The City of Chula Vista (City) approved a proposed Target retail store in reliance on a mitigated negative declaration (MND). Petitioner filed a petition for writ of mandate challenging the MND and claiming that the project may have significant impacts relating to hazardous materials, air pollution, particulate matter and ozone, and greenhouse gas emissions. The trial court denied the writ. The Petitioners appealed to the Fourth District Court of Appeal, which reversed the lower court’s decision on hazardous materials, but affirmed its decision on the other three points. Examining first the hazardous materials issue, the Court determined that evidence in the record established that the project was proposed on a former gas station site with contaminated soil, and that this contaminated soil may be disturbed during construction. While the MND established that measures in an adopted corrected action plan had to be implemented, the plan was not included in the record. Therefore, the Court held that the record contained a “fair argument” that the project may result in significant impacts related to hazardous materials. With respect to the project’s contribution to greenhouse gas emissions (“GHG”), the Court held that the project would not have a significant impact because the emissions from project construction would not exceed air quality thresholds set forth in AB 32. Lastly, the Court found that potential air quality impacts on sensitive receptors were adequately analyzed using a screening-level health risk assessment based on guidance issued by the South Coast Air Quality Management District.

Key Point:

Lead agencies have discretion to decide the appropriate threshold of significance to use. Reliance on a state standard, such as those set forth in AB 32 for GHG emissions, should be sufficient under CEQA.