Expert Testimony Recommending Vapor Intrusion Study is Insufficient Evidence of Health Effects, Does Not Trigger Need for EIR

After the Berkeley City Council (“City”) approved a mixed-use commercial and residential project on the site of a former car dealership and service garage, a community group sued, claiming that pre-existing contamination on the site presented health risks to construction workers and future residents.  The group contended that because of the contamination, the City should have prepared an environmental impact report (“EIR”) for the project, and the City’s failure to do so violated the California Environmental Quality Act (“CEQA”).  The trial court ruled in favor of the City.  On appeal, the First District Court of Appeal affirmed the trial court decision, finding that the community group did not present evidence showing that the potential health risks could cause a significant effect on the environment.  (Parker Shattuck Neighbors v. Berkeley City Council (November 7, 2013, No. A136873 ) — Cal.Rptr.3d —- ).

In reviewing the case, the appellate court rejected the community group’s arguments that the presence of contaminated soil alone, or the listing of a project site on the “Cortese list” of potentially contaminated sites, was sufficient to trigger the need for an EIR.  However, the appellate court agreed with the community group that the disturbance of contaminated soil could be a physical change in the environment under CEQA, because project activities could spread the contamination.

The court rejected the City’s argument that soil disturbance would be an effect of the environment on the project, rather than an effect of the project on the environment.  The appellate court brushed aside the City’s reliance on a trio of CEQA cases along this line of argument, stating that the cases did not apply because they did not involve a physical change in the environment.  (Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464; South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604; and Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455).  The court noted that in the Baird case, soil contamination was also present at the project site.  However, because project activities would not disturb the area of contamination, the Baird court found that the contamination would not be spread and there would be no environmental effect. 

Nonetheless, the court concluded that the community group failed to establish that the disturbance of contaminated soil would trigger a significant effect on the environment in this case.  The court explained that CEQA regulates environmental changes affecting the public at large, not a particular, smaller group of people.  The court observed that the community group only asserted that construction workers and future residents of the proposed project could be affected by the contamination, not the public generally.  Citing to the case Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, the court noted that a physical change caused by a school project potentially affecting 1800 students and staff was not broad enough to invoke CEQA.

More importantly, the court found that even if CEQA did apply to health effects limited to the people who are part of a project, the evidence presented by the community group failed to support an argument that the soil contamination at the site would present such a health risk.  The community group’s evidence consisted of comments on the project made by a hydrogeologist and expert on air quality.  The expert commented that the levels of volatile organic compounds at the site were at levels for which the U.S. Environmental Protection Agency and state Regional Water Quality Control Board recommend a vapor-intrusion study.  The purpose of the study would be to examine whether vapors traveling up through the soil would pollute the air breathed by people at the site.  The appellate court held that “a suggestion to investigate further is not evidence, much less substantial evidence, of an adverse impact.”


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