Re: Marine Express Site Improvements Project Initial Study and Proposed Mitigated Negative Declaration Planning Commission Meeting August 12, 2014

Transcription

1 BAY HARBOR PARK HOMEOWNERS ASSOCIATION c/o Bay Area Property Services 1600 Tice Valley Blvd., Ste. 200 Walnut Creek, CA August 12, 2014 Planning Commission City of Pittsburg 65 Civic Avenue Pittsburg, California Re: Marine Express Site Improvements Project Initial Study and Proposed Mitigated Negative Declaration Planning Commission Meeting August 12, 2014 Dear Commissioners: Thank you for the opportunity to review and comment on the Initial Study and Proposed Mitigated Negative Declaration for the Marine Express Site Improvements Project ("the Project"). On behalf of Bay Harbor Park Homeowners Association I submit the following comments. Lack of Notice Bay Harbor Park is a residential community located in very close proximity to the Project area. The homeowners there have a general interest in the health and safety of their community and a specific interest in the potential for this Project to impact the health, safety, and welfare of the residents at Bay Harbor Park. As preliminary matter, it is because of those twin concerns that I and other residents have repeatedly advised the City staff of our interest in any project that might be brought forward at the Project site and requested that we specifically be notified of any project consideration by this body or the City Council. Unfortunately in this case, we were not notified of the project approvals before you. To the extent we were given any notice at all it was that I was advised that a "ship maintenance yard" was being proposed for the site." Even with the scant record available, we can tell the Project involves much, much more than that. As such, while we submit our initial comments here, we reserve the right to object to any approvals because of the lack of notice to interested parties and the lack of time for those parties to fully review and comment on the Project. General Overview The documents that have been made available for the public to review regarding the Project are inadequate. In summary,

2 Re: Initial Study/Marine Express Improvements Project Page 2 a) The documents are confusing, if not misleading, because the initial study and mitigated negative declaration that were made available to the public seem to be describing and analyzing a project that is very different than the project before the Planning Commission as now described in the staff report made available only a few days ago; b) As detailed below, very basic and important questions about the project as now described (exactly where is the hazardous or regulated waste coming from, how much is coming, etc.) are left completely unanswered. Actually, it would seem they were not even asked; c) In many cases the proposed mitigations and/or conditions cede authority over the project results and impacts to other entities (some unnamed) without leaving any oversight ability with the City of Pittsburg; d) The proximity of the Project to existing residential communities as well as land that is zoned for large scale, high density residential development is not properly discussed or analyzed;' and e) Some of the uses, like those associated with "garbage sterilization," need to be described and analyzed in much greater detail instead of being ignored or hidden. As detailed further below, our review of the Initial Study reveals certain concerns regarding its compliance with California Environmental Quality Act ["CEQA"], including such pertaining to the Planning Manager's determination that a Mitigated Negative Declaration, rather than a full Environmental Impact Report ["ELR"], is appropriate for the Proposed Project. Moreover, this letter details our further concerns with the Proposed Project in general, especially based on the current description. The Initial Study does not meet CEQA requirements as it does not adequately describe the Proposed Project In general, one of the major purposes of an initial study is to "provide the lead agency with information to use as the basis for deciding whether to prepare an EIR or negative declaration." 2 As such, "an accurate project description is necessary for an intelligent evaluation of the potential environmental effects of a proposed activity." 3 Furthermore, a project description that Kitty corner to the project site is the Renova Partners parcel, an area that is zoned for single family, high density residential housing of at least 369 homes. 2 CEQA Guidelines 15o63(c)(1). As clarification, reference to "CEQA Guidelines" means Title 14 of the California Code of Regulations, Division 6. Resources Agency, Chapter 3. Guidelines for Implementation of California Environmental Quality Act, et seq. Silveira v. Las Gallinas Valley Sanitary Dist. (1997), 54 Cal.App.4th 980, 990.

3 Letter to Planning Commission/City of Pittsburg August 12,2014 Re: Initial Study/Marine Express Improvements Project Page 3 gives conflicting signals to decision makers and the public about the nature and scope of the project is fundamentally inadequate and misleading. 4 After a review of the Initial Study for the Proposed Project, we have determined that the project description provided is not adequate, especially considering that it does not provide accurate and complete information to use as the basis to determine whether an EIR or a negative declaration is to be prepared. A) Because there is insufficient and/or misleading information about exactly what the Proposed Project is, the current project description is inadequate The project is entitled "Marine Express Site Improvements" and the Initial Study explains that the Project Proponent is requesting entitlements for "site improvements" to the property in question. The project description from the Initial Study further explains that the objective of the Proposed Project is to "install site improvements that will facilitate the storage, building, repair, waste processing, loading, modifications, overhauls, and demolition of marine equipment and vessels and associated hazardous materials." However, in reviewing the rest of the project description, it is unclear whether the uses and activities that are proposed to occur on the property are also part of this Proposed Project, at least for the purposes of the Initial Study and the preliminary environmental review up to this point. While the project description lists "uses and activities that are proposed to take place on the property," the fact that the Proposed Project's title is "Marine Express Site Improvements" and that there are references throughout the project description to "improvements" for which this review is intended, becatise the documents also have intermittent, incomplete references to intended uses the documents overall are confusing. It would seem the Proposed Project encompasses more than just "site improvements" and instead actually involves at least de facto, approval of uses. This is further made evident in the newly published Notice of Public Hearing and staff report which for the first time reference immediate approval of a Use Permit as if the MIND was really intended to cover that use permit. In contrast, the documents made available for the public to review and comment on make reference only to use permits which were to be applied for at some undetermined later date. For example, the IS/MIND project description explains that completion of the improvements would require design review and use, building, and grading permits from the Planning Commission and City at some later date; 5 that approvals from certain regulatory agencies are required for the improvements; and that the site improvements would be conducted in two phases 4 communities for a Better Environment v. City of Richmond (2010), 184 Cal.App.4th 70, 84 (citing San Joaquin Raptor Rescue Center v. County of Merced (2007), 149 Cal-APP.4th 645, ); also see Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014), WL

4 Re: Initial Study/Marine Express Improvements Project Page 4 and would facilitate certain uses. However, some of the new documentation actually refers to the project as deriving from a "Use Permit and Design Review Application." The documents from time to time describe some aspects of the uses while leaving others a complete mystery. Another factor adding to this confusion regarding what exactly is encompassed in this Proposed Project is the brief overview provided in the project description, and later in the actual checklist of environmental factors that are potentially affected, with regards to proposed uses and activities on the property, especially those associated with "garbage sterilization" and hauling of solid waste/recyclable materials. Also, the Notice of Intent to Consider Adoption of a Mitigated Negative Declaration ["Notice of Intent"] does not help to clear up the matter as it states that the Project Proponent seeks approval from the City for site improvements to the subject property that is currently being used as a small contractor yard, that the project will also involve storage and handling of hazardous materials without mentioning other uses, and that the improvements would facilitate the use of the property as a contractor yard supporting Marine Express' fleet and equipment. Again, the focus is on the Proposed Project's improvements and why they are being done. Interestingly, while the entitlements that are being sought are not specifically set forth in the Initial Study and the Notice of Intent, they are finally disclosed in the Notice of Public Hearing for an August 12, 2014 Planning Commission public hearing concerning "Marine Express Site Improvements, AP (UP, DR)". Unlike the Initial Study and Notice of Intent, this notice specified that the application is a request for design review approval for the site improvements and for use permit approval for the storage and handling of hazardous materials. However, this notice is still not adequate enough to encompass and set forth all of the proposed uses and activities. Considering all of this, the project description, and Initial Study in general, should be more forthcoming and fully disclose and detail accurately that the Proposed Project involves not only site improvements to the subject property but also all proposed uses and activities that would occur on the property. This would eliminate any confusion as to what the City and the public are actually reviewing when determining whether there would be any potential significant effects to the environment. In sum a more accurate and complete information is required to make this determination, especially to support the finding that an EIR is not required. B) The project description does not provide adequate and complete information for the proposed activities regarding "garbage sterilization" and hauling solid waste/recyclables to a transfer station or landfill As mentioned above, there is incomplete and inadequate information regarding the proposed activities of "garbage sterilization" and hauling solid waste and recyclables to a transfer station and/or landfill. 5 Another concern raised here is the potential for piecemealing the environmental review of the project by arbitrarily separating the analyses of different aspects of an overarching project scheme so as to create the illusion of lesser impacts.

5 Re: Initial Study/Marine Express Improvements Project Page 5 Given that the description provided in the Initial Study that waste would be offloaded from vessels, sterilized/treated, then diverted as water to the sanitary sewer or hauled as solid waste to the landfill or as recyclables to a transfer station or landfill, it appears that these particular activities involve handling so-called "regulated waste". However, there is no mention in the project description or even in the section on other public agencies whose approval is required (Item 10 of the CEQA Initial Study Checklist for this Proposed Project) whether such waste handling activities would also require regulation from other appropriate public agencies. More importantly though, and on a basic level, important information is missing to sufficiently describe these activities, including but not limited to: 1) Every type of waste (biohazard waste? hazardous materials?); 2) Every source of the waste (where exactly is this waste coming from? domestic or foreign ships only? Will waste be brought from Alameda County? If so, is that waste only coming from ships? What are all of the sources?); 3) The amount of waste offloaded from vessels; How much regulated waste is coming? How much sewage will be put into the existing sewer system? Is the system sufficient to handle any amount? If not, what are the 1 imitations? What happens if the capacity is exceeded? 4) The amount of waste processed at the site; How long can regulated or solid waste be left at the site? What are the potential dangers involved in leaving regulated waste in containers on site? How is the City itself ensuring that any dangers are eliminated? 5) The amount of waste hauled to the landfill; 6) The specific regulations and agencies to which each type of waste activity is subject. Therefore, the project description is also misleading and incomplete because it does not provide enough information for the Planning Commission and the general public to effectively review the question of whether an EIR would be required since it lacks sufficient information about these waste handling activities. Based on the current description of the Proposed Project in the Initial Study, it appears that an EIR is required because of its significant effect on the environment A lead agency must prepare an EIR when the lead agency determines that: It can be fairly argued, based on substantial evidence, in light of the whole record before the agency, that a project may have a significant effect on the environment. 6 6 Pub. Res. C (d), (d))

6 Re: Initial Study/Marine Express Improvements Project Page 6 Substantial evidence includes facts, reasonable assumptions predicated upon fact, or expert opinions supported by facts but do not include argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.' Therefore, the determination of whether an EIR is required for a proposed project depends on whether the administrative record has expert, factual, analytical, or other substantial evidence such that a fair argument can be made that a significant effect may result from the proposed project. A review of the Initial Study and our consideration of other factors indicate that there is substantive evidence that the Proposed Project as it is described in the Initial Study would have a significant effect on the environment. A) The Initial Study only cites to possible significant effects with regards to hazardous materials and noise without effectively and adequately analyzing the other environmental effects involved CEQA Guidelines Section 15064(f)(1) sets forth that "if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect." 8 The Initial Study articulates that there would be potentially significant impacts with regards to the categories of hazards/ha7ardous materials and noise and how such impacts could be mitigated with certain measures, and, as such, provides the alleged basis for choosing a mitigated negative declaration instead of an EIR. However, because there is substantial evidence that the Proposed Project would have a significant effect on the environment with regards to other categories, the Planning Commission should find that an EIR is actually required. B) The Proposed Project would cause a potential significant effect on the environment with regards to compliance with solid waste statutes and regulations under the Utilities and Service Systems category To assist with a public agency's review of a proposed project to determine whether an EIR is needed, an initial study should contain supporting evidence and not mere conclusions about potential environmental effects. 9 Also, a project's compliance with a regulatory standard does not mean that it should be automatically determined that an effect will not be significant effect; an agency should still review and consider other substantial evidence to determine if a proposed 7 Pub. Res. C (e). a CEQA Guidelines 15o64(f)(1) cites No Oil, Inc. v. City of Los Angeles (1974), 13 Ca1.3d Leonoff v. Monterey County Bd. of Supervisors (1990), 222 CalApp.3d 1337, 1346.

7 Re: Initial Study/Marine Express Improvements Project Page 7 project may have a significant impact on the environment. 10 Specifically, "[a] public agency cannot apply a threshold of significance or regulatory standard 'in a way that forecloses the consideration of any other substantial evidence showing there may be a significant effect." In its brief discussion on the Proposed Project's garbage sterilization activities under the category of Utilities and Service Systems, the Initial Study simply concludes: "If Marine Express operates in accordance with its permits, then the disposal of material by Marine Express at the Keller Canyon will not create a significant impact because the amount of material disposed will be properly regulated." 12 In addition, the Initial Study summarily concludes under this same category that there will be less than a significant impact regarding whether the Proposed Project will "comply with federal, state, and local statutes and regulations related to solid waste" after referring to the general information stated in this Utilities and Service Systems category. 13 In actuality, there will be potential significant impacts on the environment considering that based on the description of the proposed activities regarding garbage sterilization and hauling of garbage to a landfill, compliance with federal, state, and local statutes and regulations related to solid waste is more of an issue than currently portrayed in the Initial Study. In other words, it appears that these activities would be subject to solid waste regulations and statutes not even addressed in this Initial Study considering that solid waste will be collected and transferred from vessels, then treated, sterilized, and processed, then subsequently diverted through the sanitary sewer system as water or transported as solid waste or recyclable materials through the City streets to a landfill or transfer station. The effects on the environment of these specific activities dealing with solid waste handling are not even adequately considered as it involves much more than the "amount of material" being disposed at the landfill as briefly mentioned in this section of the Initial Study. This is especially true considering the different types of waste handling activities 14; that are proposed on the site as described in the Initial Study, including: 1) hazardous material handling and storage, such as used oil that is offloaded from vessels then stored for a time period; 2) offloading of sewage from vessels, transporting to the Project site, where it would be pumped into the Delta Diablo Sanitation District sewer lines for processing; 3) offloading and sterilization of garbage from vessels pursuant to United States Department of Agricultural regulations; 1 See Melia v. City of Los Angeles (2005), 130 CaLApP.4th 322, 342 (citing Protect the Historic Waterways v. Amador Agency (2004), 116 Cal. App.4th 1099, ; Communities for a Better Environment v. California Resources Agency (2002), 103 Cal.App.4th 98, ). It Id. (quoting Communities for a Better Environment v. California Resources Agency (2002), 103 Cal.App4th 98, 114)- '2 Initial Study, XVII Utilities and Service Systems,(0. 13Id. at XVII Utilities and Service Systems,(g). 14 1d., Item #7 Description of Project.

8 Re: Initial Study/Marine Express Improvements Project Page 8 4) off-loading of non-hazardous recyclable materials and hauling to a transfer station or landfill; 5) -trucking remaining solid waste to Keller Canyon Landfill". Before concluding that there will be no significant impact regarding these solid waste activities, the Initial Study further states that: "Weekly business operations require off-hauling of waste to the Keller Canyon Landfill. Marine Express maintains a permit with the Keller Canyon Landfill, and must adhere to strict regulations regarding the type and amount of material disposed." However, such information is insufficient to readily conclude that no significant impact would occur, especially considering that other important factors are not discussed or reviewed at all including, but not limited to,: I) the source of the waste (foreign or domestic?); 2) the type of waste being removed from vessels (e.g., is sterilization required because the garbage is biohazard waste?); 3) the amount of waste that will be collected from the vessels; 4) the amount of waste that will treated, sterilized, and processed; 5) the amount of waste that will be hauled through City streets to a landfill and/or transfer station; 6) the amount of waste that will be diverted to the sewer system; 7) the different types of applicable regulations and permits that are required for various solid waste handling activities (e.g., offloading hazardous materials vs. hauling waste and/or recyclable materials to a landfill vs. offloading "garbage" per USDA/California Food and Agricultural Code requirements.) In other words, considering the lack of detailed information about the waste handling and hauling activities as discussed in the above list, it appears that the determination that there would be no significant effect regarding these activities is merely speculation, unsupported by fact and that, instead, there may be substantial evidence that the Proposed Project does have a significant effect on the environment. Further, as noted, simply complying with any regulatory standard as provided for under the permits broadly referenced in this Utilities and Service Systems category is not enough for the City to determine that an EIR is not required. As discussed above, there is other evidence to consider when determining if a significant effect on the environment will result from these proposed activities. As such, the above-referenced evidence and conclusions are not enough to support the finding that an EIR is not required.

9 Re: Initial Study/Marine Express Improvements Project Page 9 Based on the information provided in the Initial Study about the Proposed Project's solid waste handling activities, it also does not appear that the City complied with its obligation to consult with all responsible agencies prior to determining whether an EIR or negative declaration should be prepared. CEQA Guidelines Section 15063(g) states that: As soon as a lead agency has determined that an initial study will be required for the project, the lead agency shall consult informally with all responsible agencies and all trustee agencies responsible for resources affected by the project to obtain the recommendations of those agencies as to whether an EIR or a negative declaration should be prepared. Public Resources Code Section (a) also states: Prior to determining whether a negative declaration or environmental impact report is required for a project, the lead agency shall consult with all responsible agencies and trustee agencies. Prior to that required consultation, the lead agency may informally contact any of those agencies. Based on the project description, the information indicating which agencies approvals were required from, and the section on Utilities and Service Systems, it does not seem that all of the responsible agencies were consulted in order to obtain their recommendations as to whether an EIR or a negative declaration should be prepared with this Proposed Project. Specifically, there is no indication in the Initial Study that CalRecycle, or any other agency dealing with solid waste activities, were consulted with regards to the Proposed Project's solid waste handling activities.. Also, Section 10 of the Initial Study which lists the other public agencies whose approval is required does not mention agencies that may be involved in regulating activities associated with handling regulated or solid waste and/or sewage from vessels or elsewhere, including CalRecycle, USDA (and/or California Department of Food arid Agriculture), and/or the City of Pittsburg's own Environmental Affairs Division/Local Enforcement Agency. Therefore, without this requisite consultation with other responsible agencies, the Initial Study cannot have been adequate enough to provide the City as the lead agency with information to use as the basis for deciding whether to prepare an EIR or negative declaration. Considering the description of activities involved with this Proposed Project, other permits, approvals, and/or regulations, not mentioned in the Initial Study, may be required for this Proposed Project As discussed above, there are various uses and activities that are proposed with the improvements on this site, including those involving the collection, processing, and hauling of garbage, refuse, and/or waste. However, the Proposed Project (at least as is presented to the public in the Initial Study) does not address adequately, if at all, the other permits, approvals, and/or regulations that may be required and/or are applicable for such activities.

10 Re: Initial Study/Marine Express Improvements Project Page 10 For one example, offloading sewage from vessels, transporting it to the Project site, and pumping it into the Delta Diablo Sanitation District sewer lines for processing is at least subject to obtaining a special permit from the City Council as discussed in PMC : Conclusion Storage of other waste materials. A property owner shall not (A) allow waste material as defmed in PMC (K) to remain scattered about the premises in an unsightly and unsanitary mariner, (B) deposit such waste material upon other premises, or (C) otherwise store or allow waste material to accumulate on a premises within the city, except the officially designated disposal area, unless a special permit is obtained from the city council. Based on the above concerns regarding the Initial Study and the preliminary review to this point, we request that the Planning Commission reject the current Mitigated Negative Declaration for this Proposed Project and instead direct staff to re-craft the Project Description to include all of the necessary details and revisit consideration of the possible need for an EIR based on an appropriately revised Project Description. As detailed above, we need much greater detail and a lot more information about what is actually proposed for the site, particular with regard to the amount and character of wastes to be processed at the Project site. We further request notice, as an interested party, regarding any all proceedings related to this Project and the Project site going forward. Respe9tffilly Spipitte Gordon President Bay Harbor Park Homeowners Association