BOEING BLOCKS LAB CLEANUP

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Rocketdyne lab remediation left in limbo

By Michael Collins

Ventura County Reporter – November 19, 2009

(UPDATED WITH BOEING’S RESPONSES FOLLOWING ARTICLE)

Boeing’s filing of a federal complaint on Friday the 13th against the state’s Department of Toxic Substances Control over cleaning up the monstrously polluted Santa Susana Field Lab was no tardy Halloween trick. The move attempts to gut state Senate Bill 990, which was signed by Governor Schwarzenegger in October 2007, to ensure that the 2,850-acre site is cleaned up to the highest standards.

Invalidating SB 990 would save Boeing hundreds of millions of dollars. The state’s stringent cleanup levels would be relaxed, saving Boeing on the amount of soil and groundwater contamination that would have to be removed from the site and sent to a dump.

If Boeing is successful, federal EPA “Superfund” standards would apply. That would protect the defense contractor giant from most of the remediation costs, due to a Supreme Court ruling earlier this year that restricts Superfund liabilities for some corporations.

But to hear Boeing tell it, this blocking action is about saving critters, among other things. In a unique twist of logic, the lawsuit contends that the extensive SSFL remediation would actually hurt the environment.

“Boeing reluctantly took this action due to our concern that the changes wrought by SB 990 in the normal cleanup process under state and federal laws could cause unintended consequences that would damage the biologic, historic and cultural resources of Santa Susana, which is home to several endangered species and a wide assortment of plants and wildlife,” Boeing representative Kamara Sams said in a statement. A VC Reporter request for comment was not returned in time for deadline.

“I think it’s ludicrous that Boeing would cite protection of biological resources as one of their reasons for not wanting to remove contaminated soil,” Ventura County Supervisor Linda Parks, 2nd District, said. “It sounds like they’re more interested in protecting five-legged frogs and two-headed lizards than protecting future generations from radiological and other carcinogenic contaminants.”

Parks, whose district borders the lab, has reason to be concerned. The former Rocketdyne complex is heavily contaminated by chemicals and radiation from decades of rocket testing. Tens of thousands of rocket tests have left the lab’s groundwater contaminated with upward of 800,000 gallons of trichloroethylene, a vaporizing toxic solvent.

On 90 acres at the westernmost end of SSFL, the Department of Energy (DOE) had 10 nuclear reactors and a “hot lab,” where nuclear power plant fuel rods were cut apart. A large unlined area was used to set ablaze barrels of radioactive sodium.

In 1959, the sodium reactor experiment partially melted down and has been estimated to have released hundreds of times more radiation than the more famous Three Mile Island meltdown did 20 years later.

The result has been gross radiological contamination in a hot zone between the Simi and San Fernando valleys.

Attorneys for Boeing argue that the nuclear contamination took place under federal DOE oversight, and therefore, they’re in charge of the cleanup, not the state EPA’s DTSC.

The lawsuit was anticipated since this reporter’s Web site, EnviroReporter.com, broke the news (in an interview posted July 22) that the former DTSC project manager for SSFL, Norman E. Riley, said that Boeing would sue.

“If we are not able to reach an agreement with them [Boeing] for the land, pursuant to 990 standards, then there will be litigation,” Riley said. Riley asserted that the legislation was a “hindrance” and “unnecessarily restrictive.” A month later, Riley was sacked by DTSC and quickly retired.

Superfund pollution thresholds are significantly more relaxed than those dictated by SB 990, one reason activists and the state wanted the legislation in the first place. Less strict limits would mean less remediation, which would potentially save Boeing substantial sums.

A May 2009 Supreme Court decision has limited the amount of money the government can demand from companies occupying land polluted by its predecessors and under the aegis of Superfund. That ruling codified a proportional cost assessed to companies like Boeing, instead of making them foot the entire bill. Since most of the pollution at the lab took place before Boeing bought it in 1996, it could be off the hook for all the contamination that took place in the decades before.

The decision to sue seems to violate an agreement between DTSC and Boeing in early October that “between now and February 15, 2010, Boeing has agreed not to file a lawsuit challenging the constitutionality or validity of SB 990.”

Clearly, Boeing broke that pact. It also reneged on SB 990. If Boeing is successful, the taxpayers will pick up the tab for much of a reduced cleanup.

“It is disappointing that Boeing isn’t a more responsible corporate steward,” Parks said. “It continues to avoid its responsibility to clean up the facility and land, and now is challenging a state law that protects the environment.”

Joan Trossman Bien contributed to this article.

Four days after this article came out, Boeing spokesperson Kamara Sams sent EnviroReporter.com its responses to Michael Collins’ questions for the preceding article. Those questions, and Boeing’s responses, are included here with, as closely as possible, the responses’ formating:

1. In the press release, it says Boeing says the recent state law changes the normal cleanup process applied throughout the state by imposing “irrational and arbitrary requirements” on Santa Susana.

Question 1: What are those “irrational and and arbitrary requirements” and why are they regarded as such by Boeing?

Typically, sites are cleaned up based on the future use of the land, which in this case is permanent open space. Boeing, however, has committed to meeting an even more stringent level and cleaning up the site so it is safe enough for suburban residential use.

The state law requires clean up for agricultural uses that will never occur. Such a standard would require clean up to a level stringent enough to allow the entire site to be used as a farm by full-time residents who obtain 100% of their food and drinking water from Santa Susana.

The law has singled out the site to meet clean up requirements that go far beyond what is required to protect citizens elsewhere in California under generally applicable state law. We are concerned that this law could cause unintended consequences that would destroy the biological, historical and cultural resources of Santa Susana. It could also negatively impact traffic around the site for local residents. In addition, the process the Department of Toxic Substances Control is following is not consistent with State Superfund law Chapter 6.8.

2. Mr. Gallacher says in the press release that “the state refuses to allow us to reserve our legal rights as they have done in other cleanup orders.”

Question 2: What other cleanup orders has the state allowed Boeing to reserve its legal rights and just what legal rights is Mr. Gallacher referring to?

The State routinely allows companies to reserve their rights in other cleanup orders. However, they have insisted that we waive our legal rights. Here are some examples:

IN THE MATTER OF: ) Docket HWCA:P1-01/02-007
TRW INC. )
One Space Park ) CORRECTIVE ACTION
Redondo Beach, California ) CONSENT AGREEMENT

RESERVATION OF RIGHTS
17.1. DTSC reserves all of its statutory and regulatory powers, authorities, rights, and remedies, which may pertain to Respondent’s failure to comply with any of the requirements of this Consent Agreement. Respondent reserves all of its statutory and regulatory rights, defenses and remedies, as they may arise under this Consent Agreement. This Consent Agreement shall not be construed as a covenant not to sue, release, waiver, or limitation on any powers, authorities, rights, or remedies, civil or criminal, that DTSC or Respondent may have under any laws, regulations or common law.
__________________________________________
IN THE MATTER OF: ) Docket HWCA: P3-02/03-010
Northrop Grumman
Systems Corporation )
One Northrop Avenue ) CORRECTIVE ACTION
Hawthorne, CA 90250 ) CONSENT AGREEMENT

RESERVATION OF RIGHTS
21.1. DTSC reserves all of its statutory and regulatory powers, authorities, rights, and remedies, which may pertain to NGSC’s failure to comply with any of the requirements of this Consent Agreement or adequately address contamination identified under the Fee for Service Contract 98-T1714. NGSC reserves all of its statutory and regulatory rights, defenses, and remedies, as they may arise under this Consent Agreement. This Consent Agreement shall not be construed as a covenant not to sue, release, waiver, or limitation on any powers, authorities, rights, or remedies, civil or criminal, that DTSC or NGSC may have under any laws, regulations, or common law.

_________________________________
In the Matter of:
AMPAC Fine Chemicals LLC Docket No. HWCA 20051011
U. S. Highway 50 and Aerojet Road
Sacramento, CA 95813-6000
EPA ID No. CAR000069153 CONSENT AGREEMENT

11. In the event that AMPAC fails to comply with any of the requirements, terms or conditions of this Consent Agreement, the Department reserves all of its statutory and regulatory powers, authorities, remedies and rights to take necessary action against AMPAC. AMPAC reserves all of its statutory and regulatory rights, defenses and remedies with regard to any action taken by the Department, including but not limited to the right to challenge any of the Department’s final decisions through administrative or judicial means. Additionally, the Department and AMPAC reserve their respective rights, defenses and remedies with regard to any settlement (whether by settlement agreement, consent agreement, consent order or decree, or stipulated judgment), including its effect on any rights conferred by this Consent Agreement, that the Department may reach with AFC, Aerojet or GenCorp in the Department’s pending enforcement action against AFC, Aerojet or GenCorp. The Department agrees to notify AMPAC upon the initiation of any adjudicatory proceeding, either administrative or judicial, in its pending enforcement action against AFC, Aerojet or GenCorp.

______________________________________
IN THE MATTER OF: Docket SRPD GIC8514’7l
Respondents CalEnergy Operating Corporation, CE
Generation, L.LC, Magma Power Company, CORRECTIVE ACTION
L.eathers, L. P , Del Ranch, L P , Elmore, L. P , CONSENT AGREEMENT
VulcadBN Geothermal Power Company,
Vulcan Power Company, Salton Sea Power
Generation, L P , and Salton Sea Power, L.L.C,

16.1 DTSC reserves all of its statutory and regulatory powers, authorities, rights, and remedies, which may pertain to Respondents’ failure to comply with any of the requirements of this Consent Agreement Respondents reserve all of their statutory and regulatory rights, defenses and remedies, as they may arise under this Consent Agreement This Consent Agreement shall not be construed as a covenant not to sue, release, waiver, or limitation on any powers, authorities, lights, or remedies, civil or criminal, that DTSC or Respondents may have under any laws, regulations or common law.

_______________________________________
DTSC v. American Honda Motor CONSENT DECREE
Company, Inc, et. al

7.9 Settling Defendants’ Reservation of Rights. The Covenant Not To Sue set forth in Paragraph 7.8 and the standstill Agreement set forth in Paragraph 7.10 do not pertain to any matters other than those specifically addressed therein and apply only to DTSC and do not extend to any other department, agency, board or body of the State of California. The Settling Defendants reserve, and this Consent Decree is without prejudice to, all rights against DTSC with respect to all other matters.

7.10 Settling Defendants’ Standstill. The Settling Defendants agree not to assert any judicial claim against DTSC with respect to the Facility until the earlier of: (a) four (4) years from the Effective Date of this Consent Decree; or (b) the date a complaint is served on Settling Defendants requiring the performance of work, reimbursement of cleanup costs, or contribution towards costs associated with cleanup of the Facility.

7.11 Tolling Agreement. DTSC and Settling Defendants agree that all statutes of limitations applicable as of the Effective Date to any rights, claims, causes of action, counterclaims, crossclaims and defenses with respect to the Facility that Settling Defendants could assert against DTSC as of the Effective Date shall be tolled for the period between the Effective Date and the Tolling Termination Date, and this tolling period shall be excluded from all computations of any applicable period of limitations. Such potentially applicable statutes of limitations that are tolled by this agreement include, without limitation, any applicable time limits within which an action may be commenced against DTSC under the provisions of the California Tort Claims Act, including, without limitation, Section 945.6 of the California Government Code.

______________________________________
IN THE MATTER OF: Docket No. P3-07108-003
Santa Susana Field Laboratory
Simi Hills
Ventura County, California CONSENT ORDER FOR CORRECTIVE
CAD093365435 (Boeing) ACTION
CAI 80009001
0 (NASA)
CAD000629972 (Boeing/DOE)
CA3890090001 (Boeing/DOE)
The Boeing Company,
The National Aeronautics & Space Administration and
The U.S. Department of Energy,
(Respondents)

4.17. Reservation of Rights. By issuance of this Order, DTSC does not waive the right to take further enforcement actions. Except as otherwise provided in this Order, Respondents reserve all of their statutory, regulatory and common law rights, defenses and remedies that may pertain to this Order. This Order shall not be construed as a covenant not to sue, release, waiver, or limitation on any rights, remedies, powers, or authorities, civil or criminal, that DTSC or Respondents have under any statutory, regulatory, or common law authority.

3. The press release says that meeting agricultural use standards could require removing “enough additional soil to fill the Rose Bowl stadium three times over. Excavation activities of this scale would destroy considerably more of the existing ecological habitat at Santa Susana than would otherwise occur and would require an estimated 100,000 additional round trips through the community by dump trucks carrying soil and equipment.”

Question 3: Where did Boeing come up with the estimate of filling the Rose Bowl three times over and why would 100,000 additional roundtrips through the community have a negative impact? If those vehicles were pollution-free, such as trucks powered by natural gas, would the transportation issue still be a problem, according to Boeing?

In order to keep our neighbors fully informed of SB990 impacts, Boeing contracted with MWH, one of the most highly respected environmental firms in the world, to do an engineering analysis of the effect of an SB990 (agricultural) clean up on the site. Using existing data, the team carefully estimated soil content above estimated SB990 clean up levels at four representative investigation sites, calculated the volume, and then extrapolated results to estimate impacts for the entire site. The report was then peer reviewed by a professor from Cal State Northridge. The information provided concluded that enough soil to fill the Rose Bowl three times over would have to be removed to meet the agricultural standard. Excavation activities of this scale could add up to 10 years to the schedule, destroy biological, historical and cultural resources at the site, and negatively affect local residents and traffic by requiring an estimated 100,000 additional trips through the community by dump trucks carrying soil and equipment. We will know the full impact once all of the investigation reports are completed and a feasibility study and clean up plan are submitted. But, we believe it is the best estimate possible given the data we have so far. This estimate shows the unintended consequences of SB990 and why the impact to the surrounding community and environment need to be considered in making the final clean up decisions.