California Environmental Law – How Much Cleanup is Too Much?
by Stephen T. Holzer
Nearly 3,000 acres of land in Ventura County is destined for open space use. . .if it’s ever cleaned up.
That vision may be put on hold, if the current mood of all parties involved give any indication. U.S. District Judge John F. Walter overturned Senate Bill 990 at the end of April, which practically guarantees the Boeing Company and the California Department of Toxic Substances (DTSC) will be legally wrangling for quite a while.
Here’s some background:
Santa Susana’s Historic Roots
The land in question is known as the Santa Susana Lab, home to North American Aviation’s rocket and nuclear research and development projects established in 1947. Due to a series of company splits and sales occurring over the decades, the land is currently owned by Boeing, NASA and the Department of Energy.
There was a partial nuclear meltdown in 1959. And aside from the radioactive materials, a lot of other toxic chemicals (such as dioxins, trichloroethylene, PCBs and perchlorate) infuse the soil and groundwater from years of rocket testing.
The Environmental Law Twist
We don’t even need to go into decades of federal and state environmental law history to illustrate the problems with Santa Susana.
Let’s just go back to 2007 when the now retired Senator Sheila Kuehl pushed SB 990 to reassure Ventura County residents that Santa Susana and the immediate vicinity would be scrubbed as clean as possible. The bill even outweighed federal standards on its goals for cleanliness and safety, and the DTSC was named chief overseer of the work.
So who got on board with the bill? The Department of Energy and NASA. But in 2009 Boeing filed suit, protesting DTSC’s supervisory role. Boeing claimed, among other things, that Kuehl’s S.B. 990 is preempted by the federal Atomic Energy Act, 42 U.S.C. §2011 et seq.
Judge Walters agreed, saying that a federal installation (or, as here, a private one under contract with the feds) is “shielded by the U.S. Constitution’s supremacy clause from direct state regulation unless Congress provides clear and unambiguous authorization for such regulation.”
The DTSC and the California Environmental Protection Agency are disappointed with this ruling, to put it mildly. And when Judge Walter delivered the ruling, he mentioned probable scrutiny by appellate courts, according to an April 27th article in the Los Angeles Daily News.
Which only means that Simi Valley residents may have to hold their breaths a long time before the Santa Susana Lab gets the cleanup it needs, whether it’s by federal or state standards.
Stephen T. Holzer is a Environmental Attorney, Shareholder and Chair of our Environmental Law Practice Group.