Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (241 Cal. App. 4th 627, 2015)

Opinion

WILLHITE, J.

In May 2012, the board of the Los Angeles County Metropolitan Transportation Authority (Metro) approved the Westside Subway Extension Project (the Project), which will extend the Metro Purple Line heavy rail transit (HRT) subway system to the Westside of Los Angeles. As approved, the Project will add almost nine miles to the Purple Line, with seven new stations. One of those new stations will be located in Century City, at Constellation Boulevard and Avenue of the Stars (the Constellation station). To reach this station, the subway will travel through a tunnel to be constructed under Beverly Hills High School (the high school).

During the planning and environmental review process, the Beverly Hills Unified School District (School District) and the City of Beverly Hills (City) objected to the placement of the subway tunnel under the high school (or other properties located in Beverly Hills). Following Metro’s approval of the Project, School District and City filed petitions for writ of mandate in the trial court, challenging that approval. School District’s petition alleged that Metro failed to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). City’s petition also alleged that Metro failed to comply with CEQA; in addition, City alleged that Metro violated its statutory obligations under Public Utilities Code section 30639 et seq. by failing to provide a full and fair hearing. The trial court denied both petitions.

On appeal, School District contends the judgment should be reversed because the final environmental impact statement/environmental impact report (EIS/EIR) relied on significant new and different information that was not in the draft EIS/EIR, and therefore Metro was required to prepare and recirculate a new draft EIS/EIR for public comment. City contends that Metro violated CEQA by failing to recirculate a new draft EIS/EIR and by failing to analyze localized air pollution and public health impacts from construction of the Project. In addition, City contends that Metro’s hearing under the Public Utilities Code (the transit hearing) violated statutory requirements because Metro prevented City from cross-examining or rebutting Metro’s expert witnesses. Finally, City contends (for the first time on appeal) that Metro’s decision following the transit hearing must be set aside as not supported by substantial evidence because the decision was based entirely on hearsay.

We conclude that substantial evidence supports Metro’s decision not to recirculate the EIS/EIR, and that the EIS/EIR adequately discussed air pollution and public health impacts. We also conclude that Metro did not violate the statutory requirements in conducting the transit hearing, that City received a full and fair hearing, and that substantial evidence supports Metro’s decision and findings of fact in light of the issues tendered for hearing. Accordingly, we affirm the trial court’s denial of School District’s and City’s petitions.

BACKGROUND

A. History of the Project

As anyone who has lived in Los Angeles over the past few decades knows, traveling between the Westside of Los Angeles and Downtown Los Angeles during commuting hours can be extremely frustrating. This is especially true when traveling eastbound in the late afternoon or early evening hours, when typical travel speeds on the Santa Monica Freeway and side streets are no more than eight miles per hour. Since the early 1980s, local, regional, and federal transportation planners have looked for solutions to this problem.

1. Early Planning Attempts

In 1985, during the planning for the Metro Red Line (which originally was going to follow Wilshire Boulevard to Fairfax Avenue and then proceed north to Hollywood and the San Fernando Valley), naturally occurring methane gas caused a fire at a store located along the proposed path (referred to as an “alignment”). As a result of an investigation into that incident, Congress prohibited federal funding for subway construction within a designated “Methane Gas Risk Zone” that included Wilshire Boulevard from Rossmore Avenue to San Vicente Boulevard. Congress ordered that a re-engineering study be conducted to determine an appropriate alignment to link Downtown Los Angeles, the San Fernando Valley, and the Westside while avoiding the Methane Gas Risk Zone. More than 40 possible alignments were reviewed, and six alignments were studied in detail. Ultimately, the alignment chosen to link Downtown Los Angeles and the San Fernando Valley — i.e., the Metro Red Line — ran from Union Station in Downtown Los Angeles to Wilshire/Vermont, where it split into two separate lines, one traveling west to Wilshire/Westem and the other traveling north to Hollywood and North Hollywood. That alignment was approved for construction, and was completed in 2000.

In the meantime, studies continued in order to determine an appropriate alignment for an extension of the subway to the Westside that would avoid the Methane Gas Risk Zone. In 1998, Metro suspended work on those studies after it concluded it did not have sufficient local matching funds to finance HRT subway projects in the Westside corridor. Instead, Metro’s studies focused on alternatives to an HRT subway extension, such as Bus Rapid Transit (BRT) and Light Rail Transit (LRT) lines.

2. Steps Leading up to Current Project

In 2005, Metro and the City of Los Angeles asked the American Public Transportation Association to organize a peer review panel of experts to reconsider the feasibility of tunneling within the Methane Gas Risk Zone along Wilshire Boulevard. A peer review panel was assembled, and it concluded that in light of the advances in tunneling technology and practice over the previous 20 years, tunneling in that zone could be undertaken at no greater risk than other subway systems in the United States. As a result of the panel’s findings, legislation was passed in Congress to repeal the prohibition on subway construction along Wilshire Boulevard; the repeal became effective in 2008. Also as a result of the panel’s findings, Metro’s board of directors authorized the resumption of an “Alternatives Analysis” (AA) study for all reasonable fixed-guideway transit alternatives, including the previously excluded subway alternatives.

a. The Project Development Process

Conducting an AA study is the required first step of the project development process for federally funded “New Starts” projects under the Federal Transit Administration (FTA). The purpose of the AA study is to focus on a specific transportation. need (or set of needs) in a given corridor, identify alternative actions to address those needs, and generate the information needed to select a preferred project for implementation, or a smaller set of viable alternatives for further study. The study identifies and evaluates a wide range of alternatives that are then screened against established criteria (such as costs, benefits, environmental and community impacts, and financial feasibility), and the most promising alternatives are recommended for further evaluation in the next step of the New Starts process.

The second step of the New Starts process is the draft EIS/EIR and “Advanced Conceptual Engineering” (ACE) phase. This step begins with a “scoping” process, during which the lead agency holds scoping and community outreach meetings, as well as meetings with public agencies and officials, to solicit input on the alternatives carried forward from the AA study. Following the scoping process, a draft EIS/EIR is prepared. Public hearings are held on the draft EIS/EIR, and a “Locally Preferred Alternative” (LPA) is selected. The local agency then applies to the FTA for entry into the third step in the process, the “Preliminary Engineering” (PE) phase.

If the FTA grants entry into the PE phase, a final EIS/EIR is prepared. Once the final EIS/EIR is approved, the lead agency applies for entry into the FTA final design phase, which includes the preparation of final construction plans.

b. Metro’s AA Study

In October 2007, Metro began the AA study phase with an early scoping process to help define the appropriate range of issues and the depth of analysis to be addressed in the AA. Metro identified primary alignments during the early scoping meetings based upon its previous planning studies for the Westside Extension. Those alignments, which included alignments along Wilshire Boulevard (from the current terminus of the Metro Purple Line) and Santa Monica Boulevard (from the Hollywood Boulevard/Highland Avenue station on the Metro Red Line), represented street rights-of-way that reasonably could be used in an at-grade, elevated, or subway configuration. Metro also presented a range of transit modes (HRT, LRT, BRT, and monorail) to be considered.

Metro received extensive comments from the public during early scoping. Most of those comments strongly supported the HRT subway mode over the other transit modes. A majority of comments on the alignments supported the Wilshire Boulevard alignment, although a significant number supported the Santa Monica Boulevard alignment and/or a combined Wilshire-Santa Monica alignment. A number of comments suggested route alignment deviations to serve major activity centers not located directly on those routes, and other comments suggested alternates to some of the potential station locations that were presented; for example, several comments suggested a station at Constellation Boulevard rather than at Santa Monica Boulevard in Century City.

Based on the results of the early scoping process, 17 build alternatives were developed for evaluation in the A A study, in five major categories; (1) Wilshire Boulevard-based HRT subway alignments; (2) Santa Monica Boulevard-based HRT subway alignments; (3) combined Wilshire Boulevard/Santa Monica Boulevard HRT subway alignments; (4) HRT, LRT, and monorail elevated alignments; and (5) BRT alignments. In addition, the AA study evaluated a “No Build Alternative” and a “Transportation Systems Management” alternative (i.e., an alternative in which the existing Metro Rapid Bus service and local bus service in the Westside study area would be improved with more frequent service), as required by the FTA.

Once the alternatives were defined, they were screened and evaluated through a series of steps. First, each alternative was screened to determine if it would meet the goals and objectives of the Project. This screening resulted in the elimination of 12 of the 17 initial build alternatives, and the five most promising alternatives were carried forward for more detailed analysis. All of the HRT subway alternatives included two options for stations in Century City — the Constellation station and the Santa Monica station — with two possible alignments from Wilshire/Beverly to the Constellation station.

In the next step, the merits of each of these five alternatives were evaluated on a more detailed basis and compared against the seven identified goals to determine which alternatives to recommend to be carried into the draft EIS/EIR. This more detailed evaluation resulted in a recommendation to carry forward two build alternatives — alternative 1 (a Wilshire Boulevard alignment extending the Metro Purple Line via Wilshire Boulevard to the City of Santa Monica) and alternative 11 (a Wilshire Boulevard/Santa Monica Boulevard combined alignment that extends a subway from the Metro Red Line Hollywood/Highland station via Santa Monica Boulevard to connect to the extended Metro Purple Line) — as well as the required “No Build” and “Transportation Systems Management” alternatives. The AA study also determined that five issues would need to be studied during the EIS/EIR process, and that resolution of those issues would lead to the selection of an LPA and preparation of an application to the FTA for advancement into the PE phase. One of those issues was station locations and physical alignments in West Hollywood, Century City, and Westwood.

The AA study took approximately 14 months to complete, during which Metro conducted several rounds of public meetings and targeted stakeholder meetings and received more than 900 comments. The Metro board approved the AA study in January 2009.

B. Development of the Draft EIS/EIR

The draft EIS/EIR phase began with another scoping process. During this process, Metro presented the two recommended build alternatives to the public in a series of NEPA/CEQA scoping meetings. The meetings were held between March and May 2009 for the purpose of soliciting further public input on those alternatives.

With regard to the Century City station location, four options were considered: Santa Monica Boulevard at Avenue of the Stars (previously identified as the Santa Monica station), Santa Monica Boulevard at Century Park East (the Santa Monica East station), Constellation Boulevard at Avenue of the Stars (previously identified as the Constellation station), and Avenue of the Stars between Constellation Boulevard and Santa Monica Boulevard (the Avenue of the Stars station). With regard to the alignment from Beverly Hills to Century City, three general alignments were presented to the public: the Santa Monica Boulevard route, the Constellation route, and the Avenue of the Stars route. The Santa Monica Boulevard route would proceed west from the Wilshire/Rodeo station beneath Santa Monica Boulevard, and would run to the Santa Monica East or Santa Monica station. The Constellation route would proceed southwest from the Wilshire/Rodeo station beneath residential neighborhoods to Constellation Boulevard and follow Constellation Boulevard to the Constellation station. The Avenue of the Stars route would proceed southwest from the Wilshire/Rodeo station beneath residential neighborhoods to Olympic Boulevard, where it would turn west to reach either the Constellation station or the Avenue of the Stars station.

During the scoping meetings, Metro received comments from the public on, among other things, the Century City station location options and the alignment options from Beverly Hills to Century City. A majority of the comments related to the Century City location expressed support for the Constellation station location, because it was closer to the center of Century City. As part of the scoping process, the City of Beverly Hills provided a list of concerns and issues it asked Metro to address during the draft EIS/EIR process. Those concerns and issues included construction impacts and duration of construction, safety and sustainability of above-ground infrastructure and buildings (noting that City’s mass transit committee preferred that the route be under Wilshire and Santa Monica Boulevards rather than under commercial and residential properties), and potential noise and vibration impacts of underground drilling.

Based on the public comments, Metro made some refinements in several areas, including refinements to two of the three routes from Beverly Hills to Century City presented at the scoping meetings. The refined Constellation route would proceed west from the Wilshire/Rodeo station underneath Santa Monica Boulevard; it would turn southwest at Lasky Drive, passing beneath the high school, and continue west to Constellation Boulevard. Metro held additional community outreach meetings from August 2009 through June 2010 to review the refinements with the public and to solicit further input on those refinements. Those meetings included a lunchtime open house in Century City to reach out to the business community and a special community meeting at Roxbury Park in Beverly Hills to provide an update on the proposed alignments linking the Wilshire/Rodeo and Century City stations.

The four Century City station locations, and the alignments that would be required to accommodate each location, underwent a preliminary engineering and environmental evaluation focused on engineering feasibility, construction feasibility, NEPA/CEQA considerations and community preference, urban design pros and cons, user benefits, and costs. Based upon the preliminary analysis, Metro eliminated the Santa Monica East and the Avenue of the Stars station locations and determined that the Santa Monica station and the Constellation station would be carried forward into the draft EIS/EIR for a more thorough analysis. Also based upon the preliminary analysis, Metro further refined the Beverly Hills to Century City alignment options, developing two routes to the Constellation station (the Constellation North route and the Constellation South route), and determined that the Santa Monica route and both Constellation routes would be further analyzed in the draft EIS/EIR.

C. Contents of the Draft EIS/EIR

Metro circulated the draft EIS/EIR on September 3, 2010, for a 45-day review and comment period. In its preface, the draft EIS/EIR stated that “[t]his Draft EIS/EIR is designed to take the decision process one step further by evaluating heavy rail subway extension alternatives in greater detail, including the following [items].” Among the items listed was “Station and alignment location options — Consideration whether to include certain stations, as well as the location of stations where options exist; comparison of optional routes for connecting station locations.”

The executive summary of the draft EIS/EIR explained that “Metro refined the two AA Study Alternatives and developed alternatives with different lengths to meet the fiscal constraints and funding timelines identified in the [Long Range Transportation Plan], This Draft EIS/EIR includes five Build Alternatives, station and alignment options, the base stations (i.e., stations without options), other components of the Build Alternatives, and minimum operable segments.[] [¶] A base alternative for the Build Alternatives and stations is described in Chapter 2 of this Draft EIS/EIR. Alignment (or segment) and station options to the base alternative alignment and stations are also included. The options are compared against the base alternatives and base stations to determine, among many environmental factors and goals and objectives, which more adequately meet the Project’s Purpose and Need.”

The five build alternatives examined in the draft EIS/EIR were as follows. Alternative 1 (Westwood/UCLA Extension) extends the Metro Purple Line from the Wilshire/Westem station to a Westwood/UCLA station, following the Wilshire Boulevard alignment. Alternative 2 (Westwood/Veterans Administration (VA) Hospital Extension) extends the Metro Purple Line farther, to the VA Hospital in Westwood. Alternative 3 (Santa Monica Extension) extends the Metro Purple Line even farther, to Wilshire Boulevard and 4th Street in Santa Monica. Alternative 4 (Westwood/VA Hospital Extension plus West Hollywood Extension) extends the Metro Purple Line as in alternative 2, and also extends the Metro Red Line from the Hollywood/Highland station through West Hollywood, connecting to the Wilshire alignment at Robertson and Wilshire Boulevards. Alternative 5 (Santa Monica Extension plus West Hollywood Extension) extends the Metro Purple Line as in alternative 3, and extends the Metro Red Line as in alternative 4. All five build alternatives included the two Century City station options (the Santa Monica station (referred to as the “base station”) and the Constellation station) and the three Beverly Hills to Century City alignment options (the Santa Monica route (referred to as the “base segment”), the Constellation North route, and the Constellation South route) that resulted from the scoping process for the draft EIS/EIR.

The draft EIS/EIR examined, among other things, air quality impacts from the construction and operation of each Project alternative (summarized from the “Air Quality Technical Report”), noise and vibration impacts (summarized from the “Noise and Vibration Technical Report”), and geologic hazards along each of the alternative alignments and at each station location option (summarized from the “Geotechnical and Hazardous Materials Technical Report”). The draft EIS/EIR then evaluated each of the alignment and station options against various environmental factors and the goals and objectives of the Project.

a. Air Quality

The draft EIS/EIR analyzed the air quality impacts from the operation of each build alternative (and the “No Build” alternative) at five sites along the proposed route, and concluded that operation of any of the build alternatives would not cause or exacerbate a violation of applicable ambient air quality standards, and would likely reduce regional emission levels.

The draft EIS/EIR also analyzed air quality impacts from the construction of the Project, although it noted that “[a]s the construction schedule is very preliminary at this time, construction emissions were estimated for each major activity.” The analysis included a breakdown by construction elements (i.e., a typical station with tunnel boring machine (TBM) entry/exit sites, a typical station without a TBM entry/exit site, and a maintenance facility) of the expected emissions of various pollutants, and compared those expected emissions to South Coast Air Quality Management District (SCAQMD) thresholds. It concluded that SCAQMD thresholds would be exceeded (1) for nitrous oxides for all construction elements and (2) for particulate matter smaller than or equal to 10 microns in size for construction of a typical station with TBM entry/exit sites.

The draft EIS/EIR recommended certain mitigation measures to reduce these impacts. It noted that implementation of those mitigation measures would reduce the particulate matter impacts to less than significant, and would reduce (although not to less than significant) the nitrous oxides impact.

b. Noise and Vibration

In analyzing the expected noise and vibration impact from the operation of the subway, the draft EIS/EIR identified potentially vibration-sensitive buildings along the proposed alignments. One of those buildings was the high school. Based upon the analysis, Metro concluded that during subway operations, the FTA ground-borne vibration criteria were not predicted to be exceeded at any vibration-sensitive buildings, but that the FTA ground-borne noise criteria was expected to be exceeded at several buildings, including the high school. The draft EIS/EIR recommended mitigation measures to minimize the potential for ground-borne noise impacts, which if implemented would reduce the impacts to a level below the threshold of significance.

With regard to noise and vibration impacts from construction, the draft EIS/EIR noted that the impacts will vary greatly depending upon location, with the greatest potential for impacts near stations, tunnel access portals, and construction laydown areas. It stated that construction noise impact was expected to be adverse. It also stated that the equipment used for underground construction could generate vibration levels that could result in audible ground-borne noise levels in buildings at the surface, depending on the depth of the tunnel and soil conditions. But it noted there were no noise complaints during tunneling operations for the Metro Gold Line Eastside Extension, which used the same equipment that will be used for the Project. It recommended several measures to reduce the potential for noise and vibration impacts associated with construction of the Project.

c. Geologic Hazards

In examining the geologic hazards, the draft EIS/EIR sought to determine, among other things, the location of active faults near the alignments and station locations. The draft EIS/EIR noted that active segments of the Santa Monica fault would cross portions of all of the alternative alignments studied. The Geotechnical and Hazardous Materials Technical Report, which was circulated with and referenced in the draft EIS/EIR, also noted that “[b]ased on preliminary findings from an ongoing geophysical study by the project study team, the fourth fault strand of the Santa Monica fault appears to run subparallel to Santa Monica Boulevard from about Avenue of the Stars to Westwood Boulevard .... Mactec [Metro’s expert] will present the results of their fault study in a forthcoming addendum report.”

The draft EIS/EIR also noted that the West Beverly Hills Lineament, which would cross the alignment in all of the alternatives in the vicinity of Moreno Drive and Santa Monica Boulevard in the Century City area, may be the surface manifestation of an active fault. It observed, however, that there was a dispute about the existence of the lineament, and that further evaluation of the lineament and its significance to the Project would be performed during design level investigations for the Project.

d. Evaluation of Century City Station and Alignment Options

The draft EIS/EIR began its evaluation of the Century City station and alignment options by stating: “In this portion of the project, there are both station location options and alignment options. Decisions on the best location for a Century City station can be made first, based upon various factors discussed below. Once a station location is selected, alignment options connecting that station location with adjacent stations can be evaluated. Accordingly, this section begins by highlighting the differences between the two location options for a Century City station.”

The draft EIS/EIR went on to state that the Santa Monica station location “is compromised by its close proximity to the Santa Monica fault. The optional Constellation site is farther from the fault and would have a lower seismic risk. The Constellation site is also more centrally located within Century City, enhancing walk access for many passengers boarding and alighting at Century City.” The draft EIS/EIR noted that if the station were located at Constellation, there would be two alignment options for connecting to the Wilshire/Rodeo station, and that neither the alignment options nor the station location options would have a significant impact on transit travel time between Century City and the Wilshire/Rodeo station.

D. Comments on the Draft EIS/EIR

The draft EIS/EIR was made available to interested parties, including residents, property owners, community groups, the business community, elected officials, and public agencies. Metro held five public hearings on the draft EIS/EIR, and received nearly 2,000 public and agency comments during the 45-day review and comment period. Many of the comments were related to the Century City station and alignment options.

Several comments were received from School District and City, and/or their representatives, opposing any alternative alignment that would require building tunnels under the high school and residential properties. The comments expressed concerns regarding student and teacher safety during construction and operation of the subway, interference with School District’s plans to modernize the high school buildings, interference with the use of the high school as an emergency shelter and crisis center, and decreased value in homeowners’ properties.

In addition, City noted that locating the Century City station at Constellation Boulevard would cost $56 million more than locating it at Santa Monica Boulevard, and questioned whether the Constellation station would result in significantly higher ridership than the Santa Monica station, since the Santa Monica station would provide a direct transit link to buses that operate along Santa Monica Boulevard. City also asserted, among other things, that additional analysis was necessary to determine the locations of the West Beverly Hills Lineament, the Santa Monica fault, and abandoned oil wells on the high school property, and that further study was needed of the potential noise and vibration impacts from operation of the subway under the high school and residences.

In addition, City submitted a letter from Shannon & Wilson, Inc., geotechnical and environmental consultants, summarizing its review findings from its geotechnical engineering report, which criticized certain portions of the geotechnical analysis in the draft EIS/EIR and suggested further studies and analysis.

E. Actions After the Public Comment Period

At a meeting of the Metro board of directors on October 28, 2010, after the public comment period for the draft EIS/EIR had expired, the Metro board identified alternative 2 (the Westwood/VA Hospital Extension) as the LPA for further study in the final EIS/EIR. The board did not identify which Century City station option and alignment option would be included in the LPA. Instead, it directed that both the Santa Monica and Constellation station options, along with the Constellation North and the Santa Monica Boulevard alignment options, be carried forward for further study.

The board approved a motion by director Zev Yaroslavsky “that during Final EIS/EIR preparation, staff fully explore the risks associated with tunneling under the high school, including but not limited to the following: risk of settlement, noise, vibration, risks from oil wells on the property, impact to use of the school as an emergency evacuation center, and overall risk to student, faculty and the community; and . . . [¶] that staff continue to work closely with the community and the City of Beverly Hills, and Century City and Westwood neighborhoods and provide them information from these analyses as soon as they become available.” The approved motion also “[directed staff to analyze the possibility of moving the subway tunnel in order to avoid all school buildings and avoid impacting any future plans to remodel Beverly Hills High School.” Finally, staff was directed to further investigate the nature and location of faults in the Century City area and their potential impact on station locations.

1. Metro’s Tunneling Safety Investigation

Metro’s experts conducted a further study of the potential risks identified by the Metro board, and released the Century City Area Tunneling Safety Report in October 2011. The report expanded upon the discussions in the draft EIS/EIR concerning the risk of settlement caused by tunneling, noise and vibration associated with tunneling and operating subways under the high school, the risks from tunneling in gassy ground and near oil wells, the risks of tunneling through fault zones, and the impact of the tunnel on the use of the high school as an emergency evacuation center. The report concluded that (1) tunneling could be safely carried out beneath the high school campus and residential neighborhoods through the use of state-of-the-art pressurized closed-face tunnel boring machines; (2) tunneling would not prevent future development of the high school campus because the crown of the tunnels has been set at 55 to 70 feet below the ground surface; (3) tunneling would not impact the use of the high school campus as an emergency evacuation center; (4) tunneling through fault zones can be done safely through the use of tools, designs, and construction methods that have been used elsewhere; (5) although tunnel construction may cause some low levels of noise and vibration for a day or two, vibration and noise levels during operation of the subway will be within the FTA requirements; (6) prior experience shows that tunneling through gassy ground can be done safely; and (7) tunnels have been safely constructed through oil well fields with no adverse incidents, and there will be procedures in place to locate and safely remove and re-abandon any oil wells encountered during tunneling.

The report also addressed the Metro board’s directive to analyze the possibility of moving the alignment to avoid all buildings on the high school campus. It noted that relatively large radius curves are needed both to construct the tunnel using tunnel boring machines, and to allow for sufficient train operating speeds, and there must be a tangent (straight) section of the tunnel going into and out of stations. It explained that during the ACE phase (part of the draft EIS/EIR phase), alignment studies were undertaken to minimize the length of the tunnel under buildings on the high school campus. The alignment presented in the draft EIS/EIR presented a longer tangent section into the Constellation station but would run directly under building B of the high school. An alignment studied in the ACE phase avoided tunneling under the two-story portion of building B, but was closer to the high school’s historic swimming pool building and required tighter curves. The report stated that the alignment to be presented in the final EIS/EIR presents smoother curves in the high school area, eliminates the influence on the swimming pool building, and passes beneath the south part of building B, which the report concluded provides the optimal layout for train operations and impacts on the high school buildings.

2. Metro’s Fault Investigation

During the early planning stages of the Project, Metro relied upon available published information (including the most recent geologic maps published by the California Geologic Survey) regarding the Santa Monica fault zone and the West Beverly Hills Lineament. That information indicated that the Santa Monica fault runs approximately parallel to Santa Monica Boulevard in the Century City area, north of the boulevard. During the draft EIS/EIR and ACE phase, geotechnical fault studies were performed at two locations in Century City. Those studies indicated that the Santa Monica fault zone includes strands that are farther south than previously mapped, and therefore the proposed Santa Monica station could be within the fault zone. Thus, the draft EIS/EIR noted that the Santa Monica station location “is compromised by its close proximity to the Santa Monica Fault which runs directly beneath Santa Monica Boulevard in this area.”

Metro conducted additional studies during the final EIS/EIR and PE phase to more precisely locate the Santa Monica fault zone. In addition, because there had never been a subsurface investigation to determine the exact location of the West Beverly Hills Lineament (which was suspected by some to be a fault), or whether it was an active fault, Metro conducted additional studies to make those determinations.

In the spring of 2011, Metro conducted geophysical and drilling studies that confirmed the presence of the Santa Monica fault zone crossing Santa Monica Boulevard at approximately Avenue of the Stars, i.e., the location of the Santa Monica station, rendering that station not viable for a public transit station. To avoid locating the station within the fault zone, Metro shifted the Santa Monica station to the east, at Santa Monica Boulevard and Century Park East (the Santa Monica East station) to allow for continued study of a station on Santa Monica Boulevard. However, Metro’s studies of the West Beverly Hills Lineament indicated that it crosses through the Santa Monica East station location and appears to be the northward extension of the Newport-Inglewood fault system, and thus must be considered an active fault. Therefore, Metro determined that that location also was not suitable for a public transit station. Metro’s studies also found that the Constellation station location is outside the zones of active faulting and therefore could be considered a viable option.

Metro’s studies were presented in the Century City Fault Investigation Report, which was made available to the public in October 2011 (a revised report was issued in Nov. 2011).

3. Metro Tunnel Advisory Panel and Independent Review Panel Reports

Metro’s tunneling safety and fault investigation reports were reviewed and evaluated by the Metro Tunnel Advisory Panel (TAP) and the “Independent Review Panel.”

TAP issued a summary report based on its own evaluations and its review of the tunneling safety and fault investigation reports. TAP concluded that (1) both the Santa Monica station and the Santa Monica East station locations are within active fault zones and are not acceptable sites for a station; (2) the Constellation station location is not in an active fault zone; (3) tunneling across the Santa Monica fault zone and the West Beverly Hills Lineament can be safely accomplished; (4) it is safe to tunnel under the high school and residences using the design and tunneling procedures outlined in the TAP report; (5) the presence of a tunnel under the high school will not prevent the high school from being used as an emergency center, nor will it prevent the high school from building new facilities over the tunnel; and (6) noise and vibration will be controlled and, if necessary, mitigated during construction and operations.

The Independent Review Panel found Metro’s tunneling safety and fault investigation reports to be “highly professional and technically sound.” It found that the conclusions in those reports were “valid and convincing, based on the high quality data assembled about active faults in the Century City area, the analyses of those data, and the quality and comprehensiveness of the information summarized regarding tunneling.” The panel stated that its findings were “based on a careful review of the data as well as detailed and candid discussions with Metro staff, project designers, geoscience experts engaged in the fault investigations, and [TAP].”

4. School District’s and City’s Expert Reports

In response to Metro’s tunneling safety and fault investigation reports, City and School District hired their own experts to review the Metro reports and/or conduct their own hazard assessment studies.

Shannon & Wilson, Inc., a geotechnical and environmental consultant firm hired by City, issued its report presenting the results of its review of the Metro reports on March 8, 2012. It “generally agree[d] that placing a station along the Santa Monica Boulevard alignment will be more risky than at Constellation Boulevard” due to the likelihood of faults along the Santa Monica fault zone. However, it stated that the West Beverly Hills Lineament “may not be considered active,” and recommended that further studies be conducted to determine whether the faults along Santa Monica Boulevard really are active and whether a station could be located somewhere along the boulevard. It also stated that Metro’s conclusion that the Constellation station location is not within a fault zone “is premature” because that location was not as thoroughly studied as the Santa Monica station location.

With regard to the safety of tunneling under the high school, Shannon & Wilson stated that “the conclusions that construction of tunnels, using state-of-the-practice closed-face Tunnel Boring Machines (TBMs) can result in negligible to minor settlements, and little to no impacts from gas, groundwater, and soil variability is a generally realistic assessment.” Shannon & Wilson also agreed with Metro that the tunnel would not impact the high school’s ability to construct other structures on the campus.

Another company hired by City to evaluate Metro’s tunnel safety and fault investigation reports, Exponent Failure Analysis Associates (Exponent), issued its report in February 2012. Generally, Exponent criticized Metro’s reports for failing to quantify or qualitatively assess the potential risks from the hazards identified in the reports. It then identified specific hazards, such as fault rupture hazard, gas hazard, and potential damage to buildings during tunneling, and suggested future steps that should or could be taken to properly assess the potential risks involved. It concluded that more studies and analysis were needed to accurately identify, quantify, rank, and mitigate the potential hazards posed by the Project before the appropriate station location could be determined.

Leighton Consulting, Inc., which School District hired to conduct an assessment of possible fault presence and activity at the high school, issued a report in April 2012. Since Leighton’s focus was on active faults beneath the high school campus, the report did not address whether the West Beverly Hills Lineament is active beneath the Santa Monica station or Santa Monica East station location. It concluded, however, that “no active faults associated with the [West Beverly Hills Lineament] are present on the campus of [the high school], associated buildings and nearby district structures.”

F. Release and Certification of Final EIS/EIR

Metro released the final EIS/EIR in March 2012. Although the EIS/EIR did not address the Shannon & Wilson and Exponent reports, which had been issued before the release of the EIS/EIR (or the Leighton report, which was issued after the release of the EIS/EIR), it did respond to each of the comments Metro received on the draft EIS/EIR, including City’s and School District’s comments. The final EIS/EIR also included several appendices (including one containing Metro’s fault investigation report and tunneling safety report), along with multiple technical reports.

1. Evaluation of the Century City Station Location and Alignment

With regard to the Century City station location, the EIS/EIR explained that Metro conducted further studies during preparation of the final EIS/EIR to address concerns raised by the community. It stated that Metro conducted further geotechnical studies to provide additional information about the Santa Monica fault in Century City, and determined that the original Santa Monica station would be located within the active fault zone. Therefore, that location no longer could be considered an option, and the location was shifted to the east (the Santa Monica East station) for evaluation in the final EIS/EIR. Further geotechnical studies were conducted, which concluded that the West Beverly Hills Lineament also was an active fault zone (the Newport-Inglewood fault zone), and that the Santa Monica East station would straddle that fault zone. Despite this conclusion, the EIS/EIR evaluated the environmental impacts of locating the station at this location, although it noted that “following a hard look in this environmental review process, the location is no longer considered a viable option because of its position on the Newport-Inglewood fault zone.”

Comparing the impacts of the Santa Monica East station to the Constellation station, the final EIS/EIR found that the alignment serving the Constellation station would be about one-quarter mile longer than an alignment serving the Santa Monica East station, which would add between 23 and 27 seconds of travel time. But it found that this slight increase in travel time would be compensated for by the fact that the Constellation station would be more centrally located within Century City, making it more convenient for potential transit riders in the area. It also predicted, based upon the regional travel demand forecasting model, that there would be more, than 3,000 additional daily boardings at the Constellation station than at the Santa Monica East station. With regard to property easements, the EIS/EIR noted that the alignment for the Constellation station would require tunneling beneath between 14 and 44 more properties than the alignment for the Santa Monica station. The EIS/EIR also noted that there would be fewer traffic impacts during construction of the Constellation station because Constellation Boulevard carries one-fifth the traffic volume of Santa Monica Boulevard and operates at a better level of service. Finally, the EIS/EIR observed that, unlike the Santa Monica East station location, the Constellation station location is in an area showing no evidence of faulting. Based upon this analysis, the final EIS/EIR recommended that the Century City station be located at the Constellation station location.

2. Discussion of Air Quality Construction Impacts

The final EIS/EIR stated that its assessment of the air quality construction impacts used factors from the California Air Resources Board’s Urban Emissions Model, a road construction emissions model developed by the Sacramento Metropolitan Air Quality Management District, and SCAQMD’s OFFROAD 2007 emission factors. The EIS/EIR set forth estimated daily construction emissions for each construction element, along with the estimated daily construction emissions for the entire Project, assuming that each emission source will occur during the same peak period. It showed that, under the concurrent construction scenario, SCAQMD thresholds will be exceeded for all pollutants when the total emissions over the duration of the construction period are accounted for. It explained that this is due to the accelerated schedule that was developed to minimize the disturbances that construction would bring to the residents and businesses in the construction area. Under the phased construction model, SCAQMD thresholds will be exceeded for all pollutants under phase 2 and phase 3, and for all pollutants except carbon monoxide in phase 1, due to the magnitude of the Project and the schedule that was developed to minimize the disturbances to residents and businesses.

The EIS/EIR recommended several mitigation measures to reduce the air quality emission impacts. It noted that these measures will help reduce impacts, but it is unlikely under the current construction plan that the emission levels (especially for nitrous oxides) will be below the SCAQMD threshold during construction, and therefore adverse effects will remain after mitigation. The EIS/EIR also recommended mitigation measures to reduce the air quality particulate matter impacts, and stated that with those measures it is predicted that particulate levels at each site will be below the SCAQMD threshold and will not result in adverse effects.

3. Metro’s Responses to City’s and School District’s Reports

Although Metro did not address City’s and School District’s reports in the final EIS/EIR, it issued detailed written responses to each of the reports provided by City and School District.

a. Shannon & Wilson Report

Metro issued its response to the Shannon & Wilson report on April 17, 2012. Metro noted that Shannon & Wilson agreed with Metro that it is not appropriate to construct a subway station within an active fault zone, and that there may be active faults along Santa Monica Boulevard between the main identified traces of the Santa Monica fault zone and the West Beverly Hills Lineament. Metro agreed with Shannon & Wilson’s conclusion that additional trenching would be necessary to conclusively determine whether there is active faulting along Santa Monica Boulevard in the Santa Monica fault zone and the West Beverly Hills Lineament. But it observed that, to rule out active faults, there would have to be continuous trenching through undisturbed, Holocene age, native sediments all along Santa Monica Boulevard, which was not feasible because the area has been densely developed and the sediments necessary to make the active fault determination have been largely removed by utility construction.

With regard to Shannon & Wilson’s criticism that Metro’s studies of the Constellation station location were not as thorough as its studies of the Santa Monica station location, Metro responded that a more thorough “level of fault investigation is done only when there is earlier information suggesting the likely presence of active faulting. Active faults do not just occur anywhere. They are localized into discrete zones that are readily identifiable from characteristic deformation features prominent in the landscape.” Metro noted that unlike the deformation features along Santa Monica Boulevard, “the site of the Constellation Station exhibits no topographic evidence for active faulting.” Nevertheless, Metro did analyze the subsurface structure of the area surrounding the Constellation station location, including examining: historical data, including historic aerial photographs, topographic maps, and geologic maps; data from previous geotechnical investigations in Century City, which has been extensively investigated for development of other nearby properties; and new borings, observation wells, and cone penetration tests conducted specifically for Metro.

b. Exponent Report

Metro issued its response to the Exponent report on April 4, 2012. Metro stated that it “disagrees with Exponent’s opinions and finds serious flaws in the conclusions drawn from its investigative approach. In a number of cases, Exponent does not acknowledge or is unaware of information and analyses that Metro conducted. Moreover, Exponent’s opinions frequently reflect a lack of familiarity with and expertise in underground construction and fault investigation, and are unsupported by facts.” Metro then addressed in detail each of Exponent’s criticisms and suggestions, explaining why the criticism or suggestion was unjustified, based upon incorrect information, or infeasible.

c. Leighton Report

Metro issued its response to the Leighton report on May 14, 2012. It observed that “[t]he Leighton investigation provides welcome new data to help constrain the location of identified faults within the [West Beverly Hills Lineament], beneath and adjacent to [the high school]. However, there is nothing in the Leighton report data that contradict Metro’s conclusion that there is no safe location to site a station on Santa Monica Boulevard in Century City.” Metro provided a more detailed response to each of Leighton’s comments and conclusions, and concluded that the new Leighton data, combined with previously collected data, confirms the presence of faulting through the Santa Monica East station location. And, since it is impossible to confirm that all of the faults that Metro has identified along the Lineament are inactive (due to the presence of subsurface infrastructure such as storm drains, water mains, and gas, sewer, and electric lines), Metro observed that the Leighton report does not affect Metro’s conclusion that a station on Santa Monica Boulevard is not viable.

4. Approval of Phase 1

The Metro board was scheduled to approve the Project, certify the EIS/EIR, and adopt CEQA findings at its regular meeting on April 26, 2012. Three days before the scheduled meeting, however, City requested a hearing under section 30639 (a transit hearing) regarding the location of the Century City station. (See discussion, pt. G, post.) Therefore, at the April 26 board meeting, the Metro board approved and adopted CEQA findings only as to phase 1 of the Project (to La Cienega Boulevard), and deferred action on phase 2 (which includes Century City) and phase 3 until after the transit hearing. The board did, however, certify the EIS/EIR at that meeting.

G. Request for, and Conduct of, Transit Heáring

As noted, on April 23, 2012 — three days before the Metro board meeting— City transmitted to Metro a resolution adopted by the Beverly Hills City Council requesting a transit hearing regarding Metro’s proposal to fix the location of a subway station facility at Constellation Boulevard and to fix the location of the related alignment beneath the high school. The resolution stated;

“Section 1. California Public Utilities Code Section 30639 provides that any city within the territorial jurisdiction of the Los Angeles County Metropolitan Transportation Authority may request a hearing before the Board of the Authority concerning any proposal by the Authority to fix the location of facilities.

“Section 2. The City of Beverly Hills has expressed its emphatic opposition to the proposal to locate a subway station facility at Constellation Boulevard in Century City because such a location includes a proposed subway tunnel alignment beneath Beverly Hills High School.

“Section 3. Important information concerning the impacts of the proposed location of the subway station and alignment, and alternatives to the proposed station and/or alignment location that would avoid impacts to Beverly Hills High School, have not been fully analyzed or discussed before the Board of the Metropolitan Transportation Authority.

“Section 4. The City Council of the City of Beverly Hills believes that the City, the public and the Board of the Metropolitan Transportation Authority would benefit from a full hearing regarding these subjects before any further decision is made concerning the Westside subway extension.

“Section 5. Pursuant to Public Utilities Code Section 30639, the City Council of the City of Beverly Hills hereby requests a hearing before the Board of the Los Angeles County Metropolitan Transportation Authority regarding the proposal to fix the location of a subway station facility at Constellation Boulevard in Century City and the proposal to fix the location of the related subway tunnel alignment beneath Beverly Hills High School.”

Metro set a special meeting of the board on May 17, 2012, to hold the transit hearing. Although City requested that Metro continue the hearing for a few days because two of its witnesses were unavailable on that date, Metro explained that it could not accommodate City’s request because “it is not possible to convene a meeting of a majority of the members of the MTA Board on a date other than May 17, 2012, and still be able to proceed to the Board’s next regular meeting scheduled for May 24, 2012,” at which the board would vote on the outcome of the transit hearing.

At the start of the hearing on May 17, Metro’s board chair, Antonio Villaraigosa, noted that the hearing was scheduled to take place between 1:30 p.m. and 5:00 p.m., and would be adjourned at 5:00 p.m. He explained that “[t]he purpose of this hearing is not to determine the best location for the Century City station of the Westside Subway Extension Project. Rather, the sole purpose of this hearing is to give the City of Beverly Hills and the Metropolitan Transit Authority an opportunity to present evidence in the form of testimony and/or exhibits regarding the reasonableness of the proposed Constellation station and tunnel alignment under Beverly Hills High School.” Chair Villaraigosa then turned the hearing over to the hearing officer, a local attorney unaffiliated with Metro, to conduct the hearing.

After introducing himself and explaining that his role was simply to facilitate the hearing, the hearing officer turned to the City Attorney and the assistant county counsel representing Metro and stated: “Mr. Wiener and Mr. Safer, let me first start by asking how you want to proceed. Should we have [Metro] simply submit its evidence and its proposal and then have [City] proceed? That seems to me to be the logical way to do it. And that basically gives [City] a maximum amount of time to make its presentation.” The City Attorney responded, “We are fine with that. Thank you.” Metro then submitted its evidence, which was a collection of CDs that contained the final EIS/EIR, and various reports related to the Century City station. After the City Attorney stated that City just received the CDs and did not know their contents, Metro’s counsel read a list of the contents and stated that most of the documents had been public for some time, and all of them were available online. The hearing officer then turned the floor over to City for its presentation.

The City Attorney began by telling the Metro board that it did not yet have the information necessary to make a fully informed decision about the Century City station location and alignment. He explained that “we are here to provide you with information that will allow you to make a choice that does not involve tunneling underneath Beverly Hills High School.” City (through one of its retained attorneys) then presented six expert witnesses to testify about geotechnical and other technical data.

The first witness was Philip Buchiarelli, a principal geologist with Leighton Consulting, the firm hired by School District to conduct a fault investigation of the high school. Buchiarelli testified about the results of the investigation, and spent the remainder of his testimony detailing his criticisms of Metro’s written response to the Leighton report.

The next witness was an engineering geologist, Eldon Gath, who assisted in the Leighton investigation. Gath’s testimony focused entirely upon Metro’s response to the Leighton report.

The third witness, Miles Kenney, was a geologist who evaluated the various subsurface studies done in the Century City area, i.e., Metro’s fault investigation reports and the Leighton report, and testified as to his interpretation of the data.

The fourth witness, Roy Shlemon, was not available on the day of the hearing, and gave his testimony by video; the video was admitted as an exhibit. Shlemon, a consulting geologist, prepared a report for Shannon & Wilson based upon his review of Metro’s original geological report for the Project. He testified that in his opinion, there was not enough geological investigation of the Constellation station site, and that more needed to be done to rule out faulting at that location.

The fifth witness was Tim Buresh, an engineer with experience building schools and subways. In his testimony, Buresh criticized the ridership model and ridership studies, cost estimates, and seismic studies Metro relied upon in the EIS/EIR, and challenged Metro’s conclusion that tunneling under the high school would not impact School District’s ability to construct new facilities on the high school campus.

The final witness was Subodh Medhekar, a chemical engineer specializing in risk and liability assessments, who assisted in the preparation of the Exponent report as well as a report responding to Metro’s response to the Exponent report. In his testimony, Medhekar criticized Metro’s failure to perform a risk assessment on the Century City station options, discussed his criticisms of Metro’s written response to the Exponent report, and explained what additional studies would be needed to properly evaluate the risks involved in locating a station at the Constellation site.

Following the presentation of witnesses, City’s retained counsel submitted a document regarding potential alignments that were not discussed and evaluated in the EIS/EIR. Explaining the purpose of this document, counsel stated: “We have throughout this hearing- — and we appreciate your time and attention to it — attempted to make the point not that we think there should be a Santa Monica station or that there should be a Constellation station or one is better than the other or so on and so forth. [¶] We’re not even attempting to argue that decision with you at this point. What we are simply saying is it is clear that there has not been sufficient investigation and not enough facts for you as a board to make that choice at this point. [¶] You may have thoughts about it, et cetera, but you don’t have sufficient data. And we’ve had numerous experts explain to you why that investigation has been incomplete, what should be done to answer those questions, and so on and so forth.” Counsel then went through the document and discussed various potential alignments that would not require tunneling under the high school.

In City’s closing statement, the City Attorney urged the board not to make any decision on the station location or alignment at that time: “As I said at the beginning, I believe we still have choices. I believe that it is unreasonable to choose a Constellation Boulevard station and an alignment under Beverly Hills High School while you still have information that you need to make an informed decision. [¶] And that is what needs to be done. ... If the information that has been presented to you today is not satisfactory, we should be looking for definitive information regarding whether or not there is an active fault under Santa Monica Boulevard and whether or not one of the alternative routes that we have suggested could reach Constellation Boulevard and avoid Beverly Hills High School and perhaps even avoid the issue of whether or not there is a seismic risk to putting a station at San