State lacks authority to impose its cleanup standards on Department of Energy cleanup activities
Boeing Company v. Maziar Movassaghi, Acting Director of the California Dept. of Toxic Substances Control
(Case No. 11-55903, 9th Cir. 2014)
Boeing Company (“Boeing”) owned a portion of the Santa Susana Field Laboratory (“Site”) that was used by the Federal Government to make and test rockets, nuclear reactors, and other nuclear activities for war and civilian applications. All of these efforts by the Federal Government contaminated the Site. The Department of Energy (“DOE”) hired Boeing to cleanup the radioactive contamination, with ongoing cleanup that the DOE is supervising pursuant to federal standards applicable to the cleanup of radioactive materials. The Federal Government and Boeing also agreed to a California Dept. of Toxic Substance Control (“DTSC”) order to cleanup chemical contamination to a level adequate for residential use. However, in October 2007, California passed Senate Bill 990 (“SB 990”) imposing state cleanup standards for radioactive and chemical contamination. Boeing challenged SB 990 on preemption grounds, also alleging that cleanup of radioactive materials at the Site is a federal activity. The Ninth Circuit invalidated SB 990 under the Supremacy Clause.
Background
The Site was built in the 1940s in Ventura County, when that area was sparsely populated. When SB 990 was enacted, 452 acres of the 2,850 acre Site was federally owned and managed by NASA. Most of the remainder was owned by Boeing, which was previously owned by other defense contractors – Rockwell International Corp and North American Aviation. Since the 1950s, DOE leased 90 acres from Boeing where DOE built and operated 16 nuclear reactors and over 200 facilities for nuclear research.
DOE and NASA hired Boeing to assist in the nuclear research and rocket testing. Most of Boeing’s work was as contractor to the Federal Government, although Boeing did operate one commercial nuclear reactor as licensed by the Atomic Energy Commission.
The Federal Government’s nuclear activities contaminated Site’s soil, groundwater, and bedrock. No radioactive contamination had been traced to Boeing’s private activities. The contamination was exacerbated by disasters and human error. In 1959, one of the reactors experienced a partial meltdown – accounting for about 90% of the radioactive contamination. Much of the other nuclear – related contamination arose from an “open burn pit,” numerous fires, and one disposalprocedure “consisting of shooting barrels of toxic substances with shotguns to make them explode and burn.” (Id.)
NASA’s and the Air Force’s rocket testing and manufacturing activities also contaminated the Site. NASA and the Air Force used the Site to test rockets for ballistic missile systems and space exploration. Both used Boeing to test liquid-propellant rocket engines. Testing resulted in the release of over 500,000 gallons of solvent used to clean rocket engines – contaminating the soil with trichloroethylene, heavy metals and other toxins. In response, Boeing installed a trichloroethylene containment system in 1961.
DOE ended its nuclear research at the Site in the 1980s. DOE decided to close its research facility in 1996. The Air Force’s and NASA’s rocket activities ended in 2006. Site operations are now limited to cleanup activities under Federal Government supervision as to the cleanup of radioactive contamination; DTSC is supervising the cleanup of chemical contamination under state law. DOE hired Boeing to cleanup the radioactive contamination, and continues to direct Boeing’s conduct.
In 2007, California passed SB 990, “Cleanup of Santa Susana Field Laboratory,” which set cleanup standards for both radioactive and chemical contamination. The cleanup standard required that the Site be made suitable for “suburban residential or rural residential (agricultural) [use], whichever produces the lower permissible residual concentration” for each of the contaminates found at the Site. (Id.) SB 990 did not further define the “rural residential (agricultural) standard, instead relying on EPA’s “agricultural” standard which assumes applies a subsistence farming cleanup standard – “consumption of farm products for a subsistence farmer, getting all of his or her vegetables, fruit, meat, fish or milk from the land, along with incidental consumption of soil and inhalation of dust.” (Id.) As a result, SB 990 would require that the Federal Government cleanup the Site to the hypothetical subsistence farmer requirement, a standard that the DTS C admits “could take as long as 50,000 years.” (Id.)
Boeing and the Federal Government argued that the standard far exceeded the usual practice under both state and federal law of setting cleanup levels “commensurate with a site’s reasonably foreseeable use.” (Id.) The Site was a suburb of Los Angeles and the record did not confirm the implementation of a substance farming standard in any related suburb. Moreover, the standard was more stringent than the agreed upon standard governing the cleanup of non-radioactive chemicals. The DOE cleanup standards specifically rejected the subsistence farming standard as “not being a reasonable scenario for the site.” (Id.) Boeing, in fact, had made a public commitment to dedicate the Site for public use as an open space parkland, and not for subsistence farming.
Boeing filed suit challenging the validity of SB 990. Boeing argued that the Federal Government had preempted the field of regulation of nuclear safety, and alternatively, that cleanup of radioactive materials at the Site was a federal activity – so state regulation dictating f how the Federal Government should cleanup the Site violated the Supremacy Clause and the doctrine of intergovernmental immunity.
Court’s Rationale
Under the Supremacy Clause, “the activities of the Federal Government are free from regulation by any state.” Mayo v. United States, 319 U.S. 441, 445 (1943). State laws are, accordingly, invalid if they “regulate[ ] the United States directly or discriminate [] against the Federal Government or those with whom it deals.” North Dakota v. United States, 495 U.S. 423, 435 (1990). The Court held that Senate Bill 990 was invalid on both grounds.
SB 990 authorized the DTSC to “use any legal remedies available under the State’s hazardous waste laws to compel a responsible party…to take or pay for appropriate removal or remediation action necessary to protect public health and safety…”at the Site.‘“ (Id, internal quotations omitted.) DOE would be a responsible party with respect to radioactive contamination, which would amount to the State’s imposition of a substance farming cleanup standard on contamination caused by federal activity; it was undisputed that all Site contamination was the result of federal activity.
DOE’s decision to hire Boeing to perform the Site cleanup did not affect the Court’s conclusion. In Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 181 (1988) the Supreme Court held that “a federally owned facility performing a federal function is shielded from direct state regulation, even though the federal function is carried out by a private contractor, unless Congress clearly authorizes such regulation.” (Id.) California argued that Boeing must stand in the “Federal Government’s shoes” in order to qualify for immunity from state regulation. However, California’s cases discussed generally applicable state tax laws, which resulted in the increased economic burden on federal contractors and others. Here, by contrast, SB 990 directly tread upon the functions of the Federal Government.
DOE had accepted all cleanup responsibility for radioactive contamination, and is still actively supervising this cleanup through Boeing. SB 990 would affect all of the DOE’s cleanup decisions, all of its environmental sampling, all of its cleanup procedures, including the time that would be spent on remediation – up to 50,000 years. SB 990 would require the application of more stringent cleanup standards than current federal laws or DOE cleanup procedures, resulting in California’s exercise of authority over the DOE’s activities with respect to radioactive materials.
Conclusion
Although the DOE’s cleanup plan did not meet with uniform approval, SB 990 overstepped its bounds by directly interfering with the functions of the Federal Government. SB 990 went as far as criminalizing the sale of the land – that site specifically – until the DTSC’s subsistence farming standards were met. “It may well be unreasonable to foresee subsistence farming at the site,” the Hon. Judge Kleinfeld wrote. (Id.) Unreasonable expectations aside, SB 990 violated the Supremacy Clause by “[mandating] more stringent cleanup procedures, not generally applicable within the state, to a particular site where the Federal Government undertook to clean up nuclear contamination is created.” (Id.)
Author:
Thierry R. Montoya is a Shareholder in the Firm’s Santa Ana office and the Chair of the Construction Law Department. He represents clients in environmental, land use, construction, and eminent domain matters across the state, and in federal jurisdictions throughout the United States.
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