1 Filed 11/7/13 Parker Shattuck Neighbors v. Berkeley City Council CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

PARKER SHATTUCK NEIGHBORS et al., Plaintiffs and Appellants,

v. BERKELEY CITY COUNCIL et al., Defendants and Respondents; C ITY C ENTRIC INVESTMENTS, LLC et al., Real Parties in Interest and Respondents. A136873
(Alameda County Super. Ct. No. RG12617535)

This action was brought under the Calif ornia Environmental Quality Act (CEQA) 1 to challenge a proposed mixed-use commercia l and residential project approved by the City of Berkeley. Appella nts are Parker Shattuck Ne ighbors and two individuals (collectively Parker Shattuck), 2 who contend the City viol ated CEQA by approving the project without an environmental impact re port (EIR). Parker Shattuck petitioned for a writ of mandate, maintaining that an EIR was required because pre-existing contamination on the site poses health risk s to the project’s construction workers and

1 Public Resources Code sections 21000 thro ugh 21178. Unless otherwise indicated, all further statutory references are to that code.

2 Counsel for Parker Shattuck notified us that one of these individua ls, Patti Dacey, died while this appeal was pending.2 future residents. We affirm the trial court’ s denial of the writ because Parker Shattuck has failed to identify substantial evidence su pporting a fair argument that there may be a significant effect on the environment becau se of these potential health risks.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND The Parker Place Project is proposed by CityCentric Investments, LLC and Parker Place Group, LLC and was approved by the Berkeley City Council. 3 When finished, it will consist of three buildings on what are currently three diffe rent parcels. A five-story mixed-use building with an underground parking garage w ill be built at 2600 Shattuck Avenue, another five-story mixed-use building will be bu ilt at 2598 Shattuck Avenue, and a three-story residential bu ilding will be built at 2037 Pa rker Street. All told, the project will include 155 residential units a nd over 20,000 square f eet of commercial

space. The three parcels are curren tly occupied by a car dealer ship, Berkeley Honda. The showroom, offices, and service garage are lo cated at 2600 Shattuck Avenue, and a sales
lot is located at 2598 Sh attuck Avenue and 2037 Pa rker Street. Since 1923,
2600 Shattuck Avenue has been the site of a car de alership and service garage, and from at least 1922 to 1960, 2598 Shattuck Avenue wa s the site of a service station. Before buying the properties, th e current owner commissioned three
environmental site-assessment reports, which were issued in two phases. The Phase I report was issued in December 2005, and it st ated that the properties had a history of containing underground storag e tanks. Underground storage tanks are used to store hazardous substances, such as gasoline. (S ee Health & Saf. Code, § 25281, subd. (y)(1).) In 1988, a 1000-gallon und erground storage tank was removed from 2598 Shattuck Avenue, and the Berkeley Health and Huma n Services Department issued a letter

3 Respondents are CityCentric Investment s, LLC and Parker Place Group, LLC (collectively, CityCentric), which are also th e real parties in inte rest, and the Berkeley City Council and the City of Be rkeley (collectively, the City).3 confirming there was “no significant soil cont amination resulting from a discharge in the area surrounding the underground storage tank.” In 1990, a 500-gallon tank was
removed from 2600 Shattuck Av enue. Fire Department records also indicated there were or might once have been several other unde rground storage tanks. The Phase I report recommended using ground-penetrating radar to clarify whether there were any other underground storage tanks and conducting an investig ation to assess ground
contamination. These recommendations were accepted, an d the results were described in the Phase II report issued in Ma rch 2006. The ground-penetrating-radar study located a suspected underground storage tank under the sidewalk next to 2600 Shattuck Avenue
and recommended its removal. It also identif ied a concrete pad at 2598 Shattuck Avenue that might conceal an underground storage ta nk. The ground-contamination investigation collected soil samples from twen ty borings near areas of potential contamination, and water samples were collected where the borings encountered groundwater. Various volatile organic compounds (VOCs) were de tected in two soil samples and a water sample, but they did not “ex ceed the San Francisco Regi onal Water Quality Control Board [Regional Board] . . . Environmenta l Screening Levels . . ., or there are no [environmental-screening levels] establis hed for the contaminant.” The report recommended additional soil and water sampli ng in other areas of concern, including under the concrete pad to dete rmine if there was petroleum in the soil and thus whether an underground storage tank might be there. This recommendation was accepted, a nd the results were announced in a supplemental Phase II report. Although pe troleum hydrocarbons, arsenic, and cobalt were detected in amounts exceeding Regional Board environmental-screening levels for commercial/industrial land use, the report noted that the hydrocarbon contamination was “not likely” to “require cleanup” and that th e arsenic and cobalt were probably “naturally occurring.” No contaminants were dete cted in amounts exceeding environmentalscreening levels for groundwater that was no t a potential source of drinking water. The4 supplemental report also determined that there was no underground storage tank or soil
contamination under the concrete pad. The storage tank under the sidewalk next to 2600 Shattuck Avenue was removed in April 2006. Because hydrocarbon contam ination was observed in the soil surrounding the tank, 75 tons of soil were also removed fro m the site. The site was then placed on a list, known as the “Cortese list,” that is comprised of pot entially contaminated sites and includes sites with “undergro und storage tanks for which an unauthorized release report is filed.” (Gov. Code , § 65962.5, subd. (c)(1).) In January 2007, the Regional Board issued a closure letter finding that no further corrective action related to the petroleum co ntamination was necessary at the project’s site. A printout of a State Water Resour ces Control Board website identifying sites on
the Cortese list showed that the project ’s site remained on the list but was given the status of “case closed” the day after the Region al Board’s closure letter was issued. Almost two years later, in Decembe r 2008, CityCentric applied to begin constructing the project. A use permit was finally approved in 2010 after the City determined that CEQA did not apply be cause the project fell under a regulatory exemption for urban “In-F ill Development Projects.” 4 Parker Shattuck brought a writ of mandate to challenge the City’s approval of the project in Parker Shattuck Neighbors v. Berkeley City Council (Super. Ct. Alameda County, 2011, No. RG1 0544097). Although the trial cour t rejected Parker Shattuck’s various arguments under CEQA, finding they were not raised at the administrative level, it granted the writ and ordered the City to vacate approval of the project after it found that the City had allowed the project to be modifi ed without first holding a public hearing. The City vacated the project’s approval in October 2011.

4 The in-fill exemption is foun d in section 15332 of title 14 of the California Code of Regulations. This section is part of the Gu idelines for Implementa tion of the California Environmental Quality Act, which are set fo rth in title 14 of the California Code of Regulations, sections 15000 thro ugh 15387. All further refere nces to Guidelines are to these regulations.5 In the second round of administrative pr oceedings, the City assumed the CEQA exemption for urban in-fill pr ojects (Guidelines, § 15332) was inapplicable. On November 1, 2011, the City released for public comment a proposed mitigated negative declaration (MND), which incorporated the initial study. The proposed MND found that the proj ect would potentially affect several environmental factors, including the category entitled “Hazards & Hazardous Materials.”
A checked box indicated that one potential environmental impact was that the project would “[b]e located on a site which is included on [the Cortese] list . . . and, as a result, would . . . create a significant hazard to the pub lic or the environment. ” In its discussion of this potential effect, the MND noted that although the project s ite appeared on the
Cortese list, “both [the City’s Toxics Manageme nt Division] and the [Regional Board] ha[d] found that the site ha s undergone adequate discovery and remediation, with the result that the site poses no significant hazard to the public or the environment.” The proposed MND also noted that “according to [the City’s To xic Management Division], [t]he recognized soil and groundwater impacts [did] not appear to extend beyond the property boundaries” because various characte ristics of petroleum oils made it unlikely they would spread in the soil, groundwater, or air. The MND conc luded that mitigation could reduce any potential impact to “less than significant” by “ensur[ing] that there [would] be no significant haza rd to the public or the en vironment during any necessary remediation work during or afte r construction of the project.”
Parker Shattuck submitted comments on the proposed MND, including comments from Matthew Hagemann, a hydrogeologist and expert on air quality. Relying on Hagemann’s comments, Parker Shattuck argued that an EIR was required because the MND’s mitigation measures failed adequately to address the health threat of the toxic soil
contamination to construction wo rkers and future residents of the project. A week later,
Parker Shattuck submitted additional comment s, which primarily discussed comments on the MND submitted by the East Bay Munici pal Utilities District (EBMUD). EBMUD’s letter informed the City that th e utilities district “[would] not inspect, install or maintain pipeline or services” in soil or groundwater that was contaminated above certain levels6 and until the district was able to review co ntamination data and remediation plans. Parker Shattuck argued th at these comments further demonstrated that the MND’s mitigation measures were insufficient. The Berkeley Zoning Adjustments Board held a public hearing on December 8 and adopted the MND. Parker Shattuck ap pealed the decision to the Berkeley City Council. In January 2012, the Ci ty Council approved the project.
Parker Shattuck filed this lawsuit in Fe bruary 2012, seeking a writ of mandate to compel the City to set aside approval of the MND and project and to prepare an EIR. The lawsuit also sought injunc tive relief, costs, and attorney fees. Although during the administrative proceedings Parker Shattuck ha d raised other concerns about the project, such as the potential for air pollution and noise, the petition’ s primary contentions were that the site’s soil contamination is a signi ficant environmental im pact requiring an EIR and the MND failed to provide adequate mitigation measures.
The trial court issued a tentative order denying the petition, and a hearing occurred over two days in July 2012. The court then issued an order and proposed statement of decision denying the petition and entered judgment. Parker Shattuck timely appealed.
II. D ISCUSSION A. The Background of CEQA. CEQA reflects the California state policy that “the long-term protection of the environment, consistent with the provis ion of a decent home and suitable living environment for every Californian, shall be th e guiding criterion in public decisions.” (§ 21001, subd. (d).) “[T]o implement this policy,” CEQA and the Guidelines “have established a three-tiered process to ensure that public agencies inform their decisions with environmental considerations.” ( Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 112 ( Davidon Homes ).) A public agency must “conduct a preliminary review in order to determine whether CEQA applie s to a proposed activity.” ( Ibid .) At this stage, the ag ency must determine whether any of CEQA’s statutory exemptions apply. ( Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th7 1301, 1309.) If the project is in an exempt category for which there is no exception, “ ‘no
further environmental revi ew is necessary.’ ” ( Id. at p. 1310; Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209, 220.) If the project is not exempt from CEQA, the next step is to conduct an initial study. ( Davidon Homes
, supra , 54 Cal.App.4th at p. 113.) The initial study determines
whether there is “ ‘substantial evidence that the project may have a significant effect on the environment.’ ” ( Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1101 ( AHA ).) If there is no such evid ence, “ ‘CEQA excuses the preparation of an EIR and allows the use of a negative declaration.’ ” ( Ibid. ) If there is such evidence, “ ‘but revisions in the project plans “would avoid the effects or mitigate the effects to a point where cl early no significant effect on the environment would occur”
and there is no substantial evidence that th e project as revised may have a significant effect on the environment, [an MND] may be used.’ ” ( Ibid. ) If neither type of negative declaration is ap propriate, the final st ep is to prepare an EIR. ( AHA , supra , 122 Cal.App.4th at p. 1101.) Give n that “the EIR is the ‘heart of CEQA,’ ” doubts about whether an EIR is re quired are resolved in favor of preparing one. ( Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123; AHA at p. 1102.)
B

. The Applicable Legal Standards

. The lead agency must pr epare an EIR “whenever subs tantial evidence supports a fair argument that a proposed project ‘may have a significant effect on the environment.’ ” ( Laurel Heights Improvement Assn. v. Regents of University of California
, supra , 6 Cal.4th at p. 1123.) “The fair ar gument standard is a ‘low threshold’ test for requiring the preparation of an EIR.” ( Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928.) “[F]acts , reasonable assumptions predicated upon facts, and expert opinion supported by facts” all constitute “[s]ubsta ntial evidence” of a significant effect on the environment, and “[a]rgument, specula tion, unsubstantiated opinion or narrative, or evidence that is clearly inaccurate or erroneous, or evidence that is not credible” do not. (Guidelines, § 15 064, subd. (f)(5).) As long as there is8 substantial evidence of a potentia l significant environmental effect, “contrary evidence is not adequate to support a decision to dispense with an EIR.” ( Sierra Club v. County of
Sonoma (1992) 6 Cal.Ap p.4th 1307, 1316.) An agency’s decision under CEQA is reviewed for abuse of discretion. (§§ 21168, 21168.5; County of Amador v. El Do rado County Water Agency (1999) 76 Cal.App.4th 931, 945.) “ ‘Abuse of disc retion is shown if (1) the agency has not proceeded in a manner required by law, or (2) the determination is not supported by substantial evidence.’ ” ( Ibid. ) Review is de novo in the sense that “[t]he appellate court reviews the agency’s action, not the trial court’s decision.” ( Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427.) When reviewing the agency’s determination not to prepare an EIR, we “determine
whether substantial evidence supported the agency’s conc lusion as to whether the prescribed ‘fair argument’ could be made.” ( Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1002.) “ ‘[T]he suffi ciency of the evidence to support a fair argument’ ” is a question of law. ( Sierra Club v. County of Sonoma
, supra , 6 Cal.App.4th at p. 1318.) When determin ing whether sufficient evidence exists to support a fair argument, “deference to the ag ency’s determination is not appropriate and its decision not to require an EIR can be uphe ld only when there is no credible evidence to the contrary.” ( Ibid. )
We limit our review to the administ rative record beca use the agency’s determination that an MND is appropriate depends on “the absence of ‘substantial evidence in light of the whole re cord before the . . . agency that the project, as revised, may have a significant effect on the environment.’ ” ( AHA , supra , 122 Cal.App.4th at p. 1111, italics omitted; see also §§ 21080 , subd. (d), 21082.2, subds. (a), (d) [determination whether project will have a significant e ffect on the environment and whether EIR must be prepared is made “in light of the whole record before the lead agency”].) Parker Sh attuck has the burden of proof “t o demonstrate by citation to the
record the existence of subs tantial evidence supporting a fa ir argument of significant environmental impact.” ( League for Protection of Oakland’ s etc. Historic Resources v.9 City of Oakland (1997) 52 Cal.App.4th 896, 904.) “Unless the administrative record contains this evidence, and [plaintiffs] cite[] to it, no ‘fair argument’ that an EIR is necessary can be made.” ( South Orange County Wastewater Authority v. City of Dana
Point (2011) 196 Cal.App. 4th 1604, 1612-1613 ( SOCWA ).)
C. Parker Shattuck Ha s Failed to Identify Substantial Evidence Supporting a Fair Argument that the Project’s Disturbance of Contaminated Soil May Have a Significant Effect on the Environment.
Parker Shattuck contends th at the City is required to prepare an EIR because the MND contains inadequate measur es to mitigate environmental effects that will be caused by “excavating and disturbing to xic soil.” It argues that the project will have a significant effect on the environment by threatening the health of construction workers and future
residents. We conclude that Parker Shattu ck has failed to identif y substantial evidence supporting a fair argument that potential hea lth risks to workers and future residents might constitute a significant environmental im pact. Accordingly, we need not consider
whether the MND contained ad equate mitigation measures because such “measures are not required for effects which are not found to be significant.” (Guidelines, § 15126.4, subd. (a)(3).) 5 “ ‘Significant effect on the environmen t’ means a substantial, or potentially substantial, adverse change in the envir onment.” (§ 21068.) A change in the “environment” is a “change in any of the phys ical conditions within the area affected by the project including land, air, water, minerals , flora, fauna, ambient noise, and objects of historic or aesthetic significance.” (Gui delines, § 15382.) A finding of a significant
environmental effect is mandato ry if “[t]he environmental e ffects of a project will cause substantial adverse effects on human beings, e ither directly or indirectly.” (§ 21083; Guidelines, § 15065, subd. (a )(4).) In other words, whil e “[e]ffects analyzed under

5 Parker Shattuck filed a motion requesting th at we consider evidence outside of the record to show that the City has now violated the MND’s mitigation requirements. We deny the motion because the evidence is immateri al to our decision.10 CEQA must be related to a physical cha nge” (Guidelines, § 15358 , subd. (b)), such a change may be deemed significant based solely on its impact on people. 1. The disturbance of contaminated soil can be a physical change in the environment. Parker Shattuck argues that disturbi ng contaminated soil can be a “physical change” in the envi ronment. We agree. (Gui delines, § 15358, subd. (b); Citizens for Responsible Equitable Environmental De velopment v. City of Chula Vista (2011) 197 Cal.App.4th 327, 332 ( CREED ) [in a case involving soil contamination beneath a former gas station, the court held that “it [c ould] be fairly argued that [the project at issue] may have a significant environmental impact by disturbing contaminated soils”];
see also Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 635, 638-640 ( ACE ) [project to remove a shooting range
that would not increase the lead contamina tion already present due to bullets might nevertheless “spread[] [that] contamination, which is a direct physical change in the environment,” through increased vehicle and foot traffic and dona tions of portion of range to another site].) The City argues that this case is not ab out the project affecting the environment, but is instead about the environment (i.e., an y contaminated soil or groundwater at the site) affecting the project. In support of its position, it relies on several cases holding that the environment’s impact on a project is not a “ ‘significant effect on the environment.’ ” But these decisions, with one exception, are not directly applicable here because the projects in those cases, unlike the project here , did not involve a phy sical change in the
environment. 6 In one of the cases, Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464 ( Baird ), the court considered whether an EI R was required for a planned addictiontreatment facility to be built on and adjacent to contamin ated sites. ( Id. at p. 1466.) The plaintiff contended that the “preexisting . . . contamination . . . [would] have an adverse

6 The one exception is City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889 ( Long Beach ), which we discuss further below.11 effect on the proposed fac ility and its residents.” ( Id. at p. 1468, italics omitted.) The court held that “[a]ny such effect [was] be yond the scope of CEQA and its requirement of an EIR” because “[t]he purpose of CEQA is to protect the environment from proposed projects, not to protect proposed projects from the existing environment.” ( Ibid. ) The court explained that an EIR was not required “for a project that might be affected by preexisting environmental co nditions but [would] not ch ange those conditions or otherwise have a significant e ffect on the environment.” ( Id. at p. 1466.) This holding was premised on the findi ng that the project would not cause a physical change related to the contaminati on. The court specifically rejected the plaintiff’s contention “that the construction of the facility ‘may expose or exacerbate the existing ground contamination’ ” because al l the contamination sources were several hundred feet away from the building site, a nd there was no evidence that the project would disturb contaminated soil. ( Baird
, supra , 32 Cal.App.4th at p. 1468, fn. 1.) The observation implies that the c ourt would have considered the disturbance of contaminated soil an effect on the environment, furthe r supporting our conclu sion that disturbing contaminated soil is a physical change that, under the right circumst ances, may cause an environmental effect that is cognizable under CEQA.
In another case relied upon by the City, SOCWA , the plaintiff operated a sewagetreatment plant next to the s ite of a proposed development and contended that an EIR was necessary to consider the effect of th e plant’s odors on the development. ( SOCWA , supra , 196 Cal.App.4th at pp. 1608 , 1613.) The court held that CEQA could not be used “to defend the proposed project (the futu re residences) from a purportedly adverse existing environment (smells from th e sewage treatment plant).” ( Id. at p. 1614.) The court concluded that an EIR was unnecessary because the plaintiff had failed to identify any relevant effect on the environment. ( Id. at p. 1616.) And the same result was reached in yet another case relied upon by the City, Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455 ( Ballona ), where the court held that an EIR did not need to address impact s relating to “sea level rise resulting from global climate change” on a proposed mixed-use developmen t where the project itself would not cause12 sea levels to rise. ( Id. at pp. 462-464, 475.) Thus, neither Baird, SOCWA, nor Ballona involved a project that would itself physica lly change the environment. By contrast, Parker Shattuck has identified an aspect of the project—the disturbance of contaminated soils—that will physically change the environment. Although we conclude that Parker Shattuck has identifie d a physical change in the environment that may be cognizable under CEQA, we reject its contention that “the
existence of toxic soil contamination at a project site,” without any accompanying disturbance or other physical change, “is, in itself, a significant impact requiring CEQA review and mitigation.” In making this part of its argument, Parker Shattuck relies on
CREED . But this reliance is misplaced. CREED concluded that there was a fair argument the project could “have a significant environmental impact by disturbing
contaminated soils ,” not merely by being built on a contaminated site. ( CREED , supra , 197 Cal.App.4th at p. 332, italics added.) Nor do we accept Parker Shattuck’s argumen t that an EIR is necessarily required for every project proposed to be built on a site that is mentioned on the Cortese list. In arguing that soil contamination at a project site is sufficient to trig ger an EIR, Parker Shattuck cites CEQA’s ex ception to categorical exemption fo r projects to be built on sites
included on the Cortese list, and the legislative history of Assembly Bill No. 869, the bill adding that exception. (§ 21084 , subd. (d); Stats. 1991, ch. 1212, § 1; see also § 21092.6, subd. (a) [requiring lead agen cy to determine whether a proj ect is on a Cortese-list site
and disclose that informati on in CEQA documents].) We agree that the Legislature intended that projects on these sites should not be categorically exempt from CEQA because they may be more likely to involve significant effects on the environment. But whether a project should be categorically ex empt from CEQA is different from whether the project involves a significant effect on the environment. The finding that an exception to exemption applies ensu res an initial study to investigate whether there is a potential significant effect on the environment bu t does not establish th at such an effect exists. (See Davidon Homes
, supra , 54 Cal.App.4th at p. 113.) As the City points out, a site may stay on the Cortese list even after a determination is made that no further13 remediation is required, and this is precisely what occurred in this case. In short, we are not persuaded that projects built on sites identif ied on the Cortese list necessarily involve a significant effect on the environment. 7
2. The identified health ri sks to construction workers and future residents do not estab lish that the disturbance of contaminated soil may have a significant effect on the environment. We next turn to whether the projec t will have a significant effect on the environment as a result of the potential health risks to people. We conclude that the
health risks to workers and residents id entified by petitioners do not constitute “substantial adverse effects on human beings” or otherwise create a fair argument that the disturbance of contaminated soil may have a significant effect on the environment. To begin with, and while we need not and do not deci de the issue here, we note
that it is far from clear that adverse effect s confined only to th e people who build or reside in a project can ever suffice to render significant the effects of a physical change. In general, CEQA does not regulate environmen tal changes that do not affect the public at large: “the question is whether a project [would] affect the environment of persons in general, not whether a project [w ould] affect particular persons.” 8 ( Mira Mar Mobile

7 A pre-AB 869 case cited by Parker Shattuck, McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, also dealt with the exem ption issue instead of the significant-effect issue. The court observed that a projec t on a hazardous-waste site should not be exempted from CEQA review given the possibility “that the storage, use, or disposal of [hazardous waste] may . . . eventually cause an adverse change in the physical conditions of the affected area.” ( Id. at p. 1149.) Thus, like CREED, supra , 197 Cal.App.4th 327, the decision assumed that the contamin ation would cause a physical change.

8 At oral argument, counsel for petitioners argued that CEQA co vers environmental effects on a project’s workers and future resi dents because these groups are made up of people who are part of the public. Although we doubt that CEQA regulates environmental effects confined to such relatively small group s, we note that these groups are not unprotected from risks when a project is built on a potentially contaminated site. (See, e.g., Health & Saf. Code, § 25220 et seq. [regulating building on hazardous-waste sites]; Lab. Code, § 6300 et seq. [regulating workplace safety].)14 Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492; accord Martin v. City and County of San Francisco (2005) 135 Cal. App.4th 392, 404.) For example, in Topanga Beach Renters Assn. v. Department of General Services (1976) 58 Cal.App.3d 188, the plaintiff argued that the demolition of living structures on a beach would adversely affect humans, and thus constitute a significant effect on the environment requiring an EIR, because “the planned demo lition [would] evict people from their homes (with consequent a dverse effect on those people).” ( Id. at pp. 191, 194.) The court held that the “[a]dverse effect on persons evicted from Topanga Beach cannot alone invoke the requirements of CE QA, for all government activity has some direct or indirect adverse effect on some persons.” ( Id. at p. 195.) “The issue [was] not
whether demolition of structures [would] adversely affect pa rticular persons but whether
demolition of structures [would] adversely affect the environment of pe rsons in general.” ( Ibid. ) In short, the court concluded that there was no significant effect on the environment because the identified impact af fected only a particul ar group of people. We find it significant that in the case before us the only people identified by Parker Shattuck who potentia lly will be impacted by the project are those who will work on or live at the project site. In Long Beach , the court considered the argument that an EIR addressing the proposed co nstruction of a high school to serve over 1,800 students
was insufficient because it failed to discuss the project’s “cumulative impacts on air quality and traffic ‘and in turn, on staff and student health’ ” in light of already-existing emissions from nearby freeways. 9 ( Long Beach
, supra , 176 Cal.App.4th at pp. 895, 905.) The court observed that “g enerally, ‘[t]he purpose of an [EIR] is to identify the significant effects on the environment of a proj ect . . .’ [citations], not the impact of the environment on the project, such as the school’s students and staff.” ( Id. at p. 905, italics omitted.) As a result, the air quality’s effect on staff and stude nt health was “not the aim

9 Cumulative impact analysis addresses “ ‘whe ther the additional imp act associated with [a] project should be considered significant in light of the serious nature of existing [environmental] problems’ ” caused by already-existing projects. ( Long Beach
, supra , 176 Cal.App.4th at pp. 905-906, italics omitted.)15 of the cumulative impacts analysis,” and the court did not consider the EIR’s failure to discuss health risks germane to the cumulative impacts issue. ( Id. at pp. 905-912.) Long
Beach instructs that a physical change caused by a project, even one affecting several hundred people, is not necessar ily cognizable under CEQA wh en the people affected are part of the project. (See also Ballona
, supra , 201 Cal.App.4th at pp. 473-474 [“identifying the effects on the project and its users of locating the project in a particular environmental setting is neither consistent with CEQA’s legislative purpose nor required by the CEQA statutes,” italics added].) We recognize that when a project may cause a physical change to the environment, CEQA requires a consideration whether the ch ange will have a potential impact on people. This is the import of section 21083, subdivision (b)(3)’s requirement
that an environmental effect be deemed si gnificant if it will have an adverse effect on people. In addition, if the environmental changes are deemed significant, then an EIR must discuss “health and safety problems cau sed by the physical changes.” (Guidelines, § 15126.2, subd. (a).) None of the authorities cited by Park er Shattuck, however, holds that a significant effect on the environment mu st be found when potential health risks are confined to people associat ed with a project. (See Communities for a Be tter Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 3 10, 316-317, 320, 327 [EIR required for petroleum re finery’s production of ultralow sulfur diesel fuel where project would greatly increase the emission of nitrogen oxide, which is “a major contributor to smog formation and can caus e adverse health effects, especially aggravation of respiratory disease”]; City of Maywood v. Los Angeles Unified School
Dist. (2012) 208 Cal.App.4th 362, 371, 375, 403-405 [EIR discussed potential risks to health of school’s students and employees to comply with Education Code requirements and after initial study’s finding of no potential significant environmental effects from hazardous-material contamination]; Communities for a Better En vironment v. City of
Richmond (2010) 184 Cal.App.4th 70, 81-82, 89 [EIR inadequately addressed whether refinery upgrade would result in processing of heavier crude oil and therefore failed to address potential impacts of such processi ng, including health risks to members of16 surrounding community]; Bakersfield Citizens fo r Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1219-1220 [relying on Gu idelines, section 15126.2, subdivision (a) to hold that EI R was inadequate because it failed to discuss adverse health effects of increased air pollution] ; ACE , supra , 116 Cal.App.4th 6 29 [no discussion of impacts on human health]; Berkeley Keep Jets Over the Bay Com. v. Board of Port
Comrs. (2001) 91 Cal.App. 4th 1344, 1350, 1352, 1364 [whe re EIR for airport expansion acknowledged significant effects on air quality , EIR was inadequate because it failed to include assessment of increased air pollution’ s risk to people living near airport].) We also reject Parker Shattuck’s ar gument that CEQA require s consideration of the potential impact Parker Sh attuck has identified simply because the MND mentioned a consideration of “the [p]roject ’s impacts on the public and construction workers” after a
box was checked on a form checklist indi cating that the site was on the Cortese list. The form checklist comes from Appendix G of the Guidelines, which provides a suggested list of potentially significant impacts to be considered when preparing an initial study.
We do not believe the MND establishes that the City conceded that CEQA required
consideration of health risks lim ited to workers and future residents. Furthermore, even if the MND’s consideration of a potential fact or on a form checklist could be construed as some sort of admission, the admission would not offset the weight of authority indicating that an EIR is not required for environmenta l effects that impact only a limited group of people. (See SOCWA , supra , 196 Cal.App.4th at p. 1616 [“A few questions on a suggested checklist in an append ix to the [G]uidelin es do not seem to us to provide a strong enough foundation on which to base a re versal of the entire purpose of CEQA”].) Ultimately, and notwithsta nding the parties’ extensive briefing on the issue, we need not decide whether the poten tial effects of a physical cha nge that poses risk only to the people who will construct and reside in a project may ever be deemed significant. (See California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2013) 218 Cal.App.4th 1171, 1195 [declining to “decide whether Baird
, Long Beach
, SOCWA , and Ballona were correctly decided or whethe r, as a general rule, an EIR may be required solely because the existing en vironment may adversely affect future17 occupants of a project”].) Th is is because the ev idence Parker Sha ttuck has identified does not support a fair argument of significance even if health risks to a project’s workers
and future residents alone could establish that a physical change would have a significant
effect on the environment. Parker Shattuck relies on Hagemann’s co mments in support of its argument that disturbing the contaminated soil will have a si gnificant environmenta l effect due to the
health risk the site’s contamination poses to workers and future residents. 10 His
conclusions were based on the levels at the si te of 1,2-dichloroetha ne and benzene, both VOCs, and of total pe troleum hydrocarbons. 11 1,2-dichloroethane, a potential human carc inogen, was present in one groundwater sample from 2600 Shattuck Avenue at th e level of 14 ug/L (micrograms/liter). Hagemann stated that the safe level of this compound in drinking water is .5 ug/L, the Regional Board recommends a vapor-intrusion study when the level exceeds .5 ug/L, and
the United States Environmental Protection Agency recommends such a study when the level exceeds 5 ug/L. 12 Benzene, a known human car cinogen, was present in one groundwater sample from 2600 Shattuck Avenue at 9.3 ug/L. Hageman stated that the safe level of this compound in drinking wa ter is 1 ug/L, the Regional Board recommends a vapor-intrusion study wh en the level exceeds 1 ug/L, and the United States Environmental Protection Agen cy recommends such a stud y when the level exceeds

10 Parker Shattuck also refers to EBMUD’s letter, but it does not support a fair argument of a significant environmental effect. Rather , it merely states that should the soil and groundwater be contaminated at unspecifie d levels, EBMUD will not work at the site.

11 Parker Shattuck also mentions the Phas e I report’s statement that polychlorinated biphenyls (PCBs) might be present because hy draulic lifts were observed at the site. Hagemann’s comments do not mention PCBs or any health risks they may pose, and Parker Shattuck has no t identified any evidence that the pr esence of PCBs is more than a “speculative possibilit[y].” ( Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 756.) Indeed, during Ph ase II several soil samples were tested for PCBs, and no such cont amination was found.

12 In his discussion of 1,2-dichloroethane, Hagemann sometimes refers to benzene, but we assume he meant the former compound.18 5 ug/L. Finally, total petroleum hydrocarbons were found in the soil at one boring at
2600 Shattuck Av enue at a level of 1900 mg/kg (milligrams/kilogram), which exceeds the Regional Board screening level for in dustrial/commercial use of 1000 mg/kg. Hagemann contended that future resident s are at risk because vapors from the two VOCs may travel through the so il into buildings constructed on the site through a process known as vapor intrusion and thereby expose these buildings’ residents to polluted air. 13 Based on the levels of the two VOCs, Hage mann suggested that a vapor-intrusion study be performed. This opinion is insufficient to create a fair argument of a significant effect on the environment because a suggestion to inve stigate further is not evidence, much less substantial evidence, of an adverse impact. 14 Hagemann also contended that construc tion workers may be exposed to the VOCs by inhaling their vapors and to the VOCs and hydrocarbons throu gh dermal contact. Even assuming that the disturbance of cont aminated soil would cause these risks, we conclude Hagemann’s contention still fails to amount to substa ntial evidence supporting a fair argument of a significant effect on the envi ronment. First, while the levels of the two VOCs exceed screening levels for drinking wa ter and, according to Hagemann, suggested the need for a vapor-intrusion study, the levels do not exceed Regional Board levels for nonpotable water. Hagemann provided no ex planation why levels below the Regional Board screening levels might pose health ri sks where the water will not be drunk. Second, Hagemann did not discuss the signifi cance for human health of exposure to

13 Hagemann also challenged the conclusion of the City’s Toxic Management Division, to which the Regional Board deferred, that the Cortese-list case cl osure combined with mitigation measures established the site wo uld be safe for residential, not just commercial, use. The issue of whether th e Toxic Management Division rightly relied on the case closure to establish the site’s safe ty for residential use does not bear on our decision because Hagemann’s comments are not sufficient evidence th at the health of future residents may be at risk.

14 Our conclusion that Hagemann’s call for a vapor-intrusion study is not substantial evidence creating a fair argument of a significa nt effect on the environment is bolstered by the uncontroverted eviden ce that 26,000 cubic yards of soil will be excavated from 2600 Shattuck Avenue before construction and that underground parking and the ground floor will separate residential units from any vapor-intrusion pathway.19 petroleum hydrocarbons or ch allenge the Phase II supplemental report’s finding that the contamination from the hydrocarbons is no t the type that would usually “require cleanup.” Instead, he simply claimed that the level of total petroleum hydrocarbons should lead to further investigation. We conclude that, even if health risks confined to a project’s construction workers and future residents could ever trigger CEQA review, substantial evidence was not identified in the record to create a fair argum ent that the disturbance of contaminated soil may have a significant effect on the environment.
III. D ISPOSITION The judgment is affirmed. Responde nts are awarded their costs on appeal.20 _ ____________ ____________ Humes, J.

We concur:

_____________ ____________ Reardon, Acting P.J.

_____________ ____________ Rivera, J.