Physicians for Soc. Responsibility - L. A. v. Dep't of Toxic Substances Control, C088821

• Docket Number: C088821
• Decision Date: 02 May 2023
• Parties: PHYSICIANS FOR SOCIAL RESPONSIBILITY - LOS ANGELES et al., Plaintiffs and Appellants, v. DEPARTMENT OF TOXIC SUBSTANCES CONTROL et al., Defendants and Respondents; THE BOEING COMPANY, Real Party in Interest and Respondent.
• Court: California Court of Appeals Court of Appeals

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PHYSICIANS FOR SOCIAL RESPONSIBILITY - LOS ANGELES et al., Plaintiffs and Appellants, v. DEPARTMENT OF TOXIC SUBSTANCES CONTROL et al., Defendants and Respondents;

THE BOEING COMPANY, Real Party in Interest and Respondent.

C088821

California Court of Appeals, Third District, Sacramento

May 2, 2023

NOT TO BE PUBLISHED

(Super. Ct. No. 34-2013-80001589-CU-WM-GDS)

EARL J.

After decades of use as a chemical and nuclear research and testing site for federal defense and space programs, additional decades have been spent working to clean up an area known as the Santa Susana Field Laboratory. The Boeing Company owns much of the land comprising the field laboratory and intends to demolish its own buildings located in a section of land previously used for nuclear research. Concerned that the buildings to be demolished are contaminated with carcinogenic radionuclides, and improper disposal of contaminated debris would have significant and troubling environmental and public health risks, plaintiffs sued respondents, accusing them of, inter alia, abdicating their duties to protect the public from these hazards by failing to analyze the environmental consequences of the demolition as required in the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), deviating from the regulatory standard for eliminating radiation, and hiding their treatment of this dangerous waste from the public. The superior court denied plaintiffs' petition for writ of mandate, primarily on the basis that The Boeing Company's demolition activities did not constitute a project for CEQA purposes. Plaintiffs appeal that decision, arguing that the public agencies' actions in approving, controlling, and directing The Boeing Company's predemolition activities resulted in the issuance of an "entitlement for use" and/or direct action toward the demolition project and therefore qualified as a project under CEQA. Plaintiffs also argue that respondents improperly attempted to avoid CEQA by segmenting the project. Finally, they accuse respondents of violating a prior writ of mandate regarding setting the standards for radiological remediation and promulgating underground regulations. We affirm.

FACTUAL BACKGROUND

I Activity at Santa Susana Field Laboratory

Since the start of the nuclear age, the federal government made and tested liquidrocket engines, nuclear reactors, and various nuclear applications at the Santa Susana Field Laboratory (SSFL). When built in southeastern Ventura County in the 1940s, this lab was in a remote area. It is fair to say that this area is no longer considered remote. (Boeing Co. v Movassaghi (9th Cir. 2014) 768 F.3d 832, 834 (Movassaghi).)^[1] It would also be an understatement to say that this site, while no longer involved in active research, has been subjected to contamination by nuclear and chemical toxins, sometimes with abandon.^[2]

The National Aeronautics and Space Administration (NASA) owned roughly 16 percent of the 2,850-acre lab site and The Boeing Company (Boeing), or its predecessor Rockwell International Corporation, owned the remainder. (Movassaghi supra, 768 F.3d at pp. 834-835.) Since the 1950s, the federal Department of Energy (DOE) and its predecessor agencies have leased 90 acres of the site, known as Area IV, from Boeing, where it built and operated several nuclear reactors and other facilities for nuclear research. (Id. at p. 835.)

NASA and DOE hired Boeing to assist in nuclear research and rocket testing within Area IV. Most of Boeing's work was as a contractor on behalf of the federal government, though Boeing also operated one commercial nuclear reactor under a license from the Atomic Energy Commission. Boeing also handled radiological contaminants under licenses from the State of California to perform certain activities related to research. As a result of the work performed on behalf of the federal government, the soil, groundwater, and bedrock were seriously contaminated.^[3] (Movassaghi, supra, 768 F.3d at p. 835.)

DOE ended its nuclear research at SSFL in the 1980s and closed its research center in 1996. NASA's rocket research ended in 2006. As part of the process of halting research, six previously licensed buildings in Area IV were ultimately decommissioned by the State Department of Public Health (DPH) and its predecessors. (Movassaghi, supra, 768 F.3d at p. 836.) It was Boeing's notification of intent to demolish several of its buildings within Area IV that spawned this lawsuit.

II Remediation Oversight at SSFL

SSFL is currently undergoing cleanup efforts. Different aspects of the cleanup are being carried out under different federal and state authorities. The federal government, through the DOE is responsible for supervising and implementing the cleanup of radioactive contamination. California's Department of Toxic Substances Control (DTSC) is the lead agency responsible for regulating the cleanup of chemical contamination.^[4] (See Movassaghi, supra, 768 F.3d at p. 836.)

A. DOE

Nonradioactive chemical pollutants are regulated differently from radioactive pollutants. DOE is responsible for remediating radioactive contamination. Remediation of radioactive materials is proceeding, in part, pursuant to an environmental assessment and plan adopted by DOE. (See Movassaghi, supra, 768 F.3d at pp. 836-837.) some commercial nuclear work at the site, no radioactive contamination has been traced to Boeing's private activity." (Id. at p. 835.)

B. DTSC

DTSC regulates hazardous waste under both federal and state law. The federal law, the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.) (RCRA), "governs the handling of solid wastes, both hazardous and nonhazardous." (Ashoff v. City of Ukiah (9th Cir. 1997) 130 F.3d 409, 410.) The RCRA "provides a mechanism by which the states can administer their own hazardous waste programs 'in lieu of the Federal program.' [Citation.]" (State of Washington v. EPA (9th Cir. 1985) 752 F.2d 1465, 1466.) California's hazardous waste program, which the United States Environmental Protection Agency (US EPA) authorized in lieu of the federal program, is contained in the Hazardous Waste Control Law (Health &Saf. Code, § 25100 et seq.) (HWCL), and accompanying regulations (Cal. Code Regs., tit. 22, § 66260.10 et seq.). (See also 42 U.S.C. § 6926(b); Health &Saf. Code, § 25159.)^[5]

Through the HWCL and California's Carpenter-Presley-Tanner Hazardous Substance Account Act (Health &Saf. Code, § 25300 et seq.) (HSAA), DTSC regulates soil and groundwater cleanup. The HWCL governs handling, transport, storage and disposal of "hazardous waste" but does not apply to certain radioactive materials regulated under federal law. (See Health &Saf. Code, §§ 25140 et seq., 25150 et seq., 25160 et seq., 25167.1 et seq.; Cal. Code Regs., tit. 22, § 66261.4, subd. (a)(2).) The HSAA governs cleanup of "hazardous substance" release sites, which includes certain radionuclides. (Health &Saf. Code, §§ 25356, subd. (a)(1), 25356.1.3, subd. (a), 25316; 40 C.F.R. § 302.4.) DTSC represents it has not issued an order to, or entered into any agreement with, Boeing under the HSAA.

In addition to its overall regulatory authority pursuant to statute, DTSC oversees the chemical remediation of SSFL pursuant to two consent orders: the 2007 consent order for corrective action (2007 Order), and the 2010 administrative order on consent for remedial action (2010 AOC).^[6]

The 2007 Order was entered into between DTSC, Boeing, DOE and NASA, pursuant to the HWCL. The 2007 Order applies to all of SSFL and identifies structures in Area IV (none at issue in the instant matter) that require further chemical investigation and remediation, but it has no provisions governing the cleanup of radiological contamination and excludes radioactive wastes, noting those are evaluated by DOE under a different program. The 2007 Order contemplates the process of remediation of chemical contamination in the soil and groundwater and acknowledges that work performed under the order is subject to CEQA. (See Boeing Co. v. Robinson (C.D.Cal. Apr. 26, 2011, No. CV 10-4839-JFW (MANx)) 2011 WL 1748312, at *5.) Significant to our review, the 2007 Order does not obligate Boeing to demolish any of its buildings in Area IV.

The 2010 AOC, entered into by DTSC and DOE (not Boeing), applies to Area IV and an area not relevant to this case known as the Northern Buffer Zone. The order itself describes its purpose as "to further define and make more specific DOE's obligations with respect to only the cleanup of soils at the Site." DOE's obligations under the 2010 AOC include cleanup of both chemical and radiological contamination pursuant to both the HWCL and HSAA, calls for an environmental impact report (EIR) from DOE, requires the remediation of soils (including structures and debris) to local background levels and disposal of all materials with radiation above background levels to be disposed of in a licensed radioactive waste facility. The 2010 AOC requires DOE to obtain DTSC's review and approval of the demolition and disposal plans for buildings owned by DOE. The 2010 AOC also charged DOE with trying to obtain Boeing's cooperation with the removal of buildings owned by Boeing and clarified the obligations of DOE regarding the cleanup of soils if and when Boeing chose to demolish the buildings in Area IV. Specifically, the 2010 AOC dictates: "To the extent DOE is unable to remove, or arrange with Boeing to remove, the buildings at the Site that remain under the ownership and control of Boeing, DOE's obligations under this Order related to soils beneath those buildings shall be stayed, and DOE shall retain the responsibilities for the soils beneath those buildings that are described in...