STATE OF CALIFORNIA
ENVIRONMENTAL PROTECTION AGENCY
DEPARTMENT OF TOXIC SUBSTANCES CONTROL
In the Matter of:
Santa Susana Field Laboratory
Simi Hills
Ventura County, California
CAD000629972 (Boeing/DOE)
CA3890090001 (Boeing/DOE)

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The United States Department of Energy )
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(Respondent)

Docket No. HSA-CO 10/11 - 037
ADMINISTRATIVE ORDER ON
CONSENT FOR REMEDIAL ACTION

Health and Safety Code Sections
25355.5(a)(1)(B), 58009 and 58010

1.0. INTRODUCTION
1.1. Parties. The California Department of Toxic Substances Control (“DTSC”)
and the United States Department of Energy, a federal agency (“DOE” or “Respondent”)
(collectively “The Parties”) enter into the following Administrative Order on Consent
(“Order”).
1.2. Site. This Order applies to two portions of the Santa Susana Field
Laboratory Site (“SSFL”) known as Area IV and the Northern Buffer Zone, hereinafter
referred to as the “Site.” The entirety of SSFL is located in the Simi Hills in
southeastern Ventura County, as shown in Attachment A. The Simi Hills are bordered
to the east by the San Fernando Valley and to the north by the Simi Valley. The SSFL
is located approximately three miles south of the San Fernando Valley Freeway (118)
and approximately five miles north of the Ventura Freeway (101).

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 1.3. Authority of DTSC. DTSC issues this Order under the provisions of Section
25355.5(a)(1)(B) of the California Health and Safety Code, and pursuant to DTSC’s
general grant of authority in Sections 58009 and 58010 of the California Health and
Safety Code.
1.4. Authority of the Respondent. DOE is entering into its obligations in this Order
pursuant to its authority under the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq.
1.5. Consent Order for Corrective Action (2007).
1.5.1. This Order shall not in any way operate to modify, amend or nullify the
obligations of the Parties under the 2007 Consent Order for Corrective Action
(Department Docket No. P3-07/08-003, hereinafter “2007 Order”), entered into by
DTSC, DOE, the National Aeronautics and Space Administration (“NASA”), and The
Boeing Company (“Boeing”). The purpose of this Order is to further define and make
more specific DOE’s obligations with respect to only the cleanup of soils at the Site.
Compliance with and fulfillment of this Order shall, upon completion, satisfy DOE’s
responsibilities regarding soils at the Site and DOE’s obligations and responsibilities in
this Order supersede the 2007 Order requirements pertaining to soils cleanup. The
2007 Order requirements pertaining to DOE for soils contamination at the Site shall not
be applied to DOE. All other provisions of the 2007 Order remain in effect as to DOE,
including provisions relating to ground water contamination and soil vapor emanating
from groundwater, and shall remain in full force and effect. All provisions of the 2007
Order applicable to NASA and Boeing are not affected by the provisions of this Order in
any way.

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 1.5.2. With respect to groundwater, utilizing the authority of this Order, the
procedures of the 2007 Order will be applied to the investigation, characterization and
remediation of any radiological contaminants that may have impacted groundwater. The
investigation, characterization and remediation of groundwater conducted under the
procedures of the 2007 Order shall, to the extent practicable, be coordinated with
activities conducted under this Order.
1.6. Compliance with State Law. DTSC agrees that compliance with this Order
and the 2007 Order shall constitute DOE’s full and complete compliance with all
applicable provisions of Chapters 6.5 and 6.8 of Division 20 of the California Health and
Safety Code (the California Hazardous Waste Control Law, Sections 25100 et seq. of
that Code, and the California Hazardous Substances Account Act, Sections 25300 et
seq. of that Code), including specifically, but not limited to, California Senate Bill 990
(Stats. 2007, c. 729), which has been codified as Section 25359.20 of the California
Health and Safety Code, but only with respect to the application of these provisions to
radiologic or chemical contamination of soil at the Site or any contiguous radiologic or
chemical contamination of soil emanating from within Area IV or the Northern Buffer
Zone, within or without the SSFL boundaries, identified by EPA in its radiologic
characterization survey or by DTSC as part of the investigation of chemical
contaminants.
1.7. Agreement in Principle. On September 3, 2010, the Parties agreed to a
Joint Settlement Framework in a document entitled “Final Agreement in Principle” (AIP),
which is incorporated as Attachment B. The Parties agree that DOE’s cleanup

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 obligations with respect to soil contamination at the Site shall be conducted in
accordance with and be governed by the AIP, as further defined in this Order.
1.8. Definition of Terms. In addition to the definition of terms in Section 1.4 of the
2007 Order, the following terms shall be defined as specified:
1.8.1. “Cleanup of soils” shall mean the cleanup of soils that contain chemical
and/or radiological contaminants in or on soils above their respective cleanup standards
as specified in the AIP. “Cleanup of soils” does not include the cleanup of volatile
organic contaminants that are found in the groundwater or in the soil or bedrock below
the groundwater level, nor does it include the cleanup of volatile organic contaminants
that emanate from groundwater contaminated with volatile organic contaminants that
migrate into and through the saturated and unsaturated soil and bedrock at the Site.
1.8.2. “Cleanup to Background Levels” means removal of soils contaminated
above local background levels.
1.8.2.1. “Cleanup to Background Levels” shall include in situ or other onsite
treatment of soils that is able to achieve the cleanup standards as specified in the AIP.
1.8.2.2. “Cleanup to Background Levels” does not include “leave in place”
alternatives.
1.8.2.3. “Cleanup to Background Levels” does not include onsite burial or
landfilling of contaminated soil.
1.8.3. “Detection Limits” means the following:
1.8.3.1. For chemical contaminants, “detection limit” means method reporting
limit (or MRL), which is the lowest concentrations at which an analyte can be confidently

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 detected in a sample and its concentration can be reported with a reasonable degree of
accuracy and precision.
1.8.3.2. For radiological contaminants, “detection limit” means minimum
detectable activity (or MDA), which is defined as the smallest amount of activity that can
be quantified for comparison with regulatory limits.
1.8.4. “Soils” shall mean saturated and unsaturated soil, sediment, and
weathered bedrock, debris, structures, and other anthropogenic materials. “Soils” does
not include surface water, groundwater, air, or biota.

2.0. WORK TO BE PERFORMED
2.1. Remediation Standard. The cleanup of soils at the Site shall result in the
end state of the Site after cleanup being consistent with “background” (i.e., at the
completion of the cleanup, no contaminants shall remain in the soil above local
background levels, with the exception of the exercise of the exemptions that are
specifically expressed in the AIP). All response actions taken pursuant to this Order
shall be performed so as to achieve this standard, in full compliance with the terms and
conditions detailed in the AIP, in accordance with workplans that have been submitted
to and approved by DTSC, and focused on those areas where U.S.EPA, in the course
of conducting its radiological characterization survey, has determined that onsite
radiological contaminant levels, or offsite areas of contiguous contamination that
emanates from within the Site, exceed local background levels and where DTSC, in the
course of overseeing and approving the chemical contaminant investigation work, has

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 determined that onsite chemical contaminant levels, or offsite areas of contiguous
contamination that emanates from within the Site, exceed local background levels.
2.2. Investigation and Remediation Areas. As a result of previously conducted
assessments performed under the authority of the Resource Conservation and
Recovery Act (RCRA) and the State Hazardous Waste Control Law, the Site has been
divided into areas separately and uniquely named. The activities being conducted
under the provisions of this Order are being conducted under the requirements in
Chapter 6.8 of the California Health and Safety Code. However, the names of those
areas and the geographic descriptions and boundaries of those areas are to be retained
for the sake of continuity.
(a)

RFI Group 5

(b)

RFI Group 6

(c)

RFI Group 7

(d)

RFI Group 8

(e)

Northern Buffer Zone

Some of these RFI Group areas may contain areas outside of the Site. For purposes of
this Order, except as provided in the AIP (which describes DOE’s commitment to
remediate the areal extent of any contiguous radiologic or chemical contamination of
soil that emanates from within the Site), DOE’s responsibilities regarding these RFI
groups are limited to only those areas of the RFI Groups that are within the Site.
2.3. Building Demolition Activities
2.3.1. Within 30 days of receiving relief from the terms of the judgment in United
States District Court for the Northern District of California entitled Natural Resources

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 Defense Council, Inc., Committee to Bridge the Gap, and City of Los Angeles v.
Department of Energy, et al. (“NRDC v. DOE”), Case No. C-04-04448 SC, so as to
allow the work under this Order to be performed, as described in Section 6.0 of this
Order, DOE shall submit to DTSC for its review and approval a demolition plan,
demolition schedule and detailed procedure that describe the activities that DOE shall
perform to sample and characterize DOE’s remaining buildings to determine whether
they are contaminated with radiological or chemical contaminants, and to determine
appropriate handling methods for managing and disposing of demolition debris. DOE
shall request U.S. EPA’s assistance in reviewing the procedures for the assessment of
the structures and debris for radiological contaminants.
2.3.2. DOE shall make every effort to gain The Boeing Company’s cooperation
and approval in removing the buildings at the Site that remain under the ownership and
control of The Boeing Company.
2.3.3. To the extent DOE is unable to remove, or arrange with Boeing to remove,
the buildings at the Site that remain under the ownership and control of Boeing , DOE’s
obligations under this Order related to soils beneath those buildings shall be stayed,
and DOE shall retain the responsibilities for the soils beneath those buildings that are
described in this Order until such time as the buildings have been removed and the soils
beneath them can be accessed, assessed and remediated as necessary.
2.4. Radiological Investigation Activities. U.S. EPA is conducting a Radiological
Background Study and a Radiological Characterization Survey of the Site as part of the
activities it is conducting pursuant to HR 2764, P.L. 110-161, work which is being
funded pursuant to an Interagency Agreement entered between DOE and U.S. EPA.

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 The result of U.S.EPA’s efforts will be a report on the presence of radiological
contamination at the Site. Nothing in this Order is intended to modify or amend the
activities that are being conducted by U.S. EPA under that Interagency Agreement. As
part of its survey and characterization efforts, U.S. EPA will be conducting sampling of
soil and other environmental media in accordance with the project plan and description
prepared by the U.S. EPA.
2.5. Chemical Investigation Activities
2.5.1. Phase 1: Co-Located Samples. In conjunction with samples collected by
U.S. EPA for radiological analyses during its first phase of sampling, at every location
where U.S. EPA collects a sample for radiological analyses, DOE shall cause to be
taken a similar sample from the same or proximate locations. Those samples shall be
provided to DTSC or its designee, and DTSC or its designee shall submit the samples
for necessary chemical analyses.
2.5.2. Phase 2: Co-Located Samples from Random Locations. In conjunction
with samples collected from randomly selected locations by U.S. EPA for radiological
analyses during its second phase of sampling, at every location where U.S. EPA
collects a random sample for radiological analyses, DOE shall cause to be taken a
similar sample from the same or proximate locations. Those samples shall be provided
to DTSC or its designee, and DTSC or its designee shall submit the samples for
necessary chemical analyses.
2.5.3. Phase 3. Chemical Data Gap Investigation.
2.5.3.1. Schedule for Chemical Data Gap Investigation. Within 30 days of the
completion of the activities described in Sections 2.4 and 2.5.1 and 2.5.2, DOE shall

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 submit to DTSC a schedule for the completion of a Chemical Data Gap Investigation.
The Chemical Data Gap Investigation may be conducted in one or more phases to
focus sampling efforts and increase the efficiency of the investigation. DOE shall make
every effort to complete its Chemical Data Gap Investigation and produce the Chemical
Data Summary described in Section 2.7 at the same time that U.S. EPA delivers the
results of its radiological survey and characterization efforts.
2.5.3.2. Chemical Data Gap Scoping. Prior to the preparation of a Chemical
Data Gap Investigation Workplan, DOE and DTSC shall meet to determine the scope of
the Chemical Data Gap Investigation. In determining the scope, DOE and DTSC shall
evaluate the results from the Phase 1 Co-Located sampling effort, the results from the
Phase 2 Co-Located sampling effort, the results of U.S EPA’s radiological survey and
characterization efforts, the data and information presented in the previously submitted
RFI reports and RFI workplans, and any available historical Site data. This scoping
effort shall be used to determine the locations at the Site where insufficient chemical
data exists and additional chemical investigation is necessary.
2.5.3.3. Chemical Data Gap Investigation Workplan. Based on the Chemical
Data Gap Scoping in Section 2.5.3.2, DOE shall prepare and submit to DTSC for its
review and approval a detailed Chemical Data Gap Investigation Workplan.
2.5.3.4. To the extent that any of the activities described in Sections 2.4 and
2.5.1 and 2.5.2 are completed for any area within the Site prior to the completion of the
remainder of the activities described in Sections 2.4 and 2.5.1 and 2.5.2, for the entirety
of the Site, DOE may propose to conduct Chemical Data Gap Investigation activities,
and to prepare Chemical Data Gap Investigation Workplan(s), for specific areas within

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 the Site, rather than a single, encompassing Chemical Data Gap Investigation Workplan
for the entire Site.
2.5.3.5. Chemical Data Gap Investigation Workplan Implementation. Upon
DTSC’s approval, DOE shall implement the approved Chemical Data Gap Investigation
Workplan under DTSC’s oversight.
2.5.3.6. Chemical Data Gap Investigation Workplan Revisions. If DOE proposes
to modify any methods or initiates new activities for which no Field Sampling Plan,
Quality Assurance Project Plan, Health and Safety Plan or other necessary
procedures/plans have been established, DOE shall prepare an addendum to the
approved plan(s) for DTSC review and approval prior to modifying the method or
initiating new activities.
2.5.4. Any chemical investigation workplans prepared pursuant to section 2.5
shall include the following components:
2.5.4.1. Field Sampling Plan. A Field Sampling Plan shall include:
(1) Sampling objectives, including a brief description of data gaps and how
the field sampling plan is to address these gaps;
(2) Sample locations, including a map showing these locations, and
proposed sampling frequency;
(3) Sample designation or numbering system;
(4) Detailed specification of sampling equipment and procedures;
(5) Sample handling and analysis including preservation methods, shipping
requirements and holding times; and
(6) Management plan for wastes generated.

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 2.5.4.2. Quality Assurance Project Plan. A Quality Assurance Project Plan shall
include:
(1) Project organization and responsibilities with respect to sampling and
analysis;
(2) Quality assurance objectives for measurement including accuracy,
precision, and method detection limits.
(3) Sampling procedures;
(4) Sample custody procedures and documentation;
(5) Field and laboratory calibration procedures;
(6) Analytical procedures;
(7) Laboratory to be used must be certified pursuant to Health and Safety
Code section 25198;
(8) Specific routine procedures used to assess data (precision, accuracy
and completeness) and response actions;
(9) Reporting procedure for measurement of system performance and data
quality;
(10) Data management, data reduction, validation and reporting. Information
shall be accessible to downloading into DTSC's computer system; and
(11) Internal quality control.
2.5.4.3. Health and Safety Plan. A Site-specific Health and Safety Plan shall be
prepared in accordance with federal regulations (29 CFR 1910.120) and state
regulations (Title 8 CCR Section 5192). This plan should include, at a minimum, the
following elements:

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 (1) Site Background/History/Workplan;
(2) Key Personnel and Responsibilities
(3) Job Hazard Analysis/Summary;
(4) Employee Training;
(5) Personal Protection;
(6) Medical Surveillance;
(7) Air Surveillance;
(8) Site Control;
(9) Decontamination;
(10) Contingency Planning;
(11) Confined Space Operations;
(12) Spill Containment;
(13) Sanitation;
(14) Illumination; and
(15) Other applicable requirements based on the work to be performed.
All contractors and all subcontractors shall be given a copy of the Health and Safety
Plan prior to entering the Site. Any supplemental health and safety plans prepared by
any subcontractor shall also be prepared in accordance with the regulations and
guidance identified above. The prime contractor shall be responsible for ensuring that
all subcontractor supplemental health and safety plans shall follow these regulations
and guidelines.
2.6. Treatability Studies. To the extent DOE considers the use of in situ or other
onsite treatment technologies or methods to achieve the cleanup levels specified in the

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 AIP, DOE shall conduct treatability testing to develop data for assessing treatment in
place that could achieve the cleanup goals. Treatability testing is required to
demonstrate the implementability and effectiveness of such technologies, unless DOE
can show DTSC that similar data, documentation or information exists. The required
deliverables are: a workplan, a sampling and analysis plan, and a treatability evaluation
report. To the extent practicable, treatability studies shall be proposed and
implemented during the latter part of Chemical Data Gap investigation.
2.7. Chemical Data Summary Report. DOE shall prepare and submit a Chemical
Data Summary Report to DTSC for review and approval in accordance with the
approved Chemical Data Gap Investigation workplan schedule. The Chemical Data
Summary Report shall contain a summary of the entirety of the data collection efforts,
and shall include the horizontal and vertical extent of contamination in the soils at the
Site that exceed background levels of chemical contaminants.
2.8. Feasibility Study. For purposes of this Order, DOE shall not be required to
prepare or submit a Feasibility Study.
2.9. Soils Remedial Action Implementation Plan. No later than 60 days after
DTSC approval of the Chemical Data Summary Report, DOE shall prepare and submit
a draft Soils Remedial Action Implementation Plan to DTSC for review and approval.
The draft Soils Remedial Action Implementation Plan shall be based on and summarize
the approved Chemical Data Summary Report, U.S. EPA’s radiologic characterization
survey, and shall clearly describe the following:
1) A general description and history of the Site;
2) The nature and extent of radiological and chemical contamination at the Site;

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 3) The planned remedial action and its objectives;
4) Any areas proposed for the exercise of any of the exemptions specified in the
AIP (Attachment B) from the background cleanup standards, and the rationale for
their exemption;
5) Any areas proposed for in situ or onsite treatment to achieve the cleanup goals,
including the results of treatability studies conducted pursuant to Section 2.6. The
draft Soils Remedial Action Implementation Plan shall propose in situ or on site
treatment options to the maximum extent possible in areas where in situ or on
site treatment can be demonstrated to effectively achieve the cleanup goals;
6) All proposed mitigation measures necessary to address any identified
environmental impacts; and
7) A schedule for implementation of the planned remedial actions. The schedule
shall ensure that the identified activities can be accomplished by 2017 or sooner.
2.10. Soils Remedial Design. The Soils Remedial Action Implementation Plan
shall also include Soils Remedial Design elements that detail the technical and
operational plans for implementation of the Soils Remedial Action Implementation Plan.
The Soils Remedial Design elements shall include the following, as applicable:
1) Description of equipment used to excavate, handle, and transport contaminated
material;
2) A dust control and suppression plan that ensures the minimization of airborne
dust generation during remedial activities, and an air monitoring plan that
monitors the effectiveness of dust control and suppression efforts;
3) A transportation plan identifying routes of travel and final destination of wastes

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 generated and disposed, and a description of mitigation measures to be taken to
address any identified environmental impacts due to transportation;
4) An updated health and safety plan addressing the implementation activities;
5) Identification of all necessary permits and agreements, and demonstration of the
acquisition of those permits and agreements; and
6) A detailed schedule for implementation of the remedial action, including
procurement, mobilization, construction phasing, sampling, facility startup, and
testing.
2.11. Modification to Soils Remedial Action Implementation Plan. As a result of
its review, and as necessary in response to comments received pursuant to the public
review and comment period described in Section 3.0, DTSC may require changes to be
made to the draft Soils Remedial Action Implementation Plan. DOE shall modify the
draft Soils Remedial Action Implementation Plan in accordance with DTSC's
specifications and submit a final Soils Remedial Action Implementation Plan within 60
days of receipt of DTSC's specified changes.
2.12. Confirmation Sampling. In accordance with the AIP (Attachment B),
sampling to confirm that the required cleanup standard has been met shall be
conducted by U.S.EPA and DTSC in accordance with the document “Confirmation
Protocol; ‘Not to Exceed’; Background Cleanup Standard for Soils,” incorporated as
Attachment C. In accordance with that protocol, sample collection and data analysis
shall be consistent with field sampling plans and quality assurance/quality control plans
for U.S. EPA’s Radiological Background Study, DTSC’s Chemical Background Study,
and U.S. EPA’s Radiological Study for Area IV/Northern Buffer Zone (NBZ).

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 2.13. Changes During Implementation. During the implementation of the final
Soils Remedial Action Implementation Plan, DTSC may specify such additions,
modifications, and revisions to the Soils Remedial Action Implementation Plan as DTSC
deems necessary in order to carry out this Order.
2.14. Stop Work Order. In the event that DTSC determines that any activity
(whether or not pursued in compliance with this Order) may pose an imminent or
substantial endangerment to the health or safety of people on the Site or in the
surrounding area or to the environment, DTSC may order DOE to stop further
implementation of this Order for such period of time needed to abate the endangerment.
In the event that DTSC determines that any Site activities (whether or not pursued in
compliance with this Order) are proceeding without DTSC authorization, DTSC may
order DOE to stop further implementation of this Order or activity for such period of time
needed to obtain DTSC authorization, if such authorization is appropriate. Any deadline
in this Order directly affected by a Stop Work Order, under this Section, shall be
extended for the term of the Stop Work Order.
2.15. Emergency Response Action/Notification. In the event of any action or
occurrence (such as a fire, earthquake, explosion, or human exposure to hazardous
substances, as defined in section 101(14) of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. 9601(14), caused by the release
or threatened release of a hazardous substance) during the course of this Order, DOE
shall immediately take all appropriate action to prevent, abate, or minimize such
emergency, release, or immediate threat of release and shall immediately notify the
Project Director. DOE shall take such action in consultation with the DTSC Project

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 Director and in accordance with all applicable provisions of this Order. Within seven
days of the onset of such an event, DOE shall furnish a report to DTSC, signed by
DOE's Project Director, setting forth the events which occurred and the measures taken
in the response thereto. In the event that DOE fails to take appropriate response and
DTSC takes the action instead, DOE shall be liable to DTSC for all costs of the
response action. Nothing in this Section shall be deemed to limit any other notification
requirement to which DOE may be subject.

3.0. PUBLIC PARTICIPATION
3.1. In conjunction with DOE, DTSC shall implement the public review process
specified in DTSC's Public Participation Policy and Guidance Manual and as detailed in
the final SSFL Public Participation Plan dated March 2009. In accordance with the Site
Public Participation Plan, opportunities shall be provided for the public to review and
comment on all draft plans and reports prepared by DOE. DTSC shall consider any
comment received from the public as it evaluates draft plans and reports prepared by
DOE. In response to comments received, DTSC shall prepare a response to the public
comments, explaining the disposition of DTSC’s actions regarding the comments
received. If requested by DTSC, DOE shall submit within two weeks, if practicable, of
any request the information necessary for DTSC to prepare its responses to the public
comments.

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 4.0. CALIFORNIA ENVIRONMENTAL QUALITY ACT
4.1. DOE shall cooperate in providing all available information necessary to
facilitate DTSC’s preparation of an analysis under the California Environmental Quality
Act (CEQA), Calif. Public Resources Code Sections 21000 et seq. The costs incurred
by DTSC in complying with CEQA are response costs, and DOE shall reimburse DTSC
for such costs pursuant to Section 7.12, below.
4.2. DTSC’s analysis shall include, but not be limited to, the following:
4.2.1. Scoping at the conclusion of all data gathering efforts to identify the types
of environmental impacts that might be anticipated.
4.2.2. Identification and quantification of environmental impacts that are
anticipated to occur as a result of implementing the activities specified in this Order.
4.2.3. Identification of alternative mitigation measures that could be used to
mitigate the identified environmental impacts that are anticipated to occur as a result of
implementing the activities specified in this Order, and an assessment as to the relative
effectiveness of each mitigation measure.

5.0. U.S. ENVIRONMENTAL PROTECTION AGENCY ACTIVITIES
5.1. Given the technical expertise of the United States Environmental Protection
Agency (U.S. EPA) in radiological cleanups, the Parties expect that U.S. EPA will
contribute to the Site investigation and cleanup confirmation activities described in the
AIP (Attachment B) and in the “Confirmation Protocol; ‘Not to Exceed’; Background
Cleanup Standard for Soils” (Attachment C). U.S. EPA is not a party to this Order and
DTSC is the regulatory agency overseeing the work of the responsible party, DOE.

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 U.S. EPA has indicated that it is willing to perform the technical work identified for U.S.
EPA in the AIP (Attachment B), provided that DOE fully funds U.S. EPA’s work. Subject
to the limitations set forth in Section 7.15.1 of this Order, DOE will use its best efforts to
ensure that U.S. EPA is able to carry out the identified activities, including, but not
limited to, providing all necessary funding for U.S. EPA.
5.2. The parties acknowledge that USEPA should exercise its independent
technical judgment in performing the technical work identified for EPA in the AIP
(Attachment B) and in the “Confirmation Protocol; ‘Not to Exceed’; Background Cleanup
Standard for Soils” (Attachment C).

6.0. OTHER RELATED LEGAL ACTIONS
6.1. DTSC and DOE mutually acknowledge that an action involving the Site was
filed in the United States District Court for the Northern District of California entitled
Natural Resources Defense Council, Inc., Committee to Bridge the Gap, and City of Los
Angeles v. Department of Energy, et al. (“NRDC v. DOE”), Case No. C-04-04448 SC, in
which the plaintiffs in that action sought and obtained summary judgment against DOE.
In the summary judgment order, dated May 2, 2007, 2007 WL 1302498, United States
District Judge Samuel Conti permanently enjoined DOE “from transferring ownership or
possession, or otherwise relinquishing control over, any portion of Area IV” of the Santa
Susana Field Laboratory (“SSFL”) until DOE has completed an Environmental Impact
Statement under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et
seq., and issued a Record of Decision pursuant to NEPA. The Court in that action
further stated that it would retain jurisdiction over the action “until it is satisfied that the

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 DOE has met its legal obligations as they relate to the remediation of Area IV” of the
SSFL.
6.2. DOE and DTSC acknowledge that DOE’s obligations under this Order are
potentially inconsistent with the court’s May 2, 2007 order in NRDC v. DOE. To that
end, DOE and DTSC shall make their best efforts to seek and obtain the support of the
plaintiffs in NRDC v. DOE in applying for relief from the terms of that court’s order, so as
to allow the work under this Order to be performed. In the event that DOE and DTSC
are not successful in obtaining relief from that order so as to allow the work under this
Order to be performed, DOE’s obligations under this Order shall be stayed. The Parties
shall thereupon undertake to agree upon a procedure for environmental review that
would meet the requirements of the injunction in NRDC v. DOE and to make any
necessary modifications to this Order.

7.0. OTHER REQUIREMENTS AND PROVISIONS
7.1. Project Director. Within 14 days of the effective date of this Order, DTSC
and DOE shall designate their respective Project Directors and shall notify each other in
writing of the Project Director they have selected. DOE’s Project Director shall be
responsible for overseeing the implementation of this Order and for designating a
person to act in his/her absence. All communications between DOE and DTSC, and all
documents, report approvals, and other correspondence concerning the activities
performed pursuant to this Order shall be directed through their respective Project
Directors. Each party may change its Project Director with at least seven days prior
written notice to the other party.

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 7.2. Web Site. DOE shall continue to proportionally contribute to the website that
has been established for purposes of posting documents and information related to the
investigation and cleanup of the SSFL (http://www.dtsc-ssfl.com). The content of the
website shall remain solely under the control of DTSC. No changes to the website are
to be made without prior DTSC approval.
7.3. DTSC Approval.
7.3.1. Subject to the dispute resolution procedures in Section 7.19.1 through
7.19.9, DOE shall revise any workplan, report, specification, or schedule in accordance
with DTSC's written comments. DOE shall submit to DTSC any revised documents by
the due date specified by DTSC. Revised submittals are subject to DTSC's written
approval or disapproval. If DTSC disapproves of any submittal in whole or in part, it
shall explain in writing the reason(s) for its disapproval.
7.3.2. Upon receipt of DTSC's written approval, DOE shall commence work and
implement any approved workplan in accordance with the schedule and provisions
contained therein.
7.3.3. Any DTSC approved workplan, report, specification, or schedule required
by this Order shall be deemed incorporated into this Order.
7.3.4. Any requests for revision of an approved workplan requirement must be in
writing. Such requests must be timely and provide justification for any proposed
workplan revision. DTSC shall approve such proposed revisions absent good cause not
to do so. Any approved workplan modification shall be in writing and shall be
incorporated by reference into this Order.

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 7.3.5. Verbal advice, suggestions, or comments given by DTSC representatives
shall not constitute an official approval or disapproval.
7.3.6. DTSC shall use its best efforts to review, comment, and render a decision
on any workplan, report, specification, or schedule submitted by DOE in a timely
fashion, with the goal of rendering a decision within 120 days of DOE’s submittal.
Failure by DTSC to render a decision within 120 days of DOE’s submittal shall not
constitute de facto approval. Any deadline in this Order directly affected by DTSC’s
failure to render a decision in the time frames specified under this section shall be
extended for a period of time not to exceed the actual time taken beyond the specified
time frame to for DTSC to render the decision.
7.4. Submittals.
7.4.1. DOE shall provide DTSC with quarterly progress reports of response
action activities conducted pursuant to this Order.
7.4.2. Any report or other document submitted by DOE pertaining to its activities
at the Site pursuant to this Order shall be signed and certified by a duly authorized
representative.
7.4.3. The certification required above, shall be in the following form:
I certify that this document and all attachments were
prepared under my direction or supervision in accordance
with a system designed to assure that qualified personnel
properly gather and evaluate the information submitted.
Based on my inquiry of the person or persons who manage
the system, or those persons directly responsible for
gathering the information, the information submitted is, to the
best of my knowledge and belief, true, accurate, and
complete.

22

 7.4.4. All reports and other documents submitted by DOE or its consultants in
response to this Order shall be submitted to DTSC in both hard copy and electronically..
7.4.5. Unless otherwise specified, all reports, correspondence, approvals,
disapprovals, notices, or other submissions relating to this Order shall be in writing and
shall be sent to the current Project Directors.
7.5. Proposed Contractor/Consultant.
All work performed by DOE pursuant to this Order shall be under the direction
and supervision of a professional engineer or registered geologist, registered in
California, with expertise in hazardous substance site cleanup. DOE’s contractors and
consultants shall have the technical expertise sufficient to fulfill their responsibilities.
Within 14 days of the effective date of this Order or any contract awarded to implement
this Order, DOE shall notify the DTSC Project Director in writing of the name, title, and
qualifications of the professional engineer or registered geologist and of any contractors
or consultants and their personnel to be used in carrying out the requirements of this
Order. Notifications submitted prior to the effective date of this Order in response to
Section 4.5. of the August 16, 2007 Consent Order for Corrective Action need to be
resubmitted only if the information contained in the notification has changed.
7.6. Chemical and Radiological Analyses
7.6.1. Except as provided below, DOE shall use California State-certified
analytical laboratories for all chemical and radiological analyses required to comply with
this Order. If a California State-certified laboratory is not available for a particular test
required by this Order, DOE shall use an alternative laboratory identified by DOE
subject to approval by DTSC. The names, addresses, telephone numbers, and

23

 California Department of Public Health, Environmental Laboratory Accreditation
Program (ELAP) certification numbers of the laboratories DOE proposes to use must be
specified in the applicable workplans.
7.6.2. DOE shall monitor to ensure that high quality data are obtained by their
consultants and contract laboratories. DOE shall ensure that laboratories it uses for
chemical analyses perform such analyses according to the latest approved edition of
"Test Methods for Evaluating Solid Waste, (SW 846)," or other methods deemed
satisfactory to DTSC. If methods other than U.S. EPA methods are to be used, DOE
shall specify all such protocols in the affected workplan. DTSC shall reject any
chemical data that do not meet the requirements of the approved workplan, U.S. EPA
analytical methods, or quality assurance/quality control procedures, and may require
resampling and analysis. DOE shall ensure that laboratories it uses for radiological
analyses perform such analyses according to the latest approved edition of "HASL-300,
EML Procedures Manual” or other methods deemed satisfactory to DTSC. If methods
other than HASL-300 methods are to be used, DOE shall specify all such protocols in
the affected workplan (e.g., RI workplan). DTSC shall reject any radiological data that
do not meet the requirements of the approved workplan, HASL-300 methods, or quality
assurance/quality control procedures, and may require resampling and analysis.
7.6.3. DOE shall ensure that the laboratories used for analyses have quality
assurance/quality control programs. DTSC may conduct a performance and quality
assurance/quality control audit of the laboratories chosen by DOE before, during, or
after sample analyses. Upon request by DTSC, DOE shall have their selected
laboratory perform analyses of samples provided by DTSC to demonstrate laboratory

24

 performance. If the audit reveals deficiencies in a laboratory's performance or quality
assurance/quality control procedures, resampling and analysis may be required.
7.7. Sampling and Data/Document Availability.
7.7.1. Upon request, DOE shall provide DTSC with the results of all sampling or
tests or other data generated by its employees, agents, consultants, or contractors
pursuant to this Order. DOE shall follow the same signature and certification
requirements of Section 7.4.3, 7.4.4, and 7.4.5, above for information submitted
pursuant to this section.
7.7.2. Notwithstanding any other provisions of this Order, DTSC retains all of its
information gathering and inspection authority and rights, including enforcement actions
related thereto, under the Health and Safety Code, and any other State or federal law,
subject to national security and other restrictions imposed under the Atomic Energy Act
of 1954, as amended, applicable executive orders or any other applicable requirements.
7.7.3. DOE shall notify DTSC in writing at least seven days prior to beginning
each separate phase of field work approved under any workplan required by this Order.
If DOE believes it must commence emergency field activities without delay, DOE shall
seek emergency telephone authorization from the DTSC Project Director or, if the
Project Director is unavailable, their designee, to commence such activities
immediately.
7.7.4. At the request of DTSC, DOE shall provide or allow DTSC or its authorized
representative to take split or duplicate samples of all samples collected by DOE
pursuant to this Order. At the request of DOE, DTSC shall allow DOE or their
authorized representative(s) to take split or duplicate samples of all samples collected

25

 by DTSC under this Order. At the request of DOE or DTSC, U.S. EPA will allow DOE or
DTSC or their authorized representatives to take split or duplicate samples of all
samples collected by U.S. EPA..
7.8. Access.
7.8.1. Subject to Boeing’s and DOE’s security and safety procedures at the Site,
DOE shall provide DTSC and its representatives access at all reasonable times,
following normal DOE procedures, if any, for access onto the Site, to the areas of the
Site under DOE’s control, and any other property to which access is required for
implementation of this Order, and shall permit such persons to inspect and copy all nonprivileged records, files, photographs, documents, including all sampling and monitoring
data, that pertain to work undertaken pursuant to this Order and that are within the
possession or under the control of DOE, or its contractors or consultants.
7.8.2. To the extent that work being performed pursuant to this Order must be
conducted on areas of the Site not under DOE’s ownership, possession or control, or on
property beyond the Site boundary, DOE shall use its best efforts to obtain access
agreements necessary to complete work required by this Order from the present owners
or possessors, as appropriate, of such property, within 30 days of approval of any
workplan for which access is required. “Best efforts” as used in this paragraph shall
include, at a minimum, a letter by certified mail from DOE to the present owners or
possessors of such property, requesting an agreement to permit DOE and DTSC and
their authorized representatives access to such property. Any such access agreement
shall provide for access to DTSC and its representatives. DOE shall provide DTSC's
Project Director with a copy of any access agreements in their possession. In the event

26

 that an agreement for access is not obtained within 30 days of approval of any workplan
for which access is required, an unanticipated need for access becomes known to DOE,
or access is revoked by the property owner or possessor, DOE shall notify DTSC in
writing within 14 days thereafter regarding both the efforts undertaken to obtain access
and the failure to obtain such agreements. In such event, DTSC may elect to use its
authority under Chapter 6.8 of Division 20 of the California Health and Safety Code to
obtain access for DOE, including, without limitation, its authority to assess daily civil
penalties against the refusing property owner under Health and Safety Code Section
25367. In the event that DTSC is unable to obtain access from the present owners or
possessors of such property or take whatever measures are necessary so that the work
may proceed, DOE’s obligation to perform that particular element of work and its
obligation to provide access to DTSC shall be stayed until the appropriate relief is
obtained.
7.8.3. Nothing in this section limits or otherwise affects DTSC's right of access
and entry pursuant to any applicable State or federal law or regulation.
7.8.4. Nothing in this Section shall be construed to limit DOE’s liability and
obligation to perform response action that are being conducted pursuant to this Order,
either within the Site boundary or beyond the Site boundary as provided in the AIP,
including such action on areas of the Site not owned, possessed or controlled by DOE,
or on property beyond the Site boundary except as clarified in Section 7.8.2, with
respect to the timing of DOE’s liabilities and obligations. The AIP describes DOE’s
commitment to remediate the areal extent of any contiguous radiologic or chemical
contamination of soil that emanates from within the Site.

27

 7.9. Record Preservation.
7.9.1. In addition to requirements applicable to DOE under 36 CFR Chapter 12,
Subchapter B, in accordance with NARA-approved DOE Records Disposition
Schedules, DOE shall retain, during the implementation of this Order and for a minimum
of ten (10) years after the Acknowledgment of Satisfaction executed pursuant to Section
9.0 of this Order, all data, records, and documents that relate to implementation of this
Order or to radioactive waste or hazardous waste management and/or disposal. DOE
shall notify DTSC in writing 90 days prior to the destruction of any such records, and
shall provide DTSC with the opportunity to take possession of any such records. Such
written notification shall reference the effective date, caption, and docket number of this
Order and shall be sent to the DTSC Project Director.
7.10. Notice to Contractors and Successors. DOE shall provide a copy of this
Order to all contractors, laboratories, and consultants retained to conduct or monitor any
portion of the work performed pursuant to this Order and shall condition all such
contracts on compliance with the terms of this Order. DOE shall give written notice of
this Order to any successor in interest prior to transfer of ownership or operation of any
portion of the Site that DOE owns or operates and shall notify DTSC at least 30 days
prior to such transfer. DOE or its contractors shall provide written notice of this Order to
all subcontractors hired to perform any portion of the work required by the Order. DOE
shall nonetheless be responsible, to the extent reasonably within their control, for
ensuring that their contractors and subcontractors perform the work contemplated
herein in accordance with this Order. With regard to the activities undertaken pursuant
to this Order, in addition to any defenses which may be available under this Order, the

28

 defenses available to DOE shall be those specified in Health and Safety Code section
25323.5 (incorporating by reference Sections 101(35) and 107(b) of CERCLA, 42
U.S.C., section 9601(35) and 9607(b),
7.11. Compliance with Applicable Laws and Regulations. All actions taken
pursuant to this Order by DOE shall be undertaken in accordance with applicable local,
State, and federal laws and regulations. As specified in Section 1.6, compliance with
this Order and the 2007 Order shall constitute DOE’s full and complete compliance with
all applicable provisions of Chapters 6.5 and 6.8 of the Division 20 of the California
Health and Safety Code (the California Hazardous Waste Control Law, Sections 25100
et seq. of that Code, and the California Hazardous Substances Account Act, Sections
25300 et seq. of that Code) with respect to the application of the provisions of this Order
to radiologic or chemical contamination of soil at the Site or any contiguous radiologic or
chemical contamination of soil emanating from within Area IV or the Northern Buffer
Zone, within or outside of the SSFL boundaries, that has been identified by U.S.EPA in
its radiologic characterization survey or by DTSC as part of the investigation of chemical
contaminants that DOE has remediated. DOE shall obtain or cause their
representatives to obtain all permits and approvals necessary under such applicable
laws and regulations.
7.12. Costs.
7.12.1. DOE is liable for all costs associated with the implementation of this
Order, including all costs incurred by DTSC in overseeing the work required by this
Order, to the extent authorized under California Health and Safety Code Sections 25269
through 25269.6, including procedures for dispute resolution under Section 7.19.1

29

 through 7.19.9 ,below. DTSC shall retain all cost records associated with the work
performed under this Order as required by State law. DTSC shall make all documents
that support DTSC’s cost determination available for inspection upon request, as
provided in the California Public Records Act. With respect to the payment of costs,
DOE may use any alternative mechanism authorized by federal law.
7.12.2. DOE retains any rights it may have to recover the costs of complying with
this Order from any person not a Party to this Order and nothing in this Consent Order
is intended to compromise or hinder any such rights.
7.13. Liability. Except as expressly set forth in Section 1.6 above, nothing in this
Order shall constitute or be construed as a satisfaction or release from liability for any
conditions or claims arising as a result of past, current, or future operations of DOE.
Notwithstanding compliance with the terms of this Order, but subject to the express
provisions in Section 1.6 above, DOE may be required to take further actions as are
necessary to protect public health or welfare or the environment (a) in the event
previously unanticipated conditions are discovered that present an imminent and
substantial endangerment notwithstanding the work to be performed under this Order,
or (b) in the event any negligent or intentional act or omission by DOE during the
performance of its obligations under this Order results in the need for additional
response action in order to achieve this Order's objective to clean up chemical and
radiological contamination at the Site to local background levels."
7.14. Government Liabilities. The State of California shall not be liable for
injuries or damages to persons or property resulting from acts or omissions by DOE in
carrying out activities pursuant to this Order, nor shall the State of California be held as

30

 a party to any contract entered into by DOE or its agents in carrying out activities
pursuant to the Order.
7.15. Availability of Federal Funds.
7.15.1. DOE’s obligations under this Order are subject to the availability of funds
appropriated and legally available for such purpose. No provision of this Order shall be
interpreted as or constitute a commitment or requirement that DOE obligate or pay
funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other
applicable provision of law. DOE shall use its best efforts, by means of the federal
budgetary process, to obtain the funds necessary to perform its obligations under the
2007 Order and this Order. Nothing in this Order shall be construed to require
disclosures related to confidential internal federal budget deliberations not otherwise
authorized under federal law.
7.15.2. It is agreed that if inadequate funds are appropriated for such purposes,
DOE shall notify DTSC promptly and develop a plan in writing to endeavor to secure
additional funding to carry out the requirements of this Order. Nothing herein shall be
construed as precluding DOE from arguing that the unavailability of appropriated funds
constitutes a force majeure event. DTSC and DOE agree that in any dispute or any
proceeding to enforce the requirements of this Order, DOE may raise as a defense that
any failure or delay was caused by the unavailability of appropriated funds.
7.16. [Reserved]
7.17. Incorporation of Plans and Reports. All plans, schedules, and reports that
require DTSC approval and are submitted by DOE pursuant to this Order and are not

31

 the subject of dispute resolution under Section 7.19.1 through 7.19.9 are incorporated in
this Order upon approval by DTSC.
7.18. Penalties for Noncompliance.
7.18.1. DOE shall be liable for stipulated penalties in the amount of $15,000 per
day for a material failure to comply with the requirements of this Order, including the
making of any false statement or representation in any document submitted for
purposes of compliance with this Order. “Compliance” by DOE shall include, but shall
not be limited to, completion of the activities under this Order or any workplan or other
plan approved under this Order within the specified time schedules established by and
approved pursuant to this Order or as otherwise directed by DTSC under this Order.
7.18.2. Following DTSC’s determination that DOE has materially failed to comply
with a requirement of the Order, DTSC shall give DOE written notification of the
violation and describe the noncompliance. DTSC shall send DOE a written notice of
noncompliance with an opportunity to cure by a date designated by DTSC in lieu of or
prior to a written demand for the payment of the penalties. DOE may dispute DTSC's
finding of noncompliance by invoking the dispute resolution procedures described in
Section 7.19.1 through 7.19.9 herein. All penalties assessed under Section 7.18.1 shall
begin to accrue on the business day after the complete performance is due or the day a
violation occurs, and shall continue to accrue through the final day of the correction of
the noncompliance or completion of the activity. The accrual and payment of any
proposed penalty shall be tolled during the dispute resolution period. If DOE does not
prevail in dispute resolution, any penalty shall be due to DTSC within 30 days of

32

 resolution of the dispute unless appealed to a court of law. If DOE prevails in dispute
resolution, no penalty shall be paid.
7.18.3. Nothing herein shall prevent the simultaneous accrual of separate
penalties for separate violations of this Order and other applicable provisions of law,
except that the same facts shall not be relied upon to generate separate and cumulative
penalties against DOE. Notwithstanding the provisions of Section 7.18.1, 7.18.2, or
7.18.3, DTSC reserves the right to seek additional remedies or sanctions for knowing
violations of this Order, including knowingly making any false statement or
representation in any document submitted for purposes of compliance with this Order
7.19. Dispute Resolution.
7.19.1. The parties agree that the procedures contained in this section are the
exclusive procedures for resolving all disputes that may arise under this Order. By its
execution of this Order, and for no other purpose unrelated to this matter, DOE
expressly agrees that DTSC has the authority to enforce the terms of this Order. At no
time during any informal, formal, or judicial resolution of any dispute arising under this
Order shall DOE contend that DTSC does not possess such legal authority. Nor shall
DOE initiate a separate challenge to such legal authority in state or federal court.
7.19.2. If any dispute arises over the interpretation of, or compliance with, any
provision of this Order, DOE’s Project Director and DTSC’s Project Director shall
attempt to resolve the dispute informally.
7.19.3. If DTSC’s Project Director determines after due consideration that the
dispute cannot be resolved informally, the Project Director shall notify DOE of such
determination. DOE may then pursue the matter by making an objection in writing to

33

 DTSC’s Director, or his or her designee, with a copy to DTSC’s Project Director. DOE’s
written objection shall set forth the specific points of the dispute and the basis for DOE’s
position. DOE’s objection to DTSC’s Director shall be served by mail no later than
fourteen (14) calendar days after DOE is notified of the determination by DTSC’s
Project Director that the dispute cannot be resolved informally. The date by which DOE
may submit any written objection may be extended by DTSC for good cause, but shall
not exceed an additional 45 days.
7.19.4. Within 30 calendar days after DTSC’s receipt of DOE’s written objection,
DTSC’s Director, or another individual authorized to carry out the functions of the DTSC
Director, shall meet with DOE’s Chief Operations Officer from the Office of
Environmental Management, or someone who is otherwise of equivalent
decisionmaking authority as DTSC’s Director, for the purpose of resolving the dispute
through formal discussions. This formal dispute resolution on DOE’s objection(s) shall
include the DOE Assistant Secretary for Environmental Management, or another
individual authorized under federal law to carry out the functions of the Assistant
Secretary for Environmental Management, DTSC’s Director, or his or her designee, and
the Secretary of the California Environmental Protection Agency (CalEPA), or another
state official designated pursuant to State law to carry out the functions of the Secretary
of CalEPA, and shall take place during the 30-day period after receipt of DOE’s
objection(s), or such longer period if determined necessary by DTSC. Within fourteen
(14) calendar days after the conclusion of the formal discussion period, the Secretary of
CalEPA, or another state official designated pursuant to State law to carry out the
functions of the Secretary of CalEPA, shall provide the Assistant Secretary for

34

 Environmental Management with CalEPA’s written decision on the dispute. CalEPA’s
written decision shall reflect any agreements reached during the formal discussion
period, shall represent the decision of both DTSC’s Director and the CalEPA Secretary,
and shall be signed by the Secretary of CalEPA, or another state official designated
pursuant to State law to carry out the functions of the Secretary of CalEPA. If DOE
obtains the views of the United States Environmental Protection Agency (“USEPA”) on
the dispute, DTSC and CalEPA shall consider the USEPA position prior to issuing a
decision.
7.19.5. During the pendency of all dispute resolution procedures set forth in
Section 7.19.1 through 7.19.4 of this Order, the time periods for completion of work to
be performed under this Order that are affected by such a dispute shall be extended for
a period of time not to exceed the actual time taken to resolve the dispute. The
existence of such a dispute shall not excuse, toll, or suspend any other compliance
obligation or deadline required pursuant to this Order except to the extent that such
other compliance obligation or deadline is dependent upon the resolution of the matter
that is the subject of dispute under this Order, in which case the time periods for
completion of such other compliance obligation or deadline required pursuant to this
Order that are affected by such a dispute shall be extended for a period of time not to
exceed the actual time taken to resolve the dispute.
7.19.6. In the event that DOE desires to affirmatively challenge a decision made
or an action taken against DOE by DTSC under this Order, DOE may commence a civil
action in United States District Court, pursuant to 28 U.S.C. § 1345, for a determination
of the parties’ rights and obligations with respect to the dispute in question. In such

35

 event, DTSC agrees not to request a transfer of such matter to State court on
abstention or other grounds. Notwithstanding DOE’s right to seek judicial relief
pursuant to this Section, DTSC may alternatively elect to utilize its rights under Section
7.19.7 to initiate a legal action to obtain a declaration that DOE is required to perform
the obligation that was the subject of the dispute resolution procedures in Section 7.19.1
through 7.19.4 above.
7.19.7. In the event that DTSC desires to enforce a decision it has made under
this Order, an action it has taken against DOE under this Order, or DOE’s failure or
refusal to perform any obligation or requirement of this Order, DTSC initially shall file a
civil action in state court, after which filing DOE agrees to timely remove the action to
the applicable United States District Court pursuant to 28 U.S.C. § 1442(a)(1), and
DTSC agrees not to petition for a remand or other transfer of such matter to state court.
7.19.8. Solely for purposes of resolving any dispute between DTSC and DOE
relating to the requirements of this Order, and for no other purposes, DOE shall not
contest DTSC’s allegation that the Site is a facility that is currently operated by an
agency of the United States (i.e. DOE) as set forth in Section 120(a)(4) of CERCLA, 42
U.S.C. § 9620(a)(4). DOE also agrees, solely for purposes of any potential enforcement
of this Order, and for no other purposes, that DOE shall not contest DTSC’s allegation
that the standards and requirements in this Order are no more stringent than the
standards and requirements that would be applicable to a similar facility operated by a
private party.
7.19.9. Resolution of any dispute arising out of this Order, whether being sought
informally, formally, or judicially, shall be based solely upon the obligations and

36

 responsibilities of the Parties as expressly set forth in this Order. DTSC shall not assert
that DOE is subject to or required to comply with Section 25359.20 of the California
Health and Safety Code. DOE shall not assert any defenses based on either party’s
alleged lack of legal authority to agree to, or enforce, the terms herein, including,
without limitation, a defense based on an alleged preemption by federal law of DTSC’s
authority to oversee and enforce the terms of this Order.
7.20. Force Majeure. DOE shall cause all work to be performed within the time
limits set forth in this Order, unless an extension is approved by DTSC for good cause
or performance delayed by events that constitute an event of force majeure. DOE shall
make good faith efforts to avoid circumstances that could result in force majeure that
could impact the completion of work pursuant to the time limits set forth in this Order.
For purposes of this Order, an event of force majeure is an event arising from
circumstances beyond the control of DOE that delays performance of any obligation
under this Order, provided DOE has undertaken all appropriate planning and preventive
measures to avoid any foreseeable circumstances. Increases in cost of performing the
work required by this Order shall not be considered circumstances beyond the control of
DOE. For purposes of this Order, events which constitute a force majeure shall include,
without limitation, events such as acts of God, war, civil commotion, unusually severe
weather, labor difficulties, shortages of labor, materials, or equipment, government
moratorium or shutdown, delays in obtaining necessary permits due to action or inaction
by third parties, restraint by court order, unavailability of appropriated funds,
earthquake, fire, flood, or other casualty. DOE shall notify DTSC in writing promptly
after DOE learns of the occurrence of the force majeure event. Such notification shall

37

 describe the anticipated length of the delay, the cause or causes of the delay, the
measures taken or to be taken by DOE to minimize the delay, and the timetable by
which these measures shall be implemented.

If DTSC agrees that DOE’s delay, non-

performance or non-compliance is attributable to a force majeure event, the time for
performance of or compliance with the applicable obligation or requirement of this Order
shall be extended as the parties agree is reasonably necessary to complete the
obligation or requirement. If DTSC does not agree that the delay is attributable to a
force majeure event, or the Parties do not concur on the amount of time to complete or
fulfill the obligation or requirement affected by the force majeure event, the matter shall
be subject to the dispute resolution procedures set forth above.
7.21. Schedule Changes. If DOE is unable to perform any activity or submit any
document by the date specified in any schedule developed pursuant to this Order,
including the date referenced in the AIP, due to delays by DTSC in completing its review
of or response to submittals by DOE, upon DTSC’s completion of such review of or
response to such submittals, the schedule shall be automatically adjusted accordingly,
unless DTSC and DOE agree to an alternative schedule, and the new schedule shall be
incorporated by reference into this Order. In such event, the provisions of Section 7.18
(Penalties for Noncompliance) shall not apply to DOE’s inability to perform any activity
or submit any document under the original schedule; however, Section 7.18 (Penalties
for Noncompliance) shall apply to the new schedule unless the schedule is revised
pursuant to this Section 7.21 or Section 7.22.
7.22. Extension Requests. If DOE is unable to perform any activity or submit
any document within the time required under any schedule developed pursuant to or in

38

 this Order, including any schedule or deadline referenced in the AIP, DOE shall, prior to
expiration of the time, request an extension of the time in writing. The extension
request shall include a justification for the delay and the proposed new schedule. All
such requests shall be in advance of the date on which the activity or document is due.
If DTSC determines that good cause exists for an extension, it shall grant the request
and specify a new schedule in writing. “Good cause” shall include, but shall not be
limited to, delays in receiving any approvals, authorizations or permits that DOE is
required to obtain from any federal, State or local agency so as to allow the work under
this Order to be performed, as well as delays by DTSC in completing its review of and
response to submittals by DOE to the extent that future deadlines specified in the
schedule are impacted. DOE shall submit a revised schedule to DTSC for review and
approval, which shall be incorporated by reference into this Order.
7.23. Parties Bound. This Order shall apply to and be binding upon DOE, and
agents, employees, contractors, consultants, successors and assignees.
7.24. Other State Agencies. No provision of this Order is intended to, nor shall be
construed to, interfere with or supersede the authority of any other State or any local
agency.
7.25. Time Periods. Unless otherwise specified, time periods begin from the
effective date of this Order and “days” means calendar days. In computing any period
of time under this Order, where the last day would fall on a Saturday, Sunday or federal
or State holiday, the period shall run until the next business day.
7.26. Severability. The requirements of this Order are severable. Should a
provision or provisions of this Order be determined by a court to be ineffective, or

39

 should a court determine that any federal or State law or regulation incorporated into,
referenced in, or authorizing this Order is invalid or unenforceable in whole or in part,
DOE shall comply with each and every remaining effective provision.

MODIFICATION
8.0. This Order may be modified by the mutual agreement of the parties. Any
agreed modifications shall be in writing, shall be signed by both Parties, shall have as
their effective date the date on which they are signed by DTSC, and shall be deemed
incorporated into this Order.
TERMINATION AND SATISFACTION
9.0. The provisions of this Order shall be deemed satisfied upon the execution by
the parties of an Acknowledgment of Satisfaction (Acknowledgment). DTSC shall
prepare the Acknowledgment for DOE’s signatories. The Acknowledgment shall specify
that DOE has demonstrated to the satisfaction of DTSC that the terms of this Order
including payment of DTSC’s costs have been satisfactorily completed. The
Acknowledgment shall affirm DOE’s continuing obligation to preserve all records after
the rest of the Order is satisfactorily completed.

EFFECTIVE DATE
10.0. The effective date of this Order shall be the date on which the Order is
signed by DTSC.

40

  

DATE:  

 

NO THIRD PARTY BENEFICIARY

11.0; The'Partiesto this Order agree that there are no third party beneficiaries to

any of the terms and conditions contained in, or rights and obligationsarising out of, this

Order.

. D/?ziar Movassaghi, Acting Director
epartment of Toxic Substances Control.

 

Cyr?tia V. Anderson, Chief Operations Officer
United States Department of Energy

'09   

41

ATTACHMENT A
Santa Susana Field Laboratory

Regional Map

.n

Lm DI: Bfander's-Bardin
Institute





Ahmanson Ranch
Project

 

42

ATTACHMENT 

Final Agreement in Principle

43

JOINT SETTLEMENT FRAMEWORK

FINAL Agreement in Principle
between
The U.S. Department of Energy and the State of California
Regarding Cleanup of Area IV of the
Santa Susana Field Laboratory
SUMMARY: The end state of the site (the whole of Area IV and the
Northern Buffer Zone) after cleanup will be background (i.e., at the
completion of the cleanup, no contaminants will remain in the soil above local
background levels), subject to any special considerations specified below.


Clean up radioactive contaminants to local background concentrations.
Possible exceptions (where unavoidable by other means):


The framework acknowledges that, where appropriate, DOE will
engage in an Endangered Species Act (ESA) Section 7(a)(2)
consultation with the U.S. Fish and Wildlife Service (FWS) over any
species or critical habitat that may be affected by a federal action
proposed to be undertaken herein on a portion of the site. Impacts
to species or habitat protected under the Endangered Species Act
may be considered as possible exceptions from the cleanup
standard specified herein only to extent that the federal Fish and
Wildlife Service, in response to a request by DOE for consultation,
issues a Biological Opinion with a determination that
implementation of the cleanup action would violate Section 7(a)(2)
or Section 9 of the ESA, and no reasonable and prudent measures
or reasonable and prudent alternatives exist that would allow for the
use of the specified cleanup standard in that portion of the site.



The acceptance and exercise of any of the following exceptions is
subject to DTSC’s oversight and approval, and the resulting
cleanup is to be as close to local background as practicable:
 Detection limits for specific contaminants exceed the local
background concentration, in which case the cleanup goal
shall be the detection limits for those specific contaminants.
 Native American artifacts that are formally recognized as
Cultural Resources.
 Other unforeseen circumstances but only to the extent that
the cleanup cannot be achieved through technologically
feasible measures. Under no circumstances shall
exceptions for unforeseen circumstances be proposed in
excess of five percent of the total soil cleanup volume.
1

 

US EPA, in the course of conducting its radioactive contaminant
background study, will determine local background levels and detection
limits. Upon completion of the EPA led radiologic local background study,
a “look-up” table of the radiologic cleanup levels will be prepared, which
will include both local background concentrations as well as minimum
detection limits for specific contaminants whose minimum detection limits
exceed local background concentrations.



Clean up chemical contaminants to local background concentrations
Possible exceptions (where unavoidable by other means):
 The framework acknowledges that, where appropriate, DOE will
engage in an Endangered Species Act (ESA) Section 7(a)(2)
consultation with the U.S. Fish and Wildlife Service (FWS) over any
species or critical habitat that may be affected by a federal action
proposed to be undertaken herein on a portion of the site. Impacts
to species or habitat protected under the Endangered Species Act
may be considered as possible exceptions from the cleanup
standard specified herein only to extent that the federal Fish and
Wildlife Service, in response to a request by DOE for consultation,
issues a Biological Opinion with a determination that
implementation of the cleanup action would violate Section 7(a)(2)
or Section 9 of the ESA, and no reasonable and prudent measures
or reasonable and prudent alternatives exist that would allow for the
use of the specified cleanup standard in that portion of the site.




The acceptance and exercise of any of the following exceptions is
subject to DTSC’s oversight and approval, and the resulting
cleanup is to be as close to local background as practicable:
 Detection limits for specific contaminants exceed the local
background concentration, in which case the cleanup goal
shall be the detection limits for those specific contaminants.
 Native American artifacts that are formally recognized as
Cultural Resources
 Other unforeseen circumstances but only to the extent that
the cleanup cannot be achieved through technologically
feasible measures. Under no circumstances shall exceptions
for unforeseen circumstances be proposed in excess of five
percent of the total soil cleanup volume.

DTSC, in the course of overseeing and approving its chemical
contaminant local background study, will determine local background
levels and chemical detection limits (using methods that are consistent
with EPA guidance on determining local background concentration
values). Upon completion of the DTSC led chemical background study, a
“look-up” table of the chemical cleanup levels will be prepared, which will
include both local background concentrations as well as minimum

2

 detection limits for specific contaminants whose minimum detection limits
exceed local background concentrations.


Residual concentrations “not to exceed” local background concentrations
i.e., if during site survey efforts or during confirmatory sampling the level of
any constituent detected in a soil sample is above local background levels,
step-outs will be taken to delineate the contamination and removed; soil
above local background will not be averaged with other soil. This process
should not be inconsistent with any guidance that EPA may issue
pertaining to the practice of implementing a not to exceed local
background cleanup approach.



Cleanup to local background means removal of soils contaminated above
local background levels
 No “leave in place” alternatives will be considered
 No on-site burial or landfilling of contaminated soil will be
considered



Backfill/replacement soils must not exceed local background levels
 Onsite soils that do not exceed local background may be used as
backfill/replacement soils
 Offsite soils that have been verified to not exceed local background
levels may be used as backfill/replacement soils
 Backfill/replacement soils that are acceptable for use shall be
verified as follows:
 U.S. EPA for radioactive contaminants
 DTSC for chemical contaminants



Disposal of contaminated soils:
 Soils contaminated with radioactive contaminants above local
background to licensed low-level radioactive waste (LLRW)
disposal site or an authorized LLRW disposal facility at a DOE site
 Soils contaminated with chemical contaminants above local
background:
 Hazardous wastes to licensed Class 1 hazardous waste
disposal facilities only
 Non-hazardous waste to licensed Class 2 or subtitle D
compliant Class 3 disposal facilities only
 Mixed wastes (with radioactive and hazardous constituents) to go
to a site licensed for mixed wastes or an authorized mixed waste
disposal facility at a DOE site
 In addition to meeting the above disposal requirements, all soils
must also meet the waste acceptance criteria for the receiving
facility.



EPA to carry out the following:
3

 



U.S.EPA to provide split samples to DTSC for chemical
contaminants as it samples for radioactive constituents during its
Area IV and Northern Buffer Zone Survey work
U.S.EPA to conduct post cleanup confirmatory radiation
assessment in areas where cleanup was performed to verify
completion of cleanup
U.S.EPA to verify that backfill/replacement soils do not exceed local
background for radioactive constituents.



Radioactive contaminants investigation/data gaps
 U.S.EPA is responsible for the investigation of radioactive
contamination. Investigation reports related to radioactive
contaminants previously prepared for and submitted by DOE will
not require revision – U.S.EPA’s survey efforts will be sufficient for
determining the nature and extent of radioactive contamination and
areas requiring cleanup of radioactive materials within Area IV and
Northern Buffer Zone.
 U.S.EPA, in the course of conducting its radioactive contaminant
survey, will determine where onsite levels exceed local background
within Area IV and Northern Buffer Zone.



Chemical investigation/data gaps
 Where EPA is already taking samples for radiologic contaminants
as part of its Area IV and Northern Buffer Zone survey work, DTSC
will arrange for analysis of split samples (paid for by DOE)
 In addition to the split samples from U.S.EPA, in areas where
DTSC determines that additional likely chemical contamination is
expected, DOE, upon DTSC request, will provide additional
information that is existing or readily available for purposes of
assisting DTSC in focusing additional investigation efforts, and will
conduct additional investigation, under DTSC direction and
oversight, consistent with local background/detection limit data
quality objectives and measurement sensitivity. In carrying out
additional chemical investigation, DOE will not be required to revise
investigation reports related to chemical contaminants previously
prepared for and submitted by DOE.
 DTSC, in the course of overseeing and approving the chemical
contaminant investigation work, will determine where onsite levels
exceed local background.



Development of risk assessments will not be required.



As identified by EPA in its rad survey and by DTSC as part of the
investigation of chemical contaminants, DOE will remediate the areal
extent of any contiguous radiologic or chemical contamination of soil that
emanates from within Area IV even to the extent that it migrates beyond
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 the boundaries of Area IV or the Northern Buffer Zone, within or without
the SSFL boundaries.


Following completion of the characterization studies by EPA and DTSC,
DOE will develop a remedial action implementation work plan that
describes the Area IV and Northern Buffer Zone cleanup activities. The
remedial action implementation work plan will be subject to DTSC review
and approval.



Scheduled completion of soils cleanup remains as 2017



DOE’s commitment to cleanup to local background applies to soils and not
to groundwater at the site. Investigation and remediation of groundwater
will be separately addressed, and provisions related to investigation and
remediation of groundwater will be incorporated into a final agreement.



Characterization and cleanup (for both chemicals and radiologic
contaminants) of both soils and groundwater are subject to DTSC
approval.



Final agreement between DOE and California, and the cleanup obligations
within that agreement, will be legally binding and enforceable.



DTSC work to be fully funded by DOE.



DTSC will conduct a public participation process to receive public input
regarding the agreement prior to its finalization. This process will include
a formal comment period and may include public meetings or discussions.



This framework concerns SSFL Area IV and Northern Buffer Zone only
and is between the Department of Energy and the State of California
represented by the Department of Toxic Substances Control and the
California Environmental Protection Agency. The framework is based
upon the unique circumstances of Area IV and Northern Buffer Zone,
including the nature of the releases of hazardous and radioactive
contamination that have occurred at Area IV and Northern Buffer Zone.
This framework does not establish precedent and shall not be used as
precedent for any other agreement for any other area within the SSFL.

5

 ATTACHMENT 

CONFIRMATION PROTOCOL
TO 

BACKGROUND CLEANUP STANDARD

44

December 6, 2010

CONFIRMATION PROTOCOL
“NOT TO EXCEED”
BACKGROUND CLEANUP STANDARD FOR SOILS
This presents the post-cleanup confirmation sampling that will be used to confirm
completion of cleanup activities at the Santa Susana Field Laboratory (“SSFL”).
OBJECTIVE
The objective of the post- cleanup confirmation sampling and analysis plan is to
confirm that residual concentrations of radiological and chemical contaminants of
concern are “not to exceed” local background concentrations. The
implementation of this protocol after cleanup has been completed is to assure
that the end state of the site (the whole of Area IV and the Northern Buffer Zone)
after cleanup will be background (i.e., at the completion of the cleanup, no
contaminants remain in the soil above local background levels), subject to any
special considerations specified in the agreement executed between U.S.
Department of Energy (DOE) and the State of California (the “final agreement”).
Sample collection and data analysis shall be consistent with field sampling plans
and quality assurance/quality control plans for the U.S. Environmental Protection
Agency (USEPA’s) Radiological Background Study, California Department of
Toxic Substances Control (DTSC) Chemical Background Study, and USEPA’s
Radiological Study for Area IV/Northern Buffer Zone (NBZ).
RADIOLOGICAL AND CHEMICAL CLEANUP LEVELS
Radiological Contaminants
Per the final agreement, USEPA, in the course of conducting its radioactive
contaminant background study, will determine local background levels and
detection limits. Upon completion of the USEPA Radiological Background Study,
a table of the radiological background levels will be prepared by USEPA, which
will include both local background concentrations as well as minimum detection
limits for specific contaminants whose minimum detection limits exceed local
background concentrations. DTSC will use USEPA’s radiological background
levels as the “Look-up” Table values for the radiological cleanup levels.
Chemical Contaminants
Per the final agreement, DTSC, in the course of overseeing and approving its
chemical contaminant local background study, will determine local background
levels and chemical detection limits (using methods that are consistent with
USEPA guidance on determining local background concentration values). Upon
completion of the DTSC Chemical Background Study, a “Look-Up” Table of the
chemical cleanup levels will be prepared, which will include both local
background concentrations as well as minimum detection limits for specific
contaminants whose minimum detection limits exceed local background
concentrations.

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 December 6, 2010

CONFIRMATION SAMPLING PROTOCOL
Look-up Table Comparisons
The concentrations of radiological and chemical contaminants of concern
observed in the confirmation samples will be compared directly to the
concentrations listed in the “Look-up” Tables of radiological and chemical
cleanup levels. The “Look-up” levels cannot be exceeded by any sample. The
analytical result level shall be the number that the laboratory reports, not
including (i.e. not adding or subtracting) the standard deviation (analytical error)1.
Analytical methodologies shall be consistent with the USEPA Radiological
Background Study (for radionuclides) and DTSC’s Chemical Background Study
(for chemicals) Quality Assurance Project Plans (QAPPs).
When an area has been impacted by and soil removed due to the presence of
multiple contaminants, all relevant Look-up Table levels will apply.
Uranium, radium, and thorium may occur naturally at SSFL and may accumulate
in drainages. In the absence of an upgradient source, methods to determine
whether levels of these constituents in drainages exceed background shall be
addressed in site-specific plans.
Sampling Methodology and Results Verification
For purposes of this protocol, discrete samples will be collected and analyzed.
Discrete sample collection for radionuclide testing shall be in accordance with
MARSSIM. Individual discrete samples may be homogenized in accordance with
the approved QAPP. Composite sampling techniques will not be used for
confirmation purposes or backfill acceptance testing. Individual confirmation
sample results will be compared to Look-up Table values. If the result is above
the Look-up Table value, two options may be pursued: 1) the suspect sample
may be reanalyzed to verify its accuracy either with a longer count time (for
radionuclides) or increased precision (radiation or chemical); or 2) additional soil
may be excavated and additional confirmation samples taken as described
below. In consultation with the USEPA Technical Advisor, DTSC will determine
the best option available when presented with confirmation sampling results that
exceed Look-up Table values.
For each source area that requires cleanup, analytical test methods during
confirmation sampling shall include all contaminants within the analytical suite
associated with the contaminants of concern identified for that source area. For
radionuclides, the analytical suites shall be the same as those used by USEPA in
its Area IV/NBZ Radiological Study.

1

Federal Register/Vol. 65. No. 236/Thursday, December 7, 2000/Rules and Regulations, page
76727 paragraph 5 (Interpretation of Analytical Results).

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 December 6, 2010

If any individual confirmation sample result is determined to be greater than the
Look-up Table concentrations, additional soil will be excavated from the area
surrounding the point from which the confirmation sample was taken and
additional confirmation samples will then be collected to confirm that remaining
concentrations are below the Look-up Table values.

CONFIRMATION SAMPLE LOCATIONS
Confirmation samples will be collected as follows:
Random Samples
A set of statistically derived random points will be sampled from an area
where soil has been excavated to confirm that enough soil has been
excavated to meet the goal of the cleanup to background. A number of
discrete points will be sampled in accordance with the soil confirmation
sampling plan prepared and implemented by USEPA.
Targeted Samples
Targeted samples may be collected from an area where soil has been
excavated as specified by DTSC in consultation with the USEPA
Technical Advisor. The number and location of targeted confirmation
samples will be determined by DTSC in consultation with the USEPA
Technical Advisor based on their best professional judgment as informed
by their knowledge of the site-specific conditions and their observations of
soil lithology, visual observations, and location of previous soil
contamination that has been removed.

BACKFILL/REPLACEMENT SOILS CONFIRMATION PROTOCOL
Backfill/replacement soils may be from onsite or offsite locations, with a
preference for onsite locations. For purposes of this protocol, “onsite” locations
are those within the geographic boundaries of the SSFL site.
Backfill/replacement soils will be verified as acceptable for use pursuant to a
sample and analysis plan prepared and implemented by USEPA, testing for
chemical and radiological constituents and using analytical methodologies
proposed by USEPA and consistent with this protocol. For any constituent for
which there is no Look-up Table value, USEPA shall propose and DTSC shall
approve the acceptable level for that constituent. DOE shall identify the potential
backfill source locations and USEPA shall test each potential backfill source
location in accordance with its plan.
For backfill soils from the Santa Susana Field Lab, the relevant Look-up Table
shall be for the geologic formation from which the backfill soils were obtained. If

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 December 6, 2010

such soils are approved by DTSC as acceptable, they may be used as backfill at
any location within Area IV and the NBZ. For backfill soils obtained from outside
the Santa Susana Field Lab, the relevant Look-up Table shall be for the
formation to which the backfill soils are to be placed.
If an onsite or offsite source of backfill soils that achieves all Look-up Table
values cannot be reasonably found, then DTSC, DOE and USEPA shall enter a
consultation process and DTSC shall determine the best available source of
backfill.

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