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May 19, 2021 <br />Page 16 <br /> <br /> <br />5005-004acp <br /> <br /> printed on recycled paper <br />because they do not go above-and-beyond existing laws, regulations, and <br />requirements that would reduce environmental impacts.67 Tier 4 Interim measures <br />would already be considered part of the Project, as the Checklist states they are <br />required by the EPA. But, CEQA requires that mitigation measures are measures <br />which are not part of the original project design. In Trisha Lee Lotus et al. v. <br />Department of Transportation et al. the court held that “[b]y compressing the <br />analysis of impacts and mitigation measures into a single issue, the EIR disregards <br />the requirements of CEQA.”68 <br /> <br />But, as our experts at SWAPE determined, the Tier 4 Interim measures are <br />not within the mitigation monitoring and reporting plan (“MMRP”).69 As such, <br />these mitigation measures are not enforceable. “As Tier 4 Interim construction <br />equipment is not formally included as a mitigation measures, we cannot guarantee <br />that Tier 4 Interim emission standards would be implemented, monitored, and <br />enforced on the Project site. Thus, the model’s assumption that the entire off-road <br />construction fleet would meet Tier 4 interim emission standards is incorrect.”70 The <br />Checklist’s air quality analysis is therefore not based on substantial evidence. An <br />Infill EIR must be prepared to remedy this inadequacy and adequately analyze and <br />mitigate air quality impacts prior to Project approval by the City Council. <br /> <br />C. The Project Will Cause New Significant and Unmitigated Health <br />Risk Impacts <br /> <br />The Board of Zoning Adjustments approved this Project in violation of CEQA <br />and San Leandro Zoning Code Section 5.08.124(A)(2) which prohibits the Board of <br />Zoning Adjustments from approving a Use Permit where the Project would be <br />detrimental to the general welfare of the City.71 Here, the Project exceeds allowable <br />Cancer Risk thresholds. The Project’s unmitigated construction health risk <br />assessment indicates that the Project would pose an excess cancer risk of 54.7 in <br />one million to people living nearby.72 This health risk exceeds the BAAQMD <br /> <br />67 SWAPE Comments, p. 12; “CEQA Portal Topic Paper Mitigation Measures.” AEP, February 2020, <br />available at: https://ceqaportal.org/tp/CEQA%20Mitigation%202020.pdf, p. 5. <br />68 Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645,656. <br />69 SWAPE Comments p. 13. <br />70 SWAPE Comments p. 13. <br />71 San Leandro Zoning Code Section 5.08.124(A)(2). <br />72 Checklist p. 4-17, Table 4-3. <br />75