1

Filed 2/28/23 Community Environmental Advocates v. City of Grass Valley CA3

(unmodified opinion attached)

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Nevada)

----

COMMUNITY ENVIRONMENTAL ADVOCATES 

et al.,

Plaintiffs and Appellants,

v.

CITY OF GRASS VALLEY,

Defendant and Respondent;

RUSSEL JETER, as Trustee, etc.,

 Respondent;

R. JETER FAMILY TRUST,

 Real Party in Interest.

C094613

(Super. Ct. No. CU20-084791)

ORDER MODIFYING 

OPINION, DENYING 

PETITION FOR 

REHEARING & DENYING 

REQUEST FOR 

PUBLICATION

[CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed January 30, 2023, be modified as follows: 
2

Delete the last paragraph beginning on page 39 under the heading 

“DISPOSITION” and insert the following paragraph in its place:

We have concluded that the EIR prepared by the City is an inadequate 

informational document in that it fails to evaluate adequately the human health effects of 

residents’ exposure to mobile source air pollution. Therefore, we reverse the judgment 

denying the petition for writ of mandate on this basis, and remand this matter to the 

superior court with instructions to enter a new judgment granting the petition (in part) and 

ordering issuance of a peremptory writ of mandate consistent with the requirements of 

section 21168.9 and this opinion. On remand, the trial court may exercise its discretion 

to determine whether the severability criteria in subdivision (b) of section 21168.9 are 

satisfied. Plaintiffs are awarded their costs on appeal. (Cal. Rules of Court, rule 

8.278(a)(1), (3).) 

This modification changes the judgment.

The petition for rehearing is denied.

The request for publication is denied.

BY THE COURT:

 HULL , Acting P. J.

 KRAUSE , J.

 EARL , J.
1

Filed 1/30/23 Community Environmental Advocates v. City of Grass Valley CA3 (unmodified opinion)

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Nevada)

----

COMMUNITY ENVIRONMENTAL ADVOCATES 

et al.,

Plaintiffs and Appellants,

v.

CITY OF GRASS VALLEY,

Defendant and Respondent;

RUSSEL JETER, as Trustee, etc.,

 Respondent;

R. JETER FAMILY TRUST,

 Real Party in Interest.

C094613

(Super. Ct. No. CU20-084791)

In this action under the California Environmental Quality Act (CEQA) (Pub. 

Resources Code, § 21000 et seq.), plaintiffs Community Environmental Advocates et al. 
2

(plaintiffs) challenge the City of Grass Valley’s (City) actions certifying an 

environmental impact report (the EIR) and approving the Dorsey Marketplace 

development project (project) proposed by Russel Jeter, as trustee of real party in interest, 

the R. Jeter Family Trust (Jeter Trust).1 The proposed project is a mixed-use 

development consisting of approximately 104,000 square feet of commercial uses, 8,500 

square feet of office space, and 172 multifamily residential units, located on the site of a 

former mine in Grass Valley, California. 

Plaintiffs contend the EIR prepared in connection with the project did not comply 

with CEQA because it (1) did not accurately describe the project or its environmental 

setting; and (2) did not identify, analyze, or discuss adequately the project’s impacts 

related to traffic, air quality, noise, water supply, wastewater, hazardous materials, urban 

decay, protected plant species, and wildfires. Plaintiffs also contend (3) the findings 

made in support of the EIR’s statement of overriding considerations are not supported by 

substantial evidence; and (4) the required mitigation monitoring and reporting program 

lacks sufficient enforcement mechanisms to ensure that the adopted mitigation measures 

will be implemented. 

We agree with plaintiffs that the EIR’s air quality analysis is deficient because it 

does not evaluate adequately State Route (SR) 20/49 as a contributor of mobile source 

pollution and the associated health risks for future project occupants. We reject 

plaintiffs’ remaining arguments. Accordingly, we shall reverse the judgment in part, with 

instructions to grant the petition for writ of mandate with respect to the EIR’s analysis of 

air quality impacts, and affirm the trial court’s order and judgment denying the writ 

petition in all other respects.

1 Undesignated statutory references are to the Public Resources Code. Also, for 

ease of reference, we will refer to respondents and the real party in interest collectively as 

the City, except when separate identification is necessary.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. History of the project site

The proposed project is located on 26.8 acres of undeveloped land within the City 

of Grass Valley. The project site is bordered by SR 20/49 to the west, industrial and 

commercial uses to the south, and the Grass Valley Terrace Apartments to the east. To 

the north, separated by Dorsey Drive, are the Springhill Garden Apartments. 

The project site is the former location of the Spring Hill Mine, which operated 

during the late 1800’s and intermittently through the 1940’s. Abandoned mine features 

located on the site include excavations, pits, stockpiles of waste rock, and dry tailings 

ponds. Due to the history of mining, the property has been classified as a “brownfield 

site,” meaning that re-use of the property “may be complicated by the presence or 

potential presence of a hazardous substance, pollutant, or contaminant.” (42 U.S.C. 

§ 9601(39)(A).) Investigations of the site have revealed the presence of arsenic, lead,

mercury, and other potentially hazardous metals. 

B. Approval of the “Removal Action Work Plan”

From 2003 to 2007, Holdrege & Kull, an engineering and geology consulting firm, 

performed investigations of the site for prospective purchasers, including, in 2007, a 

preliminary geotechnical engineering investigation and report. 

In 2008, the Jeter Trust purchased the property. The Jeter Trust entered into a 

“voluntary cleanup agreement” with the California Department of Toxic Substances 

Control (DTSC) to investigate and remediate hazardous substances at the site. 

On behalf of the Jeter Trust, Holdrege & Kull prepared a preliminary 

endangerment assessment (PEA) report for the DTSC’s review and approval. The PEA 

was based on the understanding that a commercial development was proposed for the 

site. At the time, neither an EIR nor a tentative map for the project had been submitted to 

the City. 
4

A human health risk assessment was performed as part of the PEA. The PEA 

recommended that the mine waste in the former mill area be excavated and removed, and 

that the mine waste outside the former mill area be consolidated and buried beneath the 

proposed commercial development. The DTSC approved the PEA in February 2008. 

Based on the findings in the PEA, Holdrege & Kull prepared and submitted to the

DTSC a draft removal action work plan (RAW). (Health & Saf. Code, § 25323.1.) The 

purpose of the RAW was to describe procedures for remediating the hazardous 

environmental conditions at the site. The RAW describes the onsite contamination, the 

proposed remedial criteria, the plan for achieving remediation, as well as procedures to 

confirm that the remedial criteria are achieved. The DTSC provided comments on the 

draft, and a final RAW was submitted to the DTSC in June 2012. 

The final RAW identified two areas of concern (AOC’s) for remediation. The 

former mill area was identified as AOC 1, and the remaining mine waste area (generally 

located to the west of the mill) was identified as AOC 2. The RAW identified two 

separate strategies for remediation of AOC 1 and AOC 2 based on the results of the 

human health risk assessment and an evaluation of local background soil concentrations. 

As recommended in the PEA, the mine waste within AOC 1 would be excavated and 

removed from the site, and the waste in AOC 2 would be consolidated and buried beneath 

the proposed development. An estimated 1,700 cubic yards (150 truckloads) of mine 

waste rock, tailings, and affected soil would be removed from the former mill area and 

transported to a waste disposal facility. From the remaining waste area, an estimated 

64,000 cubic yards of contaminated mine waste and affected soil would be excavated, 

consolidated, buried on site, covered with 10 feet of clean soil, and then capped with 

either the foundations of a building or a parking lot. Prior to implementation of the 

RAW, the DTSC must review and approve the final site development plans showing the 

onsite placement details. 
5

The RAW requires verification soil sampling after excavation and placement of 

the mine waste to confirm that the remedial goals are achieved. The RAW also requires a 

deed restriction to ensure that the mine waste within the onsite placement area is not 

disturbed in the future. 

The DTSC determined that the RAW was “categorically exempt” from CEQA 

under section 15330 of chapter 3 of division 6 of title 14 of the California Code of 

Regulations, pertaining to minor cleanup actions. (The regulations found in title 14 of the 

California Code of Regulations, section 15000 et seq., are hereinafter referred to in this 

opinion as the “CEQA Guidelines.”) The final RAW and a proposed CEQA notice of 

exemption underwent a 30-day public comment period from August 8, 2013, to 

September 9, 2013. On November 12, 2013, the DTSC approved the RAW and directed 

that the notice of exemption and approval of the RAW be published in the local 

newspaper. 

C. The proposed development project

In 2014, the Jeter Trust applied to the City’s “Development Review Committee”

for conceptual review of a preliminary site plan for a proposed shopping center on the 

property. The initial proposal was for a 215,250-square-foot commercial retail 

development. 

In late 2015, the Jeter Trust submitted a formal application for the project. The 

proposed project, as revised, was a mixed-use development consisting of approximately 

179,000 square feet of commercial uses with 90 multifamily residential units. 

Subsequently, the Jeter Trust developed an alternative site plan, further reducing the

proposed commercial space to approximately 104,000 square feet, while increasing the

multifamily residential to 172 units, and adding 8,500 square feet of office space. The 

alternative site plan came to be known as “Alternative B,” while the original site plan 

came to be known as “Alternative A.” 
6

To comply with CEQA, in March 2019, the City prepared and released for public 

comment a draft EIR for the project. According to the draft EIR, the objectives for the 

proposed project included: redeveloping the property to allow for the environmental 

clean-up of the former mining site; creating a high-quality mixed-use infill project 

through the re-use of an existing brownfield site; creating new quality high-density 

market-rate housing to help satisfy the City’s regional housing needs; and creating new 

retail uses that will capture more local sales tax dollars and reduce the amount of “sales 

tax leakage,” while reducing vehicle miles traveled, air quality impacts, and greenhouse 

gas (GHG) emissions. 

The draft EIR evaluated the environmental impacts of the two project alternatives, 

Alternative A and Alternative B, at an equal level of detail. It identified potentially 

significant environmental impacts on land use, aesthetics, biological resources, cultural 

resources, transportation, noise, air quality, climate change, geology, and hazardous 

materials. The City received 17 letters commenting on the draft environmental analysis. 

In or about November 2019, the City released its final EIR. The final EIR 

contained revisions to the draft EIR and written responses to comments received on the 

draft EIR. The final EIR concludes that all the project’s potentially significant impacts 

will be reduced to a less-than-significant level through implementation of feasible 

mitigation measures, except for two significant and unavoidable impacts on 

transportation (for Alternative A only) and climate change. 

At its December 3, 2019 meeting, the planning commission recommended that the 

city council certify the EIR, adopt findings of fact, a statement of overriding 

considerations, and a mitigation monitoring and reporting program (MMRP), and 

approve project Alternative B. In April 2020, the city council adopted the planning 

commission’s recommendation and related project approvals. In so doing, the City found 

that the project would provide eight significant benefits sufficient to justify approval of 
7

the project despite a significant and unavoidable climate change impact. The City filed 

its notice of determination for the project on April 29, 2020. 

On August 3, 2020, plaintiffs filed this action seeking a peremptory writ of 

mandate invalidating the City’s certification of the EIR and approval of the project. A

hearing on the merits was held on March 26, 2021. Following the hearing, the trial court 

issued an order and judgment denying the writ petition. Plaintiffs timely appealed. 

Briefing was completed in this court on June 14, 2022.

DISCUSSION

I

Standard of Review

We review an agency’s compliance with CEQA for prejudicial abuse of discretion. 

(California Coastkeeper Alliance v. State Lands Com. (2021) 64 Cal.App.5th 36, 55.) 

Abuse of discretion is shown if the agency has not proceeded in the manner required by 

law, or the determination is not supported by substantial evidence. (Protect the Historic 

Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1105.) 

“ ‘ “Judicial review of these two types of error differs significantly: While we determine

de novo whether the agency has employed the correct procedures, ‘scrupulously 

enforc[ing] all legislatively mandated CEQA requirements’ [citation], we accord greater 

deference to the agency’s substantive factual conclusions.” ’ ” (We Advocate Thorough 

Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 683, 691.)

Under CEQA, “ ‘[s]ubstantial evidence is defined as “enough relevant information 

and reasonable inferences from this information that a fair argument can be made to 

support a conclusion, even though other conclusions might also be reached.” ’ ” (Center 

for Biological Diversity v. Department of Forestry & Fire Protection (2014) 232 

Cal.App.4th 931, 941; CEQA Guidelines, § 15384.) In determining whether an agency’s 

determination is supported by substantial evidence, our task is not to weigh conflicting 

evidence and determine who has the better argument. (Friends of College of San Mateo 
8

Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 953.) We 

must indulge all reasonable inferences from the evidence in favor of the agency’s 

decision. (Center for Biological Diversity, supra, at p. 941.) We may reverse an 

agency’s determination only if no reasonable person could have reached the same 

conclusion based on the same evidence. (Ross v. California Coastal Com. (2011) 199 

Cal.App.4th 900, 922.)

II

Project Description

We first consider whether the EIR is flawed because it contains an inaccurate and 

unstable description of the project. 

The role of an EIR as an informational document is to identify and describe the 

effects that a proposed project is likely to have on the environment and to consider ways 

in which the significant effects may be eliminated or reduced through feasible mitigation 

measures and project alternatives. (§§ 21002.1, subd. (a), 21061, 21080, subds. (a) & (d),

21100; see also § 21002.) In this manner, the EIR acts “as an environmental ‘alarm 

bell,’ ” alerting the public and responsible officials to environmental changes “before 

they have reached ecological points of no return.” (County of Inyo v. Yorty (1973) 32 

Cal.App.3d 795, 810.)

Under CEQA, a project is defined as “an activity which may cause either a direct 

physical change in the environment, or a reasonably foreseeable indirect physical change 

in the environment, and which is any of the following: [¶] (a) An activity directly 

undertaken by any public agency. [¶] (b) An activity undertaken by a person which is 

supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms 

of assistance from one or more public agencies. [¶] (c) An activity that involves the 

issuance to a person of a lease, permit, license, certificate, or other entitlement for use by 

one or more public agencies.” (§ 21065.) The term “project” is given a broad 
9

interpretation to maximize protection of the environment. (Tuolumne County Citizens for 

Responsible Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1223.)

To comply with CEQA, an EIR’s description of the project must be accurate, 

stable, and complete. (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 

192-193; South of Market Community Action Network v. City and County of San 

Francisco (2019) 33 Cal.App.5th 321, 332 (South of Market).) “ ‘Only through an 

accurate view of the project may affected outsiders and public decision-makers balance 

the proposal’s benefit against its environmental cost, consider mitigation measures, . . . 

and weigh other alternatives in the balance.’ [Citation.]” (South of Market, supra, at p. 

332; accord, Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 

1448.) A curtailed, enigmatic, or unstable project description “that gives conflicting 

signals to decision makers and the public about the nature of the project is fundamentally 

inadequate and misleading.” (South of Market, supra, at p. 332.) The EIR must describe 

the main features of the project in “sufficient detail to enable the public and 

decisionmakers to understand the environmental impacts of the proposed project.” (Dry 

Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 36; CEQA

Guidelines, § 15124.) 

An EIR’s description of the project must include the “whole of an action” 

proposed to be carried out or approved. (CEQA Guidelines, § 15378, subd. (a); § 21080, 

subd. (a); see Save Our Carmel River v. Monterey Peninsula Water Management Dist.

(2006) 141 Cal.App.4th 677, 695, 696 [project is broadly defined to maximize protection 

of the environment].) “CEQA forbids ‘piecemeal’ review of the significant 

environmental impacts of a project.” (Berkeley Keep Jets Over the Bay Com. v. Board of 

Port Cmrs. (2001) 91 Cal.App.4th 1344, 1358.) A lead agency may not split a larger 

project into smaller pieces to avoid evaluating the environmental impacts of the entire 

project. (Id. at p. 1357; accord, East Sacramento Partnerships for a Livable City v. City 

of Sacramento (2016) 5 Cal.App.5th 281, 293; see City of Santee v. County of San Diego
10

(1989) 214 Cal.App.3d 1438, 1452 [the danger in filing separate environmental 

documents for the same project is that consideration of cumulative impacts will not

occur].) 

Whether an EIR correctly describes a project is a question of law. (South of 

Market, supra, 33 Cal.App.5th at p. 332.) In this case, we conclude that the EIR’s project 

description is legally adequate. 

In reaching this conclusion, we begin by acknowledging that “ ‘[t]he distinction 

between elements of a project and measures designed to mitigate impacts of a project 

may not always be clear.’ ” (Mission Bay Alliance v. Office of Community Investment & 

Infrastructure (2016) 6 Cal.App.5th 160, 206 (Mission Bay Alliance); see CEQA 

Guidelines, § 15370 [defining mitigation].) If a project will have a significant effect, one 

way to comply with CEQA is to incorporate changes or alterations into the project to 

avoid or substantially lessen the significant effect. (CEQA Guidelines, § 15041, subd. 

(a).) It is not surprising, therefore, that courts have struggled to distinguish between the 

remedial elements of a project and measures designed to mitigate impacts of the project. 

(Mission Bay Alliance, supra, at pp. 184-185; Citizens for Environmental Responsibility 

v. State ex rel. 14th Dist. Ag. Assn. (2015) 242 Cal.App.4th 555, 569-572; Save the 

Plastic Bag Coalition v. City and County of San Francisco (2013) 222 Cal.App.4th 863, 

882-883; see CEQA Guidelines, § 15126.4, subd. (a)(1)(A).) 

In this case, the dispute concerns whether the RAW is a component of the project, 

as plaintiffs contend, or a mitigation measure, as the City asserts. This is a difficult 

question to answer since, in our view, the RAW has elements of both a mitigation 

measure and a component of the project.

On one hand, the RAW appears to be a critical component of the development 

project. The EIR acknowledges that the project site contains hazardous materials because

of past mining activities and explains that “[t]hese conditions must be remediated to 

make the site safe for human use.” The EIR identifies “clean-up” of the brownfield site 
11

as a project objective, and states that, “[u]nder either alternative, the project would 

include implementation of the RAW” to “prepare the site for building construction.” 

Implementation of the RAW was expressly contingent on the City’s approval of a 

development project. And the RAW expressly provides that remediation of the site will 

coincide with development. 

In this sense, the case fits squarely into the category of cases in which the 

reviewed project “legally compels or practically presumes completion of another action.” 

(Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209,

1223; see McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, 1143-1147 

[project description must include actions that will be taken to clean up and dispose of 

existing environmental contaminants on acquired site], disapproved on other grounds in 

Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 569-570 & fn. 2; 

see also San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27

Cal.App.4th 713, 729-730 [sewer expansion improperly segmented from residential 

development project]; Tuolumne County Citizens for Responsible Growth, Inc. v. City of 

Sonora, supra, 155 Cal.App.4th at p. 1231 [proposed road realignment improperly 

segmented from commercial development project]; Nelson v. County of Kern (2010) 190 

Cal.App.4th 252, 269-273 [proposed mining operations and reclamation plan constituted 

a single project].) 

On the other hand, as the City argues, the RAW clearly is a remedial measure. 

Without the RAW, the proposed project would disturb and displace the existing 

contaminated soil, a direct physical change that could negatively affect human health. 

(See California Building Industry Assn. v. Bay Area Air Quality Management Dist.

(2015) 62 Cal.4th 369, 389 (CBIA) [project may have potentially significant exacerbating 

effect by dispersing existing environmental contamination]; Citizens for Responsible 

Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 

327, 332 [project may have a significant environmental impact by disturbing 
12

contaminated soils]; § 21083. subd. (b)(3).) The purpose of the RAW is to remediate the 

potential health hazards associated with the presence of environmental contamination at 

the project site. 

An important distinction here, however, is that it is the DTSC, not the City, that 

has the authority to approve the RAW, and the DTSC already has done so, under a 

categorical CEQA exemption in 2013. (Health & Saf. Code, § 25356.1.) To the extent 

plaintiffs seek to challenge the DTSC’s approval, the City correctly argues that their

challenge comes too late. (CEQA Guidelines, §§ 15002, subd. (k)(1), 15062, subd. (d); 

California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 

Cal.App.4th 173, 190.) Once approved, the RAW became a regulatory remedial measure

to be applied to the development project. But it was not a component of the project over 

which the City had discretionary approval authority. (Citizens for East Shore Parks v. 

State Lands Com. (2011) 202 Cal.App.4th 549, 565 [not piecemealing to exclude refinery 

from project description where it required no approvals for continued operations]; San 

Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 

924, 937-940 [city not required to prepare a subsequent or supplemental EIR to consider 

the effects on climate change as part of design review approval process for project that 

was already approved by city]; CEQA Guidelines, § 15378, subd. (c).)

We conclude that the EIR’s project description fairly reflects this unique factual 

posture. The EIR explains that the site contains hazardous materials, that the DTSC 

approved the RAW to remediate the potential health hazards from the hazardous 

materials, and that the project will include implementation of the previously approved 

RAW to remediate the potential health hazards and prepare the site for construction. The 

EIR sufficiently informed decision makers and the public that the RAW is an existing 

remediation measure that will be implemented as part of the project to mitigate the 

expected impacts from hazardous waste contamination. Further, the approved RAW, and 

all the information considered by the DTSC before approving the RAW, is attached to 
13

and summarized in the EIR. We therefore conclude that the EIR’s project description 

was legally adequate. 

Moreover, this was not a situation in which the City sought to use improper 

segmentation to conceal or ignore adverse environmental effects of the project. The EIR 

concluded that the project, without mitigation, would have a potentially significant 

impact. The EIR proposed implementation of the RAW as mitigation to reduce that

impact to less than significant. Plaintiffs have not cited any evidence to suggest there 

will be significant environmental effects despite implementation of the RAW, or that the 

EIR failed to disclose any adverse environmental effects of implementing the RAW. 

Thus, even if the EIR’s description of the project somehow mischaracterized the RAW, it 

was not prejudicial. (Mission Bay Alliance, supra, 6 Cal.App.5th at p. 185 [“Any 

mischaracterization is significant . . . only if it precludes or obfuscates required disclosure 

of the project’s environmental impacts and analysis of potential mitigation measures”].) 

Accordingly, we reject plaintiffs’ challenge to the EIR’s project description. 

Plaintiffs’ related argument that the EIR failed to analyze adequately the impacts

resulting from implementation of the RAW is specifically addressed below.

III

Environmental Baseline

In determining whether a project’s impacts are significant, an EIR ordinarily 

compares those impacts with the existing environmental conditions in the vicinity of the 

project, which is referred to as the “environmental baseline.” (San Franciscans for 

Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596, 

615; CEQA Guidelines, § 15125.) The baseline normally reflects the physical conditions 

existing at the time the notice of preparation is published or, if there is no notice of 

preparation, at the time the environmental analysis begins. (San Franciscans, supra, at p. 

615; CEQA Guidelines, §§ 15125, subd. (a)(1), 15126.2, subd. (a).)
14

Plaintiffs assert that the City’s EIR contains an inadequate environmental baseline 

because it fails to describe adequately the existing physical environmental conditions in 

the vicinity of the project. However, plaintiffs have failed to support this claim with 

reasoned argument or proper citations to the record explaining how and why the EIR’s 

baseline is inadequate. Accordingly, we deem this contention forfeited. (Singh v. 

Lipworth (2014) 227 Cal.App.4th 813, 817.) 

IV

Analysis of Specific Environmental Impacts 

We next consider plaintiffs’ claim that the EIR failed to analyze or mitigate 

adequately the impacts of the project on hazardous materials, traffic, air quality, noise, 

water supply, wastewater, urban decay, protected plant species, and risk of wildfire. 

A. Legal background

The purpose of an EIR is to provide decision makers and the public with detailed 

information about the physical effects the proposed project is likely to have on the 

environment, to list ways in which the significant effects of the project might be 

minimized, and to identify alternatives to the project. (§§ 21002.1, subd. (a), 21061, 

21100, subd. (b); CEQA Guidelines, § 15378.) 

In reviewing the adequacy of an EIR’s discussion of environmental impacts, we 

do not pass upon the correctness of the EIR’s environmental conclusions, but only upon 

its sufficiency as an informational document. (Laurel Heights Improvement Assn. v. 

Regents of University of California (1988) 47 Cal.3d 376, 392.) An agency has 

considerable discretion to decide the manner in which potentially significant effects are 

discussed. (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 515 (County of 

Fresno).) An EIR’s evaluation need not be exhaustive, and we require neither technical 

perfection nor scientific certainty. (Ibid.; Association of Irritated Residents v. County of 

Madera (2003) 107 Cal.App.4th 1383, 1396 [the fact that additional studies might be 

helpful does not mean that they are required].) “ ‘ “[T]he adequacy of an EIR is 
15

determined in terms of what is reasonably feasible, in light of factors such as the 

magnitude of the project at issue, the severity of its likely environmental impacts, and the 

geographic scope of the project.” ’ ” (Rodeo Citizens Assn. v. County of Contra Costa

(2018) 22 Cal.App.5th 214, 226.) The ultimate inquiry is whether the EIR includes 

enough relevant information to enable those who did not participate in its preparation to 

understand and consider meaningfully the issues raised by the proposed project. (County 

of Fresno, supra, at p. 516; CEQA Guidelines, § 15151.)

Where an agency’s discussion implicates a factual determination, such as the 

selection of a threshold of significance or the methodology used to study an impact, a 

more deferential standard is employed. (County of Fresno, supra, 6 Cal.5th at p. 516.) 

We are bound by the agency’s determination if it is supported by substantial evidence. 

(Id. at p. 512; Mission Bay Alliance, supra, 6 Cal.App.5th at p. 206; North Coast Rivers 

Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 

642.)

An EIR must discuss cumulative impacts when the project will make a 

“ ‘cumulatively considerable’ ” incremental contribution to a significant cumulative 

effect. (CEQA Guidelines, § 15130, subd. (a).) “Cumulative impacts are defined as ‘two 

or more individual effects which, when considered together, are considerable or which 

compound or increase other environmental impacts.’ [Citation.]” (Sacramento Old City 

Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1030 (Sacramento Old City).) A 

project’s incremental contribution is cumulatively considerable if it is “significant when 

viewed in connection with the effects of past projects, the effects of other current 

projects, and the effects of probable future projects.” (CEQA Guidelines, § 15065, subd. 

(a)(3).) When making this determination, an EIR may not conclude that a cumulative 

impact is insignificant solely because its incremental contribution to a cumulative effect 

is relatively small. (Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 

Cal.App.4th 1019, 1024-1025.) Conversely, an EIR is not required to conclude that any 
16

incremental contribution to an existing significant impact, no matter how small, must be 

treated as cumulatively considerable. (Communities for a Better Environment v. 

California Resources Agency (2002) 103 Cal.App.4th 98, 119, overruled in part on other 

grounds in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 

1109, fn. 3.) The relevant question is “not how the effect of the project at issue compares 

to the preexisting cumulative effect, but whether ‘any additional amount’ of effect should 

be considered significant in the context of the existing cumulative [condition].” 

(Communities for a Better Environment, supra, at p. 120.)

Once a project’s potentially significant environmental impacts have been 

identified, the EIR must propose and describe mitigation measures to reduce or avoid 

those effects. (§§ 21002, 21002.1, subds. (a) & (b), 21061, 21100, subd. (b)(3); CEQA 

Guidelines, §§ 15121, subd. (a), 15126.4, subd. (a)(1).) Before approving a project, the 

lead agency must adopt any feasible mitigation measures identified in the EIR that would 

mitigate, avoid or lessen the project’s significant environmental impacts. (§§ 21002,

21002.1, subd. (b), 21081, subd. (a); CEQA Guidelines, §§ 15021, subd. (a), 15091, 

subd. (a).)

Mitigation measures generally should describe the specific actions that will be 

taken to reduce or avoid an impact. (Sacramento Old City, supra, 229 Cal.App.3d at p.

1027.) Formulation of mitigation measures generally may not be deferred to the future. 

(CEQA Guidelines, § 15126.4, subd. (a)(1)(B).) However, an agency may defer 

formulation of specific mitigation measures until after project approval when it is 

impractical or infeasible to include those details during the project’s environmental 

review and the agency identifies specific performance standards the mitigation will 

achieve and commits to devising measures that will satisfy those criteria. (Sacramento 

Old City, at pp. 1028-1029; Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 

1261, 1275-1276; City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 

Cal.App.4th 889, 915-916; CEQA Guidelines, § 15126.4, subd. (a)(1)(B).)
17

Compliance with relevant laws or regulations may serve as adequate mitigation if 

it is reasonably expected to reduce the impact to a specified performance standard. 

(CEQA Guidelines, § 15126.4, subd. (a)(1)(B); Oakland Heritage Alliance v. City of 

Oakland (2011) 195 Cal.App.4th 884, 906 (Oakland Heritage); Tracy First v. City of 

Tracy (2009) 177 Cal.App.4th 912, 933.) Assessment of a fee also is an appropriate form 

of mitigation if it is linked to a specific mitigation plan or program designed to address a 

cumulative impact. (CEQA Guidelines, §§ 15064, subd. (h)(3), 15130, subd. (a)(3); Save 

Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 

99, 139-140 (Save Our Peninsula).) Any fee assessed must be “roughly proportional” to 

the project’s incremental contribution to the cumulative environmental problem. (CEQA 

Guidelines, § 15126.4, subd. (a)(4)(B); Environmental Council of Sacramento v. City of 

Sacramento (2006) 142 Cal.App.4th 1018, 1040.)

Mitigation measures either must be incorporated into the design of the project or 

be otherwise enforceable through conditions, agreements, or other measures. (§ 21081.6, 

subds. (a)(1) & (b); Federation of Hillside & Canyon Associations v. City of Los Angeles

(2000) 83 Cal.App.4th 1252, 1261-1262.) If a proposed mitigation measure would itself 

cause significant environmental impacts, those effects also must be discussed in the EIR, 

albeit in less detail than the project’s significant effects. (CEQA Guidelines, § 15126.4, 

subd. (a)(1)(D); Save Our Peninsula, supra, 87 Cal.App.4th at p. 130.)

B. Hazardous materials

Plaintiffs contend that the EIR’s analysis of hazardous materials violates CEQA 

because (1) the EIR improperly deferred analysis of the RAW’s impacts; and (2) the City 

failed to retain proper oversight over the RAW’s implementation. Neither argument has 

merit. 

As discussed above, the DTSC, not the City, is the agency with statutory authority 

to prepare or approve remedial action plans. (Health & Saf. Code, § 25356.1; City of 

Lodi v. Randtron (2004) 118 Cal.App.4th 337, 352.) Consistent with that authority, the 
18

DTSC approved the RAW in 2013. After approval, the RAW remains subject to DTSC 

oversight and enforcement. (See City of Maywood v. Los Angeles Unified School Dist. 

(2012) 208 Cal.App.4th 362, 412.) In addition, the City has committed to monitoring 

compliance with the RAW through its mitigation monitoring and reporting program, or

MMRP. Thus, the RAW will be enforced by the DTSC under its oversight authority and 

by the City through its MMRP. Accordingly, the City did not improperly defer oversight 

of the RAW to the DTSC.

The efficacy of the remediation activities was reviewed by the DTSC when it 

approved the RAW in 2013. To the extent plaintiffs seek to challenge the DTSC’s 

analysis and conclusions, plaintiffs are too late. Health and Safety Code section 25356.1, 

subdivision (g) required any action seeking judicial review of the approved RAW to be 

filed within one year of the approval.

In any event, the City complied with CEQA’s informational requirements by 

disclosing the RAW (and related information) in the EIR. The EIR provides a general

description of the project vis-à-vis its status as a “brownfield site.” The EIR explains that 

without implementation of the RAW, the project could have a potentially significant 

hazardous materials impact. The EIR further discloses that the RAW, a previously

approved remediation plan, will be implemented to remediate the potential human health 

risks posed by the existing contamination. As explained in the EIR, implementation of 

the RAW will be subject to the DTSC’s oversight and approval, and the City will monitor 

compliance as part of its MMRP. 

The RAW, appended to the EIR,

2 establishes specific remediation criteria 

designed to protect human health. The RAW explains that the criteria were based on an 

2 While the use of an appendix to present information is disfavored, it can satisfy

CEQA if the appendix is referenced in the text of the EIR and the discussion in the 
19

evaluation of local background levels, applicable federal and state environmental laws, 

and the results of a human health risk assessment. 

The EIR explains how the RAW would mitigate the potential impact to a lessthan-significant level. Specifically, under the RAW, mine waste and affected soil will be 

cleaned to background levels and either excavated and removed from the site or 

consolidated and buried beneath the proposed development in an onsite containment area 

that is not subject to surface water infiltration or groundwater seepage. The RAW 

includes verification soil sampling to confirm that the remedial goals will be achieved, 

and a deed restriction to ensure that the contaminated soil buried on site will not be 

disturbed in the future. Indeed, the very purpose of the RAW is to remediate any 

potential health hazards and make the site safe for human use and occupation. (Health & 

Saf. Code, §§ 25323.1, 25356.1.) 

While the PEA’s human health risk assessment did not consider a residential 

exposure scenario, plaintiffs have failed to cite any evidence to suggest that the cleanup 

measures and performance criteria in the RAW would not be protective of future 

residential uses. There is substantial evidence to show it would. Under the RAW, soil 

verification sampling would ensure that former mine waste locations outside the onsite

containment area would meet remedial goals and be suitable for “unrestricted land use,” 

which includes residential uses. In addition, the RAW states that the onsite containment

and offsite disposal would protect human health by “eliminating potential exposure 

pathways (incidental ingestion, inhalation of airborne particulates, and dermal contact 

with the impacted soil).” 

The EIR did not improperly defer analysis of the RAW. (City of Maywood v. Los 

Angeles Unified School Dist., supra, 208 Cal.App.4th at pp. 402-413 [no CEQA violation 

appendix is adequate. (Cf. California Oak Foundation v. City of Santa Clarita (2005) 

133 Cal.App.4th 1219, 1239.) 
20

where school district conducted a preliminary investigation of existing contamination and 

committed itself to fully remediate the site by completing a RAW under the supervision 

of the DTSC]; see Oakland Heritage, supra, 195 Cal.App.4th at p. 906 [details of 

mitigation can be deferred if agency commits itself to devising measures that will satisfy 

specific performance criteria]; Leonoff v. Monterey County Bd. of Supervisors (1990) 222

Cal.App.3d 1337, 1357 [compliance with environmental laws mitigated impacts of 

potential effect on surface and ground water].) The EIR’s analysis of hazardous materials 

included sufficient information to permit decision makers to make an intelligent 

judgment about the potential environmental impacts of the project and the RAW. The 

information in the RAW is substantial evidence supporting the EIR’s conclusion that 

hazardous materials impacts resulting from remediation activities would be reduced to a 

less-than-significant level. For these reasons, we reject plaintiffs’ challenge to the EIR’s 

analysis of hazardous materials impacts. 

C. Traffic

Plaintiffs contend that the EIR’s analysis of traffic impacts is deficient because it 

(1) includes information that is inconsistent with the City’s “Traffic Impact Analysis 

Report”; and (2) fails to provide adequate information to determine whether a proposed 

“fair-share mitigation fee” will reduce the project’s traffic impacts to a less-thansignificant level. In response, the City argues that plaintiffs’ traffic-related contentions

are moot because automobile delay is no longer considered a significant environmental 

impact. We agree that plaintiffs’ contentions are moot.

Plaintiffs’ arguments relate to traffic impacts at the intersection of Idaho Maryland 

Road and Brunswick Road (referred to as “Intersection 12”). The EIR concluded that, 

under either alternative, traffic generated by the project would contribute to existing 

unacceptable levels of service at Intersection 12. As mitigation, the EIR proposed (1) 

construction of an improved concrete “porkchop” barrier to control eastbound drivers;

and (2) payment of a traffic impact fee to fund the applicant’s fair-share contribution 
21

toward signalization of the intersection, consistent with the City’s capital improvement 

program. The EIR concluded that, with mitigation, the identified traffic impacts would 

be less than significant. 

In late 2018, the Natural Resources Agency adopted revisions to the CEQA 

Guidelines that set forth criteria for evaluating a project’s transportation impacts. (Ocean 

Street Extension Neighborhood Assn. v. City of Santa Cruz (2021) 73 Cal.App.5th 985, 

1021 (Ocean Street).) Effective July 1, 2020, the CEQA Guidelines provide that, except 

for roadway capacity projects, “a project’s effect on automobile delay shall not constitute 

a significant environmental impact.” (CEQA Guidelines, § 15064.3, subd. (a); see 

§ 21099, subd. (b)(1).) 

Under current law, the project’s effect on traffic levels of service is not a 

significant environmental impact. (Citizens for Positive Growth & Preservation v. City 

of Sacramento (2019) 43 Cal.App.5th 609, 625.) Plaintiffs concede this point. It follows 

that even if we were to conclude that the EIR’s level-of-service based traffic analysis was 

flawed or inadequate, we could not order the City to conduct such an analysis on remand. 

Accordingly, we conclude, as we did in Citizens for Positive Growth, that plaintiffs’ 

traffic impact arguments are moot. (Ibid.; accord, Ocean Street, supra, 73 Cal.App.5th at 

p. 1021; see Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 

700, 755, fn. 29.)

In addition to the project’s level-of-service based traffic impacts, plaintiffs argue 

in passing that the EIR should have evaluated the extent to which traffic caused by the 

project will impact GHG emissions. However, the entire argument consists of a single 

sentence, without a separate heading, and plaintiffs failed to support the argument with 

any meaningful analysis or citations to the record. The argument is therefore forfeited. 

(Citizens for Positive Growth & Preservation v. City of Sacramento, supra, 43 

Cal.App.5th at pp. 629-630; United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 

Cal.App.5th 142, 153.) Plaintiffs do not challenge any other part of the transportation 
22

impacts analysis. Consequently, to the extent it is not moot, we conclude that the EIR’s 

transportation analysis complies with CEQA.

D. Air Quality

Plaintiffs challenge the EIR’s analysis of air quality impacts because it (1) does 

not evaluate adequately SR 20/49 as a source of hazardous automobile emissions and the 

associated health risks for future project occupants; and (2) provides no meaningful 

analysis of the risks from naturally occurring asbestos. We reject the latter contention but 

agree that the former has merit.

1. Mobile source emissions

Based on guidance in appendix G of the CEQA Guidelines, the EIR determined 

that the project would have a significant impact on air quality if it would (1) conflict with 

or obstruct implementation of an applicable air quality plan; (2) violate any air quality 

standard or contribute substantially to an existing or projected air quality violation;

(3) result in a cumulatively considerable net increase of any criteria pollutant for which 

the region is in “non-attainment”; (4) expose sensitive receptors to substantial pollutant 

concentrations; or (5) create objectional odors affecting a substantial number of people. 

Using the “CalEEMod” land use and emissions modeling program, the EIR estimated the 

air pollutant emissions that would be generated during construction and operation of the 

proposed project. The EIR then compared those estimated emissions to the significance 

criteria established by the Northern Sierra Air Quality Management District (NSAQMD)

to achieve and maintain national and state ambient air quality standards. The EIR also 

considered a state list of toxic air contaminants, a federal list of hazardous air pollutants, 

and the California Air Resources Board’s “Air Quality and Land Use Handbook: A 

Community Health Perspective” (CARB Handbook). 

The EIR concluded that, before mitigation, the project could cause or contribute 

substantially to an existing or projected air quality violation, a potentially significant 

impact. However, the EIR proposed mitigation measures and concluded that the 
23

measures would reduce the impacts to a less-than-significant level. The EIR concluded 

that the project’s other air quality impacts would be less than significant without 

mitigation. 

Plaintiffs contend the EIR is flawed because, even though the project site is 

bordered by SR 20/49, the EIR ignored SR 20/49 as an emissions source. Plaintiffs argue 

that the City should have prepared a health risk assessment to evaluate the human health 

risks to sensitive receptors at the project site due to its proximity to SR 20/49. 

The City claims the EIR discussed adequately the potential air quality impacts of 

the project. Relying on CBIA, supra, 62 Cal.4th 369, the City contends that pollution 

exposure reduction strategies were incorporated into the project and the air quality 

impacts of existing traffic on SR 20/49 were properly treated as components of the 

existing environment, not impacts of the project required to be analyzed in the EIR. We 

find the City’s reliance on CBIA misplaced.

The issue in CBIA was whether thresholds of significance for “new receptors” 

adopted by the Bay Area Air Quality Management District (the district) were invalid 

because they required analysis of how existing environmental conditions would impact a 

proposed project’s future residents or users. (CBIA, supra, 62 Cal.4th at pp. 378-380.) 

After the Court of Appeal upheld the thresholds, our Supreme Court granted review to 

decide under what circumstances, if any, CEQA requires an analysis of how existing 

environmental conditions will impact future residents or users of a proposed project. 

(CBIA, at pp. 380-381.)

The Supreme Court concluded that CEQA does not generally require an 

evaluation of how existing hazards or conditions might impact future residents or users of 

a proposed project. (CBIA, supra, 62 Cal.4th at p. 377.) However, the Supreme Court 

also recognized exceptions to this general rule. (Id. at pp. 391-392.) One such exception 

applies when a proposed project risks exacerbating existing environmental hazards. The 

court held that when a proposed project risks exacerbating environmental hazards or 
24

conditions that already exist, the agency must analyze the potential impact of such 

hazards on future residents or users. (Id. at pp. 377, 388; accord, League to Save Lake 

Tahoe v. County of Placer (2022) 75 Cal.App.5th 63, 136 [“CEQA requires an EIR to 

analyze ‘any significant environmental effects the project might cause or risk 

exacerbating by bringing development and people into the area affected’ ”]; CEQA 

Guidelines, § 15126.2, subd. (a).) 

The City argues that the EIR did analyze whether the project’s contribution to

traffic to SR 20/49 could exacerbate existing hazards associated with mobile source 

pollution. Relying on the CARB Handbook, the City argues the EIR concluded there was 

no evidence that the project would create a new health risk or substantially exacerbate 

any existing significant health risks to existing or future residents. We take no issue with 

the City’s reliance on the CARB Handbook as a threshold of significance, but we 

conclude it was misapplied here. 

According to the CARB Handbook, air pollution studies indicate that living close 

to high traffic roadways may lead to adverse health effects, including asthma and reduced 

lung function. A key observation in the studies is that proximity to the roadway, truck

traffic densities, and local meteorology (wind patterns) were key factors affecting the 

strength of association with adverse health effects. The studies reported an association of 

adverse health effects with proximity to traffic-related emissions within 1,000 feet, with 

the strongest association within 300 feet, and a 70 percent drop off in particulate 

pollution levels at 500 feet. Based on these studies, the CARB Handbook recommends

against siting new residences and other sensitive receptors within 500 feet of a freeway, 

urban roads with 100,000 vehicles per day, or rural roads with 50,000 vehicles per day. 

Under Alternative B, the nearest residences in the proposed project would be sited 

about 170 feet from the SR 20/49 travel lanes, well within the 500-foot recommended 

buffer. The City nevertheless determined that a detailed health risk assessment was not 

required. Because total traffic volume on SR 20/49 was below the rural significance 
25

threshold of 50,000 vehicles per day, the City concluded “there [was] no significant 

health risk that the project could exacerbate.” 

Other information in the EIR, however, shows that the average daily traffic 

volume for SR 20/49 is expected to increase to 56,000 vehicles by 2035, and that the 

proposed project would add an additional 1,000 daily vehicle trips to that total.3 Thus, 

the total traffic volume would exceed the 50,000-daily-vehicles threshold described in the 

CARB Handbook under existing-plus-project future conditions. Future residents of the 

project would be exposed to substantial concentrations of toxic air contaminants 

associated with SR 20/49. 

It follows that SR 20/49 is a potentially significant source of hazardous automobile 

emissions that the proposed project risks exacerbating. As a result, the project’s 

potentially significant exacerbating effects should have been evaluated in the EIR.4 

Since the EIR failed to evaluate the potential impact of such emissions on future 

residents and users, the EIR did not contain sufficient analysis to enable those who did 

not participate in its preparation to understand and meaningfully consider the extent to 

which the project could adversely affect the health of the project’s occupants. (County of 

Fresno, supra, 6 Cal.5th at pp. 515-516, 518-520; see Berkeley Keep Jets Over the Bay 

Com. v. Board of Port Cmrs., supra, 91 Cal.App.4th at p. 1370 [“ ‘agency must use its 

best efforts to find out and disclose all that it reasonably can,’ ” italics omitted].)

3 At oral argument, the City objected that the information on future average daily 

traffic volume was taken from the “Noise” section of the EIR. However, this is the same 

data on which the City relied to argue that a health risk assessment should not be 

required. 

4 We acknowledge that the EIR analyzed the potential health impacts from the 

construction-related emissions of toxic air contaminants. Plaintiffs do not challenge this 

part of the EIR.
26

The fact that the project design incorporates certain strategies to minimize

exposure to toxic air contaminants does not alter this conclusion. The EIR does not give 

any sense of the nature or magnitude of the potential health risks posed by the project’s 

proximity to SR 20/49, or the relative effectiveness of the pollution reduction strategies.

The draft EIR did not even mention SR 20/49 as a potential emission source, let alone 

quantify the emissions and correlate them to potential health risks. Thus, even if the

strategies help minimize exposure to toxic air contaminants, it is impossible on this 

record to conclude that they reduced the project’s potentially significant exacerbating 

effects to less than significant.

5

 We therefore agree with plaintiffs that the EIR failed to 

evaluate adequately the human health effects of project residents’ exposure to mobile 

source air pollution. 

2. Naturally occurring asbestos

Plaintiffs contend the EIR improperly deferred analysis of emissions related to 

naturally occurring asbestos. We find the EIR’s analysis adequate.

“ ‘ “The purpose of CEQA is not to generate paper, but to compel government at 

all levels to make decisions with environmental consequences in mind.” ’ ” (Sacramento 

Old City, supra, 229 Cal.App.3d at p. 1019.) An evaluation of the environmental effects 

of a proposed project need not be exhaustive; the EIR merely needs to include enough 

detail to enable those who did not participate in its preparation to understand and consider 

meaningfully the issues raised by the project. (County of Fresno, supra, 6 Cal.5th at pp. 

515-516.) 

5 The City’s arguments related to the amount of truck traffic on SR 20/49 and the 

prevailing winds at the site fare no better. Even if we accept that SR 20/49 carries a very 

low volume of truck traffic, and that the “predominant” wind direction is away from the

project site, there is no way to conclude that the proposed project will not contribute to a 

significant health risk without an analysis of the human health effects due to the 

proximity of the project site to SR 20/49. 
27

The EIR identifies asbestos as a toxic air contaminant with the potential to cause 

adverse health effects in humans, including an increased risk of cancer. The EIR states

that activities associated with remediation and development of the site would disrupt the 

existing soil and have the potential to disrupt naturally occurring asbestos, which the site 

is known to contain, causing it to become airborne. To mitigate this impact, the EIR 

provides numerous mitigation measures, including mandatory construction dust control 

measures and incorporation of NSAQMD rules applicable to dust and airborne asbestos

control. 

In addition, the EIR requires the project applicant to implement the DTSCapproved RAW and its various components, including its site safety plan and dust 

mitigation plan. The EIR explains that the dust mitigation plan outlines engineering 

controls to reduce the risk of release of metals and asbestos fibers into the environment. 

The EIR notes that the dust mitigation plan reflects industry-standard best practices and 

the NSAQMD’s standard approach to ensure that asbestos is not released where naturally 

occurring asbestos is likely to be encountered during construction. The EIR also directs

readers to the “Hazards and Hazardous Materials” chapter of the EIR, which further 

explains the measures that will be taken to ensure asbestos does not become an airborne 

health hazard, including track-out prevention, wetting soil known to contain asbestos or 

tailings, and suspending all mechanical soil disturbance activities during high winds. 

Although the EIR’s analysis of naturally occurring asbestos is not perfect, CEQA 

does not require perfection. (North Coast Rivers Alliance v. Kawamura (2015) 243 

Cal.App.4th 647, 677; CEQA Guidelines, § 15003, subd. (i).) “[T]he level of analysis in 

an EIR ‘is subject to a rule of reason.’ ” (Rialto Citizens for Responsible Growth v. City 

of Rialto (2012) 208 Cal.App.4th 899, 925.) We find the EIR includes a sufficient degree 

of analysis to provide decision makers with the information they needed to make an 

intelligent judgment concerning the project’s potential effects related to naturally 

occurring asbestos.
28

E. Noise

Plaintiffs contend the EIR adopted inappropriate thresholds of significance for 

construction noise that fail to account for the adverse health impacts that may occur from 

exposure to elevated noise levels over an extended period. We conclude that the 

thresholds of significance applied by the City were adequate to comply with CEQA.

“A threshold of significance is an identifiable quantitative, qualitative or 

performance level of a particular environmental effect, noncompliance with which means 

the effect will normally be determined to be significant by the agency and compliance 

with which means the effect normally will be determined to be less than significant.” 

(CEQA Guidelines, § 15064.7, subd. (a).) In preparing an EIR, the purpose of a 

threshold of significance is to determine whether a possible significant environmental 

impact will, in fact, be significant. (Protect the Historic Amador Waterways v. Amador 

Water Agency, supra, 116 Cal.App.4th at p. 1109.)

A lead agency has “substantial discretion in determining the appropriate threshold 

of significance to evaluate the severity of a particular impact.” (Mission Bay Alliance, 

supra, 6 Cal.App.5th at p. 192.) An agency’s choice of a threshold of significance will 

be upheld if supported by substantial evidence. (Id. at p. 206.)

Here, the EIR derived its significance criteria from appendix G to the CEQA 

Guidelines. A leading treatise notes that “[a]lthough Appendix G is designed to function 

as an initial study checklist for determining whether an EIR is required, many lead 

agencies use the standards in Appendix G as a basis for defining standards of significance 

in an EIR.” (1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act

(Cont.Ed.Bar 2022-2023) Significant Environmental Effects, § 13.15; CEQA Guidelines, 

§ 15063, subd. (f); see, e.g., Mission Bay Alliance, supra, 6 Cal.App.5th at pp. 193-194

[upholding use of appendix G standards for noise analysis]; Oakland Heritage, supra, 

195 Cal.App.4th at pp. 896-897 [upholding threshold that inquired whether project would 
29

expose people or structures to substantial risk of loss, injury, or death because it was 

effectively coextensive with the CEQA Guidelines].)

As relevant here, the City’s EIR states that a noise impact would be considered

significant if there would be a “substantial temporary or periodic increase in ambient 

noise levels in the project vicinity above levels existing without the project.” Considered 

in isolation, this standard is somewhat problematic since it creates a “definitional loop” 

where an impact is considered “significant” if it is determined to be “substantial.” (King 

& Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 884.) However, 

the City ultimately adopted a more tailored threshold for construction noise impacts in 

the final EIR, with the stated goal of “minimiz[ing] the potential for annoyance and 

avoid[ing] adverse health effects.” 

In addition, the EIR includes extensive background information to help readers 

assess the significance of the project’s expected noise impacts, including a discussion of 

typical sound levels measured in the environment, existing ambient noise levels in the 

vicinity of the project, applicable noise level performance standards, and general 

guidelines for noise sensitivity. Among other things, the EIR explains that normal speech 

has a sound level of approximately 60 decibels (dB), that a noisy urban daytime area is 

about 70 dB, that a diesel truck traveling 50 miles per hour from 50 feet away is about 80 

dB, that a gas lawn mower from three feet is about 90 dB, and that physical discomfort to 

humans begins at above approximately 120 dB. Applying the information in the EIR, a 

reader reasonably could assess the significance of the project’s noise impacts. (Mission 

Bay Alliance, supra, 6 Cal.App.5th at pp. 195-196.)

Moreover, even if we were to conclude the threshold used was inadequate, 

plaintiffs have failed to show it was prejudicial. Under CEQA, there is no presumption 

that an error is prejudicial. (§ 21005.) An agency’s failure to comply with the law 

constitutes prejudicial error only if it “ ‘precludes informed decisionmaking and informed 
30

public participation.’ ” (Neighbors for Smart Rail v. Exposition Metro Line Construction 

Authority (2013) 57 Cal.4th 439, 463.)

Here, the EIR projected the increase in ambient noise levels from construction at 

both the nearest noise receptor (30 feet from the site) and the distance of typical noise 

receptors (100 feet). The EIR disclosed that the average construction noise levels from 

the project would be from 68 dBA (A-weighted decibels) to 82 dBA Leq (equivalent 

continuous sound level), which are up to 27 dB above the ambient daytime noise level 

restriction for fixed source noise levels, and that the maximum noise levels from the 

project would be from 78 to 92 dBA Leq, up to 37 dB above the daytime noise level 

restriction. Applying the threshold of significance, the EIR concluded that the 

construction noise impacts were potentially significant. Thus, the City did not use an 

inappropriate threshold of significance to avoid a finding of potential significance.

To mitigate the potentially significant impacts, the EIR proposed mitigation 

measure 9d, which includes construction-related noise requirements, such as requiring 

stationary equipment to be at least 150 feet from construction zone boundaries, “and/or 

other measures that are demonstrated to be sufficient to ensure that the maximum noise 

level at the property boundary would remain at or below 90 dB and increases in hourly 

noise levels at the property boundary would not exceed 10 dBA above the ambient noise 

level for two or more hours per day.” In essence, the City translated the qualitative 

threshold into a quantitative maximum threshold of 90 dB, with a two-hour incremental 

threshold of 10 dBA. Substantial evidence supports the City’s conclusion that 

implementation of the mitigation measures will reduce construction noise to a less-thansignificant level. Accordingly, we find no prejudicial abuse of discretion in the EIR’s 

analysis of noise impacts. 

F. Water supply

Chapter 14 of the EIR, entitled “Public Services and Utilities,” analyzed the 

project’s potential impacts to water supply services. Based on comments from the water 
31

service provider, the Nevada Irrigation District (NID), the EIR identified a district-wide 

water supply shortfall in single and multiple dry year conditions in 2035 and 2040, a 

potentially significant cumulative impact. The projected shortfall by year 2035 is up to 

469 acre-feet per year (AFY), as compared to a total demand of 203,080 AFY and supply 

of 202,611 AFY. The projected shortfall by year 2040 is up to 6,910 AFY, as compared 

to total demand of 209,521 AFY and supply of 202,611 AFY. Nevertheless, the EIR 

concluded that the project would not substantially contribute to a significant cumulative 

impact because future water demand would be effectively reduced through additional 

water conservation efforts. 

The EIR describes the effectiveness of the NID’s water conservation efforts, with

an approximate 18 percent reduction in domestic water use from 2013 through 2018 and 

a more than 30 percent reduction in per capita water usage in 2015, and notes that the 

NID would need to achieve only a 3 percent water use reduction to ensure sufficient 

water supply remains available for the project. Accordingly, the EIR concluded that the 

project would not result in a cumulatively considerable contribution to the potentially 

significant cumulative water supply impact. 

Plaintiffs argue that the EIR’s water supply analysis is inadequate because it 

(1) fails to demonstrate there is adequate supply to meet future demand; and (2) fails to 

analyze the likely environmental effects of securing additional water supplies to meet 

future demand. We disagree. 

The EIR relied on existing and recently adopted water conservation plans and 

standards to conclude that water demand would be reduced adequately to avoid water 

shortages in future dry years. The EIR also noted that the anticipated water demand from 

the proposed project would not substantially exceed that assumed under the NID’s urban 

water management plan. There is substantial evidence to support the EIR’s conclusion. 

The present situation is unlike that in Santa Clarita Organization for Planning the 

Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715, 721-722, where the 
32

lead agency relied on illusory “paper water.” Here, the EIR properly concluded that, with 

conservation efforts, there is a reliable water supply, and the proposed project would not 

alter the water supply and demand projections or make a substantial contribution to any 

potential water shortages in the cumulative scenario. As a result, there was no 

requirement for the EIR to discuss possible alternative sources and their impacts. 

(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 

40 Cal.4th 412, 432; see Ocean Street, supra, 73 Cal.App.5th at pp. 1019-1021 

[upholding conclusion that project’s contribution was not cumulatively considerable 

because the project implemented and funded system improvements and conservation 

measures to reduce water supply demand].) The EIR’s water supply analysis was 

adequate. 

G. Wastewater

The EIR identified a potentially significant cumulative impact on wastewater 

infrastructure, but concluded that the project’s contribution would not be cumulatively 

considerable because the project would pay a “fair-share” development fee under the 

existing wastewater master plan. Plaintiffs contend the EIR’s analysis is deficient 

because the EIR does not demonstrate that the fair-share fee is tied sufficiently to actual 

mitigation. We are not persuaded.

A lead agency may conclude that a project’s contribution to a potentially 

significant cumulative impact is less than cumulatively considerable if the project is 

required to implement or fund its fair share of an existing mitigation program designed to

alleviate the cumulative impact. (CEQA Guidelines, § 15130, subd. (a)(3); Save Our 

Peninsula, supra, 87 Cal.App.4th at pp. 139-141; Napa Citizens for Honest Government 

v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 363; see City of Marina v. 

Board of Trustees of California State University (2006) 39 Cal.4th 341, 365 [citing Save 

Our Peninsula with approval].) Such is the case here.
33

As the EIR explains, the City’s wastewater master plan “outlines an improvement 

plan with alternatives that address the deficiencies of the existing wastewater collection 

and treatment facilities.” The EIR explains that the project would be required by city 

ordinances to contribute its fair share toward the City’s implementation of the wastewater 

master plan. With this mitigation, the EIR properly concluded that the project’s 

contribution to the potentially significant cumulative impact would not be cumulatively 

considerable.6 (CEQA Guidelines, §§ 15130, subd. (a), 15065, subd. (a)(3).)

H. Urban decay

Plaintiffs contend that the EIR violated CEQA because it failed to analyze 

adequately the project’s potential to draw business away from the downtown Grass 

Valley shopping area and thereby cause business closures and physical deterioration of 

the downtown area. Plaintiffs argue that “[c]ommon sense” suggests adding more than 

100,000 square feet of new retail space would have significant economic impacts on 

downtown businesses and, as a result, the EIR should have analyzed that impact to 

determine if it may result in urban decay, either individually or in conjunction with other 

retail projects. We find no abuse of discretion.

CEQA is concerned with physical changes in the environment; it is not a fair 

competition statute. (Chico Advocates for a Responsible Economy v. City of Chico

(2019) 40 Cal.App.5th 839, 847; Bakersfield Citizens for Local Control v. City of 

Bakersfield (2004) 124 Cal.App.4th 1184, 1205 (Bakersfield Citizens.) Therefore, the 

economic and social effects of proposed projects are generally “outside CEQA’s 

purview.” (Bakersfield Citizens, supra, at p. 1205.) “[I]f the forecasted economic or 

social effects of a proposed project directly or indirectly will lead to adverse physical 

6 We grant the City’s request for judicial notice of chapter 3.36 of the Grass Valley 

Municipal Code, which contains regulations pertaining to the sewage collection and 

treatment improvement fee, cited in the City’s opposition brief below. (Evid. Code, §§ 

452, subd. (b), 459, subd. (a); § 21167.6.) 
34

changes in the environment, then CEQA requires disclosure and analysis of these 

resulting physical impacts.” (Ibid.) “But an economic or social change by itself is not 

considered a significant effect on the environment. [Citations.]” (Chico Advocates, 

supra, at pp. 847-848; CEQA Guidelines, §§ 15064, subd. (e), 15131, 15382.)

In the EIR for this project, the City considered the potential for the project to cause 

urban decay in the downtown area. The EIR’s analysis is supported by an economic 

study, attached to the EIR as appendix D. The study evaluates the scale and 

characteristics of the proposed project in the context of the city and regional retail 

markets. Based on evaluation of the market area demand and supply projections and 

project characteristics, the study concludes that the proposed project would help to 

recapture some of the estimated $150 million in retail sales “leakage” spent outside of 

Grass Valley, and that the project “would not depend on cannibalizing from existing 

retail establishments in Grass Valley.” 

With respect to the downtown business district, the study notes that it serves a 

“special function” within the City’s retail landscape. Marketed to visitors as Grass 

Valley’s “historic, walkable centerpiece,” the downtown area is known for its “eclectic 

mix of locally owned shops and restaurants” in a “concentrated collection of buildings 

boasting the patina of age.” Based on a retail sales analysis, the study concludes that 

sales activity downtown is most heavily influenced by general economic conditions and 

factors affecting visitor travel and discretionary spending on entertainment and 

recreation. After considering the mix of potential tenants for the proposed project and 

other factors, the study concludes that development of the project “would not change the 

reasons for shopping and dining Downtown.” Because the proposed project was not 

expected to decrease economic activity in the downtown area, the EIR concluded there 

was no evidence that the project would lead to urban decay. 

Plaintiffs challenge the EIR’s conclusion that the project would not take business 

away from the downtown area and thereby potentially cause business closures. In this 
35

context, we do not reweigh the evidence in the record to determine whether the EIR’s 

conclusions are correct. (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1197.) 

Rather, we review the record in the light most favorable to the City’s conclusion to 

determine whether substantial evidence supports the conclusion that the impact of urban 

decay is less than significant. (Anderson First Coalition v. City of Anderson (2005) 130 

Cal.App.4th 1173, 1183; Save Panoche Valley v. San Benito County (2013) 217 

Cal.App.4th 503, 514.)

Here, plaintiffs provided no evidence that the project would have significant 

economic impacts on the downtown area, much less evidence of potential urban decay. 

(Placerville Historic Preservation League v. Judicial Council of California (2017) 16 

Cal.App.5th 187, 197 [urban decay is a relatively extreme economic condition; there is 

no reason to presume urban decay would be a consequence of a project].) In contrast, the 

record contains substantial evidence that the project would not have significant economic 

impacts on the downtown area. Accordingly, we conclude the City did not abuse its 

discretion in concluding that the project would not have any significant urban decay 

impacts. 

I. Protected plant species

Plaintiffs argue that the EIR’s analysis of protected plant species was flawed 

because the EIR relied exclusively on certain databases to conclude that special status 

plant species were not present on the site. Plaintiffs contend this was improper. 

Plaintiffs’ argument mischaracterizes the record. The EIR did not rely exclusively 

on databases to conclude that special status plant species were not present on the project 

site. As the EIR explains, onsite field surveys also were performed to analyze the site 

and surrounding habitat for special status plant species. Further, although no special

status plant species were found during the surveys, the EIR concluded it is possible 

special status species could become established on site prior to construction. Since 

removal of special status species is a potentially significant impact, the EIR proposed 
36

mitigation measure 6a, requiring a preconstruction survey to be completed to reduce the 

potential impact to less than significant. 

The EIR analyzed adequately the project’s potential impacts on special status plant 

species and the EIR’s conclusion of a less-than-significant impact is supported by 

substantial evidence. (Association of Irritated Residents v. County of Madera, supra, 107 

Cal.App.4th at pp. 1393, 1396-1397 [upholding reliance on biological report based on 

field study and use of “Natural Diversity Data Base”].)

J. Wildfires

Plaintiffs also complain that the EIR failed to analyze adequately the risk of 

wildfire. Plaintiffs contend that the EIR’s conclusory statement that wildfire is not a risk 

because the project is not in a “very high fire hazard” area is insufficient to fulfill the 

informational purposes of CEQA. 

The City argues that plaintiffs forfeited the contention by failing to raise it below,

and by failing to support it with relevant citations to the record. We agree. 

The only mention of the EIR’s wildfire risk analysis in plaintiffs’ trial brief was in 

a footnote supporting an argument challenging the statement of overriding 

considerations. Wildfire risk was not one of the individual impact analyses challenged by 

plaintiffs; plaintiffs raised that contention for the first time on appeal. In addition, 

plaintiffs have failed to support the new argument with relevant citations to the record. 

Accordingly, plaintiffs forfeited their argument concerning the adequacy of the EIR’s 

wildfire risk analysis. (Family Health Centers of San Diego v. State Dept. of Health Care 

Services (2021) 71 Cal.App.5th 88, 98; Singh v. Lipworth, supra, 227 Cal.App.4th at p.

817.) 

V

Sufficiency of Findings and Statement of Overriding Considerations

Plaintiffs also contend that the findings made in support of the statement of 

overriding considerations are not supported by substantial evidence. 
37

“[I]t is the policy of the state that public agencies should not approve projects as 

proposed if there are feasible alternatives or feasible mitigation measures available which 

would substantially lessen the significant environmental effects of such projects . . . .” 

(§ 21002.) Thus, CEQA prohibits a lead agency from approving a project for which 

significant effects have been identified unless the agency makes specific findings about 

alternatives and mitigation measures. (§ 21081; Friends of Kings River v. County of 

Fresno (2014) 232 Cal.App.4th 105, 120.) For each significant effect identified in the 

EIR, the agency must find that (1) the project’s significant effects have been mitigated or 

avoided; (2) the measures necessary to mitigate or avoid the significant effects have been, 

or should be, adopted by another public agency; or (3) specific economic, social, or other 

considerations render the alternatives or mitigation measures infeasible. (§ 21081, subd. 

(a)(1)-(3); We Advocate Thorough Environmental Review v. City of Mount Shasta (2022) 

78 Cal.App.5th 629, 640.) 

If feasible mitigation measures are not sufficient to render the environmental 

impact insignificant, the lead agency still may approve the project if it adopts a statement 

of overriding considerations finding that the project’s benefits outweigh its unavoidable 

adverse effects. (§ 21081, subd. (b); CEQA Guidelines, §§ 15043, 15093, subd. (a); 

Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 

231.) All findings must be supported by substantial evidence. (Sacramento Old City, 

supra, 229 Cal.App.3d at p. 1034; Sierra Club v. Contra Costa County (1992) 10 

Cal.App.4th 1212, 1223, disapproved on other grounds in Voices of the Wetlands v. State 

Water Resources Control Bd. (2011) 52 Cal.4th 499, 539; CEQA Guidelines, §§ 15091, 

subd. (b), 15092, subd. (b), 15093, subd. (b).)

Here, the City made the required findings, explaining how each significant impact 

would be reduced to less-than-significant levels or why the impact would remain 

significant and unavoidable. For the approved project (Alternative B), the only identified 

significant and unavoidable impact related to GHG emissions. The findings explained 
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that although mitigation measure 11a would reduce the project’s GHG emissions, the 

project’s contribution to GHG emissions would remain a significant and unavoidable 

impact. Thus, the City adopted a statement of overriding considerations explaining why 

it determined the project’s benefits outweighed its unavoidable significant effect. 

Plaintiffs argue that because the analyses of impacts to traffic, air quality, noise, 

water supply, wastewater, hazardous materials, protected plant species, and wildfires 

were flawed, the findings made in support of the statement of overriding considerations 

were equally flawed. In other words, plaintiffs contend the findings are defective

because they rely upon faulty impacts analyses.

We conclude plaintiffs have forfeited their challenges to the sufficiency of the 

evidence by failing to set forth the evidence favorable to the other side and show why it is 

lacking. (Tracy First v. City of Tracy, supra, 177 Cal.App.4th at p. 934.) In any event, 

since the claims are wholly derivative of plaintiffs’ challenges to the EIR’s impacts 

analyses, addressed above, it would serve no purpose for us to reconsider them here.

VI

Mitigation Monitoring and Reporting Program

When an agency approves a project subject to mitigation measures, the agency 

must ensure that the measures are fully enforceable, and the agency must adopt an

MMRP to ensure that they are implemented. (§ 21081.6, subds. (a)(1) & (b); CEQA 

Guidelines, § 15091, subd. (d); Federation of Hillside & Canyon Associations v. City of 

Los Angeles, supra, 83 Cal.App.4th at pp. 1260-1261.) 

Plaintiffs contend the City failed to satisfy these requirements because its MMRP 

lacks any “enforcement mechanisms” to ensure that the mitigation measures will be 

implemented. We disagree.

In approving the project, the City required that the mitigation measures listed in its 

MMRP be included as conditions of approval for the project. The MMRP provides that it 

will be used by City staff to ensure compliance with all mitigation measures identified in 
39

the EIR. The MMRP identifies timing and performance evaluation criteria for the 

mitigation measures, which are, in many cases, tied to the standard plan review, plan 

approval, and permitting procedures. In addition, the City’s Development Code includes 

procedures to ensure compliance with “any conditions of planning permit or subdivision 

approval . . . .” Accordingly, we reject plaintiffs’ argument that the MMRP lacks 

sufficient enforcement mechanisms.

DISPOSITION

We have concluded that the EIR prepared by the Agency is an inadequate 

informational document in that it fails to evaluate adequately the human health effects of 

residents’ exposure to mobile source air pollution. Therefore, we reverse the judgment 

denying the petition for writ of mandate on this basis. The matter is remanded to the 

superior court with instructions to vacate its order denying the petition for writ of 

mandate and enter a new order that grants a petition for writ of mandate directing the City 

to (1) set aside its certification of the final EIR; (2) set aside the approvals of the project;

and (3) correct the deficiencies we have identified in the EIR’s analysis of SR 20/49 as a 

contributor of mobile source emissions and the associated health risks for future project 

occupants. The order also shall suspend any project activity or activities that could result 

in an adverse change or alteration to the physical environment until the City has taken the 

necessary actions to comply with CEQA. (§ 21168.9.) In all other respects, the 
40

judgment is affirmed. Plaintiffs are awarded their costs on appeal. (Cal. Rules of Court, 

rule 8.278(a)(1), (3).) 

 KRAUSE , J.

We concur:

 HULL , Acting P. J.

 EARL , J.