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HomeMy WebLinkAbout2011-04-26; City Council; 20532; SEWER LIFT STATION AGUA HEDIONDACITY OF CARLSBAD CITY COUNCIL AND HOUSING AND REDEVELOPMENT COMMISSION 23 AGENDA BILL AB# MTG. DEPT. 20,532 4/26/11 CED CONTINUED PUBLIC HEARING ON THE AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN, AND GRAVITY SEWER REPLACEMENT - POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03 DEPT. DIRECTOR CITY ATTORNEY CITY MANAGER RECOMMENDED ACTION: 1. That the City Council reconvene the public hearing and ADOPT City Council Resolution No. 2011-080 to: 1) remand the application to the Planning Director to complete further analyses of the Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP), and if warranted per CEQA Section 15073.5(a), the Planning Director would recirculate the MND for public comment; and 2) schedule the application and revised MND/MMRP for a new hearing by the Planning Commission for a recommendation to the City Council. 2. That the Housing and Redevelopment Commission reconvene the public hearing and ADOPT Housing and Redevelopment Commission Resolution No. 501 to: 1) remand the application to the Planning Director to complete further analyses of the Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP), and if warranted per CEQA Section 15073.5(a), the Planning Director would recirculate the MND for public comment; and 2) schedule the application and revised MND/MMRP for a new hearing by the Planning Commission for a recommendation to the Housing and Redevelopment Commission. ITEM EXPLANATION: On March 8, 2011, the City Council and Housing and Redevelopment Commission held a public hearing to consider approval of the Agua Hedionda Sewer Lift Station, Force Main, and Gravity Sewer Replacement project and the adoption of the MND and MMRP (AB # 20,478). The City Council and Housing and Redevelopment Commission received the report and recommendations from its staff and heard testimony and arguments from all persons desiring to be heard. The Planning Director requested a continuance of the project to give staff time to respond in writing to a letter to the City Council from Mr. Ronald W. Rouse, special counsel to NRG Energy, Inc., dated March 7, 2011 (Exhibit 3). Council Member Douglas requested staff to return with all correspondence in regard to the Agua Hedionda sewer lift station between City of Carlsbad staff and NRG staff, the matter was then continued for deliberations by the City Council and Housing and Redevelopment Commission to its meeting of Tuesday, April 26, 2011. The public hearing was left open to allow new information and testimony to be received DEPARTMENT CONTACT: Pam Drew 760-602-4644 pam.drew@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED >rnnnn CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES Reference: AB20, 478 nnnn Page 2 between the March 8, 2011 City Council and Housing and Redevelopment Commission meeting and the continued meeting. Staff has completed and mailed the response to comment letter to Mr. Ronald W. Rouse (Exhibit 4) on April 12, 2011. All correspondence between City of Carlsbad staff and NRG staff (Exhibit 5) has also been provided. Furthermore, due to public testimony at the March 8, 2011 City Council and Housing and Redevelopment Commission meeting, staff is requesting additional time for the Planning Director to complete further CEQA analysis. FISCAL IMPACT: The project is funded through the sewer connection fund. There are sufficient funds appropriated into CIP project No 3949 to cover the consultant costs for additional CEQA review. EXHIBITS: 1. City Council Resolution No. 2011-080 2. Housing and Redevelopment Commission Resolution No. 501 3. Comment letter dated March 7, 2011 4. Response to comment letter dated April 12, 2011 5. E-mail correspondence between the City of Carlsbad staff and NRG staff. (On file in the Office of the City Clerk) 1 RESOLUTION NO. 2011-080 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, TO: 1) REMAND THE APPLICATION 3 TO THE PLANNING DIRECTOR TO COMPLETE FURTHER ANALYSES OF THE MITIGATED NEGATIVE DECLARATION 4 (MND) AND MITIGATION MONITORING AND REPORTING PROGRAM (MMRP), AND IF WARRANTED PER CEQA 5 SECTION 15073.5(a), THE PLANNING DIRECTOR WOULD RECIRCULATE THE MND FOR PUBLIC COMMENT; AND 2) 6 SCHEDULE THE APPLICATION AND REVISED MND/MMRP FOR A NEW HEARING BY THE PLANNING COMMISSION FOR 7 A RECOMMENDATION TO THE CITY COUNCIL. CASE NAME: AGUA HEDIONDA SEWER LIFT STATION, 8 FORCE MAIN, AND GRAVITY SEWER REPLACEMENT 9 CASE NO.: PDP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/ HMP 10-03 10 The City Council of the City of Carlsbad, California, does hereby resolve as 11 follows: 12 WHEREAS, the City Council and Housing and Redevelopment Commission held 13 a joint public hearing on March 8, 2011, to consider approval of the project and the adoption of 14 the MND and MMRP; and 15 WHEREAS, the Planning Director requested a continuance of the project to give 1" staff time to respond in writing to a letter to the City Council, dated March 7, 2011, from Mr. '' Ronald W. Rouse, special counsel to NRG Energy, Inc.; and 1 8 WHEREAS, after staff's presentation and public testimony, the City Council and 19 Housing and Redevelopment Commission kept the public hearing open to allow new information 20 and testimony to be received since the March 8, 2011 meeting and continued the matter for 21 deliberations to its joint special meeting of Tuesday, April 26, 2011; and 22 WHEREAS, staff has completed and mailed the response letter, dated April 12, 23 2011, to Mr. Ronald W. Rouse; and 24 WHEREAS, due to public testimony at the March 8, 2011 City Council and Housing and 25 Redevelopment Commission joint special meeting, staff is requesting additional time for the 9'f\ Planning Director to complete further CEQA analyses. 27 NOW THEREFORE, BE IT RESOLVED by the City Council of the City of 28 Carlsbad, California, as follows: ~^? naffl^ 1. That the above recitations are true and correct. 2. The application is: 1) remanded to the Planning Director to complete further analyses of the Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP), and if warranted per CEQA Section 15073.5(a), the Planning Director would recirculate the MND for public comment; and 2) schedule the application and revised MND/MMRP for a new hearing by the Planning Commission for a recommendation to the City Council. "NOTICE TO APPLICANT"6 7 Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any petition or other paper seeking review must be filed in the appropriate court not later than the ninetieth day following the date on which The time within which judicial review of this decision must be sought is governed by Code of Civil Procedure, Section 1094.6, which has been made applicable in the City of Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any petition or other paper seeking review must be filed in the appropriate court not later than the ninetieth day following the date on which this decision becomes final; however, if within ten days after the decision becomes final a9request for the record is filed with a deposit in an amount sufficient to cover the estimated cost or preparation of such record, the time within which such petition may be filed in court is extended to not later than the thirtieth day following the date on which the record is either , personally delivered or mailed to the party, or his attorney of record, if he has one. A written request for the preparation of the record of the proceedings shall be filed with the City Clerk, 12 City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA 92008. 13 '" 14 I" 15 16 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Joint Special Meeting of the City Council and Housing and Redevelopment Commission of the City of Carlsbad on the 26th day of April, 2011, by the following vote to wit: AYES: Council Members Hall, Kulchin, Blackburn, Douglas and Packard. NOES: None. ABSENT: None. MATT ft ALL" Mayor ATTEST: JRRAINE M. WOOD, City Clerk (SEAL) 1 RESOLUTION NO. 501 2 A RESOLUTION OF THE HOUSING AND REDEVELOPMENT COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA, TO: 3 1) REMAND THE APPLICATION TO THE PLANNING DIRECTOR TO COMPLETE FURTHER ANALYSES OF THE 4 MITIGATED NEGATIVE DECLARATION (MND) AND MITIGATION MONITORING AND REPORTING PROGRAM 5 (MMRP), AND IF WARRANTED PER CEQA SECTION 15073.5(a), THE PLANNING DIRECTOR WOULD 6 RECIRCULATE THE MND FOR PUBLIC COMMENT; AND 2) SCHEDULE THE APPLICATION AND REVISED MND/MMRP 7 FOR A NEW HEARING BY THE PLANNING COMMISSION FOR A RECOMMENDATION TO THE HOUSING AND 8 REDEVELOPMENT COMMISISON. CASE NAME: AGUA HEDIONDA SEWER LIFT STATION, 9 FORCE MAIN, AND GRAVITY SEWER REPLACEMENT 10 CASE NO.: PDP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-057 HMP 10-0311 The Housing and Redevelopment Commission of the City of Carlsbad, California, 12 does hereby resolve as follows: 13 WHEREAS, the City Council and Housing and Redevelopment Commission held 14 a joint public hearing on March 8, 2011, to consider approval of the project and the adoption of 15 the MND and MMRP; and 16 WHEREAS, the Planning Director requested a continuance of the project to give 1 7' staff time to respond in writing to a letter to the City Council, dated March 7, 2011, from Mr. 18 Ronald W. Rouse, special counsel to NRG Energy, Inc.; and 1 9 WHEREAS, after staff's presentation and public testimony, the City Council and 20 Housing and Redevelopment Commission kept the public hearing open to allow new information 21 and testimony to be received since the March 8, 2011 meeting and continued the matter for 22 deliberations to its joint special meeting of Tuesday, April 26, 2011; and 23 WHEREAS, staff has completed and mailed the response letter, dated April 12, 24 2011, to Mr. Ronald W. Rouse; and 25 WHEREAS, due to public testimony at the March 8, 2011 City Council and Housing and 9} f\ Redevelopment Commission joint special meeting, staff is requesting additional time for the 27 Planning Director to complete further CEQA analyses. 28 III 1 NOW THEREFORE, BE IT RESOLVED by the Housing and Redevelopment 2 Commission of the City of Carlsbad, California, as follows: 3 1. That the above recitations are true and correct. 2. The application is: 1) remanded to the Planning Director to complete further analyses of the Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting 5 Program (MMRP), and if warranted per CEQA Section 15073.5(a), the Planning Director would recirculate the MND for public comment; and 2) schedule the application and " revised MND/MMRP for a new hearing by the Planning Commission for a recommendation to the Housing and Redevelopment Commission. 0 "NOTICE TO APPLICANT"o The time within which judicial review of this decision must be sought is governed by Code of Civil Procedure, Section 1094.6, which has been made applicable in the City of 1f) Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any petition or other paper seeking review must be filed in the appropriate court not later than the ninetieth day following the date on which , this decision becomes final; however, if within ten days after the decision becomes final a request for the record is filed with a deposit in an amount sufficient to cover the estimated cost ,~ or preparation of such record, the time within which such petition may be filed in court is extended to not later than the thirtieth day following the date on which the record is either personally delivered or mailed to the party, or his attorney of record, if he has one. A written request for the preparation of the record of the proceedings shall be filed with the City Clerk, 14 City of Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, CA 92008. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- MATT HALL, Chairman 1 PASSED, APPROVED AND ADOPTED at a Joint Special Meeting of the 2 Housing and Redevelopment Commission and the City Council of the City of Carlsbad 3 on the 26th day of April, 2011, by the following vote, to wit: 4 5 AYES: Commission Members Hall, Kulchin, Blackburn, Douglas and Packard. 6 NOES: None. 7 ABSENT: None.8 9 10 11 12 „ ATTEST: 13 14 LISA HILDABRAND, Secretary 16 (SEAL) 17 n -^o/ESTABLISHED Vf 18 =£:':?;m 0\ wo 19 20 21 22 23 24 25 26 27 28 EXHIBIT 3 LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 ^ 'o\^o, CA 9E101 Lues, FORWARD, HAMILTON & Scaipps LU> 519.236.1414 vnw.luce.com . RONALD w. ROUSE. PARTNERDIRECT DIAL NUMBER 619.599.2572DIRECT FAX NUMBER 619.235.1338 EMAIL ADDRESS rrouse@lucs.com DAte ' CITY ATTORNEY March 7, 2011 FOR THE INFORMATION OF THE CITY COUNCIL C-C- HAND-DELIVERED Mayor Hall and City Council Members City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Re: City Council/Redevelopment Commission Agenda March 8, 2011 Item (Agenda Bill #20,478) ' - • NRG Energy, Inc. and Cabrillo Power I LLC Objections to Approval of Agua Hedionda Sewer Lift Station and Sewer/Water Pipelines/Facilities Dear Mayor Hall and Council Members/Commissioners: We are special counsel to NRG Energy, Inc. and Cabrillo Power I LLC (collectively "NRG") . and submit the following objections on their behalf to the City's proposed approval of the multiple Agua Hedionda Sewer Lift Station and associated Sewer/Water pipelines and facilities identified in the above referenced Agenda Bill #20,478 (collectively the "Project"). Cabrillo Power I LLC is the owner/operator of the existing Enema Power Station ("EPS") and .NRG Energy, Inc., its parent company, is processing the Carlsbad Energy Center Project ("CECP") Application for Certification before the California Energy Commission ("Energy Commission") on a portion of the. EPS site between the railroad tracks and Interstate 5. The original and ten copies of this letter are being filed directly with the City Clerk; we ask that the original be incorporated into the administrative record .and the copies be timely distributed to all Council Members/Commissioners, City Attorney and City Manager. A courtesy copy has been emailed directly to the City Attorney. A. Overview. The CECP is a modem, environmentally beneficial and efficient natural gas fired combined cycle electrical generating facility that will result in the permanent shut down/replacement of three of the five existing, older EPS generating units realizing reduction of ocean water for "once through" cooling purposes and significant reductions in air pollutants/greenhouse gas emissions compared to existing EPS electrical generation. The CECP is fully consistent with the long SIN Dicso • SAN FiiMCisco • Los AMOELSS • CiRMit. VALLSY/DSL MAS • ORANGE COUNTY • RANCHO SAMT* Fs LUCE FORWAM) ATTORNEYS AT LAW • FOUNDED 1873 Lues, FORWARD, HAMIITOH & Sewn UP Mayor Hall and City Council Members March 7,2011 . • Page 2 standing goal of the City, and NRG, for eventual retirement of the older EPS facilities west of the railroad tracks and replacement with a physically smaller, more efficient and cleaner generating facility between the railroad tracks and Interstate 5. The CECP is fully, consistent with and implements the State Water Resources Control Board's 316(b) Policy to phase out use of once through ocean water cooling for electrical generation in favor of a closed loop cooling alternative. • The City's Project facilities are proposed to be located on the EPS property and encroach into the CECP area, which property is under the exclusive jurisdiction of the Energy Commission as part of the CECP process. .Notwithstanding the obvious CECP benefits, the City has been a zealous opponent/participant throughout the CECP process before the Energy Commission and related governmental agencies, reportedly having spent hi excess of SI. 5 Million1 in public funds to date to oppose the CECP, yet the City completely fails to evaluate its proposed Project's significant, adverse impacts and inconsistencies with the CECP and.existing EPS operations. Further, the City's process to date and purported reliance on a mitigated negative declaration ("MND") is not consistent with the legal requirements of the California Environmental Quality Act ("CEQA"). It appears the City is proposing to proceed with its Project without regard to the CECP and other legitimate property owner rights as a continuation of the City's all out effort to block or otherwise interfere with the CECP. We hereby incorporate by reference the record of the CECP proceedings before the Energy Commission available at http://www.energy.ca.gov/sitingcases/carlsbad/index.html (in particular, the documents at http://wvvw.energv.ca.gov/sitingcases/carlsbad/documents/index.htmn as evidence of the City's familiarity with and active opposition to the CECP project. Bi City Failure to Provide Legally Adequate Notice to Landowner. Under the City's own ordinances and State Planning and Zoning Law, as the landowner, NRG was to receive actual written notice of the Planning Commission hearings and proceedings at least ten (10) days prior to the February 2, 2011 Planning Commission hearings. (See Gov't Code Sec 65091 and Carlsbad Municipal Code Sec. 21.54). Further under CEQA, NRG should have received actual written notice of the City's intention to rely' on a mitigated negative declaration and was to specifically include notification of the applicable comment period and details regarding the public hearings to consider the Project. (See CEQA guidelines Sec. 15072). 1 See attached Agenda Bill #20,216 dated April 27, 2010 stating: "Since 2008, the City of Carlsbad has approved and funded through the City's General Fund $ 1.5 million to pay for costs related to all legal and other related actions to respond to, and/or establish opposition to, the application submitted to the California Energy Commission by NRG for a new power plant..." . n LUCE FORWARD ATTORNEYS AT LAW • FOUND£01873 Lues, FORWARD, HAMIUOS & SCMPPS m» Mayor Hail and City Council Members March 7,2011 PageS NRG believes the required notices were never provided in accordance with applicable law because under well established California case law, due process requires that notice must be "...reasonably calculated to afford affected persons the realistic opportunity to protect;.its interests." (See Hornv. County of Ventura (1979) 24 CaLSd 605). ClearlyTthe City has known of the impacts of its Projects on NRG for years as evidenced by the multi-year Energy Commission CECP process started in September, 2007, the week long Energy Commission Evidentiary Hearings February 1-4, 2010 in Carlsbad, and periodic meetings/discussions (most recently in January, 2010) regarding the design/location of the sewer lift station and single sewer pipeline replacement and potential incompatibility of these facilities with the CECP. Yet, the City failed to meaningfully notify NRG of the proposed MND or the subsequent Planning Commission hearings as required by law. Given these circumstances, it is clear the City has failed to provide the legally required actual written notices to NRG of the entire Project, all the while its staff was engaged in extensive engineering, design and environmental evaluation of a range of facilities it knew would have further significant, adverse impacts on NRG ownership and operation of the EPS and CECP. C. City's Project Design and Engineering Incompatibilities. The City's Project includes the design of a new lagoon utilities bridge to accommodate the future extension of the Coastal Rail Trait along the east side of the railroad tracks through the EPS (see Planning Commission Staff Report at p.2), a location that is well known to the City as incompatible with the CECP and unacceptable to the Energy Commission Staff and NRG. NRG is prepared to accommodate the Coastal Rail Trail in a location that is "mutually acceptable'1 to both the City and NRG, but the proposed Coastal Rail Trail along the sewer support bridge . continuing easterly of the railroad tracks is unacceptable for-reasons that have been fully vetted through the Energy Commission proceedings. Further, the scope of the Project as presented to the Planning Commission far exceeds anything previously discussed with NRG. The Project is not simply a sewer lift station replacement and sewer force main replacement, but includes several additional pipelines and facilities, including: (1) a new "utilities bridge" over the lagoon (Note: Cabrillo Power I LLC owns fee title to the lagoon and its dredging/maintenance is a vital part of the EPS operations); (2) leaving the old 42 inch sewer line in-place south of the-lift station as a "parallel" line to the new force main; (3) new 54 inch sewer line north and south of the lift station; (4) a new pressurized 12 inch recycled water line from Encina Wastewater Treatment Facility ("BWTF") through the.EPS even while the City claims recycled water is not available for CECP; (5) a new 6 inch potable water line through EPS; (6) a possible relocation of SDG&E natural gas line; and (7) substantially widening the existing limited 17.5 foot wide easement to 30 feet wide to accommodate the additional facilities. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 Luce, FORWARD, HAMU.TOH &SCRWS UP Mayor Hall and City Council Members March 7, 2011 Page 4 The following list is intended to illustrate some of the unresolved issues regarding the ultimate design, engineering, construction timing, operational constraints and scope of the Project. Without definitive answers to these questions, the Project's actual environmental and EPS/CECP project impacts cannot be realistically evaluated. The Project, as proposed, lacks adequate details and specifics to support CEQA and Energy Commission CECP compatibility analysis. 1. Contrary to the details previously discussed with NRG, the Project is much more extensive, wider and involves multiple pipelines in the CECP area, representing much greater, impacts to the CECP. 2. Proposed alignment of Coastal Rail Trail easterly of railroad tracks across the CECP area is not acceptable to NRG nor to Energy Commission Staff; the projected alignment is inconsistent with prior discussions/schematics prepared by City to avoid CECP/EPS operational interference. 3. City Project does not accommodate joint use of surface area for CECP heavy haul, surface access and ongoing power plant operations during CECP construction and subsequent operations ofEPS/CECP. 4. City Project footprint conflicts with "construction lay down areas" long planned for CECP, new natural gas transmission line service extension to CECP and the existing and proposed storm water management facilities. 5. City has failed to indicate where its Project electrical power supply will be located and possible interference of Project electrical service with EPS/CECP construction/operation. 6. Project proposes significant new, additional pipelines in an existing "utility congested area", including the existing sewer line, SDG&E gas transmission line, overhead electrical lines, Poseidon desalination product water lines, railroad right of way and SDG&E substation facilities. 7. Project design fails to identify construction lay down areas for lift station/pipelines and access routes, both temporary (during construction) and permanent. • 8. Project construction scheduling is unclear and potentially will interfere with other construction projects, including CECP, Poseidon desalination and -adjacent SDG&E electrical distribution facilities and easements, V *- *• 9. No provision is made for the vacation of the current lift station/single sewer pipeline easement presently vested in Vista Sanitation District and City of Carlsbad. 10. City Project removes existing mature vegetation/trees visual impact mitigation for CECP/EPS. 0 r LUCE FORWARD ATTORNEYS AT UW • FOUNDED 1873 Lues, Fa&w»ro, H&MH.TOK & Scau"?s UP Mayor Hall and City Council Members March 7,2011 Page 5 D. The Proposed MND is Inadequate, Incomplete and Insufficient to Comply with the Requirements of CEQA. 1. EIR Required. The City's reliance on a mitigated negative declaration for CEQA compliance is unsupportable. CEQA requires preparation of an environmental impact report ("EIR") whenever there is a "fair argument" that a project may have a significant unmitigated effect on the environment. (CEQA Guideline, § 15064(f)(l).) As set forth below, there is a "fair argument" that the Project will have significant environmental impacts. Even if that were not the case, the MND. is inadequate in that it fails to fully analyze all of the Project's potentially significant environmental impacts and also relies on mitigation measures that will not avoid the identified significant environmental impacts. Therefore, there is a reasonable probability that implementation of this Project, will have significant immitigable adverse impacts on the environment. An EIR must be' prepared to more fully analyze and disclose the Project's environmental impacts. 2. Project Description/Project Splitting. The Coastal Rail Trail alignment needs to be analyzed as part of the project description in an EIR. CEQA defines a "project" to include the "whole of an action" that may result in a direct or reasonably foreseeable indirect impact on the environment. (CEQA Guidelines, § 15378(a); Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 139 [CEQA review required before agency, as a practical matter, may commit itself to any feature of a project].) The City is careful not to call the Coastal Rail Trail alignment part of the "Project" saying that the Project will only accommodate "a 'future pedestrian trail." However, the City -has made clear though its participation in Energy Commission and related proceedings that it intends to locate the Coastal Rail Trail east of the railroad tracks, even though the Energy Commission Staff determined that such location is Inappropriate and potentially hazardous to the public safety. Nevertheless, the City notes that constructing the Coastal Rail Trail as part of this Project will implement the South Carlsbad Coastal Redevelopment Plan ("SCCRP") goal of "developing new beach and coastal recreational opportunities." (Staff Report, pp. 2, 8-9.) Under the circumstances, it is reasonably foreseeable that with approval of this Project, the City will seek to make this the east side of the tracks the actual location of the rail trail. Therefore, the failure to analyze the Coastal Rail Trail as1 an element of the Project constitutes "project splitting" in violation of CEQA. An EIR needs to be prepared that analyzes, among other things, the environmental impacts of having the public pass upon the trail route (e.g., trampling on nearby sensitive vegetation, littering into the lagoon, safety risks associated with people passing nearby the power plant, etc...). The MND also notes that "overhead electrical distribution facilities will be relocated as needed" as part of the Project. (MND, p. 17.) Yet, there is no analysis of which overhead facilities might be relocated, where or how these facilities might be relocated or the environmental impacts associated with that possible relocation. Lastly, the MND states that the sewer support bridge LUCE FORWARD ATTORNEY'S AT LAW • FOUNDED 1373 Luce, FORWARD, HAMUTON & SCRIMPS LU> Mayor Hall and City Council Members March 1,201-1 Page 6 will not require any work to occur within the 100-year flood elevation. The bridge construction methodology, however, is not described and mere is no other evidence supporting the City's claim that a bridge can be constructed over the lagoon without impacting sensitive lagoon resources. Similarly, the MND does not describe how the existing bridge can be removed without impacting the lagoon environment itself. All of these issues need to be further described and analyzed in an EIR. 3. Environmental Setting—Surrounding Land Uses. The MND does not adequately describe the surrounding land uses, in particular the Project's proximity to the EPS and the potential conflicts between .the construction and operation of the Project, operation of the EPS and proposed construction and operation of the CECP. For example, the MND acknowledges that substantial grading/construction activities will occur on property owned by Cabrillo Power I LLC in connection with the sewer lift station, but there is no discussion of how to coordinate that construction with CECP construction, the risks of having Costal Rail Trail users in close proximity to EPS/CECP facilities, how the Project may impact NRG's use of the Project site as a heavy haul road, the risk of foundation failures created by placing new pipelines adjacent to existing electrical buildings and related construction injury risks. The MND does not fully disclose that substantially expanded easements will be required over EPS/CECP Property. (See also, Section C. above for more details regarding the design/construction incompatibilities.) 4. Aesthetics. MND fails to substantiate how removal of 12 mature eucalyptus trees for the new lift station will have a less than significant impact on views and no mitigation measures are identified to replace the mature trees. With no analysis of this issue, there certainly is a fair argument that removing these trees will have a substantial impact on aesthetics. 5. Air Quality. There are substantial problems with the Project's air quality analysis, including: • Export. The MND discloses that 77,000 cubic yards of soil/gravel will be graded or trenched and 31,000 cubic yards will be exported to an "acceptable offsite location", assumed to be 30 miles away. The MND fails, however, to substantiate these assumptions which are key to the MND's conclusions. A revised CEQA document must be prepared identifying where the export likely is to be taken and the associated traffic/pollution impacts of the export hauling. The MND also fails to-- analyze the export soil's condition and discuss measures that will be implemented to ensure the export will be free of any hazardous materials. In the absence of these details, a fair argument exists that the Project will have significant air quality and perhaps hazardous materials impacts. * Ozone. The San Diego Air Basin is in a Federal and State non-attainment area for the 8-hour ozone (O3) standard,' yet there is no analysis of the City Project's LUCE FORWARD ATTORNEYS AT LAW • FOUND£0 1373 Luce, FORWARD, HAMOJOM & SCRIPCS ui> Mayor Hall and City Council Members March 7,2011 Page 7 ozone contributions and impacts. (MND, pp. 35, 37.) One of the key precursors to the formation of ozone is NOx. As shown on Table 2 of the MND, the City Project will exceed the San Diego County APCD's threshold emission limit of significance for CEQA .analysis of 250 pounds/day of NOx emissions (Project related construction emission of NOx are shown as 254.46 pounds/day and Table 2 of the MND notes this is a significant impact). As the San Diego Air Basin is in Federal and State non-attainment zones for the 8-hour ozone standard, and as NOx is one of the precursors for ozone, the Project will have a significant impact related to ozone generation. Additionally, the Project's emission of NOx and ROG all contribute to ozone formation in an ozone non-attainment area (the U.S. Environmental Protection Agency and .California Air Resources Board define NOx and ROG as ozone precursors). An EIR disclosing and analyzing these ozone related impacts needs to be prepared before the Project can be approved. The MND's analysis of cumulative ozone impacts is also flawed. The MND concludes the Project will not have a significant cumulative impact because the Project has only a "marginal temporary increase in NOx... air quality would be essentially the same whether or not the proposed project is implemented." CEQA does not permit unsubstantiated reliance on such a "de minimus" finding. Instead, a new CEQA document must be prepared that includes an actual and specific analysis of cumulative air quality impacts. Further, the MND fails to provide substantive facts to substantiate its "de minimus" conclusion. Mitigation Measure AQ-1. The MND states incorrectly that the Project's significant emission of NOx can be mitigated with the inclusion of Mitigation Measure AQ-1. This mitigation measure requires observance of manufacturer's specifications for the proper maintenance of construction equipment and reduction in idling time. The MND fails to recognize that compliance with these practices is already assumed in the APCD's determination of emissions for construction activities. However, observance of construction equipment specifications is standard practice and are not capable of reducing the Project's NOx emissions below the APCD's significance threshold resulting in cummulative contribution to the continuing unmitigated exceedance of Federal and State 8-hour ozone standards. Accordingly, implementation of Mitigation Measure AQ-1 cannot be relied upon to reduce the emissions of NOx to less than significance. Sensitive Receptors. The MND analysis fails to acknowledge that the adjacent YMCA aquatic recreation area and Coastal Rail Trail may place sensitive receptors in close proximity to the Project (MND, pp.- 37-38.) In the absence of- LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & Scmi>i>s LI? Mayor Hall and City Council Members March 7,2011 Page 8 this analysis, a fair argument exists that approval of the Project would have an adverse impact on the environment • Odors. Air scrubbers and carbon filters are relied upon to control odors. - - . Maintenance of these features should be required as a mitigation measure and included in the MMRP. (MND, p. 38.) Further, there is no evidence demonstrating that air scrubbers and carbon filters will effectively control noxious odors created by the Project. 6. Cultural Resources. Mitigation CUL-1 states "if significant resources are encountered, appropriate mitigation measures must be developed and implemented." This unlawfully defers development of adequate mitigation measures, which is particularly troubling here because at least two archeologicai sites are known to exist near the Project site. (MND, p. 51.) In the absence of adequate mitigation measures, approval of the Project-does not avoid significant environmental impacts and therefore an MND is inappropriate. 7. Geology. • The MND fails to analyze the potential adverse impacts to the adjacent planned uses, such as the CECP. In particular, there should be an analysis of the depth and strength of the pipeline construction and measures ensuring that construction and operation of pipelines will interfere with planned surface heavy haul and EPS/CECP operations. • The MND fails to analyze the potential adverse impacts to the existing facilities. For example, the Project proposes to construct new pipelines adjacent to existing electrical buildings, which presents a potential risk of foundation failures. The safety'risk of installing pipelines adjacent to and crossing under the existing high voltage wires should also be analyzed. 8. Greenhouse Passes. The threshold of significance relied on in the MND is vague as it does not indicate what level of emissions might result in a direct or indirect significant impact. The analysis also fails to "make a good faith effort, based to the extent possible on scientific and factual data, to describe, calculate or estimate the amount of greenhouse emissions resulting from [the] project" as required by CEQA Guidelines section 150644(a). The City did not even attempt to engage in the qualitative or quantitative analysis required by the CEQA Guidelines. Instead, the MND concludes simply that emissions will be relatively minor and incrementally insignificant. CEQA does not permit the City to conclude that the Project will not have a significant .environmental impact simply because its contribution will be "small" or "de minimus". (Communities for a Better Env't v. California Resources Agency (2002) 103 Cal.App,4th 98, 126.) The MND provides no evidence, let alone substantial evidence, to Ll LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HIUIUON & SCRIPPS \&r Mayor Hall and City Council Members March 7,2011 Page 9 demonstrate that the Project will not have a significant impact on greenhouse gas emissions. As such, it fails to meet the requirements of CEQA. The critically important issue of greenhouse gas emissions needs to be fully analyzed in an EIR. • • 9,-' Hazards. • The MND fails to analyze the impacts resulting from a potential failure/collapse of the new single span bridge carrying sewer and other utility lines over the lagoon or the impacts of potential lift station/pipeline leaks. • The MND fails to analyze the potential adverse impacts to the existing facilities, such as the safety risk of installing pipelines adjacent to and crossing the existing high voltage wires or having pedestrians along the Coastal Rail Trail in close proximity to the EPS/CECP. 10. Hydrology/Water Quality. The MND fails to identify measures that will be implemented to reduce or eliminate the possibility of a sewer spill into the adjacent wetlands or lagoon. Instead, the MND defers development of such measures until the construction phase. (MND, p. 66.) It is reasonably foreseeable that replacement of the existing sewer line could result in a spill which would damage sensitive environmental resources. As such, development of mitigation measures to prevent such a spill, and to prevent damage in the event of a spill, needs to be developed and publicly vetted as part of an EIR for the Project. 11. Recreation. There is no analysis of the physical impacts associated with having people use the coastal rail trail (see above) and bringing public recreation users within the perimeter of the power plant and lagoon. As discussed above, such an analysis is required under CEQA. 12. Cumulative Impacts. The cumulative impact analysis is conclusory and wholly inadequate. The MND identifies a list of cumulative projects and then concludes its analysis by stating: "It would be expected however, that eavironmental impacts associated with these development projects, plus the massive sewer CIP,.could be mitigated to level that would be less than significant by means of mitigation measures similar in content to those identified in this Environmental Initial Study." There is no specific analysis of any cumulative impacts nor evidence in the record that supports this conclusion in the MND. In particular, the MND fails with respect to the following: » Aesthetics: There is no analysis of 1-5 widening on aesthetics. The MND acknowledges that the bridge and lift station will be observable from 1-5, but from LUCE FORWARD ATTORNEYS AT LAW • FQUNBE01873 L'JCE, FORWSRO, HAMtLTOM & SCSIPPS UP Mayor Half and City Council Members March 7, 2011 Page 10 a distance of 1,600 feet away will not significantly contribute to a coastal view obstruction. The MND does not contain any substantive analysis of cumulative impacts on aesthetics from removal of the 12 trees and fails to take into acco.unt the proposed CECP project altogether. • Air Quality. As discussed above, there is no specific cumulative air quality analysis considering cumulative ozone and other pollutant impacts, 1-5 widening, and the CECP project. • Greenhouse Gas Emissions. The MND fails to even attempt a cumulative greenhouse gas emissions analysis because emissions are not analyzed in the relevant general plans. CEQA requires the City to perform a good faith analysis of the cumulative impacts. • Recreation. The MND fails to analyze the cumulative impact associated with other segments of the rail trail. • CECP Power Plant Project. The MND acknowledges that "other [cumulative] impacts could result from the NRG Power Plant expansion project inasmuch as that project has not yet been specifically defined." Indeed, the CECP project has been specifically defined and a comprehensive environmental analysis that complies with CEQA has been performed by the California Energy Commission as required by the Warren-Alquist Act. This environmental analysis is set forth in the Energy Commission Preliminary and Final Staff Assessment which the City has actively and aggressively challenged. ' (See MND, p. 98). Therefore, it is disingenuous and factually inaccurate for the City to say that the NRG Power Plant project has "not been specifically defined." The September, 2007 filing of the ' CECP Application for Certification makes the CECP a "reasonably foreseeable" project and requires the City to .treat the CECP as a reasonably foreseeable project for purposes of analyzing cumulative impacts as part of the CEQA analysis. (See also Section B. above for the City's full awareness of all CECP details as evidenced by the City's involvement in the Energy Commission multi-year certification process.) As detailed above,,the MND fails to comply with CEQA as it does not provide an adequate analysis of the Project's significant environmental impact and does not adequately mitigate the Project's significant environmental impacts. Moreover, an EIR, rather than a MND, must be prepared and certified before the Project can be approved .by the City because there is a fair argument that the Project will have significant adverse environmental impacts. LUCE FORWARD ATTORNSVSATUW • FOUNDED 1373 Uce, FORWARD, KAMHIOT & SCRJWS w Mayor Hall and City Council Members March 7,2011 Page 11 E. Conclusion. Eor all the reasons set forto" above, the City's adoption of the Project is not legally supportable. The MND is inadequate under CEQA, and in fact, a full EIR is required to fairly analyze .the significant environmental impacts of the Project, particularly when a realistic evaluation of adjacent "reasonably foreseeable" projects, including CECP, is included. The proposed City Project is far more extensive than the Sewer Lift Station/Force Main replacement previously discussed. The easement widening and additional pipeline/facilities directly and adversely affect the EPS/CECP. Notwithstanding the multi-year Energy Commission proceedings, the City failed to give meaningful, timely notice of the full scope.of its Project to the landowner most directly impacted. Respectfully, NRG objects to certification of the MND and approval of the Project as presented until the significant outstanding issues are fully addressed and legally resolved. Ronald W. Rouse of LUCE, FORWARD, HAMILTON & SCRIPPS LLP RWR/lb 101454345.4 Pl> CITY OF EXHIBIT4 ^CARLSBAD Planning Division www.carlsbadca.gov April 12, 2011 LUCE FORWARD Attn: Ronald W. Rouse 600 West Broadway, Suite 2600 San Diego, CA92101 RE: RESPONSE TO COMMENTS IN A LETTER DATED MARCH 7, 2011 REGARDING CITY COUNCIL AGENDA BILL NO. 20,470 Dear Mr. Rouse: This response letter was written to address your comments to the Carlsbad City Council in a letter dated March 7, 201 1 . The following are a summary of the substantive points made in your letter and the city's responses. A. Overview Comment: The city scope of the project is much greater than previously discussed with NRG and the city fails to evaluate its proposed Project's significant, adverse impacts and inconsistencies with the Carlsbad Energy Center Project ("CECP") and existing Encina Power Center ("EPS") operations. Response: The city has a complete record of contacts and discussions with NRG representatives regarding the scope of the project. As requested by the City Council at its March 8, 2011 meeting, this record will be attached to the agenda bill for the April 26, 2011 meeting. Numerous meetings and site visits have been held since 2006 between City of Carlsbad staff and NRG staff. Drawings of the proposed project and its limits have been provided to NRG staff. The city received very little in the way of constructive comments on the plans from NRG staff throughout this period. To the extent that the city did receive constructive comments on the plans from NRG staff, modifications to the project were made. Frequent turnover of NRG staff assigned to the project contributed to a general lack of coherent communication and recommendations for substantive solutions from NRG staff. The project description in the Mitigated Negative Declaration (MND) is accurate and sufficient for meaningful environmental impact analysis because it includes a clear and thorough explanation of the project, it includes maps depicting the project's location, it includes a statement of the objectives of the project, a description of the project's technical design characteristics, and the environmental setting, the construction methodology and phasing, and a list of the potential environmental impacts. As explained below, the MND adequately analyzes the project's potential environmental impacts and considers its effects on existing EPS operations. Please be advised however, that in an effort to even further clarify and detail the information, staff will recommend to the City Council at its April 26, 2011 meeting that it direct staff to conduct further analysis in regard to the proposed cumulative impacts including the CECP project and if warranted, to revise and recirculate the MND document per CEQA Guidelines § 15073.5(a). B. City Provided Legally Adequate Notice to Landowner Comment: The City failed to provide legally adequate notice to the landowner of the noticing of the Mitigated Negative Declaration ("MND") and the Planning Commission hearing. 1 635 Faraday Avenue, Carlsbad, CA 92008-7314 T 760-602-4600 F 760-602-8559 ® POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03 - AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12,2011 Page 2 Response: The city complied with CEQA Guidelines § 15072 by providing the notice of intent to adopt the MND to allow the public, responsible agencies, trustee agencies, and the county clerk, sufficient time to review the document prior to its consideration by the city's Planning Commission. The public and agencies were allowed the 30-day review period required under CEQA Guidelines § 15105. The following record provides information on the parties that received a copy of the notice of intent and the 30-day review period for each action. Mitigated Negative Declaration Noticing. The city issued a Notice of Intent to Adopt a MND with a 30-day public review period as follows: • Published in the North County Times on August 17, 2010 (Attached) (August 17, 2010 - September 16, 2010). • Mailed to the San Diego County Clerk (August 16, 2010 - September 21, 2010). • Mailed to the State Clearinghouse (SCH #: 2010081053- August 17, 2010 - September 15, 2010). • Provided a hard copy at the Planning Department counter located at 1635 Faraday Avenue, Carlsbad. • Posted on the city's website (August 17, 2010 - September 16, 2010). Furthermore, the city provided a notification by e-mail to all persons who subscribed to receive a specific notification at the time that an environmental document was available for review. The subscriber could download a copy of the environmental document from a link provided within the e- mail. One subscriber to this service is Tim Hemig, an NRG Energy employee, who has been working with city engineering staff on the proposed sewer lift station project. The city's records show that Mr. Hemig received the e-mail notification on August 13, 2010. Project Noticing. On August 17, 2010 the city posted three, 2-foot by 3-foot, yellow, Notice of Project Application signs with black lettering at three different locations along the 2.35 mile project to inform the public of a pending application for the project and to provide staff contact information (i.e. names, phone numbers, e-mail addresses, etc.). At this date, these three noticing signs are still posted at the following locations: • Posted on a chain-link fence at the western end of Chinquapin Avenue at the northern end of the project. • Posted on a chain-link fence at the entrance to SDG&E's storage yard at the northern end of Avenida Encinas off Cannon Road. • Posted in front of Encina Wastewater Pollution Control Facility (EWPCF) at the southern end of the project on Avenida Encinas. Planning Commission Meeting Noticing. The city provided the Planning Commission public hearing notice pursuant to Carlsbad Municipal Code §21.54 as follows: • Mailed to the San Diego County Clerk of the Board of Supervisors on December 22, 2010. • Published in the North County Times on January 21, 2011 (Attached). • Posted to the city's website. • Posted outside the city council chambers, located at 1200 Carlsbad Village Drive. • Posted outside the city office, located at 1635 Faraday Avenue. • Mailed to owners of property as shown on the latest equalized assessment roll within 600feet, and occupants within 100 feet, of the 2.35 mile long project boundary. Furthermore, the city provided notification by e-mail that is sent out to all persons who subscribed to receive the Planning Commission public hearing agendas. The subscriber could download the Planning Commission agenda from a link provided within the e-mail. Two subscribers to this service POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03 - AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12,2011 Page 3 are Tim Hemig and Keith Richards, both NRG Energy employees. Mr. Richards subsequently discontinued the e-mail service on February 24, 2011 .The city's records show that Mr. Hemig and Mr. Richards received an e-mail notification on January 20, 2011 for the February 2, 2011 Planning Commission meeting. NRG Energy employees George Piantka and Michael Pearson attended the February 2, 2011 Planning Commission meeting and informed Terry Smith, city engineering staff, that NRG did not receive a public notice in the mail for the meeting. Staff immediately conducted research as to why NRG was not notified. The city creates mailing labels for owners within the required 600-foot radius, with the owner name and owner mailing address as provided to the city by SanGIS, the city's consultant, which provides the most recent information from the County Tax Assessor's office. Staff learned that the County Tax Assessor's records identified Cabrillo Power I LLC as the owner of several parcels within the project boundary, however, the parcel information did not contain a mailing address for the company which is why it did not receive notice along with the approximately 750 other property owners who did receive the mailing notice. Staff also learned that the absence of an address is apparently the case for all entities that are exempt from paying County of San Diego property taxes. Also, in a direct response to your oral comments at the City Council hearing on May 8, 2011, the City Council resolved to keep the public hearing open in order to address any new information that may be brought to their attention by NRG Energy between that date and the continued hearing date of April 26, 2011. As explained above, the property owner was provided with legally required notice of the CEQA documents pursuant to CEQA Guideline §15072, and notice of the public hearing in accordance with Carlsbad Municipal Code § 21.54.060. NRG representatives also had actual notice as evidenced by the special e-mailings and their attendance at the Planning Commission hearing. C. Scope of City's Project Design and Engineering Comment: An EIR should be processed for CEQA compliance rather than a Mitigated Negative Declaration ("MND") because the project is greater in scale than that previously discussed with NRG Staff. The project will include a new lagoon utilities bridge to accommodate the future extension of the Coastal Rail Trail ("CRT") along the east side of the railroad tracks, will relocate overhead electrical distribution facilities, recycled and potable water lines, widening the existing easement, and will have much greater impacts to the CECP than discussed in the MND. Response: Pursuant to CEQA Statutes § 21064.5 and CEQA Guidelines § 15064(f)(2), a MND may be prepared when all potentially significant impacts from a project can be mitigated to a level of insignificance as a result of revisions made to the project or agreed to by the applicant before the MND and Initial Study were released to the public. The record shows that this is the case for this project. As a result of the revisions agreed to by the city, the project avoids or mitigates all significant adverse impacts on the environment. As such, in light of the whole record to date, no fair argument exists that the project, as designed, could have a significant effect on the environment. The CRT is not a part of this project. Page 2 of the February 2, 2011, Planning Commission staff report clarifies that, "The proposed sewer support bridge would also provide the lagoon crossing for the Coastal Rail Trail, a separate, future project in this area." However, the proposed project has "independent utility" from the CRT, inasmuch as it does not rely in any way on any aspect of the CRT project. And the CRT is not an integral part, nor will it rely on or change the scope or nature of the proposed sewer project in any way. Neither the staff report nor the MND state that the CRT will be located along the east side of the railroad tracks. Nowhere in the MND, the staff report, nor in staffs presentations (February 2, 2011 at the Planning Commission meeting and March 8, 2011 at POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03 - AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12, 2011 Page 4 the joint City Council and Housing and Redevelopment Commission meeting) has the alignment of the CRT through the Encinas Power Station ("EPS") been mentioned since it is unknown and speculative at this time. Furthermore, the bridge portion of the sewer project has simply been designed in a manner in which it could accommodate the CRT. The CRT could be designed on either the east or west side of the railroad tracks, if and when the project is funded and an alignment determined. However, very preliminary design investigation concludes that the CRT could be more feasible if the trail was located on the east side of the railroad tracks within the sewer pipeline easement. As mentioned however, the alignment has not been determined at this time. Your letter alleges that the scope of the project as presented to the Planning Commission far exceeds anything previously discussed with NRG. However, as stated previously, city engineering staff has been working with NRG personnel since 2006 to site the proposed sewer lift station in a location that would minimize impacts to the power plant property. As requested by NRG staff, the new lift station was sited at the most northerly end of the NRG property. A detailed site plan was developed by city staff and presented to Tim Hemig of NRG in a letter dated September 5, 2008. The site plan has not substantially changed in size since this layout was prepared. Additionally, the city initially requested an additional 20-foot wide easement for the proposed 30-inch diameter sewer force main. As the design of the city's project has progressed, city staff agreed to reduce the size of the additional easement from 20-feet wide to 12.5-feet wide in order to minimize potential impacts to the power plant property. With regard to the overhead electrical lines, the relocation of an existing single line to the present sewer lift station is an insignificant aspect of the project construction and no adverse impacts have been identified relative to this line relocation. Per CEQA Guidelines § 15151, the standard of investigation requires only that "a sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently takes account of environmental consequences" be provided. Further, per CEQA Guidelines § 15151, "An evaluation of the environmental effects of a proposed project need not be exhaustive... This section goes on to state; "The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure." A detailed discussion of the overhead electrical line relocation during construction is not required by CEQA and that the city has made a good faith effort to analyze the significant aspects of the project. Page 4 of your letter lists ten "unresolved issues" regarding the project and its compatibility with the CECP project. The cumulative impact section of the MND (pp. 98-100) does analyze the impact from the proposed project upon the "NRG Power Plant Expansion". This analysis concludes that three environmental issues could occur from the cumulative environmental consequences of the taking of these projects, plus other identified local and CIP projects together, but that these impacts would be expected to be mitigated by mitigation measures in line with those proposed for adoption in this MND if the power plant expansion is ultimately approved. However, in an effort to more thoroughly document the project's cumulative impacts including the CECP project, staff will recommend to the City Council at its April 26, 2011 meeting that it direct staff to conduct further cumulative impacts analysis and if warranted, to revise and recirculate the MND document per CEQA Guidelines § 15073.5(a). D. The Proposed MND is Adequate, Complete and Sufficient to Comply with the Requirements of CEQA D.1. EIR Required Comment: An EIR must be prepared to more fully analyze and disclose the Project's environmental impacts. POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03 - AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12,2011 Page 5 Response: CEQA Guidelines §15369.5 states "Mitigated negative declaration: means a negative declaration prepared for a project when the initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment." The proposed project complies with this characterization. The MND properly discloses, analyzes, and avoids or mitigates all significant environmental effects of the project. D.2. Project Description/Project Splitting Comment: The failure to analyze the Coastal Rail Trail as an element of the Project constitutes "project splitting" in violation of CEQA. Response: As stated previously, the CRT is not a part of this project and the current project has independent utility from the proposed CRT segment. In an effort to accommodate potential future alternatives, the bridge portion of the project has simply been designed in a manner in which it could accommodate the CRT on either the east or west side of the railroad tracks if and when the project is funded and the alignment determined. As a result of the fact that the separate projects do not in any way rely on one another, the MND cannot be interpreted to be guilty of "project splitting". Comment: Wo analysis is provided as to which overhead facilities might be relocated, where or how these facilities might be relocated or the environmental impacts associated with that possible relocation. Response: As stated previously, CEQA Guidelines § 15151 requires only that "a sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive..." In this case, no significant relocation of overhead facilities is anticipated. The single overhead line which must be relocated is a minor, incidental part of the project and a detailed discussion of the overhead electrical line relocation during construction is not required by CEQA. Thus, it is our conclusion that the city has made a good faith effort to analyze the significant aspects of the project. Comment: The bridge construction methodology is not described. No evidence is provided supporting the claim that a bridge can be constructed over the lagoon without impacting sensitive resources. Response: The MND indicates (on page 17) that the bridge will be constructed of "concrete vertical abutment supports and the setting of a weathered steel bridge" which will "completely span the entire channef and that the "construction methodology will not require any work to occur within the 100-year floodplain." This construction methodology will involve the pouring of abutments on each side of the channel and the laying of the horizontal bridge structure between the abutments. Furthermore, the Mitigation Monitoring and Reporting Program (MMRP) for the project includes biological mitigation measures necessary to protect the adjacent open spaces. These mitigation measures include: • BIO-3 - Placement of temporary orange construction fencing. • BIO-4 - On-site biological monitor. • BIO-7 - Training for all contractors and construction personnel. • BIO-8 - Limiting construction activities and disposal sites. • BIO-10 - Installing silt fencing to reduce silt run-off into the lagoon. POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03 - AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12, 2011 Page6 • BIO-12 - Issuance of a water quality certification (Clean Water Act Section 401) and a Streambed Alteration Agreement. With the inclusion of these mitigation measures, the MND concludes that the bridge can be constructed over the lagoon channel without impacting sensitive biological resources. Comment: How can the existing bridge be removed without impacting the lagoon environment? Response: Dismantling and removal of the existing sewer pipe bridge can be performed with crane equipment stationed on the adjacent staging area pads outside of the lagoon channel without any significant impact to the channel. The MND analysis concludes (page 30) that the removal of the existing bridge will be a beneficial impact to the lagoon environment. D.3. Environmental Setting - Surrounding Land Uses Comment: The Project Description does not adequately describe the EPS operations and how the project may affect construction activities of the proposed CECP. Response: The MND Project Description properly describes the proposed Sewer Lift Station, Force Main, and Gravity Sewer replacement project. The environmental analysis further describes the anticipated impacts associated with the project on the environment, including those impacts to the EPS. (See Project Description pages 14 and 17) As stated previously, the MND adequately analyzes the project's potential environmental impacts and considers its avoidance of impacts to existing EPS operations. This avoidance includes placing the lift station in a northernmost corner of the EPS site, limiting the utility lines to a narrow work area, the use of horizontal directional drilling (HDD) to minimize trenching, and other factors which could otherwise contribute to disturbances to the EPS. Notwithstanding the findings of no significant impact (page 80), staff will recommend to the City Council at its April 26, 2011 meeting that it direct staff to conduct further analysis in regard to any impacts of the project on the proposed CECP, and if warranted, to revise and recirculate the MND document per CEQA Guidelines § 15073.5(a). Comment: The Project Description does not disclose the expansion of easements. Response: The MND Project Description (page 4) indicates that "In locations where easements do not already exist, easements will be acquired for the facilities." The existing and proposed easements are clearly shown on the plans for the project which were the subject of the MND analysis and which are described in the MND Project Description. As shown on these plans, a total of 12.5 feet of additional easement width will be necessary to accommodate the proposed project. The 12.5 feet is situated in area that is presently disturbed or paved areas, or used primarily for access roadway within the EPS property. Furthermore, the sewer pipeline will be installed via horizontal directional drilling (HDD) method that allows the installation of the pipeline without open trench disturbance to the surface of the ground. D.4. Aesthetics Comment: The removal of 12 eucalyptus trees would require visual impact mitigation. Response: The MND both discusses and provides post-development photosimulations which describe and demonstrate views toward the project from three separate viewpoints. These photosimulations show the project with all 12 eucalyptus trees removed, and the proposed project constructed. All 12 trees will be removed from the west side of the property only. No significant visual impact is identified. Further, the project plan package includes a Landscape Concept Plan. POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03 - AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12,2011 Page? This Landscape Concept Plan proposes replacement of the removed non-native eucalyptus trees with twelve (12) drought tolerant screening trees, such as the Cajeput Trees (Melaleuca quinquenervia), New Zealand Christmas Trees (Meterosideros excelsus), and Strawberry Trees (Arbutus unedo). These trees grow to a height of 35, 30 and 25 feet, respectively, are evergreens and will thus adequately replace the eucalyptus screening effect on the site. These trees are part of the proposed project design plans, and thus it was unnecessary to include their planting as a separate mitigation measure for aesthetics. Furthermore, mitigation for the removal of the eucalyptus trees, which are listed as Habitat Group F - Eucalyptus Woodlands in the city's Habitat Management Plan ("HMP"), dated November 2004, is mitigated at a 0.1:1 ratio per the HMP. Please see mitigation measure BIO-1 in the MND on page 45. D.5. Air Quality Soil Export Comment: The "acceptable offsite location" for deposit of exported soil is not defined and the traffic/pollution impacts associated with the export hauling is not quantified in the Air Quality section of the MND. The soil's condition and potential of hazardous materials impacts are not identified. Response: The pollutants associated with this soil hauling are included in the analysis (page 37) in Table 2 under the category "Haul/Dump Trucks". As indicated in the MND, this analysis assumes an approximate 30-mile round trip for transport and deposit of the export soil. Thus, the deposit (or stockpile) location is assumed to be within a 15 mile radius of the lift station site. This radius would include all of Carlsbad, and much of the cities of Oceanside, San Marcos and Encinitas. Subsequently, we have identified four or five potential stockpile sites that are within half of this assumed distance from the site. This reduced distance would reduce the projected air quality impacts (and thus the greenhouse gas impacts) below that analyzed in the MND, and since the construction emissions exceedence from Nox is primarily due to truck hauling of export soil and gravel (pages 36-37), it is anticipated that the resulting actual emissions level would most likely fall below the threshold level of significance. Thus, the air quality analysis provided in the MND is a worst-case scenario for air quality impacts related to the export of soil. Nonetheless, a stated previously, in an effort to more thoroughly document the project's cumulative impacts including the quantification of cumulative GHG impacts from this and a number of surrounding speculative projects, staff will recommend to the City Council at its April 26, 2011 meeting that it direct staff to conduct further cumulative impacts analysis and if warranted, to revise and re-circulate the MND document per CEQA Guidelines § 15073.5(a). Further, the CEQA analysis included a Limited Environmental Due Diligence Review (hazardous materials records report) by Brown & Caldwell (2007) which addressed inventory of the state and federal lists of hazardous materials sites in the area, and an Environmental Soil and Groundwater Sampling, by Ninyo and Moore (2009) for the project. The conclusions of these reports are included on pages 60-61 of the MND. An adequate analysis of the soil's condition and hazards has been provided. Ozone Comment: CEQA does not permit de minimus finding conclusion of Nox in the Qir Quality Analysis. Response: The MND does not find that the Nox emissions in excesss of the APCD Threshold are de minimus. Rather, it finds (page 37) that the excess is a significant impact which must be mitigated through the inclusion of a mitigation measure articulated on page 37 as AQ-1. POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03-AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12,2011 PaqeS The CEQA "substantial evidence" test requires only a determination as to whether the evidence is such that "a reasonable mind might accept it as adequate to support a conclusion" (Bowman v. City of Petaluma, 185 Cal. App. 1986. Substantial evidence includes "reasonable assumptions predicated upon facts, and expert opinion supported by facts" (CEQA Statutes §21080(e)). The Nox impacts exceed the APCD standards threshold by only 1%, (page 37) and are temporary (during construction only) impacts. Although this mitigation measure does not constitute a considerable change in design or construction methodology for the project, the measure is adequate to mitigate the minor, temporary excess of emissions beyond the threshold of significance. Mitigation Measure AQ-1 Comment: Mitigation Measure AQ-1 is already assumed in the APCD's significance thresholds and therefore identifying as a mitigation measure cannot reduce to less than significant. Response: The city disagrees that the requirement of AQ-1 is already assumed in the APCD's significance thresholds. These thresholds and the formulas for pollutant projections are indicated by the APCD as being based upon the historical averaging of monitoring data from hundreds of construction operations. During construction operations diesel equipment routinely is left idling for long periods of time, unnecessarily distributing pollutants into the air. Mitigation Measure AQ-1 prohibits this practice and will thus incrementally decrease the air quality impacts which are projected to result from the construction operation to below a level of significance. Sensitive Receptors Comment: The YMCA aquatic recreation area and Coastal Rail Trail are not identified as sensitive receptors. Response: Sensitive receptors are defined by the APCD (APCD Guidelines for Submission of Health Risk Assessments. 2006) as; "schools (grades Kindergarten through 12), day-care centers, nursing homes, retirement homes, convalescent centers, health clinics, and hospitals." This has been further clarified for staff by San Diego APCD as locations of gatherings of population who are particularly susceptible to health effects due to exposure to air contaminants, also including; long- term health care facilities, rehabilitation centers, convalescent centers, and retirement homes. Aquatic recreation centers and public trails are not included on this list. Therefore the MND determination that these uses are not sensitive receptors is valid. Odors Comment: Air scrubbers and carbon filters are relied upon to control odors. Maintenance of these features should be required as a mitigation measure and included in the MMRP. Also there is no evidence demonstrating that these filters will effectively control noxious odors. Response: Installation, monitoring and maintenance of air scrubbers and carbon filters are identified as a part of the proposed project in the Project Description (page 14) and described again in the environmental analysis (page 38). As such, including an additional mitigation measure requiring these features would be redundant. Further, CEQA does not require an analysis of the specific effectiveness of each piece of equipment used to minimize environmental impacts of a project. As stated previously, CEQA Guidelines § 15151 requires only that "a sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive..." Furthermore, this section also states, "The POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03-AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12,2011 Page 9 courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure." The design plans for the proposed lift station analyzed in the MND provide for air scrubbers and carbon absorbers to control odor. Proper operations and maintenance of the station will result in effective odor control. More specifically, the Project Description in the MND states on page 38, that, "odor control treatment at the lift station will include, but not be limited to; air scrubbers and carbon absorbers. These features remove odors and volatile organic compounds from the sewage transport process. Odor control performance will be constantly monitored and maintained by the Carlsbad maintenance crews to ensure the system is operating properly." CEQA requires that the lead agency identify impacts from a project that could result in substantial damage to the physical environment. It is not necessary to document and analyze every minute detail of the project or its construction or maintenance operations. In the case of odor impacts, no adopted threshold of significance exists. The City has used the independent judgment of experts who are familiar with the project area and our local circumstances to assess whether the project, as designed with odor control, could have the potential to cause substantial environmental harm. The evaluation concluded that the revisions made to the project, including the odor control features, as agreed to by the applicant before the MND was released to the public, reduced the impacts to a level of less than significant. Furthermore, the odor scrubber apparatus for this lift station must be issued a permit from the APCD prior to construction. This permit will require a demonstration of effectiveness of the equipment to the satisfaction of the APCD. City of Carlsbad maintenance crews monitor daily every sewer lift station of greater than 1 mgd capacity within the city. Crews provide city management with regular reports on the ongoing status and effectiveness of the odor control compounds associated with the routine frequent monitoring of these stations. In this way the city ensures the effectiveness of these protective features. As previously mentioned, a detailed discussion of the incidental overhead electrical line relocation during construction is not required by CEQA and the city has made a good faith effort to analyze the significant aspects of the project. Again, as indicated above, CEQA Guidelines § 15151 requires only that "a sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive..." D.6. Cultural Resources Comment: Mitigation measure CUL-1 defers mitigation and thus is not allowed through an MND. Response: Mary Robbins-Wade, M.A. (RPA), a professional archaeologist with Affinis, prepared the Archaeological Resources Survey (May 2009) information for the CEQA document. Ms. Robbins-Wade states in her report (page S-1 - Management Summary) that, "The Agua Hedionda Sewer and Lift Station APE was surveyed for cultural resources in April 2009 by an Affinis archaeologist and a Native American monitor from Saving Sacred Sites. No evidence was found of CA-SDI-10,478, which was recorded adjacent to the north end of the project APE. No evidence of CA-SDI-210 was noted in the immediate area of the APE. Marine shell was found in the mapped area of CA-SDI-6751; however, all the soil in this area appeared to be dredge spoils and other fill. No cultural material was observed in these soils. No other cultural material was found within the APE." This information was also included in the MND on page 51. The analysis provided in the MND is consistent with the level of analysis requirements of CEQA Statutes §21083.2. Mitigation Measures CUL-1 and CUL-2, which require an archaeologist and a Native American monitor on site during all trenching activities, will adequately mitigate for the potential impacts to cultural resources. PDF 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03 - AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12,2011 Page 10 D.7. Geology Comment: A geotechnical analysis of potential adverse soils impacts to the future CECP should be provided in the CEQA document. Response: The installation of utility piping lines such as those proposed will not result in soil settlement, spread or subsidence in the area. Trenches and horizontal directional drilling ("HDD") will be designed and constructed by professional personnel, in accordance with OSHA regulations. A Soils Report (Geotechnical Report, Ninyo & Moore, August 23, 2009) has been prepared which is included in the Technical Appendices of the MND and referenced on page 54 of the MND. The report concludes that "due to the depth of the proposed pipelines, settlements are not anticipated to impact surface improvements and underground utilities." Comment: The MND doesn't analyze potential impacts to existing electrical buildings and high voltage wires. Response: CEQA requires only that the MND address effects that have a substantial, or potentially substantial adverse change in the environment (CEQA Statutes §21068 and CEQA Guidelines §15064). As explained in the response above, the proposed project is primarily underground, situated in an area in which no buildings exist or are planned. We conclude that the project will have no substantial adverse environmental impact on existing electrical buildings and high voltage wires. D.8. Greenhouse Gases Comment: No quantitative or qualitative analysis of greenhouse gases is provided. Response: In 2010, the California Natural Resources Agency adopted amendments to the CEQA Guidelines which required CEQA documents to add a project's greenhouse gas ("GHG") impacts to the list of the environmental impacts that must be analyzed under CEQA. They did not however dictate a precise analytic methodology or significance threshold for determining the significance of a project's GHG emission impacts. The amended guidelines generally reserve discretion to the lead agency in determining the method of reaching their significance determination. The MND's GHG analysis recognizes (page 57) that no specific significance threshold exists for greenhouse gases that would apply to the subject project and that the project is not inconsistent with plans, policies or regulations adopted to implement any statewide, regional, or local plan for the reduction or mitigation of GHG emissions. The project further (including the Air Quality Mitigation Measures) complies with the ARB air quality standards. Therefore, the analysis provides sufficient qualitative and quantitative analysis and complies with CEQA Guidelines §15064(h)(3) and §15064.4. Nonetheless, as mentioned, in an abundance of caution , staff will be recommending to the City Council that it direct staff to conduct additional analysis of cumulative impacts associated with the project .including the CECP project, and if warranted, to revise and recirculate the MND document per CEQA Guidelines § 15073.5(a). D.9. Hazards Comment: The MND fails to analyze impacts resulting from sewer spill from collapse of the bridge or from potential lift station/pipeline leaks. Response: CEQA Statute §21159 requires one to analyze impacts resulting from "reasonably foreseeable" environmental impacts. Collapse of the bridge would be a highly improbable accident, and thus would not fall into the category of "reasonably foreseeable". The bridge will be constructed to current bridge design standards adopted by the State of California. POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03 - AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12,2011 Page 11 In an effort to mitigate the potential for sewer spill during construction, Mitigation Measure BIO-11 (page 46) has been included in the MND. This mitigation measure requires the preparation of a Spill Containment Plan and an Emergency Frac-out Plan (for Horizontal Directional Drilling tunneling construction), respectively. Also, as discussed in the Project Description (page 15) the lift station design incorporates extensive equipment and electrical redundancy and upstream storage capacity as a precautionary fail-safe for ensuring that the unlikely event of equipment failure does not result in sewage spills. The hazards analysis of the fail-safe design protections from sewer spill is addressed in detail on page 59 of the MND. With the inclusion of the biological mitigation measure and the equipment and electrical redundancy and storage capacity, the potential for sewer spill impacts to the surrounding area from lift station or pipeline leaks is mitigated to a level of insignificance. Comment: The MND fails to analyze impacts to the existing facilities such as allowing pedestrians along the Coastal Rail Trail next to the CECP. Response: As previously mentioned, the CRT is not proposed as part of this project which has independent utility from the proposed CRT segment. Furthermore, the alignment of the CRT has not been determined. The proposed sewer bridge location and design has been determined by the needs for the sewer pipe. This bridge can accommodate the CRT on either the east or west side of the railroad tracks when and if the project is funded and the alignment determined. Nonetheless, as indicated previously, staff will recommend to the City Council that it direct staff to conduct further analysis in regard to the proposed CECP and if warranted, to revise and recirculate the MND document per CEQA Guidelines § 15073.5(a). D.10. Hydrology/Water Quality Comment: No measures are included which would reduce or eliminate the possibility of a sewer spill. The mitigation measures requiring an action plan in the case of spill or upset should be identified in the CEQA document and not deferred to the construction phase. Response: The MND includes Mitigation Measure BIO-11, which requires the applicant to prepare a final Spill Contingency Plan that outlines actions to be taken in the event that an accidental discharge of construction fluids occurs. Also, as mentioned above, the lift station design incorporates extensive equipment and electrical redundancy and upstream storage capacity as a fail-safe for ensuring that equipment failures do not result in sewage spills. In addition, the project will comply with the city's Sanitary Sewer Management Plan, which was adopted by City Council Resolution No. 2009-192 to ensure that discharges from the sanitary sewer system do not occur. The mitigation measure, project design, and plan compliance demonstrate the city has responsibly addressed the possibility of a sewer spill and has not deferred the mitigation until a future time. CEQA places the burden on the party challenging a mitigation measure to show that it is inadequate. No evidence has been provided that the required spill containment plans will not reduce the adverse impacts of the project to a level of insignificance. D.11. Recreation Comment: No analysis of impacts associated with bringing recreation (Coastal Rail Trail) into the power plant and lagoon area is provided. Response: As stated previously, the CRT is not proposed as part of this project. The alignment of the CRT has not been determined. The proposed sewer bridge location and design has been POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03-AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12,2011 Page 12 determined by the needs for the sewer pipe and can accommodate the CRT on either the east or west side of the railroad tracks when and if the project is funded and the alignment determined. D.12. Cumulative Impacts Aesthetics Comment: The MND Cumulative Impacts analysis fails to take into account the widening of 1-5; or the visual impact to the CECP from the removal of 12 trees. Response: The City's analysis concludes that the proposed project is located a minimum of 850 feet from the potential widened southbound lanes, too far for any impacts from or to I-5 freeway motorists to be significant., The removal of the 12 trees and the mitigation thereof has been previously addressed in this letter. The trees to be removed are located in the area of the proposed lift station, on the opposite side of the property from I-5. In an abundance of caution however, the staff is recommending to the City Council that it direct staff to more thoroughly address cumulative impacts of the proposed project, in conjunction with other future projects in the area, including the I-5 widening. Air Quality Comment: Cumulative impacts on air quality are lacking. Response: The MND analyzes the cumulative impacts of a number of reasonably foreseeable pending or planned projects which have a nominal relationship to the proposed project, and which, taken together, could possibly result in a collectively-significant change in the environment. The MND concludes (page 99) that these cumulative projects would result in potentially significant impacts with respect to Air Quality, Biological Resources and Cultural Resources. The MND further concludes that, assuming mitigation measures for the cumulative projects similar to those adopted in the subject MND that the projects in combination with the proposed project would not result in significant environmental impacts. The level of analysis provided is consistent with the requirements of CEQA Guidelines §15130. Greenhouse Gas Emissions Comment: Cumulative greenhouse gas emissions impacts on air quality are not quantified. Response: Based on the information available, and on the substance of the 2010 Amendments to the CEQA Guidelines, cumulative GHG impacts on air quality are analyzed in the MND (pages 56- 57 and 99-100). Note also that the air quality analysis concludes that the sewer line and lift station will result in significant air quality impacts during the construction operation only. And the proposed project will not result in direct greenhouse emissions because it does not directly produce gases or emissions (page 60). As indicated in the MND, GHG impacts are primarily a result of electricity use from the EPS. Ateo, as indicated in CEQA Guidelines § 15064(h)(4); "The mere existence of significant cumulative impacts caused by other projects alone shall not constitute substantial evidence that the proposed project's incremental effects are cumulatively considerable." As stated previously, in an effort to more thoroughly document the project's cumulative impacts including the quantification of cumulative GHG impacts from this and a number of surrounding speculative projects, staff will recommend to the City Council at its April 26, 2011 meeting that it direct staff to conduct further cumulative impacts analysis and if warranted, to revise and re-circulate the MND document per CEQA Guidelines § 15073.5(a). POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03-AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT April 12,2011 Page 13 f?ecreaf/on Comment: Cumulative impacts from other segments of the Rail Trail are not addressed. Response: The proposed project will have no impact from any other segments of the CRT inasmuch as those segments are not in the vicinity of the proposed project, are not related to the proposed project, which has independent utility. Nonetheless, staff is recommending that the City Council direct staff to conduct additional analysis of cumulative impacts of the project and the CRT, as indicated previously. CECP Power Plant Project Comment: The MND must address the CECP when analyzing cumulative impacts. Response: The cumulative impact section of the MND (pp. 98-100) does analyze the impact from the proposed project upon the "NRG Power Plant Expansion". This analysis concludes that three environmental issues could occur, but that these impacts would be expected to be mitigated by mitigation measures proposed for adoption in the MND. Furthermore, as stated previously, staff will recommend to the City Council at its April 26, 2011 meeting that it direct staff to conduct further analysis in regard to the proposed CECP and if warranted, to revise and recirculate the MND document per CEQA Guidelines § 15073.5(a). E. Conclusion As a result of the responses above, the city concludes that the MND is legally adequate and consistent with CEQA, and the proposed project design is consistent with that provided to and discussed with NRG staff without their objection. Furthermore, the project will not have any significant effect on the environment since all potentially significant impacts resulting from the project have been mitigated to a level of insignificance. Nonetheless, staff will recommend to the City Council at its April 26, 2011 meeting that it direct staff to conduct further analysis in regard to the proposed CECP and if warranted to revise and recirculate the MND document per CEQA Guidelines § 15073.5(a). Assuming this action is confirmed by the City Council, we are hopeful that your client will find that the revised CEQA document responds to your comments and answers its questions sufficiently. The City will send a copy of the revised document to your client as soon as it is completed. Sincerely, DON NEU City Planner Attachments Ron Ball, City Attorney Jane Mobaldi, Assistant City Attorney Ronald Kemp, Deputy City Attorney Bill Plummer, Deputy City Engineer Terry Smith, Senior Civil Engineer David de Cordova, Principal Planner Pam Drew, Associate Planner PROOF OF PUBLICATION (2010 & 2011 C.C.P.) STATE OF CALIFORNIA County of San Diego I am a citizen of the United States and a resident of the County aforesaid: I am over the age of eighteen years and not a party to or interested in the above- entitled matter. I am the principal clerk of the printer of This space is foTthe County Clerk's Filing Stamp Proof of Publication of North County Times Formerly known as the Blade-Citizen and The Times- Advocate and which newspapers have been adjudicated newspapers of general circulation by the Superior Court of the County of San Diego, State of California, for the City of Oceanside and the City of Escondido, Court Decree number 171349, for the County of San Diego, that the notice of which the annexed is a printed copy (set in type not smaller than nonpariel), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit: August 17th, 2010 I certify (or declare) under penalty of perjury that the foregoing is true and correct. CITY OF CARLSBAD Dated at Escondido, California This 17th, Community & hconomk; Development Department Jane Alfefibuse NORTH COUNTY TIMES Legal Advertising ; OF INTENT TO ADOPT yi'.^!1,.: ,," ,;.• TED NEGATIVE DECLARATION . - , ; -MCASW:NAME:-AGUA;HEDldNDA'SEWER LIFT-STATIQN'ANP- ,.•I'l-'.f.vis1)-- v:-:,^ GRAVITY AND FORCE MAINS •; v •':; ••• v~ '•• X^'-f -'CASE NO:S . POP 00-02(C) / SP i44(L)/;'RP:l6-26;/CDPiO-17/-.:!-.-';'.\ ;. ..-.:,• n.;v:v::HDP 10-05/;SUP,10-02/HMP 10-03 -..•-" PROJECT LOCATION: - Between the coastline to the'west and the 1-5 freeway .-to the east: -The prbjecl'exlends Irom the north side ol Agua Hedionda Lagoon. • approximately 500 feet south of Chinquapin Avenue^and'east pj the .railroad tracks, within the railroad r-o-w, The '.pjoject continues south, on the east .side of and parallel with-lhe-railroad tracks and continues through ihe; intersections.;of Cannon Road ahd Palomar'Airport Road .within/the public' right-of-way on Ayenida Ehcinas: The project ends at the existinq'Encina Water Pollution Con- trol Facility.->•• •>'••:i.-ff':. ,j•.':• ;v:jv':•.,.'.;.':f '• •:-;•f,-i-;-t.-~-.;;;:> j;.;"-.-s!v.f./.-.-V;|--J.1.'..iv.'.-;.! i. PROJECT rjESCRIPTIONr.The proposed project involves the!installation of a • sewer, trunk line (3,960-foot long force main and,a8,420-toot long gravity sewer,.; line); a sewer; lift statiori (5p;millibngall6ns/day'capacity,) and a sewer support bridge (140-foot weathered steel span) improvements', on .the Vista/Carlsbad Sewer Interceptor System^segments/VCir.iVClS.-VCl^'yCI^, and.VC15:' The proposed project'eirtends.a'lotal distance, of 'approximately; 12,380 linear, 'feet (2.35.miles) in'alibrth-sputh direction located in coastal .Carlsbad from the Agua HediondasLagpon'.to the" Encina Water Pollution.Control Facility. The project also proposes a number of associated improvernents in the'.same work area; including installation of'a recycled water-line, .replacement-of a potable •; water .line, demolition of, ah existing sewer lift station and concrete overflow,-•' basing demolition of theiwood trestje for the .existing.sewer line and the .option of relocating a section 'of ;?h existing high'pressure .gas transmission ,line from. its .existing trestle bridge (and removal of the bridge) to'the heW-sewer'bridge:'':. 'PROPOSED DETERMINATION: The City of Carlsbad has conducted an eh-! virpnmental review, of the above describedI project'pursuant yto the'Guidelines for Irhplementation-'of the California Environmental Quality ;Act (CEQA) and they Environmental Protectiph.prdinarice of ^he City of Carlsbad: As a result of said • 'review; the 'initial study (ElA 'Part 2),identified potentially significant effects on; the environment,'byt (1) r'evisiqns in the project plans'or proposals made by, or'.: agreed to by, the applicant before the proposed negative declaration and initial, study are released for public' review .wpuld''avo,idi the effects ;or. mitigate the; effects' to'a point where clearly no signific'anteffe'ct oh the.environment woOldj: occur, and (2) there is. no substantial isyidence, in light of :.the whole record be- fore the CityVJhat the projecti"as revised": may have a'-significant effect on the; environmenCTherefore, a Mitigated Negative Declaration will be.recommend- ed foi;,adoption.byjthe .City of Carlsbad,C.ity.,.Council and .the City of Carisbad Housingand Redeyelpp'rnent-Commissibn.^i.S^.Vr:.';';>., •..''.•. ' > .;. • :' > A copy ol the.'initial study "(ElA Part 2) documenting reasons to'support the.proposed Mitigated.,Negatiye Declaration'is', on file in the Planning. Division,1 1635 Faraday Avenue,1 Carlsbad, 'California 92008. Comments from the public .are invited:'Pursuant to/Section j15204 of.the. CEQA Guidelines, in reviewing., Mitigated Negativfepeclaratidns^ persons and public agencies .should focus'on: Ihe proposed finding that the project.will not have: a^signifjcant pffect.on the'1 environment.'.If personsiand public agencies believe that.the project may have a significant effect;<they should: (1) identify the specific effect;, (2) explain why they be.lieve ithb effect wciu|d !occur; an'dv(3) .explain why they believe the effectwould be significant. Please submit comments in writing to the Planning Divi- . sion within 30 days of ihe date of .this notice.'.' ''' • '• .•':. " '., ' i. The proposed.'prpject and Mitigated Negative Declaration are subject to review , ahd approval/adoption by'the City 61 Carlsbad .Planning Commission and City.: Council. Additional public notices,will belissued when those public hearings: 'are scheduled'.,.li.you have any,questions, plea'se call-Parti .Drew in,;the Plan-: ning Division at(760):6p2-4644.;:-^;?r:.' .:•.;/;": ;.:-.'•..'i;..'"'\- . . ,- PUBLIC REViEW.PERlOD August 17, 2010-SeptemberJ6, 2010 ;••' PUBLISH DATE August 17,,2010 net J267670 : , : ': ' . . . PROOF OF PUBLICATION (2010 & 2011 C.C.P.) This space is fdrche County Clerk's Filing Stamp STATE OF CALIFORNIA County of San Diego I am a citizen of the United States and a resident of the County aforesaid: I arn over the age of eighteen years and not a party to or interested in the above- entitled matter. I am the principal clerk of the printer of North County Times Formerly known as the Blade-Citizen and The Times- Advocate and which newspapers have been adjudicated newspapers of general circulation by the Superior Court of the County of San Diego, State of California, for the City of Oceanside and the City of Escondido, Court Decree number 171349, for the County of San Diego, that the notice of which the annexed is a printed copy (set in type not smaller than nonpariel), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit: January 21st, 2011 I certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated at Escondido, California On this 21st, day ofJaiiuary^Oll Jane Allshouse NORTH COUNTY TIMES Legal Advertising PLANNING COMMISSION PUBLIC HEARING %£& NOTICE IS HEREBY GIVEN to you, because your interest may be ^ar- affected, that the Planning Commission of the City of Carlsbad will hold a public hearing at the Council Chambers, 1200 Carlsbad Village Drive, Carls- bad, California, at 6:00 p.m. on Wednesday; February 2, 2011, to consider the following: . ; ..-.•• POP 00-02(CVSP 144(L)/RP 10-26/CDP 10-17/HDP 10-05/SUP 10-02/HMP 10-03 - AGUA HEDIONDA SEWER LIFT STATION. FORCE MAIN AND GRAVITY SEWER REPLACEMENT - Request for: 1) adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program; 2) a recommendation of approval for a Precise Development Plan Amendment, Specific Plan Amendment, Redevelopment Permit, and 3) approval of a Coast- al Development Permit, Hillside Development Permit, Special Use Permit (Floodplain), and Habitat Management Plan Permit'. ", The requested actions are for: 1) an amendment to the Precise Development Plan for the Encina Power Stati'on (EPS) and the proposed 50 million gallon per day (mgd) capacity Agua Hedionda Sewer Lift Station and associated improve- ments (SLS) proposed at the EPS; 2) an amendment to the Encina SpecificPlan to incorporate the proposed SLS; 3) a Redevelopment Permit for the SLS and associated piping within the boundaries of the South Carlsbad Coastal Redevelopment Area' and 4) a Coastal Development Permit, Hillside1 Devel- opment Permit, Special Use Permit (Floodplain), and Habitat Management Plan Permit. .The total sewer project consists of a new 3,960-foot long force main (sewer 'line) and an 8,420-foot long gravity sewer line, a 50 mgd capacity SLS, asso: elated utility'relocations (natural gas transmission and electrical overhead relocations) and a pipe-support bridge spanning 140-feet across the Agua He- dionda Lagoon channel. The proposed project extends a total distance of approximately 12,380 linear feet (2.35 miles) in a north-south direction from near Chinquapin Avenue, south of Tamarack Avenue, .to the Encina Waste- water Pollution Control Facility (EWPCF) on Avenida Encinas, south of Palomar Airport Road. -.••',••' The project will be constructed in three phases within the.City's Coastal Zone. The locations and phases are as follows: Phase 1 - Cannon fload to the EW- PCF within the public right-of-way on Avenida Encinas (sewer and gravity force main and 12 inch recycled water line);'Phase 2 - south of Chinquapin Avenue to the south-side of the Agua Hedionda^ Lagoon within .San Diego Northern Railroad (SDNR) right-of-way (gravity sewer, including the pipe support bridge, 12 inch recycled water line arid 6 inch potable water-line); and Phase 3 - south- ern edge of the lagoon to Cannon Road within SDNR, NRG, SDG&E,'and West Development properties and within the city's public right-of-way oh Avenida Encinas (SLS, sewer,force main, and 12 inch recycled water line). The pro- posed project is located within Local Facilities Management Zones 1, 3, and22- . .. i'"i\: \ : r; .; • , The project has: potentially significant impacts in the areas of air quality, bio- logical .resources,.cultural resources, geology/soils, hazards/hazardous materials, land use, transportation/circulation, and mandatory: findings of...significance. To reduce these potentially significant impacts to a less than sig-nificant level, mitigation measures contained in the project's MMRP, are required. The City Planner issued a Notice of Intent to adopt a Mitigated Neg- ative Declaration. This project is not located.within the appealable area of the California CoastalCommission. If you challenge these projects in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this noticeor in written correspondence delivered to the City of Carlsbad at or prior to the public hearing.' ' : Copies of the environmental documents are available at the Planning Division at 1635 Faraday Avenue during regular business hours from 7:30 am to 5:30pm Monday through Thursday and 8:00 am to 5:00 pm Friday. Those persons wishing to speak on these proposals are cordially invited to attend the public hearing. Copies of the staff reports will be available online at htlp://carlsbad.granicus.com/ViewPublisher.php?view id=6 on or after the Fri- day prior to the hearing date. If you have any questions, please call thePlanning Division at, 760-602-4600: PUBLISH: January 21, 2011 net 2281295 CITY OF CARLSBAD PLANNING DIVISION (Jf^ CITY OF 'CARLSBAD Memorandum March 28, 2011 To: Mayor and City Council From: City Manager Re: Requested Information - Agua Hedionda Sewer Lift Station (AB 20,478) As requested at the March 2, 2011 City Council Meeting, correspondence between the City and NRG Energy relating to the Agua Hedionda Sewer Lift Station has been provided by staff. The correspondence has been compiled into a binder that resides in Andrea Dyke's office for your review. Please review the information and let staff know if there are any items that you would like copied. Please let me know if you have any questions about the information. Cc: Lorraine Wood, City Clerk Ron Ball, City Attorney John Coates, Assistant City Manager Cynthia Haas, Deputy City Manager LH/src City Hall 1200 Carlsbad Village Drive Carlsbad, CA 92008 1 760-434-2820 760-720-9461 fax I www.carlsbadca.gov PROOF OF PUBLICATION (2010 & 2011 C.C.P.) This space is for the County Clerk's Filing Stamp STATE OF CALIFORNIA County of San Diego I am a citizen of the United States and a resident of the County aforesaid: I am over the age of eighteen years and not a party to or interested in the above- entitled matter. I am the principal clerk of the printer of North County Times Formerly known as the Blade-Citizen and The Times- Advocate and which newspapers have been adjudicated newspapers of general circulation by the Superior Court of the County of San Diego, State of California, for the City of Oceanside and the City of Escondido, Court Decree number 171349, for the County of San Diego, that the notice of which the annexed is a printed copy (set in type not smaller than nonpariel), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit: Proof of Publication of February 26tn, 2011 I certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated at Escondido, California On this 28th, day of February, 2011 IN F NOTICE IS HEREBY GIVEN to you, bec*u«« your Interest may be affected, that the City Council and Housing and, Redevelopment Com- mission of the City of Carlsbad will hold a joint special meeting at the CouncilChambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6:00 p.m. on Tuesday, March; 8, 2011, to consider adopting a Mitigated Negative Declara- tion and Mitigation Monitoring and Reporting Program; approving a PreciseDevelopment Plan Amendment, Specific Plan Amendment, Redevelopment Permit,'Hillside Development Permit, and Habitat Management Plan Permit on •y .generally located south of Chinquapin Avenue to the Encirta Water inGpntrol Facility, located within easeme(rts on public and private prop- erty and wkhin the right-of-way of Avenkla Encinas in Local Facilities Manage- ment Zones 1,3 and 22 and more particularly described as: Approximately 500-feet south of Chinquapin Avenue, immediately east of the Burlington Northern Santa Fe (BNSF) railroad tracks, within the railroad right- of-way, south across Agua Hedionda Lagoon to the Encina Power Station (identified as Assessor's Parcel Number 210-010-09). Associated underground piping and the pipe support bridge are proposed in this area; and A portion of the Encina Power Station, located north of Cannon Road and westof Interstate 5 at 4600 Carlsbad Boulevard (identified as Assessor's Parcel Numbers 210-010-26 & 210-010-41). The sewer lift station and associated piping are proposed on the grounds of the Power Station; and A portion of SDQ&E's property, located north of Cannon Road and south and east of the Encina Power Station (identified as Assessor's Parcel Number 210- 010-42). Associated underground piping is proposed in this area; and Avenida Encinas, from just north of Cannon Road (identified as Assessor's Parcel Number 210-011-05) and south to the Encinas Wastewater Pollution Control Facility (south of Palomar Airport Road). Associated underground pip- ing is proposed in this area Whereas, on February 2,2011 the City of Carlsbad Planning Commission vot- * ed 6-0 to: recommend adoption of a Mitigated Negative Declaration andMitigation Monitoring and Reporting Program; recommend approval of a Pre- cise Development Plan Amendment, Specific Plan Amendment, Redevelop- ment Permit, Hillside Development Permit, and Habitat Management Plan Permit; and approve a Coastal Development Permit arid Special Use Permit(Floodplain}. Those persons wishing to speak on this proposal are cordially invited to attend the public hearing. Copies of the agenda bill will be available on and afterFriday, March 4,2011. rf you have any questions, please contact Pam Drew in the Planning Division at (760) 602-4644 or oani}drewecarlsbadca.aov. If you challenge the Mitigated Negative Declaration and Mitigation Monitoringand Reporting Program, Precise Development Plan Amendment, Specific Plan Amendment, Redevelopment Permit, Hillside Development Permit and/or Hab- itat Management Plan Permit in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this noticeor in written correspondence delivered to the City of Carlsbad, Attn City Clerk's Office, 1200 Carlsbad Village Drive, Carlsbad, CA 92008, at or pnor to the public hearing. CASE FILE: POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03 CASE NAME:AGUA HEDIONDASEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWERREPLACEMENT PUBLISH:February 26, 2011CITY OF CARLSBAD CITY COUNCILnet 2284419 Jane Allshouse NORTH COUNTY TIMES Legal Advertising NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN to you, because your interest may be affected, that the City Council and Housing and Redevelopment Commission of the City of Carlsbad will hold a joint special meeting at the Council Chambers, 1200 Carlsbad Village Drive, Carlsbad, California, at 6:00 p.m. on Tuesday, March, 8, 2011, to consider adopting a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program; approving a Precise Development Plan Amendment, Specific Plan Amendment, Redevelopment Permit, Hillside Development Permit, and Habitat Management Plan Permit on property generally located south of Chinquapin Avenue to the Encina Water Pollution Control Facility, located within easements on public and private property and within the right-of-way of Avenida Encinas in Local Facilities Management Zones 1, 3 and 22 and more particularly described as: Approximately 500-feet south of Chinquapin Avenue, immediately east of the Burlington Northern Santa Fe (BNSF) railroad tracks, within the railroad right-of-way, south across Agua Hedionda Lagoon to the Encina Power Station (identified as Assessor's Parcel Number 210-010-09). Associated underground piping and the pipe support bridge are proposed in this area; and A portion of the Encina Power Station, located north of Cannon Road and west of Interstate 5 at 4600 Carlsbad Boulevard (identified as Assessor's Parcel Numbers 210-010-26 & 210-010-41). The sewer lift station and associated piping are proposed on the grounds of the Power Station; and A portion of SDG&E's property, located north of Cannon Road and south and east of the Encina Power Station (identified as Assessor's Parcel Number 210-010-42). Associated underground piping is proposed in this area; and Avenida Encinas, from just north of Cannon Road (identified as Assessor's Parcel Number 210-011-05) and south to the Encinas Wastewater Pollution Control Facility (south of Palomar Airport Road). Associated underground piping is proposed in this area Whereas, on February 2, 2011 the City of Carlsbad Planning Commission voted 6-0 to: recommend adoption of a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program; recommend approval of a Precise Development Plan Amendment, Specific Plan Amendment, Redevelopment Permit, Hillside Development Permit, and Habitat Management Plan Permit; and approve a Coastal Development Permit and Special Use Permit (Floodplain). Those persons wishing to speak on this proposal are cordially invited to attend the public hearing. Copies of the agenda bill will be available on and after Friday, March 4, 2011. If you have any questions, please contact Pam Drew in the Planning Division at (760) 602-4644 or pam.drew@carlsbadca.gov. If you challenge the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program, Precise Development Plan Amendment, Specific Plan Amendment, Redevelopment Permit, Hillside Development Permit and/or Habitat Management Plan Permit in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City of Carlsbad, Attn: City Clerk's Office, 1200 Carlsbad Village Drive, Carlsbad, CA 92008, at or prior to the public hearing. CASE FILE: POP 00-02(C)/SP 144(L)/RP 10-26/HDP 10-05/HMP 10-03 CASE NAME: AGUA HEDIONDA SEWER LIFT STATION, FORCE MAIN AND GRAVITY SEWER REPLACEMENT PUBLISH: February 26, 2011 CITY OF CARLSBAD/CITY COUNCIL NOT TO SCALE SITEMAP Agua Hedionda Sewer Lift Station, Force Main and Gravity Sewer Replacement Project POP 00-02(C) / SP 144(L) / RP 10-26 HDP 10-05/HMP 10-03 MOODY PAUL&SYBIL 1501 OSTLER CT NORTH VANCOVER BC CANADA V7G2P1 CHERNICHEN DONALD J&NINA L 53MCKENZIELAKEPTSE CALGARY AB CANADA T2P3N9 TRUAX HARRY M&SALLY A C/0 A+ TEACHING MATERIALS 39865 ALTA MURRIETA DR MURRIETACA 92563 BENCHMARK PACIFIC POINSETTIA L P C/0 BENCHMARK PACIFIC 550LAGUNADR#B CARLSBAD CA 92008 COGNAC CARLSBAD PACIFIC CTR L L C C/0 BRANDYWINE REALTY TRUST 705 PALOMAR AIRPORT RD #320 CARLSBAD CA 92011 SHARP FAMILY LTD PTNSHP C/0 CHRYSLER RLTY 1000 CHRYSLER DR AUBURN HILLS Ml 48326 THE COPLEY PRESS INC C/0 DIANE JORDAN 350CAMINODELAREINA SAN DIEGO CA 92108 SNYDER LEASING C/0 IN-N-OUT BURGERS 13502 E VIRGINIA AVE 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SCHOOL OF PUBLIC ADMIN AND URBAN STUDIES SAN DIEGO STATE UNIVERSITY SAN DIEGO CA 92182-4505 CALIF DEPT OF FISH & GAME 4949VIEWRIDGEAV SAN DIEGO CA 92123 REGIONAL WATER QUALITY STE 100 9174 SKY PARK CT SAN DIEGO CA 92123-4340 SD COUNTY PLANNING STEB 5201 RUFFIN RD SAN DIEGO CA 92123 LAFCO 1600 PACIFIC HWY SAN DIEGO CA 92101 AIR POLLUTION CONTROL DISTRICT 10124 OLD GROVE RD SAN DIEGO CA 92131 SANDAG STE 800 401 B STREET SAN DIEGO CA 92101 U.S. FISH & WILDLIFE 601 CHIDDEN VALLEY RD CARLSBAD CA 92011 CA COASTAL COMMISSION ATTN TONI ROSS STE103 7575 METROPOLITAN DR SAN DIEGO CA 92108-4402 AIRPORT LAND USE COMMISSION SAN DIEGO COUNTY AIRPORT AUTHORITY PO BOX 82776 SAN DIEGO CA 92138-2776 CARLSBAD CHAMBER OF COMMERCE 5934 PRIESTLEY DR CARLSBAD CA 92008 CITY OF CARLSBAD PUBLIC WORKS/ENGINEERING DEPT- PROJECT ENGINEER CITY OF CARLSBAD PROJECT PLANNER STEVE MACIEJ - BIASD STE 110 9201 SPECTRUM CENTER BLVD SAN DIEGO CA 92123-1407 LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP RONALD W. ROUSE, PARTNER DIRECT DIAL NUMBER 619.699.2572 DIRECT FAX NUMBER 619.235.1338 EMAIL ADDRESS rrouse(5)luce.com April 25, 2011 27740-1 HAND DELIVERED Mayor Hall and City Council Members City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, Ca 92008 Re: City Council/Redevelopment Commission Agenda April 26, 2011 Item #23 (Agenda Bill #20,532) NRG Energy, Inc. and Cabrillo Power I LLC Objections to Approval of Agua Hedionda Sewer Lift Station and Sewer/Water Pipelines/Facilities Dear Mayor Hall and City Council Members/Commissioners: This letter is submitted in connection with the above referenced Council/Redevelopment Commission hearing and in response to the MND comment response letter dated April 12, 2011 by Planning Director Don Neu regarding the above-referenced item. We are special counsel to NRG Energy, Inc. and Cabrillo Power I LLC (collectively "NRG") and submit the following objections on their behalf to the City's proposed approval of the multiple Agua Hedionda Sewer Lift Station and associated Sewer/Water pipelines and facilities identified in the above referenced Agenda Bill #20,532 (collectively the "Project"). Cabrillo Power I LLC is the owner/operator of the existing Encina Power Station ("EPS") and NRG Energy, Inc., its parent company, is processing the Carlsbad Energy Center Project ("CECP") Application for Certification before the California Energy Commission ("Energy Commission") on a portion of the EPS site between the railroad tracks and Interstate 5. The original and ten copies of this letter are being filed directly with the City Clerk; we ask that the original be incorporated into the administrative record and the copies be timely distributed to all Council Members/Commissioners, City Attorney and City Manager. A courtesy copy has been emailed directly to the City Attorney. A. Reply to City Staff Letter dated April 12. 2011 The City's timely reply to our MND comment letter is greatly appreciated. We also support Staffs recommendation that further environmental analysis of cumulative impacts, particularly as they relate to the CECP, be conducted before certification of an appropriate CEQA document SAN DIEGO SAN FRANCISCO Los ANGELES CARMEL VALLEY/DEL MAR ORANGE COUNTY RANCHO SANTA FE LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 2 and approval of the Project. We look forward to reviewing a revised and recirculated CEQA document (as outlined in our letter of March 7, 2011 and as reiterated in Section C below, the appropriate CEQA document for this project is an EIR) addressing that additional analysis as well as other deficiencies noted herein. In the meantime, please consider the following comments, addressed in the same order they are raised in the City Staff response letter. B. Legally Adequate Notice. NRG continues to believe that it did not receive legally adequate notice of the Planning Commission hearing on the Project or of the intent to prepare a MND. The City has admitted that no notice was mailed to NRG and that no notice was posted on NRG property. Based on past discussions and the record of communications discussed below in Section E., the City knew that NRG had unresolved concerns about the Project. Under these circumstances, applicable law requires the City should do more than rely on a generic email subscription notice or publication notice to provide NRG with an opportunity to be heard. C. Scope of Project & Design and Engineering Incompatibilities. An EIR should be prepared for the Project because a fair argument exists that the Project will have significant environmental impacts, as stated below and in our comment letter dated March 7, 2011. Moreover, the Coastal Rail Trail should be analyzed as part of the Project because the Project proposes to "accommodate" the Coastal Rail Trail, making it reasonably foreseeable that the Coastal Rail Trail ultimately will be located on the Project site. Under these circumstances, the City cannot rely on the "independent utility" test to avoid analyzing environmental impacts associated with the trail. The "independent utility" test, a NEPA concept, is rarely used in CEQA analyses and has not been applied under facts similar to those presented here. For example, in Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712, EIR certification for a segment of the SR-56 was upheld even though it did not fully analyze other geographically separate segments of the SR-56 because each segment had "independent utility." The Project, on the other hand, proposes to accommodate a portion of the Coastal Rail Trail on the Project site, not on some other property as was the case in Del Mar Terrace Conservancy. Appropriate mitigation for the trail use should be analyzed now, not as part of some future project. (Tuolumne County Citizens for Responsible Growth, Inc., v. City ofSonora (2007) 155 Cal.App.4th 1214, 1230 [environmental analysis cannot be deferred simply because two activities theoretically can proceed independently].) With regard to the scope of the Project, NRG acknowledges that it has discussed a sewer lift station and sewer line replacement with the City in the past. When those discussions ended, prior to the February, 2010 Energy Commission hearings, the City and NRG had not resolved potential design and construction conflicts between the proposed sewer lift station and the CECP. It appears that rather than trying to resolve outstanding issues, the City tried to "sneak" approval of the Project past NRG by not providing adequate notice of the Project proceedings. In any LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 3 event, the Project now proposed is much greater than what was previously discussed, as detailed in our March 7, 2011 letter. Instead of a single lift station and replacement sewer line, the scope of the Project now includes additional sewer lines and allowances for future potable and reclaimed water lines. Relocation of the overhead electrical line contemplated as part of this Project requires CEQA analysis. The electrical line is located in and around very sensitive ecological habitat. Therefore, it is reasonable to believe that construction associated with removing and relocating the electrical line could adversely impact the environment. The City says that no such analysis is required because relocation of the overhead line is "an insignificant aspect of the project construction and no adverse impacts have been identified relative to this line relocation." The MND does not provide any basis for that conclusion. As such, a fair argument exists that relocation of the electrical line could have a significant impact on the environment. Finally, we concur with the City Staff response that the Project's analysis of cumulative impacts is inadequate in that it fails to adequately analyze the CECP, among other things. We look forward to reviewing the City's revised cumulative impact analysis in the future. D. The Proposed MND is Inadequate. 1. EIR is Required. For the reasons stated in our March 7, 2011 letter, NRG continues to believe that an EIR should be prepared for the Project. The draft MND does not adequately analyze all environmental impacts, such as cumulative impacts, and also fails to recognize that there is a fair argument that the Project will have significant adverse environmental impacts. 2. Project Description/Project Splitting. As discussed above, the Coastal Rail Trail, at least as it relates to the lagoon bridge, should be studied as part of the Project because approval of the Project will render it likely that the Coastal Rail Trail ultimately will bring pedestrians over the lagoon. Also as discussed above, the CEQA analysis needs to include a discussion of the potential environmental impacts associated with relocating the overhead electrical line. Simply stating that there will be no adverse environmental impacts without providing specific analysis to support this conclusion does not satisfy CEQA's requirements for public disclosure and informed decision making. With regard to the lagoon bridge removal and replacement, the analysis still fails to substantiate claims that a bridge can be constructed over the lagoon without impacting the lagoon. Also, there is no discussion explaining how the existing bridge can be removed without impacting the lagoon and surrounding sensitive resources. 3. Environmental Setting. We fully support City Staffs recommendation to conduct further analysis of the Project's potentially adverse impacts on CECP construction and operation LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 4 activities as that issue is not adequately analyzed in the MND. We look forward to reviewing and commenting on a revised CEQA document containing that analysis. 4. Aesthetics. We appreciate that the 12 eucalyptus trees to be removed will be replaced per a Landscape Concept Plan as those trees provide important screening for NRG facilities. The requirement for replacement of the trees should be imposed as a mitigation measure to ensure that they will actually be planted and will not be removed in the future. Including all "mitigation" details in the MMRP document is standard practice in the City of Carlsbad and should be followed here. Including replacement trees in a Landscape Concept Plan is not the same thing as making the trees part of the Project's required mitigation. Also, will mature trees be installed immediately after Project construction is complete? If not, adverse aesthetic impacts will exist until the replacement trees reach a height and screening function similar to the existing eucalyptus trees. 5. Air Quality. We look forward to reviewing a revised GHG analysis that includes quantification of cumulative greenhouse gas emissions. The City's response letter has failed to address our arguments demonstrating that the Project will have significant direct ozone-related impacts altogether. We hope this will be addressed in a revised CEQA document. Additionally, we disagree with the City's assessment of the Project's cumulative ozone impacts. The Project will exceed APCD standards for NOx, thus it will have a significant environmental impact in this regard. The City relies on an ineffective mitigation measure to reduce this impact (as explained in our March 7 letter) and does not even assume that the inadequate mitigation measure will be sufficient to reduce the Project's cumulative NOx impact to a less than significant level. Under these circumstances, the Project cannot be approved without an EIR and statement of overriding considerations. Lastly, with respect to odors, NRG continues to believe that the requirement for odor control facilities should be included as a mitigation measure to ensure that they will be continually maintained in the future. Given that the Project concerns a sewer lift station, NRG is right to be concerned about odor control and the City Council should not disregard it as a "minute detail" as suggested in the City Staff response letter. 6. Cultural Resources. A mitigation measure calling for the development of "appropriate mitigation measures" if cultural resources are encountered does not satisfy the requirements of CEQA. This is classic, unlawful deferral of mitigation, notwithstanding the City's statements to the contrary. 7. Geology. We look forward to an expanded analysis addressing geological issues as they related to construction and operation of the CECP in the revised CEQA document. 8. Greenhouse Gasses. For the reasons stated in our March 7 letter, the Project's greenhouse gas emissions analysis is inadequate. The City Staffs response simply restating the LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 5 faulty analysis set forth in the MND, does not amount to substantial evidence demonstrating that the Project will not have a significant environmental impact. We look forward to a more detailed and reasoned greenhouse gas emissions analysis in the forthcoming revised CEQA document. As stated in our March 7 letter, the revised CEQA analysis should take the form of an EIR. 9. Hazards. The MND's analysis of the potential for bridge failure failed to take into account the fact that pedestrians would cross over the bridge as part of the Coastal Rail Trail. The risk of vandalism and accidents arising from public use should be addressed. In addition, there is still no analysis of the impact the Project may have on existing facilities, such as safety risks associated with installing pipelines adjacent to and crossing the existing high voltage wires. 10. Hydrology/Water Quality. NRG continues to believe that development of a spill contingency plan should be performed as part of the CEQA analysis rather than being deferred until the construction phase. The potential for a sewer spill is real as evidenced by the recent Buena Vista lagoon event in the same sewer pipeline. Further, it should apply to both permanent operations and construction phases. The public should have an opportunity to review the plan and provide comments on its adequacy as part of the CEQA process. Additionally, mitigation measures should be implemented to ensure that the City performs regular inspections and other necessary maintenance of the pipeline. With respect to the potable water pipeline, an analysis of impacts to existing and new potable water pipelines should also be included (for example, analyzing the potential for contamination of public drinking water sources.) 11. Recreation. As discussed above, the Coastal Rail Trail, to the extent it is accommodated by this Project, should be analyzed as part of this Project. As such, an analysis of impacts associated with bringing public access trail users in close proximity to the power plant and lagoon should be included in the Project's CEQA document. 12. Cumulative Impacts. The City Staff response letter did not resolve any of the concerns raised in our March 7 letter concerning cumulative impacts. We hope that our concerns will be addressed in the City's forthcoming revised cumulative impact analysis. E. Record of City/NRG Communications At the prior Council hearing on March 8, 2011, Council Member Douglas requested the record of communications between City Staff and NRG be included in the record. Mr. Ball's office was kind enough to provide a copy of the communications late Friday, as they were not included in Agenda Bill #20,532 (simply reported as on file with the City Clerk). While we have not had adequate time to digest the hundreds of pages in detail, the following additional points are clear from the record of communications. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 6 1. No communication to NRG during preparation of the MNP and Planning Commission hearings. Between January, 2010 and the February 16, 2011 Planning Commission hearing, there is no record of any communications or outreach regarding the numerous unresolved issues and concerns about the Project, which issues and concerns were frequently addressed in the preceding 12-24 months. This year long period without substantive communications demonstrates that the Project MND process and Planning Commission hearings were undertaken in a vacuum without the required notification to NRG and a meaningful opportunity to timely comment. Hence, NRG was not able to raise its issues until the March 8, 2011 City Council hearing. 2. City consistently linked Coastal Rail Trail to the Sewer Project design. Notwithstanding the City's claims that the two projects are unrelated, the record of communications establishes that the City consistently advocated a location for the Coastal Rail Trail easterly of the railroad tracks notwithstanding objections from NRG and Energy Commission Staff recommendations in the Preliminary Staff Assessment. The record of communications demonstrates the City linked the two facilities in its design and cost considerations, yet failed to analyze the Coastal Rail Trail impacts location in the MND. 3. Not all of the Project components were included in the communications. The Project as analyzed in the MND and presented to the Planning Commission/City Council, included elements that were previously not identified in the communications. For example, the record of communications clearly show that early on, the City consistently described the Project as a replacement lift station and sewer force main project; it wasn't until late in 2009 (just before communications ended), did the City Staff mention that the replacement force main would be in addition to leaving the existing sewer line in place and a recycled water line was to be added, requiring additional easement width. No mention exists of yet a third sewer line or additional potable water line. 4. The City ignored the CECP in evaluating impacts of the Project for CEQA purposes. As part of the record of communications, the City included a number of letters to the Energy Commission Staff to the effect that the City's Sewer Project, Coastal Rail Trail, NCTD double tracking and Interstate 5 widening were all part of the "existing projects" that needed to be evaluated for purposes of cumulative impacts. Yet, when it came time for the City to fully analyze the other projects for cumulative impact purposes in the City Sewer Project MND, the City dismissed the CECP and other projects from meaningful consideration in the City's CEQA/MND document for the Sewer Project. Further, the record of communications fully documents the concerns and issues NRG had been discussing with the City prior to 2010, so the City was certainly well aware of the range of concerns and issues, yet chose to proceed without addressing them or involving NRG in the CEQA process and Planning Commission proceedings. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page? F. Conclusion While we appreciate the City Staffs responses to our March 7, 2011 comment letter, we continue to believe that the Project MND is legally inadequate. Among other things, it relies on improper mitigation measures, reaches unsubstantiated conclusions regarding Project impacts and fails to fully analyze potentially significant environmental impacts, particularly as they relate to cumulative impacts. We are encouraged by Staffs recommendation that approval of the Project be delayed so that a more thorough CEQA document can be prepared. We urge the City Council to accept that recommendation and direct Staff to prepare an EIR containing additional analysis about cumulative impacts as well as additional analysis requested in this letter and in our previous letter dated March 7, 2011. Ronald W. Rouse of LUCE, FORWARD, HAMILTON & SCRIPPS LLP RWR/ppt 101494157.3 LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP RONALD W. ROUSE, PARTNER DIRECT DIAL NUMBER 619.699.2572 DIRECT FAX NUMBER 619.235.1338 EMAIL ADDRESS rrouse@luce.com April 25, 2011 27740-1 HAND DELIVERED Mayor Hall and City Council Members City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, Ca 92008 Re: City Council/Redevelopment Commission Agenda April 26, 2011 Item #23 (Agenda Bill #20,532) NRG Energy, Inc. and Cabrillo Power I LLC Objections to Approval of Agua Hedionda Sewer Lift Station and Sewer/Water Pipelines/Facilities Dear Mayor Hall and City Council Members/Commissioners: This letter is submitted in connection with the above referenced Council/Redevelopment Commission hearing and in response to the MND comment response letter dated April 12, 2011 by Planning Director Don Neu regarding the above-referenced item. We are special counsel to NRG Energy, Inc. and Cabrillo Power I LLC (collectively "NRG") and submit the following objections on their behalf to the City's proposed approval of the multiple Agua Hedionda Sewer Lift Station and associated Sewer/Water pipelines and facilities identified in the above referenced Agenda Bill #20,532 (collectively the "Project"). Cabrillo Power I LLC is the owner/operator of the existing Encina Power Station ("EPS") and NRG Energy, Inc., its parent company, is processing the Carlsbad Energy Center Project ("CECP") Application for Certification before the California Energy Commission ("Energy Commission") on a portion of the EPS site between the railroad tracks and Interstate 5. The original and ten copies of this letter are being filed directly with the City Clerk; we ask that the original be incorporated into the administrative record and the copies be timely distributed to all Council Members/Commissioners, City Attorney and City Manager. A courtesy copy has been emailed directly to the City Attorney. A. Reply to City Staff Letter dated April 12,2011 The City's timely reply to our MND comment letter is greatly appreciated. We also support Staffs recommendation that further environmental analysis of cumulative impacts, particularly as they relate to the CECP, be conducted before certification of an appropriate CEQA document SAN DIEGO • SAN FRANCISCO • Los ANGELES • CARMEL VALLEY/DEL MAR • ORANGE COUNTY • RANCHO SANTA FE LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 2 and approval of the Project. We look forward to reviewing a revised and recirculated CEQA document (as outlined in our letter of March 7, 2011 and as reiterated in Section C below, the appropriate CEQA document for this project is an EIR) addressing that additional analysis as well as other deficiencies noted herein. In the meantime, please consider the following comments, addressed in the same order they are raised in the City Staff response letter. B. Legally Adequate Notice. NRG continues to believe that it did not receive legally adequate notice of the Planning Commission hearing on the Project or of the intent to prepare a MND. The City has admitted that no notice was mailed to NRG and that no notice was posted on NRG property. Based on past discussions and the record of communications discussed below in Section E., the City knew that NRG had unresolved concerns about the Project. Under these circumstances, applicable law requires the City should do more than rely on a generic email subscription notice or publication notice to provide NRG with an opportunity to be heard. C. Scope of Project & Design and Engineering Incompatibilities. An EIR should be prepared for the Project because a fair argument exists that the Project will have significant environmental impacts, as stated below and in our comment letter dated March 7, 2011. Moreover, the Coastal Rail Trail should be analyzed as part of the Project because the Project proposes to "accommodate" the Coastal Rail Trail, making it reasonably foreseeable that the Coastal Rail Trail ultimately will be located on the Project site. Under these circumstances, the City cannot rely on the "independent utility" test to avoid analyzing environmental impacts associated with the trail. The "independent utility" test, a NEPA concept, is rarely used in CEQA analyses and has not been applied under facts similar to those presented here. For example, in Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712, EIR certification for a segment of the SR-56 was upheld even though it did not fully analyze other geographically separate segments of the SR-56 because each segment had "independent utility." The Project, on the other hand, proposes to accommodate a portion of the Coastal Rail Trail on the Project site, not on some other property as was the case in Del Mar Terrace Conservancy. Appropriate mitigation for the trail use should be analyzed now, not as part of some future project. (Tuolumne County Citizens for Responsible Growth, Inc., v. City ofSonora (2007) 155 Cal.App.4th 1214, 1230 [environmental analysis cannot be deferred simply because two activities theoretically can proceed independently].) With regard to the scope of the Project, NRG acknowledges that it has discussed a sewer lift station and sewer line replacement with the City in the past. When those discussions ended, prior to the February, 2010 Energy Commission hearings, the City and NRG had not resolved potential design and construction conflicts between the proposed sewer lift station and the CECP. It appears that rather than trying to resolve outstanding issues, the City tried to "sneak" approval of the Project past NRG by not providing adequate notice of the Project proceedings. In any LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 3 event, the Project now proposed is much greater than what was previously discussed, as detailed in our March 7, 2011 letter. Instead of a single lift station and replacement sewer line, the scope of the Project now includes additional sewer lines and allowances for future potable and reclaimed water lines. Relocation of the overhead electrical line contemplated as part of this Project requires CEQA analysis. The electrical line is located in and around very sensitive ecological habitat. Therefore, it is reasonable to believe that construction associated with removing and relocating the electrical line could adversely impact the environment. The City says that no such analysis is required because relocation of the overhead line is "an insignificant aspect of the project construction and no adverse impacts have been identified relative to this line relocation." The MND does not provide any basis for that conclusion. As such, a fair argument exists that relocation of the electrical line could have a significant impact on the environment. Finally, we concur with the City Staff response that the Project's analysis of cumulative impacts is inadequate in that it fails to adequately analyze the CECP, among other things. We look forward to reviewing the City's revised cumulative impact analysis in the future. D. The Proposed MND is Inadequate. 1. EIR is Required. For the reasons stated in our March 7, 2011 letter, NRG continues to believe that an EIR should be prepared for the Project. The draft MND does not adequately analyze all environmental impacts, such as cumulative impacts, and also fails to recognize that there is a fair argument that the Project will have significant adverse environmental impacts. 2. Project Description/Project Splitting. As discussed above, the Coastal Rail Trail, at least as it relates to the lagoon bridge, should be studied as part of the Project because approval of the Project will render it likely that the Coastal Rail Trail ultimately will bring pedestrians over the lagoon. Also as discussed above, the CEQA analysis needs to include a discussion of the potential environmental impacts associated with relocating the overhead electrical line. Simply stating that there will be no adverse environmental impacts without providing specific analysis to support this conclusion does not satisfy CEQA's requirements for public disclosure and informed decision making. With regard to the lagoon bridge removal and replacement, the analysis still fails to substantiate claims that a bridge can be constructed over the lagoon without impacting the lagoon. Also, there is no discussion explaining how the existing bridge can be removed without impacting the lagoon and surrounding sensitive resources. 3. Environmental Setting. We fully support City Staffs recommendation to conduct further analysis of the Project's potentially adverse impacts on CECP construction and operation LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 4 activities as that issue is not adequately analyzed in the MND. We look forward to reviewing and commenting on a revised CEQA document containing that analysis. 4. Aesthetics. We appreciate that the 12 eucalyptus trees to be removed will be replaced per a Landscape Concept Plan as those trees provide important screening for NRG facilities. The requirement for replacement of the trees should be imposed as a mitigation measure to ensure that they will actually be planted and will not be removed in the future. Including all "mitigation" details in the MMRP document is standard practice in the City of Carlsbad and should be followed here. Including replacement trees in a Landscape Concept Plan is not the same thing as making the trees part of the Project's required mitigation. Also, will mature trees be installed immediately after Project construction is complete? If not, adverse aesthetic impacts will exist until the replacement trees reach a height and screening function similar to the existing eucalyptus trees. 5. Air Quality. We look forward to reviewing a revised GHG analysis that includes quantification of cumulative greenhouse gas emissions. The City's response letter has failed to address our arguments demonstrating that the Project will have significant direct ozone-related impacts altogether. We hope this will be addressed in a revised CEQA document. Additionally, we disagree with the City's assessment of the Project's cumulative ozone impacts. The Project will exceed APCD standards for NOx, thus it will have a significant environmental impact in this regard. The City relies on an ineffective mitigation measure to reduce this impact (as explained in our March 7 letter) and does not even assume that the inadequate mitigation measure will be sufficient to reduce the Project's cumulative NOx impact to a less than significant level. Under these circumstances, the Project cannot be approved without an EIR and statement of overriding considerations. Lastly, with respect to odors, NRG continues to believe that the requirement for odor control facilities should be included as a mitigation measure to ensure that they will be continually maintained in the future. Given that the Project concerns a sewer lift station, NRG is right to be concerned about odor control and the City Council should not disregard it as a "minute detail" as suggested in the City Staff response letter. 6. Cultural Resources. A mitigation measure calling for the development of "appropriate mitigation measures" if cultural resources are encountered does not satisfy the requirements of CEQA. This is classic, unlawful deferral of mitigation, notwithstanding the City's statements to the contrary. 7. Geology. We look forward to an expanded analysis addressing geological issues as they related to construction and operation of the CECP in the revised CEQA document. 8. Greenhouse Passes. For the reasons stated in our March 7 letter, the Project's greenhouse gas emissions analysis is inadequate. The City Staffs response simply restating the LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 PageS faulty analysis set forth in the MND, does not amount to substantial evidence demonstrating that the Project will not have a significant environmental impact. We look forward to a more detailed and reasoned greenhouse gas emissions analysis in the forthcoming revised CEQA document. As stated in our March 7 letter, the revised CEQA analysis should take the form of an EIR. 9. Hazards. The MND's analysis of the potential for bridge failure failed to take into account the fact that pedestrians would cross over the bridge as part of the Coastal Rail Trail. The risk of vandalism and accidents arising from public use should be addressed. In addition, there is still no analysis of the impact the Project may have on existing facilities, such as safety risks associated with installing pipelines adjacent to and crossing the existing high voltage wires. 10. Hydrology/Water Quality. NRG continues to believe that development of a spill contingency plan should be performed as part of the CEQA analysis rather than being deferred until the construction phase. The potential for a sewer spill is real as evidenced by the recent Buena Vista lagoon event in the same sewer pipeline. Further, it should apply to both permanent operations and construction phases. The public should have an opportunity to review the plan and provide comments on its adequacy as part of the CEQA process. Additionally, mitigation measures should be implemented to ensure that the City performs regular inspections and other necessary maintenance of the pipeline. With respect to the potable water pipeline, an analysis of impacts to existing and new potable water pipelines should also be included (for example, analyzing the potential for contamination of public drinking water sources.) 11. Recreation. As discussed above, the Coastal Rail Trail, to the extent it is accommodated by this Project, should be analyzed as part of this Project. As such, an analysis of impacts associated with bringing public access trail users in close proximity to the power plant and lagoon should be included in the Project's CEQA document. 12. Cumulative Impacts. The City Staff response letter did not resolve any of the concerns raised in our March 7 letter concerning cumulative impacts. We hope that our concerns will be addressed in the City's forthcoming revised cumulative impact analysis. E. Record of City/NRG Communications At the prior Council hearing on March 8, 2011, Council Member Douglas requested the record of communications between City Staff and NRG be included in the record. Mr. Ball's office was kind enough to provide a copy of the communications late Friday, as they were not included in Agenda Bill #20,532 (simply reported as on file with the City Clerk). While we have not had adequate time to digest the hundreds of pages in detail, the following additional points are clear from the record of communications. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 6 1. No communication to NRG during preparation of the MNP and Planning Commission hearings. Between January, 2010 and the February 16, 2011 Planning Commission hearing, there is no record of any communications or outreach regarding the numerous unresolved issues and concerns about the Project, which issues and concerns were frequently addressed in the preceding 12-24 months. This year long period without substantive communications demonstrates that the Project MND process and Planning Commission hearings were undertaken in a vacuum without the required notification to NRG and a meaningful opportunity to timely comment. Hence, NRG was not able to raise its issues until the March 8, 2011 City Council hearing. 2. City consistently linked Coastal Rail Trail to the Sewer Project design. Notwithstanding the City's claims that the two projects are unrelated, the record of communications establishes that the City consistently advocated a location for the Coastal Rail Trail easterly of the railroad tracks notwithstanding objections from NRG and Energy Commission Staff recommendations in the Preliminary Staff Assessment. The record of communications demonstrates the City linked the two facilities in its design and cost considerations, yet failed to analyze the Coastal Rail Trail impacts location in the MND. 3. Not all of the Project components were included in the communications. The Project as analyzed in the MND and presented to the Planning Commission/City Council, included elements that were previously not identified in the communications. For example, the record of communications clearly show that early on, the City consistently described the Project as a replacement lift station and sewer force main project; it wasn't until late in 2009 (just before communications ended), did the City Staff mention that the replacement force main would be in addition to leaving the existing sewer line in place and a recycled water line was to be added, requiring additional easement width. No mention exists of yet a third sewer line or additional potable water line. 4. The City ignored the CECP in evaluating impacts of the Project for CEQA purposes. As part of the record of communications, the City included a number of letters to the Energy Commission Staff to the effect that the City's Sewer Project, Coastal Rail Trail, NCTD double tracking and Interstate 5 widening were all part of the "existing projects" that needed to be evaluated for purposes of cumulative impacts. Yet, when it came time for the City to fully analyze the other projects for cumulative impact purposes in the City Sewer Project MND, the City dismissed the CECP and other projects from meaningful consideration in the City's CEQA/MND document for the Sewer Project. Further, the record of communications fully documents the concerns and issues NRG had been discussing with the City prior to 2010, so the City was certainly well aware of the range of concerns and issues, yet chose to proceed without addressing them or involving NRG in the CEQA process and Planning Commission proceedings. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page? F. Conclusion While we appreciate the City Staffs responses to our March 7, 2011 comment letter, we continue to believe that the Project MND is legally inadequate. Among other things, it relies on improper mitigation measures, reaches unsubstantiated conclusions regarding Project impacts and fails to fully analyze potentially significant environmental impacts, particularly as they relate to cumulative impacts. We are encouraged by Staffs recommendation that approval of the Project be delayed so that a more thorough CEQA document can be prepared. We urge the City Council to accept that recommendation and direct Staff to prepare an EIR containing additional analysis about cumulative impacts as well as additional analysis requested in this letter and in our previous letter dated March 7, 2011. Ronald W. Rouse of LUCE, FORWARD, HAMILTON & SCRIPPS LLP RWR/ppt 101494157.3 LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP RONALD W. ROUSE, PARTNER DIRECT DIAL NUMBER 619.699.2572 DIRECT FAX NUMBER 619.235.1338 EMAIL ADDRESS rrousefSluce.cora April 25, 2011 27740-1 HAND DELIVERED Mayor Hall and City Council Members City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, Ca 92008 Re: City Council/Redevelopment Commission Agenda April 26, 2011 Item #23 (Agenda Bill #20,532) NRG Energy, Inc. and Cabrillo Power I LLC Objections to Approval of Agua Hedionda Sewer Lift Station and Sewer/Water Pipelines/Facilities Dear Mayor Hall and City Council Members/Commissioners: This letter is submitted in connection with the above referenced Council/Redevelopment Commission hearing and in response to the MND comment response letter dated April 12, 2011 by Planning Director Don Neu regarding the above-referenced item. We are special counsel to NRG Energy, Inc. and Cabrillo Power I LLC (collectively "NRG") and submit the following objections on their behalf to the City's proposed approval of the multiple Agua Hedionda Sewer Lift Station and associated Sewer/Water pipelines and facilities identified in the above referenced Agenda Bill #20,532 (collectively the "Project"). Cabrillo Power I LLC is the owner/operator of the existing Encina Power Station ("EPS") and NRG Energy, Inc., its parent company, is processing the Carlsbad Energy Center Project ("CECP") Application for Certification before the California Energy Commission ("Energy Commission") on a portion of the EPS site between the railroad tracks and Interstate 5. The original and ten copies of this letter are being filed directly with the City Clerk; we ask that the original be incorporated into the administrative record and the copies be timely distributed to all Council Members/Commissioners, City Attorney and City Manager. A courtesy copy has been emailed directly to the City Attorney. A. Reply to City Staff Letter dated April 12, 2011 The City's timely reply to our MND comment letter is greatly appreciated. We also support Staffs recommendation that further environmental analysis of cumulative impacts, particularly as they relate to the CECP, be conducted before certification of an appropriate CEQA document SAN DIEGO • SAN FRANCISCO • Los ANGELES • CARMEL VALLEY/DEL MAR • ORANGE COUNTY • RANCHO SANTA FE LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 2 and approval of the Project. We look forward to reviewing a revised and recirculated CEQA document (as outlined in our letter of March 7, 2011 and as reiterated in Section C below, the appropriate CEQA document for this project is an EIR) addressing that additional analysis as well as other deficiencies noted herein. In the meantime, please consider the following comments, addressed in the same order they are raised in the City Staff response letter. B. Legally Adequate Notice. NRG continues to believe that it did not receive legally adequate notice of the Planning Commission hearing on the Project or of the intent to prepare a MND. The City has admitted that no notice was mailed to NRG and that no notice was posted on NRG property. Based on past discussions and the record of communications discussed below in Section E., the City knew that NRG had unresolved concerns about the Project. Under these circumstances, applicable law requires the City should do more than rely on a generic email subscription notice or publication notice to provide NRG with an opportunity to be heard. C. Scope of Project & Design and Engineering Incompatibilities. An EIR should be prepared for the Project because a fair argument exists that the Project will have significant environmental impacts, as stated below and in our comment letter dated March 7, 2011. Moreover, the Coastal Rail Trail should be analyzed as part of the Project because the Project proposes to "accommodate" the Coastal Rail Trail, making it reasonably foreseeable that the Coastal Rail Trail ultimately will be located on the Project site. Under these circumstances, the City cannot rely on the "independent utility" test to avoid analyzing environmental impacts associated with the trail. The "independent utility" test, a NEPA concept, is rarely used in CEQA analyses and has not been applied under facts similar to those presented here. For example, in Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712, EIR certification for a segment of the SR-56 was upheld even though it did not fully analyze other geographically separate segments of the SR-56 because each segment had "independent utility." The Project, on the other hand, proposes to accommodate a portion of the Coastal Rail Trail on the Project site, not on some other property as was the case in Del Mar Terrace Conservancy. Appropriate mitigation for the trail use should be analyzed now, not as part of some future project. (Tuolumne County Citizens for Responsible Growth, Inc., v. City ofSonora (2007) 155 Cal.App.4th 1214, 1230 [environmental analysis cannot be deferred simply because two activities theoretically can proceed independently].) With regard to the scope of the Project, NRG acknowledges that it has discussed a sewer lift station and sewer line replacement with the City in the past. When those discussions ended, prior to the February, 2010 Energy Commission hearings, the City and NRG had not resolved potential design and construction conflicts between the proposed sewer lift station and the CECP. It appears that rather than trying to resolve outstanding issues, the City tried to "sneak" approval of the Project past NRG by not providing adequate notice of the Project proceedings. In any LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS UP Mayor Hall and City Council Members April 25, 2011 Page 3 event, the Project now proposed is much greater than what was previously discussed, as detailed in our March 7, 2011 letter. Instead of a single lift station and replacement sewer line, the scope of the Project now includes additional sewer lines and allowances for future potable and reclaimed water lines. Relocation of the overhead electrical line contemplated as part of this Project requires CEQA analysis. The electrical line is located in and around very sensitive ecological habitat. Therefore, it is reasonable to believe that construction associated with removing and relocating the electrical line could adversely impact the environment. The City says that no such analysis is required because relocation of the overhead line is "an insignificant aspect of the project construction and no adverse impacts have been identified relative to this line relocation." The MND does not provide any basis for that conclusion. As such, a fair argument exists that relocation of the electrical line could have a significant impact on the environment. Finally, we concur with the City Staff response that the Project's analysis of cumulative impacts is inadequate in that it fails to adequately analyze the CECP, among other things. We look forward to reviewing the City's revised cumulative impact analysis in the future. D. The Proposed MND is Inadequate. 1. EIR is Required. For the reasons stated in our March 7, 2011 letter, NRG continues to believe that an EIR should be prepared for the Project. The draft MND does not adequately analyze all environmental impacts, such as cumulative impacts, and also fails to recognize that there is a fair argument that the Project will have significant adverse environmental impacts. 2. Project Description/Project Splitting. As discussed above, the Coastal Rail Trail, at least as it relates to the lagoon bridge, should be studied as part of the Project because approval of the Project will render it likely that the Coastal Rail Trail ultimately will bring pedestrians over the lagoon. Also as discussed above, the CEQA analysis needs to include a discussion of the potential environmental impacts associated with relocating the overhead electrical line. Simply stating that there will be no adverse environmental impacts without providing specific analysis to support this conclusion does not satisfy CEQA's requirements for public disclosure and informed decision making. With regard to the lagoon bridge removal and replacement, the analysis still fails to substantiate claims that a bridge can be constructed over the lagoon without impacting the lagoon. Also, there is no discussion explaining how the existing bridge can be removed without impacting the lagoon and surrounding sensitive resources. 3. Environmental Setting. We fully support City Staffs recommendation to conduct further analysis of the Project's potentially adverse impacts on CECP construction and operation LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 4 activities as that issue is not adequately analyzed in the MND. We look forward to reviewing and commenting on a revised CEQA document containing that analysis. 4. Aesthetics. We appreciate that the 12 eucalyptus trees to be removed will be replaced per a Landscape Concept Plan as those trees provide important screening for NRG facilities. The requirement for replacement of the trees should be imposed as a mitigation measure to ensure that they will actually be planted and will not be removed in the future. Including all "mitigation" details in the MMRP document is standard practice in the City of Carlsbad and should be followed here. Including replacement trees in a Landscape Concept Plan is not the same thing as making the trees part of the Project's required mitigation. Also, will mature trees be installed immediately after Project construction is complete? If not, adverse aesthetic impacts will exist until the replacement trees reach a height and screening function similar to the existing eucalyptus trees. 5. Air Quality. We look forward to reviewing a revised GHG analysis that includes quantification of cumulative greenhouse gas emissions. The City's response letter has failed to address our arguments demonstrating that the Project will have significant direct ozone-related impacts altogether. We hope this will be addressed in a revised CEQA document. Additionally, we disagree with the City's assessment of the Project's cumulative ozone impacts. The Project will exceed APCD standards for NOx, thus it will have a significant environmental impact in this regard. The City relies on an ineffective mitigation measure to reduce this impact (as explained in our March 7 letter) and does not even assume that the inadequate mitigation measure will be sufficient to reduce the Project's cumulative NOx impact to a less than significant level. Under these circumstances, the Project cannot be approved without an EIR and statement of overriding considerations. Lastly, with respect to odors, NRG continues to believe that the requirement for odor control facilities should be included as a mitigation measure to ensure that they will be continually maintained in the future. Given that the Project concerns a sewer lift station, NRG is right to be concerned about odor control and the City Council should not disregard it as a "minute detail" as suggested in the City Staff response letter. 6. Cultural Resources. A mitigation measure calling for the development of "appropriate mitigation measures" if cultural resources are encountered does not satisfy the requirements of CEQA. This is classic, unlawful deferral of mitigation, notwithstanding the City's statements to the contrary. 7. Geology. We look forward to an expanded analysis addressing geological issues as they related to construction and operation of the CECP in the revised CEQA document. 8. Greenhouse Gasses. For the reasons stated in our March 7 letter, the Project's greenhouse gas emissions analysis is inadequate. The City Staffs response simply restating the LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 PageS faulty analysis set forth in the MND, does not amount to substantial evidence demonstrating that the Project will not have a significant environmental impact. We look forward to a more detailed and reasoned greenhouse gas emissions analysis in the forthcoming revised CEQA document. As stated in our March 7 letter, the revised CEQA analysis should take the form of an EIR. 9. Hazards. The MND's analysis of the potential for bridge failure failed to take into account the fact that pedestrians would cross over the bridge as part of the Coastal Rail Trail. The risk of vandalism and accidents arising from public use should be addressed. In addition, there is still no analysis of the impact the Project may have on existing facilities, such as safety risks associated with installing pipelines adjacent to and crossing the existing high voltage wires. 10. Hydrology/Water Quality. NRG continues to believe that development of a spill contingency plan should be performed as part of the CEQA analysis rather than being deferred until the construction phase. The potential for a sewer spill is real as evidenced by the recent Buena Vista lagoon event in the same sewer pipeline. Further, it should apply to both permanent operations and construction phases. The public should have an opportunity to review the plan and provide comments on its adequacy as part of the CEQA process. Additionally, mitigation measures should be implemented to ensure that the City performs regular inspections and other necessary maintenance of the pipeline. With respect to the potable water pipeline, an analysis of impacts to existing and new potable water pipelines should also be included (for example, analyzing the potential for contamination of public drinking water sources.) 11. Recreation. As discussed above, the Coastal Rail Trail, to the extent it is accommodated by this Project, should be analyzed as part of this Project. As such, an analysis of impacts associated with bringing public access trail users in close proximity to the power plant and lagoon should be included in the Project's CEQA document. 12. Cumulative Impacts. The City Staff response letter did not resolve any of the concerns raised in our March 7 letter concerning cumulative impacts. We hope that our concerns will be addressed in the City's forthcoming revised cumulative impact analysis. E. Record of City/NRG Communications At the prior Council hearing on March 8, 2011, Council Member Douglas requested the record of communications between City Staff and NRG be included in the record. Mr. Ball's office was kind enough to provide a copy of the communications late Friday, as they were not included in Agenda Bill #20,532 (simply reported as on file with the City Clerk). While we have not had adequate time to digest the hundreds of pages in detail, the following additional points are clear from the record of communications. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 6 1. No communication to NRG during preparation of the MNP and Planning Commission hearings. Between January, 2010 and the February 16, 2011 Planning Commission hearing, there is no record of any communications or outreach regarding the numerous unresolved issues and concerns about the Project, which issues and concerns were frequently addressed in the preceding 12-24 months. This year long period without substantive communications demonstrates that the Project MND process and Planning Commission hearings were undertaken in a vacuum without the required notification to NRG and a meaningful opportunity to timely comment. Hence, NRG was not able to raise its issues until the March 8, 2011 City Council hearing. 2. City consistently linked Coastal Rail Trail to the Sewer Project design. Notwithstanding the City's claims that the two projects are unrelated, the record of communications establishes that the City consistently advocated a location for the Coastal Rail Trail easterly of the railroad tracks notwithstanding objections from NRG and Energy Commission Staff recommendations in the Preliminary Staff Assessment. The record of communications demonstrates the City linked the two facilities in its design and cost considerations, yet failed to analyze the Coastal Rail Trail impacts location in the MND. 3. Not all of the Project components were included in the communications. The Project as analyzed in the MND and presented to the Planning Commission/City Council, included elements that were previously not identified in the communications. For example, the record of communications clearly show that early on, the City consistently described the Project as a replacement lift station and sewer force main project; it wasn't until late in 2009 (just before communications ended), did the City Staff mention that the replacement force main would be in addition to leaving the existing sewer line in place and a recycled water line was to be added, requiring additional easement width. No mention exists of yet a third sewer line or additional potable water line. 4. The City ignored the CECP in evaluating impacts of the Project for CEQA purposes. As part of the record of communications, the City included a number of letters to the Energy Commission Staff to the effect that the City's Sewer Project, Coastal Rail Trail, NCTD double tracking and Interstate 5 widening were all part of the "existing projects" that needed to be evaluated for purposes of cumulative impacts. Yet, when it came time for the City to fully analyze the other projects for cumulative impact purposes in the City Sewer Project MND, the City dismissed the CECP and other projects from meaningful consideration in the City's CEQA/MND document for the Sewer Project. Further, the record of communications fully documents the concerns and issues NRG had been discussing with the City prior to 2010, so the City was certainly well aware of the range of concerns and issues, yet chose to proceed without addressing them or involving NRG in the CEQA process and Planning Commission proceedings. LUCE FORWARD ATTORNEYS AT LAW • FOUNDED 1873 LUCE, FORWARD, HAMILTON & SCRIPPS LLP Mayor Hall and City Council Members April 25, 2011 Page 7 F. Conclusion While we appreciate the City Staffs responses to our March 7, 2011 comment letter, we continue to believe that the Project MND is legally inadequate. Among other things, it relies on improper mitigation measures, reaches unsubstantiated conclusions regarding Project impacts and fails to fully analyze potentially significant environmental impacts, particularly as they relate to cumulative impacts. We are encouraged by Staffs recommendation that approval of the Project be delayed so that a more thorough CEQA document can be prepared. We urge the City Council to accept that recommendation and direct Staff to prepare an EIR containing additional analysis about cumulative impacts as well as additional analysis requested in this letter and in our previous letter dated March 7, 2011. Ronald W. Rouse of LUCE, FORWARD, HAMILTON & SCRIPPS LLP RWR/ppt 101494157.3 Continued Public Hearing on the AHdi dSLiftSt tiAgua Hedionda Sewer Lift Station, Force Main and Gravity Sewer yReplacementPam DrewPam DrewA il 26 2011A il 26 2011April 26, 2011April 26, 2011 BackgroundInformationBackground Information‰2-2-11–Planning Commission‰2211 Planning Commission‰3-8-11 - City Council and Housing & Redevelopment CommissionRedevelopment Commission FurtherCEQAAnalysisFurther CEQA Analysis‰Greenhouse Gas (GHG) Emissions‰Air Quality‰CumulativeImpacts‰Cumulative Impacts Recommendation to City Council & dlHousing & Redevelopment Commission‰City Council Adopt Resolution No. 2011-080 ‰Housing & Redevelopment Commission Adopt‰Housing & Redevelopment Commission Adopt Resolution No. 5011) Remand the application to the Planning1) Remand the application to the Planning Director for further CEQA analysis; and2) Schedule the application for a new hearing2) Schedule the application for a new hearing by the Planning Commission.