![](https://20811975.fs1.hubspotusercontent-na1.net/hubfs/20811975/Screenshot%202024-07-09%20at%204.57.21%20PM.png)
July 8th, 2024
Chair Caryl Hart and Commissioners
California Coastal Commission
455 Market Street, Suite 300
San Francisco, CA 94105
RE: Deny the Huntington Beach Project Specific LCP Amendment to Change the Current Land Use Designation and Zoning for the Magnolia Tank Farm Site
Dear Chair Hart and Members of the Commission,
On behalf of the California Coastal Protection Network, the Surfrider Foundation, the Orange County Coastkeeper and the Sierra Club Angeles Chapter, we urge the Commission to deny the proposed LCP Amendment (LCPA) that would change the zoning for the Magnolia Tank Farm (MTF) site both as submitted by the City of Huntington Beach or as modified by your staff. While we realize that the MTF proposal provides much-needed additional housing within a City that has consistently challenged the State’s requirements to provide it, we cannot support placing that additional housing (especially desperately needed affordable housing), a hotel and other infrastructure directly next to an un-remediated California Superfund site, surrounded by other contaminated sites1, in an area well-known to already be subject to sea level rise (SLR), flooding, groundwater shoaling, earthquake faults, etc.
As Patrick Barnard, the noted USGS scientist who is widely credited with raising awareness of the significant climate hazards affecting the California Coast stated in a 2022 interview with the Los Angeles Times:
“There’s definitely a lot of low-lying communities that have seasonal or annual high tide flooding today,” Barnard said. Venice, Seal Beach, Newport and parts of Huntington Beach are all examples. “They’re already sort of on that knife-edge, and another foot of sea level rise is going to increase the frequency of flooding of those communities.” (emphasis ours)
We believe that knowingly placing new infrastructure in harm’s way is irresponsible and counter to our need to foster climate adaptation efforts that will provide multiple benefits. Restoring the MTF site to the [historic] wetland it was in the past would reduce sea level rise impacts while providing desperately needed wetlands habitat that supports our fisheries and endangered species.
As Commission staff acknowledges in the Staff Report:
“…the fact remains that the proposed land use designation changes would allow for more intense development of the site (up to 250 new private residences, a new hotel, and visitor serving areas), resulting in development that is itself far less adaptable to SLR and other coastal hazards and which would rely on access, transportation, and other infrastructure beyond the MTF site that will be vulnerable to climate change impacts in the future. Thus, although the studies provided to the Commission predict that expected hazards risks can largely be mitigated, the proposed LCPA does not ensure that risk in this high flood hazard area is minimized nor that the proposed new development will continue to be served with adequate public services as flood and SLR risk worsens over time. While the existing infrastructure will provide considerable flood reduction benefits, making flooding in the Southeast Huntington Beach area unlikely over the life of development at the MTF site, the potential for damage and loss of life in the event that the infrastructure fails is immense.2
In conclusion, despite our opposition to this zoning change, and in acknowledgement of the extreme pressure that the Commission is under to approve new housing regardless of the hazards and risks it entails, we have included additional suggested modifications should the Commission decide to approve the zoning change as modified by your staff.
Background:
Given recent attacks on the Coastal Commission that have falsely accused the Commission of not supporting the development of affordable housing in the Coastal Zone and/or inappropriately delaying projects, it is important to recap the history of the City of Huntington Beach’s submittal of an LCP project-specific Amendment to change the zoning on the vacant Magnolia Tank Farm site from public uses and infrastructure to enable the development of residential housing, a hotel and lodge, and other infrastructure.
The City submitted a project-specific LCP Amendment (LCPA) for the Magnolia Tank Farm site to the Coastal Commission in 2021 and the Commission held a hearing on that submittal in July 2023. As we pointed out in our prior 2023 letter and in our 2023 Presentation, the City’s previous LCPA did not require any of the Project benefits as described at the time on the MTF website, in the project brochure widely distributed to legislators in Sacramento, shared in ex partes with Commissioners or cited by their supporters. Unfortunately, a close review of the proposed LCPA, the existing Specific Plan and the Developer Agreement that Staff now seeks to modify revealed that:
- Under the Specific Plan, the developer was not required to build one unit of affordable housing on the MTF site. The Specific Plan does require a minimum of 10% of all residential units be affordable, but allows the developer to pay an in-lieu fee to satisfy 100% of the affordable housing obligation.
- Despite descriptions that the project would provide rental housing, the Specific Plan did not include a provision for rental housing and specified that all residential units on the site would be ‘for sale’ only.
- The agreement to dedicate a portion of the affordable residential rental units to the hotel’s unionized work force was not required in either the Specific Plan or the Development Agreement with the City of Huntington Beach.
- Of the six projects that offered open space and recreational benefits described by the developer, four were at the discretion of the City and not guaranteed to materialize:
o Banning Ranch Library - $1,000,000
o Passive Park Space - $400,000 – Provided by Developer
o Play Equipment and Parks Improvements at Seely Parks - $400,000
o Banning Avenue Beautification - $300,000
o Edison Park Improvements - $800,000
o Magnolia/Hamilton Improvements – Provided by developer
As the Development Agreement indicated, “Nothing in this agreement obligates the City to use to use the monetary funds provided by the Owner for such improvements, and the City Council may use the funds provided by the Owner for any lawful purpose at its sole and absolute discretion. The monetary funds provided by the owner to the City simply may fund the library, park
improvements, and Banning Avenue beautification. (emphasis ours)
As a result of the uncertainty surrounding the project and the Commission’s desire for additional information, the City withdrew that LCPA and resubmitted it in February 2024. However, aside from the addition of the Q3 Report, the resubmitted LCPA was identical to the previous submittal and the controlling documents, i.e. the Specific Plan and the Development Agreement, remained unchanged.
In response, over the last four months, your staff has obviously worked tirelessly to provide the suggested modifications that we strongly believe the City itself should have provided. The suggested modifications in staff’s revised LCPA, if approved by the Commission, will become the controlling document and will now codify the MTF project’s description turning purported elements and verbal statements into legally-enforceable requirements for future development on the site.
This legal codification is extremely important because the current developer, Mr. Shopoff of Shopoff Realty, testified towards the end of the July 2023 hearing that his company would not be the long-term landowner for the entire project and that they would sell-off the residential portion3 of the project “because we are not home builders.” This is also supported by a video on the MTF project on the Shopoff Realty website which indicates that “once the entitlements are secured, the builder must develop the property in accordance with the City-approved Specific Plan.”4
Current Status:
While staff has done it’s best to provide a framework they believe can allow the Commission to approve the zoning change consistent with the Coastal Act, we believe that three intertwined elements remain unresolved:
- The un-remediated Ascon Landfill CA Superfund site next to the MTF site • The environmental justice impacts described in the Staff Report
- The climate hazards affecting the area that include the MTF site, the Ascon site, and the other contaminated sites that exist in close proximity to the MTF site
The Un-Remediated ASCON CA Superfund Site
From our perspective, it seems almost impossible, in this day and age, that anyone would consider building homes literally next to an un-remediated Superfund site. And by ‘next to’, we mean currently separated by a chain link fence. And in terms of the distance of homes proposed for the Magnolia Tank Farm project from the Ascon site, the staff’s suggested modification on page 530 of the Exhibits increased the minimum setback to 15 feet. Anyone who googles preferable distance for a neighborhood from a Superfund site quickly sees that it is generally measured in miles, not feet.
As you know, Ascon is a former landfill located directly to the north of the MTF site that received industrial, construction (asphalt, concrete) and oil field waste including drilling muds, wastewater brines and other drilling wastes in the form of liquid and semi-liquid wastes deposited on-site into open lagoons and pits from approximately 1938 until 1984. Staff reports that from 1957 to 1971, chromic acid, nitric acid, sulfuric acid, aluminum slag, oil tank bottoms, oil sump wastes, fuel oils, styrene (a form of plastic) and other wastes were also dumped into the landfill. In 2002, the DTSC signed an Imminent and Substantial Endangerment Determination and Remedial Action Order and in 2015 approved a Remedial Action Plan (RAP) for the site. The RAP included some excavation, particularly at Pit F, but at this stage appears to rely heavily on installing an engineered cap over the contamination that will remain in situ in perpetuity to be covered by a vegetated layer.
In January of 2019, the RAP was implemented only to be shut down 6 months later after a Notice of Violation was issued by the South Coast Air Quality Management District due to the release of air contaminants and hundreds of complaints from nearby residents of odors and respiratory issues. As of today, 5 years later, the remedial work remains suspended, though DTSC anticipates it resuming in September 2024 – just 2-3 months from now.
When considering the potential for the future mobilization of contaminants from the site to the groundwater and/or the MTF site, DTSC asserts and the staff relies in part on a silt/clay layer to prevent any mobilization of contaminants caused by SLR or groundwater upwelling. However, in a May 14, 2024 Memorandum to the ASCON Site File 5(Attachment A), in response to questions raised by CCC staff, DTSC describes the silt/clay layer in the following, more nuanced ways:
- “the confining or partially confining nature of the silt/clay layer is believed to impede, but not completely prevent, migration of contaminants to
groundwater, limiting dissolved phase impacts in groundwater to localized areas on site “
- “The semi-confining silt/clay layer impedes infiltration and transport to groundwater (e.g. only localized impacts in groundwater on Site)”
DTSC also admits that:
- “Pit F did extend below the groundwater table. Pit F is an exception to the near contiguous native silt/clay soil believed to act as an aquitard.”
When asked by CCC staff if an assessment was made for areas outside of the ASCON parcel boundary given that the risk of a hypothetical resident living on the un-remediated Site would be unacceptable, the DTSC response stated:
- Risk assessment for on-Site receptors would have been conducted for the Site…As stated in RAP section 4.1, assessment due to groundwater impacts outside of the Site boundaries was not required “Because there are no off-Site groundwater impacts [so] groundwater does not pose a health risk to off-site residents.”
Further on in the document, CCC staff inquires if “the risk of the remediated Site cannot be assessed until the remedial actions are completed.” DTSC confirms that the risk of the remediated site can only be confirmed after the remedial work is completed.
- “the remedial design is based on a conceptual understanding of the Site conditions derived from Site characterization data. Confirmation soil samples will be needed from the excavation floor and sidewalls of excavated areas outside of the final cap to confirm that remedial objectives are achieved through design implementation.”
According to the July 2024 report prepared by Integral Consulting, Inc. (See Attachment B):
- “ The degree to which the clay/silt layer is confining has not been assessed. Based upon geologic cross-sections and well logs prepared by Geosyntex, the clay/silt layer is not continuous, and pinches to zero or near zero
thickness…along the southern portion of the ASCON property, which is adjacent to the [MTF] site.6
Despite this uncertainty, it must be noted that DTSC did not conduct a Sea Level Rise Vulnerability Assessment (SLRVA) to evaluate the potential for SLR and related climate induced changes to impact the ASCON site before remedial work is conducted at the site. Neither did DTSC conduct a SLRVA on the ‘remediated’ MTF site before clearing it for future development, although it did include a restriction against using the groundwater below the MTF site for potable use. DTSC has indicated that it only intends to do a SLRVA at the ASCON site after the remedial work is completed when they are preparing the Operations, Maintenance and Monitoring Plan (OOMP).
Finally, the Integral Consulting, Inc. report points out that testing for the presence of PFAS compounds in soil and groundwater has not been conducted at the ASCON or MTF sites and indicates that additional subsurface investigation would be needed to assess whether PFAS compounds from the ASCON property have impacted soil, soil vapor, and/or groundwater beneath the [MTF] site.7
Requested Modifications
Staff has attempted to address the significant uncertainties that exist around the ASCON un remediated Superfund site by requiring:
- Notification of future owners and renters/lessees regarding the history and condition of the ASCON Superfund site
- Installation of methane mitigation measures in all habitable structures and soil vapor monitoring probes on the site
We do not believe that those suggested modifications, though welcome, are sufficient to protect future owners or lessees. Our requested modifications below align with statements included in the Environmental Justice section of the Staff Report8:
- Require that the construction of the homes be commenced only after the remedial work at the ASCON Superfund site has concluded and DTSC confirms that the remedial objectives have been achieved.
- Require that construction of the homes be contingent on DTSC conducting a SLRVA detailing potential impacts to both the ASCON and MTF site.
- Require a subsurface investigation into the presence of PFAS compounds on the ASCON and MTF sites prior to the construction of the homes.
- Require a minimum 100-foot setback for all residential development from the ASCON Superfund site.
Environmental Justice Impacts
The MTF project, were it situated in any other location in the Coastal Zone that was not subject to the ongoing hazards and risks inherent at this site, should be applauded for its design and benefits including:
- The provision of 20% of all 250 residential units (50 units) to be affordable rental units;
- The provision that 50% of all affordable rental units (25 units) be made available to on-site hotel workers by a right of first refusal; and
- The provision that 25% of the hotel accommodations be lower cost.
And even though the surrounding area is not considered low-income or technically considered an environmental justice community, it is important to note that, in addition to ASCON, the AES Huntington Beach Powerplant and Orange County Sanitation District sewage treatment plant are less than a mile away. According to CalEnviroScreen, this area scores in a high percentile for solid waste facilities and toxic releases compared to the rest of the state. The MTF site, itself is literally surrounded by other un-remediated contaminated industrial sites in addition to the ASCON site.9 And while the provision of affordable housing is critical for lower income populations, these same populations, as stated in the Staff Report (see page 53), are more “economically vulnerable and less able to cope with existing and potentially future environmental burdens.” With a history of toxic releases, and even before the MTF project was proposed, residents and EJ advocates have described the site as the Toxic Triangle.
The Staff Report appears to point to one possible protection that could reduce the likelihood of burdening future owners or renters with unreasonable adverse impacts to their health and financial well-being:
- “With increased attention by state agencies, however, there seems to be a path forward to remediate the Ascon site prior to the construction of residences in MTF” (see page 56).
- “Ideally, the multi-stage remediation process would be concluded prior to the commencement of the construction of the MTF project. This would reduce the lingering uncertainties of building permanent housing in this area.” (see pages 56-57.
Unfortunately, despite their obvious and legitimate concerns, Commission staff stops short of requiring that the ASCON site be fully remediated prior to the construction of the homes. We believe that even if the Commission cannot legally require that the remediation be completed before housing construction begins (and we are not convinced that is the case), that the
developer and the City can voluntarily agree that construction of the homes will not commence until the remediation of ASCON site is successfully completed.
Requested Modifications
Staff has recommended several modifications:
- Require that all future owners and renters/lessees at the site receive written notification of the history and condition of the adjacent Ascon Superfund site as well as known and potential hazards related to climate change.
- Require installation of passive methane mitigation systems in all habitable structures and installation of soil vapor monitoring probes at the MTF site.
- Require the development of a financing mechanism to help fund the MTF site’s fair share of the cost of future climate change adaptations for the MTF site and broader southeast Huntington Beach area. Formation and implementation of the funding mechanism must exclude affordable housing tenants and occur prior to issuance of the first occupancy permit for the hotel or residential development, whichever comes first.
Despite staff’s good intention, we do not believe that these suggested modifications are sufficient to protect the future safety of those who could be living adjacent to an un remediated CA Superfund site as well as one that is highly vulnerable to SLR and other climate induced hazards. And we question the burden that will be placed on future residents by the creation of an assessment District to cover the ‘fair share’ of the cost of future climate change adaptations – some of which are outlined in the Q3 report and are estimated to be in the hundreds of million dollars - to protect the MTF site and adjacent sites in low-lying Southeast Huntington Beach.
In any scenario, we believe that the developer that is seeking the entitlements to build on this site should be held responsible and liable for any foreseeable adverse impacts that future residents may experience during the life of the project.
Our recommended modifications appear below:
- Extend the affordable housing provision from 75 years to 100 years or in perpetuity. It is unclear to us why the affordable component would only be in effect for 75 years after which the occupants of these affordable rental units could be permanently displaced.
- Require a minimum 100-foot setback for all residential development from the ASCON Superfund site.
- Require that the affordable rentals be dispersed within the development and not clustered along the boundary of the un-remediated ASCON Superfund site. • Require that the construction of the homes be commenced only after the remedial work at the ASCON Superfund site has concluded and DTSC confirms that the remedial objectives have been achieved.
- Require that construction of the homes be contingent on DTSC conducting a SLRVA detailing potential impacts to both the ASCON and MTF site prior to construction or occupancy.
- Require annual monitoring reports for soil and groundwater levels and contamination to address the effect that rising groundwater could have on the mobilization of toxins from the ASCON site, including an assessment for PFAS which has not been completed to date.
Sea Level Rise and Climate Change
The Magnolia Tank Farm project site faces present day flood risk and the surrounding area, including access roads and utilities, will face increasing flood risk caused by rising seas and groundwater. The project site currently experiences frequent groundwater daylighting during high tides or rain events, along with its access roads at Magnolia Street and the Pacific Coast Highway. These effects will get worse over time as seas rise and storms intensify.
The “Island Effect” is a major concern with the project site. Due to its location within historic wetlands, significant fill is required to elevate the development in a way that reduces the risks of flooding, especially as seas rise. In the past, the Commission has denied proposals to construct large projects on elevated building pads within flood zones.
For example, the Poseidon Huntington Beach desalination plant was found inconsistent with the Coastal Act in part due to the uncertainty regarding surrounding infrastructure such as roads, driveways, utilities or septic systems.10 The Commission also denied the proposed wastewater treatment plant in Morro Bay for similar reasons related to the Island Effect.11
The project will increase daylight flood levels for the surrounding area.12 The staff report dismisses the risk of daylighting, noting that it has not caused structural damage yet. The staff report assumes that the additional 0.1-0.5 feet of flooding that the project will add to the surrounding area will not be a problem – but this assumption is unproven.
The 2024 Southeast Huntington Beach Climate Change Technical Study by Q3 Consulting (2024 Study) describes a tipping point for the area’s flood control system, according to the staff report:
“Based on the current flood control channels, that tipping point would occur for the area east of Talbert channel during a 100-year storm surge event with around 4.2 feet of SLR and for the area around the MTF site during a 100-year storm surge event with around 4.4 feet of SLR. Importantly, these SLR amounts are projected to occur after the end of the current projected service life of the floodwalls which is 50 years (approximately 2070). In other words, the walls will need to be replaced before SLR is expected to overwhelm the existing capacity. ”
To assume the levee will be replaced or modified before then is a great leap. The Orange County Flood Control District has a $100 million backlog of projects, and many environmental justice communities in Orange County do not currently have 100-year protection. The Commission should require a commitment from OC Flood prior to issuance of a permit.
The cost of adapting this area for future hazards is enormous. In 2018, a report by Tetra Tech by the City identified $76 million in flood control improvements to mitigate existing flooding issues. The 2024 Study identifies an additional $170 million in needed pump station improvements to adapt the area to sea level rise. This does not include the cost to upgrade the existing levee system by the end of its lifespan in 2070. To put this in perspective, the city of Huntington Beach has budgeted only $500,000 for pump station improvements each year in 2025/2026. This is only 13% of what is necessary to mitigation existing conditions.
To address the enormous cost of continuing to build in this hazardous location, staff’s suggested modifications include an Assessment District to ensure the development contributes it’s fair share of the cost of adaptation. However, it is difficult to conceive how the City and County will come up with the $240+ million in funds to implement the improvements necessary to protect the site and adjacent neighborhoods from future conditions, even with the MTF funding mechanism. The Assessment District would only include 200 homes, if the affordable units are exempted – which is a very small quantity to make a dent in the adaptation price tag. As a small step toward bridging the gap, the developer should contribute to the Assessment District and related flood control improvements, not just the homeowners.
In its July 2024 Report, Integral Consulting highlights numerous additional coastal hazard related concerns, including:
- The proposed development will cause increases in flooding in surrounding areas, as shown in Figure 1, provided by Anchor QEA.
- Groundwater shoaling at the site will increase demand on the drainage system including sheet pile walls, pump stations, building infrastructure and channel outlet. • Closed beach barrier flooding could result in 5-feet of additional water elevation in the Talbert flood control channel, a channel that has maintenance restrictions due to endangered species protections.
- Stormwater drainage compounded with a closed barrier beach could result in present day flooding, or with higher levels of sea level rise.
Further, the benefits this site could provide as flood protection for the existing surrounding communities and infrastructure was not adequately assessed. The Q3 study of the Magnolia Tank Farm site as a benefit to flood control in the area is limited to its use as a detention basin that would be dry most of the time. This overlooks the multiple benefits of utilizing the site as a wetland like the adjacent Magnolia and Brookhurst Marshes. Therefore, the cost/benefit analysis is inaccurate. The MTF site needs to be analyzed as an addition to the existing Huntington Beach Wetlands Complex to determine its true value as a combination of wetland habitat and flood control.
The Coastal Act and LCP requires that new development not create or contribute significantly to the destruction of the site or surrounding area and not require the construction of protective devices. This project would rely on numerous protective measures, including flood control channels, site grading and groundwater pumping. It would be maladaptive to climate change by intensifying development in an area subject to coastal hazards and perpetuate reliance on infrastructure subject to hazards and would make flooding worse for surrounding neighborhoods and infrastructure.
To address the Coastal Act inconsistencies associated with building within a coastal hazard zone, staff suggests several modifications, including:
- Require the development of a financing mechanism such as a Special Assessment District to fund the property’s fair share of the cost to implement adaptation measures.
- Require raising the overall ground elevation and building pads for flood protection.
- Require outlets to the Huntington Beach Channel to be fitted with a tide gate to prevent flows in the channel from entering the project storm drain.
- Require an adaptation plan within 10 years to identify priority adaptation measures, considering installation of a new storm drain system and to accommodate wetland migration.
- Require a waiver to rights for shoreline armoring, assumption of risks, removal of development if required due to coastal hazards.
- Require a notice to property owners and renters regarding coastal hazards.
We appreciate staff’s careful consideration of coastal hazards, however, additional modifications are needed to minimize the hazardous impacts in light of the vast Coastal Act inconsistencies. We suggest the following:
- Require documentation from local and regional agencies that this project is consistent with relevant emergency response plans, such as the City’s Flood Management Plan, and an agreement for flood management in the surrounding areas for the project’s entire lifespan, with the project coastal development permit application.
- Specifically, require a commitment to flood channel replacement or modification, as needed, to avoid flood impacts to surrounding development, by OC Flood prior to issuance of a coastal development permit.
- Require an annual assessment and report of groundwater flow direction from the ASCON property, which may change and remain unaccounted for, depending on intensity of municipal supply well pumping.
- Require the project developer to contribute to the Assessment District. • Require a lease through the State Lands Commission prior to issuance of a permit given the project location in historic tidelands.
- Integral Report, Review of Magnolia Tank Farm Development – Sea Level Rise Hazard Analysis and Ongoing Contamination and Remediation Work, July 8th, 2024, pages 4-8.
- CCC Staff Report, Item W11a, Staff Recommendation on City of Huntington Beach Major LCP Amendment Request No. LCP-5-HNB-24-0003-1 (Magnolia Tank Farm), page 29.
- California Coastal Commission, July 13th 2023 Hearing, Item 13a, City of Huntington Beach LCP Amendment No. LCP-5-HNB-21-0057-1 (Magnolia Tank Farm). Video can be found here beginning at approximately 5:24:22
- Shopoff Realty Website, Magnolia Tank Farm Video at 1:45.
- Memorandum to Ascon Site File, Huntington Beach, California, (DTSC Site Code 400007), From Clayton Larkins, PG, “ TECHNICAL MEMORANDUM IN RESPONSE TO QUESTIONS SUBMITTED BY THE CALIFORNIA COASTAL COMMISSION REGARDING THE ASCON SITE, HUNITNGTON BEACH, CALIFORNIA, (DTSC SITE CODE 40007), dated, MAY 14, 2024
- Integral Report, Review of Magnolia Tank Farm Development – Sea Level Rise Hazard Analysis and Ongoing Contamination and Remediation Work, July 8th, 2024, page 5.
- Integral Report, Review of Magnolia Tank Farm Development – Sea Level Rise Hazard Analysis and Ongoing Contamination and Remediation Work, July 8th, 2024, page 6.
- CCC Staff Report, Item W11a, Staff Recommendation on City of Huntington Beach Major LCP Amendment Request No. LCP-5-HNB-24-0003-1 (Magnolia Tank Farm), pages 51-57
- Integral Draft Report, Review of Magnolia Tank Farm Development – Sea Level Rise Hazard Analysis and Ongoing Contamination and Remediation Work, July 8th, 2024, pages 4-8.
- https://documents.coastal.ca.gov/reports/2022/5/Th9a10a/Th9a10a-5-2022-staffreport.pdf
- https://documents.coastal.ca.gov/reports/2013/1/Th23b-1-2013.pdf
- Anchor QEA Report, Magnolia Tank Farm Redevelopment Project, Table 2-6, page 24, footnote 2.
####