CC 12-05-23 Item No. 13 Update regarding Vallco's SB 35 projrct approval_Written Communications (2)CC 12-05-2023
Written Communications
Item No. 13
Update regarding
Vallco's SB 35 project
approval
From:Peggy Griffin
To:Pamela Wu; Albert Salvador, P.E.
Cc:City Clerk; Gerald.O"Regan@deh.sccgov.org; Benjamin Fu; Luke Connolly; City Council
Subject:2023-12-05 City Council Mtg-Agenda ITEM13-Vallco SB35 Update QUESTIONS and INFO
Date:Tuesday, December 5, 2023 9:47:11 AM
Attachments:SMP Approval and Path Forward 12.12.2022.pdf
Potential Development Plan Changes Letter 8.22.2023.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
PLEASE INCLUDE THIS EMAIL AND THE 2 ATTACHMENTs TOGETHER AS PART OF WRITTEN
COMMUNICATIONS FOR THE ABOVE CITY COUNCIL MEETING AGENDA ITEM.
Dear City Manager Wu, Special Project Executive Albert Salvador and Staff,ci
NOTE: I have copied SCCDEH Case Manager O’Regan and the Cupertino Community Development
managers Ben Fu and Luke Connolly since more SB-35 projects may be in the works.
Based on your Informational Memo for this agenda item #13 entitled “Update regarding Vallco’s SB
35 project approval”, the city should have received Vallco Property Owner’s (VPO) application to
modify the SB-35 project a second time. Reed Moulds, Managing Director, indicated in his email to
City Manager Wu that VPO would submit their modification application yesterday, Dec. 4, 2023.
As you are all aware, the site clean-up plan (SMP) that was approved by SCCDEH on 12-12-2022 has
conditions of approval based on the project plans and uses. I have attached the SCCDEH clean-up
conditions of approval letter and also a link to it.
On July 21, 2023, Representatives of VPO met with the Santa Clara County DEH Case Manager
Gerald O’Regan to discuss “certain material changes” to the project plans. The SCCDEH notified VPO
and the City of Cupertino via PE Salvador in a letter dated 8-22-2023 that DEH considered the
changes discussed “significant deviations from the development plan” which could
Cause the DEH to rescind approval of the site clean-up plan
Cause delays in the construction schedule
Cause possible deed restrictions be placed on the property along with required long-term
monitoring/inspections if residual contamination is not removed.
The plans discussed on July 21, 2023 may or may not be what has just been submitted. The staff and
DEH will review them.
Although SB-35 projects are ministerial, we appreciate the city attempting to keep the residents
informed regarding these projects. In that light, would you please answer these 2 questions so that
the public can better understand the city’s process.
Q1: How many times can an approved SB-35 project be modified before it is no longer valid?
Q2: When are modifications to an approved SB-35 project considered significant enough
deviations to be a completely new project rather than be accepted as a modification?
What are the guidelines for modifications?
DEH considers what was discussed as “significant deviations from the development plan”.
Sincerely,
Peggy Griffin
Letter from SCCDEH warning that plans discussed are “significant deviations” from approved
plans
LINK TO GeoTracker letter informing the Vallco Property Owner that project modifications may
impact the site cleanup plan
Document entitled “Potential Development Plan Changes Letter 8.22.2023.pdf”
from Santa Clara County Dept of Environmental Health (SCCDEH) Case Manager Gerald O’Regan to
VPO’s Nandy Kumar
https://documents.geotracker.waterboards.ca.gov/regulators/deliverable_documents/2614820182/
Potential%20Development%20Plan%20Changes%20Letter%208.22.2023.pdf
Vallco SB-35 Site Clean up conditions of approval
LINK TO GeoTracker site cleanup plan conditions of approval entitled “SMP Approval and Path
Forward 12.12.2022.pdf”
https://documents.geotracker.waterboards.ca.gov/regulators/deliverable_documents/3407895743/
SMP%20Approval%20and%20Path%20Forward%2012.12.2022.pdf
LINK TO 12-5-2023 City Council Meeting Agenda Item #13 Vallco SB35 Update materials
https://cupertino.legistar.com/LegislationDetail.aspx?ID=6436037&GUID=C06401CA-B1AD-481A-
AE92-8FB8703CD751&G=74359C04-A5F0-4CB2-A97A-0032996BB90E&Options=&Search=
Email from Reed Moulds to Cupertino City Manager Wu
Informational Memo-Update on Vallco SB-35
County of Santa Clara
Department of Environmental Health
Hazardous Materials Compliance Division
Site Mitigation Program
1555 Berger Drive, Suite 300
San Jose, CA 95112-2716
(408)918-3400 FAX (408)280-6479
Board of Supervisors: Cindy Chavez, Mike Wasserman, Otto Lee, Susan Ellenberg, S. Joseph Simitian
County Executive: Jeffrey V. Smith
December 12. 2022 APN: 316-20-120
Vallco Property Owner, LLC
c/o Nandy Kumar (nkumar@shcmllc.com)
2600 El Camino Real, Suite 410
Palo Alto, CA 94304
Subject: Site Cleanup Case Name: Vallco Town Center
10123 North Wolfe Road, Cupertino, CA 95014
Santa Clara County Case No.: 2021-16s
Parcel West of Wolfe Road
Dear Mr. Kumar:
The Department of Environmental Health (DEH) has received the Site Management Plan (SMP) prepared
by WSP and dated November 2022. The SMP includes 10 appendices which consist of development
drawings, analytical data, site specific attenuation factor calculation information, a sampling and analysis
plan, a health and safety plan, a construction management plan, a dust and vapor control plan, and a storm
water pollution and prevention plan.
The DEH approves the SMP.
Site Definition
The Site is defined as the property located at 10123 North Wolfe Road, Cupertino, with the assessor’s parcel
number (APN) noted above. The Site is located on the west side of Wolfe Road only.
Proposed Project
The Site is part of the larger proposed Vallco Town Center project,which will redevelop the former Vallco
Mall located on both sides (i.e., east and west sides) of Wolfe Road. When complete, the proposed Vallco
Town Center project will include approximately 5 million square feet of residential area and 2.5 million
square feet of non-residential retail and office area. The Site will include approximately two-thirds
residential area and one-third non-residential area. The SMP states, the first floor in some of the buildings
shall include residential support space (leasing offices, storage, lobbies, etc.). For risk evaluation purposes,
the DEH considers the proposed residential support space as a commercial/office use.
The proposed Site development is divided into six blocks (Blocks 1 through 6). A single building ranging
from 6 to 22-stories shall be constructed on each block. All blocks shall be underlain by a mechanically
Vallco Town Center, 10123 North Wolfe Road, Cupertino, CA
December 12, 2022
Page 2 of 6
ventilated below-grade parking garage. The proposed buildings proposed for each block, from the ground
floor and up, are described below
Block 1 - The proposed building on Block 1 is 8-stories. The proposed first floor development is
commercial/office space with residential space on all overlying floors.
Block 2 - The proposed building on Block 2 is 21-stories. The proposed first floor development is
commercial/office space with residential space on all overlying floors.
Block 3 - The proposed building on Block 3 is 22-stories. The proposed first floor development is
residential and commercial/office space with residential space on all overlying floors.
Block 4 - The proposed building on Block 4 is 11-stories. The proposed first floor development is
commercial/office space with residential space on all overlying floors.
Block 5 - The proposed building on Block 5 is 11-stories. The proposed first floor development is
commercial/office space with residential space on all overlying floors.
Block 6 - The proposed building on Block 6 is 6-stories. The proposed development for all floors
is office space.
Conditions of Approval
1. This letter does not modify or relieve any additional requirements specified for this project by the City
of Cupertino.
2. DEH approval of the SMP is valid for 1 year from the date of this letter. If site grading and earthwork
activities have not been initiated by December 9, 2023, you are required to notify DEH and may be
required to submit an updated SMP to DEH for approval.
3. DEH approval applies only to the proposed development as described in this Directive Letter and the
SMP. If there are changes to the development plan as described in this Directive Letter and SMP, you
are required to notify the DEH in writing, and you may be required to submit an updated SMP to DEH
for approval.
4. A copy of the SMP must be reviewed by all applicable contractors prior to earthwork activities and
must be kept on site and available at all times throughout the project. The Responsible Party shall ensure
the SMP is reviewed and acknowledged by all applicable contractors prior to earthwork activities.
5. Any soil planned for reuse on site must be analyzed according to requirements specified in the SMP
and compared to Regional Water Quality Control Board (RWQCB) residential ESLs or background
concentrations to verify its suitability for reuse. Laboratory analyses and soil source figures shall be
included in a Completion Report, which is discussed in the Required Submittals section of this Directive
Letter.
6. Uniform Hazardous Waste Manifests shall accompany each load of hazardous waste transported to the
transfer facility and/or disposal facility in accordance with regulatory requirements. Final copies of
each manifest are required to be included in the Completion Report, including for non-hazardous waste
disposed at an appropriate waste disposal facility.
Vallco Town Center, 10123 North Wolfe Road, Cupertino, CA
December 12, 2022
Page 3 of 6
7. Soil planned for import must be analyzed according to requirements listed in the SMP and compared
to RWQCB residential ESLs or background concentrations to verify its suitability for use on site.
Proposed imported soil data shall be submitted to the DEH, and the proposed imported soil shall only
be used on site if the DEH provides written approval. Laboratory analyses, soil source figures and
DEH written approval shall be included in the Completion Report.
8. You shall immediately notify the Environmental Consultant and DEH upon discovering any
unanticipated conditions. Examples of unanticipated conditions include, but are not limited to, the
discovery of a pipeline, underground storage tank, or contamination at levels or in locations not
described in the SMP.
Required Submittals
Prior to Issuance of Building Permits – Before building permits are issued, the following document shall
be submitted to and approved by the DEH.
1. Vapor Intrusion Mitigation Design Report – Section 2.1 of the SMP lists features that shall require
mitigation measures to prevent potential vapor intrusion. Mitigation design details shall be included in
a Vapor Intrusion Mitigation Design Report. This report shall be submitted to and approved by the
DEH before issuance of building permits.
After the DEH approves the report, the proposed designs shall be submitted to the City as part of the
building permit application. Upon approval by the City, you are required to provide documentation of
the City’s approval to the DEH. The approval shall be submitted after issuance of building permits,
but before beginning construction on the garage foundation.
Prior to Beginning Garage Foundation Construction – Before construction of the garage foundation begins,
the following technical documents shall be submitted to and approved by the DEH.
2. Remedial Excavation Completion Report – Section 3.0 of the SMP describes four remedial
excavation areas. Three of the remedial excavations shall remove impacted soil from the Wolfe Road
Area, Sears Area, and Soil Action Areas in order to decrease the concentration of contamination in soil.
The fourth remedial excavation shall remove impacted soil in order to decrease soil vapor
concentrations. This area is referred to as the Soil Vapor Area. All four remedial excavations are
located within the confines of the much larger underground parking garage excavation.
Post-excavation soil samples shall be collected from the bottom and sidewalls of the soil remedial
excavations to confirm remedial goals have been achieved. Post excavation soil vapor samples shall
be collected from the Soil Vapor Area, to evaluate whether the modified soil gas screening levels
(M-SGSLs) have been achieved. Following completion of the four remedial excavations and before
beginning construction of the parking garage foundation, a Remedial Excavation Completion Report
shall be submitted to and approved in writing by the DEH. If remedial goals are not achieved, the DEH
may require an additional workplan to address remaining contamination.
Prior to Building Occupancy – Before the building is occupied, the following documents shall be submitted
to and approved by the DEH.
3. Operation, Maintenance, and Monitoring (OM&M) Plan – An OM&M Plan shall be submitted to
the DEH for review and approval. The OM&M Plan shall include details and a description of
verification monitoring to demonstrate that the engineering measures described in the SMP are meeting
Vallco Town Center, 10123 North Wolfe Road, Cupertino, CA
December 12, 2022
Page 4 of 6
design performance criteria. The OM&M Plan shall include an inspection schedule of all engineering
controls necessary to protect future occupants. At a minimum, the inspections shall include the concrete
foundation, utility runs which enter the building through the parking garage, and the mechanical
ventilation system. The OM&M Plan shall describe prohibited activities which could damage the
engineering controls and shall list required procedures should the engineering controls be damaged. A
copy of the final DEH-approved OM&M Plan shall be referenced in the Deed
Restriction/Environmental Covenant (described below).
The OM&M Plan shall include a minimum of five verification sampling events to evaluate the
operational effectiveness of the engineering controls. For each sampling event, sub-barrier, indoor and
ambient air samples shall be collected. Indoor air samples shall be collected from the parking garage.
All air samples shall be collected concurrently. The five sampling events are generally described below.
Samples shall be analyzed for volatile organic compounds (VOCs). After Sampling Event 5, the DEH
shall determine if additional sampling is required.
a. Sampling Events 1 and 2 – Sampling to occur following building completion and prior to
occupancy. Indoor air samples shall be collected over two 24-hour sampling periods: one with the
HVAC system on and one with the HVAC system off or limited if ventilation cannot safely be
turned off (ex. garage ventilation). The results shall be included in a Pre-Occupancy Verification
Monitoring Report, which must be approved in writing by the DEH prior to building occupancy.
b. Sampling Events 3 and 4 – Sampling to occur 6- and 12-months following building occupancy.
Results shall be included in a Long-Term Verification Monitoring Report (1-Year Event).
c. Sampling Event 5 – Sampling to occur 1-year following Sampling Event 4. Results shall be
included in a Long-Term Verification Monitoring Report (2-Year Event).
4. SMP Completion Report – Upon completion of all preoccupancy tasks described in the SMP, a SMP
Completion Report shall be submitted. The SMP Completion Report shall be submitted to and
approved in writing by the DEH prior to building occupancy. The report shall include confirmation
that the earthwork was completed according to the SMP; include descriptions and justifications for any
activities that varied from the SMP; include details regarding dust control monitoring, include details
of any excavations and confirmation soil sampling; include details of any removal of waste or
contamination not previously identified in the Remedial Excavation Completion Report; include final
waste manifest(s) for disposal of soil and/or groundwater removed during construction not previously
identified in the Remedial Excavation Completion Report; and include documentation of the source(s),
analyses, volumes, and locations of any soil reused on site and any imported clean fill.
5. Deed Restriction/Environmental Covenant – The Deed Restriction/Environmental Covenant will
reference the final DEH-approved OM&M Plan, and the Vapor Intrusion Mitigation Design Report.
The Deed Restriction/Environmental Covenant will include a detailed description of the restrictions
associated with any change in land use and a plan to provide an overview of the legal and administrative
controls and methods for disseminating information to minimize risk during potential future below-
ground construction, site maintenance, potential future property transactions, and financial assurance
mechanisms for long-term OM&M. Upon acceptance by all parties, the Deed
Restriction/Environmental Covenant will be signed by the Responsible Party or current property owner
at the time of recordation, and subsequently recorded at the County of Santa Clara Office of the Clerk-
Recorder. A copy of the final recorded Deed Restriction/Environmental Covenant and document filing
receipt from the County Clerk-Recorder shall be uploaded to GeoTracker prior to building occupancy .
Vallco Town Center, 10123 North Wolfe Road, Cupertino, CA
December 12, 2022
Page 5 of 6
6. Pre-Occupancy Verification Monitoring Report – As described in the OM&M Plan, two pre-
occupancy verification monitoring events (Sampling Events 1 and 2) shall be conducted to evaluate the
effectiveness of the engineering controls. One with the HVAC system on and one with the HVAC
system off or limited if ventilation cannot safely be turned off (ex. garage ventilation). This report shall
include the results of Sampling Events 1 and 2. This report must be approved in writing by DEH prior
to building occupancy.
The SMP Completion Report and Pre-Occupancy Verification Monitoring Report may be submitted
separately or together as one report. Both reports must be approved by the DEH in writing prior to
building occupancy.
After Building Occupancy – After building occupancy, the monitoring reports listed below shall be
submitted to the DEH. The reports shall include the results of any sampling and inspections described in
the OM&M Plan.
7. Long-Term Verification Monitoring Reports – As described in the OM&M Plan, at least three long-
term verification monitoring events (Sampling Events 3, 4, and 5) shall be conducted to evaluate the
long-term effectiveness of the engineering controls. Reports shall be submitted to DEH after the 1-
Year and 2-Year monitoring events. Results of the sampling events shall be compared to screening
criteria listed in the SMP. If indoor air concentrations exceed the listed screening criteria, DEH shall
be immediately notified.
Required Submittals
In summary, please submit the following technical documents to the DEH (Attention: Mr. Gerald O’Regan)
by uploading them to GeoTracker according to the following schedule.
1. Prior to Issuance of Building Permits
a. Vapor Intrusion Mitigation Design Report – Prior to issuance of building permits, but no later than
December 30, 2023
2. Prior to Beginning Garage Foundation Construction
a. Remedial Excavation Completion Report – Prior to starting construction for garage foundation, but
no later than June 30, 2024
b. Confirmation of City Approval of Vapor Intrusion Mitigation Design – Prior to starting
construction for garage foundation
3. Prior to Building Occupancy
a. Operation, Maintenance, and Monitoring (OM&M) Plan – Prior to starting construction for garage
foundation, but no later than June 30, 2025
b. SMP Completion Report – Prior to building occupancy, but no later than December 30, 2025
c. Deed Restriction/Environmental Covenant – Prior to building occupancy, but no later than
December 30, 2025
d. Pre-Occupancy Verification Monitoring Report – Prior to building occupancy, but no later than
December 30, 2025
4. After Building Occupancy
a. Long-Term Verification Monitoring Report (Sampling Events 3 and 4) – Within 12 months
following building occupancy
Vallco Town Center, 10123 North Wolfe Road, Cupertino, CA
December 12, 2022
Page 6 of 6
b. Long-Term Verification Monitoring Report (Sampling Event 5) – Within 24 months following
building occupancy
Reports are required pursuant to our authority under Section 101480 of the California Health and Safety
Code. Each report shall include conclusions and recommendations for the next phases of work required to
protect water resources, human health and safety, and the environment at the site. All required work shall
be performed in a prompt and timely manner. Revisions to the schedule shall be requested in writing at
least two weeks prior to the due date with appropriate justification for the anticipated delays and a proposed
revised schedule.
The California Business and Professions Code (Sections 6735, 7835, and 7835.1) require that work plans
and technical or implementation reports containing geologic or engineering evaluations and/or judgments
must be performed under the direction of an appropriately registered or certified professional.
Perjury Statement
All proposals and reports submitted to this office must be accompanied by a cover letter from the
Responsible Party which states, at a minimum, the following:
"I declare, under penalty of perjury, that the information and/or recommendations
contained in the attached proposal or report is true and correct to the best of my
knowledge."
This letter must be signed by an officer or legally authorized representative of the Responsible Party.
If you have any questions, please contact me at (408) 918-1974 or via email.
Sincerely,
Gerald O’Regan, PG
Environmental Health Geologist
Site Cleanup Program
Gerald.O’Regan@deh.sccgov.org
Cell: (408) 771-1336
cc: Rick Freudenberger, WSP (rick.freudenberger@wsp.com)
File – GeoTracker
Gerald O'Regan
From:Rhoda Fry
To:City Clerk; City Council
Subject:City Council December 5 2023 Agenda #13 Vallco
Date:Tuesday, December 5, 2023 3:08:26 PM
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Dear City Council,
City Council December 5 2023 Agenda #13 Vallco
Please conduct a City Council meeting showing Vallco’s new plans.
Given that the County found the changes to the plans to be substantive, I have to doubt that
they’d be compliant with SB 35.
Sincerely,
Rhoda Fry
County of Santa Clara
Department of Environmental Health
Hazardous Materials Compliance Division
Site Mitigation Program
1555 Berger Drive, Suite 300
San Jose, CA 95112-2716
(408)918-3400 FAX (408)280-6479
Board of Supervisors: Sylvia Arenas, Cindy Chavez, Otto Lee, Susan Ellenberg, S. Joseph Simitian
County Executive: James R. Williams
August 22, 2023 APN: 316-20-120
Vallco Property Owner, LLC
c/o Nandy Kumar (nkumar@shcmllc.com)
2600 El Camino Real, Suite 410
Palo Alto, CA 94304
Subject: Parcel West of Wolfe Road
Site Cleanup Case Name: Vallco Town Center
10123 North Wolfe Road, Cupertino, CA 95014
Santa Clara County Case No.: 2021-16s
Dear Mr. Kumar:
As you know, the Department of Environmental Health (DEH) approved the Site Management Plan (SMP)
dated November 2022 for the Vallco Town Center site described above (“Site”) in a Directive Letter dated
December 12, 2022. DEH’s approval of the SMP is limited to the project description included in the SMP
and, restated in DEH’s Directive Letter.
On July 21, 2023, the Department of Environmental Health (DEH) met with your development team to
discuss certain material changes you may make to the development plans which would necessitate
conforming changes be made to the SMP. Those proposed changes, as we understand them, are as follows:
1. Site development and occupancy in phases. (The approved SMP does not consider phasing the Site
development and occupancy).
2. Construction of six additional buildings at the Site for a total of 12 buildings.
(The approved SMP considers construction of only six buildings, referred to as Blocks 1 through 6.)
3. Elimination of subterranean parking garages beneath some or all of the buildings. (The approved SMP
includes mechanically ventilated parking garages beneath every building).
DEH considers these potential changes to the proposed development plan to be significant deviations from
the development plan considered by DEH when it approved the SMP. Of particular significance is the
removal of the subterranean mechanically ventilated parking garages from some or all of the buildings.
This is because the approved vapor intrusion risk evaluation relied, in part, upon a mechanically ventilated
parking garage to disrupt potential vapor intrusion. The soil excavation necessary to construct the approved
parking garage was also expected to remove contaminated soil.
Vallco Town Center, 10123 North Wolfe Road, Cupertino, CA
August 22, 2023
Page 2 of 2
At this time, DEH has not received written notice confirming that the proposed changes to the development
plan discussed during the July meeting are final and understands that you are still evaluating whether to
implement these proposed changes to the development plan. Please be aware that if you decide to make
changes to the development plan, you are required to notify the DEH in writing of these changes.
Specifically, Condition of Approval #3 in DEH’s Directive Letter states:
DEH approval applies only to the proposed development as described in this Directive Letter and
the SMP. If there are changes to the development plan as described in this Directive Letter and
SMP, you are required to notify the DEH in writing, and you may be required to submit an updated
SMP to DEH for approval.
Once DEH receives and reviews modifications to the development plan, it will determine whether
corresponding modifications to the SMP are necessary. If so, DEH may rescind approval of the SMP and
you may be required to submit an updated SMP to DEH for approval.
Depending on the nature and scope of modifications to the development plan, DEH may also require
additional site assessment, risk evaluations, and mitigation measures. If required, these items would need
to be incorporated into a revised SMP that must be resubmitted to DEH for approval. Therefore, please be
aware that changes to the approved development plan may result in delays to the construction schedule.
In addition, if changes to the approved development plan cause residual contamination to remain on the
Site, DEH may require the recordation of a restrictive covenant on the property as well as long-term
monitoring and inspections to manage the long-term risks.
If you have any questions, please contact me at (408) 918-1974 or via email.
Sincerely,
Gerald O’Regan, PG
Environmental Health Geologist
Site Cleanup Program
Gerald.O’Regan@deh.sccgov.org
Cell: (408) 771-1336
cc: Rick Freudenberger, WSP (rick.freudenberger@wsp.com)
Albert Salvador, City of Cupertino, Special Project Executive (Alberts@Cupertino.org)
File – GeoTracker