Stop Toxic Housing in Pasadena v. Dept. of Toxic Substances Control CA2/4 ( 2022 )

Filed 12/2/22 Stop Toxic Housing in Pasadena v. Dept. of Toxic Substances Control CA2/4
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
STOP TOXIC HOUSING IN B308608
PASADENA, INC.,
(Los Angeles County
Petitioner and Appellant, Super. Ct. No.19STCP04909)
v.
DEPARTMENT OF TOXIC
SUBSTANCES CONTROL,
Respondent;
SPACE BANK LTD and
PASADENA GATEWAY, LLC,
Real Parties in Interest and
Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Daniel S. Murphy, Judge. Affirmed.
Call & Jensen, Anurita S. Varma and Joshua G. Simon for Petitioner
and Appellant.
Rob Bonta, Attorney General, Edward H. Ochoa, Acting Chief Assistant
Attorney General, David A. Zonana, Supervising Deputy Attorney General,
and Shannon Clark, Deputy Attorney General, for Respondent Department of
Toxic Substances Control.
Snell & Wilmer, Jing (Jenny) Hua and Sean M. Sherlock for Real Party
in Interest and Respondent Pasadena Gateway LLC.
Parker, Milliken, Clark, O’Hara & Samuelian, Pedram Mazgani and
Gary A. Meyer for Real Party in Interest and Respondent Space Bank Ltd.
_________________________________
Stop Toxic Housing in Pasadena, Inc. (STHIP) appeals from the
judgment entered after the denial of its petition for writ of mandate. The
mandate petition sought to stop a mixed-use project (Project) proposed by
Pasadena Gateway LLC (Pasadena Gateway) at a site on Foothill Boulevard
in Pasadena (Site) that had a history of contamination as a result of military
use dating from the 1940s. Under the California Environmental Quality Act
(CEQA), the City of Pasadena (City) approved a Sustainable Communities
Environmental Assessment (SCEA; Pub. Res. Code, §§ 21155, et seq.)1 that
included the approval of the Department of Toxic Substances Control’s
(DTSC) Removal Action Workplan (RAW) to address the contamination.2
STHIP objected to the Project and the RAW under both CEQA and the
Hazardous Substances Account Act (HSAA) (Health & Saf. Code, §§ 25300, et
seq.). STHIP principally contended that changes to the final RAW based on
the discovery of additional contaminants rendered the Project description
1 All statutory references herein are the Public Resources Code unless
otherwise noted.
2 To aid in understanding all the acronyms used in the record and this
opinion, we include a glossary as an appendix at the end of our opinion.
2
unstable, and that insufficient evidence supports the RAW’s testing and
remediation plans, rendering them inadequate. The trial court denied the
petition, and we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Project was proposed under the Sustainable Communities and
Climate Protection Act of 2008 (Act) as a “transit priority project” because it
was located near the Sierra Madre Villa Metro station. The Act seeks to
integrate transportation and land use planning to reduce greenhouse gas
emissions. (Stats. 2008, ch. 728, § 1.) One type of development under the Act
designed to reduce greenhouse gas emissions from motor vehicles is a “transit
priority project.” Such a project is a development that contains at least 50
percent residential use, provides a minimum density of at least 20 units per
acre, and is located within one-half mile of a major transit stop or transit
corridor. (§ 21155, subd. (b).)
To encourage the development of transit priority projects, the Act limits
the extent of environmental review that a local agency must perform under
CEQA to approve them. Under the Act, if the project meets several criteria,
the local agency may review the project’s environmental effects in a
streamlined manner using an SCEA. (§§ 21155, subd. (a), 21155.2, subds. (a),
(b); see Sacramentans for Fair Planning v. City of Sacramento (2019) 37
Cal.App.5th 698, 706 (Sacramentans for Fair Planning).)
I. FACTUAL SUMMARY
Due the contamination of the Site, DTSC prepared a remedial
investigation/feasibility study (RI/FS) under Health and Safety Code section
25356.1.5, subdivision (a)(1), which requires adherence to the National Oil
3
and Hazardous Substances Contingency Plan (NCP) (40 C.F.R. §§ 300.1, et
seq.) (see Otay Land Co., LLC v. U.E. Limited, L.P. (2017) 15 Cal.App.5th
806, 866 [HSAA requires compliance with NCP]). As a result of the findings
generated by the RI/FS, DTSC prepared a RAW to deal with the
contaminants at the Site.
A. The Project
The Project will be built at 3200 East Foothill Boulevard in Pasadena.
The Project is a mixed-use development consisting of 550 apartment units,
9,800 square feet of retail space, parking structures, and landscaping. The
parties do not dispute the Project qualifies as a “transit priority project”
under section 21155 because it is located near the Sierra Madre Metro
Station.
B. The Site’s History
The Site is approximately 9.15 acres, which includes a small adjacent
parcel west of North Kinneloa Avenue. The Site is currently occupied by
numerous World War II era former Navy buildings that have been divided
into small storage units and small commercial businesses. The Site was used
from 1943 to 1973 by the United States Navy (the Naval Information
Research Foundation Undersea Center) and the California Institute of
Technology for research and development of weapons technology.3 Although
3 The facility has been known by several other names at different times
in its history including Foothill Plant of the Pasadena Annex, Pasadena
Naval Ordnance Testing Station, United States Naval Ordinance Test
Station, Naval Undersea Research and Development Center, and Naval
Undersea Center.
4
rockets and torpedoes were assembled at the Site, they were shipped to other
locations for testing.
Most of the buildings currently on the Site are one- or two-story,
primarily metal and wood framed structures typical of old buildings found on
a military facility. One of the buildings is a newer style, two-story, concrete
tilt-up, steel framed structure built in the 1970s. Areas of the Site outside of
the building footprints are primarily asphalt or concrete paved with the
exception of a small, landscaped area surrounding the 1970s building.
In 1978, the United States Government sold the property to Space
Bank. Currently, the Site is used by Space Bank Mini Storage as a storage
facility, and is occupied by 27 buildings, most of them consisting of the
buildings that had been built by the Navy from 1945 to 1954. Tenants at the
Site have included woodworking businesses, landscapers, building
contractors, and window awning assembly, as well as office tenants.
C. Previous Environmental Evaluations of the Site
Since 1991, approximately 22 environmental assessments of the Site
have been conducted. In 1991, the United States Army Corps. of Engineers
initiated contamination assessments of the Site. In 1998, a 2,000-gallon
gasoline tank and two 200-gallon diesel tanks were removed in a “clean
closure.”
In 1999, the Army evaluated the storm drain system, a former paint
and chemical storage building, an administration lab and torpedo assembly
building, a sanitary sewer pumping station, and an incinerator. The Army
recommended, among other things, removal of storm drainage dry pits
(containing arsenic, lead, semi-volatile organic compounds (SVOCs) and total
petroleum hydrocarbons (TPHs)), removal of sediment in floor drains
5
(containing metals and TPHs); and removal of sediment in catchment basins
(containing arsenic, lead, mercury, thallium, SVOCs and TPHs). A 2007
study of soil vapor found PCE, carbon tetrachloride, and freon. However,
contaminants of low mobility, including metals, VOCs, polycyclic aromatic
hydrocarbons (PAHs), polychlorinated biphenyls (PCBs) and heavier
hydrocarbons were unlikely to be a source of groundwater contamination.
Between 2003 and 2007, the DTSC issued cleanup orders and
negotiated with the Army to conduct further investigation at the Site.
D. Prospective Purchaser Agreement and Covenant Not to Sue
In 2007, Pasadena Gateway agreed with DTSC and the California
Regional Water Quality Control Board to perform certain environmental
cleanup of the Site under DTSC oversight in exchange for a covenant not to
sue.4 Pasadena Gateway and DTSC formally entered into an Agreement and
Covenant Not to Sue in November 2011 (later amended in 2017) (Agreement).
The parties filed a consent decree in the United States District Court for the
Central District of California in June 2014.
The Agreement required Pasadena Gateway to undertake a RI/FS,
conduct groundwater testing, and conduct soil and vapor response consistent
with the HSAA and the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA; 42 U.S.C. §§ 9601, et seq.; see 42
U.S.C. § 9605; 40 C.F.R. § 300.400, et seq.)
4 DTSC has authority to enter into agreements whereby DTSC covenants
not to sue or assert claims for environmental remediation against prospective
purchasers of environmentally impacted properties if such agreements are
sufficiently in the public interest. (Health & Saf. Code, §§ 58009, 58010.)
6
E. The RI/FS
1. Relevant Legal Requirements for RI/FS
Under the NCP, DTSC must conduct a RI/FS before choosing a
response action. The end goal of the RI/FS process is “to assess site
conditions and evaluate alternatives to the extent necessary to select a
remedy.” (40 C.F.R. § 300.430, subd. (a)(2).) The first step is the RI, which
seeks to “collect data necessary to adequately characterize the site for the
purpose of developing and evaluating effective remedial alternatives.” (40
C.F.R. § 300.430, subd. (d)(1).) DTSC is given significant leeway to develop a
RI process specific to the site. (Ibid; see Emhart Industries, Inc. v. New
Englander Container Company (D.R.I. 2017) 274 F.Supp.3d 30, 39–40
(Emhart Industries).)
DTSC transitions from the RI process of collecting data to the FS
process of selecting a remedy. “The national goal of the remedy selection
process is to select remedies that are protective of human health and the
environment, that maintain protection over time, and that minimize
untreated waste.” (40 C.F.R. § 300.430, subd. (a)(1)(i); Emhart Industries,
supra, 274 F.Supp.3d at pp. 39–40.)
While the RI and FS are labeled as separate steps in the process, the RI
does not end when the FS begins. Instead, “‘the RI and FS are interactive
processes that are conducted concurrently,’” such that “‘field investigation
activities will be ongoing during the development and screening of remedial
action alternatives.’” (Emhart Industries, supra, 274 F.Supp.3d at p. 40, fn.
4; 40 C.F.R. § 300.430, subd. (e)(1) [development of alternatives shall be fully
integrated with the site characterization activities of the remedial
investigation and preliminary remediation goals should be modified, as
necessary, as more information becomes available during the RI/FS].)
7
The Environmental Protection Agency (EPA) has issued guidance for
the preparation of a RI/FS (EPA Guidance). The EPA Guidance counsels that
“[t]he remedial investigation and feasibility study (RI/FS) process as outlined
in this guidance represents the methodology that the Superfund program has
established for characterizing the nature and extent of risks posed by
uncontrolled hazardous waste sites and for evaluating potential remedial
options. This approach should be viewed as a dynamic, flexible process that
can and should be tailored to specific circumstances of individual sites: it is
not a rigid step-by-step approach that must be conducted identically at every
site. The project manager’s central responsibility is to determine how best to
use the flexibility built into the process to conduct an efficient and effective
RI/FS that achieves high quality results in a timely and cost-effective
manner. A significant challenge project managers face in effectively
managing an RI/FS is the inherent uncertainties associated with the
remediation of uncontrolled hazardous waste sites. These uncertainties can
be numerous, ranging from potential unknowns regarding site hydrogeology
and the actual extent of contamination, to the performance of treatment and
engineering controls being considered as part of the remedial strategy. While
these uncertainties foster a natural desire to want to know more, this desire
competes with the Superfund program’s mandate to perform cleanups within
designated schedules. [¶] The objective of the RI/FS process is not the
unobtainable goal of removing all uncertainty, but rather to gather
information sufficient to support an informed risk management decision
regarding which remedy appears to be most appropriate for a given site. The
appropriate level of analysis to meet this objective can only be reached
through constant strategic thinking and careful planning concerning the
essential data needed to reach a remedy selection decision. As hypotheses
8
are tested and either rejected or confirmed, adjustments or choices as to the
appropriate course for further investigations and analyses are required.
These choices, like the remedy selection itself, involve the balancing of a wide
variety of factors and the exercise of best professional judgment.” (EPA
Guidance, pp. 1–3.)
2. The RI/FS
The RI/FS, dated November 2017, evaluated the extent of
contamination at the Site in connection with its historical usage, and
considered whether sufficient environmental investigations had been
conducted to address the possible areas of contamination. The FS was
conducted to screen options for remediation at the Site and to determine
which remedial options most adequately suit the project when weighing
factors such as effectiveness, cost, and implementation.
The RI/FS reviewed the 22 environmental assessments made at the
property since 1991, which included 382 soil samples and 157 soil gas
samples. Those investigations had found concentrations of heavy metals
(lead, arsenic, thallium and mercury), TPHs, and PAHs in the soil. Volatile
organic compounds (VOCs) were found in the soil and soil vapor. The storm
water system had the highest concentration of contamination, and soil vapor
contamination was highest in the southern and eastern areas of the Site.
Those areas under buildings that could not be accessed would be sampled
once existing structures were demolished.
The RI/FS conducted a human-health screening evaluation to
determine the risk of exposure from soil or air during construction, as well as
post-construction. The RI/FS concluded any such risk would be eliminated by
Site development due to the paving of the Site.
9
With respect to groundwater, there was limited data because none of
the sampling reached the groundwater. There are no surface water features
in the planned development of the Site. Further, groundwater under the Site
is expected to be greater than 300 feet deep and is not a planned source of
drinking water or any other use for future Site development.
However, the RI/FS identified groundwater as a potential exposure
pathway. Pursuant to the 2017 amendment to the Agreement, Pasadena
Gateway will prepare a groundwater investigation workplan and undertake
groundwater sampling concurrently with the completion of the RAW. The
groundwater sampling requires installation of four monitoring wells to
depths beyond 300 feet, as well as 17 soil samples at the well sites, consistent
with EPA methods. Additionally, the investigation workplan will include a
Health Risk Assessment which will evaluate whether the groundwater
monitoring results reflect levels that either exceed the appliable or relevant
and appropriate requirements (ARARs) or pose a potential human health
risk.
The RI/FS recommended excavating the sources of soil and soil gas
contamination. Excavation would include the storm water drainage system
and soil hotspots, with disposal being made offsite.
F. The RAW
The Project required approval of a RAW by DTSC to allow for the
removal of on-site contaminants to levels that would protect human health
and the environment.5
5 The RAW is discussed in greater detail in connection with DTSC’s
response to public commentary.
10
The RAW, dated December 20, 2017, was prepared by the firm of Ninyo
& Moore for Pasadena Gateway and was to be submitted to DTSC for the
mitigation of environmental impacts. The RAW was designed to identify and
evaluate removal approaches to clean up the Site for suitability as a future
residential and commercial project. Licensed engineers prepared the RAW,
and the RAW was reviewed by DTSC and by an independent environmental
consulting firm hired by the City (Alta Environmental).
The RAW observed that historical research and development
operations by the Navy resulted in releases of VOCs, heavy metals, and
petroleum hydrocarbons into soil, storm drains and seepage pits at the Site.
The RAW proposed excavation, removal and disposal of impacted soils to off-
site permitted facilities. The proposed removal action was estimated to take
80 days, and a total of 745 cubic yards (approximately 55 truckloads) of
contaminated soil would be removed and disposed of at permitted facilities.
As an integral part of the removal actions, confirmation soil sampling, a soil
gas survey and a site-specific health risk assessment will be conducted to
confirm that the Site is suitable for residential use prior to construction.
The RAW also established cleanup standards that ARARs for the
contaminants identified at the Site. Chemical-specific ARARs are health- or
risk-based cleanup standards or methodologies that, when applied to site-
specific conditions, result in the development of cleanup standards for
contaminants. Chemical-specific ARARs are numerical values or
methodologies that, when applied to site-specific conditions, establish the
allowable amount or concentration of a chemical that may be found in, or
discharged to, the ambient environment, and will form the basis for Site-
specific cleanup goals. The RAW set forth that the published screening levels
11
(SLs) from the EPA or DTSC will be used as ARARs for assessing successful
mitigation of areas of concern (AOCs) through confirmation sampling.
The RAW summarized previous environmental studies at the Site.
Based upon those studies, the RAW found four AOCs at the Site: (1) the Site’s
storm drain system, which was contaminated by metals and PAHs (AOC1);
(2) five known and two suspected storm water seepage pits, which are
contaminated by metals, petroleum hydrocarbons and PAHs (AOC2); (3) four
additional hotspots contaminated by metals, petroleum hydrocarbons, and
VOCs (AOC3); and (4) low-level VOCs in soil gas throughout the Site (AOC4).
The RAW proposed that AOCs would be excavated to below published
screening levels. If necessary, AOC4 would be mitigated based on the results
of a soil gas survey and human health risk assessment to be performed after
the demolition of existing structures and completion of remediation of AOCs
1 through 3. If necessary, vapor mitigation systems (VMS) will be installed.
The RAW evaluated three alternatives to achieve removal goals,
ultimately approving a second alternative. This alternative required
excavation of the storm water system and sewage pits, as well as the
contaminated soil in and around them; excavating the contaminated soil in
the hot spots located in other areas; and conducting a soil gas survey, human-
health risk assessment, and vapor instruction mitigation.
All buildings at the Site will be demolished. After demolition, VOCs in
soil gas will be evaluated for human health risk and to determine that the
Site is suitable for development.
With respect to groundwater, the depth to groundwater at the Site is
expected to be greater than 300 feet below ground. The RAW specified that
“[g]roundwater conditions are generally unknown at this Site. Under the
Porter-Cologne Water Quality Act, further investigation may be warranted
12
and reportable to the Los Angeles Regional Water Quality Control Board and
to DTSC. The workplan to investigate possible contamination will be
submitted to DTSC (as lead agency for this Project) for review and approval
concurrent with redevelopment construction.”
G. The SCEA and City Certification
The City issued its SCEA in February 2018. The City held a public
comment period on the SCEA from February 8, 2018 through March 26,
2018. The SCEA found that impacts stemming from hazardous substances
will be reduced below levels of significance through implementation of the
activities outlined in the RI/FS and the RAW. The City required Pasadena
Gateway to obtain DTSC’s approval on the RAW to remove soil
contamination on the Site prior to its development.
In July 2018, the City certified the SCEA and approved the Project.
H. Comments on the RAW and DTSC Response
On March 8, 2019, DTSC gave public notice of the RAW and held a
public meeting on March 28, 2019. Present at the meeting were the DTSC
Project manager, toxicologist, geologist, and others who explained the RAW
and answered questions.
DTSC reviewed written comments on the RAW and responded. DTSC
identified five major categories of comments, and responded as follows:
1. Substance of Comments: “The Site had not been adequately
investigated for explosives and thus the investigation needed to be
reopened”
DTSC response: DTSC concluded that the “Site is adequately
characterized for the proposed removal action.” DTSC found the available
historical Navy records indicated that the Site was used primarily for
13
research and development activities which included machining, assembling
and hydrodynamic testing of rockets and torpedo prototypes, and electronic
guidance systems and components.
Since 1999, DTSC has overseen environmental investigations with 382
soil samples and 157 soil gas samples collected throughout the Site at
locations that were deemed to be most likely impacted with chemicals
associated with the known operations. Soil samples were collected from
storage sheds, laboratories floor drains, vehicle maintenance area, sewer
system, storm drains, and seepage pits. Laboratory analyses were conducted
for a wide range of chemicals associated with historical operations, which
included: VOCs, SVOCs, PAHs, TPHs, dioxins and furans, PCBs, heavy
metals (chromium, lead, arsenic, etc.), N-nitroso dimethylamine (NDMA),
perchlorate, and Otto fuel.6
There was no evidence that functional tests of weapon systems were
conducted at the Site. Navy historical records indicate that functional live-
fire weapons testing was conducted at the Navy’s China Lake facility and
propulsion tests were conducted at Morris Dam. Due to the absence of
records regarding laboratory-scale explosives use in the facility’s combustion
laboratories, a work plan to sample Site soil for hexahydro-1,3,5-trinitro-1, 3,
5-triazine (RDX) and 2,4,6-trinitrotoluene (TNT) (commonly used explosives)
along with their degradation products would take place as part of removal
action activities. If these compounds are detected above screening levels, the
current health-protective cleanup standards will be used for any necessary
cleanup activities to protect future residential users.
6 Otto fuel is 1,2-propanediol dinitrate.
14
Per- and polyfluoroalkyl substances (PFAS) were not identified as a
contaminant of concern (COCs) at the Site because extensive past
investigations did not identify use of PFAS at the Site. The Department of
Defense (DoD) has identified PFAS as an emerging contaminant of concern at
former and current DoD facilities. As the Site was a former Navy facility,
and to conclusively rule out PFAS as a contaminant of concern with empirical
data, DTSC will require the developer to sample and analyze Site soil and
groundwater for PFAS as part of the RAW implementation.
2. Substance of Comments: “The newly established Water Board
Environmental Screening Level (ESL) for VOCs in soil and soil gas
are more protective than the proposed cleanup goals”
DTSC response: The Water Board ESLs are used as a screening tool,
typically in the investigation phase, to determine if further Site-specific
evaluation of VOCs in soil vapor is warranted. The Site-specific cleanup
goals for VOCs and other contaminants in both soil and soil vapor are
evaluated and specified in the RAW based on current standards. These
cleanup standards are intended to be protective of the intended residential
land use.
3. Substance of Comments: “Groundwater at the Site has not been
adequately investigated even though two municipal wells within one
mile of the Site have been closed. If the development is allowed to
proceed before groundwater has been investigated, it will prevent
future soil excavation as part of a future groundwater remedy”
DTSC response: There was no data indicating groundwater at the Site
is contaminated or that the Site is the source of any groundwater
contamination. The two municipal wells identified were closed due to
mechanical problems, and elevated concentrations of nitrates are a regional
15
issue. Pasadena Water and Power confirmed this information at the
Pasadena City Council meeting on May 13, 2019. Groundwater will be
investigated as part of the cleanup activities, and if it is determined that
further groundwater investigation and/or remediation is necessary, DTSC
will pursue the additional remedial work with the parties responsible for the
contamination. Proven in-situ remedial technologies can be used to
remediate subsurface soils and groundwater, even without physical access to
the surface area over a release.
4. Substance of Comments: “The plan to leave hazardous waste in place
after the removal action would endanger children and future
residents, causing cancer and birth defects along with learning and
other lifelong disabilities. Because there are no quantifiable cleanup
goals in the RAW, confirmatory sampling will not be reliable because
it will be conducted by a consultant retained by the developer and
will therefore be biased. Site cleanup activities would expose the
community to risk from contaminants with fugitive dust and VOCs
emission”
DTSC response: Because the cleanup levels in the RAW are for
residential and unrestricted use, no hazardous waste levels of contamination
will be left in the soil or soil gas. The RAW specified residential cleanup
goals for chemicals of concern in soil and soil gas after the cleanup; data from
confirmatory sampling of soil and a soil gas survey will be used to complete a
human health risk assessment prior to development of the Site. If necessary,
the RAW requires a vapor intrusion mitigation system to protect future Site
residents. The soil and vapor samples will be analyzed by laboratories that
are certified under the California Environmental Laboratory Accreditation
Program. Sampling data will not only be carefully evaluated by DTSC, it will
also be validated by an independent third-party professional in accordance
with the EPA Level 2 validation process.
16
As part of the RAW implementation activities, fugitive dust,
particulates and emission of volatile organic compounds will be controlled
with the application of water, dust control foam and plastic covers, as
necessary. In addition, air and weather monitoring devices within the Site
and along the fence line will measure air quality as required by the South
Coast Air Quality Management District (SCAQMD). The air monitoring
activities will ensure that RAW implementation activities conform to
SCAQMD’s requirements for dust, volatile organic compounds emission and
particulate emissions. Pasadena Gateway will be required to comply with the
relevant permit and notification requirements. DTSC will oversee RAW
implementation activities to ensure adherence to the RAW.
5. Substance of Comments: “Re-open the SCEA because it does not
adequately address those issues previously mentioned above. DTSC’s
statement of findings in compliance with CEQA determined that the
Project has significant environmental effects but is approving the
Project due to Project benefits that outweigh the significant
environmental effects. DTSC has not demonstrated that the Project
benefits outweigh the significant environmental effects”
DTSC response: The SCEA, developed and approved in 2018 by the
City, is similar to a mitigated negative declaration because the Project’s
mitigation measures reduce impacts to a level of insignificance. Since the
City is the CEQA lead agency for the whole transit priority project, decisions
on the CEQA document rest with the City. The RAW is a part of the City’s
larger Project, and DTSC is classified as a responsible agency under CEQA.
Consequently, DTSC’s authority is limited to oversight of the remediation
activities detailed in the RAW, and DTSC has no authority to reopen the
SCEA. DTSC analyzed the potential environmental impacts associated with
the RAW’s proposed removal activities, and determined that (a) those
proposed activities, including the changes required to address the public
17
comments received in 2019, will not result in a significant adverse impact to
the environment, and (b) none of the conditions in Guidelines section 15162
would require reopening of the SCEA.
Although “Otto” fuel was detected in low concentrations at the Site,
other chemicals associated with rocket fuel were not found. There was no
evidence of weapons testing or manufacture at the Site.
DTSC did not identify PFAs as a contaminant of concern because past
investigations had not found they were used at the Site. Nonetheless, DTSC
agreed to develop a work plan to identify any explosives (RDX, TNT) at the
Site and proposed cleanup if such chemicals were detected “above screening
levels.”
Under CEQA, on August 5, 2019 DTSC issued a Statement of Findings,
which concluded that the proposed Project will not result in a significant
impact to the environment. DTSC filed a Notice of Determination on August
6, 2019.
I. SIWP (Supplemental Investigation Work Plan)
After approval of the RAW, STHIP complained that additional
chemicals existed at the Site that had not been evaluated (the explosives
TNT and RDX and fire-fighting chemical PFA). STHIP asserted that
“virtually all US military sites” used PFAs to control explosives and fuel-
based fires.
STHIP complained that certain contaminants of concern (COCs)
including TNT, RDX and PFAs do not break down in the environment and
travel into the groundwater. STHIP asserted the current excavation did not
dig deep enough to assure the PFAs would be removed from the soil. The
current studies did not evaluate the groundwater or sufficiently test for these
18
chemicals. STHIP continued to assert that weapons were manufactured or
tested at the Site.
As a result of STHIP’s concern, on September 19, 2019, Ninyo and
Moore, the preparers of the RAW, submitted the SIWP. The SIWP was
designed to study the Site for TNT, RDX and PFAs. The SIWP identified
small concentrations of Otto fuel (which it indicated was not used as a
propellant for torpedoes). The SIWP explained that if explosive compounds,
such as RDX or TNT, were stored on Site, the most likely location would be in
the small storage shed previously located south of Building 5 as shown on a
2007 Site evaluation. If RDX or TNT were released on Site, the release
would have most likely collected in the storm drain catch basins near
Buildings 3 and 5, and then ultimately discharge into the seepage pits on
Site. Therefore, the proposed sampling for the potential presence of residual
explosive compounds, such as RDX and TNT, and PFAS would be conducted
from all accessible seepage pits and select storm-drain inlets in the vicinity of
Buildings 3, 5, 18, and 131. Testing would be conducted for PFAs.
DTSC approved the SIWP on September 24, 2019.
II. PROCEDURAL HISTORY
A. Petition for Writ of Mandate
On November 15, 2019, STHIP filed a petition for writ of mandate,
stating one claim under CEQA and two claims under HSAA.7 STHIP argued
that DTSC violated CEQA by approving the Project despite significant
changes to the 2017 RAW which identified new information regarding
7 A copy of the petition is not part of the record, although the
memorandum of points and authorities in support of the writ petition is
included in the appendix.
19
explosives (RDX and TNT) and PFAs. STIP argued that the RAW failed to
comply with the HSAA because it did not adequately characterize the
contamination at the Site and did not mitigate all contaminants of concern.
B. Trial Court Ruling
The trial court issued its statement of decision on August 21, 2020.
1. Challenges Under CEQA
(a) Accurate and Stable Project Description
The court rejected STHIP’s argument that DTSC failed to provide an
accurate and stable project description because the RAW initially did not
include explosives (RDX, TNT) or PFAs. The trial court observed that “[t]he
‘CEQA reporting process is not designed to freeze the ultimate proposal in the
precise mold of the initial project; indeed, new and unforeseen insights may
emerge during investigation, evoking revision of the original proposal.’” (See
East Sacramento Partnerships for a Livable City v. City of Sacramento (2016)
5 Cal.App.5th 281, 290; see also Citizens for a Sustainable Treasure Island v.
City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1053
[projects descriptions have built-in flexibility to respond to changing
conditions and unforeseen events].) Where, as here, the modification arose
from “new and unforeseen insights” and is in alignment with purposes of the
RAW (to identify and remove hazardous substances from the Site), it is
plainly permissible. Indeed, a contrary conclusion would undermine the
change-in-response-to-comment process that is a basic function of CEQA.
(b) Adequacy of Findings Under CEQA
The court rejected STHIP ’s contention the RAW failed as an
informational document because it did not adequately describe the impact of
RDX, TNT and PFAs at the Site or the remedial measures DTSC proposed.
20
After observing that it was the function of the SCEA, not the RAW, to
identify all environmental impacts and contain measures to mitigate such
impacts to a level of insignificance (§ 21155.2, subd. (b)(1)), the court
concluded that DTSC had provided sufficient information concerning
contaminants at the Site. DTSC repeatedly noted that there was no direct
evidence that these contaminants are present at the Project Site even though
“multiple environmental studies” had been performed at the Project Site.
Further, DTSC noted that such contaminants were unlikely present because
of “the location of the facility, in the middle of heavily populated Pasadena,
its small size and infrastructure (wooden buildings), and the lack of any
consequential energetic material detected in soil.”
(c) Subsequent or Supplemental Environmental Review
The court rejected STHIP’s contention that the identification of the
three new hazardous substances warranted subsequent or supplemental
environmental review. The court did not find substantial changes in the
Project under Guidelines section 15162, subdivision (a). First, the mitigation
measures were materially the same as the previously adopted mitigation
measures, and second the RAW already included comprehensive mitigation
measures. Finally, the court rejected STHIP ’s argument that there was
evidence in the record that explosives were present at the Site, pointing out
that the court was entitled to rely on the contrary evidence in the
administrative record.
21
2. Challenges Under HSAA
STHIP asserted the RI/FS did not comply with HSAA in numerous
respects.8
(a) Characterization of the Contamination
i. Site Access and Sampling
The court observed that the NCP provides that agencies like DTSC
have the authority to enter any facility, establishment, or other place “and
conduct, complete, operate, and maintain any response actions authorized by
CERCLA or these regulations” for purposes of “determining the need for
response, or choosing or taking a response action.” (40 C.F.R. § 300.400,
subd. (d).) Further, the NCP states that lead agencies must “[d]evelop
sampling and analysis plans that shall provide a process for obtaining data of
sufficient quality and quantity to satisfy data needs.” (40 C.F.R. § 300.430,
subd. (b)(8).)
STHIP contended that DTSC violated NCP requirements for full Site
access by allowing Pasadena Gateway to impose access restrictions on the
RAW’s Site characterization. STHIP also claimed that although buildings
cover the majority of the Site, most of the buildings had no soil samples and
the soil samples were not taken at sufficient depth or near the water tables.
However, the court found the evidence established Pasadena Gateway
granted DTSC access to the Site and has collected samples across the Site to
aid DTSC in determining an appropriate response action.
The court held the EPA Guidance makes clear that sampling methods
involve the use of discretion because sampling must be suited to the site
8 The trial court concluded STHIP had failed to exhaust its
administrative remedies because it failed to raise its challenges during the
comment period. Nonetheless, the court addressed STHIP ’s arguments on
the merits.
22
being analyzed. Here, samples were collected from storage sheds, laboratory
floor drains, vehicle maintenance area, sewer system, storm drains, and
seepage pits. Among other things, sub-slab sampling focused on several
buildings of industrial use with higher environmental concerns, and deep soil
boring sampling focused on locations believed to possess the highest potential
for soil contaminant migration affecting groundwater. Given DTSC’s
extensive sampling across the Project Site and the discretion with which
DTSC is vested to make sampling decisions, DTSC’s sampling decisions were
supported by substantial evidence.
ii. Identification of All Contaminants at the Project Site
As part of the RI process, the NCP at 40 C.F.R. section 300.430,
subdivision (d)(2) requires lead agencies to “characterize the nature of and
threat posed by the hazardous substances and hazardous materials [at the
project site] and gather data necessary to assess the extent to which the
release poses a threat to human health or the environment or to support the
analysis and design of potential response actions by conducting, as
appropriate, field investigations to assess the following factors [¶] . . . [¶]
(iii) The general characteristics of the waste, including quantities, state,
concentration, toxicity, propensity to bioaccumulate, persistence, and
mobility.” (40 C.F.R. § 300.430, subd. (d)(2)(iii).)
Petitioner contended that the RI/FS did not comply with this NCP
requirement by failing to identify RDX, TNT and other explosives associated
with weapon research and development. The court rejected this argument for
the same reason it rejected STHIP’s CEQA claims.
23
iii. Cleanup Standards for the Additional Contaminants
The court observed that according to the NCP, during the RI process,
“[t]he lead and support agency shall identify their respective potential
ARARs related to the location of and contaminants at the site in a timely
manner.” (40 C.F.R. § 300.430, subd. (d)(3).) ARARs are “the benchmark by
which the effectiveness of a remedial action selected by [agencies] to clean up
hazardous substance contamination is measured.” (United States v. Iron
Mountain Mines, Inc. (1997) 987 F.Supp. 1263, 1267, fn. 5.)
STHIP contended that the RI/FS and the RAW were deficient because
they fail to identify ARARs for RDX, TNT, and PFAs. DTSC did not identify
these additional contaminants at the Project Site until after preparation of
the RI/FS and draft RAW because there was no evidence that the
contaminants existed at the Project Site. Accordingly, DTSC had no
obligation to identify ARARs for these contaminants.
iv. Identification of Sources of VOCs
STHIP contended that the RAW and underlying RI/FS did not comply
with the NCP because they failed to identify the sources of VOC soil gas. The
NCP states that, during the RI process, the lead agency shall conduct field
investigations to assess “[t]he extent to which the source [of contamination]
can be adequately identified and characterized.” (40 C.F.R. § 300.430, subd.
(d)(2)(iv).)
The court held substantial evidence supports DTSC’s VOC source
identification efforts. The RI/FS tested for VOCs at several locations at the
Project Site and detected VOC in soil gas “throughout the Site in all areas
and at depths of approximately 5 feet [below ground] to 150 feet [below
ground]” although the VOCs were “more focused in the southern and eastern
24
portions.” The RI/FS concluded that “[t]he most likely source of the VOCs is
the former military operations on the Site.” Based on these results, DTSC
has decided to require removal of the storm drain system and seepage pits
located in the southern and eastern portions of the Project Site, and DTSC
will require confirmation sampling after removals of soils.
v. Testing for Offsite Contaminant Migration
The RI/FS EPA Guidance states that field investigations should “us[e]
the information on source location and physical site data (e.g., ground-water
flow directions, over land flow patterns) to give a preliminary estimate of the
locations of contaminants that may have migrated.” Further, DTSC guidance
on vapor intrusion notes that, in determining the extent and pathways of
contaminants, “uses of adjacent properties should be determined in order to
evaluate potential exposure associated with offsite migration of subsurface
contamination.”
STHIP claimed that the RI/FS did not comply with NCP requirements
for off-site testing of contaminant migration. However, the trial court found
that NCP does not contain a sweeping requirement that agencies perform off-
site testing, and even the DTSC guidance document cited by STHIP merely
states that “uses of adjacent properties” should be considered in evaluating
potential exposure. The court concluded the only issue raised by STHIP’s
argument was whether substantial evidence supports DTSC’s decision not to
perform off-site testing for contaminant migration in light of the NCP’s
mandate that agencies assess “the general characteristics of the waste,
including [its] mobility.” (40 C.F.R. § 300.340, subd. (d)(2)(iii).)
The court found that substantial evidence supported DTSC’s decision
for two reasons. First, DTSC analyzed contaminant exposure pathways to
25
determine how those pathways might affect human health. The RI/FS
concludes that “site development will essentially eliminate the soil exposure
pathway because the site will be entirely built-up with structures . . . and
paved roadways” and the RAW addresses any lingering soil exposure
pathways to construction workers via a soil management plan.
Second, the RAW required that cleanup of contaminants meet
standards for residential, unrestricted use. Once these standards are met,
“no hazardous waste levels of contamination [should] be left in the soil or soil
gas.” The court found “[t]hese requirements make clear that DTSC is not
abdicating its cleanup responsibilities and is ensuring that any
contamination migration flowing from the [Site] is stopped.”
vi. Groundwater Testing
The RI/FS EPA Guidance notes that the nature and extent of
groundwater contamination should be evaluated both horizontally and
vertically, and it should be determined if contamination of an aquifer is
present and if such contamination could potentially affect human or
environmental receptors.
STHIP contends that the RI/FS does not meet NCP requirements for
groundwater characterization by failing to require groundwater tests until
after Site construction. The court concluded this argument failed for similar
reasons cited above about soil testing. While groundwater testing at the Site
was an essential step in ensuring an adequate cleanup, this does not
necessitate the finding that groundwater testing must occur immediately.
26
(b) Challenges to RAW
STHIP challenged the adequacy of the RAW’s remediation strategy,
which involved soil excavation, off-site disposal of the soil, soil gas surveys,
and vapor intrusion mitigation, if necessary. STHIP pointed to the RAW,
which explained that soil excavation will occur at 13 locations to address
PAHs, TPHs, and VOCs, in storm drains, seepage pits, and other associated
hot spots; confirmation samples would be collected from excavation pits, and
if the soil meets cleanup goals, the excavations will be backfilled and graded
smooth. If cleanup goals are not attained, excavation will continue to the
depth the equipment will allow. Finally, if confirmation samples still exceed
permissible levels, a slurry cap will be placed at the depth of excavation
terminus.
STHIP contended that this remediation option was inadequate because
it does not accord with relevant EPA Guidance. The court disagreed. The
EPA’s “preferred long-term response” is what the RAW strives to accomplish
by requiring multiple rounds of excavation of the Site’s hotspots. Vapor
mitigation systems would be installed only in the event that these multiple
excavation efforts fail to adequately remove the contaminants. The EPA
Guidance does not preclude the use of such mitigation where elimination of
the contaminants is deemed impracticable, and STHIP failed to show that
installation of such systems would not address lingering vapor intrusion
risks.
DISCUSSION
I. CEQA
STHIP argues that the addition of the SIWP represented a vastly
enlarged Project compared to what originally appeared in the RAW, and the
27
Project failed to give sufficient information regarding the new COCs. (See
Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818(Santiago.) Further, STHIP disputes the trial court’s finding that the new
COCs were not integral to the RAW and argues that new COCs will dictate
new remedies. Finally, it argues that the trial court improperly imposed a
wrongful intent requirement under County of Inyo v. City of Los Angeles
(1977) 71 Cal.App.3d 185, 193 (County of Inyo) to find that DTSC did not
improperly exclude information regarding the new COCs. As a result, STHIP
contends the RAW fails as an information document under CEQA. We
disagree.
A. Standard of Review
We review STHIP’s CEQA challenge to the SCEA under the
administrative writ statute, Code of Civil Procedure section 1094.5.
(§ 21168.) Our review in a CEQA case, as in other mandamus actions, is the
same as that of the trial court. (In re Bay-Delta etc. (2008) 43 Cal.4th 1143,
1162.) We review the agency’s action, not the trial court’s decision, and our
inquiry extends only to whether there has been a prejudicial abuse of
discretion on the part of the agency. (Id. at pp. 1161–1162.) An agency
abuses its discretion under CEQA either by failing to proceed in the manner
CEQA requires or by reaching factual conclusions unsupported by substantial
evidence. (Banning Ranch Conservancy v. City of Newport Beach (2017) 2
Cal.5th 918, 935; Code Civ. Proc., § 1094.5, subd. (b).) We review the City’s
decision to analyze and approve a transit priority project through an SCEA
under the substantial evidence standard. (§ 21155.2, subd. (b)(7).) We do not
exercise our independent judgment on the evidence but only determine
28
whether the agency’s decision is supported by substantial evidence
considering the whole record. (§ 21168.)
Under CEQA, judicial review of procedural error and factual error
differs significantly. While we determine de novo whether the agency has
employed the correct procedures, we accord greater deference to the agency’s
substantive factual conclusions. (Sacramentans for Fair Planning, supra, 37
Cal.App.5th at p. 722.) We presume the City’s findings and actions are
supported by substantial evidence, and STHIP bears the burden of showing
the City’s findings are not supported by substantial evidence. (Ibid.)
We do not pass upon the correctness of the SCEA’s environmental
conclusions, but only upon its sufficiency as an informative document. (In re
Bay-Delta etc., supra, 43 Cal.App.4th at p. 1161.) Generally, that inquiry is a
mixed question of law and fact subject to de novo review, “but to the extent
factual questions predominate, a more deferential standard” of review
applies. (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516 (County of
Fresno).)
Finally, substantial evidence is reasonable, credible, and of solid value.
A finding is not supported by substantial evidence if there is no reasonable
basis for it in the record. (Department of Water Resources Environmental
Impact Cases (2022) 79 Cal.App.5th 556, 573.) We accept the trial court’s
resolution of credibility and conflicting substantial evidence, and its choice of
possible reasonable inferences that can be drawn from the evidence. (Ibid.)
In doing so, we resolve all conflicts in favor of the trial court’s findings. We
do not determine whether substantial evidence would have supported a
contrary judgment, but only whether substantial evidence supports the
judgment actually entered by the trial court. (Yazdi v. Dental Bd. of
California (2020) 57 Cal.App.5th 25, 32.)
29
B. The SCEA
As we recently explained, CEQA advances four related purposes:
(1) informing the government and public about a proposed project’s potential
environmental impacts; (2) identifying ways to reduce or avoid environmental
damage; (3) preventing environmental damage by requiring project changes
via alternatives or mitigation measures when feasible; and (4) disclosing to
the public the rationale for governmental approval of a project that may
significantly impact the environment. (Southwest Regional Council of
Carpenters v. City of Los Angeles (2022) 76 Cal.App.5th 1154, 1171
(Southwest Carpenters).)
As noted above, because the Project was governed by the Sustainable
Communities Act, that Act limited the extent of environmental review that
the local agency must perform under CEQA. If a transit priority project
(1) “is consistent with the general use designation, density, building
intensity, and applicable policies specified for the project area” in the
strategy; and (2) incorporates all feasible mitigation measures, performance
standards, and criteria set forth “in the prior applicable environmental
impact reports” and which were adopted as findings, then the local agency
may review the project’s environmental effects in a streamlined manner
using an SCEA. (§§ 21155, subd. (a), 21155.2, subds. (a), (b); see
Sacramentans for Fair Planning, supra, 37 Cal.App.5th at p. 706.)
Review is streamlined because an SCEA is not required to analyze
certain types of environmental impacts. It need not discuss growth inducing
impacts or any project-specific or cumulative impacts on global warming or
the regional transportation network that may arise from automobile and
light-duty truck trips generated by the project. (§ 21159.28, subd. (a).) Also,
where the lead agency determines that a cumulative effect has been
30
adequately addressed and mitigated in prior applicable certified
environmental impact reports, that cumulative effect shall not be treated as
cumulatively considerable and subject to further environmental review.
(§ 21155.2, subd. (b)(1).) In addition, the SCEA is not required to analyze
offsite alternatives, nor is it required to reference, describe, or discuss a
reduced residential density alternative to address the effects of car and light-
duty truck trips generated by the project. (§§ 21155.2, subd. (c)(2); 21159.28,
subd. (b).)
Under the Sustainable Communities Act, the SCEA functions like an
EIR in many respects. Like an EIR, an SCEA is considered “an informational
document” designed to “provide public agencies and the public in general
with detailed information about the effect [of] a proposed project . . . on the
environment.” (§ 21061.) The SCEA provides methods by “which the
significant effects of such a project might be minimized” and proposes
alternatives to the project. (Ibid.) “The EIR must set forth not only
environmental impacts and mitigation measures to be reviewed and
considered by state and local agencies, but also project alternatives
[citations]—including a ‘no project’ alternative. [Citation.] . . . ‘[T]he
mitigation and alternatives discussion forms the core of the EIR.’ [Citation.]”
(Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th
677, 713.)
The failure to comply with CEQA’s informational requirements does
not require reversal unless there is prejudice. (§ 21005, subd. (b).) Such
prejudice is found, however, if the failure to include relevant information
precludes informed decision-making and informed public comment. (Washoe
Meadows Community v. Department of Parks & Recreation (2017) 17
Cal.App.5th 277, 290 (Washoe Meadows).) The omission of relevant
31
information is deemed prejudicial “‘regardless of whether a different outcome
would have resulted if the public agency had complied with those provisions.’
[Citations.]” (Ibid., citing § 21005, subd. (a).)
Relevant to the SCEA here, the primary purpose “of an EIR is to give
the public and government agencies the information needed to make
informed decisions, thus protecting ‘“not only the environment but also
informed self-government.”’ [Citation.]” (In re Bay-Delta, supra, 43 Cal.4th
at p. 1162.) “The ultimate inquiry, as case law and the CEQA guidelines
make clear, is whether the EIR includes enough detail ‘to enable those who
did not participate in its preparation to understand and to consider
meaningfully the issues raised by the proposed project.’ [Citations.]” (County
of Fresno, supra, 6 Cal.5th at p. 516.) The sufficiency of an EIR is to be
evaluated in light of what is reasonably feasible. (California Oak Foundation
v. Regents of University of California (2010) 188 Cal.App.4th 227, 262.) “The
overriding issue on review is thus ‘whether the [lead agency] reasonably and
in good faith discussed [a project] in detail sufficient [to enable] the public [to]
discern from the EIR the “analytic route the . . . agency traveled from
evidence to action.” [Citation.]’ [Citation.]” (Ibid.)
C. Changes To The RAW Did Not Violate CEQA’s Stable Project
Requirement
A draft EIR must contain a project description. (South of Market
Community Action Network v. City and County of San Francisco (2019) 33
Cal.App.5th 321, 332 (SoMa).) An accurate project description is the “sine
qua non” of an informative and legally sufficient EIR. (Ibid.) According to
the Guidelines, the project description must include (a) the precise location
and boundaries of the proposed project, (b) a statement of the objectives
32
sought by the proposed project, (c) a general description of the project's
technical, economic and environmental characteristics, and (d) a statement
briefly describing the intended use of the EIR. (Guidelines, § 15124, subds.
(a)–(d).)
In addition, the project description must be “accurate, stable and
finite[.]” (County of Inyo, supra, 71 Cal.App.3d at p. 193.) “A project
description that gives conflicting signals to decision makers and the public
about the nature of the project is fundamentally inadequate and misleading.
[Citation.]” (SoMa, supra, 33 Cal.App.5th at p. 332.) Whether the EIR
adequately describes the project is reviewed de novo. (Washoe Meadows,
supra, 17 Cal.App.5th at p. 287.)
1. The Identification of the New COCs Did Not Constitute a
Substantial Change in the Project Description
We conclude that the addition of several COCs that identified toxic
substances that might be on the Site did not constitute a substantial change
to the Project description. In Southwest Regional Carpenters, supra, 76
Cal.App.5th 1154, we held that modifications to the retail/commercial
configuration of a mixed-use project after comments had closed did not render
the project description unstable. We observed that “[t]he project, from
inception through approval, was a mixed-use commercial/residential project
on a defined projects site. The only changes involved the composition and
ratio of the residential to commercial footprint, but the . . . overall size of the
project remained consistent, and the site remained the same.” (Id. at p.
1179.)
Even assuming the evidence supports a finding that the COCs were
present at the Site, Southwest Regional Carpenters governs our analysis.
33
Here, the Site was contaminated with a number and variety of toxic
chemicals, and the focus of the testing and feasibility studies was to analyze
whether the Site could be remediated with respect to these chemicals. Thus,
at all times (even after the SIWP), the focus was on removal and
identification of contaminants. Whether additional, unknown chemicals were
present at the time of the approval of the SCEA would not change the
necessity of remediation. Further, monitoring was built into the process so
that even if unforeseen COCs were discovered at the Site, they could be dealt
with.
In that regard, Santiago is readily distinguishable. In Santiago, a
water district challenged an EIR for a mining operation in its district.
(Santiago, supra, 118 Cal.App.3d at p. 822.) Santiago concluded that the EIR
provided inadequate information about water supply in two respects.
(Santiago, supra, at p. 829.) First, the EIR did not provide information about
the facilities that would be needed to deliver water to the mining operation
“or facts from which to evaluate the pros and cons of supplying the amount of
water that the mine will need.” (Ibid.) Instead of analyzing the impact that
supplying water to the mining operation would create, the EIR simply stated,
incorrectly, that the district had indicated its ability to supply the water.
(Santiago, supra, at pp. 830–831.) Second, the EIR was “silent about the
effect of that delivery on water service elsewhere in the Water District’s
jurisdiction.” (Santiago, supra, at p. 831.) Santiago held that the EIR lacked
“information about how adverse the adverse impact will be.” (Ibid.)
Here, extensive and detailed environmental analysis took place at the
Site, with numerous contaminants identified. The entire Site had been
mapped for contaminants, and an analysis of the effect of the removal process
and subsequent development had been undertaken. The remediation process
34
has monitoring built in with repeated testing as contaminants are removed.
Any “new” COCs identified would necessarily be addressed as planning and
execution of remediation takes place. Thus, their presence on the Site does
not render the Project description unstable.
2. There Was Sufficient Opportunity to Comment on the RAW
STHIP contends the RAW fails to comply with Guidelines section 15201
because there was no opportunity for meaningful review and the RAW was
approved without any public comment.
“Public participation is an essential part of the CEQA process.”
(Guidelines, § 15201.) Several CEQA provisions recognize its importance.
For example, an agency must provide public notice that it is preparing an
EIR or a negative declaration (§ 21064) before approving a project, although
individuals need not be given notice unless they have previously requested it.
(§ 21092.) In addition, the Guidelines provide for a period of public review for
a draft EIR or for a negative declaration. (Guidelines, §§ 15073, 15087.)
As one commentator has noted, “the ‘privileged position’ that members
of the public hold in the CEQA process . . . is based on a belief that citizens
can make important contributions to environmental protection and on
notions of democratic decision-making.” (Selmi, The Judicial Development of
the California Environmental Quality Act (1984) 18 U.C.Davis L.Rev. 197,
215–216.) “CEQA compels an interactive process of assessment of
environmental impacts and responsive project modification which must be
genuine. It must be open to the public, premised upon a full and meaningful
disclosure of the scope, purposes, and effect of a consistently described
project, with flexibility to respond to unforeseen insights that emerge from
the process.” (County of Inyo v. City of Los Angeles (1984) 160 Cal.App.3d
351178, 1185.) A project must be open for public discussion and subject to
agency modification during the CEQA process. This process helps
demonstrate to the public that the agency has in fact analyzed and
considered the environmental implications of its action. (Concerned Citizens
of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929,
935–936.)
Here, there was sufficient opportunity for public comment. The public
was aware, through the RI/FS and the RAW, that the Site had a long history
of contamination resulting from military use. Testing at the Site disclosed
numerous contaminants in the soil and soil gas and ruled out other
contaminants based on this historical use. Testing results were disclosed in
the RI/FS and the RAW and the public comment period on DTSC’s findings
was sufficiently lengthy to permit adequate input. That, after the close of the
comment period, STHIP raised the issue of contaminants not found at the
Site does not render the comment period inadequate. Furthermore, STHIP
cannot demonstrate any prejudice from the introduction of the SIWP to the
analysis after the comment period closed.
3. Substantial Evidence Supports the Trial Court’s Conclusion
the COCs Were New and Unforeseen, and Recirculation Was
Not Required
STHIP contends the identification of the new COCs constituted a
substantial change in the Project, requiring the preparation of a new SCEA.
It also contends that the trial court erred in finding that the new COCs were
“unforeseen.” We disagree.
“If the lead agency adds ‘significant new information’ to the EIR
subsequent to the close of the public comment period but prior to certification
of the final EIR, CEQA requires that the lead agency provide a new public
36
comment period. (§ 21092.1.)” (Guidelines, § 15088.5, subd. (a); Laurel
Heights Improvement Assn. v. Regents of University of California (1993) 6
Cal.4th 1112, 1124–1125, italics omitted; Mount Shasta Bioregional Ecology
Center v. County of Siskiyou (2012) 210 Cal.App.4th 184, 217.) Recirculation
means making the revised EIR available for public review and consulting
with the other agencies again before certifying the EIR. (Guidelines,
§ 15088.5, subd. (d).) “New information added to an EIR is not ‘significant’
unless the EIR is changed in a way that deprives the public of a meaningful
opportunity to comment upon a substantial adverse environmental effect of
the project or a feasible way to mitigate or avoid such an effect (including a
feasible project alternative) that the project's proponents have declined to
implement.” (Id., subd. (a).)
“‘Significant new information’ requiring recirculation includes, for
example, a disclosure showing that: [¶] (1) A new significant environmental
impact would result from the project or from a new mitigation measure
proposed to be implemented[;] [¶] (2) A substantial increase in the severity
of an environmental impact would result unless mitigation measures are
adopted that reduce the impact to a level of insignificance[;] [¶] (3) A
feasible project alternative or mitigation measure considerably different from
others previously analyzed would clearly lessen the significant environmental
impacts of the project, but the project’s proponents decline to adopt it[;] [¶]
(4) The draft EIR was so fundamentally and basically inadequate and
conclusory in nature that meaningful public review and comment were
precluded.” (Guidelines, § 15088.5, subd. (a).)
Recirculation is thus not required simply because new information is
added. The final EIR will almost always contain information not included in
the draft EIR given the CEQA statutory requirements of circulation of the
37
draft EIR, public comment, and response to these comments prior to
certification of the final EIR. Recirculation was intended to be an exception,
not the general rule. (South County Citizens for Smart Growth v. County of
Nevada (2013) 221 Cal.App.4th 316, 328.)
Here, as discussed above, the addition of the SIWP detailing the actions
to be taken if the new COCs were in fact found at the Site is not sufficiently
“new” to require recirculation for additional comment. Throughout the
process, the basic focus of the RAW was contaminants and their cleanup.
The addition of new COCs did not require additional comment. Indeed,
STHIP fails to demonstrate how their presence undermined any remedial
action that would be undertaken.
II. VIOLATION OF HSAA
A. Legal Principles
The Carpenter–Presley–Tanner Hazardous Substance Account Act
(HSAA), Health and Safety Code section 25300, et seq., is California’s version
of CERCLA (42 U.S.C. § 9601 et seq.) (Foster–Gardner, Inc. v. National
Union Fire Ins. Co. (1998) 18 Cal.4th 857, 865, fn. 4.) The HSAA utilizes
CERCLA definitions except where the HSAA defines terms differently or “the
context requires otherwise.” (§ 25310; Otay Land Co., LLC v. U.E. Limited,
L.P., supra, 15 Cal.App.5th at p. 822.)
As California’s counterpart to CERCLA, HSAA provides a
comprehensive scheme to ensure the timely and cost-effective cleanup of
hazardous substance release sites. (See City of Lodi v. Randtron (2004) 118
Cal.App.4th 337, 352 (City of Lodi).) The stated purposes of HSAA are
threefold: (1) to provide for response authority for releases of hazardous
substances that pose a threat to the public health or environment, (2) to
38
provide compensation for out-of-pocket medical expenses and lost wages or
business income resulting from injuries caused by exposure to hazardous
substances, and (3) to make available adequate funding to meet federal
requirements that California pay 10 percent of the cleanup costs. (Health &
Safety Code, § 25301; City of Lodi, supra, 118 Cal.App.4th at p. 352.)
The focus of HSAA’s statutory scheme is the DTSC, which has “the sole
authority to administer the statewide program for the remediation of
hazardous waste contamination” at sites identified for remediation under the
HSAA. (City of Lodi, supra, 118 Cal.App.4th at p. 355.) “Once DTSC has
confirmed that contamination at a particular site poses a significant threat to
human health or safety or to the environment and lists the site in its
published list of hazardous substance release sites, the problem is designated
as one of statewide concern, requiring application of uniform standards,
procedures, and remedies subject to the jurisdiction of DTSC.” (Ibid.) In
appropriate cases, the relevant RWQCB may also have authority over a
specific site. (Health & Safety Code, §§ 25356, subd. (h), 25356.1, subds. (a),
(b), (c).)
To implement this scheme, HSAA “establishes authority, procedures,
and standards to carry out the investigation, removal and remediation of
contaminated sites.” (Orange County Water Dist. v. Alcoa Global Fasteners,
Inc. (2017) 12 Cal.App.5th 252, 299 (Orange County Water Dist.); City of Lodi,
supra, 118 Cal.App.4th at p. 352.) Any response actions taken must “be
based upon, and no less stringent than, . . . [t]he requirements . . . of the
National Oil and Hazardous Substances Pollution Contingency Plan [NCP].”
39
(Health & Safety Code, § 25356.1.5, subd. (a)(1).)9 The NCP is a body of
regulations governing the clean up of hazardous waste sites under CERCLA.
(See 42 U.S.C. § 9605(a); 40 C.F.R. Part 300; Redwing Carriers, Inc. v.
Saraland Apartments (1996) 94 F.3d 1489, 1496, fn. 8.) Under section
25356.1.5, HSAA adopts the NCP and defines terms as they are defined in
CERCLA. Indeed, “HSAA incorporates the NCP standard by reference.”
(Fireman’s Fund Ins. Co. v. City of Lodi, California (9th Cir. 2002) 302 F.3d
928, 949.) Finally, the HSAA requires that “[a]ny health or ecological risk
assessment prepared in conjunction with a response action taken or approved
pursuant to this chapter shall be based upon [the NCP] (40 C.F.R. 300.400 et
seq.)” (§ 25356.1.5, subd. (b).)
A response action is NCP compliant if the action is, among other
things, “in substantial compliance with the applicable requirements.” (40
C.F.R. § 300.700(c)(3)(i).)
B. Relevant Principles of HSAA
STHIP argues that DTSC failed to comply with HSAA in numerous
respects because the RI/FS did not comply with NCP and failed to include
sufficient testing and remediation at the Site. STHIP ’s arguments focus on
40 C.F.R. section 300.430, governing remedial investigations/feasibility
studies.
Section 25356.1.5, subdivision (a)(1) obligates DTSC to follow the NCP.
The NCP states that the purpose of a remedial investigation is “to collect
data necessary to adequately characterize the site for the purpose of
9 The purpose of the NCP is to provide the organizational structure and
procedures for preparing for and responding to discharges of oil and releases
of hazardous substances, pollutants, and contaminants. (40 C.F.R.
§ 300.100.)
40
developing and evaluating effective remedial alternatives.” (40 C.F.R.
§ 300.430, subd. (d)(1).) DTSC must assess “[t]he extent to which the source
[of the contaminants] can be adequately identified and characterized.” (40
C.F.R. § 300.430, subd. (d)(2)(iv).) However, a RI/FS is a dynamic, flexible
process tailored to the specific circumstances of individual sites. (40 C.F.R.
§ 300.430, subd. (a)(2).) EPA Guidance sets forth instructions for conducting
a RI/FS under CERCLA. The project must determine “how best to use the
flexibility built into the process to conduct an efficient and effective RI/FS
that achieves high-quality result in a timely and cost-effective manner.”
Along those lines, the objective of the RI/FS process is “not the unobtainable
goal of removing uncertainty, but rather to gather information sufficient to
support an informed risk management decision regarding which remedy
appears to be most appropriate for a given site.”
As discussed above, DTSC must conduct a remedial investigation (RI)
and feasibility study (FS) before choosing a response action. The end goal of
the RI/FS process is “to assess site conditions and evaluate alternatives to the
extent necessary to select a remedy.” (40 C.F.R. § 300.430(a)(2).) “The
national goal of the remedy selection process is to select remedies that are
protective of human health and the environment, that maintain protection
over time, and that minimize untreated waste.” (40 C.F.R. § 300.430(a)(1)(i);
Emhart Industries, supra, 274 F.Supp.3d at pp. 39–40.)
We review the trial court’s factual findings for substantial evidence.
(Orange County Water Dist., supra, 12 Cal.App.5th at p. 304.)
C. DTSC Complied with Relevant Provisions of the NCP
STHIP asserts that the RAW did not properly characterize the Site; did
not identify or test for the new COCs; did not locate all sources of VOC
41
contamination; did not provide adequate remediation of VOCs; did not test
for offsite contamination; and did not adequately address groundwater
contamination. (See 40 C.F.R. § 300.430.) We disagree.
1. The RAW Correctly Characterizes the Site
STHIP contends the RAW incorrectly characterizes the Site because
DTSC only conducted a limited investigation into the Site and the RAW
defers much of the remedial work. STHIP alleges DTSC only conducted a
cursory and limited investigation and instead deferred much of the Site
characterization work to a later date, violating NCP’s requirements that the
Site be fully characterized before finalization of the RAW
C.F.R. section 300.430, subdivision (d)(2) provides: “(2) The lead
agency shall characterize the nature of and threat posed by the hazardous
substances and hazardous materials and gather data necessary to assess the
extent to which the release poses a threat to human health or the
environment or to support the analysis and design of potential response
actions by conducting, as appropriate, field investigations to assess the
following factors: [¶] (i) Physical characteristics of the site, including
important surface features, soils, geology, hydrogeology, meteorology, and
ecology; [¶] (ii) Characteristics or classifications of air, surface water, and
ground water; [¶] (iii) The general characteristics of the waste, including
quantities, state, concentration, toxicity, propensity to bioaccumulate,
persistence, and mobility; [¶] (iv) The extent to which the source can be
adequately identified and characterized; [¶] (v) Actual and potential
exposure pathways through environmental media; [¶] (vi) Actual and
potential exposure routes, for example, inhalation and ingestion; and [¶]
(vii) Other factors, such as sensitive populations, that pertain to the
42
characterization of the site or support the analysis of potential remedial
action alternatives.”
We find the Site characterizations in both the RI/FS and the RAW to be
compliant with the NCP’s requirements.
Sampling at the Site was conducted with its historical uses in mind,
and focused on those areas most likely to be contaminated. The RI/FS
analyzed the results of the previous 22 investigations, 15 of which had been
overseen by DTSC, and which included 382 soil samples and 157 soil gas
samples. These samplings yielded the information that heavy metals and
VOCs existed in the soil and soil vapor above acceptable residential levels.
Sub-slab sampling focused on buildings with a history of industrial use.
Finally, the stormwater system contained high levels of contamination and
could have migrated to the seepage pits on the Site. (See 40 C.F.R. § 300.430,
subd. (d)(2).)
Given the flexibility accorded DTSC in conducting testing and
evaluation, STHIP has not shown that insufficient evidence supports the trial
court’s conclusion this extensive testing complied with the NCP.
2. The RAW RI/FS Located Sufficient Sources of VOCs as
Required by the NCP
STHIP complains that DTSC experts warned that not all VOC sources
had been located and deeper VOC left onsite would be a threat to
groundwater. STHIP notes that no testing was done underneath existing
structures, that only three locations were tested at deeper than 30 feet, and
the testing did not identify where VOC gas was concentrated.
The NCP requires the lead agency to conduct field investigations to
assess “the extent to which” the source of contamination can be adequately
43
identified and characterized. (40 C.F.R. § 300.430, subd. (d)(2).) EPA
Guidance suggests that “[i]n general, the RI/FS must obtain data to define
source areas of contamination, the potential pathways of migration, and the
potential receptors and associated exposure pathways to the extent necessary
to (1) determine whether, or to what extent, threats exist to human health or
the environment, (2) develop and evaluate remedial alternatives (including
the no-action alternative), and (3) support future enforcement or cost-
recovery activities.
Substantial evidence supports DTSC’s VOC source identification
efforts. The RI/FS tested for VOCs at several locations at the Project Site.
The RI/FS found VOC in soil gas throughout the Site, but noted that it was
concentrated on the southern and eastern portions of the Site. Finding that
the most likely source of VOCs was the former military operations at the Site,
DTSC decided to require removal of the storm drain system and seepage pits
located in the southern and eastern portions of the Site. DTSC also
recommended confirmation sampling after removals of soil, and planned a
future soil gas survey after removal of asphalt. Prior to grading, DTSC would
assess current soil gas levels and evaluate if vapor intrusion remains a
concern for future residential/commercial Site users. A second soil gas survey
may be conducted.
Should the vapor survey(s) indicate the presence of an elevated vapor
intrusion risk, the risk (AOC4) will be mitigated through installation of
[vapor mitigation systems] beneath slab-on-grade buildings.”
Other than complaining that all VOCs must be identified (a result
clearly not contemplated by the NCP or the EPA Guidance), and asserting
that the necessity for future testing renders DTSC’s efforts in violation of the
NCP, STHIP has failed to show that these sampling efforts to identify the
44
source the VOCs and corresponding measures to remediate the VOCs across
the Project Site are insufficient to comply with the NCP. As noted, Site
sampling is an ongoing process and this fact alone does not mandate a
finding that DTSC violated the NCP.
3. The RI/FS Met NCP Requirements for Testing Offsite
Contamination
The NCP at 40 C.F.R. section 300.430, subdivision (d)(4) states that
“[u]sing the data developed under paragraphs (d)(1) and (2) of this section,
the lead agency shall conduct a site-specific baseline risk assessment to
characterize the current and potential threats to human health and the
environment that may be posed by contaminants migrating to ground water
or surface water, releasing to air, leaching through soil, remaining in the soil,
and bioaccumulating in the food chain.” The EPA Guidance further requires
that the DTSC monitor the Site to determine whether contaminants have
migrated. The EPA Guidance advises that field investigations should use
information relating to source location and groundwater flow directions to
derive a preliminary estimate of the location of contaminants that may have
migrated. “Uses of adjacent properties should be determined in order to
evaluate potential exposure associated with offsite migration of subsurface
contamination.”
STHIP asserts that DTSC has ignored these mandates, that
contaminants are up to hundreds of thousands of times above allowed levels,
that there is offsite migration at the parcel across Kinneloa; and that nothing
suggests that this migration will be stopped as there is no remedial measure.
Here, the trial court concluded that NCP does not require offsite testing
and the issue should be framed as whether DTSC’s decision not to conduct
45
offsite testing complies with the NCP. We agree. DTSC analyzed exposure
pathways and media that could affect human health (soil and air) and
concluded exposure would be limited because the Site would be developed
with structures and paved roadways. Further, the trial court observed that
groundwater was located at depths below 300 to 340 feet, would not be used
for any purpose at the Site, and would not have been affected by the previous
activities. Further, the RAW required that cleanup of contaminants meet
standards for residential use. As such, no hazardous waste will be left in the
soil or soil gas.
DTSC’s decision not to test for offsite contaminants is supported by
substantial evidence. There is no evidence that hazardous substances had
migrated off Site, and STHIP has cited nothing in the record to support such
a claim.
4. The RI/FS Met the NCP’s Requirements for Groundwater
Testing
STHIP asserts that the RI/FS violated the NCP because it did not
require groundwater testing before the implementation of the RAW’s
workplan. (See, e.g., 40 C.F.R. § 300.430, subd. (d)(2)(ii).) STHIP asserts
that because the RI/FS did not rule out the possibility that groundwater was
an exposure medium, it was a violation to delay such testing. STHIP also
asserts that nearby groundwater wells had been taken out of service.
Section 300.430, subdivision (d)(2)(ii) of the NCP requires classification
of air, surface, and groundwater. Further, the EPA Guidance provides that
“the nature and extent of groundwater contamination should be evaluated.”
Finally, DTSC’s own guidance provides that “groundwater must be
46
quantitatively evaluated in the screening level risk evaluation [of the Site]
unless . . . groundwater from the site has no beneficial uses.”
Substantial evidence supports the trial court’s conclusion that the
RI/FS and RAW proposed monitoring and testing satisfied the NCP. The
RI/FS and RAW assessed the groundwater at the Site. Given that at the
outset, no groundwater contamination had been detected, immediate action
was not necessary. None of the underground water at the Site will be used
for any purpose at the Site; further, it is at sufficient depth that its status as
an exposure pathway is in doubt. However, recognizing that groundwater
contamination was a possibility, monitoring wells will be installed,
groundwater will be assessed, and remedial action will be taken if necessary.
D. Adequacy of Remediation and Testing
1. The RAW Adequately Investigated and Remediated COCs
and VOCs
STHIP contends that the RAW violated NCP requirements to provide
overall protection of human health and environment and to comply with the
ARARs. STHIP further contends that the RAW inadequately remediates
VOC sources in soil gas. We disagree.
(a) Remediation Was Adequate
Section 25322.2 specifies that a “remedial investigation” consists of
“those actions deemed necessary by the department to determine the full
extent of a hazardous substance release at a site, identify the public health
and environment threat posed by the release, collect data on possible
remedies, and otherwise evaluate the site for purposes of developing a
47
remedial action plan.” STHIP asserts (incorrectly) that the RAW does not
address or specify remediation for the new COCs.
The RAW established chemical-specific ARARs that specified screening
levels for each contaminant of concern identified in the RI/FS process based
on applicable state and federal standards for residential use. These
residential use screening levels are the most stringent standards applied
under California law. To achieve the ARARs, the RAW sets forth a workplan
to remove, and to the extent necessary, remediate all four AOCs at the Site.
As outlined in the RAW, the excavation will remove over 1,731 tons of soil
from the Site. Following excavation, confirmation samples will be collected to
ensure that remaining Site soils meet the applicable screening levels based
on the ARARs. If they are not, additional excavation will be performed, down
to the maximum depth that the equipment will allow, 30 feet below the
surface. Due to the extensive excavation, it is likely that no further
remediation may be needed at this point. Following excavation, the RAW
requires continued soil gas surveys until no further remediation is needed; in
addition, VMS will be installed. Furthermore, the SIWP addresses the new
COCs and provides for the proposed sampling for the potential presence of
residual explosive compounds, such as RDX and TNT, and PFAS will be
conducted from all accessible seepage pits and select storm-drain inlets in the
vicinity of buildings 3, 5, 18, and 131. Testing will be conducted for PFAs.
(b) Adequate Remedy for VOC in Soil Gas
STHIP complains that the RAW does not adequately remedy soil gas,
pointing to, among other things, the trial court’s contradictory statements
regarding the adequacy of the RAW’s remediation; DTSC’s false claims that
sources of VOCs will be removed prior to construction; removal of 11
48
suspected hot spots will not remove the VOC threat, and post-construction,
the developer may need to do soil-vapor extraction; and hot-spot removal will
not remove the worst Site harm (from VOCs) because the 11 suspected hot-
spots contain mainly metals, not VOCs.
STHIP’s attacks amount to a claim that the evidence is insufficient to
support the trial court’s conclusion that the RAW’s proposed remediation will
rid the Site of all VOC contaminants sufficient to protect human health.
STHIP ’s argument ignores the evidence that supports the trial court’s
conclusion. The RAW requires excavation of contamination, including VOC
sources, to the maximum depth that equipment can reach. Such excavation
will eliminate or substantially reduce the levels of VOC contamination in soil
gas. In the unlikely event there is any remaining vapor intrusion risk, vapor
mitigation systems will be used to eliminate any remaining hazardous
exposure to VOCs in soil gas. This comports with DTSC’s own guidance that
“at some sites removal of all volatile chemicals from the subsurface will not
be possible and institutional controls and engineering measures will be
necessary to prevent potential exposure to subsurface vapors.”
2. Recent Indoor Air Testing
STHIP complains that recent indoor air testing shows that previous
testing was incomplete and the Site is unsafe for public use, and DTSC’s
failure to conduct indoor air testing was in violation of DTSC’s own guidance,
which requires such testing. Without citation to the record, STHIP asserts
that Notre Dame scientists conducted a two-week passive indoor air
screening at the Site and found unacceptable levels of contamination.
We can find no record reference for this latter assertion, or any
evidence in the record to support it. Even so, all the buildings on the Site are
49
to be demolished, so any indoor air testing conducted prior to demolition
would be moot.
E. Any Purported Factual Misstatements in the Trial Court’s
Decision Do Not Require Reversal
STHIP points to what it alleges are five factual misstatements the trial
court made, all of which it asserts were based on DTSC’s misrepresentations
of facts. STHIP asserts that as a result of these false statements of fact, the
foundation of the trial court’s ruling cannot support its conclusions. We
disagree.
STHIP argues the following statements in the trial court’s statement of
decision, which it contends are false, constitute insufficient evidence to
support the trial court’s conclusions: (1) “No hazardous waste levels of
contamination [should] be left in the soil or soil gas”; (2) “Sources of VOCs
will be removed prior to construction”; (3) “Soil gas samples [will be] collected
. . . at locations that were deemed to be most likely impacted with chemicals
[and] to possess the highest potential for soil contaminant migration affecting
groundwater”; (4) “The sampling at the Site was extensive”; and (5) “The
preferred long-term response to the intrusion of vapors into buildings is to
eliminate or substantially reduce . . . contamination,” and this is “what the
RAW strives to accomplish by . . . excavation of the Project Site’s [metals]
hotspots.”
In support of its contentions these statements are false, STHIP relies
on conflicting evidence in the record, including comments made during the
RAW’s review period in which evidence attacked the depth of soil excavation
and areas of focus. However, STHIP’s approach ignores the appellate
standard of review, which requires us to affirm factual findings if supported
50
by substantial evidence. As we have stated at length, substantial evidence
supports the trial court’s conclusions.
DISPOSITION
The judgment of the superior court is affirmed. Respondents are to
recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
51
INDEX OF ACRONYMS
Acronym Full Title
AOC Area of Concern
ARAR Applicable or Relevant and Appropriate Requirements
CERCLA Comprehensive Environmental Response, Compensation
and Liability Act (Federal)
COC Contaminant of Concern
DTSC Dept. Toxic Substances Control (California)
ESL Environmental Screening Level
HSAA Hazardous Substances Account Act (California)
NDMA N-nitroso dimethylamine
NCP National Contingency Plan (40 C.F.R. 300, et seq.)
PAH Polynuclear Aromatic Hydrocarbon Compounds
PCB Polychlorinated Biphenyls
PCE Tetrachloroethylene
PFA Per- and Polyfluoroalkyl Substances
RAW Removal Action Workplan
RDX Hexahydro-1,3,5-trinitro-1,3,5-triazine
RI/FS Remedial Investigation/Feasibility Study
SCAQMD South Coast Air Quality Management District (Cal.)
SCEA Sustainable Communities Environmental Assessment
SIWP Supplemental Investigation Workplan
SL Screening Level
STHIP Stop Toxic Housing in Pasadena
SVOC Semi-Volatile Organic Compound
TNT 2,4,6- Trinitrotoluene
TPH Total Petroleum Hydrocarbon
VOC Volatile Organic Compound
52