Los Angeles, CA—In an appeal before the Court of Appeal in Sacramento to be heard on Monday, the Newsom Administration will be challenged over positions that breach a longstanding agreement to require all radioactive waste from the Santa Susana Field Lab be disposed of at sites licensed and designed for such waste. Instead, the Newsom Administration maintains in court filings that it does not have any responsibility under the California Environmental Quality Act (CEQA) to review Boeing’s demolition of its nuclear buildings at the site and oversee safe disposal of the radioactive debris, including from the site’s plutonium building.
The positions taken by two state agencies in the pending appeal over the issue would allow Boeing to demolish radioactive structures and dispose of the resulting debris in unequipped landfills and metal recycling centers without any oversight. The case was brought by Physicians for Social Responsibility-Los Angeles, the Southern California Federation of Scientists, Committee to Bridge the Gap, and Consumer Watchdog.
The Administration’s litigation positions contradict the Administration’s public promises, including the enforcement of a 2010 cleanup agreement that requires all waste with radioactivity above background in soil and attendant building debris to be disposed of in licensed low level radioactive waste facilities.
“The Newsom Administration has back-tracked on its duty to the public and promise of an expedited, safe and complete radioactive cleanup of the Boeing site,” said Consumer Watchdog senior staff attorney Pam Pressley. “This appeal seeks to hold its state agencies accountable in court to ensure that Boeing is compelled to take radioactive debris to licensed landfills rather than unlicensed sites and recyclers where radioactive metal could find its way into consumer products such as jeans zippers or into the framing of school or office buildings.”
The Santa Susana Field Laboratory (SSFL) in the Simi Hills was used for decades to test rocket engines spewing highly toxic chemicals also dumped there, and to run small experimental nuclear reactors. One of those reactors suffered a partial meltdown in 1959. More than 700,000 people live within ten miles of one of the most contaminated and dangerous sites in the state. According to a Reuters investigative report, Boeing paid $30 million in 2005 to settle neighbors’ claims that contamination from Santa Susana caused cancers and other illnesses.
“There are few environmental issues that require more serious consideration than the management of radioactive materials from this nation’s Cold War era, the legacy of nuclear development,” the co-plaintiffs wrote in their appeal of a court decision that allows both the Department of Toxic Substances Control (DTSC) and the Department of Public Health (DPH) to flout CEQA by allowing Boeing to dispose of radioactive debris from the lab in landfills and hazardous waste facilities not licensed or equipped to take it and store it safely.
“The agencies tasked with protecting the public from these hazards are held to exacting standards for public disclosure, opportunity for comment and reasoned analysis in support of their ultimate decisions which are embodied in both the California Environmental Quality Act (CEQA) and the Administrative Procedure Act (APA),” their appeal continues. Respondents Department of Toxic Substances Control (DTSC) and Department of Public Health (DPH, collectively Respondents) have flouted both statutes, permitting The Boeing Company to avoid public scrutiny and increased costs of safely demolishing and disposing the radioactively contaminated legacy of decades of nuclear development and testing on Boeing’s property.”
Read the opening brief in the appeal by consumer and environmental groups here.
In DTSC’s response filed last September to the consumer and environmental groups’ appeal, the DTSC claims responsibility for proper remediation of the soil and groundwater at the site is separate from the radioactive buildings subject to the litigation and claims that demolition and disposal of those radioactive structures is not subject to environmental impact review under CEQA. But under the 2010 agreement signed by DTSC and the Department of Energy covering Area IV of the Santa Susana Field Lab site (Boeing owns radioactive contaminated structures in Area IV), the building structures were considered part of the soil, and the site was to be cleaned up to background levels of radiation.
DTSC doesn’t dispute that the agreement grants DTSC authority over remediation of radiation in Area IV “soils” and that, by definition, soils include “soil, sediment, and weathered bedrock, debris, structures, and other anthropogenic materials” and also required disposal of soil and debris containing radioactive contaminants above local background to a licensed low level radioactive waste facility. And yet, DTSC has failed to include the demolition and disposal of the radioactive Boeing buildings in any environmental impact review conducted at the SSFL site.
Likewise, DPH in its briefing to the court abdicates all responsibility for oversight of the SSFL Area IV demolition activities after it decommissioned the last of the Boeing radioactive waste buildings for “unrestricted use” in 2013. That agency argues that demolition did not require CEQA review though it knew that Boeing planned to demolish it. DPH also claims that it applies different standards for radioactive waste levels case-by-case and thus didn’t have to adopt a uniform standard.
According to the co-plaintiffs’ appeal, the agencies used a set of numeric “clean-up standards” that would allow radiation above naturally occurring levels to remain unremedied. These standards were never formally adopted by the state without addressing the existing regulatory standard of eliminating all residual radiation—the toughest standard available. Some federal agencies using more permissive numeric standards have repealed them for being “insufficiently protective” of human and environmental health.
“Failing to conduct CEQA review for the demolition of structures contaminated with nuclear waste, Respondents made their decisions behind closed doors, far from the open process required by CEQA,” the appeal continues. “Likewise, by repeatedly relying on standards that were not adopted following an APA-compliant rulemaking with public notice and comment, DPH has shielded from public scrutiny its decisions about acceptable residual radioactive contamination at SSFL and other sites throughout the state and hidden from the public the consequent impacts on public health.”
“In the course of violating these two laws, Respondents are, without any public process, making decisions that expose Californians to cancer-causing radiation from a facility a federal court has described as ‘a terrible environmental mess.’ The result is a regulatory no-man’s land where no agency evaluates the radiological effects of demolition and disposal of debris from facilities used for nuclear development.”
The consequences are real. The 1959 partial nuclear meltdown at the Simi Hills SSFL site may have caused hundreds or thousands of cancer cases in the surrounding community, according to a 2006 government-commissioned report by scientists and other stakeholders. In addition, Reuters reported that activists have documented at least 81 children with cancer within 20 miles of the Boeing site including leukemia, rhabdomyosarcoma, Ewing sarcoma and aggressive and fatal brain cancers.
Consumer Watchdog counsel Strumwasser & Woocher, LLP first filed suit in 2013 against the DTSC and DPH on behalf of Physicians for Social Responsibility-Los Angeles, Southern California Federation of Scientists, Committee to Bridge the Gap, and Consumer Watchdog after discovering that the DTSC was allowing Boeing to demolish and dispose of radioactive waste at hazardous waste facilities and recycling plants neither licensed nor constructed to house it. The lawsuit was filed to ensure that radioactive structures were appropriately dismantled, and the leftover radioactive waste was placed in appropriate facilities licensed to take it.
The groups won a preliminary injunction against the DTSC in December 2013, temporarily halting continued disposal of radioactive debris from the site.
After lengthy proceedings in the trial court to uncover communications between Boeing and the state agencies about their demolition plans, the trial court ultimately ruled against the consumer and environmental groups who appealed to Sacramento’s Third District Court of Appeal. The Court of Appeal entered a stipulated order extending the stay of any demolition activities in Area IV pending the outcome of the appeal.
The final brief of consumer and environmental groups replying to the government agencies was filed in October.
The hearing before the Sacramento Court of Appeal is on Monday, April 17, at 9:30 AM Pacific and can be heard by the public via web browser at:https://primetime.bluejeans.com/a2m/live-event/gwzvjuqc
Or by mobile device app here:
Enter event ID: gwzvjuqc
Or dial in by phone: +1 (415) 466-7000
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