Filed 10/24/17 Eureka Village Homeowners Assn. v. City of Rancho Cordova CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Eureka Village Homeowners Association (EVHA) appeals from the trial court’s denial of its petition for writ of mandate to set aside the approval by the City of Rancho Cordova and the City Council of Rancho Cordova (sometimes collectively, the City) of a freeway interchange and arterial roadway (the Project). EVHA contends the City violated the California Environmental Quality Act (CEQA) (Pub. Res. Code, § 21000 et seq.)[1] when it certified the environmental impact report (EIR) for the Project because (1) the EIR does not contain a reasonable range of alternatives, and (2) the EIR fails to adequately analyze and disclose the impacts of the Project with respect to air quality and noise. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Project

The Project is to construct a south-only interchange connection at U.S. Highway 50 (US 50) in the City and unincorporated Sacramento County between the existing Sunrise Boulevard and Hazel Avenue interchanges, a new four-lane arterial street to be named Rancho Cordova Parkway that would stretch from the new interchange to the existing White Rock Road, and auxiliary lanes along US 50 between the existing interchanges. The new roadway would be six lanes from the interchange ramps to Easton Valley Parkway and four lanes from there to White Rock Road.

Part of a larger regional plan addressing traffic operations on US 50, the purpose of the Project is “to address the existing operational deficiencies of U.S. 50 and adjacent arterial roadways as well as the anticipated future growth in the project vicinity.” The project objectives are to relieve existing traffic congestion on US 50, Sunrise Boulevard, White Rock Road, and Hazel Avenue south of the freeway; to improve traffic operations at the existing interchanges at Sunrise Boulevard and Hazel Avenue; to maintain acceptable levels of service on the freeway and at existing access points under existing and future conditions; to improve access to and from the freeway and planned developments; to improve emergency access within the City of Rancho Cordova; and to provide access to regional transit facilities, where feasible.

The EIR

A notice of preparation for the Project was completed in September 2005. After years of community engagement, a draft EIR was released for public review and comment in April 2014. Fifteen potentially feasible alternatives were considered in the draft EIR. Seven were variations on an interchange design at this location; the rest involved not constructing an interchange in this location. After extensive analysis of the alternatives, their environmental impacts or benefits, and feasibility, the City rejected 13 of the possible alternatives for reasons explained in the draft EIR because they either failed to meet basic project objectives, were infeasible, or were unable to avoid significant environmental impacts.

Comments to the draft EIR suggested that the City evaluate as an alternative an expansion to the existing Hazel Avenue interchange. In the final EIR, the City concluded this alternative did not warrant detailed examination because it would not meet basic project objectives, is infeasible, and would not avoid significant environmental impacts. The City explained its rejection of that proposed alternative in its eight-page response to those particular comments. Details of that response are discussed in part 2.0, post. Ultimately, the only alternatives considered in detail in the final EIR were the Project and a required “no project” alternative.

Among the potential impacts of the Project were the effects on air quality and noise, both during construction and during operation. The EIR concluded there would be a significant and unavoidable increase in toxic air contaminants in the immediate vicinity of construction, and that there would be an increase in particulate matter as well, but that impact would be less than significant after mitigation. All other air quality impacts were deemed to be less than significant. With respect to noise, the EIR concluded the only significant impact would be during construction, which it deemed unavoidable.

City Approval and Subsequent Challenge

The City Council certified the EIR, made findings regarding the environmental effects of the Project, adopted a statement of overriding considerations, and adopted a mitigation monitoring and reporting program. It also approved the Project.

EVHA petitioned the trial court for a writ of mandate directing the City to set aside its certification of the EIR and approval of the Project. It argued, as it does here, that the City committed a prejudicial abuse of discretion in certifying the EIR and approving the Project because the EIR failed to consider a reasonable range of alternatives, particularly modification of the existing Hazel Avenue interchange, and failed to adequately analyze and disclose the Project’s environmental impacts on, inter alia, air quality and noise. The trial court denied the petition for writ of mandate and EVHA appealed.

DISCUSSION

EVHA contends it was a prejudicial abuse of discretion to certify the EIR and approve the Project because the EIR failed to consider a reasonable range of alternatives and because the EIR failed to adequately analyze and disclose the Project’s impacts on air quality and noise. We are not persuaded.

1.0 Standard of Review

“ ‘Where an EIR is challenged as being legally inadequate, a court presumes a public agency’s decision to certify the EIR is correct, thereby imposing on a party challenging it the burden of establishing otherwise.’ ” (Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184, 195 (Mount Shasta).) We may set aside an agency’s decision under CEQA only where there has been a “prejudicial abuse of discretion.” (§ 21168.5.) Such an abuse of discretion may exist either where “the agency has not proceeded in a manner required by law” or where “the determination or decision is not supported by substantial evidence.” (§ 21168.5.) Thus, we review the sufficiency of the content of an EIR to determine if it was prepared in accordance with statutory and regulatory requirements, and we review the sufficiency of the conclusions of an EIR for substantial evidence. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427, 435.)

For purposes of this inquiry, “ ‘[s]ubstantial evidence’ ” is “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (Cal. Code Regs., tit. 14, § 15384, subd. (a).)[2] In applying the substantial evidence standard, “we resolve reasonable doubts in favor of the agency’s decision.” (East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, 289.) We are not called upon to determine whether the EIR came to the correct environmental conclusions, but to decide whether the EIR is sufficient to perform its purpose as an informative document. (Mount Shasta, supra, 210 Cal.App.4th at p. 195.) Thus, we will not set aside approval of an EIR on the ground that a different conclusion would have been as or more reasonable than the one made. (Ibid.; see Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393.)

2.0 Project Alternatives

EVHA contends the EIR violated CEQA because it failed to consider a reasonable range of alternatives. In particular, EVHA argues the EIR is deficient because it did not consider improvement of the existing Hazel Avenue interchange or extension of Hazel Avenue as an alternative. We conclude EVHA has failed to meet its burden to show the EIR is deficient.

An EIR must address not only the environmental effects of the proposed project, but “also consider and analyze project alternatives that would reduce adverse environmental impacts.” (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1163.) This means that an EIR must describe “a range of reasonable alternatives to the project, . . . which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.” (CEQA Guidelines, § 15126.6, subd. (a).) “ ‘ “Feasible” ’ ” alternatives are those “ ‘ “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” ’ ” (Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966, 1018.) According to the applicable “rule of reason,” the EIR need only set forth “those alternatives necessary to permit a reasoned choice” and need only “examine in detail [those] . . . the lead agency determines could feasibly attain most of the basic objectives of the project.” (CEQA Guidelines, § 15126.6, subds. (a), (f); see South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 327.)

Additionally, an EIR need not consider alternatives that are infeasible. (CEQA Guidelines, § 15126.6, subd. (a); see North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 667 [“ ‘nfeasible alternatives that do not meet project objectives need not be studied even when such alternatives might be imagined to be environmentally superior.’ ”].) Indeed, “[i]f the decisionmaker is correct in finding that a given alternative is infeasible, the EIR will not be deemed inadequate simply because it failed to include an analysis of that alternative.” ([i]Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 715, fn. 3.) The CEQA Guidelines provide factors that may be considered when contemplating the feasibility of an alternative, which include “site suitability, economic viability, availability of infrastructure, general plan consistency, other plans or regulatory limitations, jurisdictional boundaries . . . , and whether the proponent can reasonably acquire, control or otherwise have access to the alternative site . . . .” (CEQA Guidelines, § 15126.6, subd. (f)(1).) If there is substantial evidence to support any single ground for a finding of infeasibility, that is sufficient to reject an alternative from consideration. (See Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503, 523.)

EVHA contends that by failing to consider any alternative other than the Project and the required no project alternative, the EIR is deficient. To the extent EVHA would have us conclude, as a matter of law, that consideration in the EIR only of a proposed project and a no project alternative is inadequate, we reject that contention. As explained in Mount Shasta in response to a similar claim, “there is no rule specifying a particular number of alternatives that must be included. ‘CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose.’ ” (Mount Shasta, supra, 210 Cal.App.4th at p. 199.) Thus, it is incumbent on EVHA as the appellant to show either that in this instance the selected alternatives did not amount to a reasonable range of alternatives or that some particular potentially feasible alternative was excluded. (Ibid.) EVHA has not specifically argued how the alternatives presented to the City Council were not representative of a reasonable range. Therefore, we deduce EVHA has apparently selected the latter route, arguing that the EIR is deficient because it failed to consider improvement of the existing Hazel Avenue interchange or extension of the roadway as a project alternative. Therefore, we limit our analysis to considering whether it was an abuse of discretion to exclude the Hazel Avenue alternative from consideration in the EIR.

In the portion of the final EIR devoted to responding to comments on the draft EIR, the City addressed suggestions that an alternative based on improving the existing Hazel Avenue interchange or extending Hazel Avenue to White Rock Road should be evaluated. The City found this alternative did not merit detailed examination as a potentially feasible alternative “because 1) it would not meet the purpose and need and basic project objectives, 2) it is infeasible, and 3) it would not avoid significant environmental impacts.” Specifically, the City reasoned the alternative conflicted with basic project objectives because, based on employment of a regional travel demand model, employment of the Hazel Avenue alternative would only decrease traffic on US 50 by shifting that traffic to arterial roadways and local streets that cannot serve the demand as efficiently. Thus, the Hazel Avenue alternative would cause operations at both the existing Hazel Avenue and Sunrise Boulevard interchanges to worsen, in direct contradiction of the project objective to improve traffic operations at those interchanges.

With respect to infeasibility, the EIR notes the Hazel Avenue alternative would be constructed over land that is “currently extensively used for industrial, research, and development purposes” (the Aerojet property), such that acquisition of the land would be difficult and costly. The Aerojet property houses a campus that would be bisected by the roadway, causing security issues for the defense and aerospace contracting company that uses the site for industrial manufacturing and research and development of “systems engineering, design and analysis, fluid management, materials, software and electronics, solid rocket motors and liquid engines, advanced propulsion systems, including hypersonics, and systems utilized in space and defense propulsion systems . . . .” Additionally, there are concerns about proximity to “storage of energetic materials” as well as ongoing environmental remediation efforts on the Aerojet property. Aerojet is one of the area’s largest employers and, if it had to relocate, it was posited there would be a direct loss of approximately 1,800 jobs in the City, nearby Folsom, and unincorporated Sacramento County.

Finally, the EIR noted that the impacts to biological resources would be similar, and would be potentially significant for the Hazel Avenue alternative, and that there would be “potentially greater concerns related to hazardous materials/wastes” with the Hazel Avenue alternative because it would transect the Aerojet property. The EIR also noted the Hazel Avenue alternative would likely significantly impact commercial, residential, and recreational uses in the area.

EVHA challenges these findings on various bases.

First, with respect to traffic, biological impacts, and impact on existing commercial, residential, and recreational uses, it argues “the same reasons the City relies upon to reject the Hazel Avenue Interchange Alternative could be used to reject the Project.” Essentially, it argues the effects of the Hazel Avenue alternative are similar to those of the Project. However, the “EIR shall describe a range of reasonable alternatives to the project . . . which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.” (CEQA Guidelines, § 15126.6, subd. (a), italics added.) That a particular alternative would be no worse than the proposed project is not the standard for inclusion as part of a reasonable range of alternatives. Thus, this argument does not convince us that the EIR was deficient for failing to consider the Hazel Avenue alternative.

Second, with respect to infeasibility, EVHA claims there is insufficient evidence demonstrating that the Hazel Avenue alternative is infeasible because the record does not contain a study comparing the two alternatives with specific cost estimates and benefits, and that human health impacts to residents should be viewed as a high cost when assessing feasibility. EVHA provides no citation to authority or cogent legal argument suggesting that such a study is required, or otherwise supporting this claim. Therefore, it has forfeited this contention. (In re S.C. (2006) 138 Cal.App.4th 396, 408 [“To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority . . . . [Citations.] When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’ ”].)

Neither does EVHA directly dispute the evidence in the record suggesting that the site for the Hazel Avenue alternative is unsuitable because of the environmental, economic, and safety concerns posed by that particular location. It is incumbent on “an appellant challenging an EIR for insufficient evidence [to] lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant’s failure to carry his burden.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266 (Defend the Bay).) By failing to show evidence of the site’s unsuitability is lacking, EVHA has failed to meet its burden in this regard.

Nevertheless, EVHA does present an argument disagreeing with the EIR’s finding that traversing the Aerojet property would have potentially greater concerns related to hazardous materials and waste, and is not part of carved-out lands devoted to this use. It claims that as part of another approved but not built project, a roadway traversing Aerojet property was a condition of approval, and that this roadway could be used to complete the Hazel Avenue alternative. Viewed in a judicious light, this is an argument that there is insufficient evidence of infeasibility because, if the Aerojet property has been approved to be used for another roadway, there may be insufficient evidence to support the conclusion that it would not be an appropriate site for the Hazel Avenue alternative. We will construe the argument to raise that claim.

EVHA cites evidence in the record that a condition of approval of the Project is the construction of Easton Valley Parkway, which would extend through the Aerojet property. It argues the City found these impacts acceptable and feasible in approving the Project, so it would not be infeasible to traverse the Aerojet property to complete the Hazel Avenue alternative. However, this argument misstates facts in the record and is based on a false premise. The record shows that the portion of the Aerojet property proposed to be used for the Hazel Avenue alternative is not the same property approved for the Easton Valley Parkway. Rather, the portion of the property designated to be used for the Easton Valley Parkway is part of a “buffer zone, which consists of vacant land, provides a safe zone between the adjacent residential areas and the bunkers used to store explosives at the Aerojet property,” shows no indication of hazardous substances on the ground surface, and had previously been carved out from the “Superfund” site boundaries. (See Health & Saf. Code, § 25300 et seq.) Thus, EVHA has failed to show there is insufficient evidence to support the finding of infeasibility.

As EVHA has failed to demonstrate a lack of substantial evidence to support the City’s finding that the Hazel Avenue alternative is infeasible, it too has failed to demonstrate that the EIR is inadequate for failing to include it as an alternative. Accordingly, EVHA has not shown that the City prejudicially abused its discretion by certifying the EIR based on a lack of a reasonable range of alternatives.

3.0 Project Impacts

EVHA contends the EIR fails to adequately disclose, analyze or mitigate the Project’s impacts on air quality and noise, and that the EIR’s conclusions regarding those impacts are not supported by substantial evidence. We conclude EVHA has failed to meet its burden to demonstrate that the EIR is inadequate.

3.1 Air Quality

EVHA contends the EIR fails to adequately disclose, analyze, or mitigate the Project’s impacts on air quality. Specifically, it claims the EIR is inadequate because it does not address potentially significant health impacts to nearby residents, does not analyze the localized impact of increased emissions (i.e., particulate matter and toxic air contaminants that will be caused by the Project’s operation), and it improperly relies on monitoring stations away from the Project area as well as outdated data. We are not persuaded.

CEQA requires that an EIR identify “significant environmental effects” of a proposed project, and should discuss, inter alia, “ ‘health and safety problems caused by the physical changes’ in the environment as a result of the Project. ([CEQA] Guidelines, § 15126.2, subd. (a).)” (Beverly Hills Unified School Dist. v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627, 666, 667 (Beverly Hills Unified).) “ ‘ “CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive.” [Citation.] Analysis in an EIR “must be specific enough to permit informed decision making and public participation.” ’ ” (Ibid.) Thus, an EIR that “identifie[s] the potential adverse health effects of exposure to each of the identified pollutants” is sufficient. (Ibid.)

Here, EVHA claims that the EIR failed to address potentially significant health impacts to nearby residents. It acknowledges the EIR identifies the air pollutants that will be produced by the Project and the quantities in which those pollutants will be produced, but claims the EIR’s discussion of adverse human health effects caused by those pollutants is inadequate and fails to meet the standard set forth in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184. Bakersfield involved challenges to two EIR’s for separate shopping centers approved to be constructed within a few miles of each other. (Id. at pp. 1193-1194.) The EIR for each project separately concluded it would have “significant and unavoidable” adverse impacts to air quality both during construction and operation. (Bakersfield, at p. 1219.) However, neither EIR correlated those adverse air quality impacts with resultant adverse health effects, despite the CEQA Guidelines’ requirement that an EIR discuss “ ‘health and safety problems caused by the physical changes.’ ” (Ibid., quoting CEQA Guidelines, § 15126.2, subd. (a).) There is no dispute that this is the law. However, EVHA suggests an interpretation of Bakersfield that would require more.

Indeed, EVHA faults the EIR for not including an analysis of the impact increased emissions would have, for not modeling operation impacts, for providing a limited qualitative analysis of the impacts of localized particulate matter, for failing to analyze the health impacts on residents of a local community, and for failing to address the link between air pollution and coronary artery disease or carotid artery disease. However, the EIR disclosed and quantified emissions that would be expected from operations of the Project, analyzed them, and determined that they fell within regional air district standards, and disclosed and discussed the potential adverse health effects for each identified pollutant. Among the adverse health effects identified for the various pollutants were increased respiratory disease and respiratory ailments, lung damage, decreased lung capacity, birth defects, cancer, cardiovascular diseases, nausea, headaches, coughing, eye irritation, and death. Thus, the EIR presented adequate and sufficiently specific information to allow for “ ‘ “informed decision making and public participation.” ’ ” (Beverly Hills Unified, supra, 241 Cal.App.4th at p. 667.) EVHA has not shown that any more is required by CEQA.[3]

In its next argument, EVHA would have us require more. It argues the EIR should not only have discussed the regional air quality impacts and identified the associated health concerns, but should also have conducted an analysis of the specific localized impact of emissions. Specifically, based on a letter from counsel for a community association, EVHA argues the EIR should have provided more information about the potential for increased localized particulate matter and toxic air contaminants that may be caused by the additional braking, decelerating, downshifting, and travel at lower engine speeds. The EIR concludes that despite localized increases and decreases in vehicle miles traveled as a result of the Project, the Project’s air quality impacts on toxic air contaminants and mobile source air toxics are less than significant. The EIR also concludes, based on an expert report and existing regulations, that the Project is not one of air quality concern warranting in-depth analysis. The musings of counsel are not sufficient to rebut the expert opinion that supports the conclusions of the EIR. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 795 [“The party challenging the EIR, however, bears the burden of demonstrating that the studies on which the EIR is based ‘are clearly inadequate or unsupported.’ ”]; CEQA Guidelines, § 15384, subd. (a) [substantial evidence does not include “[a]rgument, speculation, unsubstantiated opinion or narrative”]; see San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 625.)

EVHA argues that because the record shows expected future daily volume of nearly 50,000 on the interchange ramps to be built as part of the Project, the record does not support the EIR’s conclusion. However, the record contains substantial evidence to support the EIR’s conclusion in the form of an air quality conformity analysis prepared by an expert air quality analyst, evidence EVHA failed to cite. Therefore, even if the claim were not forfeited (Defend the Bay, supra, 119 Cal.App.4th at p. 1266), it would fail on the merits. EVHA also argues, without citation to the record, that the EIR fails to consider the proximity of a park. By failing to provide any record citation, this argument is forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(C); Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656.)

Finally, EVHA faults the EIR for relying on air quality data from 2010 gathered at the nearest air quality monitoring station because it claims the data is not recent enough and should have been gathered from other monitoring stations to more particularly address local as opposed to regional air quality. However, EVHA fails to adequately develop these arguments. It states, without authority, other than a letter from counsel on behalf of a community association, that there may be closer monitoring stations, depending on how measurement is conducted and, without any authority at all, that the area where the monitoring stations used are located “differs” from the Project area. EVHA does not develop any cogent argument to explain why the evidence relied upon in the EIR is lacking, but instead states in conclusory fashion that the analysis in the EIR dependent on those monitoring stations is not substantial evidence. As we have by now stated repeatedly, EVHA’s undeveloped argument does not satisfy its burden to challenge the sufficiency of the evidence. (Defend the Bay, supra, 119 Cal.App.4th at p. 1266.)

3.2 Noise

EVHA challenges the EIR’s analysis of the potential noise impact of the Project. It claims the EIR’s analysis of noise is based on unreliable data because of the location of a receiver used to collect data and because data was collected during non-peak traffic times. It also asserts the noise study does not adequately analyze noise levels because it uses data from only one representative receiver per subregion, contrary to protocol that calls for data to be pulled from at least two receivers. And, it claims the EIR’s conclusions that certain locations would benefit from acoustical shielding as a result of the Project are not supported by substantial evidence. We are not persuaded.

The majority of these challenges are essentially a challenge to the noise study relied upon by the EIR. “When a challenge is brought to studies on which an EIR is based, ‘the issue is not whether the studies are irrefutable or whether they could have been better. The relevant issue is only whether the studies are sufficiently credible to be considered as part of the total evidence that supports the’ agency’s decision. [Citation.] ‘A clearly inadequate or unsupported study is entitled to no judicial deference.’ [Citation.] The party challenging the EIR, however, bears the burden of demonstrating that the studies on which the EIR is based ‘are clearly inadequate or unsupported.’ ” (State Water Resources Control Bd. Cases, supra, 136 Cal.App.4th at p. 795.)

EVHA claims the noise study inaccurately depicts the distance of one of the receivers used to collect data, and that this inaccuracy means the modeling done based on the data may cause the future noise levels to be understated. The noise study indicates the receiver is located 118 feet from the edge of US 50. EVHA argues, based on distance information obtained from Google Earth, that the study misstates the distance because “the center of the backyard of the residence is approximately 75 feet from the edge of the westbound land of US 50, and the house is approximately 110 feet from the edge of the westbound lane of US 50.” As noted in the response to comments incorporated in the final EIR, EVHA fails to offer any authority why the EIR should have accepted the distance information from Google Earth rather than the measurements taken on site by those conducting the noise monitoring. It still offers no such authority, so EVHA has not met its burden to show that the noise study was clearly inadequate for relying on this measurement.

With respect to collection of data at non-peak traffic times, the final EIR directly addresses this concern, which was raised in a comment to the draft EIR. It states, in relevant part, “[t]he noise measurements taken for the project were done in accordance with Caltrans Noise Protocol. Noise impact analysis is done based on the worst hourly traffic noise. The Caltrans Noise Protocol states that the peak traffic hour is generally not the noisiest hour since vehicles may be stopped or moving very slowly. The primary constituent in highway noise is tires moving along the pavement. Therefore, free-flowing traffic conditions just before or after rush hour often yield higher noise levels since this is the time when there are the most free-flowing vehicles (tires) moving along the highway surface.” EVHA fails to address or even acknowledge this response in the EIR. Therefore, it has failed to demonstrate that the noise analysis was inadequate on this basis.

EVHA also argues that the noise study uses an inadequate number of representative receivers to analyze the noise data. It claims standards require that for each subregion within the Project area, at least two representative receivers should have been analyzed, and that the noise study only used one representative receiver. In a response to the comment to the draft EIR that raised the same claim, the final EIR states, “[t]he noise analysis prepared for the proposed project utilized the methodology set forth in the Caltrans Traffic Noise Analysis Protocol (Protocol). The Protocol includes guidance for identifying noise-sensitive receptors and the methods for conducting noise measurements. An example of a complex project would be the development of a new highway covering several miles with varied terrain and land uses. For a project such as this, if the objective is to determine noise impacts of a highway project, sites should be selected in regions that will be exposed to the highest noise levels generated by the highway after completion of the project. As the proposed project involves the construction of an interchange and auxiliary lanes along an existing freeway within a limited area, there was no need to divide the area into subregions. The selection of the measurement sites and the modeled receptors was based upon the potential to expose residential uses within a limited area to the highest noise levels. Therefore, the use of two receptors for the noise analysis was done in accordance with the Protocol and was sufficient within a limited area.” Other than a conclusory reference in its reply brief stating that this is not substantial evidence, EVHA does not acknowledge or address this response. Therefore, it has failed to meet its burden to show that the noise study or analysis in the EIR is inadequate. Moreover, to the extent this claim is a dispute between EVHA’s expert and the City’s expert, that disagreement alone does not necessarily render the study clearly inadequate (CEQA Guidelines, § 15151), and EVHA has not shown that it is.

Finally, EVHA claims that conclusions drawn in the draft EIR regarding the benefit of acoustical shielding provided by the construction of on- and off-ramps for the Project at two locations are inaccurate.[4] As explained in the final EIR, which EVHA again fails to address or acknowledge, the draft EIR did not claim the noise levels would decrease, but that “development of the new on- and off-ramps would serve as a line of sight barrier for the receivers located [in three positions]. Because these receptors would no longer have a direct line of sight of U.S. 50, noise levels at these receivers would decrease from the No Build condition.” Indeed, neither the EIR nor the noise study even suggests that acoustical shielding would benefit one of the two locations identified by EVHA. And, with respect to the other, EVHA fails to address the comments in the final EIR. Additionally, EVHA’s dispute with the conclusion is based on the relative locations of the sites from the on- and off-ramps; however, it provides no record citation evidencing these relative locations. Therefore, it has failed to meet its burden to demonstrate insufficiency of evidence.

DISPOSITION

The judgment is affirmed. Respondents are entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

BUTZ , Acting P. J.

We concur:

MURRAY , J.

RENNER , J.