Stop Toxic Hous. in Pasadena, Inc. v. Dep't of Toxic Substances Control
| Decision Date | 02 December 2022 |
| Docket Number | B308608 |
| Parties | STOP TOXIC HOUSING IN PASADENA, INC., Petitioner and Appellant, v. DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Respondent; SPACE BANK LTD and PASADENA GATEWAY, LLC, Real Parties in Interest and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No.19STCP04909. 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 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.
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).)
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 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 []). As a result of the findings generated by the RI/FS, DTSC prepared a RAW to deal with the contaminants at the Site.
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.
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 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.
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 (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.
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.)
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.1. 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) [...
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