Environmentalists in a new legal filing this week say they have evidence showing that the toxics department has authority over the disposal of radioactive waste at the controversial Santa Susana industrial site in southern California, debunking the department's claim that it lacks such authority.
The judge in the lawsuit has already filed a tentative ruling siding with environmentalists, but has yet to finalize the ruling in order to review thousands of pages of evidence in the record.
Activists this week argue their new evidence — emails between the Department of Toxic Substances Control and The Boeing Co. over the cleanup authority issue — should seal their victory in the litigation. The email communication indicates that DTSC Director Debbie Raphael and Cal/EPA Secretary Matt Rodriquez both concluded internally that the department should oversee disposal of the waste and that it should be handled with tough restrictions — a position that conflicts with the department's public arguments in the case, according to the document.
In the lawsuit Physicians for Social Responsibility v. Department of Toxic Substances Control (DTSC), activists argue DTSC is violating the California Environmental Quality Act (CEQA) by failing to review the environmental impacts of Boeing demolishing structures at "Area IV" of the Santa Susana site. The groups also contend the department is allowing the waste to be disposed in landfills that are not authorized to accept radioactive waste.
DTSC argues that it has no authority over the demolition and disposal of buildings owned by Boeing, unless the buildings are somehow related to DTSC's oversight activities associated with the cleanup of chemical contamination.
DTSC officials have defended their oversight of the cleanup while also deferring key questions on radioactive waste disposal standards to the Department of Public Health (Inside Cal/EPA, Aug. 9).
In an Oct. 24 tentative ruling in the case, Sacramento County Superior Court Judge Allen Sumner sides with the environmentalists, but also says he needs more time to sort out evidence in the record (Inside Cal/EPA, Nov. 1).
In a Nov. 26 filing with the court, the groups say they have recently uncovered, through a California Public Records Act request, emails between DTSC and Boeing that contradict DTSC's position in the lawsuit. The emails, dated July and August 2012, suggest that DTSC officials told Boeing to delay demolition of structures at the site until DTSC finished a review of the plan and approved it.
"The email chain is additionally relevant because it supports petitioners' position that the law does not permit the disposal of material from the Area IV radiologic structures that exceeds naturally occurring background levels of radiation in a hazardous waste facility not licensed to receive radioactive waste — and that illegally doing so risks harm to the public." The filing is available on InsideEPA.com. (Doc ID: 2454237)
Another email from August 2012 shows that DTSC officials alerted Boeing that Rodriquez and Raphael both decided that the materials at issue cannot be sent to unlicensed facilities and must be disposed of properly, according to the legal filing.
Despite that finding, DTSC attorneys took a different position in the lawsuit, the legal filing says. "This email reveals that the very highest personnel at DTSC and Cal/EPA considered where radioactive debris from Area IV structures should be disposed and determined that it was impermissible to dispose of materials in [non-radioactive] sites if those materials have 'radiation levels above background.'"
DTSC did not inform the court that its leadership had adopted that position and "this statement contradicts other statements of [DTSC] in this lawsuit regarding what materials can be disposed in a [non-radioactive] hazardous waste facility," the document says.
A DTSC spokesman did not respond to requests for comment by press time.