>Parker
Shattuck Neighbors v. Berkeley City Council

 

 

 

 

 

 

 

 

 

 

 

 

Filed 11/7/13  Parker Shattuck Neighbors v. Berkeley City
Council CA1/4

 

 

 

 

 

 

 

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FOUR

 

 
>

PARKER SHATTUCK NEIGHBORS et al.,             Plaintiffs and Appellants, v. BERKELEY CITY COUNCIL et al.,             Defendants and Respondents; CityCentric INVESTMENTS, LLC et al.,             Real Parties in Interest and Respondents.

A136873         (Alameda County       Super. Ct. No. RG12617535)

 

            This
action was brought under the California
Environmental Quality Act (CEQA)href="#_ftn1" name="_ftnref1" title="">[1] to
challenge a proposed mixed-use commercial and residential project approved by the
City of Berkeley.  Appellants are Parker
Shattuck Neighbors and two individuals (collectively Parker Shattuck),href="#_ftn2" name="_ftnref2" title="">[2]
who contend the City violated CEQA by approving the project without an
environmental impact report (EIR).  Parker
Shattuck petitioned for a writ of mandate, maintaining that an EIR was required
because pre-existing contamination on the site poses health risks to the
project’s construction workers and future residents.  We affirm the trial court’s denial of the writ
because Parker Shattuck has failed to identify href="http://www.mcmillanlaw.com/">substantial evidence supporting a fair
argument that there may be a significant effect on the environment because of
these potential health risks.

I.

Factual and Procedural

Background

            The Parker Place Project is proposed
by CityCentric Investments, LLC and Parker Place Group, LLC and was approved by
the Berkeley City Council.href="#_ftn3"
name="_ftnref3" title="">[3]  When finished, it will consist of three buildings
on what are currently three different parcels. 
A five-story mixed-use building with an underground parking garage will
be built at 2600 Shattuck Avenue, another five-story mixed-use building will
be built at 2598 Shattuck Avenue, and a three-story residential building will
be built at 2037 Parker Street.  All
told, the project will include 155 residential units and over 20,000 square
feet of commercial space.

            The
three parcels are currently occupied by a car dealership, Berkeley Honda.  The showroom, offices, and service garage are
located at 2600 Shattuck Avenue, and a sales lot is located at 2598 Shattuck Avenue
and 2037 Parker Street.  Since 1923,
2600 Shattuck Avenue has been the site of a car dealership and service
garage, and from at least 1922 to 1960, 2598 Shattuck Avenue was the site
of a service station.

            Before
buying the properties, the current owner commissioned three environmental site-assessment
reports, which were issued in two phases. 
The Phase I report was issued in December 2005, and it stated that the
properties had a history of containing underground storage tanks.  Underground storage tanks are used to store
hazardous substances, such as gasoline.  (See
Health & Saf. Code, § 25281, subd. (y)(1).)  In 1988, a 1000-gallon underground storage
tank was removed from 2598 Shattuck Avenue, and the Berkeley Health and
Human Services Department issued a letter confirming there was “no significant
soil contamination resulting from a discharge in the area surrounding the underground
storage tank.”  In 1990, a 500-gallon tank
was removed from 2600 Shattuck Avenue.  Fire
Department records also indicated there were or might once have been several
other underground storage tanks.  The Phase
I report recommended using ground-penetrating radar to clarify whether there
were any other underground storage tanks and conducting an investigation to
assess ground contamination.

            These
recommendations were accepted, and the results were described in the Phase II
report issued in March 2006.  The
ground-penetrating-radar study located a suspected underground storage tank
under the sidewalk next to 2600 Shattuck Avenue and recommended its removal.  It also identified a concrete pad at 2598
Shattuck Avenue that might conceal an underground storage tank.  The ground-contamination investigation
collected soil samples from twenty borings near areas of potential
contamination, and water samples were collected where the borings encountered
groundwater.  Various volatile organic
compounds (VOCs) were detected in two soil samples and a water sample, but they
did not “exceed the San Francisco Regional Water Quality Control Board [Regional
Board] . . . Environmental Screening Levels . . .,
or there are no [environmental-screening levels] established for the
contaminant.”  The report recommended
additional soil and water sampling in other areas of concern, including under
the concrete pad to determine if there was petroleum in the soil and thus
whether an underground storage tank might be there.

            This
recommendation was accepted, and the results were announced in a supplemental
Phase II report.  Although petroleum
hydrocarbons, arsenic, and cobalt were detected in amounts exceeding Regional
Board environmental-screening levels for commercial/industrial land use, the
report noted that the hydrocarbon contamination was “not likely” to “require
cleanup” and that the arsenic and cobalt were probably “naturally occurring.”  No contaminants were detected in amounts exceeding
environmental-screening levels for groundwater that was not a potential source
of drinking water.  The supplemental report
also determined that there was no underground storage tank or soil contamination
under the concrete pad.

            The
storage tank under the sidewalk next to 2600 Shattuck Avenue was removed in
April 2006.  Because hydrocarbon contamination
was observed in the soil surrounding the tank, 75 tons of soil were also
removed from the site.  The site was then
placed on a list, known as the “Cortese list,”
that is comprised of potentially contaminated sites and includes sites with “underground
storage tanks for which an unauthorized release report is filed.”  (Gov. Code, § 65962.5, subd. (c)(1).)

            In
January 2007, the Regional Board issued a closure letter finding that no
further corrective action related to the petroleum contamination was necessary
at the project’s site.  A printout of a State
Water Resources Control Board website identifying sites on the Cortese> list showed that the project’s site remained
on the list but was given the status of “case closed” the day after the Regional
Board’s closure letter was issued.

            Almost
two years later, in December 2008, CityCentric applied to begin constructing the
project.  A use permit was finally
approved in 2010 after the City determined that CEQA did not apply because the
project fell under a regulatory exemption for urban “In-Fill Development
Projects.” href="#_ftn4" name="_ftnref4" title="">[4]

            Parker
Shattuck brought a writ of mandate to challenge
the City’s approval of the project in Parker
Shattuck Neighbors v. Berkeley City Council (Super. Ct. Alameda County, 2011,
No. RG10544097).  Although the trial
court rejected Parker Shattuck’s various arguments under CEQA, finding they
were not raised at the administrative level, it granted the writ and ordered
the City to vacate approval of the project after it found that the City had
allowed the project to be modified without first holding a public hearing.  The City vacated the project’s approval in
October 2011.

            In
the second round of administrative proceedings, the City assumed the CEQA exemption
for urban in-fill projects (Guidelines, § 15332) was inapplicable.  On November 1, 2011, the City released for
public comment a proposed mitigated negative declaration (MND), which
incorporated the initial study.

            The
proposed MND found that the project would potentially affect several
environmental factors, including the category entitled “Hazards & Hazardous
Materials.”  A checked box indicated that
one potential environmental impact was that the project would “[b]e located on
a site which is included on [the Cortese] list . . . and, as a
result, would . . . create a significant hazard to the public or
the environment.”  In its discussion of
this potential effect, the MND noted that although the project site appeared on
the Cortese list, “both [the City’s Toxics
Management Division] and the [Regional Board] ha[d] found that the site has
undergone adequate discovery and remediation, with the result that the site
poses no significant hazard to the public or the environment.”  The proposed MND also noted that “according
to [the City’s Toxic Management Division], [t]he recognized soil and
groundwater impacts [did] not appear to extend beyond the property boundaries”
because various characteristics of petroleum oils made it unlikely they would
spread in the soil, groundwater, or air.  The MND concluded that mitigation could reduce
any potential impact to “less than significant” by “ensur[ing] that there
[would] be no significant hazard to the public or the environment during any
necessary remediation work during or after construction of the project.”

            Parker
Shattuck submitted comments on the proposed MND, including comments from Matthew
Hagemann, a hydrogeologist and expert on air quality.  Relying on Hagemann’s comments, Parker
Shattuck argued that an EIR was required because the MND’s mitigation measures failed
adequately to address the health threat of the toxic soil contamination to
construction workers and future residents of the project.  A week later, Parker Shattuck submitted additional
comments, which primarily discussed comments on the MND submitted by the East
Bay Municipal Utilities District (EBMUD). 
EBMUD’s letter informed the City that the utilities district “[would]
not inspect, install or maintain pipeline or services” in soil or groundwater that
was contaminated above certain levels and until the district was able to review
contamination data and remediation plans.  Parker Shattuck argued that these comments further
demonstrated that the MND’s mitigation measures were insufficient.

            The
Berkeley Zoning Adjustments Board held a public hearing on December 8 and
adopted the MND.  Parker Shattuck
appealed the decision to the Berkeley City Council.  In January 2012, the City Council approved the
project.

            Parker
Shattuck filed this lawsuit in February 2012, seeking a writ of mandate to
compel the City to set aside approval of the MND and project and to prepare an
EIR.  The lawsuit also sought injunctive
relief, costs, and attorney fees.  Although
during the administrative proceedings Parker Shattuck had raised other concerns
about the project, such as the potential for air pollution and noise, the
petition’s primary contentions were that the site’s soil contamination is a
significant environmental impact requiring an EIR and the MND failed to provide
adequate mitigation measures.

            The
trial court issued a tentative order denying the petition, and a hearing
occurred over two days in July 2012.  The
court then issued an order and proposed statement of decision denying the
petition and entered judgment.  Parker
Shattuck timely appealed.

II.

Discussion

            A.         The
Background of CEQA.

            CEQA reflects the California
state policy that “the long-term protection of the environment, consistent with
the provision of a decent home and suitable living environment for every
Californian, shall be the guiding criterion in public decisions.”  (§ 21001, subd. (d).)  “[T]o implement this policy,” CEQA and the
Guidelines “have established a three-tiered process to ensure that public
agencies inform their decisions with environmental considerations.”  (Davidon
Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 112 (>Davidon Homes).)  A public agency must “conduct a preliminary
review in order to determine whether CEQA applies to a proposed activity.”  (Ibid.)  At this stage, the agency must determine
whether any of CEQA’s statutory exemptions apply.  (Concerned
Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301, 1309.)  If the project is in an exempt category for
which there is no exception, “ â€˜no further environmental review is
necessary.’ â€  (Id. at p. 1310; Save the
Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209,
220.)

            If
the project is not exempt from CEQA, the next step is to conduct an initial
study.  (Davidon Homes, supra, 54
Cal.App.4th at p. 113.)  The initial study
determines whether there is “ â€˜substantial evidence that the project may
have a significant effect on the environment.’ â€  (Architectural
Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1101
(AHA).)  If there is no such evidence, “ â€˜CEQA
excuses the preparation of an EIR and allows the use of a negative
declaration.’ â€  (>Ibid.) 
If there is such evidence, “ ‘but revisions in the project plans “would
avoid the effects or mitigate the effects to a point where clearly no
significant effect on the environment would occur” and there is no substantial
evidence that the project as revised may have a significant effect on the
environment, [an MND] may be used.’ â€ 
(Ibid.)

            If
neither type of negative declaration is appropriate, the final step is to
prepare an EIR.  (AHA, supra, 122 Cal.App.4th
at p. 1101.)  Given that “the EIR is
the ‘heart of CEQA,’ â€ doubts about whether an EIR is required are
resolved in favor of preparing one.  (>Laurel Heights Improvement Assn. v. Regents
of University of California (1993) 6 Cal.4th 1112, 1123; >AHA at p. 1102.)

            >B.         >The Applicable Legal Standards.

            The
lead agency must prepare an EIR “whenever substantial evidence supports a fair
argument that a proposed project ‘may have a significant effect on the
environment.’ â€  (>Laurel Heights Improvement Assn. v. Regents
of University of California, supra,
6 Cal.4th at p. 1123.)  “The fair
argument standard is a ‘low threshold’ test for requiring the preparation of an
EIR.”  (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903,
928.)  “[F]acts, reasonable assumptions
predicated upon facts, and expert opinion supported by facts” all constitute “[s]ubstantial
evidence” of a significant effect on the environment, and “[a]rgument, speculation,
unsubstantiated opinion or narrative, or evidence that is clearly inaccurate or
erroneous, or evidence that is not credible” do not.  (Guidelines, § 15064, subd. (f)(5).)  As long as there is substantial evidence of a
potential significant environmental effect, “contrary evidence is not adequate
to support a decision to dispense with an EIR.” 
(Sierra Club v. County of Sonoma
(1992) 6 Cal.App.4th 1307, 1316.)

            An
agency’s decision under CEQA is reviewed for abuse of discretion.  (§§ 21168, 21168.5; County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th
931, 945.)  “ â€˜Abuse of discretion
is shown if (1) the agency has not proceeded in a manner required by law, or
(2) the determination is not supported by substantial evidence.’ â€  (Ibid.)  Review is de novo in the sense that “[t]he
appellate court reviews the agency’s action, not the trial court’s
decision.”  (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova (2007) 40 Cal.4th 412, 427.)

            When
reviewing the agency’s determination not to prepare an EIR, we “determine
whether substantial evidence supported the agency’s conclusion as to whether
the prescribed ‘fair argument’ could be made.” 
(Friends of “B” Street v. City of
Hayward (1980) 106 Cal.App.3d 988, 1002.) 
“ â€˜[T]he sufficiency of the evidence to support a fair
argument’ â€ is a question of law.  (>Sierra Club v. County of Sonoma, >supra, 6 Cal.App.4th at p. 1318.) 
When determining whether sufficient evidence exists to support a fair
argument, “deference to the agency’s determination is not appropriate and its
decision not to require an EIR can be upheld only when there is no credible
evidence to the contrary.”  (>Ibid.)

            We
limit our review to the administrative record because the agency’s
determination that an MND is appropriate depends on “the absence of
‘substantial evidence in light of the whole record before
the . . . agency that the project, as revised, may have a
significant effect on the environment.’ â€ 
(AHA, supra, 122 Cal.App.4th at p. 1111, italics omitted; see also §§ 21080,
subd. (d), 21082.2, subds. (a), (d) [determination whether project will have a
significant effect on the environment and whether EIR must be prepared is made
“in light of the whole record before the lead agency”].)  Parker Shattuck has the burden of proof “to
demonstrate by citation to the record the existence of substantial evidence
supporting a fair argument of significant environmental impact.”  (League
for Protection of Oakland’s etc. Historic Resources v. City of Oakland
(1997) 52 Cal.App.4th 896, 904.)  “Unless
the administrative record contains this evidence, and [plaintiffs] cite[] to
it, no ‘fair argument’ that an EIR is necessary can be made.”  (South
Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th
1604, 1612-1613 (SOCWA).)

            C.        >Parker Shattuck Has Failed to Identify >Substantial Evidence Supporting a Fair
Argument that the Project’s Disturbance of Contaminated Soil May Have a
Significant Effect on the Environment.

>            Parker
Shattuck contends that the City is required to prepare an EIR because the MND
contains inadequate measures to mitigate environmental effects that will be
caused by “excavating and disturbing toxic soil.”  It argues that the project will have a
significant effect on the environment by threatening the health of construction
workers and future residents.  We conclude
that Parker Shattuck has failed to identify substantial evidence supporting a
fair argument that potential health risks to workers and future residents might
constitute a significant environmental impact. 
Accordingly, we need not consider whether the MND contained adequate
mitigation measures because such “measures are not required for effects which
are not found to be significant.”  (Guidelines,
§ 15126.4, subd. (a)(3).)href="#_ftn5"
name="_ftnref5" title="">[5]

            “
‘Significant effect on the environment’ means a substantial, or potentially
substantial, adverse change in the environment.”  (§ 21068.)  A change in the “environment” is a “change in
any of the physical conditions within the area affected by the project
including land, air, water, minerals, flora, fauna, ambient noise, and objects
of historic or aesthetic significance.” 
(Guidelines, § 15382.)  A finding
of a significant environmental effect is mandatory if “[t]he environmental
effects of a project will cause substantial adverse effects on human beings,
either directly or indirectly.”  (§
21083; Guidelines, § 15065, subd. (a)(4).) 
In other words, while “[e]ffects analyzed under CEQA must be related to
a physical change” (Guidelines, § 15358, subd. (b)), such a change may be
deemed significant based solely on
its impact on people.

                        1.         The
disturbance of contaminated soil can be a physical change in the environment.>

            Parker Shattuck argues that disturbing contaminated soil can
be a “physical change” in the environment. 
We agree.  (Guidelines,
§ 15358, subd. (b); Citizens for
Responsible Equitable Environmental Development v. City of Chula Vista
(2011) 197 Cal.App.4th 327, 332 (CREED)
[in a case involving soil contamination beneath a former gas station, the court
held that “it [could] be fairly argued that [the project at issue] may have a
significant environmental impact by disturbing contaminated soils”]; see also >Association for a Cleaner Environment v.
Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 635, 638-640
(ACE) [project to remove a shooting
range that would not increase the lead contamination already present due to
bullets might nevertheless “spread[] [that] contamination, which is a direct
physical change in the environment,” through increased vehicle and foot traffic
and donations of portion of range to another site].)

            The
City argues that this case is not about the project affecting the environment,
but is instead about the environment (i.e., any contaminated soil or groundwater
at the site) affecting the project.  In
support of its position, it relies on several cases holding that the
environment’s impact on a project is not a “ â€˜significant effect on the
environment.’ â€  But these decisions,
with one exception, are not directly applicable here because the projects in
those cases, unlike the project here, did not involve a physical change in the
environment.href="#_ftn6" name="_ftnref6"
title="">[6]

            In
one of the cases, Baird v. County of
Contra Costa (1995) 32 Cal.App.4th 1464 (Baird), the court considered whether an EIR was required for a
planned addiction-treatment facility to be built on and adjacent to
contaminated sites.  (>Id. at p. 1466.)  The plaintiff contended that the
“preexisting . . . contamination . . . [would]
have an adverse effect on the proposed facility and its residents.”  (Id.
at p. 1468, italics omitted.)  The court
held that “[a]ny such effect [was] beyond the scope of CEQA and its requirement
of an EIR” because “[t]he purpose of CEQA is to protect the environment from
proposed projects, not to protect proposed projects from the existing
environment.”  (Ibid.)  The court explained
that an EIR was not required “for a project that might be affected by
preexisting environmental conditions but [would] not change those conditions or
otherwise have a significant effect on the environment.”  (Id.
at p. 1466.)

            This
holding was premised on the finding that the project would not cause a physical
change related to the contamination.  The
court specifically rejected the plaintiff’s contention “that the construction
of the facility ‘may expose or exacerbate the existing ground contamination’ ”
because all the contamination sources were several hundred feet away from the
building site, and there was no evidence that the project would disturb
contaminated soil.  (Baird, supra, 32
Cal.App.4th at p. 1468, fn. 1.) 
The observation implies that the court would have considered the
disturbance of contaminated soil an effect on the environment, further
supporting our conclusion that disturbing contaminated soil is a physical
change that, under the right circumstances, may cause an environmental effect
that is cognizable under CEQA.

            In
another case relied upon by the City, SOCWA,
the plaintiff operated a sewage-treatment plant next to the site of a proposed
development and contended that an EIR was necessary to consider the effect of
the plant’s odors on the development.  (>SOCWA, supra, 196 Cal.App.4th at pp. 1608, 1613.)  The court held that CEQA could not be used
“to defend the proposed project (the future residences) from a purportedly
adverse existing environment (smells from the sewage treatment plant).”  (Id.
at p. 1614.)  The court concluded that an
EIR was unnecessary because the plaintiff had failed to identify any relevant
effect on the environment.  (>Id. at p. 1616.)  And the same result was reached in yet
another case relied upon by the City, Ballona
Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455 (>Ballona), where the court held that an
EIR did not need to address impacts relating to “sea level rise resulting from
global climate change” on a proposed mixed-use development where the project
itself would not cause sea levels to rise. 
(Id. at pp. 462-464, 475.)  Thus, neither Baird, SOCWA, nor Ballona
involved a project that would itself physically change the environment.  By contrast, Parker Shattuck has identified
an aspect of the project—the disturbance of contaminated soils—that will
physically change the environment.

            Although
we conclude that Parker Shattuck has identified a physical change in the
environment that may be cognizable under CEQA, we reject its contention that “the
existence of toxic soil contamination at a project site,” without any
accompanying disturbance or other physical change, “is, in itself, a
significant impact requiring CEQA review and mitigation.”  In making this part of its argument, Parker
Shattuck relies on CREED.  But this reliance is misplaced.  CREED
concluded that there was a fair argument the project could “have a significant
environmental impact by disturbing
contaminated soils,” not merely by being built on a contaminated site.  (CREED,
supra, 197 Cal.App.4th at p. 332,
italics added.)

            Nor
do we accept Parker Shattuck’s argument that an EIR is necessarily required for
every project proposed to be built on a site that is mentioned on the Cortese
list.  In arguing that soil contamination
at a project site is sufficient to trigger an EIR, Parker Shattuck cites CEQA’s
exception to categorical exemption for projects to be built on sites included
on the Cortese list, and the
legislative history of Assembly Bill No. 869, the bill adding that
exception.  (§ 21084, subd. (d); Stats.
1991, ch. 1212, § 1; see also § 21092.6, subd. (a) [requiring lead
agency to determine whether a project is on a Cortese-list site and disclose that
information in CEQA documents].)  We
agree that the Legislature intended that projects on these sites should not be
categorically exempt from CEQA because they may be more likely to involve
significant effects on the environment. 
But whether a project should be categorically exempt from CEQA is different
from whether the project involves a significant effect on the environment.  The finding that an exception to exemption
applies ensures an initial study to investigate whether there is a potential significant effect on the environment
but does not establish that such an effect exists.  (See Davidon
Homes, supra, 54 Cal.App.4th at
p. 113.)  As the City points out, a site
may stay on the Cortese list even
after a determination is made that no further remediation is required, and this
is precisely what occurred in this case. 
In short, we are not persuaded that projects built on sites identified
on the Cortese list necessarily involve a significant effect on the
environment.href="#_ftn7" name="_ftnref7"
title="">[7]

                        2.         The identified health risks to construction
workers and future residents do not establish that the disturbance of
contaminated soil may have a significant effect on the environment.

            We next turn to whether the project
will have a significant effect on the environment as a result of the potential health
risks to people.  We conclude that the health
risks to workers and residents identified by petitioners do not constitute
“substantial adverse effects on human beings” or otherwise create a fair
argument that the disturbance of contaminated soil may have a significant
effect on the environment.

            To
begin with, and while we need not and do not decide the issue here, we note
that it is far from clear that adverse effects confined only to the people who
build or reside in a project can ever suffice to render significant the effects
of a physical change.  In general, CEQA does
not regulate environmental changes that do not affect the public at large:  “the question is whether a project [would]
affect the environment of persons in general, not whether a project [would]
affect particular persons.”href="#_ftn8"
name="_ftnref8" title="">[8]  (Mira
Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492;
accord Martin v. City and County of San
Francisco (2005) 135 Cal.App.4th 392, 404.)

            For
example, in Topanga Beach Renters Assn.
v. Department of General Services (1976) 58 Cal.App.3d 188, the plaintiff
argued that the demolition of living structures on a beach would adversely affect
humans, and thus constitute a significant effect on the environment requiring
an EIR, because “the planned demolition [would] evict people from their homes
(with consequent adverse effect on those people).”  (Id.
at pp. 191, 194.)  The court held that the
“[a]dverse effect on persons evicted from Topanga Beach cannot alone invoke the
requirements of CEQA, for all government activity has some direct or indirect
adverse effect on some persons.”  (>Id. at p. 195.)  “The issue [was] not whether demolition of
structures [would] adversely affect particular persons but whether demolition
of structures [would] adversely affect the environment of persons in
general.”  (Ibid.)  In short, the court
concluded that there was no significant effect on the environment because the identified
impact affected only a particular group of people.

            We
find it significant that in the case before us the only people identified by Parker
Shattuck who potentially will be impacted by the project are those who will work
on or live at the project site.  In >Long Beach, the court considered the
argument that an EIR addressing the proposed construction of a high school to
serve over 1,800 students was insufficient because it failed to discuss the project’s
“cumulative impacts on air quality and traffic ‘and in turn, on staff and student
health’ â€ in light of already-existing emissions from nearby freeways.href="#_ftn9" name="_ftnref9" title="">[9]  (Long
Beach, supra, 176 Cal.App.4th at pp. 895, 905.) 
The court observed that “generally, ‘[t]he purpose of an [EIR] is to
identify the significant effects on the environment of a project . . .’
[citations], not the impact of the environment on the project, such as the
school’s students and staff.”  (>Id. at p. 905, italics
omitted.)  As a result, the air quality’s
effect on staff and student health was “not the aim of the cumulative impacts
analysis,” and the court did not consider the EIR’s failure to discuss health
risks germane to the cumulative impacts issue. 
(Id. at pp. 905-912.)  Long
Beach instructs that a physical change caused by a project, even one
affecting several hundred people, is not necessarily cognizable under CEQA when
the people affected are part of the project. 
(See also Ballona, >supra, 201 Cal.App.4th at pp. 473-474 [“identifying the effects on the
project and its users of locating the
project in a particular environmental setting is neither consistent with CEQA’s
legislative purpose nor required by the CEQA statutes,” italics added].)

            We
recognize that when a project may cause a physical change to the environment, CEQA
requires a consideration whether the change will have a potential impact on people.  This is the import of section 21083,
subdivision (b)(3)’s requirement that an environmental effect be deemed
significant if it will have an adverse effect on people.  In addition, if the environmental changes are
deemed significant, then an EIR must discuss “health and safety problems caused
by the physical changes.”  (Guidelines,
§ 15126.2, subd. (a).)  None of the
authorities cited by Parker Shattuck, however, holds that a significant effect
on the environment must be found when potential health risks are confined to
people associated with a project.  (See >Communities for a Better Environment v.
South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 316-317,
320, 327 [EIR required for petroleum refinery’s production of ultralow sulfur
diesel fuel where project would greatly increase the emission of nitrogen
oxide, which is “a major contributor to smog formation and can cause adverse
health effects, especially aggravation of respiratory disease”];> City of Maywood v. Los Angeles Unified School
Dist. (2012) 208 Cal.App.4th 362, 371, 375, 403-405 [EIR discussed
potential risks to health of school’s students and employees to comply with
Education Code requirements and after initial study’s finding of no potential
significant environmental effects from hazardous-material contamination]; >Communities for a Better Environment v. City
of Richmond (2010) 184 Cal.App.4th 70, 81-82, 89 [EIR inadequately
addressed whether refinery upgrade would result in processing of heavier crude
oil and therefore failed to address potential impacts of such processing,
including health risks to members of surrounding community]; >Bakersfield Citizens for Local Control v.
City of Bakersfield (2004) 124 Cal.App.4th 1184, 1219-1220 [relying on
Guidelines, section 15126.2, subdivision (a) to hold that EIR was
inadequate because it failed to discuss adverse health effects of increased air
pollution]; ACE, supra, 116 Cal.App.4th 629 [no discussion of impacts on human
health]; Berkeley Keep Jets Over the Bay
Com. v. Board of Port Comrs. (2001) 91 Cal.App.4th 1344, 1350, 1352, 1364
[where EIR for airport expansion acknowledged significant effects on air
quality, EIR was inadequate because it failed to include assessment of
increased air pollution’s risk to people living near airport].)

            We
also reject Parker Shattuck’s argument that CEQA requires consideration of the
potential impact Parker Shattuck has identified simply because the MND
mentioned a consideration of “the [p]roject’s impacts on the public and
construction workers” after a box was checked on a form checklist indicating
that the site was on the Cortese list.
 The form checklist comes from Appendix G
of the Guidelines, which provides a suggested list of potentially significant
impacts to be considered when preparing an initial study.  We do not believe the MND establishes that the
City conceded that CEQA required consideration of health risks limited to workers
and future residents.  Furthermore, even
if the MND’s consideration of a potential factor on a form checklist could be
construed as some sort of admission, the admission would not offset the weight
of authority indicating that an EIR is not required for environmental effects that
impact only a limited group of people. 
(See SOCWA, >supra, 196 Cal.App.4th at p. 1616 [“A
few questions on a suggested checklist in an appendix to the [G]uidelines do
not seem to us to provide a strong enough foundation on which to base a reversal
of the entire purpose of CEQA”].)

            Ultimately,
and notwithstanding the parties’ extensive briefing on the issue, we need not decide
whether the potential effects of a physical change that poses risk only to the people
who will construct and reside in a project may ever be deemed significant.  (See California
Building Industry Assn. v. Bay Area Air Quality Management Dist. (2013) 218
Cal.App.4th 1171, 1195 [declining to “decide whether Baird, Long Beach, >SOCWA, and Ballona were correctly decided or whether, as a general rule, an
EIR may be required solely because the existing environment may adversely affect
future occupants of a project”].)  This
is because the evidence Parker Shattuck has identified does not support a fair
argument of significance even if health risks to a project’s workers and future
residents alone could establish that a physical change would have a significant
effect on the environment.

            Parker
Shattuck relies on Hagemann’s comments in support of its argument that disturbing
the contaminated soil will have a significant environmental effect due to the health
risk the site’s contamination poses to workers and future residents.href="#_ftn10" name="_ftnref10" title="">[10]  His conclusions were based on the levels at
the site of 1,2-dichloroethane and benzene, both VOCs, and of total petroleum
hydrocarbons.href="#_ftn11" name="_ftnref11"
title="">[11]

            1,2-dichloroethane,
a potential human carcinogen, was present in one groundwater sample from 2600
Shattuck Avenue at the level of 14 ug/L (micrograms/liter).  Hagemann stated that the safe level of this
compound in drinking water is .5 ug/L, the Regional Board recommends a vapor-intrusion
study when the level exceeds .5 ug/L, and the United States Environmental
Protection Agency recommends such a study when the level exceeds 5 ug/L.href="#_ftn12" name="_ftnref12" title="">[12]  Benzene, a known human carcinogen, was present
in one groundwater sample from 2600 Shattuck Avenue at 9.3 ug/L.  Hageman stated that the safe level of this
compound in drinking water is 1 ug/L, the Regional Board recommends a vapor-intrusion
study when the level exceeds 1 ug/L, and the United States Environmental
Protection Agency recommends such a study when the level exceeds 5 ug/L.  Finally, total petroleum hydrocarbons were found
in the soil at one boring at 2600 Shattuck Avenue at a level of 1900 mg/kg
(milligrams/kilogram), which exceeds the Regional Board screening level for industrial/commercial
use of 1000 mg/kg.

            Hagemann
contended that future residents are at risk because vapors from the two VOCs may
travel through the soil into buildings constructed on the site through a
process known as vapor intrusion and thereby expose these buildings’ residents
to polluted air.href="#_ftn13" name="_ftnref13"
title="">[13]  Based on the levels of the two VOCs, Hagemann
suggested that a vapor-intrusion study be performed.  This opinion is insufficient to create a fair
argument of a significant effect on the environment because a suggestion to
investigate further is not evidence, much less substantial evidence, of an
adverse impact.href="#_ftn14" name="_ftnref14"
title="">[14]

            Hagemann
also contended that construction workers may be exposed to the VOCs by inhaling
their vapors and to the VOCs and hydrocarbons through dermal contact.  Even assuming that the disturbance of
contaminated soil would cause these risks, we conclude Hagemann’s contention
still fails to amount to substantial evidence supporting a fair argument of a
significant effect on the environment.  First,
while the levels of the two VOCs exceed screening levels for drinking water and,
according to Hagemann, suggested the need for a vapor-intrusion study, the
levels do not exceed Regional Board levels for nonpotable water.  Hagemann provided no explanation why levels
below the Regional Board screening levels might pose health risks where the
water will not be drunk.  Second, Hagemann
did not discuss the significance for human health of exposure to petroleum hydrocarbons
or challenge the Phase II supplemental report’s finding that the contamination
from the hydrocarbons is not the type that would usually “require cleanup.”  Instead, he simply claimed that the level of total
petroleum hydrocarbons should lead to further investigation.

            We
conclude that, even if health risks confined to a project’s construction
workers and future residents could ever trigger CEQA review, substantial
evidence was not identified in the record to create a fair argument that the
disturbance of contaminated soil may have a significant effect on the
environment.

III.

Disposition

            The judgment is affirmed.  Respondents are awarded their costs on
appeal.



 

 

 

 

 

 

 

 

                                                                                    _________________________

                                                                                    Humes,
J.

 

 

We concur:

 

 

_________________________

Reardon, Acting P.J.

 

 

_________________________

Rivera, J.