Monday, September 22, 2014
Superfund Report - 11/26/2012

Environmentalists Charge California Easing Cleanup At Request Of Boeing

Posted: November 21, 2012

Activists following cleanup efforts at the controversial Santa Susana federal field laboratory in southern California argue the California toxics department in recent months has weakened key aspects of a cleanup agreement at the request of lobbyists for The Boeing Co., some of whom are former top California EPA (Cal/EPA) officials.

Boeing representatives, including former Cal/EPA Secretary Winston Hickox and former toxics department attorney Robert Hoffman, have successfully lobbied the department to weaken cleanup requirements at the site and the department is now essentially a "subsidiary" of Boeing, which owns much of the site in question, activists allege.

But the department and sources close to Boeing are defending the agency's oversight of the cleanup and disputing assertions that cleanup standards are being rolled back.

Activists claim that cleanup efforts at the site have been unraveling since California Gov. Jerry Brown (D) was elected, and have worsened after Brown appointed Debbie Raphael as director of the toxics department last year. Environmentalists in recent written comments to the department are also questioning why the agency has disbanded an "interagency working group" that oversees cleanup activities and allowed Boeing to choose its own consultant to perform environmental reviews at the cleanup site.

Boeing last year prevailed in a federal lawsuit challenging a California law requiring the company to clean up portions of the site to strict standards. But Boeing still has other cleanup obligations at the site. State attorneys have filed an appeal over that court ruling, which is still pending.

At issue is the contaminated Santa Susana Field Laboratory, which sits on more than 2,000 acres outside Los Angeles and includes multiple facilities operated by Boeing, the Department of Energy (DOE) and the National Aeronautics and Space Administration (NASA). Those three entities are responsible parties at the site, which historically was used to test nuclear reactors and rocket technologies, and has resulted in contamination of soil. Boeing now owns most of the land at the site.

In 2010, environmentalists claimed victory in a long-fought battle over the cleanup, where the state's Department of Toxic Substances Control (DTSC) finalized a remediation plan with DOE that environmentalists believed could be looked upon as a standard for how to remediate radioactive contamination at other sites throughout the country.

However, Boeing, which is one of the responsible parties for the cleanup, did not sign onto that agreement, and forged on with the lawsuit against the state.

The agreement between the state and DOE calls on DOE to clean its portion of the site to naturally occurring background levels of radiation that would have been present at the site before a nuclear reactor at the lab melted down. Activists believe this brings the cleanup plan into compliance with EPA's Superfund rules and state law. Prior to the agreement's signing, activists had feared the cleanup would not comply with Superfund standards and would thus lead to a precedent undermining those standards.

In its lawsuit, Boeing alleged that California law SB 990 governing the cleanup of the site is preempted by federal law, which it claims gives the federal government exclusive discretion over nuclear health and safety and prohibits involvement from state governments.

In a document posted on its website Oct. 24, DTSC attempts to respond to attacks by community groups and environmentalists monitoring cleanup efforts at the site. In the "frequently asked questions" document, DTSC says it is trying to "become more responsive to numerous questions the public has about the site and ongoing cleanup efforts."

DTSC in the document attempts to respond to specific complaints and questions from community groups, including whether DTSC can prohibit or prevent former employees from representing responsible parties or private companies on matters that are before the department. The department also addresses questions about whether it can prevent former employees from "having undue influence over its decisions and instill public confidence in its decisions?"

"As long as former DTSC and Cal/EPA employees comply with all legal limitations regarding their relationship with their former department, they have a right to gainful legal employment and have a right to represent any client's interests before DTSC," the document says.

An environmentalist claims that in recent weeks DTSC has agreed to roll back much of the cleanup agreement at the request of Boeing lobbyists, including Hickox and Hoffman.

Hickox served as Cal/EPA secretary under former Gov. Gray Davis (D) and was an advisor to Brown during the governor's first term in the 1970s. Hickox in the past also served on boards of three environmental groups, including the California League of Conservation Voters, Audubon California and Sustainable Conservation. Hoffman was chief of staff to Hickox at Cal/EPA and also former chief counsel at DTSC in the 1990s.

Hoffman did not respond to requests for comment. Hickox declined to comment on the record.

Since Brown was elected and Raphael appointed director at DTSC, activists advocating for the most stringent cleanup standards at the site have "lost virtually everything we fought for," the source argues.

In a Sept. 24 letter to Raphael, environmentalists and community groups say they have "lost all confidence in you and your department." The groups argue that since Raphael's appointment, DTSC has "reversed course and taken numerous actions to undercut the cleanup and to do what Boeing, the company responsible for the pollution at the site, wishes. DTSC seems to now be a wholly owned subsidiary of the polluter it is supposed to be regulating. Rather than control toxic material, DTSC appears to be intent only on protecting the polluter." Relevant documents are available on (Doc ID: 2415641)

In late September, Raphael issued a not well-publicized email announcement saying the department in essence is "going to give Boeing its wish list," regarding cleanup at the site, the groups contend. This would include the shutdown of an interagency working group and creation of a new "community advisory group" that would be dominated by "the tiny minority of the community that works with Boeing in opposing the cleanup, part of the long tradition of 'astroturfing,' polluters creating fake grassroots groups to lobby for the polluter," the activists' letter says. The groups that signed the letter include Physicians for Social Responsibility and the Committee to Bridge the Gap, an anti-nuclear organization.

The activist groups say they are also concerned that DTSC has removed its previous Santa Susana project director Rick Brausch, who was "the last person at DTSC who was one of the main authors of the cleanup agreements," the letter says.

DTSC has also inappropriately allowed Boeing to pick DTSC's contractor for a California Environmental Quality Act (CEQA) environmental impact report (EIR) to be prepared at the site, the activists argue. "Having allowed Boeing to pick and contract with the state's EIR contractor, that contractor was recommending the state take actions that you have conceded would be contrary to the cleanup agreements. Boeing is very pleased. The community that wants the cleanup is furious."

In an Aug. 21 letter to DTSC, the activist groups also raise concerns about a "revolving door," where DTSC and Cal/EPA officials leave the agency, become employed as industry lobbyists, and then return to "lobby their former associates (and often former subordinates) at DTSC on behalf of weakening public protections, as well as the close associations some DTSC personnel have with such interests. We think this matter is one that deserves greater attention and further discussion, to ensure that the public can remain confident in DTSC as an agency that is focused on reducing public risks from toxic materials and is not affected by undue influence."

Advisors for Boeing are disputing the accusations in the activists' Sept. 24 letter, challenging their interpretation of what is happening at the site in terms of cleanup standards. Boeing has agreed to move forward with cleanup at the site as if SB 990 has not been overturned, these sources claim.

Following the 2011 court order invalidating SB 990, Boeing issued a statement saying the company "looks forward to continuing our ongoing work with the state to clean up the site under [a] comprehensive Consent Order issued in 2007. We will apply the same standards to Santa Susana that are applied to cleanup sites throughout the state in a manner that also ensures protection of the invaluable natural and cultural resources for future generations. Boeing intends to continue to clean up the site to a suburban residential standard, more stringent than would be required for its future use as open space."

DTSC's Oct. 24 document, in response to concerns about Boeing influencing the CEQA consultant, says Boeing "only pays the bills -- the consultant reports to and takes direction only from DTSC. DTSC is sensitive to concerns that any responsible party might be able to influence or control an analysis as important as an EIR. In the case of the planned EIR for [the site], DTSC ensures, through the terms of a Memorandum of Agreement (MOA), that DTSC is making the decisions, even if the consultant performing the EIR receives reimbursement from Boeing."

DTSC has used a similar mechanism successfully at many of its cleanup sites and is confident the MOA and the exclusion of Boeing -- or any responsible parties -- from the CEQA work and decision-making will continue to prevent Boeing from having any influence over DTSC's decisions, the department's document says.

In response to concerns about DTSC's Brausch leaving the project, DTSC says his role has changed over the past year "primarily because his skills and abilities have been needed in other aspects of DTSC. Although he no longer holds a title of 'Project Director,' his role as a project advisor will continue," the DTSC document says.

A DTSC spokeswoman did not respond to requests for further comment.

Although Boeing successfully blocked in court SB 990 and an appeal in the case is pending, existing state law still requires Boeing to clean up its part of the contamination to standards suitable for current zoning, which is for agricultural or rural residential standards, the environmentalist argues. But "Boeing has been resisting this, and we think DTSC is caving on that matter," the source argues.

Superfund Report - 11/26/2012, Vol. 26, No. 24