Rocketdyne Cleanup Coalition
Physicians for Social Responsibility-Los Angeles
Committee to Bridge the Gap
Southern California Federation of Scientists

APPELLATE DECISION IN OLD BOEING LAWSUIT HAS NO IMPACT ON MELTDOWN SITE CLEANUP
DEPT. OF ENERGY AND NASA SANTA SUSANA CLEANUP AGREEMENTS UNTOUCHED

September 19, 2014 – Today’s appeals court decision in a lawsuit Boeing filed back in 2009 will not affect the cleanup of the former reactor and rocket testing facility near Simi Valley, cleanup groups said.

“The court decision has little practical effect, since a year after Boeing filed this suit, the Department of Energy (DOE) and NASA entered into legally binding cleanup agreements with California that are unaffected by the ruling,” said Denise Duffield, Associate Director of Physicians for Social Responsibility-Los Angeles. “Additionally, California has authority under other, older laws unchallenged in this case to order Boeing to clean up its part of the property to the strictest standards.”

“This is a ruling in an old case that events have passed by,” said Holly Huff of the Rocketdyne Cleanup Coalition. Huff has lived near SSFL since shortly before the partial meltdown, and now has leukemia. “Boeing has won nothing, but nonetheless has shown its true colors—an unethical corporation that will use all its power to try to get out of cleaning up contamination for which it is responsible.”

The Santa Susana Field Laboratory (SSFL) was the site of ten atomic reactors and tens of thousands of rocket tests. Several of the reactors suffered accidents, including a partial meltdown, which along with decades of spills and other releases of radioactive and chemically toxic materials led to widespread contamination. In December 2012, EPA released results of a several year study that identified 500 locations at the site contaminated with strontium-90, cesium-137, plutonium, and other radioactive materials.

In 2007, concerned about lack of effective cleanup, the California Legislature passed and Governor Schwarzenegger signed into law SB990, which required remediation of the contamination to the most protective EPA standards. Boeing, which has strenuously resisted cleanup, sued California to overturn the statute. The core of its case was an assertion that radioactive cleanup was federally pre-empted.

However, in 2010, DOE and NASA signed enforceable agreements to clean up their portions of the site to background, i.e. removing all contamination that can be detected. DOE agreed to clean up all of Area IV, where the nuclear work occurred. NASA owns all of Area II and part of Area I, where rocket testing was conducted. Those agreements, which are independent of SB990, were unaffected by the court’s ruling.

As the federal government said in a brief in the SB990 case, “[T]he two federal agencies that have carried out activities at SSFL have entered into Administrative Orders on Consent (AOCs) that govern the ongoing cleanup of soils at the site. This Court’s ruling on the constitutionality of the challenged statute will not affect the cleanup efforts and commitments of the federal agencies pursuant to these AOCs.”

“Neither the DOE nor the NASA AOC purports to be authorized by SB990,” the federal government further stated. “In the United States’ view, invalidation of SB990 would not affect the enforceability of the AOCs, and as noted [above] the federal agencies are committed to the cleanup described therein.”

The contamination in the remaining parts of SSFL, Area III and Boeing’s part of Area I, is chemical and subject to the state’s longstanding hazardous materials laws that pre-date SB990 and are not affected by the court ruling either. Under those laws, the state can require the cleanup to the strictest standards. Indeed, cleanup is required to be to the land use specified by local authorities in zoning and general plans. For SSFL, that is agricultural/rural residential use.

“Boeing’s efforts to get out of its cleanup obligations by filing this suit have availed it nothing,” said Dan Hirsch, President of the Committee to Bridge the Gap. “Its claim that nuclear remediation is pre-empted has been mooted by DOE agreeing to clean up all the radioactive contamination, and its challenge to SB990’s requirements for chemical cleanup are of no consequence because the state has all the authority it needs under other laws to require full cleanup.”

“Boeing should stop throwing its legal and political weight around trying to block cleanup,” said Dr. Sheldon Plotkin of the Southern California Federation of Scientists. “The site is badly contaminated; Boeing is a responsible party; and the health of the population living nearby necessitates we finally get on with a complete cleanup.”

Boeing claims it wishes to clean up to a far lesser standard, what it purports to be suburban residential. But its “suburban residential standard” is 150 times more lax than EPA’s suburban residential cleanup goal, and would result in leaving the great majority of the contamination not cleaned up. It would prevent 98% of the hundreds of locations where EPA found radioactive contamination from being cleaned up. The same is true for chemical contamination.

“If Boeing were allowed to get away with its far less protective cleanup standards, virtually none of the contaminated soil at SSFL would get treated or removed,” said Dr. Sheldon C. Plotkin of the Southern California Federation of Scientists, long active in the SSFL matter. “And no matter whether the site were declared uninhabitable, people live near it. When it rains, or the wind blows, that contamination can move offsite and expose nearby residents. Indeed, Boeing has exceeded pollution discharge benchmarks hundreds of times in the last few years, leaking pollutants offsite. The site must be cleaned up thoroughly, to protect the neighboring communities.”

One deeply troubling aspect of the case was the conduct of the Brown Administration. Under Governor Schwarzenegger, the state vigorously defended the law. Boeing hired as advocates former aides of Jerry Brown from when he was Governor before. Within a month of Jerry Brown being sworn in as Governor in 2010, the state signed a stipulation with Boeing agreeing to not contest virtually any purported fact that Boeing might subsequently assert in prosecuting its case. This blind, carte blanche waiver of the right to dispute erroneous asserted facts was made prior to even seeing the facts Boeing eventually did assert, many of which were clearly false or misleading. However, the state had given up the right to dispute them, no matter how false, and the appeal court relied heavily on the fact that the state did not dispute any of Boeing’s assertions. But the Brown Administration didn’t dispute them because it had quietly given up the right to do so, without publicly disclosing its astonishing deal with Boeing.

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Note: the Rocketdyne Cleanup Coalition, Southern California Federation of Scientists, the Committee to Bridge the Gap, and Physicians for Social Responsibility-Los Angeles submitted amicus briefs in the Boeing case.