Attachment 4H Comments and Responses on the Draft Environmental Document
H.4 Comments from Local Agencies
Comment L -1 David Brandt, City Of Cupertino
OFFICE OF THE CITY MANAGER
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014 -3255
TELEPHONE (408) 777- 3252 » FAX: taPSl 777 -33L6
CUPERTINO dnvtdb@cuhortno,org
February 27.2.014
Via E -mail and 1'ndL;y
Ngoc Bun
Department of Transportation, District 4
PO Box 23660, MS SB
Oakland, CA 94623 -0660
85express1aoeS @urS,c0nt
Re: State Route 85 Express Lanes Proieet Initial Studv with Proposed
Ncuative Declaration /F.nviromnental Assessment
Dear Mr. Bui
The City oi'Cupmiino appreciates the opportunity to submit comments cm tite
proposed State Route ( "SR') 85 Express Lanes Project ( "Projeo") and the Initial Study
with Proposed Negative Deelafatio151Envnronmefttal Assessment ( °ISIEA). The
proposed Project would Convert the existing Iligh occupancy Vehicle (916\7") lanes on
SR 85 to express lanes, allowing single-occupant vehicles ( °SOV' j to pay a toll to use
the lanes. while HOVs would continue to use [lie lanes at no cost. The express lanes
would extend slung tltc entire, 24. t -mile length iii' SR 85 and 1.5 miles of 1,1S ] 01 f rom
L_I -q the southern end ol'SR 85 to Metcalf Road in San lose. In addition, the Project includes:
(I 'I paving the existing 46 -foaf median to construct a second express lane, which would
be added in both directions on SR 85 between 1 -280 and SR 87; (2) an auxiliary lane,
which would be added along, a. l .I anile segment of northbound SR 85 between South De
,Anza Boulev =ard and Stevens Creek Boulevard; And (3.) widening of mmnictous bridges
along SR 85.
Ove-view of Cil 's Concerns
The City has scveval 1'undamenial concena; with the Project and its environmental
review. First, the Project has the potential to .hinder or preclude nitogether light rail transit
along the SR 85 corridor. Second, widening highways is an antiquated approach to
SR 85 Express Lanes Project H -61
ATTACHMENT
H Comments and Responses on the Draft Environmental Document
mecting travel demand yet Caltrans fails to consider a single transit -based alternative.
The Project, as currently designed is socially inequitable and fails to achieve its own
goals. Third, the IS/EA fails to adequately evaluate the Project's environmental impacts
or to propose effective mitigation measures, rendering the document inadequate under
both the California Environmental Quality Act ( "CEQA "), Public Resources Code
L-1 J section 21000 et seq. and the National Environmental Policy Act ( "NEPA "), 42 U.S.C.
section 4321 etseq. Finally, the City is concerned that federal funding for the Project will
coot. require the existing buck weight limit on SR 85 to be removed, which would create a
significant environmental effect that must be analyzed.
This letter, along with the transportation report prepared by MRO Engineers
( "MRO Report "), attached as Exhibit A, constitute the City's comments on the IS /EA.'
Tile City respectfully refers Calttans to the MRO Report both here and throughout these
comments, for further detail and discussion of the IS /EA's inadequacies.
A. The Project Would Preclude the Development of Light Rail Within the
SR 85 Median.
The median of SR 85 has long been considered a possible route for mass transit
throughout southern Santa Clara County. To this end, in 1989, the predecessor to the
Santa Clara Valley Transportation Authority ( °VTA "')entered into a Performance
Agreement with several cities, including the City of Cupertino, to ensure that no
improvements would be undertaken to SR 85 that would preclude future mass transit
development within the highway's median. See Perrortnance Agreement between City of
Cupertino and the Santa Clara County Traffic Authority (January 24, 1989), attached as
Exhibit B, (paragraph 4 stating tbat Route 85 through the City will be a 6 through -lane
facility with a median width of 46'... ", and paragraph 8 stating that "._. Bridges will be
designed and constructed in a manner not to preclude houre mass transit development in
L -1 -2 the freeway median."
As recently as 2000, VTA still contemplated the development of a light rail system
in Cupertino /Sunnyvale. Measure A, a retail transaction and use tax ordinance sponsored
by VTA, was approved by the electorate on November 7, 2000. See, Official Ballot,
County of Santa Clara, General Election, November 7, 2000, attached as Exhibit C. The
tax receipts from this measure were specifically earmarked for various mass transit
projects. SunnyvaIC /Cupertino is one of the locations that Measure A contemplated
providing capital funds for the development of a light rail system.
In addition to being inconsistent with the 1989 Performance Agreement and
Measure A, the Project would not comply with Federal Highway Administration
' All exhibits are provided in the enclosed CD.
2 `file Santa Clara County Traffic Authority was the predecessor agency to the
H -62 SR 85 Express Lanes Project
L -1 -2,
cunt.
L -1 -3
H Comments and Responses on the Draft Environmental Document
( "PHWA ") regulations, which mandate that transportation projects may "not restrict
consideration of alternatives for other reasonably foreseeable transportation
improvements." 1.S /EA, p. 1 -7. Although the IS /EA states that the Project "will not
prevent consideration of alternatives for other foreseeable transportation improvements
on SR 85" (id.), a 22 -foot median may preclude the development of light rail transit in
certain locations within the median of the highway and will certainly make any futm-e
light rail project much more difficult and expensive. That is because the proposed Project
would substantially reduce: the size of the median. In many locations, including the
segments of the highway within Cupertino, the existing 46 -foot median would be reduced
to approximately 22 feet. MRO Repots, p. 8. Indeed, VTA staff member John Ristoxv
publicly confirmed that the proposed Project would require light rail within the SR 85
median to be elevated.
As discussed below, Caltrans must evaluate other alternatives that would meet
future travel demand while not precluding or making infeasible light rail transit within
the SR 85 median. One obvious alternative is the development oflight tail transit along
the SR 85 corridor.
B. Caltrans Must Consider Alternatives That Do Not Require Widening
the Highway.
The IS /EA acknowledges only one real alternative to the proposed Project. This
alternative, which would convert the existing northbound and southbound HOV lanes
into yr express lane, was rejected during the early stage of Projcct development because
it would preclude the future construction of a second express lane in the SR 85 corridor.
ISIEA, p,1 -14, 15. The IS!EA therefore fails to include on), alternative that would not,
ultimately, result in the widening of the highway.
While highway widening might be appropriate for some transportation purposes,
Caltrans and VTA should also analyze project alternatives that do not rely exclusively on
increasing highway capacity. Increases in highway capacity facilitate increased travel.
The reduction in traffic congestion results in increases in vehicle speeds, which in turn
results in "induced" travel. Induced travel occurs when the cost of travel is reduced (i.e.,
travel time reduction due to additional capacity), causing an increase in demand (i.e.,
more travelers using the improved facility). 'File reduction in travel time causes various
responses by travelers, including diversion from other routes, changes in destinations,
changes in mode, departure time shifts, and possibly the creation of new trips all together.
Increasing highway capacity also results in increased air pollution and greenhouse gas
emissions and discourages alternative fours of transportation.
The ISIE:A confirms that the additional highway capacity will draw traffic toward
the SR 85 coridw.IS/EA Traffic Appendix OA, p. 28 ( 48). This Appendix also shows
that the Project will result in additional traffic in Cupertino in 2035. ki. Consistent with
these findings, the IS /EA states that the Project will result in a sizeable increase in vehicle
miles traveled -- 14 percent in the northbound AM peak and 7 percent in the southbound
SR 85 Express Lanes Project H -63
H Comments and Responses on the Draft Environmental Document
PM peak compared to No Build. ISIEA, p. 2 -27. In fact, even with this highway
widening, some segments of the express lanes would operate at level of service E or P
and /or would have a decrease in level of service compared with the No Build
L -1 -3 Alternative. IS /EA, p.2 -28,
coot.
With this Project, Caltrans has an opportunity to change the trajectory of increased
traffic and increased travel and move the region in a more sustainable: direction.
Widening highways will not move the region toward sustainability. Put simply, transit is
sustainable, highways are not Yet, because Galtrans fails to consider even one transit -
based alternative it provides no information about the role that transit could play in
meeting the County's long -tern transportation needs. Alternatively, Caltrans could
evaluate the feasibility of meeting future travel demand using reversible lanes.
C. Siguiliemrt Concerns And Questions Exist Regarding The Project's
Social Inequality and its Failure To Achieve Its Own Goals.
Not surprisingly, the City's elected officials have taken a keen interest in this
Project, and have strong concerts about the role that express lanes play in meeting the
region's transportation nceels. While recognizing that there may be some benefit to traffic
now ht an express lane, this approach is socially inequitable in that it unfairly allows the
use of the express lanes to those with sufficient income to receive this benefit. It is
unacceptable that only those who can afford to pay will have a special privilege on :a
publicly - banded roadway. in other words, poor people should not be required to travel
more slowly than those with more money. Inasmuch as everyone's taxes paid for
freeways, everyone should have access to all lanes of the freeway without being charged
cats.
L -1 -4 The Ptoaeet may rdso have tm olended environmental consequences For example,
the project win discourage carpooling since certain individuals, who had been carpooling
to gain access to the IIOV lilies, will now simply opt to pay the toll rather than seek other
riders Other individuals will forego purchasing alternative energy vehicles since the cost
of tolls is comparatively much less.
Equally important, the City's officials question the necessity of project that is not
expected to achieve its own goals. The ISIEA explains that the purpose of the Ptt%iect is
to ensure consistency with AB 2032. ISrEA, p. i. AB 2032 established certain
operational parameters For the "high- oecupaney toll" ( "HOT ") lane system authorized by
the bill. In particular, it requires that Level of Service ("LOS ") be tnainlained at all times
in the HOT lanes. The Project would not. however, ensure COS C and/or D in the HOV
lanes. As the IS/EA concludes, in 2035 some segmients of the HOV lanes would operate
at LOS E or F. iS /EA, P. 2 -20. At best, lherefiirc, the Project is a short term solution to
the region's traffic congestion problems. indeed, as VTA's Murah Ranianujain has
explained, the Project is intended to be a mere atljusnnent to the level of congestion on
H -64 SR 85 Express Lanes Project
Appendix H Comments and Responses on the Draft Environmental Document 1-1
SR 85, not a solution to it. As such, Calnans must explore uplians that world t'esult in
snore sustainableiranspoiiation solutions.
In addition. Although this Pioje t has been in the planning stages for decades, a
number of crucial questions reanain unansweicd First, ncitherCaltrans nor VTA have
identified the source(s) of funding for the Project, A detailed list of the sources and the
amount of funding front each source should be disclosed, including any funding
restrictions. This information is pertinent to the discussion of alternative approaches..
L -1 -4' Furthelmoie. neither Caltrans out VTA have identified the dollar value of the
cont projected traffic congestion leduction, if any. vTA.repiesentatives. including URS
Corporation olBcial Lynn McIntyre, have acknowledged that tile VTA did not consider
the financial implications associated with a reduction in h'ai3ic congestion Inasmuch as
the Project's value has not been quantified, the City questions how VTA intends to
justify the Project's costs to the taxpayer? Because V J A does not know how much, if
any, net economic benefit the project will bring, how dues VTA expect to demonstrate
that the Project will not be a waste of taxpayer money?
The City respectfully requests that Caltrans and VTA address those issues and
eonconis before taking further section on the Project.
11. The 1SYEA is Legally Inadequate and Does Not Provide the Evidentiary Basis
That the Prt&Ws Impacts Will Be Less Than Significant.
A. Legal Standard
It is well settled that CEQA establishes a `low threshold" for initial preparation of
all EIR. 7hr Pockei Protectors v. Cite= ol'Sacrmnentn, 124 Cal. App. 4th 903, 928 (2005).
CEQA provides That a lead agency stay issue a negative declaration and avoid preparing
an EIR only if "(t]herc is no substantial evidence. in light ofthe whole record before the
lead agency, that tileproject may have a significant effect on the environment." Pub. Res.
L "1-5 Code § 21030(c)(1). An initial study rust provide the factual basis, with analysis
included, for nuking the deter nination that no significant impact will result from the
piojcat. Guidelines § 15063(c), (d), in making' this detennination, the agency must
consider the direct and indirect impacts of the proect as a whole (Guidelines § 15064(d)),
as well us the pioject's growth- inducing and cumulative impacts..Sce Cie, Ol" Antioch v.
City Council oj'Piitsbtna, 187 Cal. App. 3d 1325, 1333 (1956).
An agency must prepare all EIR whenever it is presented with a "fair ai gmncni'
that a project may have a significant effect on the environment, Guidelines 3
15064(f)(1). Where there are c: onflicting, opinions regarding the signiticancc of all impact.
the agency must treat the impact as signiflcani and prepare an EIR. Guidelines
15064(a)(I ) and (f)(1); Sfunislaus Audubon .Soc ) v. Countit oj'.Stanislaus, 33 Cal. App.
SR 85 Express Lanes Project H -65
Appendix H Comments and Responses on the Draft Environmental Document
4th 144, 150 -5 t (1995). Further, where the agency fails to study an entire area of
environmental impacts, deficiencies in the record "entarge the scope of fair argument by
lending a logical plausibility to a wider range of inferences.." Sundsirom v. Cowin, of
Mendocino, 202 Cal. App. 3d 296, 311 (1988).
L -1 -5,
cunt. As discussed below, the ISTA fails to adequately evaluate the Project's
environmental impacts or to propose effective mitigation measures. Because the Project
as described in the IS /EA will have potentially significant environmental impacts,
Caltrans must analyze these impacts in an environmental impact report/statement
( "EIR/EIS ") and adopt enforceable mitigation.
B. The IS(EA's Description of the Project Is Inadequate and Does Not
Permit Meaningful Public Review of the Project.
In order for an environmental document to adequately evaluate the adverse
impacts of a project, it must first provide a comprehensive description of the proposed
project. "An accurate, stable, and finite project description is the sine qua non of an
informative and legally sufficient EIR." San Joaquin RaptorlWildlife Rescue Center v.
County ofStmrislaus, 27 Cal.App.4th 713, 732 (1994), quoting Cowrty ol'Lnyo v. Citi� of
Los Angeles, 71 Cal,App3d 185, 193 (1977). Courts have found that, even if an FIR is
adequate in al I other respects, the use of a `truncated project concept" mandates the
conclusion that the lead agency did not proceed in a manner required by law. San
Joaquin Raptor, 27 Cal.AppAth at 730. NEPA similarly requires an accurate and
consistent project description in order to fulfill its purpose of facilitating informed
decision - making. 42 U.S.C. § 4332(2)(C).
Accordingly, "[a]n accurate project description is necessary for an intelligent
evaluation of the potential cnvironmcntal effects of a proposed activity." McQueen v. Bet.
L-1-6 of Directors oflheNlid- Peninsula Regional Open Space Dist. (1988) 202 Cal.App.3d
1136, 1143 (citation omitted). While extensive detail is not necessary, the law requires
that environmental documents describe proposed projects with sufficient detail and
accuracy to permit informed decision making. See CEQA Guidelines, §15124. The IS/EA
here fails to meet this basic threshold.
The IS /GA's description of the Project fails to describe numerous, essential aspects
of the Project that have the potential to result in significant environmental impacts. This
omitted information includes, but is not limited to:
Project Specifications. The IS /EA provides no map that accurately portrays
the precise locations where the widening to provide the second express lane
would begin and end. All of the ,Project's graphics are conceptual and /or
schematic. Time document does not include detailed (preliminary) design
drawings that would show median widths, etc. For example, MRO
Frigineers was forced to rely on Google Earth to determine existing mcdian
widths-
WE 6 SR 85 Express Lanes Project
Appendix H Comments and Responses on the Draft Environmental Document
* Location of the Project staging areas,
Amount of cut and fill, if any, associated with the protect.
d
Location of spoils and soil impottatton sit", and haul routes.
L -1-6, I Number of track Lips associated with all grading and other construction-
cont I elated activitics.
Description of consnuctionaelawd activities (including dnaelinu, location,
number of construction employees, types of equipment, etc.),
Without this information about tho Project, the public and decision - makers will not be
able to balance the Project's benefits against its environmental cost and evaluate feasible
alternatives and mitigation naeasures.
C. + Caltrans Must PrepareAn .EIRILIS that Analyzes Ilse Potentially
Significant Effects Of The Proposed Project.
As stated above, an agency must prepare an EIR for a proposed project whenever
substantial evidence in the administrative record supports a "fair argument" that the
project may have significant effects on the environment. A fair argument clearly cau be
made that the Pngect, which will add travel lanes to SR 85, will have potentially
significant impacts on transportation, noise, air quality, climate change and visual
resources, For all of these reasons, as discussed below, an ]EMUS is required.
I. The IS/EA Fails to Adequately Analyze the Project's
Transportation Impacts, Which Are Expected to Be Significant.
L-1 -7 The ISIEA's evaluation of the Project's IranspotiatiOil impacts is inadequate
bCCanSl)_ (p) it lacks lhcacquird evidentiary basis for its significance thresholds; (b)
certain cif ifs mlulyses are inaccurate, illogical and misleading; (c) it omits any analysis of
impacts to the local and regional transportation network; (d) it fails to evaluate the
Project's impacts un nanso, bicycle and pedestrian systems; and (e) it does not disclose
how eonstaucaion of the Project would affect the local street system.
(a) The IS/EA hacks the Evidentiary Basis for its Level of
Service Standards,
The IS/EA never clearly identifies thresholds of significance for the Project's
iranspoitation impacts. The document explains that the express lanes fire required to
operate at level of service ( "LOS ") C unless there is a written agreement between
Caltrans and VTA that penuits LOS D. MRO Engineers Report, p. 4. The 1SJE-A implies
such an agreement exists — and uses LOS D as the standard of significance for express
lanes -- but it provides no evidence that caln-ans and v, A have agreed to use this more
SR 85 Express Lanes Project H -67
H Comments and Responses on the Draft Environmental Document
lenient LOS threshold. Consequently, Caltrans' reliance on the LOS D threshold allows it
to conclude that the Project would result in relatively few impacts on SR 85's express
lanes. As the MRO report explains, there would be a "substantial number of additional
locations that would have high vehicle densities and impaired traffic flow if LOS C is the
correct level of service standard, rather than LOS D" MRO Report, p. 4, 5. hi other
words, i f LOS C is, in fact, the appropriate threshold for express lanes, the LS /EA
substantially underestimates the Project's impact on these lanes.
With regard to general purpose lanes, the IS /EA also relies on the LOS D
standard. As the MRO Report explains, the Caltrans Guide for the Preparation of Traffic
Impact Studies (December 2002) identifies LOS C as the appropriate standard for general
L -1 -7, purpose /mixed -flow lanes. MRO Report, p. 5. 112015 and 2035; however, the IS/EA
cone identifies numerous locations where general purpose lanes would operate at LOS D. See
IS /EA, p. 2 -16 through 2 -24, Tables 2.1.3 -5, 2.1.3 -6, 2.1.3 -9, and 2.13.10. Had Caltrans
used the correct LOS standard, it would have identified myriad additional locations
where the general purpose lanes would operate at deficient levels of service_
Regardless of which LOS standard Caltrans relies on, there is clear evidence that
numerous segments of SR 85 -- both express and general purpose lanes -- would operate
Lit deficient levels of service, i.e., LOS E or LOS F upon completion of the proposed
Project. See IS {EA Table 2.1.3 -10, p. 2 -24. These are significant effects caused by the
Project for which the IS /EA identifies no mitigation. Consequently, Caltrans must
prepare an EIRJEIS.
(b) The Analysis of Traffic Impacts on SR 85 is Deficient
Because Caltrans' Consultants Artificially Limits the
Travel Demand Forecasts to Ensure a Successful
Outcome.
Rather than model the actual travel demand on the express lanes in 2015 and 2035.
Caltrans' traffic consultants structured the travel demand forecasts so as to preclude the
express lanes from carrying more than 1,650 vehicles per hour. The consultants
artificially constrained the express lanes to 1,650 vehicles per hour per lane to ensure
compliance with the statutory requirements established in AB 2031 The DKS; CIRS
traffic operations report prepared for VTA3 states:
It is important to note mandated performance requirements
that must be taken into consideration when designing an
express lane project. At the state level, AB 2032 mandated
that express lanes operate at a Level of Service (LOS) of "C"
or better (LOS "D" may be used if Caltrans and the operator
DKS and URS, SR 85 Express Lanes LA 404-4A7900 D-a f c Operations
Analysis Report Final (November 6, 2013) ( "DKS/URS report ").
H -68 SR 85 Express Lanes Project
H Comments and Responses on the Draft Environmental Document
agree). This corresponds to a target threshold of
approximately 1,650 vph [vehicles per hour] pet HOV lane.
DKS /URS Report, p. 1.
L -1 -8,
cunt. Later, the DKS /URS report states:
The volumes presented in the following tables [Tables 5-1
through 5 -41 assume that the maximum volume will be
limited to 1,050 vehicles per hour per lane on the express
lanes. Id. p. 28.
This report confirms that Caltrans' consultants artificially limited the travel
demand forecasts to ensure a successful outcome. The actual volumes that can be
realistically expected in the express lanes are unknown, due to the lack of an
unconstrained traffic projection. The actual traffic volumes in the express lanes could be
substantially higher than the IS /EA indicates, which would lead to levels of service in
those lanes that are much worse than disclosed in the IS /EA.
(c) The WfWs Level of Service Analysis Results Are
Illogical and, Therefore, Are Likely Inaccurate
As the MRO Report explains, the IS /EA's conclusions as to how SR 85 would
operate upon completion of the Project are questionable. For example, under 2015
Southbound conditions, the IS /EA indicates that the HOV /express lanes on three
segments of'southbound SR 85 would have substantially improved levels of service
under Build conditions in the PM peak hour, even though they arc in the portion of SR 85
that currently has one I10V lane and will continue to have only one express lane. This is
illogical, because implementation of the SR 85 express lanes project will allow additional
motorists (i.e., toll- paying SOVs) to use this single lane, which should result in higher
L -1 -9 lane density and, therefore, equal or lower level of'service, This illogical result raises
questions as to the credibility of all of the level of service analysis results. The
inaccuracies could stem from the flawed travel demand forecasts (as addressed below) or
from fire LOS calculation process. In either event, the results must be reviewed and
corrected.
(d) The 1S /EA Overstates the Project's Benefit Will) Regard
To Travel Speeds on SR 85.
The IS/EA identifies SR 85 travel time and speed through the study area under No
Build and Build conditions for the express lanes and general purpose lanes. As MRO
Engineers determined, when the travel time results are compared to the gavel speed
results, inconsistencies are apparent that call into question the accuracy and validity of
the IS /EA's analysis.
°
............ ..... .. ..... .... .......... • ..................................................................... --- ....... -- . ................. - -
SR 85 Express Lanes Project H -69
H Comments and Responses on the Draft Environmental Document
The MRO Report explains that peak - period travel speeds should be somewhat
higher than peak -honor speed9, because the former includes two or three hours of lower
traffic volumes (and nigher speeds) in addition to the "worst- case " peak hour, Yet, in
numerous instances, the ISiEA's data are illogical and misleading because the peak -
cant. period speed is less then either of The peak -hour values. which defies logic. Travel speed
data for the AM peak in 2015, the northbound (peak direction); for example, are
particularly questionable, Under No Build conditions_, the peak hour travel speed is
shown as 35 0 MPH in the general purpose lanes and 56.2 MPH in the HOY lanes. in
contrast, the peals lmriod speed is shown as 37 MPH, which is approximately the same as
the peak -hour general purpose lane value. The same is generally true. under Build
conditions. MRO Report, pages 8-11.
The IS /FA's travel speed results are inaecurrte arid. therefore, misleading. Until
the speed estimates can be corrected so that they provide rational results, they are of no
value in demonstrating the value of the proposed Project,
(c) The IS /EA Omits Any Analysis of the Project's Impacts to
the Local and Regional Transportation Network.
In violation of CEQA's core requirements. the ISIEA ignores the Project's impacts
on the local and regional transportation network. The basic purpose of CEQA is to
inform goverttmental decision- makers and the public about the potential significant
environmental effects of proposed activities. See CEQA Guidelines y 15002(a)(I ).
Instead of providing such a Comprehensive impact analysis of the proposed Project's
impacts on the transportation network, the IS/EA only describes how SR 85 would be
affected. The only level of service information in the [S/EA is for those segments of the.
fl'eeevay proposed to be widened. See e.g., Table 2.1.3 -5 beginning on page 2 -16. While it
is necessary to know how SR SS would operate upon completion of the Project, this is no
L -1 -10 substitute for an evaluation of the Project's environmental impacts on the affected local
and regional traffic network as well.
According to the MRO Engineers' Report, Caltmns' travel demand forecasts
reveal that the Project would result in substantial changes in traffic patterns at many SR
85 access locations, yet the ISIEA fails to analyze how these changes will affect local
traffic patterns.' MRO Report, p. 4. For caamplu, the Project will result in the addition of
It is important to note that the travel demand forecasts are not included in the
IS/EA itself. They can only be found by searching through the sizable quantity of
ancillary material on the Caltrans District 4 wcbsite. CEQA requires that the analysis be
presented in the CIR..See Smnla Clarila Orga nization for Planning the Envirtilmnsni V.
County of (`:SCOPE') (2003) 106 Cal. App, 41h 715, 722 (agency's analysis must be
contained in the EIR, not `scattered here and there in FIR appendices "). Even worse, the
critical DKS/URS traffic operations analysis document is not attached to the IS/EA as an
appendix.
H -70 SR 85 Express Lanes Project
.Appendix H_Comments.and Responses on the Draft Environmental Document
hundreds of vehicles to various freeway ramps and street segments in and near Cupertino
in 2015 and 2035. Id. The IS1EA completely ignores both this substantial increase in
traffic and the potential for significantly increased congestion and delay at these
locations.
Many of these ramps and intersections likely cant' very high traffic volumes and
are integral components of the local and regional circulation system, Therefore, to
evaluate the Project's traffic impacts, the IS/EA should have studied the "before " and
"after" travel patients on local street intersections, street segments, freeway ramp
terminal intersections, freeway ramps, and freeway mainline segments throughout the
L -1 -10 region. "An FIR may not ignore the regional impacts of a project approval, including
cont. those impacts that occur outside of its borders; on the contrary, a regional perspective is
required." Citizens q/ Goleta Valley v. Board m'Supervisorr (1990)52 Cal.3d 553, 575 .
Indeed, an EIR must analyze environmental impacts over the entire area where one might
reasonably expect these impacts to occur. See Kings County Farm Bureau v- City of
Hai ford (1990) 221 Cal.App.3d 692, 721 -724. This principle sterns directly front the
requirement that an EIR analyze all significant or potentially significant environmental
impacts. Pub. Res. Code §§ 21061, 21068.
Cenainly the potential exists for some of these ramps to operate at deficient levels
of service as a result of the Project. Caltans should prepare an EIRIEIS that fully
analyzes these potential impacts and identifies feasible mitigation if these impacts are
determined to be significant.
(1) The IS /EA Inaccurately Characterizes Existing Traffic
Operations at the SR 85 /I -280 Interchange.
The IS /EA incorrectly characterizes SR 85 traffic operations in the vicinity of 1-
280 as being at an acceptable level of service. This finding differs significantly front the
experience of motorists who drive through this area on a daily basis. SR 85 near Stevens
L -1 -11 Creek Boulevard and the 1- 280 /SR 85 interchange is already a major bottleneck. The
typical delay traveling north on SR 85 to northbound 1 -280 is about 15 minutes.
Widening SR 85 south of this interchange will encourage additional traffic on SR 85 and,
therefore, intensify congestion at the 1- 2801SR 85 interchange. The IS /EA does not
acknowledge the potential for this adverse impact, let alone evaluate methods for
alleviating this congestion.
(g) The IS(EA Tails to Analyze the Project's Impact on Public
Transit, Bicycles or Pedestrians.
L -1 -12 According to CEQA, a project would have a significant effect oil the environment
if it would conflict with adopted policies, plans, or programs regarding public transit,
bicycle, w pedestrian facilities_ CEQA Appendix ii, § XVI.t). The IS /EA contains no
analysis whatsoever of impacts to public transit, bicycle, or pedestrian facilities, however.
SR 85 Express Lanes Project H -71
Appendix H Comments and Responses on the Draft Environmental Document
The proposed Project would impact public transit both directly and indirectly.
First, as discussed above, the City has long anticipated the development of a light rail
transit system within the SA 85 median. By substantially reducing the width of the
highway's median, the proposed Project would likely preclude the development of light
rail within the highway's median. Moreover, according to the City's General Plan,
VTA's Transportation Plan 2020 includes a study or light rail transit in the
Sunnyvale /Cupertino Corridor. See City or Cupertino General Plan Circulation Element,
p. 4-3. Caltrans must disclose whether the Project would preclude development of a light
rail system within the SR 85 median and analyze the Project`s consistency with the
SuntyvaloiCupetino Corridor light rail transit study.
Second, the Project would use finding to widen the highway that could otherwise
be invested in public transportation. This is especially important because a substantial
amount of funding is necessary to compensate for the region's long -term dependence on
the automobile. Consequently, the region has an extensive highway system but an
incomplete transit system. Without a comprehensive, well- integrated transit system,
public transportation will never be able to become a truly viable alternative to the
automobile in meeting the region's transportation mobility needs. The IS /EA fails to
acknowledge, let alone analyze, this impact.
Third, increasing highway capacity at the same time as the region is trying to
L -1 -12 increase transit ridership is an inherently flawed approach to regional transportation
mobility. As discussed above; increases in highway infrastructure undercut transit
cont. ridership. Traffic congestion provides a significant incentive to seek alternative modes of
transportation. High - quality public transportation tends to attract travelers who might
otherwise drive. Once highways arc widened, however, traffic congestion cases, travel
speeds increase (at least for some period of time), and travelers again begin to drive.
Moreover, if transit ridership continues to decline because travelers are taking advantage
of freed -up capacity on freeway lanes, regional transportation agencies will invest even
less funding in transit systems and transit service. With less funding, transit agencies cut,
or eliminate altogether, routes and transit headways, which in turn reduces transit
ridership further. Once again, the IS /EA fails to acknowledge or analyze this effect on
public transit.
Fourth, investing in highways perpetuates development patterns that are inherently
unsuited to alterative modes of transportation. Typical suburban development —
characterized by low - density cul -de -sacs, wide, high -speed arterials, and massive
intersections — makes it less cost - effective for transit to serve scattered destinations.
investing in transit capital and operational improvements, on the other hand, creates
transit certainty which in turn is a critical factor for supporting the growth of compact
communities. This will result in a virtuous cycle whereby transit investments encourage
transit - oriented development, boosting transit ridership, and encouraging more transit
investments. Here too, the 1S /EA fails to account for this phenomenon or to analyze the
effect that continuing highway expansion has on this cycle.
--
y_72 SR 65 Express Lanes Project
H Comments and Responses on the Draft Environmental Document
The Project also has the potential to adversely affect pedestrian and bicycle use
and to be inconsistent with the City of Cupertino's Pedestrian Transportation Guidelines
L -1 -12, and the Cupertino Bicycle Transportation Plan. See Cupertino General Plan, Circulation
cont. Element, p. 4 -7. Caltrans must evaluate these adverse environmental impacts in an
EIRIEIS.
(h) The IS /EA Pails to Analyze or Mitigate the Project's
Construction- Related'l'rmtsportation Impacts.
According to the IS/EA, construction of the proposed project would span two
years. IS /EA, p. 1 -14. One would expect that, given the massive scale and Prolonged
duration of such a construction project, the IS /EA would have comprehensively analyzed
what are certain to be extensive local and regional traffic impacts. Traffic patterns will be
impacted from lane closures, rerouting of traffic, delivery of materials, hauling of
excavated material, and construction employees commuting to /from the job site.
Unfortunately, the IS /EA provides no analysis of the Project's construction - related
impacts. Instead, the IS /EA looks to a future "Traffic Management Plan" to minimize the
L -1 -13 expected traffic delays and closures — a Plan that will be developed after Project
approval. IS /LA, p. 2 -28. But this deferral of mitigation violates CEQA. See CEQA
Guidelines § 15126.4(a)(1)(B) ( "Forniulation of mitigation measures should not be
delerred until some future time. "); Commnnittes,for a Better Environment v. City of
Richmond (2010) 184 Cal,AppAth 70, 93.
Caltrans should prepare an F11WEIS that (1) provides a complete analysis of the
Project's construction - related impacts, and (2) includes the agency`s actual mitigation
plan. The public and decision - makers must be apprised of the magnitude of these
impacts, and the actions that will be necessary to mitigate them, prior to the Project's
approval.
2. The IS /EA Fails to Adequately Analyze the Project's Noise
Impacts, Which Are Expected to Be Significant.
Widening SR 85 will, without question, increase noise levels throughout the
Project area, yet the IS/EA fails to adequately analyze or mitigate these significant
impacts.'ihe most serious deficiencies are discussed below,
L -1 -14
(a) The IS /EA Fails to Mitigate For the Project's Significant
Noise Impacts.
The threshold of significance for noise impacts used by the IS /EA appears to be
when the future noise level with the project results in a substantial increase in noise
level (defined as a 12 dBA or more increase) or when the future noise level with the
project approaches or exceeds the Noise Abatement Criteria ( "NAC ")," IS /EA, p. 2 -88.
Approaching the NAC is defined as "coming within I d13A of the N.AC." Id. Applying
SR 85 Express Lanes Project H -73
H Comments and Responses on the Draft Environmental Document
this threshold of significance, the IS /EA identifies segments all along the stretch of SR 85
to be widened where the lon,�,�- -term noise impacts associated with the Project will be
significant. Id. p. 2 -93 through 2 -96. Two of these segments -- (Segment 4: Fremont to 1-
280 and Segment 5: 1 -280 to South De Anza Boulevard) -- are located within Cupertino.
Despite the significant increase in noise levels at these locations, the IS /EA faits to
mitigate these impacts. 1'he IS /EA selects only one noise abatement type for the Project
(sound walls) and then rejects each and every one of the sound walls, stating that none of
the walls meet Caltrans' feasibility and reasonableness criteria. Id. p. 2 -97.
L -1 -14, The City can find no logical explanation as to why Caltrans does not consider
coot. other feasible mitigation measures. Indeed, the ISIEA acknowledges that Caltrans has
several potential noise abatement measures available to mitigate noise impacts. These
include: avoiding the impact by using design alternatives, using traffic management
measures to regulate types of vehicles and speeds, and acoustically insulating land uses
such as auditoriums, day care centers, hospitals and libraries. Id. p. 2.97. Yet the IS/EA
fails to evaluate the feasibility of such measures.
Moreover, other feasible approaches exist for reducing traffic noise impacts. The
IS /EA fails to evaluate, for example, the use of pavement options such as open graded
asphaltic concrete or rubberized asphalt materials. These alternative pavement options
have been proven to be quite effective to attenuation noise. Rubberized asphalt, for
example, can result in an average of a four dBA reduction in traffic noise levels as
compared to conventional asphalt. See "Report on the Status of Rubberized Asphalt
Traffic Noise Reduction in Sacramento County, Bollard & Brennan, Inc., November
1999, attached as Exhibit D. The fact that other feasible mitigation exists to reduce or
eliminate potentially significant impacts demands review and analysis in an EIR1EIS.
(b) The TS /EA's Analysis of the Project's Operational Noise
impacts is Deficient.
The flaws in the IS /EA's noise analysis extend beyond its failure to mitigate the
Project's significant noise impacts. Indeed, the docmnent fails to adequately analyze the
Project's noise impacts altogether. One of the fast steps required to analyze
environmental impacts is to describe the existing environmental setting. An EIR's
L -1 -15 description of a project's environmental setting plays a critical part in all of the
subsequent parts of the EIR because it provides "the baseline physical conditions by
which a lead agency determines whether an impact is significant" CEQA Guidelines §
15125(a). Similarly, under NEPA, an EIS most "describe the environment of the areas)
to be affected or created by the alternatives under consideration." 40 C.N.R. § 1502.15.
Here, the IS /EA omits essential information about the existing sensitive receptors in the
vicinity of SR 85.
For put-poses of noise analyses, Caltrans categorizes land uses based on the type
and level of human use. See Caltrans Traffic Noise Analysis Protocol ( "Noise Protocol ")
H -74 SR 85 Express Lanes Project
H Comments and Responses on the Draft Environmental Document
at fi through 12. attached as Exhibit E. According to the Noise protocol, noise impacts
t my depending on how hmraans use a site. As an example, the parking lot lot it place of
worship is 1101 Considered to be an area of frequent use that would benefit from a lowered
noise level because people only spend a few minutes there getting in and out of their cars
and there would be no benefit to a lowered noise level. I low ever. if outdoor worship
services are held at this location, this would be. an area w here people are exposed to noise
for an extended period of time and where the ability to hear is important. This then
evould be considered an area off equeni human use that A%ould benefit from a lowctcd
noise level. Calnzns protocol, pp. 77 S. The Noise Protocol thus specifically
acknowledges types of land uses that wan ant comparatively low interior noise levels.
These uses, referred to as "Category D ", which includes auditoriums, day care centers,
hospitals, libraries, medical facilities, places of worship, pubic meeting rooms, public or
nonprofit institutional structures, radio studios, recordings studios, schools and television
studios, should have interior noise levels of 52 dBA,.ld„ p. 7.
Although the IS/EA acknowledges generally that residences, schools, churches,
and hospitals are located along the Project corridor (at 2 -)0), it does not identify the
Specific receptors. 11 does not tell the public and decisionmakers, for example, how many
schools are located along the corridor or the proximity of the schools to the freeway. Arc -
these schools already protected by sound walls? Do they have noise attenuation features
such as double -paned windows ?'rhe 1S /1 A omits this important information.
Detailed information about existing land uses is all the more important because
Caltrans' requires additional analysis of Category D land uses "aliens determination has
been made that exterior abatement rvcasures will not be feasible and reasonable," Id. p.
L -1 -15 10. The IS /EA concludes that there is no feasible mitigation for the Project's significant
cant. noise impacts but fails to take the necessary next step ; i,e„ examination of interior noise
levels in Category D land uses. An EHJIVEIS must evaluate the Project's effect oil interior
noise levels and identify appropriate mitigation if noise levels exceed the required
thresholds,
Second, the ISIEA fails to include an evaluation of noise impacts beyond . the
highway's immediate right -of way ("ROW"). By iucusing only on noise receptors
located immediately adjacent to the ROW, the IS /EA fails to lake into consideration
phenomena such as reflective noise, Reflective noise results from sound waves reflectin"
otf of nearby buildings and strictures, See Sound Walls: Absogrtive Versus Reflective
Design and Effectiveness, Sound Fighter Systems, attached as Exhibit E
As studies show, the sound waves that travel around the ends and over the taps of
sound walls in particular can be significant. Id, Reflection is a critical factor when a
vehicle (such as a track) is almost as tall as the wall or, as in many cases, taller than the
wall. The sound levels at the receiver can he easily increased perhaps 3 to S rill, and
sometimes up to 10 dB because of reflective noise. M. In addition, these reflections can
be directed uphill causing impacts to residences located ai higher elevations on the slopes
SR 85 Express Lanes Project H -75
L -1 -1 S
Cont.
L -1 -16
H Comments and Responses on the Draft Environmental Document
surrounding the ROW. Because of this phenomenon. noise conditions at reoeptor
locations uphill frotn the ROW may differ substantially from those receptors within the
ROW. Caltrans most expand its study area to include all receptors that ale likely to
experience increased noise levels resulting from the proposed Project.
Third, the IS /EA does not evaluate single noise events. Motor vehicle noise is
characterized by a High number of individual events, which often create a higher
sustained noise level in proximity to areas sensitive to noise exposure. Buses and
motorcycles, in particular, generate significantly more single noise events than other
vehicle types, especially along hills where engine brakes are applied or acceleration is
needed. Yet, rather than analyze how these single -noise events will impact receptors, the
IYEA focuses only on average noise
Analyzing only average noise impacts has been rejected by California courts
because impacted residents do not hear noise averages, btu single events. See Berkeley
�eepjets Over the Bet= v. Pena ojOokland (2001) 91 Cai. App. 4th 1344, t382. Single
event noise levels have been shown to be likely to result in sleep disruption and speech
interference, and heightened levels of s6-ess and annoyance. Noting that "sound exposure
level [SE'L] has been found to be the most appropriate and useful descriptor for most
types ofsingle event sounds," tile court in Berkeley heePjets held that the port was
required to prepare a supplementary noise analysis. Accordingly, the ERTIS must
analyze the impacts of single event noise on sleep, speech, stress and annoyance levels.
and analyze adequate measures to miti gate those impacts.
Fourth, tite IS /FA does not differentiate between daytime and nighttime noise.
Noise can be far more intrusive during the evening and nighttime hours when ambient
noise levels sue at their lowest and when residents are sleeping. Since the surrounding
area is quieter at these times, the masking effect of other noise does not screen the
freewav noise. Caltrans should have taken into account this higher sensitivity to noise
and evaluated how the increase in noise from the Project would affect receptors during
these time periods. "file EIR/EIS must include such an analysis.
(e) The IYEA Fails to Adequately Analyze the Project's
Construction- Related Noise Impacts.
Although construction of the Project would occur over two years, and would
apparently occur near residences, sellouts, hospitals and businesses, tile. ISIEA fails to
provide any analysis of this massive construction project. instead, the document merely
concludes that noise generated by project - related construction activities would be
temporary and that noise levels would not be substantially higher than existing hourly
average traffic noise levels on SR 85 (53 to 71 dBa). IS /EA, p. 2 -103. Members of the
public are given no specific information as to the type, severity or even the duration of
the construction - related noise impacts at their specific locations. Nor does the IS /EA
provide any assurance that sensitive receptors would be sufficiently protected during the
Project's protracted construction process.
H -76 SR 85 Express Lanes Project
H Comments and Responses on the Draft Environmental Document
A conclusion regarding the significance ofan environbental impact that is not
based on lit analysis of (lie relevant facts fails to fulfill CEQA's inforrnatienal goal. Sec
Stanislaw Nawralllerlkrge Project i� CormttxufStanis laus(1996)4SCal.App.41h1$2,
191, 196; Citizens ofGole to Me dlc;r,, 52 Cal,3d at 568. The IS /F.A fails to fulfill this
paramount CEQA purpose both because it neglects to present all relevant facts relating to
the Project's construction noise impacts upon sensitive receptors and because its cursory
conclusions are basal upon no analysis. Without a detailed quantitative analysis of
construction - related noise. it is not possible to determine the severity of these impacts or
whether the proposed mitigation measures would effectively reduce such effects.
Similarly, "NEPA places upon an agency the obligation to consider every .signif "scant
aspect cif the environinewal impact of s proposed act tion. " Bohimore Gas & Elec, CO, i
Natural Res, Dr1. Council, 462 Ll,S, 87, 97 (1983) (internal quotation omitted).
According to a recent El S /El R prepared for another Caltrans' Project (1 -5/ SR -56
hnerchange Project), noise levels front construction can be as high at 101 dBA at 50
feat' A noise level of 110 dHA is as loud as the sound of a jet fly -over al 306 meters or a
rock band. JrL p. 3.16 -2. Given the potential for dreeau- spliiiing noise levels assochrted
with the SR 85 Project construction the proximity ofsensitive receptors, and the
L -1 -16 prou-ected construction schedule, file IS /EA should have made at least some atteanpf to
cent. evaluate tilt Project's construction - related noise impacts.
OntiSSiOn ofihis analvsis is particularly egregious given that the 1'f-1 WA rewires
that construction noise be considered during the development of any ianspoYatioa
facility, and identities the specifie FIIWA_nnodel Lila[ agencies should use to predict noise
levels for highway construction projects. Sre llH WA, }liglnway 77aftie Noise handbook
available tit: lit q,: //vvww.11 ova. dot. vowenviromnent'noise / construction noNc /renm /indrx_
An UJR/E1S should be prepared, which should include an analysis of construction-
related noise inipaots. An adequate analysis would include a description of existing
ambient noise levels at receptor locations, predicted noise levels during, each phase of
construction at each sensitive receiver location, a comparison of noise levels during
construction to the existing ambient noise levels, the establishmentpfapprop;iate
stuntficance thresholds to assess whether the increase would be substantial. and a hndutg
as to whether noise levels would substantially increase. This type of evaluation is
necessarily complcxt requiring a thorough description of Ilre type, duration; amplitude,
topological conditions, relationship of sensitive receptors to construction areas,
construction techniques, construction phasing, and construction durations for each
highway segnncnt.
The deficiencies in the IS/EA extend beyond Caltrans' failure to analyze
construction - related noise impacts. The docmnent also ignores construction- related
vibration impacts. In addition to contributing to high levels of annoyance, construction-
' 1- 5 /SR -56 Interchange project DI R/S, May 2012 at 3.16 -28.
-
SR 85 Express Lanes Project r-I_77
H Comments and Responses on the Draft Environmental Document
related vibration also can cause substantial property damage. Caltrans' EIR/EIS must
undertake a comprehensive assessment of construction - related vibration impacts.
Notwithstanding the IS /EA's failure to analyze the Project's construction- related
noise impacts, the document identifies a few measures to minimize construction noise.
The IS /EA calls for the preparation of a construction plan to identify the schedule for
major noise - generating construction activities. IS/EA, p. 2 -103. However, the IS /EA
provides no performance criteria that will ensure that construction - related noise does not
adversely impact nearby sensitive receptors. Courts have allowed deferral of mitigation
only in very limited circumstances. "[Fjor kinds of impacts for which mitigation is
known to be feasible, but where practical considerations prohibit devising such measures
early in the planning process .... the agency can commit itself to eventually devising
measures that will satisfy specific performance criteria articulated at the time of project
L -1 -16, approval." Sacramento Old City Assn v. City Council (1991) 229 Cal. App. 3d 1011,
cont. 1025 -29 (emphases added).
Another measure calls for avoiding the staging of construction equipment within
200 feet of residences and as far as practical from noise sensitive receptors. Id. This
measure is unlikely to be effective inasmuch as Caltrans has not even identified the
specific affected sensitive receptors. Moreover, the use of language "as far as practical" is
vague and unenforceable. The CEQA Guidelines state that "mitigation treasures must be
fully enforceable through permit conditions, agreements, or other legally- binding
instruments." CEQA Guidelines 15126.4(a)(2).
In sum, the Project's operational noise impacts would he significant. The IS /EA
concludes that there are no feasible mitigation measures to reduce these impacts. In
addition, the ISIEA lacks the evidentiary support that the construction - related measures
will reduce construction noise impacts to a less- than - significant level_ Inasmuch as the
IS /EA offers no effective mitigation for these significant noise impacts, Caltrans must
analyze these traffic impacts in an EIIVEIS.
3. The IS /EA Fails to Adequately Analyze the Project's Air
Quality, Which Are Expected to lie Significant.
The Project area does not attain federal standards for ozone and line particulate
L -1 -17 matter (PM2 5). For the state standards, which are more stringent than the federal, the
region does not attain the ozone, PM,,,,,, or inhalable particulate matter (PMIO) standards.
Id. p. 2 -77. Given the region's serious air pollution problem, one would expect that
Caltrans would have extensively studied the Project's contribution to this problem.
Unfortunately, this is not the case. Although the Project has the potential to result in a
significant increase in air pollution, the IS /EA's analysis of air quality impacts is grossly
inadequate. The most serious flaws in the air quality analysis are described below.
H -76 SR 85 Express Lanes Project
H Comments and Responses on the Draft Environmental Document
(a) The ISIEA lacks Threshohls of Significance to Evaluate
the Project's Ali, Quality Impacts.
CI-QA and NEPA's most basic purpose is to infotxrt govermuental decision -
makers kind the public about this potential significant unviromncntal effects of a proposed
project. CEQA Guidelines § 15402 (a) (1); 40 C F.R. § 1500.1(h). Determining whether a
project may result in a significant adverse environmental effect is tine of the key aspects
of C'EQA. Guidelines § 15064(a) (determination of significant effects "plays a critical
role in the CEQA process"), CEQA specifically anticipates that agencies will use
thresholds of signiftextnee as an analytical tool for judging the significance of a Project's
L -1 -17, impacts. Id. § 15064,7.
coat.
Thus, one of the first steps in any analysis of environmental impact is to select
a threshold of'significati _Here, the (5 %EA contains no thuesholds oi`significance fur the
project's ail quality impacts, This claw leads to a cascade of other failures: without a
threshold, the IS /LA cannot do its . wb. For example, allhough the IS /EA concludes that
the Project would not violate any air . quality standards, the doeutuent provides no
standard be which to evaluate this impact`§ significance. Calirams' EIR/E15 must include
these thresholds and evaluate the project's impacts against these duesholds.
(b) The IS /EA (Fails To Adequately Describe I'lic Project's
Environmental Setting.
The IS /HA contains no information regarding the number of people who live
within the SR 85 study area; or more importantly; who line within a mile of the lieeway.
Studies indicate that living close to high traffic and the associated emissions may lead to
adverse health effects beyond those associated with regional air pollution in urban areas.
Sec Caliiorrva Air Resources Board, Air- Oua(in- abed Land Use Handbook: A Continuum,
Health Perspective (excerpts), attached us Exhibit G.
Some land uses tire considered more sensitive to air pollution than others due to
L -1 -18 the types of population groups or activities involved. The Bay Area Air Quality
Mtniagenrenl District ( "BAAQMD ") includes in its list of sensitive receptors, residences,
schools, playgrounds, childcare centers, convalescent homes, retirement homes,
rehabilittlion ceolcrs, and athletic facilities, 13AAQMD Cl -`QA Guidelines at D -4,
Updated May 2011, Sensilive population groups include children, the elderly, and the
acutely qlid Chronically ill, especially those with cardio- respiralmy diseases. Residential
areas are also considered to be sensitive to air pollution because residents tend to be
home for extended periods of lime. resulting in sustained exposure to any pollutant.
present. Although Calirans would widen SR 85 and bring the highway even closer to
established neighborhoods, the 1S /EA fails to quantitatively, or even qualitatively.
identify the mmher and type of sensitive receptors that would be affected by this
proposed Project. Such information must be provided so that the public and decision-
SR 85 Express Lanes Project 1W -76
H Comments and Responses on the Draft Environmental Document
makers can understand who will be at particular risk due to poor ail quality caused by the
L -1 -18 Project.
cont
(c) The IS/CA Does Not Analyze Whether The Project Would
Conflict With Or Obstruct Implementation Of The
Applicable Air Quality Plan Or Whether It Would Violate
Any Air Quality Standard.
Caitrans cites two reasons for its lack of an evaluation as to whether the Project
would conflict with the applicable air quality plan or violate any air quality standard.
First, it asserts, absent any evidence, that the Project will not interfere with the adoption
of the BAAQ11dD's 2010 Clean Air Plan. 1S /EA, p. 2 -82. Second, it states the Project is
included in the Bay Area's Regional Transportation Plan ( "RTP ") and that since the RTP
has undergone regional evaluation for conformity with federal air quality standards,
including ozone, the Project would result in no ozone impacts. Id. The document makes
no attempt to provide the necessary facts and analysis to support its conclusions and thus
L -1 _19 falls far short ofsatistying CEQA and NEPA's mandates. Citizens ql Goleta Ynllt a v.
Board oj3uperi,isocs (1990)52 Cal.3d 553.568 ; Xfor land -Nat'! Capital Park &
Planning Conun'n o. U& Postal Sent, 487 P.2d 1029, 1040 (C).C. Cir 1973) (requiting
agencies to take a "hard look" at the environmental impacts of a project, and not merely
rest on "bald conclusions ").
If Cattrans intends to rely on the Project's inclusion in the RTP and that Plan's
federal conformity evaluation, the ISIEA must discuss this evaluation and explain how
the Project fits in with the evaluation. Moreover. it is important to note that no less than
three lawsuits have been tiled challenging the adequacy of tlie. environmental 'analysis for
the RTP.6 See Alameda County Superior Court "Domain Web"
Lawsuit I
Name: BaV Areer Citizens v. Association ofBarArea Govemments
Court: Alameda Superior Court
Case No: RG 13690631
Status. Writ Petition (CEQA) fled on 8/06/13; case pending.
littus /lwww.yacificla "al or "fl2elesse /Lawsuit -saes- Plan -Betty areas-drttfters-wnre-
blinders
Lawsuit 2
Name: Builditio industry Assoeiation i =. 4ssociation of&aI, Area Governments
Court: Alameda Superior Court
Case No: RG 13692095
Status: Writ Petition (CEQA) tiled on 3/16/13; case pending. The
Building Industry Association's press release regarding the filing is available at:
JrttpA�vwwbiabaymen m /bay- area - builders - sue- reeional- akncies- over- failure-
tt- rom�,v- with- landmark - Stale- hUi�tina law!
H -80 SR 85 Express Lanes Project
Appendix H Comments and Responses on the Draft Environmental Document
Chny t %w v w alnmc la coups e o t es ^spa doivaimvgb) and search by case number,
Caluans should disclose whether any orthese suits address the adequacy of the P:TP
EIR's air quality analysis. Finally, the IS/PAmust evaluate whether the Project's federal
conformity detesmhtation is sufficient to dcrnonsuratethat the Project would not violate
L -1 -19, any state air quality standard. As discussed above, the state nil, quality standards are more
cost. stringent than the federal standards.
An EIR/EIS should be prepared and should include an accurate assessment of the
Project's contribution to regional air pollution. Once this; assessment is undertaken,
mitigation measures andlor Project alternatives should be identified if the impacts are
determined to be significant.
(d) The IS /EA Erroneously Concludes That The Project Will
Not Have Any Significant Impacts Due To Emissions Of
Alobile Source Air Toxics,
The ISIEA states that the Project will cause emissions of mobile source air taxies
( "NISAT ") to increase over existing conditions. IS /CA, p. 2 -81 The IS/LA ignores the
data, though, and sunnnarily concludes that tire Project Wnuld not have an adverse Impact
on NISAT emissions. Id. p.2 -S4. The question is not whether the Project would have an
adverse impact on MSAT emissions but whether it would have an adverse impact out
nearby sensitive receptors. Unfortunately, the IS /EA does not evaluate this potential
impact, claiming that there are no available tools to enable prediction of tha project -
L -1 -20 specific health impacts of the emissions changes associated with the Ptolect. Id. p, 2 -83.
Caltrans is wrong that it cannot conduct tan analysis (of health impacts. Agencies
regularly conduct health risk assessments for road pfojects.11e American Association of
State Highway and Transportation Officials ("AASHTO ") has prepared guidelines on
available analytical models and techniques to assess MSAT impacts. See AASHTO,
Anul vaiag, Doeumenlitrg, and Communicating the Ja pacts of l9obile, Sotnre Air Toxic
EnmNsions in the NFPA Process (March 2007), attached as Exhibit H. These AASlJTO
Guidelines include over 200 pages ot'detailed procedures, and were designed specifically
to assist transportation agencies in the evaluation of the potential health impacts caused
by exposure to toxic. airpollutants emitted %tom smfacc transportation sources, let, p.
6,14. The AASHTO Guidelines explain that modeling tools are widely available that are
Lawsuit 3
Name: Gnnnraariueu, fr,r a Better Enrn-onmein a. h2eb•apolitnn 1'lannzng
Cotnnvissim
Court: Alameda Superior Court
Case No: RG 13692189
Status: Writ Petition filed on 8/)9/I3.
SR 85 Express Lanes Project H_at
H Comments and Responses on the Draft Environmental Document
capable of predicting MSAT impacts from transportation projects and that there are a
variety of stir quality dispersion models applicable to transportation projects. hl. p. 2,3
Appendix B. Caltrans could use AASHTO's Guidelines as a starting point for
preparing its own analysis of the health impacts of the Project. Seer also
hh alwww clot ca aovlhg'mnv /airs eUmsathmn (Caltrans acknowledging that health
risk assessments can be done for road projects and that sonic air districts emphasize doing
it). Moreover, even if a health risk assessment were not feasible, Caitrans,)list use sonic
1 20 method to quantify and analyze MSAT risks to sensitive receptors to the best of its
coat, ability.
A fair argunnent exists that (lie project would result in significant air quality
impacts. Consequently. Caltrans must prepare tin LIRIEIS that comprehensively
evaluates these impacts and identifies feasibleiuitigation and/or alternatives if the
impacts are determined to be significant.
4, The IS /EA Fails to Adequately Analyze the Project's Lnpact on
Climate Change, Which Is Expected to lie Significant.
While the iYEA includes a discussion of the Project's impacts on climate change,
the analysis is essentially perfunctory. Tile analysis focuses its efforts on a lengthy
discussion about the Project's potential to increase average vehicle speeds and thereby
reduce carbon emissions. The IS /EA calmdates only a portion of the carbon emissions for
which the Project will be responsible and then ignores its obligation to de.terminewhether
the impact is significant. The document thus rails at the most basic purpose- of an FIR,
which is to disclose to the public a project's significant environmental impacts and
mitigation for these impacts or alternatives to the proposed project that will avoid or
substantially reduce the project's significant hmpacts,
L -1-21
(a) The IS/EA Incorrectly Focuses on Increased Travel
Speeds to Reduce the Project's Carbon Emissions.
The iS /EA includes a lengthy discussion on the Project's potential to increase
average vehicle speeds as a way to reduce carbon emissions. ISIEA, p. 2 -137. it
downplays the role that the Projects increase in vehicle miles traveled ( "VMT ") will
play in increasing greenhouse gas ( "GiIG ") emissions. As AASHTO recognizes, the only
way that California will be able to achieve sustained reductions in Cd 1G emissions is by
reducing VMT. Recognizing the unsuslainable growth in driving, AASHTO, which
represents state departments oftransportation throughout the country, is urging that the
growth orvehicle miles traveled be cut in half, See "Growing Cools: Evidence on
Urban IDevelopment and Climate Change," Urban Land institute, attached as Exhibit I
(emphasis added).
Focusing on vehicle speeds is an unrealistic approach to controlling GlIG
emissions. As discussed above, the increased speeds that accompany highway expansion
are short-lived since increased capacity attracts additional motorists, resulting in even
H -82 SR 85 Express Lanes Project
H Comments and Responses on the Draft Environmental Document
gn ater levels of congestion. In any event, Caltrans cannot rely on the travel speed data
L -1 -21, identified in the IS /EA since, as the MRO Report explains, this data is inaccurate.
Cont.
(b) The IS/EA Fails to Properly Quantify the Project's
Emissions Contributing to Climate Change.
The ISIEA's estimate of the Project's carbon emissions only tells a small pail of
the story of the Project's contribution to climate change. The document includes
calculations of the amount of emissions attributable to peak hour speeds and VMT, and
then apparently uses these figures to develop only a rough estimate of total emissions. As
discussed below, the IS /EA errs in its failure to identify all of the Project- related
emissions.
The IS!EA's explains that it did not 'include in its emission calculation life -cycle
emissions associated with manufacturing and lifecycle of its building materials, the
production and distribution of the fuel, and fuel additives like ethanol prior to combustion
L -1 -22 in the vehicle. IS /EA, p. 2 -138. Nor does the IS./EA's emission calculation include gases
other than carbon dioxide in its calculation of GHG emissions. Greenhouse gases that
were not considered include, but are not limited to, methane, nitrous oxide,
hydrolluorocarbons, perfluorocarbons, and sulfur hexafluoride. id. , p. 2 -134. The
document also does not include black carbon emissions, which are produced by burning
fossil fuels such as diesel fuel. Black carbon has significant global and regional effects
and its contribution to climate change is second only to carbon dioxide.' Caltrans must
invcnto,ny all of the Project's emissions, including life -cycle emissions, other gases, and
black carbon.
An agency's fast duty under CEQA is to disclose accurately a project's impacts,
The 1S /EA does not do so. Because it skips over several potentially significant sources of
GHG emissions, it fails to accurately quantify the Project's increase in GHG emissions,
Until GIIG emissions are properly quantified, the ISIEA will remain inadequate.
(c) The IS/EA Fails to Arrive at a Conclusion as to Whether
the Project's Contributions to Climate Change Would Be
L -1 -23 Significant.
Although the IS /EA acknowledges that the "Build" emissions would be higher
than the "No Build" emissions in 2015 (p. 2 -137), the document stops short of identifying
the Project's impact on climate change as significant. Caltrans has a clear statutory
obligation under CEQA to determine whether or not this Project's impacts are significant,
The first step in any discussion of an environmental impact is to select a threshold of
9 See, U.S House of Representatives Committee on Oversight and Governmem
Reform Hearing, October 18, 2007; Science and Development Network `Black Carbon
Climate Danger Underestimated" April 3, 2008.
SR 85 Express Lanes Project H -83
H Comments and Responses on the Draft Environmental Document
significance. The 1S /EA does not choose such a threshold. Under CEQA, a determination
of the significance of an environment impact calls for "careful judgment ... based to the
extent possible on scientific and tactual data." CEQA Guideline § 15064(b).
Accordingly, a significance threshold for GHG emissions must reflect the grave threats
posed by the cumulative impact of additional new sources of emissions into an
environment where deep reductions from existing emission levels are necessary to avert
the worst consequences of global warming. See Conimunities fm, Better Env't r.
California Resources Agenev (2002) 103 Cal. App_ 4th 98, 120 ( "[T]he greater the
existing environmental problems are, the lower the threshold for treating a project's
contribution to cumulative impacts as significant. See, e.g., Berkeley Jets, 91 Cal, App.
4th at 1370. The lack of published standards and thresholds of significance alone cannot
justify Caltrans' failure to analyze the potentially significant climate change impacts of
the Project.
The California Air Pollution Control Officers Association's ("CAPCOA-)'
"CEQA & Climate Change" white paper assists lead agencies in analyzing greenhouse
L -1 -23 gas impacts under CEQA. See Exhibit J. Noting that "the absence of an adopted
cunt_ threshold does not relieve the agency from the obligation to determine significance" of a
project's impacts on climate change, CAPCOA explored various approaches to
determining significance and then evaluated the effectiveness of each approach. In doing
so, CAPCOA determined that only thresholds of zero emissions or of 900 tons of CO2
equivalent ("CO20)' omissions had "high" effectiveness in reducing G1IG emissions
and "high" consistency with the emission reduction targets set forth in AB 32 and
Executive Order 5 -3 -05. Id.
NEPA also requires Caltrans to analyze the Project's 6110 emissions. Ctr. for
Biological Diversily, 538 F.3d 1172, 1217 (9th Cit. 2008) (NEPA requires agencies to
assess impacts of project on GI-iG emissions); Earth Island Institute v. U.S. Forest
Service, 351 F.3d 1291, 1300 (9th Cir. 2003) (NEPA requires that federal agencies
"consider every significant aspect of the environmental impact of a proposed action. . . ")
(emphasis added) (citations omitted). The President's Council on Environmental Quality
issued draft guidance on analyzing this issue under NEPA. See February 18, 2010. Draft
NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas
Emissions, attached as Exhibit K. "this document recognizes that "the NEPA process
should incorporate consideration of both the impact of an agency action on the
8 CAPCOA is an association of air pollution control officers representing all local
air quality agencies and air districts in California.
9 Carbon dioxide equivalents (CO2c) provide a universal standard of measurement
against which the impacts of releasing diflerew greenhouse gases can be evaluated. As
the base unit, carbon dioxide's numeric value is 1.0 while other more potent greenhouse
gases have a higher numeric value.
H -84 SR 85 Express Lanes Project
H Comments and Responses on the Draft Environmental Document
environment through the mechanism of GHG emissions and the impact of changing
climate on that agency action." Id. at p. 11.
In any event, the Project, with its yearly emissions of more than 2,500 tons per
year of CO2e (p. 2 -135), is well above either of the two potential thresholds of
significance.'(' Its contribution to global warming must therefore be considered
significant. With this significance determination comes CL-:QA's mandate to identify and
adopt feasible mitigation measures that would reduce or avoid the impact. CEQA
Guidelines § 15126.4(a)(1); see also Woodward Park Homeowners Assn, Inc. v. Ciry of
Fresno (2007) 150 Cal. App. 4th 683, 724 ( "The EIR also must describe feasible
measures that could minimize significant impacts. ").
While the IS/EA points to a handful of measures to reduce impacts, these
measures are vague, undefined and unenforceable. In many instances, the IS/EA simply
lists strategies such as "Portland Cement," `non - vehicular conservation measures,"
` °education S information program," and "Goods Movement," but never defines these
L -1 -23, strategies, explains how they would be employed or how the CO, cost savings were
calculated. Dozens of potential mitigation measures, at least, are available to reduce the
Cont. Proiect's greenhouse gas emissions. A small sampling includes_
Require all aspects of the Project to be "carbon neutral" through a combination of
on -site and off -site measures. An important aspect of this mitigation could be the
adoption of an offset requirement for any reductions that could not be achieved
directly. Emissions could be offset either through contributing to the financing of
sustainable energy projects or through the purchase of carbon credits. The
programs are increasingly common and thus raise no issue of infeasibility.
• Require that off -road diesel - powered vehicles used for construction be new low -
emission vehicles, or use retrofit emission control devices such as diesel oxidation
catalysts and diesel particulate filters verified by the California Air Resources
Board.
In addition to the mitigation measures identified above. Caltrans should also
consider the mitigation measures proposed in CAPCOA's publication.
In short, the IS /EA clearly states the Project would result in an increase in GHG
emissions yet fails to identify feasible mitigation measures capable of offsetting these
impacts. Caltrans must prepare an FIRMS to examine these impacts.
L -1 -241 S. The IS/FA Pails to Adequately Analyze the Project's Impact on
Visual Resources, Which Are Expected to Be Significant.
10 This amount was calculated by comparing 2015 "Build" and "No Build"
emissions.
SR 85 Express Lanes Project H -85
H Comments and Responses on the Draft Environmental Document
Under CEQA, it is the state's policy to "[t]ake all action necessary to provide the
people of this state with ... enjoyment of aesthetic, natural, scenic, and historic
environmental qualities." Pub. Res. Code § 21001(h) (emphasis added). Thus, courts
have recognized that aesthetic issues "are property studied in an FIR to assess the impacts
of a project," The Pocket Protectors, 124 Cal.AppAth at 937 (overturning a mitigated
negative declaration and requiting an EIR where proposed project potentially affected
street -level aesthetics).
The accepted approach to analyzing visual and aesthetic impacts is as follows:
a. Describe the criteria for significance thresholds.
b. Characterize the existing conditions of the Project site and the
surrounding area by photograph and description, and select key
viewpoints within the area, including scenic corridors and
landscapes.
L -1 -241 c, Use photomontages or visual simulations, to illustrate the change in
cont- character of the project site before and after project implementation.
d. Identify feasible mitigation measures and alternatives to reduce or
eliminate significant impacts.
e. Where mitigation measures are proposed, use the simulations to
illustrate the change in character before and after project mitigation
measures are imposed (e.g., landscaping at various stages of growth,
setbacks, clustering, reduced scale and height, building color
modification).
The IS /EA lacks much of the aforementioned information, making it ucarly
impossible to evaluate the Project's aesthetic impacts, The document contains no
thresholds of significance and, therefore, provides no standard by which to judge the
significance of the Project's impact on visual resources. It does not adequately
characterize the existing setting because it omits photographs or SR 85 within Cupcttino,
focusing primarily on locations within and adjacent to San Jose. The ISJEA does not
include any before /after simulations, therefore, neither the public nor decision makers
have sufficient information about how the character ofthe setting will be ahered upon
completion of the Project. Thus, while the IS/EA ;-acknowledges that the appearance of
SR 85 will change, through pavement widening, bridge widening, installation Of Project
signs, toll structures and lighting, the 1S/EA lacks a visual representation of any of these
features. Consequently, when the IS /EA concludes that the Project is expected to have
little, if any, effect on visual quality, it lacks the evidentiary support to reach this
conclusion.
H -86 SR 85 Express Lanes Project
H Comments and Responses on the Draft Environmental Document
Thu Project would pave the SR SS median through Cupertino yet thercis no
infor-ination about trees a' ornauieptal landscaping in this location. In addition, an
auxiliary lane would be added, lire highway would be widened outside the currenl lanes.
existing abutments would be removed Dud new retaining walls would be constructed. Id.
p. 2 -34. Rather than graphically show ibese changes; the 1S /EA simply concludes that
these changes would be visually compatible with the existing freeway corridor and that
there- would be "a low level of change" to file existing corridor, Id. But What the Willi
"low let +cl ofchangQ `incans as apiactical matter is not explained. Low compared to
what benchmark? The information in the ISfEA is not `presented in a mannei calculated
to adequately inform the public and decision makers" ofreed environmental
consequences of approving the Plan, in violation of CEQA. Sce Vine yard Area Citizens
far Responsible Growth, Lee. i�. Ciit. of Rancho Cordova (2007) 40 C'al.41h 412, 442.
In addition, the iS /EA tails to inform the public of the effect that the new signs
(including dynamic message signs) and toll structures would have on existing views. The
Prt?ieat would add 15 sets of overhead signs and toll structures. These would be installed
in the median on cantilever structures and the tops of the signs and toll structures would
be approximately 26 feet in height. Id. p. 2 -36 through 2.39, 37, Here too, the document
simply states that the "signs would introduce it low to moderate level of change to the
existing cnvironnlcnt" and that views of these project features would 1101. "be highly
conspicuous." lei. p, 2 -36. But because The 1SiEA does not include any criteria for
assessing a change in visual character or show "before and aiier" phowrnaphs, the
plu lses `9ow to moderate" and "riot ]uglily conspicuous" have no cont.xt. t This is very
L -1 -24 important, because SR Sa is below grade by as much as 25 feet, in many segments
Cont. hetwcen 1 -280 and SR 87. Ill. p. 2 -30. Upon completion of the Prgjeei, the signs and toll
structures may starkly interfere with existing views or abruptly change the character of
the community.
The 15 /E.A's analysis of light and glare impacts is particularly deficient. Mast -ant
luminaires would be mounted on the median barricr alone each of the 15 express lane
access zones on SR 55. IS /EA, p, 2 -39. At each access zone, approximately seven
luminaires would be placed in the median river if distance of 2000 feet tone lurninane
every 250 to Opp feet). T}ne number of luminaires would increase if the access z.orlc is
longer than 2,000 feet, to maintain a spacing of one luminalre every 2'50 l0 400 feet Id-
The luminaires would be 35 to 40 feet tail. Ira. p. 2 -40. Although this Project would
result in a suhslatttial increase in light sources, the ISIEA provides no reasoned analysis
of how these light sourecs would aft'cct light and glare. I lie 1S /EA never atiempts to
describe how this increase in lighting would compare with existing lighting, or whether it
would adversely affect nighttime views in the area as CEQA requires. CEQA Guidelines.
" The IS /EA does include " represertative" photographs of signs and toll
structures firom another Bay Area Ji�ecway. IS/EA, p. 2 -37. While it is helpful to see the
design of these structures, such representative photographs cannot replace an analysis of
how these structures would appear tluoughout Cupertino_
SR 85 Express Lanes Project H -87
Appendix H Comments and Responses on the Draft Environmental Document
.Appendix G,§ L(I). Here too, the IS /EA simply concludes that light and glare on the
surrounding uses would be "minimal." Id, p. 2 -44. Stich non-specific statements provide
little meaningful information to the public or local decision - makers. "'hat the label
"minimal " means, as a practical matter', is not explained. Minimal compared to what
benchmark? Because the highway is below grade in Cupertino, the 40 -foot -tall Tight
structures could flood surrounding properties with light and glare.
L -1 -24
cont. Because the IS /EA contains insufficient analysis to support its sweeping
conclusions that the Project's visual impacts will be less than significant, and because
there is a fair argument that impacts would be significant, an EIR/EIS must be prepared.
M. Conclusion
L -1 -25 As set forth above, the IS/BA does not adequately identify the Project's potentially
significant impacts and ihus does not satisfy the requirements of CEQA or NEPA. To
correct these inadequacies, Caltrans must prepare an EIR /EIS for the Project and adopt
enforceable mitigation and or /alternatives to address the Project's significant impacts.
Very tr yours,
..- /
David Brandt
City Manager
City of Cupertino
Exhibits:
Exhibit A: MRO Engineers Report
Exhibit B: Performance Agreement between City of Cupertino and the Santa Clara
County Traffic Authority, January 24, 1989.
Exhibit C: Measure A Official Ballot, County of Santa Clara, General Election,
November 7, 2000.
Exhibit D: Report on the Status of Rubberized Asphalt Traffic Noise Reduction in
Sacramento County, Bollard & Brennan, Inc.
Exhibit E: Caltrans Traffic Noise Analysis Protocol
H -88 SR 85 Express Lanes Project
H Comments and Responses on the Draft Environmental Document
Exhibit F: Sound Walls: Absml3live Versus Reflective Design and Effectiveness,
Sound Fighter Systems,
Exhibit G: California Air Resources Board, Ait Qvahly mtrl Land Use Ilandbook:
A C0117117HRi63 Health Perspective Excerpts.
Exhibit H: AASHTO, Analy2ing, Documenting and Communicating the Impacts
gfMobile Source Air Tonic Emissions in the AIL"I A Process (March
2007).
Exhibit 1: Growing Cooler: Evidence on Urban Development and Climate
Change," Urban Land lnstimte.
Exhibit J: CEQA & Climate Change, CAPCOA (introduction and Appendix G).
Exhibit K: February 18, 2010. Dratl NEPA Guidance on Consideration of the
Effects of Climate Change and Greenhouse Gas Emissions.
565032.1
Note: Exhibit A of the City of Cupertino letter contains continents on the proposed
project and is presented below. The remaining exhibits are not comments on the project
and are therefore not included in this appendix; however, they are part of the
administrative record and are available upon request.
SR 85 Express Lanes Project H -89
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