LongBeachReport.com | LBReport.com | Hear Appellant Kerrie Aley's Testimony re City's Planned Handling Of Toxic Contaminated Colorado Lagoon Soil...And City Mgm't Response & Her Rebuttal

Introduction: In a November 16 appeal hearing, LB resident Kerrie Aley was an appellant and documented potential toxic risks to neighboring families from dredging and hauling contaminated sediment out of Colorado Lagoon; she didn't oppose the Colorado Lagoon project but insisted that the City of Long Beach, which owns the land, disclose the risks and deal with them appropriately. City management responded by presenting a taxpayer paid consultant who acknowledged the risks but said they'd be handled by other agencies, that is, not by the City of Long Beach. To hear Ms. Aley's testimony, management's response and Ms. Aley's rebuttal, click here. Half the Councilmembers who voted to deny her appeal weren't in the Council Chamber during parts of her testimony; some later said they were watching/listening from the Council lounge; one was inattentive while in the Council Chamber. Ms. Aley provides this detailed response.

(Nov. 23, 2010) -- In 2008 the Long Beach City Council denied an appeal by me of the approval of the Colorado Lagoon EIR. The appeal asked that the document be revised because the document failed to inform governmental decision-makers and the public about the potential significant environmental effect of the construction, hazardous sediment, truck traffic and also because the report failed to mitigate the negative impact of this project.

In addition residents were also denied their request for a number of mitigation measures which should have been added including local street traffic mitigation, construction equipment emissions restrictions, and hazardous contaminants/air quality controls. A year earlier in 2007 the City of Long Beach delayed the project to revise the Colorado Lagoon EIR document to add a requirement to stop all work in the improbable event a sea turtle is sighted within 500 meters of the construction site.

In October 2010 the city changed the scope of the dredging, remediation, and proposed channel configuration. Instead of revising the EIR as the council did for the mythic sea turtle, the Planning Commission approved a 113 page Addendum to the EIR which had been available for review for less than 5 days.

The California Environmental Quality Act (CEQA) requires a subsequent or revised EIR when substantial changes are proposed in the project that require major revisions of the previous EIR due to involvement of new significant environmental effects or if there is a substantial increase in severity of previously identified significant effects.

In the 2010 Colorado Lagoon Addendum the city claims the following is insignificant:

New test results in 2010 from sediment testing showing lead contamination 3 times higher than what was reported in the EIR and 3 times the level considered hazardous for residential properties.

An increase in proposed dredging volume from 30,000 cubic yards (cy) to 72,000 cy
An increase in the possible channel excavation from 25,500 cy to as high as 70,000 cy
An increase in the number of haul trucks from 1350 to 3240 truck trips or more on residential streets.
The addition of a lead remediation processing area at the North end of the lagoon, possible loading of sediment onto barges at the north end of Marine Stadium, and a much larger stockpile of hazardous sediment and excavated soil at the corner of 4th and Appian.

Nearby homeowners near the golf course, on Park Avenue and on Appian Way will be greatly affected by these huge piles of wet hazardous sediment and thousands of haul trucks in close proximity to their homes. In 2008 the city proposed 16,000 cy of hazardous soil and 5,500 cy of non-hazardous soil for a total of 21, 500 cy. In 2010 the city proposes 44,000 cy of hazardous soil, 28,000 cy of nonhazardous soil for a total of 72,000 cy.

In 2008 the volume of dredging soil would equate to a a 50’ x 100’ large house with 8 ˝ stories of hazardous soil and another house 2 ľ stories of non-hazardous soil. In 2010 the volume of dredging soil would equate to the same house with 237 stories of hazardous soil and another house with 151 stories of non-hazardous soil.

The Addendum fails to state the high lead levels or reference the new 2010 Kinnetic Laboratories sediment tests. A review of the 2006/2007 sediment tests show that the reason why lead levels were so much lower is that the core samples stopped at depths as low as 1.5 feet when the 2010 sediment tests show much much higher lead, PCP, DDT and other contaminates at sample depths between 3 and 7 feet. Common sense could have predicted that one would expect higher levels of lead, DDT, PCP contamination from unregulated urban run-off between the 1930’s and 1970’s.

Clearly the lagoon sediment tests in the EIR were inadequate and the additional dredging and excavation will result in a significant environmental effect and increase in the severity of the truck traffic, air quality, and potential exposure to hazardous contaminants. The city’s 2008 EIR mitigation and monitoring for the project only required "best management practices" suitable for a typical building site, not a massive dredging of contaminated soil, onsite lead remediation, and the construction of a large channel in close proximity to residential homes. In the Addendum it is noted that the US Army Core of Engineers is now requiring the use of Tier 1 and Tier 2 construction equipment, which was not included in the original EIR but was asked for by residents in the original EIR appeal.

Park Avenue Residents, the PQRS Group and other residents appealed Planning Commission’s approval of the EIR Addendum. At the November 16 City Council appeal hearing I spoke about the inadequacy of the Addendum and requested mitigation measures and analysis in addition to what was contained in my original EIR Appeal. The eight items included the following:

Require that the city use the current CA Health Screening Levels for Lead developed by the CA Office of Environmental Health Hazard Assessment for construction site as described by the DTSCA rather than the outdated Leadspread model .
Require fence line dust line monitoring and suppression.
Request that the City prior to any dredging or excavation of soil provide a table with contact names, phone numbers, and a description of regulatory responsibilities, permits and required mitigation measures.
Request that the city increase the number of required street sweeping of residential haul routes from the city’s requirement of once a day to anytime soil is visible on residential streets.
Require that all stockpiles of soil, amendments, and other reagents be covered with plastic or contained when not in use.
Request that the city limit all construction activities from Monday through Friday 9am to 5 pm.
Request that the city incorporate the traffic mitigation requested by residents in the original EIR appeal.
Request that the city provide copies of analysis showing that the design of the culvert, with increased tidal flushing, changes to the existing drains and addition of the new TADP flood drain flow will not result in an increased flooding risk for nearby homes.

After I was done speaking to the Council, Jeff Bennett a geologist from Miller Brooks speaking for the City stated that his company did similar dredging and mediation work and agreed that all of my mitigation measure requests were valid. A representative for the contractor said during the city’s rebuttal that state and federal environmental agencies would be monitoring the sediment removal, and that most of the recommendations -- keeping material wet, having street sweepers available all the time, restricting hauling periods -- would happen as a matter of course. In a City staff "White Paper" (sent only to two appellants less than 24 hours prior to the Council hearing), Mr. Bennett provides details about the implementation of the mitigation measures and claims that these measures are not typically found in environmental documents such as EIRs and further claims that EIRs usually provide only a regulatory framework for project compliance, that the means and methods for meeting these requirements are determined by the implementing contractor.

Mr. Bennet is incorrect. The city is primarily responsible for complying with CEQA, specifying meaningful mitigation and monitoring, not outside agencies.

Prior to writing my Addendum Appeal, I spoke at length with representatives at the Federal EPA, CA Department of Toxic Substance Control and the Water Board. They all told me that the primary responsibility for defining negative impacts, mitigation and monitoring is with the City of Long Beach.

The following are descriptions of the mitigation and monitoring requirements of the California Environmental Quality Act:

CEQA’s Public Resources Section 1081.6 which requires that "whenever a mitigated negative declaration is adopted or a public agency is responsible for mitigation pursuant to an EIR, the agency must adopt a program for monitoring or reporting on project compliance with the adopted mitigation."

In addition CEQA requires: Pursuant to subdivision (a), whenever a public agency either: (1) adopts a mitigated negative declaration, or (2) completes an EIR and makes a finding pursuant to Section 21081(a) of the Public Resources Code taking responsibility for mitigation identified in the EIR, the agency must adopt a program of monitoring or reporting which will ensure that mitigation measures are complied with during implementation of the project.

When changes have been incorporated into the project at the request of an agency having jurisdiction by law over natural resources affected by the project, that agency, if so requested by the lead or responsible agency, must prepare and submit a proposed reporting or monitoring program for the changes.

Pursuant to subdivision (c), when a responsible or trustee agency suggests mitigation measures to address a significant impact which that agency has identified during consultation, it must either provide the lead agency with "complete and detailed performance objectives" (i.e., standards by which to meet specific objectives of the responsible or trustee agency) for those measures or refer the lead agency to readily available guidelines which would be the functional equivalent of such objectives. The mitigation measures suggested by a responsible or trustee agency are limited to those within the statutory authority of that agency (Section 21080.4). In effect, a responsible or trustee agency is required to limit its requests for mitigation measures to those subjects over which it has regulatory powers and to provide the lead agency with sufficient information to allow the lead agency to effectively fashion such measures.

And Section 2108.6 of CEQA requires that when an EIR or Addendum is certified and applied "The monitoring or reporting requirements of Section 21081.6 apply whenever the lead agency makes findings under Section 21081 (a) relative to the mitigation measures or alternatives being required of the project. An AB 3180 program must be adopted which addresses each mitigation measure or project change for which a finding is made. Similarly, if a project is analyzed pursuant to a program EIR or involves tiering, an AB 3180 program would be required for each mitigation measure or project change subject to findings under Section 21081 (a) or required under a mitigated Negative Declaration.

In addition to CEQA, the South Coast AQMD has adopted extensive guidelines covering all aspects of CEQA compliance. The 1993 edition of the District's "CEQA Air Quality Management Handbook" contains detailed advice for establishing monitoring programs.

The District recommends that programs do the following:

(1) Communicate mitigation measures and reporting responsibilities to the applicant clearly.
(2) Identify the agency which will be responsible for monitoring each mitigation measure.
(3) Identify the time frame within which each measure is to be completed and during which monitoring will occur.
(4) Establish specific standards or criteria for completion of each mitigation measure.
(5) Identify remedial measures which will be imposed in case of non-compliance.
(6) Include a mechanism for periodic reporting.

The District's handbook also recommends that monitoring should be linked to a specific point in the development process, such as issuance of a grading permit, occupancy permit, building permit, or construction inspection, and that mitigation measures should be limited to those which are legally enforceable. Suggested enforcement tools include conditions of approval, impact fees, improvement security, development agreements, Memoranda of Understanding, and recorded "Conditions, Covenants, and Restrictions" (CCRs).

Given potential public health risks of exposure to hazardous contaminants such as lead, cyanide, DDT, PPC, arsenic, diesel particulates, dust and heavy truck traffic, Long Beach should as a minimum revise its project Mitigation Monitoring and Reporting Program ( MMRP). The MMRP should be revised to reflect the mitigation& monitoring described in the city’s "White Paper," Mr. Bennet and the additional mitigation as requested by affected residents.

In addition the revised Mitigation Monitoring and Reporting Document, Traffic Management Plan, Health & Safety Plan, Soil Management Plan should be made available for public review prior to approval by the city.

Related LBReport.com coverage

What Some Councilmembers Did While Taxpayers Testified On Toxics

Video Shows Councilman Garcia Typing, Texting, Seemingly Not Focused On Testimony During Residents' Quasi-Judicial Appeal of City's Planned Handling Of Toxic Contaminated Colorado Lagoon Soil

Hear Appellant Kerie Aley's Testimony re City's Planned Handling Of Toxic Contaminated Colorado Lagoon Soil...And City Mgm't Response & Her Rebuttal

Read CA Court of Appeal Ruling (Late 2004) Reversing L.A. Council, Chastising Its Councilmembers Who Voted To Deny Appeal After Not Paying Attention To Testimony In Quasi-Judicial Appeal Hearing