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Hahamongna News

Title:

'Scratch and Sniff'

Subtitle:

Court brief claims city takes an after-the-fact approach to detecting toxins in and around Arroyo Seco Canyon Project

Date:

2016-10-20

Author:

Kevin Uhrich

Publication:

Pasadena Weekly

Content:


In connection with a lawsuit filed in July 2015 by the Spirit of the Sage Council and Project Soliton, the brief in support of a writ of mandamus claims that because of the potential for significant ecological disruption and possible toxic contamination around the areas being considered, the city should have ordered a complete environmental impact report (EIR) on the project. A writ of mandamus is an order from a court to an inferior government official ordering the official to properly fulfill their official duties or correct an abuse of discretion.

Instead of an EIR, the City Council on June 1, 2015 gave the go-ahead to the project by approving a less environmentally demanding mitigated negative declaration (MND). That document concluded that any environmental impacts that may arise could be adequately addressed and rendered “not significant.” According to the two plaintiffs, nothing could be further from the truth.

“Substantial evidence in the record, based on facts and expert opinion, supports a fair argument that the project may cause a significant impact,” states the brief, which was filed on Sept. 7 in Los Angeles County Superior Court. A hearing date was set for Nov. 9 but has been moved back to Dec. 15 in downtown Los Angeles, Judge Richard Fruin presiding. “Accordingly, the court must overturn the city of Pasadena’s decision to adopt the mitigated negative declaration and order it to rescind all approvals for the project.”

By state law, litigants in CEQA-related lawsuits must attempt to reach some sort of settlement, which was already tried once before in this case but failed. The city, said Leeona Klippstein of the Spirit of the Sage Council, has declined to view the potential impacts of the project in a cumulative sense, instead focusing on the impacts on each of three of four separate areas where work was being considered. A fourth section is being used for equipment storage, she said.

“We tried to have a settlement with the city, but they didn’t accept anything we wanted them to agree with. The city did not respond,” Klippstein said.

Pasadena City Attorney Michele Beal Bagneris could not be reached for comment on this story.

Tim Brick, executive director of the nonprofit Arroyo Seco Foundation, has been shepherding the project along with the city’s Water and Power Department, acquiring a $3.3million grant for the bulk of the project’s funding through funding from Proposition 84 of 2006, also known as the Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond Act. The remaining $1.2 million is being provided by the city.

Brick and other backers have said that once complete the project is expected to capture and safely store more fresh water than ever, restore aquatic and riparian habitats and increase trail access along the Arroyo Seco Stream which flows through Hahamongna Watershed Park, and around Jet Propulsion Laboratory (JPL).

Attempts to reach Brick for comment this week were unsuccessful. In a previous interview, Brick said much work has been done by JPL and the city over the past several years to clean up toxins in the Hahamongna Watershed Park area. He maintained the contamination is not a threat to park-goers or water customers.

For nearly five decades JPL dumped up to 100 toxic chemicals like perchlorate, hexavalent chromium (chromium 6) and other volatile organic compounds (VOCs) near or on the celebrated space lab’s property, according to the brief. According to the MND, “Past waste handling activities at JPL involved the disposal of waste solvents, solid rocket fuel propellants, cooling tower chemicals, sulfuric acid, Freon, mercury, and chemical laboratory wastes.”

The public notice posted for the June 1, 2015 City Council meeting at which the MND was approved violated CEQA laws, according to the court document, by not specifically stating that the project included construction of a diversion dam, which would deprive certain areas of Hahamongna Park of water. It also claims the mitigated negative declaration is misleading by omitting that and other facts about the project, thwarting public participation in the decision-making process.
By “deferring study” of the downstream effects of the diversion dam, there could be “significant impact on terrestrial and aquatic species,” such as the coast range newt, the western pond turtle, southwestern willow flycatcher and least Bell’s vireo, the brief states.

The project, according to the brief, could also have significant health impacts on construction workers who may uncover one or more of the possibly dozens of 15-foot wide and deep disposal pits used by JPL to dump toxic substances.

According to the MND, “should discolored or odorous soils be encountered during grading and excavation activities in Area 3, the contractor shall have a sample of the soils analyzed for the presence of contamination.”
The east parking lot and four existing spreading basins at JPL, an EPA Superfund waste site, are located in Area 3, where a guard station and restroom will be constructed and spreading basins will be expanded, according to the mitigated negative declaration. The project includes plans for reducing JPL’s parking lot from 1,100 to 100 spaces.

“The depths to groundwater contamination at (Area) 3 are over 200 feet below the ground surface. A number of studies and investigations under a work plan have been completed and a removal action plan is being implemented that includes three water treatment facilities to remove perchlorate and VOCs from the groundwater,” the MND document acknowledges. “The Monk Hill Treatment System (located southeast of Area 3) removes VOCs and perchlorate from four city wells (Arroyo Well, Well 52, Ventura Well, and Windsor Well) located in and near Area 3.”

Steve Slaten, the project manager on the JPL cleanup and treatment program, has said in a previous interview that “[t]here are no JPL chemicals in the arroyo at the surface. We have a groundwater cleanup project in which we have chemicals in the deep groundwater, several hundred feet below the surface, but there is no pathway to the surface. So no, JPL chemicals are not at the surface on the arroyo,” Slaten said. “We’ve tested all along JPL at the surface to make sure there were no chemicals from JPL in the arroyo.”

Slaten further said there is little chance of those chemicals contaminating local wells. “Water comes down from the mountains and is diverted a mile or more upstream from JPL to a pipeline over to the spreading basins. …That’s clean water from the mountains,” Slaten said. Furthermore, he said, “Surface water in the arroyo even further down from JPL has no chemicals from JPL.”

Area 2 is where stream diversion will occur and water intake structures will be located. Improvements proposed in Area 1 include habitat restoration along the stream channel, construction of a new nature trail and a rest area, and demolition of the existing headworks structure.
“If the results of the testing show that chemical levels are present below regulatory levels, grading and excavation activities may proceed accordingly. Otherwise, remediation and/or removal of the contaminated soils shall be completed prior to continued ground disturbance if chemical levels are above regulatory standards,” states the MND.
But, again, the plaintiffs took exception to the proposed mitigating measures being suggested, calling them a “scratch and sniff” approach to ensuring worker safety.

“There is a fair argument, based on substantial evidence, that the potential impacts of contamination may be significant and unmitigated by the above steps. Perchlorates, VOCs, and other contamination may create a significant impact on the construction workers encountering such chemicals. Workers may be irreparably harmed by the chemicals and never know the source of the illness for years,” the court brief states.
“The mitigation for potential hazardous soils and ground water, on its face, is ineffective and inadequate. The simple fact that mitigation is necessary admits the possibility of contaminated soils off-site from JPL. But the mitigation for potentially hazardous material amounts to little more than a ‘scratch and sniff’ test.

“Even worse,” the brief goes on, “there is nothing in the record that establishes that soil contaminated with perchlorates, chromium 6 and numerous other contaminates will discolor the soil. Nothing in the record discusses whether perchlorate contamination is red, white, green or blue. While many volatile organic compounds emit an odor, nothing in the record would support that perchlorate and chromium 6, after sitting in the soil for 50+ years, would similarly create a recognizable odor. Contaminated soil may be encountered and not recognized, and therefore, never be tested.”

“Our greatest concern, what we really want out of all this is really for it to stay wild and to truly be restored as natural habitat and not just a way for the city to take water from a contaminated area,” Klippstein said. “They can’t call this restoration of a natural habitat. They [the ASF] have a website saying it is a great restoration project. It isn’t.”
Brick had previously said that he did not like talking about the lawsuit. “Candidly, I don’t want to discuss the issues involved in the lawsuit, but frankly, the issue has been studied. Let’s leave it there,” he said when the suit was first filed.