonstrates
that the Project still fails to conduct a quantified operational HRA, stating:
“Consistent with the South Coast AQMD guidelines (see Appendix A, page 17 to the IS/MND),
residential projects do not warrant a full health risk assessment to substantiate less than
significant health risk impacts in this regard. The Commenter asserts that the project would
“Guidance Manual for preparation of Health Risk Assessments.” OEHHA, February 2015, available at:
11
https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf p. 8-4
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generate thousands of daily vehicle trips. However, only a small fraction of the project-related
trips would be truck trips associated with move-in and deliveries (conservatively 15 truck trips,
or approximately 8 trucks). Additionally, these type of delivery trucks are not idling for
substantial durations like they would at warehouse and/or industrial operations. Furthermore,
the Proposed Project replaces an existing tow yard facility that generates substantially more
trucks than that generated by the Proposed Project. According to the traffic analysis prepared
by Urban Crossroads, the tow yard currently generate 58 trucks trips (29 trucks) on a daily basis.
As a result, the Proposed Project would generate less trucks (21 fewer trucks). Consequently,
the Proposed Project would provide an environmental benefit because it would reduce diesel
particulate matter (DPM) associated with trucks. The Initial Study provides sufficient justification
on why there would be no significant long-term impacts” (p. 2-46).
However, this justification is insufficient for two (2) reasons.
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First, as previously stated in our August 19 comment letter, once construction of the Project is
complete, the Project will operate for a long period of time. According to the Traffic Impact Analysis
(“TIA”) provided as Appendix J to the IS/MND, Project operation will generate approximately 1,464 daily
vehicle trips, which will generate additional exhaust emissions and continue to expose nearby sensitive
receptors to DPM emissions (Appendix J, p. 34, Table 4-1). Furthermore, according to the fleet mix
proposed in Appendix A, 24% and 18% of these vehicle trips would be medium duty truck and heavy-
duty truck and bus trips, respectively. Thus, based on the information provided in Appendix A, the
Project would generate 351 and 264 medium duty truck and heavy-duty truck and bus trips,
respectively. As such, the PCR’s claim that the Project would generate only 15- and 8-truck trips for
move-in and deliveries, respectively, is incorrect. Regardless, the PCR acknowledges that the proposed
Project will generate operational truck trips that will generate additional exhaust emissions. Without
quantifying these emissions to sum with the cancer risk calculated by the PCR’s quantified construction
HRA, the PCR should not conclude that these impacts will be less than significant. As a result, we
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maintain our August 19 comment that an operational HRA should be prepared in an EIR for the
proposed Project prior to Project approval.
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Second, as previously stated in our August19comment letter, by failing to conduct a quantified
operational HRA, the Project is inconsistent with the most recent guidance published by the Office of
Environmental Health Hazard Assessment (“OEHHA”), the organization responsible for providing
guidance on conducting HRAs in California, as cited by the IS/MND (p. 57). In February of 2015, OEHHA
released its most recent Risk Assessment Guidelines: Guidance Manual for Preparation of Health Risk
12
Assessments. This guidance document describes the types of projects that warrant the preparation of
an HRA. The OEHHA document recommends that exposure from projects lasting more than 6 months be
evaluated for the duration of the project, and recommends that an exposure duration of 30 years be
13
used to estimate individual cancer risk for the maximally exposed individual resident (“MEIR”). Even
“Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available
12
at: http://oehha.ca.gov/air/hot_spots/hotspots2015.html
“Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available
13
at: http://oehha.ca.gov/air/hot_spots/2015/2015GuidanceManual.pdf, p. 8-6, 8-15
12
though we were not provided with the expected lifetime of the Project, we can reasonably assume that
the Project will operate for at least 30 years, if not more. Therefore, we recommend that health risks
from Project operation also be evaluated in an EIR, as a 30-year exposure duration vastly exceeds the 6-
month requirement set forth by OEHHA. This guidance reflects the most recent health risk policy, and as
such, we reiterate our August 19 th comment that an updated assessment of health risks to nearby
sensitive receptors from Project operation be included in an EIR for the Project.
Screening-Level Assessment Indicates Significant Impact
In an effort to demonstrate the potential risk posed by Project construction and operation to nearby
sensitive receptors, we prepared a simple screening-level HRA in our August 19 th comment letter. As a
result, we estimated that the excess cancer risk over the course of a residential lifetime (30 years) at the
MEIR, with age sensitivity factors, would be approximately 131 in one million. We also estimated that
the excess cancer risk over the course of a residential lifetime (30 years) at the MEIR, without age
sensitivity factors, would be approximately 25 in one million. In response to our August 19 th HRA, the
PCR states:
“At the request of the Commenter, a construction HRA was conducted and the results are
provided in Appendix C. The construction HRA included air dispersion modeling with AERMOD
which incorporates local meteorological and terrain data to generate more refined health risk
results than the screening-level HRA prepared by the Commenter. As documented in Appendix
B, construction emissions would not exceed 10 in a million cancer risk at the nearest offsite
sensitive receptor and no additional mitigation measures are necessary” (p. 2-47).
However, this response is insufficient for two (2) reasons.
1)The PCR fails to address SWAPE’s screening-level construction and operational HRA; and
2)SWAPE’s updated screening-level HRA indicates a potentially significant health risk impact.
1)-
While the PCR is correct in stating that SWAPE’s construction and operational HRA is a screening-level
analysis, as stated in our letter, this does not mean, however, that the results of our HRA can be ignored.
As stated in our previous HRA, if an unacceptable air quality hazard is determined to be possible using
AERSCREEN, a more refined modeling approach is required prior to approval of the Project. Thus, if our
screening-level HRA indicates a potentially significant health risk impact, then further analysis should be
conducted to identify the health risk associated with the Project and mitigation should be implemented,
if necessary. Here, however, the PCR incorrectly elects to ignore our screening-level HRA and again fails
to conduct an operational HRA.
2)-
In an effort to demonstrate the potential health risk posed by Project construction and operation to
nearby sensitive receptors, we prepared a simple screening-level operational HRA to sum with the PCR’s
purported construction-related cancer risk of 9.6 in one million. The results of our assessment, as
described below, provide substantial evidence that the Project’s construction and operational DPM
13
emissions may result in a potentially significant health risk impact not previously identified or mitigated
by the IS/MND.
In order to conduct our screening level risk assessment, we relied upon AERSCREEN, which is a screening
level air quality dispersion model. 14 The model replaced SCREEN3, and AERSCREEN is included in the
OEHHA 15 and the California Air Pollution Control Officers Associated (“CAPCOA”)16 guidance as the
appropriate air dispersion model for Level 2 health risk screening assessments (“HRSAs”). A Level 2 HRSA
utilizes a limited amount of site-specific information to generate maximum reasonable downwind
concentrations of air contaminants to which nearby sensitive receptors may be exposed. If an
unacceptable air quality hazard is determined to be possible using AERSCREEN, a more refined modeling
approach is required prior to approval of the Project.
We prepared a preliminary HRA of the Project’s construction and operational health-related impact to
residential sensitive receptors using the mitigated annual PM
exhaust estimates from the IS/MND’s
10
own “The Invitation Mitigated Construction Run,” “The Invitation Residential Operations Run,” and “The
Invitation Existing Conditions Run” CalEEMod models. According to the IS/MND, the nearest residential
receptor is located approximately 500 feet, or 152 meters, south of the Project site (p. 103). Subtracting
the 924-day construction duration from the total residential duration of 30 years, we assumed that after
Project construction, the sensitive receptor would be exposed to the Project’s operational DPM for an
additional 27.47 years, approximately. The IS/MND’s operational CalEEMod emissions, calculated by
subtracting the annual exhaust PMfrom “The Invitation Existing Conditions Run” model from the
10
annual exhaust PMfrom the “The Invitation Residential Operations Run” model, indicate that
10
operational activities will generate approximately 64 pounds of DPM per year throughout operation.
The AERSCREEN model relies on a continuous average emission rate to simulate maximum downward
concentrations from point, area, and volume emission sources. We calculated an average DPM emission
rate by the following equation:
64.44 453.6 1 1
= × × × =. /
365 24 3,600
Using this equation, we estimated an operational emission rate of 0.009269 g/s. Construction and
operational activity was simulated as a 4.49-acre rectangular area source in AERSCREEN with dimensions
of 173 meters by 105 meters. A release height of three meters was selected to represent the height of
exhaust stacks on operational equipment and other heavy-duty vehicles, and an initial vertical
dimension of one and a half meters was used to simulate instantaneous plume dispersion upon release.
An urban meteorological setting was selected with model-default inputs for wind speed and direction
distribution.
“AERSCREEN Released as the EPA Recommended Screening Model,” USEPA, April 11, 2011, available at:
14
http://www.epa.gov/ttn/scram/guidance/clarification/20110411_AERSCREEN_Release_Memo.pdf
“Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available
15
at: https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf
“Health Risk Assessments for Proposed Land Use Projects,” CAPCOA, July 2009, available at: http://www.capcoa.org/wp-
16
content/uploads/2012/03/CAPCOA_HRA_LU_Guidelines_8-6-09.pdf
14
The AERSCREEN model generates maximum reasonable estimates of single-hour DPM concentrations
from the Project site. EPA guidance suggests that in screening procedures, the annualized average
concentration of an air pollutant be estimated by multiplying the single-hour concentration by 10%.17
For Project operation, the single-hour concentration is estimated by AERSCREEN is approximately 0.7456
µg/m 3 at approximately 150 meters downwind. Multiplying this single- hour concentration by 10%, we
get an annualized average concentration of 0.07456 µg/m 3 for Project operation at the MEIR.
We calculated the excess cancer risk to the MEIR using applicable HRA methodologies prescribed by
OEHHA and the SCAQMD. Consistent with the construction schedule included in the IS/MND, the
annualized average concentration for construction was used for the entire third trimester of pregnancy
(0.25 years), the entire infantile stage of life (0 – 2 years), and the first 0.28 years of the child stage of
life (2 – 16 years). The annualized average concentration for operation was used for the remainder of
the 30-year exposure period, which makes up the remainder of the child stage of life (2 – 16 years) and
the entire adult stage of life (16 – 30 years). Consistent with OEHHA, SCAQMD, BAAQMD, and SJVAPCD
guidance, we used Age Sensitivity Factors (“ASFs”) to account for the heightened susceptibility of young
18, 19, 20, 21
children to the carcinogenic toxicity of air pollution. According to this guidance, the quantified
cancer risk should be multiplied by a factor of ten during the third trimester of pregnancy and during the
first two years of life (infant) as well as multiplied by a factor of three during the child stage of life (2 to
16 years). We also included the quantified cancer risk without adjusting for the heightened susceptibility
of young children to the carcinogenic toxicity of air pollution in accordance with older OEHHA guidance
from 2003. This guidance utilizes a less health protective scenario than what is currently recommended
by SCAQMD, the air quality district responsible for the City, and several other air districts in the state.
th
Furthermore, in accordance with guidance set forth by OEHHA, we used the 95 percentile breathing
rates for infants.22 Finally, according to SCAQMD guidance, we used a Fraction of Time At Home (“FAH”)
“Screening Procedures for Estimating the Air Quality Impact of Stationary Sources Revised.” EPA, 1992, available at:
17
http://www.epa.gov/ttn/scram/guidance/guide/EPA-454R-92-019_OCR.pdf; see also “Risk Assessment Guidelines Guidance
Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available at:
https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf, p. 4-36
“Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available
18
at: https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf.
“Draft Environmental Impact Report (DEIR) for the Proposed The Exchange (SCH No. 2018071058).” SCAQMD, March 2019,
19
available at: http://www.aqmd.gov/docs/default-source/ceqa/comment-letters/2019/march/RVC190115-03.pdf?sfvrsn=8, p.
4.
“California Environmental Quality Act Air Quality Guidelines.” BAAQMD, May 2017, available at:
20
http://www.baaqmd.gov/~/media/files/planning-and-research/ceqa/ceqa_guidelines_may2017-pdf.pdf?la=en, p. 56; see also
“Recommended Methods for Screening and Modeling Local Risks and Hazards.” BAAQMD, May 2011, available at:
http://www.baaqmd.gov/~/media/Files/Planning%20and%20Research/CEQA/BAAQMD%20Modeling%20Approach.ashx, p. 65,
86.
“Update to District’s Risk Management Policy to Address OEHHA’s Revised Risk Assessment Guidance Document.” SJVAPCD,
21
May 2015, available at: https://www.valleyair.org/busind/pto/staff-report-5-28-15.pdf, p. 8, 20, 24.
“Supplemental Guidelines for Preparing Risk Assessments for the Air Toxics ‘Hot Spots’ Information and Assessment Act,”
22
http://www.aqmd.gov/docs/default-source/planning/risk-assessment/ab2588-risk-assessment-
June 5, 2015, available at:
guidelines.pdf?sfvrsn=6, p. 19.
“Risk Assessment Guidelines Guidance Manual for Preparation of Health Risk Assessments.” OEHHA, February 2015, available
at:https://oehha.ca.gov/media/downloads/crnr/2015guidancemanual.pdf
15
23
value of 1 for the 3rd trimester and infant receptors.We used a cancer potency factor of 1.1 (mg/kg-
day)-1 and an averaging time of 25,550 days. The results of our calculations are shown below.
The Closest Exposed Individual at an Existing Residential Receptor
Cancer Cancer
Breathing
Duration Concentration Risk Risk
Activity Rate (L/kg-ASF
(years) (ug/m3) without with
day)
ASFs* ASFs*
Construction 0.25 N/A 361N/A 10 N/A
3rd
3rd Trimester
0.25 N/A Trimester N/A
Duration
Exposure
Construction 2.00 N/A 1090N/A 10 N/A
Infant Exposure Infant
2.00 0.0E+00 0.0E+00
Duration Exposure
Construction 0.28 N/A 572N/A 3N/A
Operation 13.720.07456 5728.8E-06 32.6E-05
Child Exposure Child
14.00 8.8E-06 2.6E-05
Duration Exposure
Operation 14.000.07456 2613.0E-06 13.0E-06
Adult Exposure Adult
14.00 3.0E-06 3.0E-06
Duration Exposure
Lifetime
Lifetime
Exposure 30.00 1.2E-05 2.9E-05
Exposure
Duration
*
Construction-related cancer risk calculated in Appendix B to PCR
**
We, along with CARB and SCAQMD, recommend using the more updated and health protective 2015 OEHHA guidance, which
includes ASFs.
The excess cancer risk posed to adults and children at the MEIR, located approximately 150 meters
away, over the course of Project operation, utilizing age sensitivity factors, are approximately 3 and 26
in one million, respectively. When summed with the PCR’s construction-related cancer risk of 9.6 in one
million, the excess cancer risk over the course of a residential lifetime (30 years) at the MEIR, with age
sensitivity factors, is approximately 38.6 in one million (p. 2-46).24 Notwithstanding the IS/MND’s
incorrect and unsubstantiated air model, as reiterated above, the Project’s lifetime cancer risk, using age
sensitivity factors, exceeds the SCAQMD threshold of 10 in one million, thus resulting in a potentially
significant impact not previously addressed or identified by the IS/MND or PCR. Results without age
sensitivity factors are presented in the table above, although we do not recommend utilizing these
“Risk Assessment Procedures for Rules 1401, 1401.1, and 212.” SCAQMD, August 2017, available at:
23
http://www.aqmd.gov/docs/default-source/rule-book/Proposed-Rules/1401/riskassessmentprocedures_2017_080717.pdf, p.
7.
Calculated: 9.6 in one million + 26 in one million + 3 in one million = 38.6 in one million.
24
16
values for health risk analysis, as they are less conservative and health-protective according to the most
recent guidance. Regardless, the excess cancer risk over the course of a residential lifetime (30 years) at
the MEIR, without age sensitivity factors, is approximately 21.4 in one million (p. 2-46).25 Thus, the
Project may result in a significant impact regardless of the use of age sensitivity factors. As such, the
proposed Project should not be approved until an EIR is prepared to adequately identify and mitigate
the Project’s anticipated construction and operational health risk impacts to lessthan significant levels.
An agency must include an analysis of health risks that connects the Project’s air emissions with the
health risk posed by those emissions. Our analysis represents a screening-level HRA, which is known to
be conservative and tends to err on the side of health protection. The purpose of the screening-level
construction and operational HRA shown above is to demonstrate the link between the proposed
Project’s emissions and the potential health risk. Our screening-level HRA demonstrates that
construction and operation of the Project could result in a potentially significant health risk impact,
when correct exposure assumptions and up-to-date, applicable guidance are used. Therefore, since our
screening-level construction HRA indicates a potentially significant impact, an EIR should include a
reasonable effort to connect the Project’s air quality emissions and the potential health risks posed to
nearby receptors. Thus, an EIR should include a quantified air pollution model as well as an updated,
quantified, refined health risk assessment which adequately and accurately evaluates health risk
impacts associated with both Project construction and operation.
Greenh
Failure to Adequately Evaluate Greenhouse Gas Impacts
th
As discussed in our August 19 comment letter, the IS/MND concluded that the proposed Project would
generate net annual construction and operational greenhouse gas (“GHG”) emissions of 2,601 metric
tons of COequivalents per year (“MT COe/year”) and thus, the Project’s anticipated GHG emissions
22
would not exceed the SCAQMD bright-line threshold of 3,000 MT COe/year for mixed-use Projects.
2
However, review of the PCR demonstrates that the proposed Project again fails to adequately evaluate
the anticipated GHG impacts. As discussed below, we maintain that the IS/MND and PCR’s GHG
analyses, as well as the subsequent less than significant impact conclusion, are incorrect for the
following two (2) reasons:
(1)The IS/MND and PCR’s quantitative GHG analyses rely upon an incorrect and unsubstantiated air
model; and
(2)The IS/MND and PCR’s quantitative GHG analyses rely upon an outdated threshold.
(1)
As discussed in our August 19 th comment letter, the IS/MND quantitative GHG analysis relies upon an
incorrect and unsubstantiated air model. However, as reiterated above, review of the PCR demonstrates
that the PCR fails to sufficiently address our comments regarding the Project’s flawed CalEEMod model.
As a result, emissions associated with the Project are still underestimated, and the IS/MND and PCR’s
quantitative GHG analyses should not be relied upon to determine Project significance. As such, we find
Calculated: 9.6 in one million + 8.8 in one million + 3 in one million = 21.4 in one million.
25
17
the PCR to be inadequate and maintain that the IS/MND’s air model, as well as the subsequent less than
significant GHG impact determination is unsubstantiated. Thus, we maintain our August 19 th comment
that a Project-specific EIR should be prepared and recirculated that adequately assesses and mitigates
the potential GHG impacts that construction and operation of the proposed Project may have on
regional and local air quality.
(2)
Review of the IS/MND and PCR demonstrates that the Project’s quantitative GHG analysis relies upon an
incorrect and unsubstantiated threshold. As such, we find the IS/MND and PCR to be inadequate and
maintain that the Project’s quantitative GHG impact significance determination should not be relied
upon.
According to the IS/MND, the Project’s anticipated GHG emissions would not exceed the SCAQMD
bright-line threshold of 3,000 MT COe/year for mixed-use Projects (see excerpt below) (p. 73).
2
Furthermore, the PCR reiterates:
“The net increase in emissions associated with the Proposed Project would not exceed 3,000
MTCO2e and GHG impacts would be less than significant” (p. 2-47).
However, this is incorrect, as the SCAQMD threshold of 3,000 MT COe/year is outdated and inapplicable
2
to the proposed Project. The SCAQMD developed this threshold when the Global Warming Solutions Act
of 2006, commonly known as “AB 32”, was the governing statute for GHG reductions in California. AB 32
26
requires California to reduce GHG emissions to 1990 levels by 2020. As it is already September 2020,
the Project has yet to be approved, we know that the Project will not be operational before 2020. As
such, the SCAQMD bright-line threshold is outdated and inapplicable to the proposed Project, and the
IS/MND and PCR’s less than significant GHG impact conclusion should not be relied upon.
HEALTH & SAFETY CODE 38550, available at:
26
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC§ionNum=38550.
18
27
In September 2016, Governor Brown signed Senate Bill 32, enacting HEALTH & SAFETY CODE § 38566.
This statute (“SB 32”) requires California to achieve a new, more aggressive 40% reduction in GHG
emissions over the 1990 level by the end of 2030. As a result, the Project should comply with SB 32,
which requires a more aggressive GHG threshold. Thus, we recommend that the Project rely upon the
SCAQMD efficiency threshold of 3.0 metric tons of CO equivalents per service population per year (“MT
2
COe/SP/year”) for the year 2035, which was calculated based on a 40% reduction from the 2020 GHG
2
28
efficient target.
Furthermore, the IS/MND and PCR’s incorrect and unsubstantiated air model indicates a potentially
29
significant impact when applying the SCAQMD efficiency threshold of 3.0 MT COe/year.As previously
2
stated, according to the IS/MND and PCR, the proposed Project would result in net annual GHG emission
of 2,601 MT COe/year. Furthermore, according to CAPCOA’s CEQA & Climate Change report, service
2
population is defined as “the sum of the number of residents and the number of jobs supported by the
project.”30
According to the IS/MND, “the Proposed Project could generate approximately 920
residents” (p. 114). However, this value contradicts the Project’s own CalEEMod model, which includes
only 769 residents (Appendix A, pp. 99). As such, in order to conduct the most conservative analysis, we
have analyzed the Project’s GHG emissions utilizing the 769-person service population value, as included
in the CalEEMod model. Dividing the Project’s underestimated GHG emissions, as estimated by the
IS/MND, by a service population value of 769 people, we find that the Project would emit approximately
3.38 MT COe/SP/year (see table below).31
2
IS/MND Service Population Efficiency
Proposed Project
Project Phase
(MT COe/year)
2
Total 2,601
Service Population 769
Service Population Efficiency 3.38
Threshold 3.0
Exceed? Yes
As you can see in the table above, when we compare the Project’s per service population GHG emissions
to the relevant SCAQMD efficiency target of 3.0 MT COe/SP/year, we find that the Project would result
2
in a significant GHG impact not previously identified or addressed by the IS/MND or PCR. According to
HEALTH & SAFETY CODE 38566, available at:
27
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC§ionNum=38566.
“Minutes for the GHG CEQA Significance Threshold Stakeholder Working Group #15.” SCAQMD, September 2010, available
28
http://www.aqmd.gov/docs/default-source/ceqa/handbook/greenhouse-gases-(ghg)-ceqa-significance-thresholds/year-
at:
2008-2009/ghg-meeting-15/ghg-meeting-15-minutes.pdf, p. 2.
“Minutes for the GHG CEQA Significance Threshold Stakeholder Working Group #15.” SCAQMD, September 2010, available
29
at: http://www.aqmd.gov/docs/default-source/ceqa/handbook/greenhouse-gases-(ghg)-ceqa-significance-thresholds/year-
2008-2009/ghg-meeting-15/ghg-meeting-15-minutes.pdf, p. 2.
CAPCOA (Jan. 2008) CEQA & Climate Change, p. 71-72, http://www.capcoa.org/wp-content/uploads/2012/03/CAPCOA-
30
White-Paper.pdf.
Calculated: (2,601 MT COe/year) / (769 service population) = (3.38 MT COe/SP/year).
31
22
19
CEQA Guidelines § 15064.4(b), if there is substantial evidence that the possible effects of a particular
project are still cumulatively considerable notwithstanding compliance with the adopted regulations or
requirements, a full CEQA analysis must be prepared for the project. Therefore, a Project-specific EIR
should be prepared and recirculated for the Project, and mitigation should be implemented where
necessary, per CEQA Guidelines.
Finally, according to the PCR:
“The measures listed in the table provided by the Commenter are identified in Appendix B, Local
Action, of the Scoping Plan. The list in Appendix B are local actions that can support the State’s
climate goals and include mitigation measures that could be considered on a project-by-project
basis. Based on the analysis under GHG Threshold (a), additional reduction measures beyond
those already required by the state are not necessary to ensure less than significant GHG
impacts. Thus, the mitigation measures included in Appendix B are not warranted because the
Proposed Project would not generate a substantial increase in GHG emissions. A measure by
measure consistency analysis with the individual measures a project can consider reducing GHG
emissions is not warranted” (Staff Report, pp. 3487).
Thus, as you can see in the excerpt above, the PCR concludes that the Project does not need to
implement the listed mitigation measures due to the Project’s less-than-significant impact conclusion.
However, this is incorrect. As demonstrated above, evaluating the Project’s GHG emissions utilizing the
relevant SCAQMD threshold demonstrates significant impacts not previously identified or addressed by
the IS/MND. Thus, according to the IS/MND and PCR, these mitigation measures should be implemented
in order to reduce impacts to a less-than-significant level. As previously stated, a Project-level EIR should
be prepared and recirculated to adequately address and mitigate these impacts to a less-than-significant
level.
SWAPE has received limited discovery regarding this project. Additional information may become
available in the future; thus, we retain the right to revise or amend this report when additional
information becomes available. Our professional services have been performed using that degree of
care and skill ordinarily exercised, under similar circumstances, by reputable environmental consultants
practicing in this or similar localities at the time of service. No other warranty, expressed or implied, is
made as to the scope of work, work methodologies and protocols, site conditions, analytical testing
results, and findings presented. This report reflects efforts which were limited to information that was
reasonably accessible at the time of the work, and may contain informational gaps, inconsistencies, or
otherwise be incomplete due to the unavailability or uncertainty of information obtained or provided by
third parties.
Sincerely,
20
Matt Hagemann, P.G., C.Hg.
Paul E. Rosenfeld, Ph.D.
21
th
2656 29Street, Suite 201
Santa Monica, CA 90405
Matt Hagemann, P.G, C.Hg.
(949) 887-9013
mhagemann@swape.com
Matthew F. Hagemann, P.G., C.Hg., QSD, QSP
Geologic and Hydrogeologic Characterization
Investigation and Remediation Strategies
Litigation Support and Testifying Expert
Industrial Stormwater Compliance
CEQA Review
Education:
M.S. Degree, Geology, California State University Los Angeles, Los Angeles, CA, 1984.
B.A.Degree, Geology, Humboldt State University, Arcata, CA, 1982.
Professional Certifications:
California Professional Geologist
California Certified Hydrogeologist
Qualified SWPPP Developer and Practitioner
Professional Experience:
Matt has30 years of experience in environmental policy, contaminant assessment and remediation,
stormwater compliance, and CEQA review. He spent nineyears with the U.S. EPA in the RCRA and
Superfund programs and served as EPA’s Senior Science Policy Advisor in the Western Regional
Office where he identified emerging threats to groundwater from perchlorate and MTBE. While with
the assessment of seven major
EPA, Matt also served as a Senior Hydrogeologist in the oversight of
military facilities undergoing base closure. He led numerous enforcement actions under provisions of
the Resource Conservation and Recovery Act (RCRA) and directed efforts to improve hydrogeologic
characterization and water quality monitoring. For the past 15 years, as a founding partner with SWAPE,
Matt has developed extensive client relationships and has managed complex projects that include
consultation as an expert witness and a regulatory specialist, and a manager of projects ranging from
industrial stormwater compliance to CEQA review of impacts from hazardous waste, air quality and
greenhouse gas emissions.
Positions Matt has held include:
Founding Partner, Soil/Water/Air Protection Enterprise (SWAPE) (2003 – present);
Geology Instructor, Golden West College, 2010 – 2104, 2017;
Senior Environmental Analyst, Komex H2O Science, Inc. (2000 -- 2003);
Executive Director, Orange Coast Watch (2001 – 2004);
Senior Science Policy Advisor and Hydrogeologist, U.S. Environmental Protection Agency (1989–
1998);
Hydrogeologist, National Park Service, Water Resources Division (1998 – 2000);
Adjunct Faculty Member, San Francisco State University, Department of Geosciences (1993 –
1998);
Instructor, College of Marin, Department of Science (1990 – 1995);
Geologist, U.S. Forest Service (1986 – 1998); and
Geologist, Dames & Moore (1984 – 1986).
Senior Regulatory and Litigation Support Analyst:
With SWAPE, Matt’s responsibilities have included:
Lead analyst and testifying expert in the review of over 300 environmental impact reports
and negative declarations since 2003 under CEQA that identify significant issues with regard
to hazardous waste, waterresources, water quality, air quality, greenhouse gas emissions,
and geologic hazards. Make recommendations for additional mitigation measures to lead
agencies at the local and county level to include additional characterization of health risks
and implementation of protective measures to reduce worker exposure to hazards from
toxins and Valley Fever.
Stormwater analysis, sampling and best management practice evaluation at more than 150 industrial
facilities.
Expert witness on numerous cases including, for example, perfluorooctanoic acid (PFOA)
contamination of groundwater, MTBE litigation, air toxins at hazards at a school, CERCLA
compliance in assessment and remediation, and industrial stormwater contamination.
Technical assistance and litigation support for vapor intrusion concerns.
Lead analyst and testifying expert in the review of environmental issues in license applications
for large solar power plants before the California Energy Commission.
Manager of a project to evaluate numerous formerly used military sites in the western U.S.
Manager of a comprehensive evaluation of potential sources of perchlorate contamination in
Southern California drinking water wells.
Manager and designated expert for litigation support under provisions of Proposition 65 in the
review of releases of gasoline to sources drinking water at major refineries and hundreds of gas
stations throughout California.
With Komex H2O Science Inc., Matt’s duties included the following:
Senior author of a report on the extent of perchlorate contamination that was used in testimony
by the former U.S. EPA Administrator and General Counsel.
Senior researcher in the development of a comprehensive, electronically interactive chronology
of MTBE use, research, and regulation.
Senior researcher in the development of a comprehensive, electronically interactive chronology
of perchlorate use, research, and regulation.
Senior researcher in a study that estimates nationwide costs for MTBE remediation and drinking
water treatment, results of which were published in newspapers nationwide and in testimony
against provisions of an energy bill that would limit liability for oil companies.
Research to support litigation to restore drinking water supplies that have been contaminated by
MTBE in California and New York.
2
Expert witness testimony in a case of oil production-related contamination in Mississippi.
Lead author for a multi-volume remedial investigation report for an operating school in Los
Angeles that met strict regulatory requirements and rigorous deadlines.
Development of strategic approaches for cleanup of contaminated sites in consultation with
clients and regulators.
Executive Director:
AsExecutiveDirectorwithOrangeCoastWatch,MattledeffortstorestorewaterqualityatOrange
County beaches from multiple sources of contamination including urban runoff and the discharge of
wastewater. In reporting to a Board of Directors that included representatives from leading Orange
County universities and businesses, Matt prepared issue papers in the areas of treatment and disinfection
ofwastewaterandcontrolofthedischargeofgreasetosewersystems.Mattactivelyparticipatedinthe
development of countywide water quality permits for the control of urban runoff and permits for the
discharge of wastewater. Matt worked with other nonprofits to protect and restore water quality, including
Surfrider, Natural Resources Defense Council and Orange County CoastKeeper as well as with business
institutions including the Orange County Business Council.
Hydrogeology:
As a Senior Hydrogeologist with the U.S. Environmental Protection Agency, Matt led investigations to
characterize and cleanup closing military bases, including Mare Island Naval Shipyard, Hunters Point
Naval Shipyard, Treasure Island Naval Station, Alameda Naval Station, Moffett Field, Mather Army
Airfield, and Sacramento Army Depot. Specific activities were as follows:
Led efforts to model groundwater flow and contaminant transport, ensured adequacy of
monitoring networks, and assessed cleanup alternatives for contaminated sediment, soil, and
groundwater.
Initiated a regional program for evaluation of groundwater sampling practices and laboratory
analysis at military bases.
Identified emerging issues, wrote technical guidance, and assisted in policy and regulation
development through work on four national U.S. EPA workgroups, including the Superfund
Groundwater Technical Forum and the Federal Facilities Forum.
At the request of the State of Hawaii, Matt developed a methodology to determine the vulnerability of
groundwater to contamination on the islands of Maui and Oahu. He used analytical models and a GIS to
show zones of vulnerability, and the results were adopted and published by the State of Hawaii and
County of Maui.
As a hydrogeologist with the EPA Groundwater Protection Section, Matt worked with provisions of the
Safe Drinking Water Act and NEPA to prevent drinking water contamination. Specific activities included
the following:
Received an EPA Bronze Medal for his contribution to the development of national guidance for
the protection of drinking water.
Managed the Sole Source Aquifer Program and protected the drinking water of two communities
through designation under the Safe Drinking Water Act. He prepared geologic reports, conducted
3
publichearings,andrespondedtopubliccommentsfromresidentswhowereveryconcerned
about the impact of designation.
Reviewed a number of Environmental Impact Statements for planned major developments,
including large hazardous and solid waste disposal facilities, mine reclamation, and water
transfer.
Matt served as a hydrogeologist with the RCRA Hazardous Waste program. Duties were as follows:
Supervised the hydrogeologic investigation of hazardous waste sites to determine compliance
with Subtitle C requirements.
Reviewed and wrote "part B" permits for the disposal of hazardous waste.
Conducted RCRA Corrective Action investigations of waste sites and led inspections that formed
the basis for significant enforcement actions that were developed in close coordination with U.S.
EPA legal counsel.
Wrote contract specifications and supervised contractor’s investigations of waste sites.
With the National Park Service, Matt directed service-wide investigations of contaminant sources to
prevent degradation of water quality, including the following tasks:
Applied pertinent laws and regulations including CERCLA, RCRA, NEPA, NRDA, and the
Clean Water Act to control military, mining, and landfill contaminants.
Conducted watershed-scale investigations of contaminants at parks, including Yellowstone and
Olympic National Park.
Identified high-levels of perchlorate in soil adjacent to a national park in New Mexico
and advised park superintendent on appropriate response actions under CERCLA.
Served as a Park Service representative on the Interagency Perchlorate Steering Committee, a
national workgroup.
Developed a program to conduct environmental compliance audits of all National Parks while
serving on a national workgroup.
Co-authored two papers on the potential for water contamination from the operation of personal
watercraft and snowmobiles, these papers serving as the basis for the development of nation-
wide policy on the use of these vehicles in National Parks.
Contributed to the Federal Multi-Agency Source Water Agreement under the Clean Water
Action Plan.
Policy:
Served senior management as the Senior Science Policy Advisor with the U.S. Environmental Protection
Agency, Region 9.
Activities included the following:
Advised the Regional Administrator and senior management on emerging issues such as the
potential for the gasoline additive MTBE and ammonium perchlorate to contaminate drinking
water supplies.
Shaped EPA’s national response to these threats by serving on workgroups and by contributing
to guidance, including the Office of Research and Development publication, Oxygenates in
Water: Critical Information and Research Needs.
Improved the technical training of EPA's scientific and engineering staff.
Earned an EPA Bronze Medal for representing the region’s 300 scientists and engineers in
negotiations with the Administrator and senior management to better integrate scientific
4
principlesintothepolicy-makingprocess.
Established national protocol for the peer review of scientific documents.
Geology:
With the U.S. Forest Service, Matt led investigations to determine hillslope stability of areas proposed for
timber harvest in the central Oregon Coast Range. Specific activities were as follows:
Mappedgeologyinthefield,andusedaerialphotographicinterpretationandmathematical
models to determine slope stability.
Coordinatedhisresearchwithcommunitymemberswhowereconcernedwithnaturalresource
protection.
Characterized the geology of an aquifer that serves as the sole source of drinking water for the
city of Medford, Oregon.
As a consultant with Dames and Moore, Matt led geologic investigations of two contaminated sites (later
listedontheSuperfundNPL)inthePortland,Oregon,areaandalargehazardouswastesiteineastern
Oregon. Duties included the following:
Supervised year-long effort for soil and groundwater sampling.
Conducted aquifer tests.
Investigated active faults beneath sites proposed for hazardous waste disposal.
Teaching:
From 1990 to 1998, Matt taught at least one course per semester at the community college and university
levels:
At San Francisco State University, held an adjunct faculty position and taught courses in
environmental geology, oceanography (lab and lecture), hydrogeology, and groundwater
contamination.
Served as a committee member for graduate and undergraduate students.
Taught courses in environmental geology and oceanography at the College of Marin.
Matt is currently a part time geology instructor at Golden West College in Huntington Beach, California
where he taught from 2010 to 2014 and in 2017.
Invited Testimony, Reports, Papers and Presentations:
Hagemann, M.F., 2008. Disclosure of Hazardous Waste Issues under CEQA. Presentation to the Public
Environmental Law Conference, Eugene, Oregon.
Hagemann, M.F., 2008. Disclosure of Hazardous Waste Issues under CEQA. Invited presentation to U.S.
EPA Region 9, San Francisco, California.
Hagemann, M.F., 2005. Use of Electronic Databases in Environmental Regulation, Policy Making and
Public Participation. Brownfields 2005, Denver, Coloradao.
Hagemann, M.F., 2004. Perchlorate Contamination of the Colorado River and Impacts to Drinking Water
in Nevada and the Southwestern U.S. Presentation to a meeting of the American Groundwater Trust, Las
Vegas, NV (served on conference organizing committee).
5
Hagemann, M.F., 2004. Invited testimony to a California Senate committee hearing on air toxins at
schools in Southern California, Los Angeles.
Brown, A., Farrow, J., Gray, A. and Hagemann, M., 2004. An Estimate of Costs to Address MTBE
Releases from Underground Storage Tanks and the Resulting Impact to Drinking Water Wells.
Presentation to the Ground Water and Environmental Law Conference, National Groundwater
Association
.
Hagemann, M.F., 2004. Perchlorate Contamination of the Colorado River and Impacts to Drinking Water
in Arizona and the Southwestern U.S. Presentation to a meeting of the American Groundwater Trust,
Phoenix, AZ (served on conference organizing committee).
Hagemann, M.F., 2003. Perchlorate Contamination of the Colorado River and Impacts to Drinking Water
in the Southwestern U.S. Invited presentation to a special committee meeting of the National Academy
of Sciences, Irvine, CA.
Hagemann, M.F., 2003. Perchlorate Contamination of the Colorado River. Invited presentation to a
tribal EPA meeting, Pechanga, CA.
Hagemann, M.F., 2003. Perchlorate Contamination of the Colorado River. Invited presentation to a
meeting of tribal repesentatives, Parker, AZ.
Hagemann, M.F., 2003. Impact of Perchlorate on the Colorado River and Associated Drinking Water
Supplies. Invited presentation to the Inter-Tribal Meeting, Torres Martinez Tribe.
Hagemann, M.F., 2003. The Emergence of Perchlorate as a Widespread Drinking Water Contaminant.
Invited presentation to the U.S. EPA Region 9.
Hagemann, M.F., 2003. A Deductive Approach to the Assessment of Perchlorate Contamination. Invited
presentation to the California Assembly Natural Resources Committee.
Hagemann, M.F., 2003. Perchlorate: A Cold War Legacy in Drinking Water. Presentation to a meeting of
the National Groundwater Association.
Hagemann, M.F., 2002. From Tank to Tap: A Chronology of MTBE in Groundwater. Presentation to a
meeting of the National Groundwater Association.
Hagemann, M.F., 2002. A Chronology of MTBE in Groundwater and an Estimate of Costs to Address
Impacts to Groundwater. Presentation to the annual meeting of the Society of Environmental
Journalists.
Hagemann, M.F., 2002. An Estimate of the Cost to Address MTBE Contamination in Groundwater
(and Who Will Pay). Presentation to a meeting of the National Groundwater Association.
Hagemann, M.F., 2002. An Estimate of Costs to Address MTBE Releases from Underground Storage
Tanks and the Resulting Impact to Drinking Water Wells. Presentation to a meeting of the U.S. EPA and
State Underground Storage Tank Program managers.
6
Hagemann, M.F., 2001. From Tank to Tap: A Chronology of MTBE in Groundwater. Unpublished
report.
Hagemann,M.F.,2001. EstimatedCleanupCostforMTBEinGroundwaterUsedasDrinkingWater.
Unpublished report.
Hagemann, M.F., 2001. Estimated Costs to Address MTBE Releases from Leaking Underground Storage
Tanks. Unpublished report.
Hagemann, M.F., and VanMouwerik, M., 1999. Potential W at e r Quality Concerns Related
to Snowmobile Usage. Water Resources Division, National Park Service, Technical Report.
VanMouwerik, M. and Hagemann, M.F. 1999, Water Quality Concerns Related to Personal Watercraft
Usage. Water Resources Division, National Park Service, Technical Report.
Hagemann, M.F., 1999, Is Dilution the Solution to Pollution in National Parks? The George Wright
Society Biannual Meeting, Asheville, North Carolina.
Hagemann, M.F., 1997, The Potential for MTBE to Contaminate Groundwater. U.S. EPA Superfund
Groundwater Technical Forum Annual Meeting, Las Vegas, Nevada.
Hagemann, M.F., and Gill, M., 1996, Impediments to Intrinsic Remediation, Moffett Field Naval Air
Station, Conference on Intrinsic Remediation of Chlorinated Hydrocarbons, Salt Lake City.
Hagemann, M.F., Fukunaga, G.L., 1996, The Vulnerability of Groundwater to Anthropogenic
Contaminants on the Island of Maui, Hawaii. Hawaii Water Works Association Annual Meeting, Maui,
October 1996.
Hagemann, M. F., Fukanaga, G. L., 1996, Ranking Groundwater Vulnerability in Central Oahu,
Hawaii. Proceedings, Geographic Information Systems in Environmental Resources Management, Air
and Waste Management Association Publication VIP-61.
Hagemann, M.F., 1994. Groundwater Ch ar ac te r i z a t i o n and Cl ean up a t Closing Military Bases
in California. Proceedings, California Groundwater Resources Association Meeting.
Hagemann, M.F. and Sabol, M.A., 1993. Role of the U.S. EPA in the High Plains States Groundwater
Recharge Demonstration Program. Proceedings, Sixth Biennial Symposium on the Artificial Recharge of
Groundwater.
Hagemann, M.F., 1993. U.S. EPA Policy on the Technical Impracticability of the Cleanup of DNAPL-
contaminated Groundwater. California Groundwater Resources Association Meeting.
7
Hagemann, M.F., 1992. Dense Nonaqueous Phase Liquid Contamination of Groundwater: An Ounce of
Prevention... Proceedings, Association of Engineering Geologists Annual Meeting, v. 35.
Other Experience:
Selected as subject matter expert for the California Professional Geologist licensing examinations,
2009-2011.
8
SOIL WATER AIR PROTECTION ENTERPRISE
2656 29th Street, Suite 201
Santa Monica, California 90405
Attn: Paul Rosenfeld, Ph.D.
Mobil: (310) 795-2335
Office: (310) 452-5555
Fax: (310) 452-5550
Email: prosenfeld@swape.com
Paul Rosenfeld, Ph.D.
Chemical Fate and Transport & Air Dispersion Modeling
Principal Environmental Chemist Risk Assessment & Remediation Specialist
Education
Ph.D. Soil Chemistry, University of Washington, 1999. Dissertation on volatile organic compound filtration.
M.S. Environmental Science, U.C. Berkeley, 1995. Thesis on organic waste economics.
B.A. Environmental Studies, U.C. Santa Barbara, 1991. Thesis on wastewater treatment.
Professional Experience
evaluating impacts to human health, property, and ecological receptors. His expertise focuses on the fate and
transport of environmental contaminants, human health risk, exposure assessment, and ecological restoration. Dr.
Rosenfeld has evaluated and modeled emissions from unconventional oil drilling operations, oil spills, landfills,
boilers and incinerators, process stacks, storage tanks, confined animal feeding operations, and many other industrial
and agricultural sources. His project experience ranges from monitoring and modeling of pollution sources to
evaluating impacts of pollution on workers at industrial facilities and residents in surrounding communities.
Dr. Rosenfeld has investigated and designed remediation programs and risk assessments for contaminated sites
containing lead, heavy metals, mold, bacteria, particulate matter, petroleum hydrocarbons, chlorinated solvents,
pesticides, radioactive waste, dioxins and furans, semi- and volatile organic compounds, PCBs, PAHs, perchlorate,
asbestos, per- and poly-fluoroalkyl substances (PFOA/PFOS), unusual polymers, fuel oxygenates (MTBE), among
other pollutants. Dr. Rosenfeld also has experience evaluating greenhouse gas emissions from various projects and is
an expert on the assessment of odors from industrial and agricultural sites, as well as the evaluation of odor nuisance
impacts and technologies for abatement of odorous emissions. As a principal scientist at SWAPE, Dr. Rosenfeld
directs air dispersion modeling and exposure assessments. He has served as an expert witness and testified about
pollution sources causing nuisance and/or personal injury at dozens of sites and has testified as an expert witness on
more than ten cases involving exposure to air contaminants from industrial sources.
Paul E. Rosenfeld, Ph.D. Page 1 of 9 June 2020
Professional History:
Soil Water Air Protection Enterprise (SWAPE); 2003 to present; Principal and Founding Partner
UCLA School of Public Health; 2007 to 2011; Lecturer (Assistant Researcher)
UCLA School of Public Health; 2003 to 2006; Adjunct Professor
UCLA Environmental Science and Engineering Program; 2002-2004; Doctoral Intern Coordinator
UCLA Institute of the Environment, 2001-2002; Research Associate
Komex HO Science, 2001 to 2003; Senior Remediation Scientist
2
National Groundwater Association, 2002-2004; Lecturer
San Diego State University, 1999-2001; Adjunct Professor
Anteon Corp., San Diego, 2000-2001; Remediation Project Manager
Ogden (now Amec), San Diego, 2000-2000; Remediation Project Manager
James River Corp., Washington, 1995-96; Scientist
Big Creek Lumber, Davenport, California, 1995; Scientist
Plumas Corp., California and USFS, Tahoe 1993-1995; Scientist
Peace Corps and World Wildlife Fund, St. Kitts, West Indies, 1991-1993; Scientist
Publications:
Remy, L.L., Clay T., Byers, V., Rosenfeld P. E. (2019) Hospital, Health, and Community Burden After Oil
Refinery Fires, Richmond, California 2007 and 2012. Environmental Health. 18:48
Simons, R.A., Seo, Y. Rosenfeld, P., (2015) Modeling the Effect of Refinery Emission On Residential Property
Value. Journal of Real Estate Research. 27(3):321-342
Chen, J. A, Zapata A. R., Sutherland A. J., Molmen, D.R., Chow, B. S., Wu, L. E., Rosenfeld, P. E., Hesse, R. C.,
(2012) Sulfur Dioxide and Volatile Organic Compound Exposure To A Community In Texas City Texas Evaluated
Using Aermod and Empirical Data. American Journal of Environmental Science, 8(6), 622-632.
Rosenfeld, P.E. & Feng, L. (2011). The Risks of Hazardous Waste. Amsterdam: Elsevier Publishing.
Cheremisinoff, N.P., & Rosenfeld, P.E. (2011). Handbook of Pollution Prevention and Cleaner Production: Best
Practices in the Agrochemical Industry, Amsterdam: Elsevier Publishing.
Gonzalez, J., Feng, L., Sutherland, A., Waller, C., Sok, H., Hesse, R., Rosenfeld, P. (2010). PCBs and
Dioxins/Furans in Attic Dust Collected Near Former PCB Production and Secondary Copper Facilities in Sauget, IL.
Procedia Environmental Sciences
Feng, L., Wu, C., Tam, L., Sutherland, A.J., Clark, J.J., Rosenfeld, P.E. (2010). Dioxin and Furan Blood Lipid and
Attic Dust Concentrations in Populations Living Near Four Wood Treatment Facilities in the United States. Journal
of Environmental Health. 73(6), 34-46.
Cheremisinoff, N.P., & Rosenfeld, P.E. (2010). Handbook of Pollution Prevention and Cleaner Production: Best
Practices in the Wood and Paper Industries. Amsterdam: Elsevier Publishing.
Cheremisinoff, N.P., & Rosenfeld, P.E. (2009). Handbook of Pollution Prevention and Cleaner Production: Best
Practices in the Petroleum Industry. Amsterdam: Elsevier Publishing.
Wu, C., Tam, L., Clark, J., Rosenfeld, P. (2009). Dioxin and furan blood lipid concentrations in populations living
near four wood treatment facilities in the United States. WIT Transactions on Ecology and the Environment, Air
Pollution, 123 (17), 319-327.
Paul E. Rosenfeld, Ph.D. Page 2 of 9 June 2020
Tam L. K.., Wu C. D., Clark J. J. and Rosenfeld, P.E. (2008). A Statistical Analysis Of Attic Dust And Blood Lipid
Concentrations Of Tetrachloro-p-Dibenzodioxin (TCDD) Toxicity Equivalency Quotients (TEQ) In Two
Populations Near Wood Treatment Facilities. Organohalogen Compounds, 70, 002252-002255.
Tam L. K.., Wu C. D., Clark J. J. and Rosenfeld, P.E. (2008). Methods For Collect Samples For Assessing Dioxins
And Other Environmental Contaminants In Attic Dust: A Review. Organohalogen Compounds, 70, 000527-
000530.
Hensley, A.R. A. Scott, J. J. J. Clark, Rosenfeld, P.E. (2007). Attic Dust and Human Blood Samples Collected near
a Former Wood Treatment Facility. Environmental Research. 105, 194-197.
Rosenfeld, P.E., J. J. J. Clark, A. R. Hensley, M. Suffet. (2007). The Use of an Odor Wheel Classification for
Evaluation of Human Health Risk Criteria for Compost Facilities. Water Science & Technology 55(5), 345-357.
Rosenfeld, P. E., M. Suffet. (2007). The Anatomy Of Odour Wheels For Odours Of Drinking Water, Wastewater,
Compost And The Urban Environment. Water Science & Technology 55(5), 335-344.
Sullivan, P. J. Clark, J.J.J., Agardy, F. J., Rosenfeld, P.E. (2007). Toxic Legacy, Synthetic Toxins in the Food,
Water, and Air in American Cities. Boston Massachusetts: Elsevier Publishing
Rosenfeld, P.E., and Suffet I.H. (2004). Control of Compost Odor Using High Carbon Wood Ash. Water Science
and Technology. 49(9),171-178.
Rosenfeld P. E., J.J. Clark, I.H. (Mel) Suffet (2004). The Value of An Odor-Quality-Wheel Classification Scheme
For The Urban Environment.
2004. New Orleans, October 2-6, 2004.
Rosenfeld, P.E., and Suffet, I.H. (2004). Understanding Odorants Associated With Compost, Biomass Facilities,
and the Land Application of Biosolids. Water Science and Technology. 49(9), 193-199.
Rosenfeld, P.E., and Suffet I.H. (2004). Control of Compost Odor Using High Carbon Wood Ash, Water Science
and Technology, 49( 9), 171-178.
Rosenfeld, P. E., Grey, M. A., Sellew, P. (2004). Measurement of Biosolids Odor and Odorant Emissions from
Windrows, Static Pile and Biofilter. Water Environment Research. 76(4), 310-315.
Rosenfeld, P.E., Grey, M and Suffet, M. (2002). Compost Demonstration Project, Sacramento California Using
High-Carbon Wood Ash to Control Odor at a Green Materials Composting Facility. Integrated Waste Management
Board Public Affairs Office
Rosenfeld, P.E., and C.L. Henry. (2001). Characterization of odor emissions from three different biosolids. Water
Soil and Air Pollution. 127(1-4), 173-191.
Rosenfeld, P.E., and Henry C. L., (2000). Wood ash control of odor emissions from biosolids application. Journal
of Environmental Quality. 29, 1662-1668.
Rosenfeld, P.E., C.L. Henry and D. Bennett. (2001). Wastewater dewatering polymer affect on biosolids odor
emissions and microbial activity. Water Environment Research. 73(4), 363-367.
Rosenfeld, P.E., and C.L. Henry. (2001). Activated Carbon and Wood Ash Sorption of Wastewater, Compost, and
Biosolids Odorants. Water Environment Research, 73, 388-393.
Rosenfeld, P.E., and Henry C. L., (2001). High carbon wood ash effect on biosolids microbial activity and odor.
Water Environment Research. 131(1-4), 247-262.
Paul E. Rosenfeld, Ph.D. Page 3 of 9 June 2020
Chollack, T. and P. Rosenfeld. (1998). Compost Amendment Handbook For Landscaping. Prepared for and
distributed by the City of Redmond, Washington State.
Rosenfeld, P. E. (1992). The Mount Liamuiga Crater Trail. Heritage Magazine of St. Kitts, 3(2).
Rosenfeld, P. E. (1993). High School Biogas Project to Prevent Deforestation On St. Kitts. Biomass Users
Network, 7(1).
Rosenfeld, P. E. (1998). Characterization, Quantification, and Control of Odor Emissions From Biosolids
Application To Forest Soil. Doctoral Thesis. University of Washington College of Forest Resources.
Rosenfeld, P. E. (1994). Potential Utilization of Small Diameter Trees on Sierra County Public Land. Masters
thesis reprinted by the Sierra County Economic Council. Sierra County, California.
Rosenfeld, P. E. (1991). How to Build a Small Rural Anaerobic Digester & Uses Of Biogas In The First And Third
World. Bachelors Thesis. University of California.
Presentations:
Rosenfeld, P.E., Sutherland, A; Hesse, R.; Zapata, A. (October 3-6, 2013). Air dispersion modeling of volatile
organic emissions from multiple natural gas wells in Decatur, TX. 44th Western Regional Meeting, American
Chemical Society. Lecture conducted from Santa Clara, CA.
Sok, H.L.; Waller, C.C.; Feng, L.; Gonzalez, J.; Sutherland, A.J.; Wisdom-Stack, T.; Sahai, R.K.; Hesse, R.C.;
Rosenfeld, P.E. (June 20-23, 2010). Atrazine: A Persistent Pesticide in Urban Drinking Water.
Urban Environmental Pollution. Lecture conducted from Boston, MA.
Feng, L.; Gonzalez, J.; Sok, H.L.; Sutherland, A.J.; Waller, C.C.; Wisdom-Stack, T.; Sahai, R.K.; La, M.; Hesse,
R.C.; Rosenfeld, P.E. (June 20-23, 2010). Bringing Environmental Justice to East St. Louis,
Illinois. Urban Environmental Pollution. Lecture conducted from Boston, MA.
Rosenfeld, P.E. (April 19-23, 2009). Perfluoroctanoic Acid (PFOA) and Perfluoroactane Sulfonate (PFOS)
Contamination in Drinking Water From the Use of Aqueous Film Forming Foams (AFFF) at Airports in the United
States. 2009 Ground Water Summit and 2009 Ground Water Protection Council Spring Meeting, Lecture conducted
from Tuscon, AZ.
Rosenfeld, P.E. (April 19-23, 2009). Cost to Filter Atrazine Contamination from Drinking Water in the United
Aqueous Film Forming Foams (AFFF) at Airports in the
United States. 2009 Ground Water Summit and 2009 Ground Water Protection Council Spring Meeting. Lecture
conducted from Tuscon, AZ.
Wu, C., Tam, L., Clark, J., Rosenfeld, P. (20-22 July, 2009). Dioxin and furan blood lipid concentrations in
populations living near four wood treatment facilities in the United States. Brebbia, C.A. and Popov, V., eds., Air
Pollution XVII: Proceedings of the Seventeenth International Conference on Modeling, Monitoring and
Management of Air Pollution. Lecture conducted from Tallinn, Estonia.
Rosenfeld, P. E. (October 15-18, 2007). Moss Point Community Exposure To Contaminants From A Releasing
rd
Facility. The 23 Annual International Conferences on Soils Sediment and Water. Platform lecture conducted from
University of Massachusetts, Amherst MA.
Rosenfeld, P. E. (October 15-18, 2007). The Repeated Trespass of Tritium-Contaminated Water Into A
rd
Surrounding Community Form Repeated Waste Spills From A Nuclear Power Plant. The 23 Annual International
Conferences on Soils Sediment and Water. Platform lecture conducted from University of Massachusetts, Amherst
MA.
Paul E. Rosenfeld, Ph.D. Page 4 of 9 June 2020
Rosenfeld, P. E. (October 15-18, 2007). Somerville Community Exposure To Contaminants From Wood Treatment
rd
Facility Emissions. The 23 Annual International Conferences on Soils Sediment and Water. Lecture conducted
from University of Massachusetts, Amherst MA.
Rosenfeld P. E. (March 2007). Production, Chemical Properties, Toxicology, & Treatment Case Studies of 1,2,3-
Trichloropropane (TCP). The Association for Environmental Health and Sciences (AEHS) Annual Meeting. Lecture
conducted from San Diego, CA.
Rosenfeld P. E. (March 2007). Blood and Attic Sampling for Dioxin/Furan, PAH, and Metal Exposure in Florala,
Alabama. The AEHS Annual Meeting. Lecture conducted from San Diego, CA.
Hensley A.R., Scott, A., Rosenfeld P.E.,
Human Blood Samples Collected Near A Former Wood Treatment Facility. The 26th International Symposium on
. Lecture conducted from Radisson SAS Scandinavia
Hotel in Oslo Norway.
Hensley A.R., Scott, A., Rosenfeld P.E., Clark, J.J.J. (November 4-8, 2006). Dioxin Containing Attic Dust And
Human Blood Samples Collected Near A Former Wood Treatment Facility. APHA 134 Annual Meeting &
Exposition. Lecture conducted from Boston Massachusetts.
Paul Rosenfeld Ph.D. (October 24-25, 2005). Fate, Transport and Persistence of PFOA and Related Chemicals.
Science, Risk & Litigation Conference. Lecture conducted from The Rittenhouse Hotel,
Philadelphia, PA.
Paul Rosenfeld Ph.D. (September 19, 2005). Brominated Flame Retardants in Groundwater: Pathways to Human
Ingestion, Toxicology and Remediation PEMA Emerging Contaminant Conference. Lecture conducted from Hilton
Hotel, Irvine California.
Paul Rosenfeld Ph.D. (September 19, 2005). Fate, Transport, Toxicity, And Persistence of 1,2,3-TCP. PEMA
Emerging Contaminant Conference. Lecture conducted from Hilton Hotel in Irvine, California.
Paul Rosenfeld Ph.D. (September 26-27, 2005). Fate, Transport and Persistence of PDBEs.
Conference. Lecture conducted from Ritz Carlton Hotel, Marina Del Ray, California.
Paul Rosenfeld Ph.D. (June 7-8, 2005). Fate, Transport and Persistence of PFOA and Related Chemicals.
International Society of Environmental Forensics: Focus On Emerging Contaminants. Lecture conducted from
Sheraton Oceanfront Hotel, Virginia Beach, Virginia.
Paul Rosenfeld Ph.D. (July 21-22, 2005). Fate Transport, Persistence and Toxicology of PFOA and Related
Perfluorochemicals. 2005 National Groundwater Association Ground Water And Environmental Law Conference.
Lecture conducted from Wyndham Baltimore Inner Harbor, Baltimore Maryland.
Paul Rosenfeld Ph.D. (July 21-22, 2005). Brominated Flame Retardants in Groundwater: Pathways to Human
Ingestion, Toxicology and Remediation. 2005 National Groundwater Association Ground Water and
Environmental Law Conference. Lecture conducted from Wyndham Baltimore Inner Harbor, Baltimore Maryland.
Paul Rosenfeld, Ph.D. and James Clark Ph.D. and Rob Hesse R.G. (May 5-6, 2004). Tert-butyl Alcohol Liability
and Toxicology, A National Problem and Unquantified Liability. National Groundwater Association. Environmental
Law Conference. Lecture conducted from Congress Plaza Hotel, Chicago Illinois.
Paul Rosenfeld, Ph.D. (March 2004). Perchlorate Toxicology. Meeting of the American Groundwater Trust.
Lecture conducted from Phoenix Arizona.
Hagemann, M.F., Paul Rosenfeld, Ph.D. and Rob Hesse (2004). Perchlorate Contamination of the Colorado River.
Meeting of tribal representatives. Lecture conducted from Parker, AZ.
Paul E. Rosenfeld, Ph.D. Page 5 of 9 June 2020
Paul Rosenfeld, Ph.D. (April 7, 2004). A National Damage Assessment Model For PCE and Dry Cleaners.
Drycleaner Symposium. California Ground Water Association. Lecture conducted from Radison Hotel, Sacramento,
California.
Rosenfeld, P. E., Grey, M., (June 2003) Two stage biofilter for biosolids composting odor control. Seventh
International In Situ And On Site Bioremediation Symposium Battelle Conference Orlando, FL.
Paul Rosenfeld, Ph.D. and James Clark Ph.D. (February 20-21, 2003) Understanding Historical Use, Chemical
Properties, Toxicity and Regulatory Guidance of 1,4 Dioxane. National Groundwater Association. Southwest Focus
Conference. Water Supply and Emerging Contaminants.. Lecture conducted from Hyatt Regency Phoenix Arizona.
Paul Rosenfeld, Ph.D. (February 6-7, 2003). Underground Storage Tank Litigation and Remediation. California
CUPA Forum. Lecture conducted from Marriott Hotel, Anaheim California.
Paul Rosenfeld, Ph.D. (October 23, 2002) Underground Storage Tank Litigation and Remediation. EPA
Underground Storage Tank Roundtable. Lecture conducted from Sacramento California.
Rosenfeld, P.E. and Suffet, M. (October 7- 10, 2002). Understanding Odor from Compost, Wastewater and
Industrial Processes. Sixth Annual Symposium On Off Flavors in the Aquatic Environment. International Water
Association. Lecture conducted from Barcelona Spain.
Rosenfeld, P.E. and Suffet, M. (October 7- 10, 2002). Using High Carbon Wood Ash to Control Compost Odor.
Sixth Annual Symposium On Off Flavors in the Aquatic Environment. International Water Association. Lecture
conducted from Barcelona Spain.
Rosenfeld, P.E. and Grey, M. A. (September 22-24, 2002). Biocycle Composting For Coastal Sage Restoration.
Northwest Biosolids Management Association. Lecture conducted from Vancouver Washington..
Rosenfeld, P.E. and Grey, M. A. (November 11-14, 2002). Using High-Carbon Wood Ash to Control Odor at a
Green Materials Composting Facility. Soil Science Society Annual Conferenc e. Lecture conducted from
Indianapolis, Maryland.
Rosenfeld. P.E. (September 16, 2000). Two stage biofilter for biosolids composting odor control. Water
Environment Federation. Lecture conducted from Anaheim California.
Rosenfeld. P.E. (October 16, 2000). Wood ash and biofilter control of compost odor. Biofest. Lecture conducted
from Ocean Shores, California.
Rosenfeld, P.E. (2000). Bioremediation Using Organic Soil Amendments. California Resource Recovery
Association. Lecture conducted from Sacramento California.
Rosenfeld, P.E., C.L. Henry, R. Harrison. (1998). Oat and Grass Seed Germination and Nitrogen and Sulfur
Emissions Following Biosolids Incorporation With High-Carbon Wood-Ash. Water Environment Federation 12th
Annual Residuals and Biosolids Management Conference Proceedings. Lecture conducted from Bellevue
Washington.
Rosenfeld, P.E., and C.L. Henry. (1999). An evaluation of ash incorporation with biosolids for odor reduction. Soil
Science Society of America. Lecture conducted from Salt Lake City Utah.
Rosenfeld, P.E., C.L. Henry, R. Harrison. (1998). Comparison of Microbial Activity and Odor Emissions from
Three Different Biosolids Applied to Forest Soil. Brown and Caldwell. Lecture conducted from Seattle Washington.
Rosenfeld, P.E., C.L. Henry. (1998). Characterization, Quantification, and Control of Odor Emissions from
Biosolids Application To Forest Soil. Biofest. Lecture conducted from Lake Chelan, Washington.
Paul E. Rosenfeld, Ph.D. Page 6 of 9 June 2020
Rosenfeld, P.E, C.L. Henry, R. Harrison. (1998). Oat and Grass Seed Germination and Nitrogen and Sulfur
Emissions Following Biosolids Incorporation With High-Carbon Wood-Ash. Water Environment Federation 12th
Annual Residuals and Biosolids Management Conference Proceedings. Lecture conducted from Bellevue
Washington.
Rosenfeld, P.E., C.L. Henry, R. B. Harrison, and R. Dills. (1997). Comparison of Odor Emissions From Three
Different Biosolids Applied to Forest Soil. Soil Science Society of America. Lecture conducted from Anaheim
California.
Teaching Experience:
UCLA Department of Environmental Health (Summer 2003 through 20010) Taught Environmental Health Science
100 to students, including undergrad, medical doctors, public health professionals and nurses. Course focused on
the health effects of environmental contaminants.
National Ground Water Association, Successful Remediation Technologies. Custom Course in Sante Fe, New
Mexico. May 21, 2002. Focused on fate and transport of fuel contaminants associated with underground storage
tanks.
National Ground Water Association; Successful Remediation Technologies Course in Chicago Illinois. April 1,
2002. Focused on fate and transport of contaminants associated with Superfund and RCRA sites.
California Integrated Waste Management Board, April and May, 2001. Alternative Landfill Caps Seminar in San
Diego, Ventura, and San Francisco. Focused on both prescriptive and innovative landfill cover design.
UCLA Department of Environmental Engineering, February 5, 2002. Seminar on Successful Remediation
Technologies focusing on Groundwater Remediation.
University Of Washington, Soil Science Program, Teaching Assistant for several courses including: Soil Chemistry,
Organic Soil Amendments, and Soil Stability.
U.C. Berkeley, Environmental Science Program Teaching Assistant for Environmental Science 10.
Academic Grants Awarded:
California Integrated Waste Management Board. $41,000 grant awarded to UCLA Institute of the Environment.
Goal: To investigate effect of high carbon wood ash on volatile organic emissions from compost. 2001.
Synagro Technologies, Corona California: $10,000 grant awarded to San Diego State University.
Goal: investigate effect of biosolids for restoration and remediation of degraded coastal sage soils. 2000.
King County, Department of Research and Technology, Washington State. $100,000 grant awarded to University of
Washington: Goal: To investigate odor emissions from biosolids application and the effect of polymers and ash on
VOC emissions. 1998.
Northwest Biosolids Management Association, Washington State. $20,000 grant awarded to investigate effect of
polymers and ash on VOC emissions from biosolids. 1997.
James River Corporation, Oregon: $10,000 grant was awarded to investigate the success of genetically engineered
Poplar trees with resistance to round-up. 1996.
United State Forest Service, Tahoe National Forest: $15,000 grant was awarded to investigating fire ecology of the
Tahoe National Forest. 1995.
Kellogg Foundation, Washington D.C. $500 grant was awarded to construct a large anaerobic digester on St. Kitts
in West Indies. 1993
Paul E. Rosenfeld, Ph.D. Page 7 of 9 June 2020
Deposition and/or Trial Testimony:
In the United States District Court For The Southern District of Illinois
Duarte et al, Plaintiffs, vs. United States Metals Refining Company et. al. Defendant.
Case No.: 3:19-cv-00302-SMY-GCS
Rosenfeld Deposition. 2-19-2020
In the Circuit Court of Jackson County, Missouri
Karen Cornwell, Plaintiff, vs. Marathon Petroleum, LP, Defendant.
Case No.: 1716-CV10006
Rosenfeld Deposition. 8-30-2019
In the United States District Court For The District of New Jersey
Duarte et al, Plaintiffs, vs. United States Metals Refining Company et. al. Defendant.
Case No.: 2:17-cv-01624-ES-SCM
Rosenfeld Deposition. 6-7-2019
In the United States District Court of Southern District of Texas Galveston Division
M/T Carla Maersk, Plaintiffs,
Defendant.
Case No.: 3:15-CV-00106 consolidated with 3:15-CV-00237
Rosenfeld Deposition. 5-9-2019
Carole-Taddeo-Bates et al., vs. Ifran Khan et al., Defendants
Case No.: No. BC615636
Rosenfeld Deposition, 1-26-2019
The San Gabriel Valley Council of Governments et al. vs El Adobe Apts. Inc. et al., Defendants
Case No.: No. BC646857
Rosenfeld Deposition, 10-6-2018; Trial 3-7-19
In United States District Court For The District of Colorado
Bells et al. Plaintiff vs. The 3M Company et al., Defendants
Case: No 1:16-cv-02531-RBJ
Rosenfeld Deposition, 3-15-2018 and 4-3-2018
th
In The District Court Of Regan County, Texas, 112 Judicial District
Phillip Bales et al., Plaintiff vs. Dow Agrosciences, LLC, et al., Defendants
Cause No 1923
Rosenfeld Deposition, 11-17-2017
In The Superior Court of the State of California In And For The County Of Contra Costa
Simons et al., Plaintiffs vs. Chevron Corporation, et al., Defendants
Cause No C12-01481
Rosenfeld Deposition, 11-20-2017
In The Circuit Court Of The Twentieth Judicial Circuit, St Clair County, Illinois
Martha Custer et al., Plaintiff vs. Cerro Flow Products, Inc., Defendants
Case No.: No. 0i9-L-2295
Rosenfeld Deposition, 8-23-2017
Paul E. Rosenfeld, Ph.D. Page 8 of 9 June 2020
In United States District Court For The Southern District of Mississippi
Guy Manuel vs. The BP Exploration et al., Defendants
Case: No 1:19-cv-00315-RHW
Rosenfeld Deposition, 4-22-2020
In The Superior Court of the State of California, For The County of Los Angeles
Warrn Gilbert and Penny Gilber, Plaintiff vs. BMW of North America LLC
Case No.: LC102019 (c/w BC582154)
Rosenfeld Deposition, 8-16-2017, Trail 8-28-2018
In the Northern District Court of Mississippi, Greenville Division
Brenda J. Cooper, et al., Plaintiffs, vs. Meritor Inc., et al., Defendants
Case Number: 4:16-cv-52-DMB-JVM
Rosenfeld Deposition: July 2017
In The Superior Court of the State of Washington, County of Snohomish
Michael Davis and Julie Davis et al., Plaintiff vs. Cedar Grove Composting Inc., Defendants
Case No.: No. 13-2-03987-5
Rosenfeld Deposition, February 2017
Trial, March 2017
In The Superior Court of the State of California, County of Alameda
Charles Spain., Plaintiff vs. Thermo Fisher Scientific, et al., Defendants
Case No.: RG14711115
Rosenfeld Deposition, September 2015
In The Iowa District Court In And For Poweshiek County
Russell D. Winburn, et al., Plaintiffs vs. Doug Hoksbergen, et al., Defendants
Case No.: LALA002187
Rosenfeld Deposition, August 2015
In The Iowa District Court For Wapello County
Jerry Dovico, et al., Plaintiffs vs. Valley View Sine LLC, et al., Defendants
Law No,: LALA105144 - Division A
Rosenfeld Deposition, August 2015
In The Iowa District Court For Wapello County
Doug Pauls, et al.,, et al., Plaintiffs vs. Richard Warren, et al., Defendants
Law No,: LALA105144 - Division A
Rosenfeld Deposition, August 2015
In The Circuit Court of Ohio County, West Virginia
Robert Andrews, et al. v. Antero, et al.
Civil Action N0. 14-C-30000
Rosenfeld Deposition, June 2015
In The Third Judicial District County of Dona Ana, New Mexico
Betty Gonzalez, et al. Plaintiffs vs. Del Oro Dairy, Del Oro Real Estate LLC, Jerry Settles and Deward
DeRuyter, Defendants
Rosenfeld Deposition: July 2015
In The Iowa District Court For Muscatine County
Laurie Freeman et. al. Plaintiffs vs. Grain Processing Corporation, Defendant
Case No 4980
Rosenfeld Deposition: May 2015
Paul E. Rosenfeld, Ph.D. Page 9 of 9 June 2020