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CC 04-13-23 Item #4 Apple VP1 Project Response To Comments Memo_Desk ItemCC 04-13-2023 #4 Development Proposal Apple Vallco Parkway Desk Item 1 CITY COUNCIL STAFF REPORT DESK ITEM Meeting: April 13, 2023 Agenda Item #4 Subject Consider the proposed development of a 282,320-square-foot office building with a detached 213,080-square-foot parking structure and removal and replacement of 113 trees subject to a Development Permit, Architectural and Site Approval, and Tree Removal permit, and exemption from the California Environmental Quality Act. (Application No(s): DP-2021-001, ASA-2021-003, TR-2021-020; Applicant(s): Apple, Inc.; Location: 19191 Vallco Parkway; APN #316-20-117) Recommended Action Recommends that the City Council adopt the Resolutions (Attachments A-C) to: 1. Find the project exempt from CEQA pursuant to Guidelines section 15183; 2. Adopt Resolution No. 23-047 approving the Development Permit (DP-2021-001) including the adoption of alternative parking standards pursuant to Municipal Code section 19.124.060(C); 3. Adopt Resolution No. 23-048 approving the Architectural and Site Approval Permit (ASA-2021-003); and 4. Adopt Resolution No. 23-049 approving the Tree Removal Permit (TR-2021-020). Background: PlaceWorks, the Environmental Review Consultant for the project at 19191 Vallco Parkway, A.K.A. VP1, provided the attached response memorandum to public comment emailed to the City on Monday, April 10, 2023. The public comment received raised technical issues related to migration of environmental contaminants. The responses provided are for informational purposes, as explained in the memorandum. Attachment Provided with Desk Item: L. VP1 Apple Office Project CEQA Guidelines Section 15183 Checklist Responses to Comments Memo MEMORANDUM DATE April 12, 2023 TO Gian Martire, City of Cupertino FROM Cathy Fitzgerald, PlaceWorks SUBJECT VP1 Apple Office Project CEQA Guidelines Section 15183 Checklist Responses to Comments Memo This memo provides a response to public comment emailed to Gian Martire on Monday, April 10, 2023 by Ashley M. Gjøvik. Because Ms. Gjøvik has not provided any evidence that she is qualified to opine on technical issues related to migration of environmental contaminants, it is not necessary to address her comments for purposes of Council’s decision regarding the project. Nevertheless, the response below is provided for informational purposes. This memo presents an exact copy of the comment and is followed by a response. Comment 1: Only small section of the building was tested for soil vapors in 2007 & 2021. That northeast corner is a fraction (1/5th) of the overall building. Apple apparently didn't let EKI even survey the rest of the building. That does not seem sufficient. Apple's argument was apparently that the rest of the building was secure lockdowns -- however, after the building is vacated, additional testing could be done. In addition, I don't see why additional testing wasn't done in at least the atrium. Considering the known contamination onsite and at adjacent properties, any request to wave an EIR seems like it should be justified with thorough preliminary testing. So either they test more of the building & then reapply for the waiver if the results justify it, or just do an EIR which would likely require more testing and engagement with Santa Clara DEH anyways. Response 1: The California Environmental Quality Act (CEQA) Guidelines Section 15183 Checklist (15183 Checklist) for the VP1 Apple Office Project (proposed project) is not an exemption or a “waiver,” as characterized by the commenter, from evaluating a proposed project’s impacts under CEQA and disclosing any potential impacts and mandatory mitigation measures. As described in the 15183 Checklist, CEQA Guidelines Section 15183, Projects Consistent with a Community Plan or Zoning, provides a special streamlining process that exempts qualifying projects from additional analysis to reduce the need to prepare repetitive environmental studies. Pursuant to CEQA Guidelines Section 15183(a), CEQA mandates that projects that are consistent with development density established by existing zoning, community plan, or general plan policies for which an Environmental Impact Report (EIR) was certified shall not require additional environmental review, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site. Here, the analysis presented in the 15183 Checklist included a site-specific analysis of the specific hazardous materials on the project site and the potential impacts associated with demolition of the existing building and the construction of a new office and retail building and a parking garage in light of those existing conditions. April 12, 2023 | Page 2 The standard procedure for conducting a Phase I Environmental Site Assessment (ESA) is to determine if there are any environmental liabilities by doing a site inspection, reviewing records on previous chemical usage in the facility, and identifying locations where these chemicals were used. Based on the results of the Phase I ESA, a Phase II ESA was conducted inside the building at the locations of potential past chemical usage. The investigation therefore targeted the northeast portion of the building, which included an electrical room, an air handling room, a utility room, the first-floor “Atalla Room”, a shipping and receiving area, and a former server or storage room. Ten soil vapor samples were taken in these locations in 2007 and an additional four soil vapor samples in 2021. There was no previous chemical usage in the atrium and therefore, soil vapor samples were not collected here or in other portions of the building. In 2007, the soil vapor investigation was conducted, and samples were collected for potential chemicals of concern, based on a review of previous chemical usage and Santa Clara County Fire Department file. The potential chemicals of concern included cleaning solutions (PCE, TCE, and TCA), paints and resins, and hydrofluorocarbons, such as Freon, used in air conditioning and refrigeration systems. All soil vapor concentrations were below the San Francisco Regional Water Control Board’s (RWQCB’s) Environmental Screening Levels (ESLs), except for benzene, which was detected at a maximum soil vapor concentration of 85.3 µg/m3. There also were elevated concentrations of methane detected, which was the result of a natural gas pipeline leak beneath the building, which was subsequently repaired by PG&E. The elevated benzene concentration most likely was associated with the natural gas leak. In residences, low level gas leaks from kitchen stoves, even when off, can create hazardous levels of benzene concentrations in indoor air.1 Because the elevated methane concentrations during the 2007 soil vapor investigation resulted in high detection limits for other chemicals, an additional soil vapor investigation was conducted in 2021. Four additional soil vapor samples were collected. All soil vapor concentrations were below ESLs, except for one vapor sample, which had a benzene concentration of 18.1 µg/m3. This is just slightly above the revised ESL for benzene of 14 µg/m3. However, the concentration of benzene between 2007 and 2021 decreased by 79 percent due to attenuation after repair of the natural gas leak. According to the San Francisco RWQCB guidance, the presence of a chemical at concentrations exceeding an ESL does not necessarily indicate adverse effects on human health or the environment. A benzene concentration just above the ESL at 18.1 µg/m3 represents a potential incremental risk of one in a million. According to California guidance for vapor intrusion mitigation, no further investigation or mitigation is necessary unless risks exceed the one in a million level. Also, this concentration occurred in only one of the four samples; the other three samples were well below the ESL. Therefore, the soil vapor investigations were conducted in accordance with RWQCB, Department of Toxic Substances Control (DTSC), and Phase II 1 University of California, Berkeley, 2022. Public Health News. Leaks from gas stoves can create toxic levels of hazardous air pollutants, https://publichealth.berkeley.edu/news-media/research- highlights/leaks-from-gas-stoves-can-create-toxic-levels-of-hazardous-air-pollutants/, and Composition, Emissions, and Air Quality Impacts of Hazardous Air Pollutants in Unburned Natural Gas from Residential Stoves in California, Eric D. Lebel, Drew R. Michanowicz, Kelsey R. Bilsback, Lee Ann L. Hill, Jackson S. W. Goldman, Jeremy K. Domen, Jessie M. Jaeger, Angélica Ruiz, and Seth B. C. Shonkoff, Environmental Science & Technology 2022 56 (22), 15828-15838, DOI: 10.1021/acs.est.2c02581, accessed April 11, 2023. April 12, 2023 | Page 3 ESA procedures and guidance and there is no potential threat to commercial occupants of the planned reconstruction project. In any event, the impact of existing low levels of environmental contaminants on the project is not an impact of the project on the environment that is subject to evaluation under CEQA. Accordingly, the project would have a less than significant impact. Comment 2: A coworker told me there were ongoing employee health issues in the building including headaches and dizzy spells, which they said were reported to Apple, and Apple EH&S did some kind of particulate and gas testing. If that is true (and I believe it is, as the person sounded certain), that seems like something Apple should disclose if they're requesting an EIR waiver. One would think if they did indoor air gas testing at some point and the results came back in range, then they'd want to mention that to support why additional testing is not needed. If those test results came back high, that seems actionable for an EIR. Response 2: Many office buildings have indoor air quality problems. Some of the buildings are inadequately ventilated, resulting in a buildup of carbon dioxide that causes headaches and fatigue. There also can be allergic responses to biological contaminants, such as molds, dust, and pollen or exposure from off-gassing of chemicals from products used in the building (furniture, wall, and floor coverings, cleaning products, office equipment, etc.). Particulate matter can also be drawn into a building from outside or produced by activities such as printing, copying, or operating equipment. While the results of any indoor air testing suggested by the commenter have not been provided to the City, it is highly unlikely, based on the results of the soil vapor investigation, that the indoor air quality issues can be attributed to soil vapor intrusion into the building. Also, the Bay Area Air Quality Management District (BAAQMD) reports that benzene is present in outdoor air in Cupertino at concentrations that tend to exceed the ESLs for indoor air at commercial buildings.2 Therefore, it would not be possible to differentiate potential small, incremental increases in indoor air benzene levels due to subsurface vapor intrusion when the ambient air concentrations of benzene are very high. As described in the CEQA Guidelines Section 15183 Checklist for the proposed VP1 Apple Office Project, and summarized in the Response 1, the 15183 Checklist was prepared by the City of Cupertino to determine if the proposed project may have a significant effect on the environment. The 15183 Checklist is a streamlined document based off of the Certified EIR for the General Plan that evaluated potential future development including the 2,700,000 square feet of office space in the Heart of the City Special Area and a height limit of 90 feet in the South Vallco Park area at a program level. Impacts were found to be less than significant and less than significant with mitigation measures to ensure that development on sites with known hazardous contamination would be less than significant. General Plan EIR Mitigation Measures HAZ-4a and HAZ-4b are required to be implemented for sites with known contamination and potential residual contamination. As discussed in Chapter 4.7, the project site is not listed as a site with known contamination or potential residual contamination; therefore, the identified mitigation measures in the General Plan EIR do not apply to the proposed project. However, since the certification of the General Plan EIR the City has codified regulations equivalent to the General Plan EIR mitigation measures to reduce impacts related to hazardous materials in CMC Chapter 17.04, Standard Environmental Protection Requirements, but these regulations go further than the General Plan EIR 2 Bay Area Air Quality Management District (BAAQMD), 2014. Summary and Analysis of Cupertino Air Monitoring Results. April 12, 2023 | Page 4 mitigation measures and require remediation for all sites in the city, and not just those sites with known hazardous materials. Therefore, the preparation of Phase I and Phase II ESAs as required pursuant to the CMC the disclosure and mitigation of hazardous materials is required for every project prior project approval by the City and the proposed project has complied with these standards. As shown in the CEQA Guidelines Section 15183 Checklist and in the response to the commenter, the soils, soil vapor, and groundwater samples collected at the project site did not contain elevated concentrations that would warrant further investigation or remediation, the project site is not included on a list of hazardous materials sites complied pursuant to Government Code Section 65962.5, and the site-specific construction Health Risk Assessment showed that the potential impacts to sensitive receptors, including schools within 0.25-miles of the project site, due to the release of hazardous emissions during construction would be less than significant. Comment 3: The 2007 report notes asbestos pipes, tiles, and roof materials. In the CEQA waiver request, they even admit that demolition can easily pollute air/water/soil with asbestos, yet they want to avoid an EIR. If you look at the site under satellite view on a maps program, you can see it's right next to hotels (residential windows) and restaurants with outdoor patios. It seems fair those businesses be given a notice and comment on a formal EIR for the demolition, at least related to that potential asbestos exposure. Response 3: As described in the 15183 Checklist, the asbestos surveys conducted for the site indicated that asbestos containing materials (ACMs) are present in the mastic beneath the vinyl floor tiles in the existing janitor closets and mechanical rooms and the grey/black roofing mastic. EKI advised that these materials need to be managed appropriately in-place and would require abatement in conjunction with building demolition and site grading. As codified in CMC Chapter 17.04, Standard Environmental Protection Requirements, preparation of and compliance with the findings of the Phase I and Phase II ESAs is required prior to the issuance of a demolition permit. Asbestos is abated through mandatory regulatory compliance. This would require a pre-demolition asbestos survey to be conducted by a certified asbestos professional, which involves sampling and laboratory analysis of materials present at the building. There are both federal and state regulations and procedures that must be followed for asbestos removal. The California Contractors State License Board regulates contractors who are qualified to perform asbestos work. The California Department of Industrial Relations’ Division of Occupational Safety and Health (Cal/OSHA) registers all contractors who perform asbestos abatement work and tests and certifies all asbestos consultants. Only registered and licensed asbestos abatement companies are permitted to perform abatement. Workers must wear protective clothing and have respirators. Areas must be cordoned off with signs posted as to the danger of asbestos. Abatement areas must be properly ventilated with maintained negative pressure or protective plastic tenting containing the area to prevent any impacts from asbestos to neighboring properties. Waste materials must be double-bagged and tied in marked color-coded plastic bags and transported to an approved waste materials site for disposal. After abatement, retesting is required to ensure that all asbestos containing material has been removed. These standard procedures would be required for any project (residential or commercial) that contains asbestos and involves renovation or removal. The proposed project would be required to comply with California Code of Regulations Section 1529, Asbestos, and BAAQMD’s Asbestos Demolition and Renovation Program, which will ensure that the adjacent buildings are not impacted by the asbestos removal process. The impacts of asbestos removal in compliance with applicable state regulations on adjacent properties would be less than significant. April 12, 2023 | Page 5 Comment 4: This is probably an offline item for the privacy of the person, but I think it should be addressed. The CEQA waiver was submitted by an Apple EH&S employee who is no longer with Apple. He suddenly left in July 2021, when the US EPA demanded an onsite inspection of my Superfund office in Sunnyvale & found a number of safety concerns related to the contamination on site as well as the way the HVAC was installed (it was put on top of the vents for the toxic gases under the building, so the SSD system was venting the gases up & into the HVAC intake, and then probably into our faces). Apple's currently doing federally mandated testing at that office with US EPA oversight due to my disclosures. (So now you understand why Apple will not be happy to see me on the agenda). The Apple employee who submitted your CEQA waiver request was previously with EKI and then returned to EKI after he left Apple. I'd want to understand if he's involved in the site on behalf of EKI. If he is involved, the conflict of interest is another reason I think there should be a formal EIR. Response 4: The commenter incorrectly states the proposed project is subject to a CEQA waiver. Please see the Response 1 provided in the first comment. The remaining portion of the comment is noted for the record but is not relevant to the analysis provided in the 15183 Checklist and no further response is required. April 12, 2023 | Page 6 This page intentionally left blank.