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Judge Allows DTSC Cleanup Lawsuit To Proceed Over Boeing's Objections

INSIDE CAL/EPA

A Sacramento County Superior Court judge has ruled that a case filed by environmentalists and anti-nuclear activists against the toxics department over the cleanup of the Santa Susana Field Laboratory site in southern California can proceed, rejecting a motion for summary judgment by The Boeing Co., which is at the center of the dispute.

The advocacy groups in 2013 sued the Department of Toxic Substances Control (DTSC) challenging its oversight of Boeing's demolition and disposal of structures at the site that the activists claim contain dangerous levels of radiation.

Advocates in the lawsuit, Physicians for Social Responsibility-Los Angeles, et al., v. DTSC, et al., argue DTSC is violating the California Environmental Quality Act (CEQA) by failing to review the environmental impacts of 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.

Judge Allen Sumner of the Sacramento court Jan. 5 issued an order denying a motion for summary judgment filed by Boeing last May that urged the court to scrap the lawsuit. The order is available on InsideEPA.com.

Attorneys for Boeing, which is a "real party in interest" in the lawsuit, argued that the claims in the lawsuit are moot because the company has withdrawn all notices to DTSC about its demolition and waste disposal activities, based on the argument that it does not require DTSC's approval to carry out the work. Therefore, the claims are moot because there is nothing before DTSC to approve that the plaintiffs claim would trigger CEQA analysis, Boeing argued.

DTSC has also argued in the case that it has no authority over the Boeing cleanup activities in part because the buildings have been decommissioned and released for unrestricted use.

But Sumner states in his order denying the Boeing motion that "given DTSC's actions appearing to approve Boeing's activities, the court was not persuaded DTSC had not asserted authority over Boeing's actions in demolishing the buildings. Nor was the court persuaded DTSC lacked authority to require Boeing to obtain approval prior to demolition."

Further, Sumner concludes that merely because Boeing withdrew its notices to DTSC regarding "alleged illegal" demolition activities does not mean the court lacks the jurisdiction or duty to determine the plaintiffs' claims, according to the order.

The state Hazardous Substance Account Act (HSAA) appears to require DTSC to approve Boeing's demolition and disposal activities, the court ruled in December 2013 when it granted a preliminary injunction on Boeing's activities, Sumner notes in the latest order.

One section of the HSAA "provides DTSC may require a responsible party to take remedial action if release of a hazardous substance threatens public health or the environment," Sumner writes. "These sections appear to give DTSC authority to require Boeing to obtain its approval prior to demolishing buildings, if demolition could release harmful radionuclides into the environment."

Pam Pressley, litigation director for Consumer Watchdog, one of the plaintiff groups in the case, says Sumner's latest order is "an important step on the way to ensuring that state regulators must consider the demolition and disposal of any radioactively contaminated structures at the Santa Susana Field Lab in their environmental assessment of the cleanup of this site," according to a Jan. 12 press release.

The group criticizes DTSC's position that it does not have authority over the demolition and disposal activities. "It is time for DTSC to stop kowtowing to egregious polluters by looking the other way to save them money on cleanups while endangering the public health," said Liza Tucker, an advocate with the group, in the press release. "The state has to obey environmental laws when authorizing demolition and disposal of structures impregnated with radioactive wastes. This isn't rocket-science."

Tucker added that the lawsuit's outcome could have broader ramifications over whether polluters need DTSC approval to oversee the cleanup of contaminated structures the agency routinely oversees at hundreds of other commercial and military sites across California.

Consumer Watchdog, Physicians for Social Responsibility-LA, Committee to Bridge the Gap, and the Southern California Federation of Scientists represented by Strumwasser & Woocher brought suit in August 2013 against DTSC and the Department of Public Health for allowing demolition and illegal disposal of radioactively contaminated structures from Area IV of the site without prior public review as CEQA requires, the group explains.

A Boeing spokeswoman provided a written statement in response to a request for comment that says, "While we are disappointed by the decision to deny our motion for summary judgment, we appreciate that the court took the time to thoroughly evaluate our arguments. It is important to note that the court made clear that it was expressing no opinion on the petitioners' claims. Even though the lawsuit lacks merit, Boeing will continue to voluntarily delay demolition activities in Area IV of Santa Susana until the court issues a final decision on this matter. Boeing will continue to make progress with its site-wide investigation and cleanup efforts at Santa Susana. While this lawsuit serves only to slow the progress being made, Boeing remains committed to working with the community and government agencies on a comprehensive risk-based cleanup of Santa Susana and the preservation of the site as open space for the benefit of future generations."

A DTSC spokesman said the department is "fully committed to cleanup of the Santa Susana Field Laboratory site that fully protects public health and the environment, and we will work within our full authority of the law to ensure this. DTSC is confident that when the court rules on the merits, it will determine that Boeing does not require DTSC's approval to demolish buildings outside DTSC's regulatory authority. DTSC has complied with the requirements of CEQA."