Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 1 of 48 Page ID #:3161 1 2 3 4 5 6 7 8 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WILMER CUTLER PICKERING HALE AND DORR LLP Brian R. Michael (SBN: 240560) brian.michael@wilmerhale.com 350 South Grand Avenue Los Angeles, California 90071 Telephone: (213) 443-5374 Facsimile: (213) 443-5400 WILMER CUTLER PICKERING HALE AND DORR LLP Seth P. Waxman (Pro Hac Vice) seth.waxman@wilmerhale.com Randolph D. Moss (Pro Hac Vice) randolph.moss@wilmerhale.com Carl J. Nichols (Pro Hac Vice) carl.nichols@wilmerhale.com Annie L. Owens (Pro Hac Vice) annie.owens@wilmerhale.com 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 Telephone: (202) 663-6000 Facsimile: (202) 663-6363 THE BOEING COMPANY Steven W. Horton (Pro Hac Vice) steven.w.horton@boeing.com J. Steven Rogers (Pro Hac Vice) steven.rogers@boeing.com Steven E. Rusak (Pro Hac Vice) steven.e.rusak@boeing.com P.O. Box 3707 MC 7A-XP Seattle, Washington 98124 Telephone: (425) 865-1074 Facsimile: (425) 865-7998 Attorneys for Plaintiff The Boeing Company UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA THE BOEING COMPANY, ) Case No. CV 10-04839-JFW (MANx) ) Plaintiff, ) Civil Action ) v. ) MEMORANDUM OF PLAINTIFF ) THE BOEING COMPANY IN LEONARD ROBINSON, in his official ) SUPPORT OF MOTION FOR capacity as the Acting Director of the ) SUMMARY JUDGMENT California Department of Toxic ) Substances Control, ) Hearing Date: April 11, 2011 ) Time: 1:30 p.m. Defendant. ) Courtroom: 16 ) Judge: Hon. John F. Walter ) Pretrial Conference: May 20, 2011 ) Trial Date: June 7, 2011 MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 2 of 48 Page ID #:3162 TABLE OF CONTENTS 1 2 Page 3 TABLE OF AUTHORITIES.....................................................................................ii 4 INTRODUCTION ..................................................................................................... 1 5 BACKGROUND ....................................................................................................... 4 6 A. History Of The SSFL Site..................................................................... 4 7 B. Cleanup Of SSFL Under Generally Applicable Law ........................... 9 8 C. Enactment Of SB 990 ......................................................................... 12 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 ARGUMENT........................................................................................................... 15 I. SB 990 IS INVALID UNDER THE SUPREMACY CLAUSE ................................... 15 A. 11 The Atomic Energy Act Preempts SB 990 ......................................... 16 1. 12 SB 990 Impermissibly Regulates Nuclear Health And Safety ........................................................................................ 16 13 2. 14 Authority To Regulate DOE-Related AEA Materials Has Not Been “Expressly Ceded” To The States ............................ 20 15 B. 16 SB 990 Violates The Intergovernmental Immunity Doctrine............. 23 1. 17 A State Law May Not Directly Regulate Or Discriminate Against A Federal Contractor, Lessor, Or A Facility............... 23 18 2. 19 SB 990 Directly Regulates And Discriminates Against A Federal Contractor, Lessor, and Facility .................................. 25 20 3. 21 C. 22 SB 990 Exceeds Any Congressional Waiver Of Immunity ..... 27 SB 990 Must Be Struck Down In Its Entirety .................................... 28 23 II. SB 990 VIOLATES EQUAL PROTECTION AND DUE PROCESS .......................... 31 24 CONCLUSION........................................................................................................ 35 25 APPENDIX A............................................................................................................ 1 26 APPENDIX B ............................................................................................................ 1 27 28 MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -i- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 3 of 48 Page ID #:3163 1 TABLE OF AUTHORITIES 2 FEDERAL CASES 3 Adams v. Dole, 927 F.2d 771 (4th Cir. 1991) ......................................................... 18 4 Allegheny Pittsburgh Coal Co. v. County Commission of Webster County, 488 U.S. 336, 109 S. Ct. 633, 102 L. Ed. 2d 688 (1989) ................................... 32 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 5 6 Black Hills Power & Light Co. v. Weinberger, 808 F.2d 665 (808 F.2d 665 (8th Cir. 1987) ...................................................... 24 7 Blackburn v. United States, 100 F.3d 1426 (9th Cir. 1996) .............................. 23, 24 8 Brown v. Barry, 710 F. Supp. 352 (D.D.C. 1989)................................................... 31 9 Brown v. Kerr-McGee Chemical Corp., 767 F.2d 1234 (7th Cir. 1985) .......... 18, 29 10 Butts v. Merchants & Miners Transport Co., 230 U.S. 126, 33 S. Ct. 964, 57 L. Ed. 1422 (1913) .......................................... 30 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)............................................................................ 3, 31, 32 E. Enterprises v. Apfel, 524 U.S. 498, 118 S. Ct. 2131, 141 L. Ed. 2d 451 (1998).................................................................................... 34 EPA v. Cal. ex rel. State Water Resources Control Board, 426 U.S. 200, 96 S. Ct. 2022, 48 L. Ed. 2d 578 (1976) ............................................................ 24 English v. General Electric Co., 496 U.S. 72, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990)................................................................................ 16, 18 Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 108 S. Ct. 1704, 100 L. Ed. 2d 158 (1988).............................................................................. 24, 27 Hancock v. Train, 426 U.S. 167, 96 S. Ct. 2006, 48 L. Ed. 2d 555 (1976)................................................................................ 24, 25 Hawaii Newspaper Agency v. Bronster, 103 F.3d 742 (9th Cir. 1996) .................. 16 Illinois v. General Electric Co., 683 F.2d 206 (7th Cir. 1982) ......................... 18, 19 Jersey Central Power & Light Co. v. Township of Lacey, 772 F.2d 1103 (3d Cir. 1985) ............................................................................. 18 Johnson v. Maryland, 254 U.S. 51, 41 S. Ct. 16, 65 L. Ed. 126 (1920)........................................................................................... 23 26 Kentucky ex rel. Hancock v. Ruckelshaus, 497 F.2d 1172 (6th Cir. 1974), aff'd sub nom. Hancock v. Train, 426 U.S. 167 (1976) .................................................... 24 27 Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580 (9th Cir. 2008)........................... 31, 32 28 Long Island Lighting Co. v. County of Suffolk, MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -ii- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 4 of 48 Page ID #:3164 1 628 F. Supp. 654 (E.D.N.Y. 1986)..................................................................... 17 2 Mayo v. United States, 319 U.S. 441, 63 S. Ct. 1137, 87 L. Ed. 1504 (1943)................................................................................... 23, 24 3 4 5 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 6 McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 4 L. Ed. 579 (1819)................... 24 Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2008)............................................... 33 Missouri v. Westinghouse Electric, LLC, 487 F. Supp. 2d 1076 (E.D. Mo. 2007). 22 7 Moses Lake Homes v. Grant Cnty., 365 U.S. 744, 81 S. Ct. 870, 6 L. Ed. 2d 66 (1961).................................................................................... 24, 27 8 National Broiler Council v. Voss, 44 F.3d 740 (9th Cir. 1994) .............................. 31 9 NRDC v. NRC, 606 F.2d 1261 (D.C. Cir. 1979) ..................................................... 21 10 Northern States Power Co. v. Minn., 447 F.2d 1143 (8th Cir. 1971), aff'd, 405 U.S. 1035, 92 S. Ct. 1307, 31 L. Ed. 2d 576 (1972) .............. 19, 22, 23 11 12 13 14 15 16 17 18 19 20 21 Nordlinger v. Hahn, 505 U.S. 1, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992)............. 32 North Dakota v. United States, 495 U.S. 423, 110 S. Ct. 1986, 109 L. Ed. 2d 420 (1992)....................................................................2, 23, 24, 26 Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 103 S. Ct. 1713, 75 L. Ed. 2d 752 (1983)......................................................................2, 16, 17, 20 Pacific Legal Foundation v. State Energy Resources Conserv. & Development Commission, 659 F.2d 903 (9th Cir. 1981), aff'd sub nom. Pacific Gas v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983) ............................................................................... 20, 22, 27 Phillips Chemical Co. v. Dumas Independent School District, 361 U.S. 376, 80 S. Ct. 474, 4 L. Ed. 2d 384 (1960) ......................................... 24 Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112, 69 S. Ct. 463, 93 L. Ed. 533 (1949) .................................................................................................... 32 22 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947)......................................................................................... 16 23 Sayles Hydro Associates v. Maughan, 985 F.2d 451 (9th Cir. 1993) ..................... 16 24 Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S. Ct. 615, 78 L. Ed. 2d 443 (1984)...................................................................................... 16 25 26 Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002)................................................. 31 27 Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004).......................................................................... 18 28 Train v. Colorado Public Interest Research Group, 426 U.S. 1, MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -iii- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 5 of 48 Page ID #:3165 1 96 S. Ct. 1938, 48 L. Ed. 2d 434 (1976) ............................................................ 22 2 United States v. Carlton, 512 U.S. 26, 114 S. Ct. 2018, 129 L. Ed. 2d 22 (1994)...................................................................................... 35 3 4 5 6 7 8 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 11 12 United States v. Kentucky, 252 F.3d 816 (6th Cir. 2001)..................2, 19, 22, 27, 29 United States v. Manning, 434 F. Supp. 2d 988 (E.D. Wash. 2006), aff'd, 527 F.3d 828 (9th Cir. 2008)..............................................................passim United States v. New Mexico, 455 U.S. 720, 102 S. Ct. 1373, 71 L. Ed. 2d 580 (1982)...................................................................................... 23 Union Oil Co. v. Minier, 437 F.2d 408 (9th Cir. 1970) .......................................... 24 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S. Ct. 2882, 49 L. Ed. 2d 752 (1976)...................................................................................... 35 Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926)............................................................................................. 3 STATE CASES 13 Hotel Employees & Restaurant Employees International Union v. Davis, 981 P.2d 990, Cal. Rptr. 2d 56 (Cal. 1999).................................................. 29, 30 14 FEDERAL STATUTES 15 Atomic Energy Act of 1954 (“AEA”), 42 U.S.C. §§ 2011, et seq........................ 1, 2 42 U.S.C. § 2013 ................................................................................................ 18 42 U.S.C. § 2014 ................................................................................................ 18 42 U.S.C. § 2018 .................................................................................... 20. 22. 27 42 U.S.C. § 2021 .................................................................................... 20, 21, 22 42 U.S.C. § 2051 ...................................................................................... 4, 17, 21 42 U.S.C. § 2052 ...................................................................................... 1, 17, 21 42 U.S.C. § 2061 ...................................................................................... 4, 17, 21 42 U.S.C. § 2071 ................................................................................................ 18 42 U.S.C. §§ 2073-78 ......................................................................................... 18 42 U.S.C. § 2111-14 ........................................................................................... 18 42 U.S.C. § 2121 ................................................................................................ 22 42 U.S.C. § 2140 ................................................................................................ 20 42 U.S.C. § 2201 .......................................................................................... 17, 18 16 17 18 19 20 21 22 24 Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq., 42 U.S.C. § 9620(a) ..................................................................................... 27, 28 25 Department of Energy Organization Act, 42 U.S.C. §§ 7101 et seq. ............... 18 26 Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801-5891 .............................. 18 42 U.S.C. § 5801 ................................................................................................ 17 23 27 28 National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq. .................................................................................................................. 12 MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -iv- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 6 of 48 Page ID #:3166 3 Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901 et seq., .................................................................................. 10 42 U.S.C. § 6903 .......................................................................................... 10, 28 42 U.S.C. § 6905 .......................................................................................... 10, 28 42 U.S.C. § 6961 .......................................................................................... 10, 28 4 RULES, REGULATIONS & LEGISLATIVE HISTORY 5 7 10 C.F.R. § 30.12(a) ................................................................................................ 21 10 C.F.R. § 40.11(a) ................................................................................................ 21 10 C.F.R. § 70.11..................................................................................................... 21 10 C.F.R. §150.15(a)(1)........................................................................................... 22 10 C.F.R. §150.3...................................................................................................... 22 8 46 Fed. Reg. 7540 (1981) ........................................................................................ 21 9 132 Cong. Rec. S28,413 (daily ed. Oct. 3, 1986) (statement of Sen. Stafford).......................................................................... 27, 28 1 2 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 6 11 12 13 14 15 16 STATE STATUTES & LEGISLATIVE HISTORY Cal. Const., art. IV, § 16 .......................................................................................... 29 Cal. Health & Safety Code ch. 6.5 .......................................................................... 10 Cal. Health & Safety Code § 25356.1.5 ............................................................ 13, 25 Cal. Health & Safety Code § 25359.20 ............................................................passim Cal. Environmental Quality Act (“CEQA”), Cal. Resources Code §§ 21000 et seq.12 17 S.B. 990 Hearing Report, Assembly Comm. on Envtl. Safety & Toxic Materials (June 26, 2007) .............................................................. 20, 31 18 SB 990 Assembly Floor Analysis (Sept. 1, 2007)............................................. 19, 20 19 MISCELLANEOUS 20 U.S. Department of Energy Orders, 231.1A, Chg. 1, Env’t, Safety, & Health Reporting (June 6, 2004)................... 21 435.1, Chg. 1, Radioactive Waste Mgmt.(Jan. 9, 2007) ..................................... 21 450.1A, Envt’l Protection Program (June 4, 2008)........................................... 21 5400.1, Chg. 1, Gen. Envt’l Protection Program (June 29, 1990) .................... 21 5400.5, Chg. 2, Radiation Protection of the Public & the Env’t (Jan. 7, 1993) 21 21 22 23 24 25 26 U.S. Environmental Protection Agency, OSWER Directive No. 9355.7-04, Land Use in the CERCLA Remedy Selection Process (EPA 1995) ........................................................................................... 13 U.S. Nuclear Regulatory Commission, NRC Procedure SA-500: Jurisdiction Determinations (Sept. 25, 2007) ..... 21, 22 27 28 MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -v- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 7 of 48 Page ID #:3167 INTRODUCTION 1 California Senate Bill 990 (“SB 990”) is, by any measure, an extraordinary 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 2 3 law. It singles out one site in California—a former federal nuclear-research and 4 rocket-testing facility called the Santa Susana Field Laboratory (“SSFL”)—for 5 uniquely onerous cleanup rules that apply nowhere else in the State. It purports to 6 govern the cleanup of radiological contamination resulting from U.S. Department 7 of Energy (“DOE”)1 nuclear-research operations, authority long reserved 8 exclusively to the federal government. It attempts to justify singling out SSFL for 9 disparate treatment based on a history of activity at the site by DOE, NASA, the 10 U.S. military, and Boeing as their federal contractor and lessor,2 even though that 11 federal activity may not be subject to state regulation without express 12 congressional authorization, which is not present here. It prevents Boeing from 13 transferring land that it owns at SSFL until SB 990’s cleanup requirements are 14 met—a process that the Defendant the California Department of Toxic Substances 15 Control (“DTSC”) has admitted could take up to 50,000 years for the groundwater 16 at the site. Statement of Uncontroverted Facts (“SUF”) ¶86. And it would impose 17 these extraordinary burdens and costs without any scientific or technical basis: 18 DTSC’s own 30(b)(6) witnesses have conceded that there is no public health or 19 other technical justification for SB 990’s discriminatory treatment of SSFL, and 20 that the only basis to single SSFL out for more onerous clean-up requirements is, 21 pure and simple, politics. SUF ¶¶104, 103. Such legislation cannot stand. As a matter of law, any state attempt to 22 23 regulate the radiological cleanup activities of DOE or a DOE contractor operating 24 at a DOE-controlled site is preempted by the Atomic Energy Act of 1954 (“AEA”), 25 1 26 27 28 References to “DOE” include its predecessor agencies, the Atomic Energy Commission (“AEC”) and the Energy Research and Development Administration. 2 References to “Boeing,” where appropriate, also include Rockwell International, which Boeing acquired in 1996, and North American Aviation, Rockwell International’s predecessor company. MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -1- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 8 of 48 Page ID #:3168 1 42 U.S.C. §§2011, et seq. The Supreme Court has repeatedly recognized that “the 2 federal government has occupied the entire field of nuclear safety concerns, except 3 the limited powers expressly ceded to the states.” Pac. Gas & Elec. Co. v. State 4 Energy Res. Conserv. & Dev. Comm’n, 461 U.S. 190, 212, 103 S. Ct. 1713, 1726, 5 75 L.Ed. 2d 752, 770 (1983). By purporting to regulate an ongoing AEA cleanup 6 of a DOE research facility—a cleanup conducted by Boeing in its capacity as a 7 DOE prime contractor and relating to contamination that resulted from activities 8 performed by or on behalf of DOE—SB 990 is a direct attempt to regulate squarely 9 in the field preempted by the AEA. Indeed, DTSC’s own 30(b)(6) witness 10 admitted that the existing radiological contaminants at SSFL are “DOE materials,” 11 which the State has previously recognized are exempt from its “regulatory 12 authority.” SUF ¶21. Because SB 990 purports to regulate the cleanup of these 13 “DOE materials,” it must be struck down under “longstanding principles of federal 14 preemption.” U.S. v. Manning, 527 F.3d 828, 831 (9th Cir. 2008); see U.S. v. 15 Kentucky, 252 F.3d 816 (6th Cir. 2001). 16 SB 990 also violates the doctrine of intergovernmental immunity, a second 17 and independent basis for summary judgment. Absent clear congressional 18 authorization, states may not directly regulate the activities or facilities of the 19 federal government or “discriminate against the Federal Government or those with 20 whom it deals.” North Dakota v. United States, 495 U.S. 423, 437, 110 S. Ct. 21 1986, 1996, 109 L.Ed. 2d 420, 435 (1990) (plurality) (emphasis added); see also 22 id. at 444 (Scalia, J., concurring). If allowed to stand, SB 990 would directly 23 regulate federal activities and facilities; it would regulate Boeing—based on its 24 activity as a federal contractor and lessor; and it would single out SSFL for more 25 stringent cleanup requirements than those that apply to all other sites in the State. 26 The legislative findings in SB 990, moreover, leave no doubt that it would do so 27 based on a history of federal activity at the site. The Supremacy Clause forbids 28 precisely that type of discriminatory state regulation of federal activities, MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -2- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 9 of 48 Page ID #:3169 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 1 contractors, and lessors. 2 Finally, SB 990 violates the Equal Protection and Due Process Clauses of 3 the Fourteenth Amendment because it unjustifiably singles out SSFL for unique 4 burdens that apply to no other site in the State, and it is “clearly arbitrary and 5 unreasonable, having no substantial relation to the public health, safety, morals, or 6 general welfare.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 7 S.Ct. 114, 121, 71 L.Ed. 303, 314 (1926). DTSC’s own 30(b)(6) witnesses have 8 conceded that no scientific or technical basis exists that can justify treating SSFL 9 differently from other contaminated sites in the State, and that the only basis for 10 SB 990 was politics. SUF ¶103. Politics alone, however, can never justify 11 discriminatory and irrational legislation. See City of Cleburne v. Cleburne Living 12 Ctr., 473 U.S. 432, 448, 105 S.Ct. 3249, 3258-59 87 L.Ed.2d 313, 325-26 (1985). 13 This is particularly true for legislation like SB 990, which imposes enormous costs 14 and deprives a private party of the right to lease or transfer its land based on 15 conduct that, for the most part, occurred decades ago, indisputably lies beyond the 16 regulatory authority of the State, and poses no greater risk to public health than 17 contamination at other sites throughout the State. Each of these claims can, and should, be resolved on summary judgment 18 19 because the material facts are not disputed. DTSC has stipulated that, for purposes 20 of this motion, it will dispute only three facts, none of which is material.3 What is 21 22 23 24 25 26 27 28 3 See Order Re: Mot. to Compel and Mot. for Summ. J., Dkt. No. 108 (Feb. 11, 2011) (Ex. 3 to Owens Decl.). Under the stipulation, “DTSC will not assert or contend that there exists any issue of material fact in dispute, except as follows:” DTSC may contend (1) that Boeing engaged in private commercial activity at SSFL, “although DTSC agrees that it is not possible at this time to identify any particular radiological or chemical contamination at the SSFL site that resulted from non-federal activity,” id.; (2) that DTSC “cannot currently make a reliable and accurate estimate of the volume of soil that would have to be removed from the site to comply with SB 990,” Expert Rep. of Laura Rainey at 1 (Jan. 21, 2011); and (3) that it is “not currently … possible to differentiate between chemical or radiological contamination at the site that resulted from activities done by or on behalf of the federal government on the one hand, and chemical or radiological contamination at the site that resulted from activities performed by or for private, MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -3- CASE NO. CV 10-04839-JFW (MANX) 1 left uncontested, among many other things, is that the contamination at SSFL is 2 overwhelmingly the product of federal activity, SUF ¶¶21; 43–44; 48–49; that 3 DTSC cannot identify any contamination at the site that did not result from federal 4 activity, SUF ¶28; 45; 50; that SSFL poses no greater risk to public health than 5 other sites in the State, SUF ¶98; 105–108; that there is no factual or scientific 6 basis to treat SSFL differently from those other sites; and that SB 990 would 7 impose enormous and unnecessary burdens on Boeing. SUF ¶109. Given these 8 undisputed facts, SB 990 cannot stand, and summary judgment should be entered 9 in Boeing’s favor. BACKGROUND 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 10 of 48 Page ID #:3170 11 A. 12 SSFL is an approximately 2,850-acre former research and development 13 facility in the Simi Hills in Ventura County, California. SUF ¶1. Boeing has 14 occupied or owned property at the site since the late 1940s and has used it 15 predominantly to perform work on behalf of the federal government. SUF ¶¶2, 3. 16 The federal government has also owned and leased property at SSFL since the 17 early 1950s. SUF ¶4. Today, Boeing owns approximately 2,398 acres of the site, 18 SUF ¶5, while the federal government owns approximately 452 acres, which it 19 administers through NASA, SUF ¶6. The federal government also has leased from 20 Boeing approximately 90 acres of the site, which DOE administers. SUF ¶7. The 21 federal government and Boeing used SSFL for nearly sixty years to research, 22 develop, and test many pioneering technologies relating to nuclear energy, defense, 23 and space exploration for the United States. SUF ¶8. 24 25 History Of The SSFL Site Nuclear-Research Activities. From the 1950s to the 1980s, acting pursuant to its exclusive authority under the AEA, DOE conducted a federal program at 26 27 28 non-governmental entities on the other, id. at 2. Each of these contentions is either immaterial or affirmatively supports Boeing’s Motion. MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -4- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 11 of 48 Page ID #:3171 1 SSFL to research the peacetime use of nuclear energy. SUF ¶9. Boeing carried 2 out that program in its capacity as a DOE prime contractor as authorized by the 3 AEA, SUF ¶10, see 42 U.S.C. §§2051, 2061(b), setting aside a portion of SSFL, 4 now known as “Area IV,” for that activity, SUF ¶11. DOE operations in Area IV 5 were conducted in a DOE-controlled complex known as the Energy Technology 6 Engineering Center that at its height included more than 200 buildings and 7 facilities, many of which were constructed and owned by DOE. SUF ¶¶12–13. The vast majority of radiological activity at SSFL was conducted for or on 8 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 behalf of DOE. SUF ¶14. Among other things, DOE owned and operated sixteen 10 experimental nuclear-reactor facilities or critical test facilities (low-powered 11 reactors); some of these facilities were used for researching electricity production, 12 and others were used to develop energy sources for the federal space program. 13 SUF ¶16. One DOE reactor—the Sodium Reactor Experiment—alone generated 14 roughly 90 percent of the total contained radioactivity that was ever present at 15 SSFL. SUF ¶17. That reactor experienced a significant core damage accident 16 during federal operations in 1959. SUF ¶18. DOE also sponsored a variety of 17 nuclear reactor support activities, including nuclear-fuel manufacturing, as well as 18 the decladding of spent irradiated nuclear fuel in the SSFL Hot Laboratory. SUF 19 ¶19. These and other nuclear research activities performed for or on behalf of 20 DOE resulted in radiological contamination—consisting of “byproduct,” “source,” 21 and “special nuclear” material—in the soil, groundwater, and bedrock at SSFL. 22 SUF ¶20. Significantly, DTSC’s 30(b)(6) witness on the cleanup of radiological 23 material at the site admitted that “all” of the radiological contamination in the soil, 24 bedrock, and groundwater at SSFL is “DOE material[].”4 SUF ¶21. By contrast, during the same time period, Boeing conducted a comparatively 25 26 27 28 4 Radiological contamination, although concentrated in Area IV, has been detected in other areas of SSFL. That contamination also cannot be attributed to private activities. SUF ¶22. MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -5- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 12 of 48 Page ID #:3172 1 small amount of radiological work in Area IV in a commercial capacity, in the 2 same buildings or areas where federal work occurred and involving the same 3 radioisotopes. SUF ¶23. For instance, for a period of time Boeing operated one 4 nuclear reactor and one critical test facility in a private capacity; these activities 5 were federally licensed by the AEC and its successor, the Nuclear Regulatory 6 Commission (“NRC”). SUF ¶24. Boeing conducted an even smaller amount of 7 state-licensed commercial radiological work, including the manufacture and 8 repackaging of “sealed sources” and routine industrial activity using radiological 9 materials.5 SUF ¶25. 10 Because of both its far smaller scale and nature—much of the routine 11 industrial activity involved the use of “sealed sources” that were frequently tested 12 and never shown to have leaked—it is highly unlikely that this private commercial 13 activity resulted in any existing contamination at the site. SUF ¶27. Indeed, after 14 more than 40 years of sampling and analysis of the contamination at the site, 15 neither Boeing nor DTSC can identify any radiological contamination at SSFL 16 resulting from private commercial activity. SUF ¶28 (L.R. Greger, DTSC) (“[Q.] 17 Are you aware of any radiological contamination at the site resulting from private 18 commercial activity? A. No, I’m not.”). And because the private commercial 19 activity occurred at the same time and in the same buildings as federal activity and 20 involved the same radioisotopes, even if there were any privately generated 21 radiological contamination at SSFL, such contamination would be 22 indistinguishable from and/or inextricably intermixed with radiological 23 contamination resulting from federal activity. SUF ¶29. Such intermixing would 24 25 26 27 28 5 This routine industrial activity included relatively small-scale activity such as the use of sealed x-radiography sources and sealed calibration sources; use of gas chromatographs that contained sealed radiological sources; use of sealed destaticisors; possession of smoke detectors and sealed self-powered exit signs; possession of equipment used in “in-service inspection” activities; and use of sealed level, depth, thickness, and density gauges. SUF ¶26. MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -6- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 13 of 48 Page ID #:3173 1 prevent any private contamination from being remediated separately from the 2 federal contamination. SUF ¶30 (M. Malinowski, DTSC) (“Q. If there were any 3 radiological contamination at the site that resulted from private commercial 4 activity, are you aware of any basis to distinguish that contamination from the 5 contamination resulting from the federal activity? A. No, I don’t know how you 6 would differentiate those two. Q. Are you aware of any way in which you could 7 clean up just the federal and not clean up the private commercial? A. If they were 8 commingled, no.”). 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 Rocket-Testing Activities. SSFL was also used for significant federal rocket- 10 testing activity. SSFL began as a military test site after World War II when North 11 American Aviation, a Boeing precursor, received a contract from the Air Force to 12 develop the Navaho guided missile system. SUF ¶31. SSFL was established in 13 1947 to test the rocket engine for that system and was used to test the rocket 14 engines for ballistic missile systems under military contract throughout the Cold 15 War. SUF ¶31. The Air Force and NASA, through Boeing as a prime contractor, 16 also conducted liquid-propellant rocket-engine tests at SSFL from the 1950s to 17 2006. SUF ¶32. Many of those engines powered major American expeditions into 18 space, including the Apollo missions and the Moon landing. SUF ¶33. To support 19 this work, Boeing, acting pursuant to federal contract, constructed six rocket-test 20 stand areas. SUF ¶34. These test stand areas, located both on federally owned and 21 Boeing-owned portions of SSFL, were operated under federal facilities contracts. 22 SUF ¶35. Boeing also tested rocket components and fuel in laboratories and other 23 SSFL facilities in support of these federal programs. SUF ¶36. 24 The soil, bedrock, and groundwater at SSFL became contaminated with 25 chemicals as a result of these federal rocket-testing and support operations. SUF 26 ¶37. Most notably, contamination resulted from the use of trichloroethylene 27 (“TCE”) as a solvent to clean liquid-propellant engines and rocket test stands. 28 SUF ¶39. NASA has determined that more than 500,000 gallons of TCE were MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -7- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 14 of 48 Page ID #:3174 1 released into the ground at SSFL as a result of federal rocket-testing activities 2 performed for the military or NASA. SUF ¶40. NASA has also concluded that 3 97% of this total TCE release occurred before the installation of TCE containment 4 systems, which, beginning in 1961, were used to prevent the release of TCE 5 directly into the ground. SUF ¶41. The use of TCE related to liquid-propellant 6 engine testing was phased out at SSFL altogether in the 1990s. SUF ¶42. 7 The overwhelming majority of rocket-testing activity at SSFL was 8 performed for or on behalf of the federal government, and any private rocket 9 testing would have occurred well after the installation of TCE containment 10 systems. SUF ¶43. As a result, any TCE contamination at SSFL that might have 11 resulted from commercial rocket testing would be de minimis compared to the 12 federal TCE contamination. SUF ¶44. Indeed, DTSC is unable to identify any 13 TCE contamination resulting from non-federal activity, and to the extent any TCE 14 contamination had resulted from such activity, it would be indistinguishable from 15 and/or inextricably intermixed with contamination resulting from federal rocket 16 testing. SUF ¶¶45, 46. Accordingly—as DTSC’s 30(b)(6) witnesses and its own 17 expert have concluded—any private TCE contamination could not be identified 18 and remediated separately from the federal TCE contamination. SUF ¶47. 19 Federal rocket-testing, energy research, and other activities at SSFL also 20 resulted in chemical contamination in addition to TCE, including perchlorate, 21 heavy metal, PCB, dioxin, volatile organic compound, and semivolatile organic 22 compound contamination. SUF ¶48. This federal contamination is present in all 23 operational areas of the site and is not limited to the areas currently owned, 24 controlled, or leased by the federal government. SUF ¶38. As with TCE, the vast 25 majority of this contamination resulted from federal activities, and any chemical 26 contamination resulting from private commercial operations would be exceedingly 27 small in comparison. SUF ¶49. Once again, DTSC cannot identify any such 28 chemical contamination that did not result from federal activity. SUF ¶50. And MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -8- CASE NO. CV 10-04839-JFW (MANX) 1 again, because any commercial activity at SSFL would have been performed in the 2 same areas and used many of the same chemicals as federal activity, any private 3 chemical contamination at SSFL would be indistinguishable from and/or 4 inextricably intermixed with chemical contamination resulting from federal 5 activity, which would prevent any private contamination from being remediated 6 separately from the federal contamination. SUF ¶51 (L. Rainey, DTSC) (“Q. … 7 [C]an you identify any private contamination at the SSFL site that is not 8 intermixed with government contamination? A. Not that I can think of.”); SUF ¶51 9 (M. Malinowski, DTSC) (“Q. You wouldn’t be able to clean up one without 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 15 of 48 Page ID #:3175 cleaning up the other; is that right? A. That is correct.”). 11 B. Cleanup Of SSFL Under Generally Applicable Law 12 Boeing is actively conducting the cleanup at SSFL, and, in doing so, 13 continues to serve as a DOE and NASA contractor. It pays a portion of the costs, 14 and will bear the portion of the cleanup costs not paid by or recovered from the 15 federal government in an allocation proceeding. SUF ¶52. Before SB 990, DOE 16 supervised the cleanup of the radiological contamination under federal law, and 17 DTSC supervised the cleanup of the chemical contamination under generally 18 applicable state law. SUF ¶53. 19 Radiological Cleanup. For more than 40 years, DOE had regulated the 20 cleanup of radiological material in Area IV of SSFL pursuant to its exclusive AEA 21 authority. SUF ¶54. The radiological contamination in Area IV has been 22 extensively sampled and analyzed, and the principal sources, types, and locations 23 of contamination have been identified. SUF ¶56. This analysis has been ongoing 24 since the 1970s in connection with the decontamination and decommissioning of 25 radiological facilities in Area IV, SUF ¶57, and has also included a radiological 26 survey conducted in 1988, a second radiological survey in 1995, and numerous 27 characterization and final status surveys associated with the footprints of former 28 radiological facilities, SUF ¶58. Thousands of soil, bedrock, and groundwater MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -9- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 16 of 48 Page ID #:3176 1 samples have been taken in Area IV. SUF ¶59. Many thousands of pages of 2 analysis have been prepared and a large quantity of historical and technical 3 documents have been reviewed and collected in support of these studies. SUF ¶60. 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 4 In 1996, DOE approved procedures governing the radiological cleanup of 5 Area IV. SUF ¶61. Under those procedures, Area IV would have been cleaned up 6 to a level pursuant to which future users of the site for suburban residential 7 purposes would have been exposed to a dose of no more than 15 millirem of 8 radiation per year. SUF ¶62. This standard is exceedingly conservative: It is more 9 protective than the standard normally applied to decommissioning of commercial 10 facilities by the NRC, and it would have resulted in a lower dose of radiation per 11 year than four cross-country round trips on an airplane. SUF ¶63. As DTSC’s 12 30(b)(6) witnesses admitted, this standard fully protects human health and the 13 environment. See SUF ¶64 (M. Malinowski, DTSC) (“Q. Do you have any reason 14 to believe that [DOE was] conducting the cleanup in a manner that was 15 inadequately protective of the environment? A. I have no reason to believe that.” 16 “Q. … [H]ave you seen anything that [DOE] did with respect to the cleanup that 17 you believe was improper or inadequately protective of public health? A. No.”). 18 Chemical Cleanup. Before SB 990, the cleanup of the non-radiological 19 contamination at SSFL had been supervised by DTSC pursuant to the State’s 20 generally applicable hazardous waste management laws, Cal. Health & Safety 21 Code ch. 6.5, which are modeled on the Resource Conservation and Recovery Act 22 of 1976 (“RCRA”), 42 U.S.C. §§6901, et seq. SUF ¶65. RCRA excludes from its 23 scope radiological materials regulated under the AEA, see 42 U.S.C. §§6903(5), 24 (27); 6905(a), and contains a waiver of sovereign immunity for federal facilities, 25 thereby allowing state laws to be applied to the cleanup of non-radiological 26 contamination at those facilities, but only “in the same manner, and to the same 27 extent, as any person is subject to such requirements” 42 U.S.C. §6961(a)(2). 28 As with the radiological contamination, the chemical contamination at SSFL MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -10- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 17 of 48 Page ID #:3177 1 has been extensively sampled and analyzed, and the principal sources, types, and 2 locations of contamination have been identified. SUF ¶66. Chemical 3 characterization has been ongoing for more than 25 years and has involved taking 4 more than 35,000 soil, bedrock, and groundwater samples; the preparation of more 5 than 100,000 pages of analysis, including eleven RCRA Facility Investigation 6 reports submitted to DTSC, which detail the sources and extent of chemical 7 contamination throughout the site; and the submission of approximately 800,000 8 pages of historical and technical documents in support of these studies. SUF ¶67. 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 In August 2007, pursuant to generally applicable state law, DTSC, Boeing, 10 DOE, and NASA entered into a Consent Order for Corrective Action, which 11 governed the remediation of chemical contamination at SSFL, but did not include 12 radiological cleanup. SUF ¶68. This Consent Order required that chemical 13 contamination be cleaned up to a level that assumed the site would be used for 14 suburban residential purposes. SUF ¶69. This cleanup level is conservative, 15 considering that in October 2007, Boeing publicly committed to preserve the SSFL 16 site for use as open space parkland upon completion of such a cleanup. SUF ¶70. 17 DTSC’s 30(b)(6) witnesses have admitted that this pre-SB 990 approach to 18 chemical cleanup was fully protective of human health and the environment at 19 SSFL. See SUF ¶71 (R. Brausch, DTSC) (“Q. And looking just at the chemical 20 side, do you have any reason to believe that that approach as reflected in the 2007 21 consent order would have led to a cleanup that was not safe to the public at Santa 22 Susana? A. No.”); SUF ¶71 (M. Malinowski, DTSC) (“Q. … [I]s there anything 23 that you can identify about the DTSC’s approach to the cleanup of chemical 24 contamination at SSFL prior to enactment of SB 990 that you believe was not 25 adequately protective of public health? A. No. Q. Or the environment? A. No.”). 26 Finally, in December 2010, DTSC entered into Administrative Orders on 27 Consent (“AOCs”) with DOE and NASA that, subject to various conditions and 28 exceptions, would address the radiological and chemical cleanup by DOE and MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -11- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 18 of 48 Page ID #:3178 1 NASA of soil for portions of the site.6 The AOCs do not apply to the cleanup of 2 groundwater and certain bedrock even within the covered portions of the site, nor 3 do they address the cleanup of federal contamination at other portions of the site. 4 Boeing is not a party to the AOCs. 5 C. Enactment Of SB 990 6 In October 2007, the California legislature enacted SB 990. Entitled 7 “Cleanup of Santa Susana Field Laboratory,” SB 990 purports to assert state 8 jurisdiction over the cleanup of DOE-related radiological contamination at SSFL 9 and singles out the site for unprecedented cleanup requirements—applicable to 10 both radiological and chemical contamination—that apply nowhere else in the 11 State. SB 990 provides that, for purposes of the SSFL cleanup only: “[i]n 12 calculating the risk, the cumulative risk from radiological and chemical 13 contaminants at the site shall be summed, and the land use assumption shall be 14 either suburban residential or rural residential (agricultural), whichever produces 15 the lower permissible residual concentration for each contaminant.” 16 Cal. Health & Safety Code §25359.20(c) (emphasis added). 17 SB 990 differs markedly from generally applicable state (or federal) 18 environmental law because it mandates the land-use assumption to be used in the 19 risk assessment at SSFL regardless of the actual likely future use of the site. SUF 20 ¶74. Risk assessments determine the risk posed to human health and the 21 environment by the contamination remaining at a site upon completion of a 22 23 24 25 26 27 28 6 Available at http://www.dtsc.ca.gov/SiteCleanup/Santa_Susana_Field_Lab/FinalAgreements-SSFL-Cleanup.cfm. The DOE AOC, for example, is contingent on modifying a final judgment from the Northern District of California requiring DOE to perform an Environmental Impact Statement pursuant to the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§4321, et seq. See DOE AOC ¶6.1. Similarly, the NASA AOC is contingent on the results of the analyses required under the California Environmental Quality Act (“CEQA”), Cal. Public Resources Code §§21000 et seq., and NEPA. See NASA AOC at ¶¶4.0-4.3; SUF ¶72. If the required conditions occur, the AOCs would apply to the cleanup of soil in Area IV and certain other portions of the site, but they would not apply to other large sections of the site that contain contamination resulting from federal activity. MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -12- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 19 of 48 Page ID #:3179 1 cleanup. SUF ¶75. Under generally applicable law, the reasonably foreseeable 2 land-use assumption for a contaminated site is a key component in a risk 3 assessment and the principal factor in determining the ultimate cleanup standard. 4 SUF ¶76. Each future land-use scenario—such as agricultural, suburban- 5 residential, industrial, or open space—assumes a degree of exposure to residual 6 contamination to a future user of the land through certain “pathways,” such as 7 inhalation of air, ingestion of water, and ingestion of food grown or raised on the 8 site. SUF ¶77. The greater the assumed exposure, the more stringent the ultimate 9 cleanup standard must be. SUF ¶78. For example, a site likely to be used as a 10 subsistence farm—the scenario which assumes the greatest exposure—would be 11 required to be cleaned up to the most stringent standard. SUF ¶79. Under 12 generally applicable law—including at SSFL before SB 990—the reasonably 13 foreseeable future use of a site is determined by considering a number of factors, 14 including the current use of the land, zoning, county general plans, topography and 15 natural resources, institutional controls, cultural resources, and endangered species. 16 See Cal. Health & Safety Code §25356.1.5(d); OSWER Directive No. 9355.7-04, 17 Land Use in the CERCLA Remedy Selection Process (EPA 1995) (Ex. 24 to 18 Rutherford Decl.); SUF ¶80. 19 By contrast, SB 990 mandates a preordained future land-use assumption— 20 the stricter of suburban residential or agricultural—which bears no relationship to 21 how the land, in fact, is likely to be used. Compare Cal. Health & Safety Code 22 §25359.20(c) with id. §25356.1.5(d) and OSWER Directive No. 9355.7-04; see 23 SUF ¶74 (R. Brausch, DTSC) (“because SB 990 placed an explicit cleanup 24 standard into statute for the site, the normal process which uses a number of 25 considerations to yield a cleanup standard … is not available”). As a practical 26 matter, this counterfactual land-use assumption would require Boeing and the 27 federal government to clean up SSFL to a point that the land could be used for 28 subsistence farming—where full-time residents would obtain all of their food from MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -13- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 20 of 48 Page ID #:3180 1 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 2 the site. SUF ¶81. But no one—not even DTSC—has suggested that SSFL will actually be 3 used as a farm any time in the future, nor is there any basis for such a conclusion. 4 SSFL is currently used for industrial purposes, and Boeing has publicly committed 5 permanently to restrict and dedicate its property at the SSFL site to public use as 6 open space upon completion of a cleanup to suburban-residential standards. SUF 7 ¶84. Moreover, SSFL is located in an area designated for open space use by local 8 land-use authorities under the Ventura County General Plan. SUF ¶85. Thus, not 9 surprisingly, before SB 990 was enacted, DTSC had approved the suburban- 10 residential future land-use assumption for the chemical cleanup at SSFL—a 11 scenario that is more conservative than an open space assumption but still far less 12 onerous than the counterfactual agricultural land-use assumption mandated by SB 13 990. SUF ¶¶74, 78. Likewise, DOE had approved cleanup criteria for radiological 14 contamination based on a suburban-residential land-use assumption and 15 specifically concluded that an agricultural land-use scenario “is not a reasonable 16 scenario for the site.” SUF ¶62. 17 SB 990 also differs from generally applicable law by making it a crime for 18 Boeing (or the federal government) to “sell, lease, sublease, or otherwise transfer 19 land presently, or formerly occupied by the Santa Susana Field Laboratory” until 20 DTSC “certif[ies] that the land has undergone complete remediation pursuant to 21 the most protective standards in” SB 990, Cal. Health & Safety Code 22 §25359.20(d), (e). Given the challenges that SSFL’s geology poses, DTSC has 23 conceded that remediating SSFL groundwater to SB 990 standards could take as 24 long as 50,000 years. SUF ¶86. 25 In enacting SB 990, the legislature made a number of findings in an effort to 26 justify singling out SSFL in this manner and to prevent SB 990 from qualifying as 27 “special” legislation prohibited by the California Constitution. See SB 990 §2. As 28 DTSC’s own 30(b)(6) witness testified, those findings have no bearing on the MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -14- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 21 of 48 Page ID #:3181 1 appropriate future land use assumption for the site. SUF ¶114. The legislative 2 findings, moreover, focus overwhelmingly on the history of federal activity at the 3 site—especially DOE radiological activity—and resulting contamination. Among 4 other things, they describe a series of federal radiological fires and accidents, 5 including “the most famous accident” involving the core-damage incident at 6 DOE’s Sodium Reactor Experiment, and resulting radiological contamination. SB 7 990 §2(c)-(e). The findings also describe federal radiological activities such as the 8 operation of “a plutonium fuel fabrication facility; a uranium carbide fuel 9 fabrication facility; a Hot Lab used for remotely cutting up irradiated nuclear fuel”; 10 and a “sodium burn pit” that became radioactively contaminated. Id. §2(b); SUF 11 ¶¶18, 19. To this day, and despite the enormous efforts that have gone into 12 assessing contamination at the site, DTSC is unable to attribute any radiological 13 contamination at the site to non-federal activity. SUF ¶¶21, 28. The findings also cite other federal activity, such as the “development and 14 15 testing of … rockets, missiles, and munitions”; historical waste disposal practices; 16 resulting chemical contamination “by perchlorate, heavy metals, PCBs, dioxins, 17 volatile organic compounds, and semivolatile organic compounds”; and 18 contamination resulting from the practice of washing off rocket test stands “with 19 TCE, approximately half a million gallons of which were allowed to percolate into 20 the soil and groundwater.” SB 990 §2(a), (g); SUF ¶¶39–43. As with the 21 radiological activity, and after similar characterization efforts, DTSC cannot 22 attribute any existing chemical contamination at the site to non-federal activity. 23 SUF ¶¶45, 50. ARGUMENT 24 25 26 I. SB 990 IS INVALID UNDER THE SUPREMACY CLAUSE SB 990 is invalid under the Supremacy Clause for two independent reasons: 27 it is preempted by the AEA because it regulates in the federally occupied field of 28 nuclear health and safety; and it violates the intergovernmental immunity doctrine MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -15- CASE NO. CV 10-04839-JFW (MANX) 1 because it singles out federal activities and facilities and a federal contractor and 2 lessor for more onerous cleanup standards than those that apply at similarly 3 situated sites throughout the state. These claims are appropriate for resolution on 4 summary judgment because field preemption and intergovernmental immunity are 5 threshold, dispositive legal issues. See Haw. Newspaper Agency v. Bronster, 103 6 F.3d 742, 746 (9th Cir. 1996); Sayles Hydro Assocs. v. Maughan, 985 F.2d 451 7 (9th Cir. 1993). These claims do not turn on how the State has applied the law, but 8 rather on whether it has the authority at all to regulate in this area or impose 9 requirements that discriminate against the federal government or its contractors. 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 22 of 48 Page ID #:3182 The relevant facts, moreover, are not in dispute. 11 A. The Atomic Energy Act Preempts SB 990 12 Few areas of the law are more quintessentially and exclusively federal than 13 the health and safety regulation of the nuclear materials used in or generated as a 14 result of the federal government’s nuclear-research program pursuant to the AEA. 15 Indeed, no court has ever upheld efforts by a state to regulate in this area. SB 990 16 is no exception. 17 18 1. SB 990 Impermissibly Regulates Nuclear Health And Safety Under the Supremacy Clause, federal law trumps state law where a “scheme 19 of federal regulation [is] so pervasive as to make reasonable the inference that 20 Congress left no room for the States to supplement it,” or where federal law 21 “touch[es] a field in which the federal interest is so dominant that the federal 22 system will be assumed to preclude enforcement of state laws on the same 23 subject.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 24 1152, 91 L.Ed. 1447, 1459 (1947). In the context of nuclear regulation, the courts 25 have repeatedly recognized that “the federal government has occupied the entire 26 field of nuclear safety concerns, except the limited powers expressly ceded to the 27 states.” Pac. Gas, 461 U.S. at 212; see English v. Gen. Elec. Co., 496 U.S. 72, 82, 28 110 S. Ct. 2270, 2277, 110 L.Ed. 2d 65, 76 (1990); Silkwood v. Kerr-McGee MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -16- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 23 of 48 Page ID #:3183 1 Corp., 464 U.S. 238, 249, 104 S. Ct. 615, 621-22, 78 L.Ed. 2d 443, 453 (1984). As 2 the Supreme Court has explained, Congress has chosen to occupy the field of 3 nuclear health and safety because of the critical need for uniform standards and 4 federal expertise in this highly sensitive field, as well as the paramount federal 5 interest in protecting national security from nuclear threats. Pac. Gas, 461 U.S. at 6 207; Silkwood, 464 U.S. at 249–50; see also 42 U.S.C. §§2201(b), 5801(a), 7 5801(b), (e). 8 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 This federal occupation of the field of nuclear health and safety is longstanding. Until 1954, the federal government maintained a complete 10 monopoly over not only the regulation of radiological materials, but also the “use, 11 control and ownership” of such materials. Pac. Gas, 461 U.S. at 206; English, 496 12 U.S. at 80. “The federal government’s historic role as the force behind the 13 discovery and utilization of nuclear power,” accordingly, “gives it a longstanding 14 monopoly over all matters nuclear.” Long Island Lighting Co. v. County of Suffolk, 15 628 F. Supp. 654, 662 (E.D.N.Y. 1986). In 1954, Congress passed the AEA, 16 “providing for licensing of private construction, ownership, and operation of 17 commercial nuclear power reactors.” Pac. Gas, 461 U.S. at 207. Congress 18 preserved the federal government’s exclusive regulatory control over “source,” 19 “special nuclear,” and “byproduct” materials (“AEA materials”) by “erect[ing] a 20 complex scheme to promote the civilian development of nuclear energy, while 21 seeking to safeguard the public and the environment from the unpredictable risks 22 of a new technology.” Id. at 194. 23 The AEA thus gave the federal government—initially the Atomic Energy 24 Commission (“AEC”) and subsequently DOE and the NRC—exclusive jurisdiction 25 with respect to two functions: (1) establishing, promoting, and controlling a 26 nationwide program of government-sponsored research into the development of 27 nuclear technology, see 42 U.S.C. §§2051(a), 2052, 2061(b), 2201(b); and 28 (2) regulating the private commercial possession and handling of AEA materials MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -17- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 24 of 48 Page ID #:3184 1 through licensing,7 Pac. Gas, 461 U.S. at 207; see 42 U.S.C. §§2201(b), 2071, 2 2073-78, 2111-14. The AEA directed the AEC to perform both duties “to the 3 maximum extent consistent with the common defense and security and with the 4 health and safety of the public.” 42 U.S.C. §2013(d). “Upon these subjects, no 5 role was left for the states.” Pac. Gas, 461 U.S. at 207.8 6 A state law regulates within the federally occupied field of nuclear health 7 and safety, and thus is preempted, if the state’s asserted purpose for enacting the 8 law is to regulate nuclear health and safety or if the statute in fact affects nuclear 9 health and safety regardless of the legislature’s asserted purpose for the law. 10 English, 496 U.S. at 84; Manning, 527 F.3d at 836. Applying these standards, 11 courts have repeatedly struck down state attempts, like SB 990, to regulate AEA 12 materials for health and safety reasons. See, e.g., Manning, 527 F.3d at 837 (state 13 law preempted because it sought to regulate DOE “radioactive hazardous 14 substances in order to protect health and environmental safety”); Kentucky, 252 15 F.3d at 823 (state attempt to regulate environmental management of DOE-related 16 AEA materials at DOE facility “based on the [state’s] safety and health concerns” 17 preempted by AEA); see also Skull Valley Band of Goshute Indians v. Nielson, 376 18 F.3d 1223, 1246-48 (10th Cir. 2004); Jersey Cent. Power & Light Co. v. Twp. of 19 Lacey, 772 F.2d 1103, 1110-12 (3d Cir. 1985); Brown v. Kerr-McGee Chem. 20 Corp., 767 F.2d 1234, 1240-43 (7th Cir. 1985); Ill. v. Gen. Elec. Co., 683 F.2d 21 7 22 23 24 25 26 27 28 Although the term “Commission” in the AEA still refers to the “Atomic Energy Commission,” 42 U.S.C. §2014(f), the Energy Reorganization Act of 1974 dissolved the AEC and divided its responsibilities between the agency that later became DOE and the NRC. See 42 U.S.C. §§5801-79; id. §§7101, et seq. “The functions originally encompassed by the AEC thus were split, with roles relating to government owned facilities transferred to the DOE and roles relating to the licensing of commercial activities transferred to the NRC.” Adams v. Dole, 927 F.2d 771, 775 (4th Cir. 1991) (emphases added). 8 As described below, Congress subsequently amended the AEA to allow states a role regulating limited aspects of private commercial use of certain radiological materials, but it left no role for the states to regulate any aspect of governmentsponsored nuclear research, reserving that authority exclusively for DOE. MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -18- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 25 of 48 Page ID #:3185 1 206, 214-16 (7th Cir. 1982); N. States Power Co. v. Minn., 447 F.2d 1143, 1147-54 2 (8th Cir. 1971), aff’d, 405 U.S. 1035, 92 S. Ct. 1307, 31 L.Ed. 2d 576 (1972). 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 3 The preempted field of nuclear health and safety includes regulation of the 4 cleanup of AEA materials. For example, in Manning, the Ninth Circuit invalidated 5 a Washington State law that attempted to regulate the cleanup of DOE-related 6 AEA materials for environmental health and safety reasons at DOE’s Hanford 7 facility. 527 F.3d at 831. The Manning court held that the law, which prevented a 8 DOE nuclear facility from obtaining a state hazardous waste permit until the entire 9 facility complied with state cleanup laws, impermissibly regulated in the federally 10 occupied field of nuclear health and safety because it was “intended to regulate 11 both nonradioactive hazardous substances and radioactive hazardous substances in 12 order to protect health and environmental safety.” Id. at 837. The Ninth Circuit 13 held that the law was also preempted because it directly affected DOE’s conduct of 14 its nationwide nuclear program, “trumping DOE decision-making with respect to 15 the cleanup and disposal of AEA radionuclides.” Id. at 840 n.10. In Kentucky, the 16 Sixth Circuit reached a similar conclusion regarding a state law seeking “to impose 17 [permit] conditions to protect human health and the environment” at a DOE 18 uranium-enrichment facility. 252 F.3d at 823. Because the law “represent[ed] an 19 attempt by the [state] to regulate materials covered by the AEA based on the 20 [state’s] safety and health concerns,” it was preempted. Id. 21 For these same reasons, SB 990 must be invalidated. The expressed purpose 22 of SB 990 is “to protect the public health and safety and the environment” by 23 requiring “complete remediation pursuant to the most protective standards.” Cal. 24 Health & Safety Code §25359.20(1)(a), (e) (emphases added). SB 990’s 25 legislative history also evinces an intent to regulate the cleanup of AEA materials 26 for environmental health and safety reasons, citing “various piecemeal cleanups 27 around the SSFL site … undertaken with varying degrees of protective quality” 28 and concerns regarding “inadequate characterization and cleanup” by DOE. SB MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -19- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 26 of 48 Page ID #:3186 1 990 Assembly Floor Analysis 3 (Sept. 1, 2007) (Owens Decl. Ex. 4). The 2 legislative history also details past DOE radiological activity at the site and 3 criticizes DOE’s cleanup, asserting that “the DOE cleanup was not adequately 4 protective of public health,” id. at 4, and explaining that, by placing the cleanup of 5 radiological materials under State authority, “this bill will simply ensure that the 6 SSFL cleanup is done thoroughly and completely to an appropriately protective 7 standard for the community and environment,” SB 990 Hr’g Rep. 5 (June 26, 8 2007) (Owens Decl. Ex. 5). 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 11 12 13 Because SB 990 purports to regulate squarely within the federally occupied field of nuclear health and safety, it is invalid as a matter of law. 2. Authority To Regulate DOE-Related AEA Materials Has Not Been “Expressly Ceded” To The States The sole exception to the AEA’s broad preemptive effect is where authority 14 to regulate certain AEA materials for health and safety purposes has been 15 “expressly ceded to the states.” Pacific Gas, 461 U.S. at 212. But authority to 16 regulate the cleanup of AEA materials related to a DOE nuclear-research program 17 has never been expressly ceded to the states. 18 DTSC previously has argued that the State has authority to enact SB 990 19 under the so-called Agreement State provision of the AEA, which allows the NRC 20 (but not DOE) “to enter into agreements with the Governor of any State providing 21 for discontinuance of [the NRC’s] regulatory authority” to license the private 22 commercial handling and use of certain AEA materials. 42 U.S.C. §2021(b). That 23 authority, however, does not extend to the regulation of the nuclear-research and 24 cleanup activities of DOE or its contractors, which, under the AEA, remain under 25 exclusive federal control. See id. §§2018, 2140(a); Pac. Legal Found. v. State 26 Energy Res. Conserv. & Dev. Comm’n, 659 F.2d 903, 920 n.26 (9th Cir. 1981), 27 aff’d sub nom. Pac. Gas, 461 U.S. 190. 28 First, the NRC cannot delegate authority over DOE prime contractors to MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -20- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 27 of 48 Page ID #:3187 1 Agreement States because DOE—not NRC—possesses exclusive regulatory 2 authority over DOE prime contractors. DOE prime contractors that perform work 3 on behalf of DOE “at a United States Government-owned or controlled site” are 4 therefore exempt from NRC licensing requirements. See 10 C.F.R. §§30.12(a), 5 40.11(a), 70.11(a); see also 42 U.S.C. §§ 2052(a), 2061(b), 2140(a). Accordingly, 6 federal law requires Agreement States to provide corresponding “exemptions for 7 … [p]rime contractors performing work for the DOE at a U.S. Government-owned 8 or controlled sites.” 46 Fed. Reg. at 7540, 7543 (1981).9 Second, under the AEA, DOE has exclusive authority over DOE research 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 10 activities and cleanup of resulting contamination. Indeed, DOE issues orders 11 exclusively governing its environmental cleanup procedures, as well as more 12 general environmental and radiological safety at its sites.10 See NRDC v. NRC, 606 13 F.2d 1261, 1266 (D.C. Cir. 1979); 42 U.S.C. §2121(a)(3). Because the NRC lacks 14 authority over these DOE activities and AEA materials, it cannot delegate any 15 authority over them to Agreement States. Indeed, the NRC’s regulations 16 implementing the Agreement State program establish that states have no regulatory 17 9 18 19 20 21 22 23 24 25 26 27 28 DTSC’s attempt to salvage SB 990 as a valid exercise of NRC Agreement State jurisdiction also fails on the ground that DTSC does not qualify under the NRC regulations. Only states with nuclear regulatory schemes “coordinated and compatible” with federal law may become Agreement States. 42 U.S.C. § 2021(g). Those states must designate an agency with personnel “competen[t] to evaluate various potential radiological hazards” to assume the licensing functions of the NRC. 46 Fed. Reg. at 7542-43. The NRC closely supervises the regulatory activities of its Agreement States, and as a condition of retaining Agreement State status, the designated state agency is required to undergo periodic audits by the NRC. Id. at 7542. But, as DTSC’s 30(b)(6) witness testified, the California Department of Public Health—not DTSC, the agency that administers SB 990—is the state agency designated to assume licensing authority from the NRC. SUF ¶93. And as DTSC has acknowledged, DTSC is not subject to any actual oversight by the NRC. SUF ¶94. 10 See, e.g., DOE Orders 5400.5, Chg. 2, Radiation Protection of the Public & the Env’t, IV-1 (Jan. 7, 1993); 5400.1, Chg. 1, Gen. Envt’l Protection Program (June 29, 1990); 231.1A, Chg. 1, Env’t, Safety, & Health Reporting, 1 (June 6, 2004); 450.1A, Envt’l Protection Program, 1 (June 4, 2008); 435.1, Chg. 1, Radioactive Waste Mgmt., 1 (Jan. 9, 2007). These documents can be found at https://www.directives.doe.gov/directives. MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -21- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 28 of 48 Page ID #:3188 1 authority over DOE activities. See 10 C.F.R. §150.3 (excluding “Government 2 agencies” from definition of “person” subject to state license authority); NRC 3 Procedure SA-500: Jurisdiction Determinations, at 2 (Sept. 25, 2007) (NRC 4 agreement with state “does not transfer regulatory authority to the States over . . . 5 [a]ctivities of Federal Agencies located in Agreement States”), available at 6 http://nrc-stp.ornl.gov/procedures/sa500.pdf; see also Pac. Legal Found., 659 F.2d 7 at 920 n.26; 42 U.S.C. §2018. In enacting SB 990, however, California has purported to regulate the 8 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 cleanup of precisely those DOE-related AEA materials—and Boeing’s 10 performance of that work as a DOE prime contractor—over which neither the 11 NRC nor the State has jurisdiction. Indeed, the legislature cited DOE radiological 12 activity and resulting contamination—as well as perceived deficiencies in DOE’s 13 cleanup procedures—as justification for SB 990’s enactment. See SB 990 §2. 14 DTSC, moreover, cannot identify any private commercial radiological 15 contamination at SSFL, SUF ¶¶ 21, 28; its own 30(b)(6) witness has acknowledged 16 that all of the existing radiological contamination at SSFL is “DOE materials for 17 which we do not have regulatory authority,” SUF ¶21 (emphasis added); and even 18 if there were private radiological contamination, at SSFL, it would be inextricably 19 intermixed with federal contamination, SUF ¶¶29, 30. Therefore, as in Manning 20 and Kentucky—which involved similar state attempts to regulate DOE-related 21 “radioactive hazardous substances in order to protect health and environmental 22 safety,” Manning, 527 F.3d at 837—SB 990 “is preempted because it regulates 23 within the field that is occupied by the AEA,” id. at 836–37.11 24 11 25 26 27 28 Even if regulation of the cleanup of DOE-related AEA materials fell within the scope of authority that the NRC could cede to the State (which it does not), SB 990 would still be preempted. Agreement States are “precluded from playing any role in several significant areas of regulation,” Train v. Colo. Pub. Interest Research Grp., 426 U.S. 1, 17 n.12, 96 S. Ct. 1938, 48 L.Ed. 2d 434 (1976), including the operation of a nuclear reactor and the manufacture of nuclear fuel. See 42 U.S.C. §2021(c)(1). Accordingly, the State lacks authority over AEA materials that result from the operation of nuclear reactors or nuclear fuel manufacturing at SSFL— MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -22- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 29 of 48 Page ID #:3189 1 B. SB 990 Violates The Intergovernmental Immunity Doctrine 2 SB 990 is also invalid because it violates the Supremacy Clause’s command 3 that “the activities of the Federal Government are free from regulation by any 4 state.” Mayo v. United States, 319 U.S. 441, 445, 63 S. Ct. 1137, 1139, 87 L.Ed. 5 1504, 1507 (1943). Under this doctrine of intergovernmental immunity, “states 6 may not directly regulate the Federal Government’s operations or property,” 7 Blackburn v. U.S., 100 F.3d 1426, 1435 (9th Cir. 1996), nor may they 8 “discriminate[] against the Federal Government or those with whom it deals,” 9 North Dakota, 495 U.S. at 437 (emphasis added); see also id. at 444 (Scalia, J., 10 concurring). But the very purpose of SB 990 is to single out SSFL for 11 discriminatory treatment and to regulate directly the manner in which the federal 12 government and Boeing carry out federally defined activities. Because the 13 Supremacy Clause bars this type of discrimination against federal activities and 14 federal contractors, SB 990 cannot stand. 15 16 17 1. A State Law May Not Directly Regulate Or Discriminate Against A Federal Contractor, Lessor, Or A Facility Under the intergovernmental immunity doctrine, a state law is invalid under 18 the Supremacy Clause where it directly regulates a federal program or activity. 19 See Mayo, 319 U.S. at 445; North Dakota, 495 U.S. at 435; U.S. v. New Mexico, 20 455 U.S. 720, 735-36, 102 S. Ct. 1373, 1383, 71 L.Ed. 2d 580, 592 (1982); 21 Johnson v. Maryland, 254 U.S. 51, 56-57, 41 S. Ct. 16, 16, 65 L.Ed. 126, 128-29 22 (1920); McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 430, 4 L.Ed. 579, 607 23 (1819); Blackburn, 100 F.3d at 1435. Intergovernmental immunity thus prevents 24 25 26 27 28 even assuming, in the case of DOE operations, it had authority over them in the first place. The authority to regulate the operation of a nuclear reactor and the manufacture of nuclear fuel necessarily includes the cleanup of radiological contamination resulting from such activity. See, e.g., N. States Power, 447 F.2d at 1149; Missouri v. Westinghouse Elec., LLC, 487 F. Supp. 2d 1076, 1087 (E.D. Mo. 2007); see also 10 C.F.R. §150.15(a)(1)(i). Indeed, at SSFL, such activity was federally regulated either by DOE or by the NRC. SUF ¶¶54, 95. MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -23- CASE NO. CV 10-04839-JFW (MANX) 1 states from applying even generally applicable laws to a federal program if state 2 regulation places anything more than “incidental[]” restriction on a federal 3 program, North Dakota, 495 U.S. at 441, and Congress has not clearly expressly 4 consented to such regulation. See, e.g., Hancock v. Train, 426 U.S. 167, 179, 96 S. 5 Ct. 2006, 2013, 48 L.Ed. 2d 555, 565 (1976); EPA v. Cal. ex rel. State Water Res. 6 Control Bd., 426 U.S. 200, 201-02, 96 S. Ct. 2022, 2023, 48 L.Ed. 2d 578, 581 7 (1976); Mayo, 319 U.S. at 447; Blackburn, 100 F.3d at 1435. This doctrine applies 8 with special force, moreover, where a state law “discriminates against the Federal 9 Government or those with whom it deals.” North Dakota, 495 U.S. at 435. 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 30 of 48 Page ID #:3190 This prohibition on state regulation of federal activity applies equally to 11 regulation of federal contractors, such as Boeing. Because “[t]he sovereign can 12 only act through its agents,” Kentucky ex rel. Hancock v. Ruckelshaus, 497 F.2d 13 1172, 1175 (6th Cir. 1974), aff’d sub nom. Hancock, 426 U.S. 167, state law “must 14 give way” whenever it regulates the federal government’s conduct in a 15 discriminatory manner, regardless of “whether the United States exercises its rights 16 directly or through the use of private persons.” Union Oil Co. v. Minier, 437 F.2d 17 408, 411 (9th Cir. 1970); see Black Hills Power & Light Co. v. Weinberger, 808 18 F.2d 665, 669 & n.4 (8th Cir. 1987). This doctrine thus precludes a state from 19 discriminating against federal contractors and lessors, as well as against the federal 20 government itself. See, e.g., Phillips Chem. Co. v. Dumas Indep. Sch. Dist., 361 21 U.S. 376, 387, 80 S. Ct. 474, 481, 4 L.Ed. 2d 384, 391 (1960); Moses Lake Homes 22 v. Grant Cnty., 365 U.S. 744, 751, 81 S. Ct. 870, 874, 6 L.Ed. 2d 66, 71 (1961) (“If 23 anything is settled in the law, it is that a State may not discriminate against the 24 Federal Government or its lessees.”). 25 Moreover, “[i]t is well settled that the activities of federal installations are 26 shielded by the Supremacy Clause from direct state regulation unless Congress 27 provides ‘clear and unambiguous’ authorization for such regulation.” Goodyear 28 Atomic Corp. v. Miller, 486 U.S. 174, 180, 108 S. Ct. 1704, 1709, 100 L.Ed. 2d MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -24- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 31 of 48 Page ID #:3191 1 158, 168 (1988). That rule applies even where “the facility is operated by a private 2 party under contract with the United States.” Id. (a “federal installation” may be 3 “federally owned or operated”); see also Hancock, 426 U.S. at 180 (invalidating a 4 state clean-air licensing scheme as applied to an AEC nuclear production facility 5 operated by a private contractor). 6 7 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 8 2. SB 990 Directly Regulates And Discriminates Against A Federal Contractor, Lessor, and Facility SB 990 violates these well-established principles. First, SB 990 by its terms 9 directly regulates Boeing, as a federal contractor and lessor, as well as the federal 10 government. See Cal. Health & Safety Code §25359.20(a) (permitting DTSC “to 11 compel” Boeing, DOE, and NASA “to take or pay for appropriate removal or 12 remedial action necessary to protect the public health and safety and the 13 environment at the Santa Susana Field Laboratory site”); id. §25359.20(d) 14 (prohibiting Boeing, DOE, and NASA from transferring SSFL land until SB 990’s 15 requirements are satisfied). 16 Second, SB 990 singles out Boeing, DOE, NASA, and the SSFL site for a 17 cleanup scheme that, in the words of the federal government, applies “solely to the 18 SSFL, is the most restrictive in California, and is more stringent than that required 19 for park use or suburban residential use” under generally applicable law. SUF ¶96. 20 Unlike generally applicable state law, which bases the cleanup standard on the 21 reasonably foreseeable use of the land, SB 990 mandates a particular land use 22 assumption—the stricter of suburban residential or agricultural—without regard to 23 how the land, in fact, is likely to be used. Compare Cal. Health & Safety Code 24 §25356.1.5(d) with id. §25359.20(1)(c); see SUF ¶10. By attempting to require the 25 federal government and Boeing, which has long served as the prime federal 26 contractor and federal lessor at the site, to clean up SSFL to levels suitable for 27 subsistence farming, SB 990 would mandate a cleanup process that is 28 extraordinarily more stringent, expensive and time consuming than the process MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -25- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 32 of 48 Page ID #:3192 1 required under generally applicable law. SUF ¶109. To take one example, by 2 DTSC’s own admission, SB 990 would require the cleanup of one radionuclide of 3 concern, cesium-137, to levels 50 times more stringent than the suburban- 4 residential standard to which Boeing had agreed pre-SB 990, and 2000 times more 5 stringent than would what be required under generally applicable law given 6 SSFL’s reasonably foreseeable use as open space. SUF ¶97. Similarly, SB 990’s 7 prohibition on the transfer of SSFL land until completion of the cleanup is an 8 unprecedented departure from generally applicable law, which contains no such 9 provision. SUF ¶¶14, 96. 10 SB 990 thus treats SSFL, Boeing as both a federal contractor and lessor, and 11 the federal government far less favorably than it treats other contaminated sites and 12 potentially responsible parties — even though, as DTSC has admitted (SUF ¶98), 13 nothing unique about the site or its contamination justifies such disparate 14 treatment. See North Dakota, 495 U.S. at 438 (a state “discriminate[s] against the 15 Federal Government and those with whom it deals [if] it treats someone else better 16 than it treats them”). Indeed, as DTSC’s 30(b)(6) witnesses have admitted, the 17 factors listed in SB 990 that purportedly make SSFL “unique” do not make it 18 unique at all. SUF ¶¶98, 100–103. The same contaminants listed in SB 990 19 §2(g)—“perchlorate, heavy metals, PCBs, dioxins, volatile organic, and 20 semivolatile organic compounds, in addition to radioactivity”—exist at numerous 21 other sites in the State, and in higher concentrations than those present at SSFL. 22 SUF ¶¶99, 102. Many other contaminated sites in the State are even closer than 23 SSFL to major population centers. SUF ¶100. And many other sites in California 24 have become contaminated as a result of similar types of historical operations and 25 waste disposal. SUF ¶102. As DTSC’s 30(b)(6) witnesses admit, the sole basis for 26 subjecting SSFL to more onerous rules than apply elsewhere in the State is thus 27 nothing more than unadulterated politics. SUF ¶103. 28 The legislature’s unsuccessful efforts, moreover, to identify some basis for MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -26- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 33 of 48 Page ID #:3193 1 its disparate treatment of SSFL merely reinforce the conclusion that the statute 2 cannot stand. As noted above, the supposedly “unique circumstances” at SSFL 3 overwhelmingly involve precisely the federal activity and resulting 4 contamination—including, most notably, the 1959 core-damage accident involving 5 a DOE reactor—that the State may not regulate under the Supremacy Clause. It 6 necessarily follows that, because it lacks authority over those activities, the State 7 cannot rely on them to establish a unique state interest. 8 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 3. SB 990 Exceeds Any Congressional Waiver Of Immunity The one exception to the doctrine of intergovernmental immunity is where 10 “Congress provides ‘clear and unambiguous’ authorization for such regulation.” 11 Goodyear Atomic, 486 U.S. at 180. But Congress has provided no such waiver 12 here. As an initial matter, even without regard to the preemptive effect of the 13 AEA, “[n]either the AEA nor any other federal law waives federal immunity from 14 regulation of DOE facilities by states with respect to materials covered by the 15 AEA.” Kentucky, 252 F.3d at 825; see 42 U.S.C. §2018; Pac. Legal Found., 659 16 F.2d at 920 n.26 (under the AEA, states are “not authorized to regulate activities of 17 the [DOE] itself,” even for purposes unrelated to nuclear health and safety). 18 The limited waiver of immunity in the Comprehensive Environmental 19 Response, Compensation, and Liability Act (“CERCLA”), which permits the 20 application of certain state cleanup laws to sites owned or operated by the federal 21 government, see 42 U.S.C. §9620(a)(4), does nothing to overturn the AEA’s 22 preemptive regime. See U.S. v. Manning, 434 F. Supp. 2d 988, 996-97 (E.D. 23 Wash. 2006), aff’d, 527 F.3d 828. And even with respect to the non-AEA 24 contamination at SSFL, SB 990 exceeds the scope of that waiver. Codifying the 25 Supremacy Clause prohibition on state laws that discriminate against federal 26 activities, see Moses Lake Homes, 365 U.S. at 751, the CERCLA waiver “shall not 27 apply to the extent a State law would apply any standard or requirement to such 28 facilities which is more stringent than the standards and requirements applicable to MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -27- CASE NO. CV 10-04839-JFW (MANX) 1 facilities which are not owned or operated by any such department, agency, or 2 instrumentality” 42 U.S.C. §9620(a)(4) (emphases added). This ensures that states 3 will not “single out only Federal facilities by creating special rules for them that 4 are not otherwise applicable to similar situations at private sites, and then expect 5 these rules to be enforceable under Superfund.” 132 Cong. Rec. S28,413 (daily ed. 6 Oct. 3, 1986) (statement of Sen. Stafford). SB 990 is precisely the sort of 7 requirement that falls within this exception to the CERCLA waiver because it 8 singles out SSFL for cleanup requirements “more stringent” than those “applicable 9 to facilities which are not owned or operated” by the United States. 42 U.S.C. 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 34 of 48 Page ID #:3194 11 §9620(a)(4). Nor does the RCRA waiver of immunity, id. §6961, authorize SB 990. As 12 an initial matter, SB 990 was not enacted pursuant to the State’s RCRA authority. 13 See SB 990 §1. Moreover, RCRA cannot justify the application of state law to the 14 cleanup of radiological contamination because RCRA expressly excludes AEA 15 materials from its scope. See 42 U.S.C. §§6903(5), (27); 6905(a); see also 16 Manning, 527 F.3d at 833 n.4. And most fundamentally, RCRA, like CERCLA, 17 does not authorize imposing more stringent cleanup requirements at a federal 18 facility than those that apply elsewhere in the State. Like CERCLA, RCRA’s 19 waiver of immunity allows states to exercise authority over cleanup of federal 20 contamination only “in the same manner, and to the same extent, as any person is 21 subject to such requirements.” 42 U.S.C. §6961(a)(2). 22 C. SB 990 Must Be Struck Down In Its Entirety 23 Because SB 990 unconstitutionally regulates in a federally occupied field 24 and violates the doctrine of intergovernmental immunity, the law must be struck 25 down in its entirety. In prior briefing, DTSC has suggested that SB 990 may 26 survive constitutional challenge at least in part because, in addition to regulating 27 federal contamination and activity, the statute might also regulate purely private 28 commercial activity and contamination (which DTSC cannot identify) in a manner MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -28- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 35 of 48 Page ID #:3195 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 1 not barred by the Supremacy Clause. That contention is meritless. 2 As an initial matter, it is undisputed that, after extensive analysis of the 3 contamination at the site, any private commercial contamination at SSFL would be 4 inextricably intermixed with and/or indistinguishable from the federal 5 contamination that the State may not regulate. SUF ¶¶29, 46, 51. As a result, it is 6 simply not possible to apply SB 990 only to private contamination at the site, and 7 any attempt to do so would be barred by the Supremacy Clause. In Brown, for 8 instance, the Seventh Circuit held that the AEA “preempts a request for a state-law 9 injunction to remove nonradioactive hazards when the nonradioactive and 10 radioactive materials are inseparable.” 767 F.2d at 1236, 1240. Similarly, the 11 Ninth Circuit struck down the entire law in Manning, which unavoidably regulated 12 “the radioactive component of mixed waste, as well as the nonradioactive 13 component, for health and safety reasons.” 527 F.3d at 837–39. And in Kentucky, 14 where the state sought to regulate non-radiological “solid waste [that] may be 15 contaminated with radionuclides,” the Sixth Circuit invalidated the law as a whole. 16 252 F.3d at 823–24; see also Hotel Emps. & Rest. Emps. Int’l Union v. Davis, 981 17 P.2d 990, 1009, 88 Cal. Rptr. 2d 56 (Cal. 1999) (provisions not “functionally” 18 separable). 19 But even if DTSC could identify some commercial contamination at SSFL 20 that is not inextricably intermixed with federal contamination (and it has admitted 21 that it cannot), SB 990 still must be invalidated in its entirety because the essential 22 purpose of the law—the regulation of federal contamination and cleanup 23 activities—cannot stand. When SB 990 was enacted, the legislature recognized 24 that it was extraordinary to single out one of the many contaminated sites in the 25 State for uniquely onerous cleanup requirements. For this reason, and in an effort 26 to avoid the state constitutional prohibition on “special statute[s],” see Cal. Const., 27 Art. IV, §16, the legislature identified the factors that, in its view, rendered SSFL 28 sufficiently unique to justify “special” legislation. See SB 990 §2. As discussed MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -29- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 36 of 48 Page ID #:3196 1 supra, however, the legislature focused on activities that fall far beyond the State’s 2 power to regulate. Under these circumstances, where SB 990’s essential purpose 3 as articulated by the legislature is invalid, there is no basis for applying its uniquely 4 harsh requirements to activities that did not justify—and could not have justified— 5 the law’s enactment in the first place. See Butts v. Merchants & Miners Transp. 6 Co., 230 U.S. 126, 133, 33 S. Ct. 964, 965, 57 L.Ed. 1422, 1425 (1913). 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 7 On top of all of this, even if any private contamination were not inextricably 8 intermixed with the federal contamination, and even if the factors that the 9 legislature relied on in enacting SB 990 could somehow justify its application to 10 purely private commercial contamination, DTSC’s efforts to carve out a portion of 11 SB 990 would still fail because the invalid portion of SB 990 cannot be removed 12 “‘without affecting the wording of any’ of the measure’s ‘other provisions.’” 13 Hotel Emps. & Rest. Emps. Int’l Union, 981 P.2d at 1009. Here, as in Manning, 14 527 F.3d at 840, construing “the remaining sections of [the law] as limited to” 15 private commercial activities or contamination “would require … examin[ing] and 16 rewrit[ing] most of the statute in a vacuum as to how the various provisions were 17 intended to intersect and in a way that would be at odds with the purpose of the 18 statute.” Most significantly, SB 990 expressly mandates procedures that must 19 apply to the site as a whole: “In calculating the risk, the cumulative risk from 20 radiological and chemical contaminants at the site shall be summed.” Cal. Health 21 & Safety Code §25359.20(1)(c) (emphases added). But because application of SB 22 990 to federal contamination is barred by the Supremacy Clause, it is not possible 23 to “sum” the risks for the entire site and to develop “cumulative risk” assessment 24 in any meaningful way. Id.; SUF ¶104. The comprehensive approach to the 25 cleanup mandated by the text of SB 990 cannot be accomplished, and, for this 26 reason too, SB 990 must fail in its entirety. See Manning, 527 F.3d at 840 27 (refusing to “undertake this task of unscrambling the egg.”). 28 Finally, SB 990 cannot be applied only to any purely private contamination MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -30- CASE NO. CV 10-04839-JFW (MANX) 1 at the site without frustrating the legislature’s purpose to bring the cleanup under a 2 single administrative authority. In enacting SB 990, the legislature focused on the 3 perceived failings by DOE—not Boeing, acting in its own capacity—and the desire 4 to “consolidat[e]” the cleanup under one regulator. SB 990 Hr’g Rep. at 5. As one 5 hearing report explained, “[i]t doesn’t make sense to artificially segment the 6 cleanup.” Id. Yet, if SB 990 cannot be applied to DOE cleanup activity, then it is 7 not possible to satisfy SB 990’s purpose of “consolidating the cleanup under 8 DTSC’s authority,” id., and SB 990 must fail in its entirety, see Manning, 527 F.3d 9 at 840; see also Nat’l Broiler Council v. Voss, 44 F.3d 740, 748 (9th Cir. 1994). 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 37 of 48 Page ID #:3197 11 II. SB 990 VIOLATES EQUAL PROTECTION AND DUE PROCESS SB 990 also violates the Equal Protection and Due Process Clauses of the 12 Fourteenth Amendment. To satisfy equal protection and due process, a legislative 13 classification must be supported by a rationale that could “reasonably be viewed to 14 further the asserted purpose.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 591 15 (9th Cir. 2008). Although this inquiry is deferential, courts have a “duty to 16 scrutinize the connection, if any, between the goal of a legislative act and the way 17 in which” the legislature classified individuals to achieve that goal. Silveira v. 18 Lockyer, 312 F.3d 1052, 1088-89 (9th Cir. 2002); see also Brown v. Barry, 710 F. 19 Supp. 352, 355 (D.D.C. 1989). SB 990 cannot satisfy this standard. 20 First, as DTSC has admitted, there is no technical, scientific, or 21 environmental basis to single out SSFL for more onerous cleanup procedures than 22 apply to other contaminated sites in California. SUF ¶105. Rather, the only reason 23 that DTSC can articulate for singling out SSFL is a political one. SUF ¶103. As 24 one of DTSC’s own 30(b)(6) witnesses explained, SSFL is “a site that has had very 25 high political visibility for 10 to 20 years,” and SB 990 is simply the product of 26 “the activists’ involvement there.” SUF ¶103 (L.R. Greger). Or, as another of 27 DTSC’s 30(b)(6) witnesses—the SSFL Project Director—testified: “Q. Other than 28 the community perception issue which you identified, am I correct that you cannot MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -31- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 38 of 48 Page ID #:3198 1 identify any other reason for treating the SSFL site differently than any other site 2 in the State? … [A.] Correct.” SUF ¶103 (R. Brausch). The Supreme Court has 3 made clear that “mere negative attitudes, or fear, … are not permissible bases” for 4 treating similarly situated groups differently. City of Cleburne, 473 U.S. at 448. A 5 legislature may not simply “defer[] to the wishes or objections of some fraction of 6 the body politic.” Id. “[N]othing opens the door to arbitrary action so effectively 7 as to allow those officials to pick and choose only a few to whom they will apply 8 legislation and thus to escape the political retribution that might be visited upon 9 them if larger numbers were affected.” Ry. Express Agency, Inc. v. New York, 336 10 U.S. 106, 112, 69 S.Ct. 463, 468, 93 L.Ed. 533, 540 (1949) (Jackson, J., 11 concurring). 12 Second, even if DTSC attempted to justify SB 990 on health and safety 13 grounds, the law would still be unconstitutional because it embodies a 14 classification that is not rationally related to that interest. See Lazy Y Ranch, 546 15 F.3d at 590–91 (“even the standard of rationality … must find some footing in the 16 realities of the subject addressed by the legislation”). SB 990 singles out SSFL and 17 Boeing for vastly more onerous cleanup rules than those required under generally 18 applicable law even though the site does not differ in any meaningful respect from 19 other contaminated sites in the State. See Nordlinger v. Hahn, 505 U.S. 1, 10, 112 20 S.Ct. 2326, 2331, 120 L.Ed.2d 1, 12 (1992) (“The Equal Protection Clause … 21 keeps governmental decisionmakers from treating differently persons who are in 22 all relevant respects alike.”); Allegheny Pittsburgh Coal Co. v. C’nty Comm’n of 23 Webster C’nty, 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989); Merrifield v. 24 Lockyer, 547 F.3d 978 (9th Cir. 2008); Lazy Y Ranch, 546 F.3d at 590–91. 25 DTSC has admitted that SSFL does not differ from similarly situated sites in 26 a manner that would justify the application of more stringent cleanup rules. SUF 27 ¶¶98–102; 105–108. Nor do the legislative findings in SB 990 justify such 28 disparate treatment; indeed, DTSC’s own 30(b)(6) witness admitted that the MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -32- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 39 of 48 Page ID #:3199 1 findings bear no relationship to the appropriate cleanup procedures to be applied at 2 the site. SUF ¶¶105, 114. The legislature cited, for example, SSFL’s proximity to 3 a major population center, SB 990 §2(a), but DTSC has admitted that many other 4 contaminated sites in California are close to large cities, SUF ¶100, and that 5 proximity to a population center does not determine a site’s reasonably foreseeable 6 land use, SUF ¶101. The legislature also detailed the types of contamination 7 present at SSFL, including “perchlorate, heavy metals, PCBs, dioxins, volatile 8 organic, and semivolatile organic compounds, in addition to radioactivity.” SB 9 990 §2(g). But these contaminants do not make SSFL unique; as DTSC’s 30(b)(6) 10 witnesses have admitted, they are commonly found at other sites in California— 11 and in many places at higher concentrations. SUF ¶¶99, 106–108. 12 For example, McClellan Air Force Base, roughly the same size as SSFL, is 13 seven miles from Sacramento and is contaminated with all of the same 14 contaminants listed in SB 990, many in higher concentrations, including TCE. 15 SUF ¶106. Similarly, Lawrence Livermore National Laboratory, more than twice 16 the size of SSFL, is 48 miles from San Francisco. SUF ¶107. A DOE laboratory 17 used for nuclear weapons and other research, Lawrence Livermore is also 18 contaminated with all of the same contaminants listed in SB 990. Among other 19 things, the site has had higher historical concentrations of TCE and tritium than 20 SSFL. SUF ¶107. And the Pratt & Whitney/UTC site, twice as large as SSFL, is 21 14 miles south of San Jose and was formerly used for the manufacture and testing 22 of rocket engines, including the development, manufacturing, and testing of solid 23 propellant rocket motors and propellants. SUF ¶108. The site has many of the 24 same contaminants as SSFL and has had higher historical concentrations of key 25 contaminants, including TCE and perchlorate. SUF ¶108. 26 Third, SB 990 infringes on Boeing’s property rights and imposes significant 27 burdens without furthering public health and safety. Application of SB 990’s 28 arbitrary assumption of future agricultural land use will result in a substantially MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -33- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 40 of 48 Page ID #:3200 1 more burdensome, time consuming, and expensive cleanup process than that 2 required under generally applicable law. It will result in years of delay in the 3 cleanup schedule and will increase cleanup costs (which will be allocated between 4 Boeing and the federal government) by hundreds of millions of dollars. SUF ¶109. 5 DTSC has admitted that remediation of the groundwater alone to these 6 specifications could take as long as 50,000 years, SUF ¶86. Yet the statute bars 7 Boeing from transferring or even leasing the land—that is, from exercising its core 8 property rights—until the cleanup is complete. 9 Moreover, DTSC has admitted that SB 990 could result in significant 10 adverse consequences, while acknowledging that the State has not performed the 11 analysis necessary reasonably to conclude that SB 990 provides any net benefit to 12 public health and safety. SUF ¶110. As DTSC has acknowledged, for example, 13 SB 990’s stringent cleanup rules will require a substantial amount of additional soil 14 to be removed from the site than that required under generally applicable law. 15 SUF ¶111. Soil removal on a scale necessary to comply with SB 990 would 16 require numerous additional dump-truck round trips through the community, 17 greatly increasing the risk of traffic deaths and illness from pollution by diesel 18 particulates. SUF ¶112. Such excavation activities will also destroy considerably 19 more of the existing ecological habitat at SSFL than would otherwise occur. SUF 20 ¶113. But the State has made no attempt to determine whether any potential 21 benefit SB 990’s cleanup procedures might have on public health and safety would 22 outweigh these significant potential adverse consequences. 23 Finally, SB 990 retrospectively imposes these onerous requirements based 24 on legislative findings regarding past activity at the site, and, indeed, focuses on 25 activity that occurred approximately a half-century ago. See SB 990 §2. Such 26 retrospective legislation is disfavored because of the “legislative ‘tempt[ation] to 27 use retroactive legislation as a means of retribution against unpopular groups or 28 individuals.’” E. Enters. v. Apfel, 524 U.S. 498, 548 118 S.Ct. 2131, 2159, 141 MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -34- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 41 of 48 Page ID #:3201 1 L.Ed.2d 451, 487 (1998) (Kennedy, J., concurring) (quoting Landgraf v. USI Film 2 Prods., 511 U.S. 244, 266, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229, 253 (1994)). It 3 is settled that “[t]he retrospective aspects of legislation, as well as the prospective 4 aspects, must meet the test of due process, and the justifications for the latter may 5 not suffice for the former.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16- 6 17, 96 S.Ct. 2882, 2893, 49 L.Ed.2d 752, 767 (1976); accord, U.S. v. Carlton, 512 7 U.S. 26, 31, 114 S.Ct. 2018, 129 L.Ed.2d 22, 28 (1994). 8 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 Here, the past activity cited in SB 990 as a justification for the law—most of which occurred many decades ago—is wholly unrelated to the cleanup rules 10 applied at SSFL today. As DTSC has admitted, the method by which 11 contamination was released into the environment at a particular site has no 12 relevance to the appropriate assumption of future land use or the amount of 13 residual contamination that can safely remain at that site at the end of the cleanup. 14 SUF ¶114. Furthermore, the legislature relied on activities over which it has no 15 authority to regulate. The legislative findings offered as justification for SB 990 16 describe activity and resulting contamination that was overwhelmingly federal— 17 including DOE nuclear-research activities and related accidents, the 1959 Sodium 18 Reactor Experiment accident, fires at the Hot Laboratory, federal rocket testing, 19 and historical disposal practices. SB 990 §2(b)-(g); SUF ¶¶14–19, 21, 31–43, 48– 20 49. For the reasons discussed above, the Supremacy Clause bars state regulation of 21 those activities and their remediation, and thus they cannot provide a rational basis 22 for imposing on Boeing the onerous requirements mandated by SB 990. CONCLUSION 23 24 For the foregoing reasons, summary judgment should be entered for Boeing. 25 Respectfully submitted, 26 /s/ Randolph D. Moss Randolph D. Moss 27 28 Dated: February 28, 2011 MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -35- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 42 of 48 Page ID #:3202 1 WILMER CUTLER PICKERING HALE AND DORR LLP Brian R. Michael (SBN: 240560) brian.michael@wilmerhale.com 350 South Grand Avenue Los Angeles, California 90071 Telephone: (213) 443-5374 Facsimile: (213) 443-5400 2 3 4 5 6 WILMER CUTLER PICKERING HALE AND DORR LLP Seth P. Waxman (Pro Hac Vice) seth.waxman@wilmerhale.com Randolph D. Moss (Pro Hac Vice) randolph.moss@wilmerhale.com Carl J. Nichols (Pro Hac Vice) carl.nichols@wilmerhale.com Annie L. Owens (Pro Hac Vice) annie.owens@wilmerhale.com 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 Telephone: (202) 663-6000 Facsimile: (202) 663-6363 7 8 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 9 11 12 13 THE BOEING COMPANY Steven W. Horton (Pro Hac Vice) steven.w.horton@boeing.com J. Steven Rogers (Pro Hac Vice) steven.rogers@boeing.com Steven E. Rusak (Pro Hac Vice) steven.e.rusak@boeing.com P.O. Box 3707 MC 7A-XP Seattle, Washington 98124 Telephone: (425) 865-1074 Facsimile: (425) 865-7998 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -36- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 43 of 48 Page ID #:3203 1 APPENDIX A 2 List of Acronyms 3 AEA Atomic Energy Act of 1954 4 AEC Atomic Energy Commission 5 AOC Administrative Order on Consent 6 CERCLA Comprehensive Environmental Response, Compensation, and 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 7 Liability Act 8 CEQA California Environmental Quality Act 9 DOE U.S. Department of Energy 10 DTSC California Department of Toxic Substances Control 11 EPA U.S. Environmental Protection Agency 12 NASA National Aeronautics and Space Administration 13 NEPA National Environmental Policy Act of 1969 14 NRC Nuclear Regulatory Commission 15 OSWER EPA Office of Solid Waste and Emergency Response 16 RCRA Resource Conservation and Recovery Act of 1976 17 SB 990 California Senate Bill 990 18 SSFL Santa Susana Field Laboratory 19 SUF Statement of Uncontroverted Facts 20 TCE Trichloroethylene 21 22 23 24 25 26 27 28 MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -1- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 44 of 48 Page ID #:3204 1 APPENDIX B 2 California Senate Bill 990 3 CHAPTER 729 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 4 An act to add Article 5.5 (commencing with Section 25359.20) to Chapter 5 6.8 of Division 20, of the Health and Safety Code, relating to hazardous 6 waste. 7 [Approved by Governor October 14, 2007. 8 Filed with Secretary of State October 14, 2007.] 9 LEGISLATIVE COUNSEL’S DIGEST 10 SB 990, Kuehl. Hazardous waste: Santa Susana Field Laboratory. 11 (1) Existing law charges the Director of Toxic Substances Control with 12 oversight over hazardous waste control in the state. A violation of the hazardous 13 waste control laws is a crime. 14 This bill would authorize the Department of Toxic Substances Control to 15 compel a responsible party or parties to take or pay for appropriate removal or 16 remediation action, as prescribed, necessary to protect public health and safety and 17 the environment at the Santa Susana Field Laboratory site in Ventura County. The 18 sale, lease, sublease, or other transfer of any land presently or formerly occupied 19 by the Santa Susana Field Laboratory would be prohibited unless the Director of 20 Toxic Substances Control certifies that the land has undergone complete 21 remediation pursuant to specified protective standards. 22 23 24 Because a violation of this bill’s requirements would be a crime, the bill would impose a state-mandated local program. (2) The California Constitution requires the state to reimburse local agencies 25 and school districts for certain costs mandated by the state. Statutory provisions 26 establish procedures for making that reimbursement. 27 28 This bill would provide that no reimbursement is required by this act for a specified reason. MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -1- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 45 of 48 Page ID #:3205 1 The people of the State of California do enact as follows: 2 SECTION 1. Article 5.5 (commencing with Section 25359.20) is added to 3 Chapter 6.8 of Division 20 of the Health and Safety Code, to read: Article 5.5. Cleanup of Santa Susana Field Laboratory 4 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 5 25359.20. (a) Notwithstanding paragraph (1) of subdivision (b) of Section 6 25187 of the Health and Safety Code, the department may use any legal remedies 7 available pursuant to Chapter 6.8 (commencing with Section 25300) or Chapter 6.5 8 (commencing with Section 25100) to compel a responsible party or parties to take 9 or pay for appropriate removal or remedial action necessary to protect the public 10 health and safety and the environment at the Santa Susana Field Laboratory site in 11 Ventura County. 12 (b) A response action taken or approved at the Santa Susana Field 13 Laboratory site shall be conducted in accordance with the provisions of this 14 chapter. 15 (c) A response action taken or approved pursuant to this chapter for the 16 Santa Susana Field Laboratory site shall be based upon, and be no less stringent 17 than, the provisions of Section 25356.1.5. In calculating the risk, the cumulative 18 risk from radiological and chemical contaminants at the site shall be summed, and 19 the land use assumption shall be either suburban residential or rural residential 20 (agricultural), whichever produces the lower permissible residual concentration for 21 each contaminant. In the case of radioactive contamination, the department shall 22 use as its risk range point of departure the concentrations in the Preliminary 23 Remediation Goals issued by the Superfund Office of the United States 24 Environmental Protection Agency in effect as of January 1, 2007. 25 (d) Notwithstanding any other provision of law regarding transfers of land, 26 no person or entity shall sell, lease, sublease, or otherwise transfer land presently, 27 or formerly occupied by the Santa Susana Field Laboratory, except as provided in 28 subdivision (e). MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -2- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 46 of 48 Page ID #:3206 (e) As a condition for a sale, lease, sublease, or transfer of land presently or 1 2 formerly occupied by the Santa Susana Field Laboratory, the Director of the 3 Department of Toxic Substances Control or his or her designee shall certify that 4 the land has undergone complete remediation pursuant to the most protective 5 standards in subdivisions (a) to (c), inclusive. SEC. 2. The Legislature finds and declares that due to the following unique 7 circumstances regarding the former Santa Susana Field Laboratory, a general 8 statute cannot be made applicable within the meaning of Section 16 of Article IV 9 of the California Constitution. (a) Founded in late 1940s, the Santa Susana Field Laboratory (SSFL) was a 10 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP 6 11 facility dedicated to the development and testing of nuclear reactors, rockets, 12 missiles, and munitions. The location of SSFL was chosen for its remoteness in 13 order to conduct work that was considered too dangerous to be performed in more 14 densely populated areas. In subsequent years, however, southern California’s 15 population has mushroomed. Today, more than 150,000 people live within five 16 miles of the facility, and at least half a million people live within 10 miles. 17 (b) Throughout the years, approximately 10 nuclear reactors were operated 18 at SSFL, in addition to several “critical facilities” (low power reactors); a sodium 19 burn pit in which sodium-coated radioactively contaminated objects were burned 20 in an open pit; a plutonium fuel fabrication facility; a uranium carbide fuel 21 fabrication facility; and a Hot Lab used for remotely cutting up irradiated nuclear 22 fuel. 23 (c) The Hot Lab suffered a number of fires involving radioactive materials 24 and at least four of the 10 nuclear reactors suffered accidents, including a partial 25 meltdown. (d) The reactors located on the grounds of SSFL were considered 26 experimental, and, therefore, had no containment structures. Reactors and highly 27 radioactive components were housed without the large concrete domes surrounding 28 modern power reactors. MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -3- CASE NO. CV 10-04839-JFW (MANX) Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 47 of 48 Page ID #:3207 1 2 Reactor Experiment (SRE) experienced a partial core meltdown releasing 3 radioactive gasses and particles into the atmosphere over a period of weeks. Recent 4 studies have concluded that this accident may have caused hundreds of cancer 5 cases in the Los Angeles area. 350 South Grand Avenue Los Angeles, California 90071 6 Wilmer Cutler Pickering Hale and Dorr LLP (e) The most famous accident occurred in July of 1959, when the Sodium (f) One of the disposal procedures at the site in the 1950s and 1960s would 7 consist of workers disposing of barrels filled with highly toxic substances by 8 shooting the barrels at a distance with shotguns, so that they would explode and 9 burn, releasing some of their contents in the form of gasses and particulates into 10 the air. In the mid-1990s a similar practice involving the illegal disposal by open 11 air burning led to the death of two workers at the facility. 12 (g) Additionally, large amounts of toxic chemicals were released into the 13 soil, air, and groundwater and surface water. For example, the rocket test stands 14 were routinely washed off with TCE, approximately half a million gallons of 15 which were allowed to percolate into the soil and groundwater. Significant 16 contamination exists by perchlorate, heavy metals, PCBs, dioxins, volatile organic, 17 and semivolatile organic compounds, in addition to radioactivity. 18 (h) In 1989, the United States Department of Energy (DOE) found 19 widespread chemical and radioactive contamination at the site, and a cleanup 20 program commenced. In 1995 the United States Environmental Protection Agency 21 (EPA) and DOE announced that they had entered into a Joint Policy Agreement to 22 assure that all DOE sites would be cleaned up to standards consistent with EPA’s 23 Comprehensive Environmental Response, Compensation, and Liability Act 24 (CERCLA) standards, also known as Superfund. Those standards would have 25 required a full characterization of the site and cleanup of the remaining 26 contamination to standards deemed protective by EPA. In 2003, DOE declined to 27 follow the 1995 Joint Policy and chose to instead rely on less protective cleanup 28 standards. EPA declared that under the circumstances the site would not be safe for MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -4- CASE NO. CV 10-04839-JFW (MANX) 350 South Grand Avenue Los Angeles, California 90071 Wilmer Cutler Pickering Hale and Dorr LLP Case 2:10-cv-04839-JFW-MAN Document 112 Filed 02/28/11 Page 48 of 48 Page ID #:3208 1 unrestricted release but only for day hikes with restrictions on picnicking; 2 however, DOE continues to insist upon unrestricted release despite the use of 3 sitewide cleanup standards not in keeping with the 1995 Joint Policy and EPA 4 CERCLA guidance. 5 SEC. 3. No reimbursement is required by this act pursuant to Section 6 of 6 Article XIII B of the California Constitution because the only costs that may be 7 incurred by a local agency or school district will be incurred because this act 8 creates a new crime or infraction, eliminates a crime or infraction, or changes the 9 penalty for a crime or infraction, within the meaning of Section 17556 of the 10 Government Code, or changes the definition of a crime within the meaning of 11 Section 6 of Article XIII B of the California Constitution. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF PLAINTIFF THE BOEING COMPANY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -5- CASE NO. CV 10-04839-JFW (MANX)