On Sunday, Eileen Samitz wrote that “your articles continue to ignore and side-step the serious problems and impacts by a mega-dorm project like Lincoln40 and try to simplify it to a numbers or ratio issue.” In her comment, which we re-printed as an article on Monday, she raises a number of points that we will be addressing over the course of the coming days and weeks.
She wrote, “What about the toxic plume headed toward Lincoln40? Is it going to be investigated? Apparently, the developer wants to ignore this issue. What about the health and safety issues to the residents from the volatile toxics that need to be analyzed as to their impacts sooner or later? The City would be liable for any health issues later that emerged if this project is allowed to move forward without a complete analysis is this plume. The developers responsible for this and the City needs to not subsidize this Lincoln40 problem either. Why is there no Vanguard discussion about this?”
The issue of the plume was information originally offered to the Natural Resources Commission by Richard Casias. Mr. Casias is an environmental management consultant and hydrogeologist.
He wrote a memo dated July 31, 2017, indicating that the “comments and recommendations provided below are those of my own, and based on my professional practice and experience with and knowledge of subsurface environmental conditions in close proximity to the Subject Property.”
Mr. Casias writes, “It is RCC’s opinion that since important 
contents of the referenced Phase I ESA [Environmental Site Assessment] are neither ‘true nor accurate,’ the DEIR Hazards and Hazardous Materials Section 4.5 cannot be considered completely reliable for permitting and planning purposes.”
Mr. Casias describes a potential problem that was discovered in the summer of 2016 while he was working with an unrelated client who owns properties in Old East Davis along J and K Streets. One of these properties was 203 J Street, the JF Wilson Site.
He writes that “my research and evaluation concluded that the JF Wilson Site is a location of extensive contamination by the chlorinated solvent TCE.” There were early attempts to remediate some of the contamination by the Water Board.
“In 2016 Water Board staff advised RCC [RCC Group, LLC, Environmental & Ecological Services, of which Mr. Casias is the Managing Member] that the JF Wilson Site is considered an active site and staff is requiring the current Responsible Party (Estate/Property Owner) to restart the remedial assessment of the lateral and vertical extent of TCE in soil vapor and shallow groundwater, which reportedly is found to occur on a seasonal basis between 45 and 65 feet below grade surface (BGS). The Responsible Party for the JF Wilson Site has not complied with any Water Board orders since 2007,” Mr. Casias writes.
He continues, “In 2016 RCC determined and Water Board staff confirmed the JF Wilson Site plume of contamination in shallow groundwater and subsequently contaminated soil vapor (soil gas in the unsaturated zone soil matrix) is likely migrating in a south-southeastern direction. In other words, the plumes are migrating beneath the UPRR right-of-way in the direction of the Lincoln40 Project Site. The distance from the JF Wilson Site to the Lincoln40 Project Site is approximately 250-feet laterally.”
But this is speculation. He argues, “Unless remedial investigation and soil vapor assessment work is conducted down gradient of JF Wilson Site and also on the Lincoln40 Project Site itself, the magnitude of the plume of VOCs [volatile organic compounds], including the lateral and vertical extent cannot be determined. The referenced VOC compounds are highly mobile and recalcitrant in the subsurface, in that they do not readily degrade in the subsurface and require considerable time to remediate (months to years).
“In summer 2016, RCC was unaware of planning and permitting process for the Lincoln40 Project, and would have no reason to share my insights of this publicly available information with anyone in 2016,” he concludes.
He then makes four recommendations:
First, “The principal failure of the DEIR Section 4.5 Hazards and Hazardous Materials section is due to its reliance on a deficient Phase I ESA Report. It is recommended that a more qualified Environmental Professional participate in the revision and reissuance of a new Phase I ESA Report.”
Second, “The potential for human exposure from hazardous substances including VOCs, lead and arsenic-impacted particulate matter from known and documented sources identified in the Phase I ESA Report has not been properly identified in the DEIR.”
Third, “No Phase II recommendations to conduct appropriate surface and subsurface investigations were proposed in the Phase I ESA Report to address the potential exposure issues from VOCs, lead and arsenic-impacted particulate matter.”
Fourth, he suggests “before offering speculative and somewhat dismissive opinions regarding the potential human health hazards raised by stakeholders, it’s important to reflect on the (excerpts from the California Health and Safety Code).”
The project manager, Paul Gradeff, told the Vanguard that a follow up report was prepared by the developer’s Environmental Consultant who did Phase I. They concluded, “It would be very unlikely that we would have any vapor intrusion on our property and our consultant did not list this a cause for concern to be followed up on.”
The consultants concluded, “No evidence of impact to shallow soil or groundwater was identified during the course of the investigation that would result in Vapor Intrusion.”
Their report notes, “The closest monitoring well, MW2 , is located in a southeasterly groundwater flow direction of MW1, which exhibited the highest concentration of groundwater impact identified near the reported source. MW2 is closest to the subject property and analytical results of soil samples obtained during the drilling of MW2 reported no detection for the presence of TCE.”
There were groundwater samples obtained from 203 J Street which showed a reading of “96 ug/L of TCE in groundwater at the depth of about 39 feet below the surface” and that number is “well below the TCE Trigger Levels for Indoor Air Sampling of 570 ug/L.”
In addition, indoor air sampling of 203 J St., performed by NES Environmental Services in 2003, “resulted in no detection for the presence of Trichloroethylene (TCE), Perchloroethylene (PCE) and 1,1 TCA (COC).
The memo indicates, “We have not uncovered any evidence that concludes that offsite sources have impacted deep groundwater at the subject property. However, we used the analytical data from the deep groundwater impact identified closest and upgradient to the subject property, 203 J Street’s MW2, which reported 96ug/L. This concentration is well below ESL (deep groundwater) of 520ug/L triggering vapor intrusion evaluation.”
They conclude, “Based on the above, the significant distance from sample point evaluated to the planned structures (concentrations generally diminish away from the source) and the about 13 years of natural attenuation, we recommend no further action.”
Mr. Gradeff indicated that they are considering the appropriate next steps at this point.
Gaining an accurate assessment in such a technical matter is difficult. On the one hand, one faces the temptation of dismissing the findings by the Lincoln40 consultants as self-serving. But on the other hand, Richard Casias and his firm are in a position to profit from potential clean-up efforts here as well.
Given that (A) Mr. Casias clearly does not know the concentration levels at this particular site and (B) his recommendations are investigative, it may well be that this is simply speculative.
The city is probably in the best position to accurately assess any threat that this poses and recommend remedies.
—David M. Greenwald reporting
I’d like to see a study on levels of pollution – gas, particles… and noise – within various distances of I-80 within Davis and the UCD campus that’s used to create publicized, easy-to-access and simple-to-understand threat assessments in graphic form… and a very clear and easy-to-find explanation and map of all the so-called “toxic plumes” etc. around the City. It would be great if every development project was required to show its proximity to both of these zones and sources/locations.
Who can help the new organization I am forming, Deep Streets Davis, to push the City, County and UCD to do this?
Where do I sign up?
The Natural Resources Commission used to publish an annual list of the sites in Davis and update their status.
God, so we are going to have to repeat ourselves for the third time in comments? Repetitive, much?
Yes, there’s a plume.
No, it’s not dangerous to people at Lincoln 40.
End of story.
See my comments in the last few days. No I’m not providing a link.
On a related side story, I just went by the source of the plume a few minutes ago, and there was a dead horse there, that had been beaten to death, after it was already dead.
Ironically!
( . . . or maybe the toxins killed it.)
Think I recognized the horse when I saw the same thing… think it was sired by a famous horse, Antigonish.
Alan – why so rude? I provided a lot of new information. You’re not obligated to respond.
David… appreciated the info, particularly re: level of the few detection of pollutants… #’s that I understand.
Actually, thanks for all the new information.
No, actually, I take that back.
I had responded to “Alan, why so rude?” with “because that’s my nature”. But someone edited it out.
So, I take back my thanks for all the new information.
Please remove it.
Actually, please remove David asking me “why so rude?” If I can’t answer honestly, don’t ask the F—ing question.
Timing is everything… perhaps ‘off-topic’, but seems pertinent… I responded to Alan’s response, then self-deleted…
The gist was, in all the years I’ve known Alan, he is generally ‘rude’ to make excellent points… yeah sometimes he does it for ‘grins’, sometimes apparently for ‘practice’…
Alan wasn’t in my opinion ‘rude’… at least today, in this thread… surprised no one flagged my Antigonish referent… now THAT was ‘rude’ as well… if judged by the same standards as Alan’s apparently was…
Whew, glad that all got cleared up.
The survival of Davis as a City depends on it.
There is no mystery here only more of the same irresponsible hyperbole. All the cleanup sites are listed on this governmental website as are all the documents for each of the cleanup sites.
https://geotracker.waterboards.ca.gov/map/?CMD=runreport&myaddress=davis
BTW… the details, including the identity of Mr Casias is appreciated.
RCC Group, LLC is his firm.
He is registered as a Geologist by the State, with a clear license.
More information is on-line, public record…
I appreciate the additional information provided here, which just confirms that this is a non-issue with regards to Lincoln40.
Amen…
I agree with David that ultimately the City will need to determine the level of potential threat the plume poses to the Lincoln40 site (and other areas within the city as well). Given the differing opinions held by separate consultants retained by clients with differing interests, this would be the most prudent course of action. I believe the city would be well-advised to retain its own qualified and experienced environmental engineering/hazmat consultant to at the very least review the competing studies and advise the city on a course of action going forward. Obtaining the services of a consulting attorney well-versed in hazmat issues may also be warranted.
My opinion in this matter is based on managing Phase 1 and Phase 2 environmental assessments and hazmat remediation projects over a 16-year period (3 as redevelopment manager with the Sacramento Housing & Redevelopment Agency and 2002-15 as Senior Environmental Analyst with the Sacramento County Department of Airports). Some of the remediation projects I managed were similar those cited in David’s article; i.e., they involved “responsible parties” that no longer existed and owners who are deceased. Others had “dueling” consultants who produced differing findings, proposed solutions and cleanup cost projections. All of them entailed varying degrees of soil and groundwater contamination. The agencies I worked with in remediating these incidents were the County of Sacramento Department of Environmental Management and the CA Central Valley Regional Water Quality Control Board. In several cases I contracted with an attorney whose practice is limited to working with local governments to negotiate settlements with responsible parties.
If my 16 years of experience in such issues proved anything, it is that such incidents are not easily or quickly researched or resolved, especially when there are dueling consultants. All the more reason, therefore, for the city to begin looking into this issue now from the standpoint of protecting its interests.
While the potential threat of the plume is indeterminate, the Lincoln40 project does pose a definite and potentially detrimental threat to the city. As I stated in written and oral communications to the City Council when supporting the Sterling project, the city’s development agreement with the developer must contain strong language that would make the city “financially whole” should the developer decide to sell or master lease the student apartment project to UCD. If allowed to sell or lease it to the university, both Yolo County and the City of Davis would lose badly needed property tax revenue, just as they are doing now as a result of UCD’s master leasing program at other apartment complexes in Davis.
There will always be those with a vested interest in creating controversy. That is how they get ‘paid.’
There will always be those with a vested interest in downplaying controversy. That is how they get ‘paid’.
At this point, the only ones with a “vested interest” are those who represent the developer.
And those with a vested interest in playing up a minimal threat – so how are we to evaluate this?
David: Who are you referring to, and what “vested interests” do they have?
And, what qualifications do you have, in determining that the threat is minimal?
Vested interest is a consultant who specializes in such clean up activities (and he put it on his company letterhead FYI).
What qualifications do I have? I saw that the sampled level is well below the trigger level (less than one fifth).
David,
I appreciate that the Vanguard has now acknowledged that there has been a plume migrating towards Lincoln40 that I commented on a few days ago is not “conjecture” (as one person posted trying to dismiss it). However, I find it really disappointing that this article tries to essentially “kill the messenger” by trying to suggest ulterior motives of the resident (who happens to be an environmental consultant) for caring enough about the health, welfare and safety of the community to simply let the City know that there was a plume headed towards Lincoln40. So, what does he get for this well intended good deed? The Vanguard tries to imply “self-serving” motives which is really disappointing. However, I asked about this concern raised and have confirmed there is no interest or personal gain that this resident has regarding any clean-up that may be involved regarding this plume. So, this fallacious concern can be put to rest.
Fortunately, this plume issue headed toward Lincoln40 was brought up in time to be properly addressed, rather than unaddressed as the case in the current Lincoln40 Draft EIR. The Vanguard should not be “running defense” for any project at the expense of impacts and any detriments to the City, and Lincoln40 has plenty of these problems still not addressed adequately, or resolved. All that this local resident was clearly trying to do was help protect the community and the City by simply sharing relevant information which theLincoln40 Draft EIR did not cover. Fortunately, he had knowledge of this plume so he was responsible enough to share this information. There was a request for input on the Lincoln4o Draft EIR, and that what this was, relevant input and apparently the Lincoln40 Draft EIR has some serious inadequacies.
What you did not include in the article David, was the following information which the resident explained in his detailed letter regarding the Draft EIR responding to the City’s request for input on it. Unfortunately, it is news that the Lincoln40 developers did not want to deal with so they tried very hard to dismiss the issue of this plume which is migrating towards Lincoln40. So, let’s put a little light on the developers motives here rather the messenger and the message about this plume concern.
The problem is that the Lincoln40 Draft EIR Hazards and Hazardous Materials Section is inadequate and this important comment letter on the plume explains this in detail. In short, instead of the thorough analysis that should have been done, the Lincoln40 Draft EIR did a cursory “Phase 1 Environmental Site Assessment (ESA)” which (inaccurately) focused only on any hazardous materials “on or within the near vicinity of the Lincion40 site”. Well, although that would be convenient to the Lincoln40 developers if that was all that was required, apparently this it is not how the rules work. The site of where the toxic plume originates is within 250 feet north of Lincoln40 and the migration of it is headed south towards the Lincoln40 site. That is within 2,000 feet of Lincoln40 site (see State referenced language below) so they are required to analyze it. TCE is one of the hazardous materials in the plume which is highly volatile and is a carcinogen. So, let’s move onto what the rules actually are. I will include the relevant sections:
California Health and Safety Code Section 25110-25124. Article 2, Definitions:
25117. (a) Except as provided in subdivision (d), “hazardous waste” means a waste that meets any of the criteria for the identification of a hazardous waste adopted by the department pursuant to Section 25141. (b) “Hazardous waste” includes, but is not limited to, RCRA hazardous waste. (c) Unless expressly provided otherwise, “hazardous waste” also includes extremely hazardous waste and acutely hazardous waste. (d) Notwithstanding subdivision (a), in any criminal or civil prosecution brought by a city or district attorney or the Attorney General for violation of this chapter, when it is an element of proof that the person knew or reasonably should have known of the violation, or violated the chapter willfully or with reckless disregard for the risk, or acted intentionally or negligently, the element of proof that the waste is hazardous waste may be satisfied by demonstrating that the waste exhibited the characteristics set forth in subdivision (b) of Section 25141.
25117.3. (a) “Hazardous waste property” means land which is either of the following: (the following are the relevant sections)
(2) A portion of any land designated as a hazardous waste properly pursuit to Section 25229 where a significant disposal of hazardous waste has occurred on, under, or into the land resulting in a significant existing or potential hazard to present or future public health or safety.
25117.4. “Border zone property“ means any property designated as border zone property pursuant to Section 25229 which is within 2,000 feet of a significant disposal of hazardous waste, and the wastes so located are a significant existing or potential hazard to present or future public health or safety on the land in question.
Further, due to the nearby railroad tracks and trains, both arsenic and lead are typical particulate materials are generated by the trains and cast into the environment. These toxic materials can travel with sediment runoff. Yet, there was no attempt in the Draft EIR to assess these potential hazardous materials present at the Lincioln40 site. The obvious concern is the developer’s response letter after this was raised at the Natural Resources Commission trying to dismiss this entire hazardous materials and plume issue. In contrast, it was clear that the Natural Resources Commission does have concern about the toxics issues. The concern was also raised at the Planning Commission.
So, the bottom line is that the Lincoln40 Draft EIR is not adequate, particularly in the Hazards and Hazardous Materials sections, and it would be irresponsible of the City to not demand that these hazardous waste analysis and assessment studies be done first to help protect the health, welfare, and safety of the public and to prevent any potential legal liability to the City, were the City to knowingly ignore this information and approve a development with these hazardous materials were they to create a problem to the public at any point.
Instead of trying to side-step this hazardous materials issue, the Lincoln40 Draft EIR consultants need to take this relevant information and do the studies, analysis and assessment regarding the plume and the potential arsenic and lead contamination situation which they should have done the first time in the Draft EIR. This is a health, welfare and safety issue that needs to be properly addressed.
I presented both sides of the issue and simply pointed out that both sides may have a vested interest here. You’ve chosen to ignore the obvious (at least potential) interests of a consultant on one side as well as ignore the findings of the developer’s consultant. All I suggested here was that the city show have their own assessment. Maybe Howard knows if such an evaluation could occur in house.
Well, I actually tried to share the positive credentials of Mr Casias… that he is indeed a Geologist, licensed by the State… I implied no negativity.
You, Eileen, failed to note his name and ‘creds’. David has helped that, as I feel I have.
David,
I did not chose to ignore the (resident) consultant’s “potential interests”. It was quite clear after hearing his testimony at the Natural Resources Commission and reading his submitted letter that there was no “benefit” to him in bringing this to light at public comment.
But to confirm that there was no self-interest benefit, I have asked the question directly and it is very clear that there is no benefit to him. Quite the contrary, his concern for the welfare of the community would up with a concern raised about his motives. So let’s just say that that the issue has been addressed, and now it is a non-issue. Otherwise, it will start looking like an attempt to intimidate a resident who was simply trying to help protect the community.
Instead, let’s focus on the real issue. What is the developer going to do about this plume issue? Is he going to move forward and fund the proper analysis and studies that should have been done in the first place for the Lincoln40 Draft EIR regarding these public health, welfare and safety issues?
Why would the developer fund this? The toxins, if they are real, didn’t arise on the proposed development site. If it’s an actual issue it is affecting all the residents of the vicinity. It’s not site-specific to the Lincoln 40 property. Generally it would be the property owner where the toxin originated that would be responsible, if that is possible, for any costs. If that isn’t possible, the costs are spread to other agencies. I suggest we could use some history of how the 15 – 20 other sites in Davis have been handled.
It varies… Court Galvanizing and the land owners had to deal with it… Frontier Fertilizer, the land owners ‘suspended’ their corporate identity, as a legal dodge… State DTSC took over, and eventually EPA took over.
The City RA and the developers of the USDA site (a downstream ‘victim’) volunteered to monitor and take protective measures… the State is dealing with it, but not much is of ‘public record’ as to the source (a dry-cleaner).
Gasoline tank leaks were generally dealt with by the owner or successor in interest.
As I said, it varies…
I bought a house within the 2000 foot ‘border zone’ re: Frontier… read and understood the reports from Bechtel and CH2MHill… never lost a single second of sleep worrying about dangers to me, my spouse, or then-young family… but then again, I studied chemistry, physics, GW transport etc. in college. And had ready access to the documents, and actually reviewed them on behalf of the City.
We have not lost limbs or grown new ones…
And the magnitude of Frontier (‘super-fund site) makes the ‘plume’ in question seem like a pimple on the butt of a hippo…
Why would the developer do anything about the plume, except maybe installing a 100 foot deep barrier wall? (uber-conservative, and solves nothing except for theoretically protecting their site, when no protection appears necessary, given depths and maximum concentrations reported)…
Better you ask the current and/or former owners of the source to do something, if indeed something is necessary.
Your apparent logic that either the developer or the City need to act, given the apparent magnitude, eludes me.
The issue is whether or not the city has been provided with sufficient information regarding this issue to consider the other aspects/impacts of the development proposal. If a site is found to be contaminated, that’s something for the property owners to deal with (regarding liability). (Unfortunately – and all too often, various government agencies/taxpayers are left “holding the bag”. Even more so, if a development is approved on a contaminated site.)
First sentence… YES
Second sentence… if you are talking about the owners of the source property, yes… otherwise, NO
Last two sentences… first is an opinion… no response… second, only true if the contamination rises to the level of threat to eventual users. Rare… none that I know of in Davis. Even then, the problem would be the responsibility of the future owners.
Alan had this nailed… there is a dead horse…
Hmm. I could have sworn that there’s at least one toxic site along 2nd Street, in which the EPA (taxpayers) have been picking up the tab. (Actually, I guess it’s 15-20 contaminated sites, per Don’s reference.)
Knowledge is still evolving, regarding toxicities. (Again, I don’t “pretend” to know the impacts/risks – especially since there’s sometimes disagreement among professionals.)
(1) I wrote,
That was Second Street, formerly CR 32-A…
(2) I wrote, (hell, see my 12:59 post).
You tell/imply untruths… (and deny when folk who know, correct you) keep on trucking ‘friend’…
Not sure why the project opponents are engaging in this nonsense. All this conjecture, rumor-mongering and hyperbole (16-years experience notwithstanding) will have zero impact on the planning decision. The project is not subject to a popular vote. It’s going to be decided by the CC. There is nothing new about the plume. The documents are all public and online. The CC members are not going to be distracted by the nonsense (unlike what can happen in a misinformation campaign of 30 second sound bites). Unless ES, RO & GR can come up with a coherent argument, project approval is a done deal.
I try to avoid arguing with experts in areas that I know very little about. However, I’m not surprised that you’re dismissive of the statements by Mr. Casias. (This same type of “phenomenon” occurred regarding the Nishi site.) Seems to me that it would be prudent for the city to at least consider what he is stating.
Listen [edit]. You don’t know me. Surprised, not surprised, it’s of no importance to me. You’re in no position to judge. The project opponents are welcome to preform their own studies. Everything else is conjecture. As for arguing with experts, that’s all you do on the DV.
As for your incessant attacks against developers and those that don’t share your point of view, you’re the one screwing the community. There are very few things more destructive to a community than unrepentant purveyors of misinformation.
I’d love to know what that was 😉
Ron ‘outed’ himself with his writing style and his official public comment (as quoted in various VG articles and elsewhere).
Ron… if you are talking about the ‘expert’ (actually gun-for hire) transportation engineer hired by the opponents of Nishi, you have just discredited the ‘hydrogeologist’ with the same brush… as to the TE, it is well documented, and available on the web.
I saw no such documentation on the HG, and yes, I looked to check creds. Nothing negative to be found.
And yes, am in a position to judge credibility (my considered opinions, based on facts/evidence) of professional engineers.
I do not believe you are.
Howard: Your allegation regarding a “gun-for-hire” is the first I’ve heard of that. If true, what evidence do you have to support it? (Are you referring to Dr. Cahill?)
No – it doesn’t take an “expert” to check credentials. (As you noted, you’ve already done so, as anyone can.)
If I’m not mistaken, your expertise is in the area of traffic (not toxic waste sites). (Not sure if you noticed, but I do listen to you regarding your area of expertise.)
Sometimes, I have no idea why you pick arguments with me and others. You often don’t seem to have any point to make.
Dr Cahill is not a TE. Fact [had him as a prof, early in his career]
The TE I alluded to, I actually cited links to his ‘gun for hire’ status ( strong evidence, not a conclusion) at the time, but have learned to recognize when folk base their practice on “what ‘professional opinion’ do you seek?”
It does take someone in the field to “judge” credentials credibly. As to engineering (any form), chemistry, groundwater, epidemiology… well… do you have creds envy?
Advice… don’t pose as knowledgeable on facts outside your ken. It dilutes the validity of your opinions… meant as constructive advice… questions are good… we need more info/understanding… ‘loaded questions’, innuendo, not so much.
[edited]
Please note that I have not offered an “opinion” regarding the toxicity of the site, other than to suggest that the city consider the statements by Mr. Casias.
I admire anyone who has the ability to successfully complete the requirements needed to become an engineer (or, a similar professional). I believe that you have experience in traffic engineering, and have shared your comments regarding that subject.
Ron: you need to stop it with this stuff, you don’t know anything and you keep throwing out a bunch of non-issues and then question people who know better than you.
Wow that’s quite a statement, DG. Ron “needs to stop” . . . are you stopping him? “you don’t know anything” . . . Really? How tolerant and open of you. “question people who know better than you” . . . by what level of judgement? Because they are experts? I will defend to the death the right of people to question “experts”. That’s freedom, man.
I happen to disagree with Ron on much of what he is saying here, but your post, DG, is outrageous.
Thanks, Alan.
I’m going to pull any post that is even slightly contentious from this thread for at least the next couple of hours. I am fed up. Just stop.
I can’t help it. The toxic plume made me rude.
While this toxic plume is an inconvenient problem for the Lincoln40 developers, the City cannot ignore it or pretend it does not exist and proceed with approving a project without having the needed studies and analysis done.
Furthermore, any discussion of trying to pass the “hot potato” of who is responsible for this plume does not make this problem go away. It needs to be investigated, not swept under the carpet.
The City has an obligation to protect the health, welfare and safety of its residents as well as protecting the City itself from potential liability, which it would be subject to if it were to approve Lincoln40 without doing its due diligence to evaluate this plume migrating towards Lincoln40.
Aren’t you jumping ahead several steps here? As I understand the data, there is no evidence that the plume is “toxic”, there is no evidence it is on the Lincoln40 site, there is no evidence it is at a level that needs handling, so perhaps you can start there.
Too many untruths here…[ES]
[David is ‘on track’]
I see no reason to believe the city would be liable.
Don: Even if that’s true (and I see no reason to arrive at that conclusion), is that sufficient justification to ignore a warning from someone who apparently has “independent” expertise?
I do not propose that anybody ignore a warning about a possible toxic site. We have many of them around Davis. There are procedures for dealing with them. I just suggest that it has little to do with the Lincoln 40 development proposal and that Eileen is inaccurately asserting liability about it.
Well, it appears that an independent expert disagrees with you, regarding the possibility of contamination at the Lincoln 40 site. It has nothing to do with what you, Eileen, or I “think” of the possibility.
Also, I’m not sure that either you, Eileen, or I fully understand the legal limits of liability.
[edited]
Part of the “procedures” include bringing up concerns regarding EIRs, etc. to various commissions (including the NRC).
Then perhaps Eileen should stop making assertions about it.
Ron: think about what would have to occur for the city to be sued on this and held liable.
Someone would have to get sick
they would have to link the sickness to the site contamination
they would have to have found the city negligent in handling the matter
the chance of that happening is both remote and extremely distant
from risk management state point this is just not in the realm of foreseeable risk
“Also, I’m not sure that either you, Eileen, or I fully understand the legal limits of liability.”
I do. I laid out the scenario above. Your admission makes your speculation all the more irresponsible.
David: Lots of “back-of-the-envelope” assumptions, you’ve made.
Not every successful lawsuit meets the “criteria” you’ve outlined.
[edited]
That’s how they assess risk.
Don…
You see clearly…
The likelihood that the City will be sued over Lincoln40 is probably pretty high, considering the recent history. The likelihood that the City will lose in Court on this issue is vanishingly small unless of course, the CC majority lacks courage and decides to settle.
They aren’t going to get sued over this type of stuff.
Says the Vanguard’s “armchair attorneys”. (Same ones who are also experts in toxic waste sites.)
However, it would be “unfortunate” if another taxpayer-funded agency was ultimately left “holding the bag”, as a result of a city’s past decisions (as has been the “norm” so far). (See EPA superfund sites.)
Decision-making authority and accountability SHOULD go hand-in-hand.
Ron: I’m going to stop responding to you if you continue this. I understand how risk management works, I understand how liability works. You don’t. You admitted as much. So stop opining on things you admit you don’t know anything about.
David: An accurate assessment of risk would first require an understanding of the site (beyond that expressed by Mr. Casias). You haven’t demonstrated ANY expertise in that area. (In fact, no one commenting on this Vanguard has demonstrated this.)
Regarding liability, even attorneys are sometimes “surprised” at results. Armchair guesses by non-attorneys (who nevertheless claim to have some unexplained expertise) is not something that I would “hang my hat on”, either way.
Unlike you, I’m not presenting an opinion regarding the toxicity of the site, risk, or legal liability. (And yet, I and a few others seem to keep getting accused of that.)
The Vanguard doesn’t seem to demonstrate much objectivity regarding some subjects, these days. And, a rather “nasty” commenting environment seems to be one of the results.
ROFL
Ron: stop while you’re behind. You don’t understand how risk is assessed. Yes, lawyers can be surprised by results, you can also win a lottery and get struck by lightning. But you don’t count on unlikely events occurring, I laid out for you what would have to happen in order for the city to face liability – it could happen, but it would be years off and extremely unlikely.
Your comment, as well as others today have demonstrated what the Vanguard has become.
Seems like you (and a few others on here) only want agreement that there “is no toxic waste”, “no legal liability”, “no need for a bike/pedestrian overpass”, no significant traffic impacts”, the “SACOG grant money is in the bag”, etc.
Sorry to see it. 🙁
Ok
The problem is, depending on who the other party is, the costs of defending a lawsuit may exceed the costs of settlement… that said if there are no other ‘complications’ I say ‘go to the mattresses’… fight it out… on the ‘toxics’ issue, the City would definitely prevail… 99% confidence level… sends a message…
If the City denies the project, a lawsuit may well emerge… the City’s chances to prevail may well be less… if toxics are the pivotal issue…
David,
Per your post at 6:15 pm:
So it sounds like you are suggesting that the City ignore the information that there is a plume migrating towards Lincoln40 that has been traced to a plume which has been reported to have TCE in it (Note: TCE is a known carcinogen).
Then it sounds like, you are saying that there would be no investigation now to first assess the potential health and safety hazards including checking for levels of TCE on the Lincoln40 site.
Then it seems like you are saying that the City would approved Lincoln40, without doing the assessment of the plume migrating towards Lincoln40, then wait and see if any residents of Lincoln40 get sick.
Then I guess you are saying that the City would wait to see if the City got sued by the sick residents at Lincoln40 to try to prove that the City was negligent, by ignoring the warnings about the plume.
Sounds like a bad idea for Davis, but a great idea for a movie (i.e. like a sequel to Erin Brockovich.)
This comment is way over the top. David did not say or suggest any of those things.
Any toxic site should be investigated, as have been the many that exist around the city today. Mitigation is something for the experts to deal with. It isn’t the responsibility of someone who wants to tear down existing housing on a site and build different housing.
The point is that you are trying to tie the ‘toxic plume’ to approval of the Lincoln 40 development, you seem to want the developer to pay for everything, and you are asserting liability issues without credence or evidence. That is what is arguable here, not whether something should be done about a toxic spill.
Toxicity issues make great headlines and cause visceral reactions, so they’re great targets for opponents of development. Please be responsible in your assertions.
Eileen – that comment that you are quoting specifically addressed the issue of liability for the city. That’s it.
The Vanguard dismisses the following as “speculation”:
“In 2016 RCC determined and Water Board staff confirmed the JF Wilson Site plume of contamination in shallow groundwater and subsequently contaminated soil vapor (soil gas in the unsaturated zone soil matrix) is likely migrating in a south-southeastern direction. In other words, the plumes are migrating beneath the UPRR right-of-way in the direction of the Lincoln40 Project Site. The distance from the JF Wilson Site to the Lincoln40 Project Site is approximately 250-feet laterally.”
But how does the Vanguard know that this is speculation? Has the Vanguard interviewed Mr. Casias to determine the basis for this conclusion? It is not “speculation” if it is based on available data together with knowledge of similar sites.
Meanwhile, the consultants claim that “It would be very unlikely that we would have any vapor intrusion on our property and our consultant did not list this a cause for concern to be followed up on” is not similarly dismissed as speculation by the Vanguard. Why not? Mr. Casias said that the consultant’s report was deficient. Did the Vanguard follow up on that?
The Vanguard’s bias is showing.
A less biased approach would be to gather information from both sides. A more cautious approach that sought to protect future residents would be to follow the recommendations of Mr. Casias, beginning with having “a more qualified Environmental Professional participate in the revision and reissuance of a new Phase I ESA Report.”
Indeed.
Roberta: You say a less biased approach is to gather information from both sides – isn’t that what the article did?
No, it didn’t equally examine both sides. You contacted Mr. Gradeff for more information and presented that information in detail. You did not do that for Mr. Casias. Yet you slandered him as having a vested interest, without having any evidence for that claim, and dismissed his view as “speculative.”
I have a full report from Casias. I have the full report from the environmental consultant. That’s 99 percent of this article. The only thing I got from Paul Gradeff is that they are deciding what to do about it. Seems like a fairly balanced report to me.
You dismiss Mr. Casias’s opinion as speculative, without even bothering to talk to him to find out more about what he based his opinion on. That’s bad journalism — not trying to get all the information that you can to come to a conclusion. But you did talk to Mr. Gradeff, and reported on that follow-up in detail. You didn’t treat the two opinions even-handedly. That’s biased journalism.
Just because you “presented” both sides doesn’t mean that you treated them equally. You were not even-handed in your treatement.
I’d say that you could recitfy this situation by calling up Mr. Casias and finding out more, but after the way that you’ve already treated him, he may not want to talk to you. Again, bad journalism — not treating your subject in such a way that they will be forthcoming. Nonetheless, I think you should try.
They are speculative by definition – he doesn’t know what is down there, he recommends investigating further.
“Unless remedial investigation and soil vapor assessment work is conducted down gradient of JF Wilson Site and also on the Lincoln40 Project Site itself, the magnitude of the plume of VOCs [volatile organic compounds], including the lateral and vertical extent cannot be determined.”
That is speculation.
Another point that is missed here: “The Responsible Party for the JF Wilson Site has not complied with any Water Board orders since 2007.” So if the party responsible for this is not complying with orders, why is this on the Lincoln40 developers to solve?
David, when you say that a conclusion is speculative, you imply that it is just a guess, made in the absence of information. But my point is exactly that you did not bother to find out what information he might have used to reach the conclusion. Yes, he wants more information. That is a scientific approach. But that doesn’t mean he has no relevant info now. You should interview him to find out. It would also be ethical to endorse his recommendation for an outside expert study. Instead you dismiss his views without reason.
It’s not a guess so much as we don’t know if the plume extends to the Lincoln40 site, its concentration or whether it poses any sort of risk.
Hah! I wasn’t paying attention to the name of the person who testified before the NRC. I know Richard Casias, think highly of him, and believe him to be a consummate professional.
Looking carefully at his words, there is nothing I disagree with. Looking carefully at the words of the consultant hired by Lincoln40, there is nothing I disagree with. Neither one states an emphatic conclusion.
Whether ES is correct about the developer having to do a study I do not know. Are the regs she quoted in context or correct? I don’t know, but I doubt Lincoln40 will be required to drill wells. Whether an environmental study of groundwater on the south side of the tracks is done or not is no minor issue, these studies are expensive!
The 2003 study sited by the Lincoln40 consultant that states the TCE levels and the lack of vapor even in the building adjacent to the source is probably the same study I discussed with consultants on site. As I worked in the industry for seven years, I wanted to know what my own personal health risk was as a neighbor of the site. When I heard the levels they were measuring in water and vapor, I was not concerned. I even recommended a friend with small children to move into the house adjacent to the building, that’s how unconcerned I was about the risk.
There is never certainty with toxic spills, because if you are not aware of a spill, you don’t measure there in the first place. Your children could be playing in a toxic source right now. We can’t measure everywhere. Most sites probably have been identified, due to studies of historic uses.
Another thing people are missing here is that one of the ways to mitigate a toxic plume is to “cap” it, seal the ground above it. The toxins don’t go away, but capping does prevent vapors from seeping through the soil surface. That’s how many developments get built upon toxic plumes that have not been fully remediated. Unless there is vapor, exposure to toxic soil, or you are using the aquifer that the plume is in as a drinking water source, there is no exposure to the plume to those on top.
I may be living atop the same toxic plume. I am not concerned.
Alan,
The “regs” information is directly from the language quoted in Mr. Casitas very detailed comment letter to the City on the Lincoln40 Draft EIR regarding this plume concern.
I agree with Roberta and Ron’s comments. I can not understand how having this information about this plume headed towards Lincoln40 could possibly not generate concern to be investigated.
The bottom line this issue needs more investigation, not being swept under the carpet simply because it is inconvenient for the Lincoln4o developer. The community needs and deserves to not be put at risk because the developer simply wants this issue to to just go away.
What constitutes an investigation?
David,
Mr. Casita’s letter spelled out the recommendations which you covered in the article. But first and foremost, the EIR consultants need to start with a more qualified environmental professional to go back and supplement the deficiencies of the Lincoln40 Draft EIR including doing the sampling for the data and analysis needed which is described below:
But let me re-post them:
First, “The principal failure of the DEIR Section 4.5 Hazards and Hazardous Materials section is due to its reliance on a deficient Phase I ESA Report. It is recommended that a more qualified Environmental Professional participate in the revision and reissuance of a new Phase I ESA Report.”
Second, “The potential for human exposure from hazardous substances including VOCs, lead and arsenic-impacted particulate matter from known and documented sources identified in the Phase I ESA Report has not been properly identified in the DEIR.”
Third, “No Phase II recommendations to conduct appropriate surface and subsurface investigations were proposed in the Phase I ESA Report to address the potential exposure issues from VOCs, lead and arsenic-impacted particulate matter.”
Fourth, he suggests “before offering speculative and somewhat dismissive opinions regarding the potential human health hazards raised by stakeholders, it’s important to reflect on the (excerpts from the California Health and Safety Code).”
(I am re-posting the relevant language which I posted earlier:)
California Health and Safety Code Section 25110-25124. Article 2, Definitions:
25117. (a) Except as provided in subdivision (d), “hazardous waste” means a waste that meets any of the criteria for the identification of a hazardous waste adopted by the department pursuant to Section 25141. (b) “Hazardous waste” includes, but is not limited to, RCRA hazardous waste. (c) Unless expressly provided otherwise, “hazardous waste” also includes extremely hazardous waste and acutely hazardous waste. (d) Notwithstanding subdivision (a), in any criminal or civil prosecution brought by a city or district attorney or the Attorney General for violation of this chapter, when it is an element of proof that the person knew or reasonably should have known of the violation, or violated the chapter willfully or with reckless disregard for the risk, or acted intentionally or negligently, the element of proof that the waste is hazardous waste may be satisfied by demonstrating that the waste exhibited the characteristics set forth in subdivision (b) of Section 25141.
25117.3. (a) “Hazardous waste property” means land which is either of the following: (the following are the relevant sections)
(2) A portion of any land designated as a hazardous waste properly pursuit to Section 25229 where a significant disposal of hazardous waste has occurred on, under, or into the land resulting in a significant existing or potential hazard to present or future public health or safety.
25117.4. “Border zone property“ means any property designated as border zone property pursuant to Section 25229 which is within 2,000 feet of a significant disposal of hazardous waste, and the wastes so located are a significant existing or potential hazard to present or future public health or safety on the land in question.
AND . . . is the second half true? If so, is it even dependent on development? Why haven’t all the properties within 2000′ of the source, and significant portion of Old East Davis, been required to do studies? Should significant portions of Olive Drive and Old East Davis be evacuated until studies and remediation of the toxic plume are complete? (many years)
It did generate concern. You are concerned.
Seems like a lot of commenters weren’t paying attention (which is all I was suggesting), and were instead “focused on the messengers” (as well as their own conclusions regarding the site itself). Despite what some seem to think, at no point did I offer an opinion regarding the extend of the toxic plume, or what should be done about it.
Nor did I offer an opinion regarding the amount of risk to the city (or lack thereof). The truth of the matter is that I don’t know (and I suspect that most others don’t know, either). Assessing the probability of such risks requires an understanding of what’s actually at the site, as well as legal knowledge.
Not sure how many times I repeatedly noted these facts.
The strong reactions to my (non-statements) is an indication of the amount of advocacy/bias, regarding this proposed development.
Oh – and “technical” knowledge may also be needed, regarding the effectiveness of possible remedies (should a problem be confirmed).
Probably other considerations, as well.
Suggest deleting this comment. Howard is apparently reacting to something that wasn’t said. Why is this type of thing continually allowed, and not recognized?