In the United States Court of Appeals for the Ninth Circuit · 2012-02-14 · No. 11-55903 In the...

No. 11-55903

In the United States Court of Appeals for the Ninth Circuit

THE BOEING COMPANY, Plaintiff-Appellee,

v.

DEBBIE RAPHAEL, IN HER OFFICIAL CAPACITY AS THE DIRECTOR OF THE CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL,

Defendant-Appellant.

On Appeal from the United States District Court for the Central District of California, No. 10-cv-4839-JFW (MANx)

Before the Honorable John F. Walter

BRIEF FOR APPELLEE

STEVEN W. HORTON J. STEVEN ROGERS STEVEN E. RUSAK THE BOEING COMPANY P.O. Box 3707 MC 7A-XP Seattle, WA 98124 (425) 865-1074

SETH P. WAXMAN RANDOLPH D. MOSS CARL J. NICHOLS ANNIE L. OWENS WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000

February 13, 2012

Case: 11-55903 02/13/2012 ID: 8067355 DktEntry: 18 Page: 1 of 96

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Appellee The Boeing

Company certifies that it has no parent company. State Street Bank and Trust

Company, a wholly owned subsidiary of State Street Corporation, which is a

publicly traded company, and Evercore Trust Company, N.A., a national trust bank

and a wholly owned subsidiary of Evercore Partners, Inc., each owns more than

10% of the outstanding Boeing stock.


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TABLE OF CONTENTS Page

CORPORATE DISCLOSURE STATEMENT ..........................................................i

TABLE OF AUTHORITIES ....................................................................................iv

PRELIMINARY STATEMENT ...............................................................................1

STATEMENT OF JURISDICTION..........................................................................2

STATEMENT OF ISSUES .......................................................................................2

STATEMENT OF THE CASE..................................................................................2

STATEMENT OF FACTS ........................................................................................3

A. SSFL History.........................................................................................4

B. Pre-SB990 Cleanup Of SSFL..............................................................10

C. SB990 ..................................................................................................12

D. Administrative Orders On Consent .....................................................19

E. Decision Below ...................................................................................20

SUMMARY OF ARGUMENT ...............................................................................22

STANDARD OF REVIEW .....................................................................................25

ARGUMENT ...........................................................................................................25

I. SB990 IS PREEMPTED.....................................................................................25

A. With Few Exceptions, The Federal Government Occupies The Field Of Nuclear Health And Safety............................................26

B. SB990 Regulates In A Federally Occupied Field ...............................29

C. Authority To Regulate Handling And Cleanup Of DOE Nuclear Material Cannot Be Ceded To States ....................................37


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1. The AEA Agreement State provision does not authorize SB990........................................................................38

2. CERCLA does not authorize SB990 ........................................43

D. SB990 Is Not A “Land Use” Statute ...................................................44

II. SB990 VIOLATES INTERGOVERNMENTAL IMMUNITY .....................................46

III. SB990 IS INVALID IN ITS ENTIRETY ...............................................................54

IV. BOEING HAS STANDING..................................................................................56

V. BOEING’S FIELD-PREEMPTION CLAIM IS COGNIZABLE UNDER SECTION 1983.................................................................................................60

CONCLUSION........................................................................................................61

APPENDIX

ADDENDUM

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE


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TABLE OF AUTHORITIES

CASES Page

Adams v. Dole, 927 F.2d 771 (4th Cir. 1991)..........................................................28

Blackburn v. United States, 100 F.3d 1426 (9th Cir. 1996) ....................................46

Bramer v. United States, 595 F.2d 1141 (9th Cir. 1979)...................................29, 38

Brown v. Kerr-McGee Chemical, 767 F.2d 1234 (7th Cir. 1985) .....................31, 32

Butts v. Merchants & Miners Transportation, 230 U.S. 126 (1913).......................55

Central Arizona Water Conservation District v. EPA, 990 F.2d 1531 (9th Cir. 1993) ...............................................................................................59

City of Detroit v. Murray Corp., 355 U.S. 489 (1958) ............................................51

City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440 (9th Cir. 2011) ...............................................................................................57

Clinton v. City of New York, 524 U.S. 417 (1998) ..................................................57

Community Bank v. G.V.M. Trust, 366 F.3d 982 (9th Cir. 2004)............................25

Davis v. Michigan Department of Treasury, 489 U.S. 803 (1989) .........................53

English v. General Electric, 496 U.S. 72 (1990).............................26, 29, 30, 45, 46

Franz Chemical v. Philadelphia Quartz, 594 F.2d 146 (5th Cir. 1979)..................41

Goodyear Atomic v. Miller, 486 U.S. 174 (1988)..............................................46, 49

Hancock v. Train, 426 U.S. 167 (1976)...................................................................46

Harkins Amusement Enterprises v. General Cinema, 850 F.2d 477 (9th Cir. 1988) .................................................................................................25, 41

Hillis v. Heineman, 626 F.3d 1014 (9th Cir. 2010) ...............................36, 50, 54, 60

Hotel Employees & Restaurant Employees International Union v. Davis, 981 P.2d 990 (Cal. 1999)...............................................................................55


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Illinois v. General Electric, 683 F.2d 206 (7th Cir. 1982) ......................................31

In re Global Industrial Technologies, 645 F.3d 201 (3d Cir. 2011) .......................57

Jersey Central Power & Light v. Township of Lacey, 772 F.2d 1103 (3d Cir. 1985).................................................................................................31

Kerr-McGee Chemical v. City of West Chicago, 914 F.2d 820 (7th Cir. 1990) .........................................................................................24, 61

Lac Du Flambeau Band v. Norton, 422 F.3d 490 (7th Cir. 2005) ..........................58

Local Number 93, International Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986) ....................................................................60

Long Island Lighting v. County of Suffolk, 628 F. Supp. 654 (E.D.N.Y. 1986).............................................................................................26

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..............................................59

Missouri v. Westinghouse Electric, 487 F. Supp. 2d 1076 (E.D. Mo. 2007).............................................................................................43

Moses Lake Homes v. Grant County, 365 U.S. 744 (1961).........................46, 51, 53

NRDC v. NRC, 606 F.2d 1261 (D.C. Cir. 1979)................................................36, 38

North Dakota v. United States, 495 U.S. 423 (1990) ......................23, 46, 47, 50, 53

Northern States Power v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff’d, 405 U.S. 1035 (1972).....................................................................31, 43

Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission, 659 F.2d 903 (1981), aff’d, PG&E v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983).................................................................49

PG&E v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983).........................................26, 27, 29, 37, 43

Phillips Chemical v. Dumas Independent School District, 361 U.S. 376 (1960).................................................................................................46, 51, 53

Rice v. Santa Fe Elevator, 331 U.S. 218 (1947)......................................................25


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Russian River Watershed Protection Committee v. City of Santa Rosa, 142 F.3d 1136 (9th Cir. 1998) .......................................................................54

Sacks v. OFAC, 466 F.3d 764 (9th Cir. 2006) .........................................................59

San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121 (9th Cir. 1996) ...............................................................................................56

Silkwood v. Kerr-McGee, 464 U.S. 238 (1984).......................................................26

Silvas v. E*Trade Mortgage, 514 F.3d 1001 (9th Cir. 2008) ..................................26

Skull Valley Band v. Nielson, 376 F.3d 1223 (10th Cir. 2004) ...............................31

United States v. Boyd, 378 U.S. 39 (1964) ..............................................................51

United States v. City of Arcata, 629 F.3d 986 (9th Cir. 2010) ................................48

United States v. City of Tacoma, 332 F.3d 574 (9th Cir. 2003) ..............................58

United States v. Kentucky, 252 F.3d 816 (6th Cir. 2001) ................26, 30, 32, 36, 49

United States v. Locke, 529 U.S. 89 (2000).............................................................26

United States v. Manning, 434 F. Supp. 2d 988 (E.D. Wash. 2006) aff’d, 527 F.3d 828 (9th Cir. 2008) .........................................................................43

United States v. Manning, 527 F.3d 828 (9th Cir. 2008)................................. passim

United States v. New Mexico, 455 U.S. 720 (1982) ................................................51

DOCKETED CASES

NRDC v. DOE, No. 04-cv-04448 (N.D. Cal.) .........................................................34

STATUTES

28 U.S.C. §1291 ...............................................................................................................2 §1331 ...............................................................................................................2 §1343(a)(3) ......................................................................................................2

42 U.S.C. §1983.................................................................................................24, 60


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Atomic Energy Act of 1954, 42 U.S.C. §§2011, et seq. .................................................................................................2 §2011 .............................................................................................................27 §2014(f) .........................................................................................................28 §2014(s) .........................................................................................................39 §2018 .......................................................................................................40, 49 §2021(a)(4) ....................................................................................................27 §2021(b)...................................................................................................28, 38 §2021(c)(1) ..............................................................................................30, 43 §2021(g).........................................................................................................40 §2051 .............................................................................................................28 §2051(a) ...................................................................................................27, 38 §2051(a)(5) ....................................................................................................28 §2051(a)(6) ....................................................................................................28 §2051(d).........................................................................................................29 §2052 .......................................................................................................27, 28 §2061(b)...................................................................................................27, 38 §2071 .............................................................................................................27 §§2073-2078 ..................................................................................................27 §§2111-2114 ..................................................................................................27 §2111(a) .........................................................................................................39 §2121(a)(1) ....................................................................................................28 §2121(a)(2) ....................................................................................................28 §2121(a)(3) ....................................................................................................36 §2140(a) .........................................................................................................38 §2201(b)...................................................................................................27, 28

National Environmental Policy Act of 1969, 42 U.S.C. §§4321, et seq. ................34

Energy Reorganization Act of 1974, 42 U.S.C. §5801(b).........................................................................................................28 §§5801-5891 ..................................................................................................28 §5812(d).........................................................................................................36 §5814(c) .........................................................................................................28 §5841(f) .........................................................................................................28


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Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§6901, et seq. ...............................................................................................11 §6903(5)...................................................................................................11, 50 §6903(27).................................................................................................11, 50 §6905(a) ...................................................................................................11, 50 §6926 .............................................................................................................11 §6961(a) ...................................................................................................11, 50

Department of Energy Reorganization Act (1977), 42 U.S.C. §§7101, et seq. .............................................................................................................28

Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §9620(a)(4) ..............................................................................................44, 49 §9607(a)-(c) ...................................................................................................57 §9613(f) .........................................................................................................57

S. Rep. No. 93-980 (1974) .......................................................................................36

10 C.F.R. §30.4 ..............................................................................................................39 §30.12(a) ........................................................................................................38 §40.11 ............................................................................................................38 §70.11(a) ........................................................................................................38 §150.3 ............................................................................................................39 §150.15(a)(1)(i) .............................................................................................43

40 C.F.R. pt. 302 ......................................................................................................43

46 Fed. Reg. 7540 (Jan. 23, 1981) ...............................................................38, 40, 41

Fed. R. Civ. P. R. 54(b) ............................................................................................................3 R. 56(c) ..........................................................................................................16 R. 56(e) ..........................................................................................................16

132 Cong. Rec. 28,413 (1986) .................................................................................50


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California Health & Safety Code ch. 6.5.............................................................................................................11 §25356.1.5(d).................................................................................................14 §25359.20 ......................................................................................................51 §25359.20(a) ......................................................................................21, 31, 45 §25359.20(c) ......................................................................................13, 14, 55 §25359.20(d)..................................................................................................16 §25359.20(e) ......................................................................................16, 31, 45

California Environmental Quality Act, Cal. Pub. Res. Code §§21000, et seq. .............................................................................................................34

California Senate Bill 990................................................................................ passim

OTHER AUTHORITIES

Tribe, Laurence H., 1 American Constitutional Law (3d ed. 2000) ..................25, 33

DOE, EM Environmental Management: The EM Story, available at http://www.em.doe.gov/pdfs/EM%20Story%20brochure%20final%20final.pdf (last visited Feb. 12, 2012) ......................................................37

DOE, Report to Congress: Status of Environmental Management Initiatives to Accelerate the Reduction of Environmental Risks and Challenges Posed by the Legacy of the Cold War (2009), available at http://www.em.doe.gov/pdfs/NDAA%20Report-(01-15-09)a.pdf ...........37

DOE Order 5400.5, Chg. 2, Radiation Protection of the Public and the Environment IV-1 (Jan. 7, 1993)...................................................................36

DOE Order 5400.1, Chg. 1, General Environmental Protection Program (June 29, 1990) ..............................................................................................36

DOE Order 231.1A, Chg. 1, Environment, Safety, and Health Reporting (June 6, 2004) ................................................................................................36

DOE Order 450.1A, Environmental Protection Program (June 4, 2008)................36

NRC Directive 5.6, Integrated Materials Performance Evaluation Program Manual (rev. 2004), available at http://pbadupws.nrc.gov/docs/ML0414/ML041410578.pdf .........................41


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NRC Procedure SA-500, Jurisdiction Determinations (Sept. 25, 2007), available at http://nrc-stp.ornl.gov/procedures/sa500.pdf ............................39

OSWER Directive No. 9355.7-04, Land Use in the CERCLA Remedy Selection Process (May 25, 1995).................................................................14


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PRELIMINARY STATEMENT

California Senate Bill 990 (“SB990”) is, by any measure, an extraordinary

law. It singles out one site—the Santa Susana Field Laboratory (“SSFL”), a

former federal nuclear-research and rocket-testing facility—for uniquely onerous

cleanup rules that apply nowhere else in California. It purports to govern the

cleanup of radiological contamination resulting from Department of Energy

(“DOE”) nuclear-research operations, authority long reserved exclusively to the

federal government. It attempts to justify singling out SSFL for disparate

treatment based on a history of activity by DOE, NASA, the military, and Boeing

as their federal contractor and lessor, even though states cannot regulate that

federal activity without express congressional authorization not present here. It

prevents Boeing from transferring its SSFL land until SB990’s requirements are

met—a process that Defendant Department of Toxic Substances Control (“DTSC”)

admits could take up to 50,000 years. BER727. And it would impose these

extraordinary burdens without any scientific or technical basis: DTSC’s own

witnesses conceded that there is no public-health or technical justification for

SB990. BER29-31; BER179-181; BER214. For these reasons, as the district court

correctly held, SB990 violates the Supremacy Clause and cannot stand.


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STATEMENT OF JURISDICTION

The district court had jurisdiction under 28 U.S.C. §§1331 and 1343(a)(3).

On May 5, 2011, it entered final judgment for Boeing on Counts One through

Three of the Amended Complaint under Federal Rule of Civil Procedure 54(b).

ER5-6. Appellant filed a notice of appeal on June 3, 2011. ER1-4. This Court has

jurisdiction under 28 U.S.C. §1291.

STATEMENT OF ISSUES

1. Whether the district court correctly held that SB990, which regulates

the handling and cleanup of nuclear material generated by DOE, its predecessors,

and its contractors, is preempted by federal law because it regulates nuclear health

and safety, a field the federal government occupies exclusively under the Atomic

Energy Act of 1954 (“AEA”), 42 U.S.C. §§2011, et seq.

2. Whether the district court correctly held that SB990 violates

intergovernmental immunity because it discriminates against SSFL as a federal

facility, Boeing as a federal contractor and federal lessor, and the federal

government by imposing cleanup standards that are more onerous than those that

apply to other sites in California.

STATEMENT OF THE CASE

SB990 was enacted in October 2007. On November 13, 2009, Boeing, a

federal prime contractor and part-owner of SSFL, initiated this action in the


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Eastern District of California. On December 28, 2009, Boeing filed an Amended

Complaint, alleging that SB990 is preempted because it regulates in a federally

occupied field (Counts One and Two); violates intergovernmental immunity

(Count Three); conflicts with federal law (Counts Four and Five); violates equal

protection (Counts Six and Seven); and violates due process (Counts Eight and

Nine).

On June 21, 2010, venue was transferred to the Central District of

California. After discovery, Boeing moved for summary judgment on Counts One

through Three and Six through Nine of the Amended Complaint.

On April 26, 2011, the district court granted Boeing’s motion on Counts One

through Three, striking down SB990 as preempted by the AEA and as violating

intergovernmental immunity. The court stayed Boeing’s remaining claims and, on

May 5, 2011, entered final judgment on Counts One through Three under Federal

Rule of Civil Procedure 54(b), finding no just reason for delaying entry of final

judgment.

STATEMENT OF FACTS

As the district court found, the facts material to the disposition of Boeing’s

summary-judgment motion, including the “facts related to the history of SSFL,

cleanup efforts to date, and the enactment of SB990, are … undisputed.” ER7-8;

see ER7 n.1.


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A. SSFL History

SSFL is a former research-and-development facility in Ventura County,

California, comprising approximately 2,850 acres. BER695-696.1 Since the

1940s, Boeing2 has owned or occupied land at SSFL, using it predominantly to

perform work for the federal government. BER696. The federal government also

has owned and leased property there since the early 1950s. Id. Today, Boeing

owns approximately 2,398 acres, and the federal government owns approximately

452 acres, which NASA administers. BER696-697. The federal government

continues to lease from Boeing approximately 90 acres of the site, which DOE3

administers. BER697.

For nearly sixty years, the federal government and Boeing used SSFL to

research, develop, and test groundbreaking technologies in nuclear energy,

defense, and space exploration. BER697; BER301-305; BER417-419. 1 DTSC stipulated that it would dispute only one fact regarding Boeing’s Supremacy Clause claims—which is actually neither disputed nor material—by agreeing that no dispute “exists [of] any issue of material fact …, except” that Boeing “engaged in certain commercial activity at” SSFL, although DTSC further agreed “it is not possible at this time to identify any particular radiological or chemical contamination … that resulted from nonfederal activity.” BER6. Contrary to Amici’s insinuations (at 8-9), substantial record evidence supports the undisputed facts, most of which originated from or were confirmed by DTSC’s own witnesses. See ER188-262; BER694-783. 2 References to “Boeing,” where appropriate, include Rockwell International, which Boeing acquired in 1996, and North American Aviation, Rockwell International’s predecessor. 3 References to “DOE” include its predecessor agencies.


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Nuclear-Energy Research. From the 1950s to the 1980s, DOE researched

pioneering technologies for peacetime nuclear-energy electricity production at

SSFL. BER697-698; BER360-374. Boeing carried out that program for DOE as a

prime contractor, and a portion of SSFL, known as “Area IV,” was designated for

that work. BER698; BER338-359. DOE leased part of Area IV from Boeing and

conducted its operations in a DOE-controlled complex known as the Energy

Technology Engineering Center (“ETEC”), which at its height included more than

200 buildings and facilities, many of which DOE constructed and owned.

BER697-699; BER385-386; BER394-398.

The vast majority of radiological activity at SSFL was performed under this

program, which DOE conducted pursuant to its authority under the AEA.

BER699. Among other things, DOE owned and operated sixteen experimental

nuclear-reactor facilities or critical-test facilities (low-powered reactors), some of

which were used for researching domestic electricity production and others for

developing compact energy sources for the Nation’s space program. Id. DOE also

sponsored nuclear-reactor support activities, including nuclear-fuel manufacturing

and decladding of spent irradiated nuclear fuel in a “Hot Laboratory.” BER700.

One DOE reactor, the Sodium Reactor Experiment, alone generated roughly

90% of the total contained radioactivity at SSFL. BER699-700. During federal

operations in 1959, that reactor experienced a significant core-damage accident.


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BER700. These and other DOE activities resulted in radiological contamination—

consisting of “byproduct,” “source,” and “special nuclear” material—in SSFL’s

soil, groundwater, and bedrock.4 BER700-701.

During the same time period, Boeing conducted a comparatively small

amount of radiological work in Area IV in a non-governmental, commercial

capacity. BER701. That commercial work, much of which was federally

regulated, used or generated the same radioisotopes that were used or generated in

the federal work and was conducted in the same areas as the federal work. Id. For

instance, for a period Boeing privately operated one nuclear reactor and one

critical-test facility; these activities were federally licensed by the Atomic Energy

Commission (“AEC”) and its successor, the Nuclear Regulatory Commission

(“NRC”). BER701-702. Boeing conducted an even smaller amount of state-

licensed commercial work at SSFL, including the manufacture and repackaging of

“sealed sources” and routine industrial activity using radiological materials, such

as the use of X-ray machines and depth, level, and density gauges. BER702-703.

It is undisputed that this private commercial activity was much less likely to

have resulted in radiological contamination than the federal activity. BER703.

Indeed, after more than forty years of sampling and analyzing the contamination,

4 Although concentrated in Area IV, radiological contamination has been detected in other areas of SSFL; the parties agree that such contamination is likely the result of federal activities. BER701.


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BER714-715, DTSC cannot identify any existing radiological contamination at

SSFL resulting from private commercial activity, BER703; BER105; BER174.

DTSC’s witness admitted that “all” of the radiological contamination currently

present in the soil, bedrock, and groundwater at SSFL is “DOE material[].”

BER103. And DTSC concedes that because the private commercial activity took

place concurrently with and in the same buildings as federal activity and involved

the same radioisotopes, any private radiological contamination would be

indistinguishable from and/or inextricably intermixed with federal radiological

contamination. BER703-704. It is therefore uncontested that such intermixing

would prevent any private contamination from being remediated separately from

federal contamination. BER704; BER175.

Rocket-Testing. SSFL was also the site of federal rocket-testing activity

dating back to the beginning of the Nation’s space program. BER705-706;

BER437-602. SSFL originated as a military test site after World War II when the

Air Force contracted with North American Aviation, a Boeing precursor, to

develop the Navaho guided missile system; SSFL was established to test the

engines for that and other ballistic-missile systems throughout the Cold War.

BER705. Until 2006, the Air Force and NASA also used Boeing as a prime

contractor at SSFL to test liquid-propellant rocket engines, including the Atlas,

Jupiter, Thor, and Delta engines, as well as the Space Shuttle Main Engine.


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BER705; BER419. Many such engines powered major American space

expeditions, including the Apollo missions and the Moon landing. BER705-706.

Boeing also constructed and operated six rocket-engine test-stand areas for the

government, located on both federally owned and Boeing-owned portions of SSFL,

and tested rocket components and fuel in SSFL facilities. BER706.

These rocket-testing operations contaminated SSFL’s soil, bedrock, and

groundwater. BER706-707. Most notably, significant contamination resulted

from using the solvent trichloroethylene (“TCE”) to clean liquid-propellant engines

and rocket test stands. BER707. NASA has determined that more than 500,000

gallons of TCE were released into the ground at SSFL from federal rocket-testing

activities and that 97% of this total release occurred before the installation of TCE-

containment systems, which, beginning in 1961, helped prevent the release of TCE

directly into the ground. BER707-708; BER536-542. TCE use related to liquid-

propellant rocket testing at SSFL ceased in the 1990s. BER708.

It is undisputed that the overwhelming majority of rocket-testing activity at

SSFL was performed for the federal government, and that any private rocket

testing would have taken place well after the TCE-containment systems were

installed. BER708. Accordingly, any TCE contamination at SSFL that might have

resulted from commercial rocket testing would be de minimis compared to the

federal TCE contamination. BER708-709. DTSC cannot identify any TCE


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contamination resulting from non-federal activity, and in any event such

contamination would be indistinguishable from and/or inextricably intermixed with

contamination resulting from federal rocket testing. BER709; BER157-158;

BER279-282. It is therefore undisputed that any private TCE contamination could

not be identified and remediated separately from federal TCE contamination.

BER709-710; BER678-679.

Rocket testing, energy research, and other federal activities at SSFL resulted

in other kinds of chemical contamination, consisting of perchlorate, heavy metals,

PCBs, dioxins, and volatile and semivolatile organic compounds. BER710. This

federal contamination is present in all operational areas and is not limited to the

areas currently owned, controlled, or leased by the federal government. BER707.

It is undisputed that the vast majority of this contamination resulted from federal

activities; that any chemical contamination resulting from private commercial

operations would be exceedingly small in comparison; that DTSC can identify no

chemical contamination resulting from non-federal activity; that any private

chemical contamination at SSFL would be indistinguishable from and/or

inextricably intermixed with chemical contamination resulting from federal

activity; and that any private contamination could not be remediated separately

from federal contamination. BER710-711.


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B. Pre-SB990 Cleanup Of SSFL

As it has for forty years, Boeing serves as a federal contractor in the SSFL

cleanup, pays a portion of the cleanup costs, and will bear a portion of the costs not

paid by or recovered from the federal government in an allocation proceeding.

BER711-712.

Radiological Cleanup. For more than forty years before SB990, DOE

regulated the radiological cleanup in Area IV under its exclusive AEA authority.

BER712-713; BER311-312. During that cleanup, the radiological contamination

in Area IV was extensively sampled and analyzed, and the principal sources, types,

and locations of the contamination have been identified. BER713-714. This

analysis includes a radiological survey conducted in 1988, a second radiological

survey in 1995,5 and numerous characterization and final status surveys associated

with the footprints of former radiological facilities. BER714-715. Thousands of

soil, bedrock, and groundwater samples have been taken in Area IV. BER715.

Many thousands of pages of analysis have been prepared and a large quantity of

historical and technical documents have been reviewed and collected. Id.

In 1996, DOE approved new procedures governing the radiological cleanup,

BER715, which required that Boeing and DOE clean up Area IV to a level that

5 Although DTSC refers (at 6) to this survey as the “Boeing survey,” it is undisputed that Boeing performed the survey on DOE’s behalf as a federal contractor. BER714-715; BER306.


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would have enabled the site to be used for suburban-residential purposes and

limited exposure to future users to no more than 15 millirem of radiation per year,

BER715-716. This standard, the parties agree, was exceedingly conservative: It is

more protective than that normally applied by the NRC to the decommissioning of

commercial radiological facilities and would result in a lower annual dose of

radiation than four cross-country round-trip airplane flights. BER716-717.

Chemical Cleanup. Before SB990, DTSC supervised the cleanup of SSFL’s

non-radiological contamination under the State’s generally applicable hazardous-

waste management laws, Cal. Health & Safety Code ch. 6.5, see BER717, which

are modeled on the federal Resource Conservation and Recovery Act of 1976

(“RCRA”), 42 U.S.C. §§6901, et seq. RCRA regulates hazardous waste and

allows the U.S. Environmental Protection Agency (“EPA”) to authorize states to

administer their own hazardous-waste management programs. 42 U.S.C. §6926.

RCRA excludes from its coverage radiological materials regulated under the AEA,

see id. §§6903(5), (27), 6905(a), and waives sovereign immunity for federal

facilities, allowing state laws to regulate non-radiological contamination at those

facilities, but only “in the same manner, and to the same extent, as any person is

subject to such requirements,” id. §6961(a). As authorized by RCRA and the EPA,

California’s generally applicable laws apply to non-radiological waste at sites

throughout California, see Cal. Health & Safety Code ch. 6.5, including at SSFL.


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As with the radiological contamination, the chemical contamination at SSFL

has been extensively sampled and analyzed, and the principal sources, types, and

locations identified. BER717. Chemical characterization has been ongoing for

more than twenty-five years and has involved taking more than 35,000 soil,

bedrock, and groundwater samples; preparing more than 100,000 pages of analysis

detailing the sources and extent of the chemical contamination; and submitting

approximately 800,000 pages of historical and technical supporting documents.

BER717-718.

In August 2007, DTSC, Boeing, DOE, and NASA entered into a Consent

Order for Corrective Action governing the remediation of chemical contamination

at SSFL. BER718-719. This Consent Order based the cleanup of chemical

contamination on an assumption that the site would be used for suburban-

residential purposes in the future. BER719; BER424; BER433-436; BER606-615.

DTSC agrees that this cleanup level is conservative. BER719-720.

C. SB990

Enactment and Operation. In October 2007, California enacted SB990.

Entitled “Cleanup of Santa Susana Field Laboratory,” SB990 purports to assert

state jurisdiction over the SSFL cleanup and singles out the entire site for

exceptionally stringent requirements that apply nowhere else. SB990 requires that,

for purposes of the SSFL cleanup only: “in calculating the risk, the cumulative


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risk from radiological and chemical contaminants at the site shall be summed, and

the land use assumption shall be either suburban residential or rural residential

(agricultural), whichever produces the lower permissible residual concentration for

each contaminant.” Cal. Health & Safety Code §25359.20(c).

That language breaks markedly from generally applicable state (or federal)

environmental law by mandating the most onerous possible future land-use

assumption be used in the SSFL risk assessment, regardless of the likely actual

future use of the land. BER723. Risk assessments, which are critical to any

environmental cleanup, determine the risk posed to human health and the

environment by the residual contamination remaining at a site once a cleanup is

complete. Id. The reasonably foreseeable land-use assumption for a contaminated

site is one of the principal variables in a risk assessment and the principal factor in

determining the ultimate cleanup standard. BER723-724; BER313-314.

Each future land-use scenario—such as agricultural, suburban-residential,

industrial, or open space—assumes that a future user of the land will be exposed to

a degree of residual contamination through certain “pathways,” such as inhalation

of air and ingestion of water and food grown on the site. BER724. The reasonably

foreseeable use of the land determines the level of likely exposure to residual

contamination, id.; BER313; the greater the assumed exposure, the more stringent

the ultimate cleanup standard. BER724. For example, a site likely to be used as a


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subsistence farm—i.e., a farm from which future residents will obtain 100% of

their food and water from the land—would usually demand the most stringent

standard because that scenario assumes the greatest exposure through the most

pathways. BER724-725; BER313.

The reasonably foreseeable future use of a site is usually determined by

weighing many factors, including the current land use, zoning, county general

plans, topography and natural resources, institutional controls, cultural resources,

and endangered species. See Cal. Health & Safety Code §25356.1.5(d); BER403-

413 (OSWER Directive 9355.7-04); BER725; BER620-621. SB990, by contrast,

mandates a preordained land-use assumption—the stricter of suburban-residential

or agricultural—that DTSC admits is “counterfactual,” BER725, bearing no

relationship to how the land, in fact, is likely to be used. Compare Cal. Health &

Safety Code §25359.20(c), with id. §25356.1.5(d) and BER403-413 (OSWER

Directive 9355.7-04); see BER723-724; BER22 (“because SB 990 placed an

explicit cleanup standard into statute for the site, the normal process which uses a

number of considerations to yield a cleanup standard … is not available”).

Both parties agree that SB990’s land-use assumption would require Boeing

and the federal government to clean up SSFL to a point appropriate for subsistence

farming—where full-time residents would obtain all of their food from the site—

but no one ever has suggested that SSFL will actually be used as a farm, and DTSC


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admits there is no basis for such a conclusion. BER725-726. SSFL’s current use

is industrial, and Boeing has publicly committed permanently to restrict and

dedicate its SSFL property to public use as open space upon cleaning up to

suburban-residential standards.6 BER726. Moreover, SSFL is in an area that the

Ventura County General Plan has designated for open-space use, id., and it is

undisputed that SSFL’s largely rocky terrain makes it ill-suited for use as a farm.

BER655. Photographs of portions of the site are available in Boeing’s Excerpts of

Record. BER502-513.

It is therefore unsurprising that before SB990, an agricultural land-use

assumption for SSFL was never contemplated. DTSC had approved the suburban-

residential future land-use assumption for the chemical cleanup, BER719;

BER424—a more conservative scenario than open-space, but far less onerous than

the counterfactual land-use assumption SB990 mandates, BER724-725. And DOE

had approved the radiological-cleanup criteria based on a suburban-residential

land-use assumption, rejecting an agricultural assumption as “not a reasonable

scenario for the site.” BER380; BER715-716.

6 Boeing made this commitment in a 2007 letter of intent with the State. BER328-332. Although the State withdrew from that agreement, Boeing remains committed to dedicating the SSFL property for use as open-space parkland upon a cleanup to suburban-residential standards. BER314. But even absent that commitment, for the reasons discussed above, the reasonably foreseeable future use of the site would not be agricultural.


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SB990 also differs from generally applicable law by making it a crime for

Boeing (or the federal government) to “sell, lease, sublease, or otherwise transfer

[SSFL] land” until DTSC “certif[ies] that the land has undergone complete

remediation pursuant to the most protective standards in” SB990. Cal. Health &

Safety Code §25359.20(d), (e); BER254. SSFL’s geology poses significant

remediation challenges, and DTSC concedes that remediating SSFL groundwater

to SB990 standards could take up to 50,000 years. BER727; BER71-72.

SB990’s Impact. SB990’s implications are significant. By requiring a

cleanup to levels suitable for subsistence farming, SB990 would mandate a process

that is extraordinarily more stringent, expensive, and time consuming than

generally applicable law. BER746-747;7 BER54-58; BER257-260. For example,

it is undisputed that SB990 would require the cleanup of one radionuclide, cesium-

137, to levels 50 times more stringent than the suburban-residential standard DOE

had approved before SB990, and 2000 times more stringent than an open-space

standard. BER729-730. This more-onerous standard would require substantially

7 Although DTSC purported to dispute some of these facts, which were established by its own 30(b)(6) witnesses, it did not submit contrary evidence as Federal Rule of Civil Procedure 56(c) requires, see also Fed. R. Civ. P. 56(e), and indeed stipulated that it would not contest these facts for purposes of Boeing’s preemption and intergovernmental-immunity claims. BER6. While DTSC did reserve its ability to dispute the completeness of the characterization of contamination at SSFL for purposes of Boeing’s equal protection and due process claims, that reservation is irrelevant to this appeal.


- 17 -

more soil to be removed from SSFL, requiring numerous additional dump-truck

trips through the community (in turn increasing the risk of traffic deaths and illness

from diesel pollution),8 and destroying considerably more of the existing

ecological habitat at SSFL than would otherwise occur. BER747-749;9 BER639-

640; BER675-678. But DTSC admittedly has not attempted to determine whether

any potential benefit SB990 might have on public health and safety would

outweigh these significant potential adverse consequences. BER747.

Moreover, DTSC’s witnesses could identify no technical or public-safety

reason to single out SSFL for more onerous cleanup procedures. BER740-742;

BER29-31; BER137-138; BER179-181; BER214. They admitted that the pre-

SB990 procedures for both radiological and chemical cleanup fully protected

human health and the environment. BER715-717; BER719-720; see, e.g,

BER203-205; BER26-27; BER114-117. Indeed, the only reason DTSC’s

witnesses could identify for singling out SSFL is a political one. BER735-740;

BER112-113 (“Q. Are you aware of any reason to single out SSFL for different

8 One Boeing estimate calculated that remediating SSFL to SB990 standards would require removing an additional 1.6 million cubic yards of soil—necessitating up to 80,000 additional dump-truck trips. BER285-286; BER675-676. Although DTSC does not concede the accuracy of this calculation, its witnesses testified that Boeing’s underlying assumptions were not unreasonable and acknowledged that SB990 would require more soil to be removed from the site, BER293-295. 9 See supra n.7.


- 18 -

cleanup rules that otherwise apply? [A.] … [F]rom a technical basis, no. Q. … Is

the other basis political? A. Yes.”); BER129-130.

Legislative Findings. In enacting SB990, the legislature made findings in an

effort to justify singling out SSFL and to prevent SB990 from qualifying as

“special” legislation prohibited by the California Constitution. See SB990 §2.

These findings focus overwhelmingly on the history of federal activity at SSFL—

especially DOE radiological activity—and resulting contamination. They describe

a series of federal radiological fires and accidents, including “the most famous

accident” involving the core-damage incident at DOE’s Sodium Reactor

Experiment, and resulting radiological contamination. SB990 §2(c)-(e); BER728;

BER700. The findings also describe radiological operations that DTSC concedes

were federal, such as “a plutonium fuel fabrication facility; a uranium carbide fuel

fabrication facility; a Hot Lab used for remotely cutting up irradiated nuclear fuel”;

and a “sodium burn pit” that became radioactively contaminated. SB990 §2(b);

BER727-728. And the findings cite other activity that DTSC acknowledges was

federal, see BER705-710, such as the “development and testing of … rockets,

missiles, and munitions”; historical waste-disposal practices; resulting chemical

contamination; and contamination from cleaning rocket test stands “with TCE,

approximately half a million gallons of which … percolate[d] into the soil and

groundwater,” SB990 §2(a), (g).


- 19 -

As DTSC concedes, those findings have no bearing on the appropriate future

land-use assumption for the site. BER749-750; BER184-189; see BER659-660.

DTSC’s witnesses also conceded that the factors purportedly making SSFL

“unique” do not make it unique at all. BER730-735.10 The same contaminants

listed in SB990 §2(g)—“perchlorate, heavy metals, PCBs, dioxins, volatile

organic, and semivolatile organic compounds, in addition to radioactivity”—exist

at numerous other sites in California, and in higher concentrations than at SSFL.

BER731-735;11 BER190-212; BER275-279; BER664-671. And it is undisputed

that many other contaminated sites in California are closer than SSFL to major

population centers. BER735; BER671-674.

D. Administrative Orders On Consent

In December 2010, DTSC signed Administrative Orders on Consent

(“AOCs”) with DOE and NASA purporting to address the federal radiological and

chemical cleanup of soil for portions of the site. DTSC asserts that SB990 is

“intended … to be the jurisdictional basis” for these agreements. Br. 13. The

AOCs are contingent on conditions that have not been satisfied. See ER56-57

¶¶6.1-6.2; ER107-108 ¶¶4-4.3. They also do not apply to the cleanup of

groundwater and certain bedrock even within the geographic portions of the site

10 See supra n.7. 11 See supra n.7.


- 20 -

they do cover, ER38 ¶1.2; ER92 ¶1.2, and they leave the cleanup of federal

contamination at other portions of the site wholly unaddressed, ER40 ¶1.6; ER42

¶1.8.4; ER93-96 ¶¶1.4.1, 1.5, 1.7.1, 1.7.4. Boeing is not a party to the AOCs.

E. Decision Below

On April 26, 2011, the district court granted Boeing’s summary-judgment

motion on Counts One through Three.

The district court first held that federal law preempts SB990. ER15-21.

Relying on this Court’s decision in United States v. Manning, 527 F.3d 828 (9th

Cir. 2008), the court held that the AEA occupies the field of nuclear health and

safety and that SB990 is preempted because, by purporting to regulate the cleanup

of DOE-related radiological material for health and safety reasons, it “regulates

squarely within” that field, ER16-21. The district court rejected DTSC’s argument

that SB990 is merely a land-use statute and thus within the State’s regulatory

authority, emphasizing that “[t]he statute’s language and legislative history

demonstrate that SB 990 is a cleanup statute focused on public health and safety”

and that it “does not regulate how SSFL can or should be used in the future.”

ER18. The district court similarly rejected DTSC’s contention that SB990 was

authorized under power that Congress had granted to states under the AEA’s

“Agreement State” provision, recognizing that that provision applies only to the

NRC’s ability to delegate portions of its authority to license commercial


- 21 -

radiological materials, and does not “purport[] to delegate to California any

authority over DOE activity, DOE prime contractors, or DOE related AEA

materials.” ER19. Rather, “under the AEA, DOE, and not the NRC, has exclusive

authority over DOE research activities and cleanup of any resulting

contamination.” Id.

Second, the court held that SB990 violates intergovernmental immunity

because it “directly regulates Boeing, as a federal contractor and lessor, and the

federal government by permitting DTSC ‘to compel’ Boeing, DOE, and NASA ‘to

take or pay for appropriate removal or remedial action necessary to protect the

public health and safety and the environment’” at SSFL, ER22 (quoting Cal.

Health & Safety Code §25359.20(a)), and because it “treats Boeing, as both a

federal contractor and lessor, the federal government, and SSFL far less favorably

than it treats other contaminated sites and potentially responsible parties,” id.

Concluding that the invalid portions of SB990 cannot be severed from any

potentially valid portions, the district court struck down SB990 in its entirety.

ER24. It held that the entire law must fail because “[i]t is undisputed that any

private contamination at SSFL is inextricably intermixed with and

indistinguishable from the federal contamination, and it is impossible to apply SB

990 to only the private contamination at the site”; in enacting SB990, the

legislature targeted the federal radiological contamination at SSFL, as evident from


- 22 -

its citing as justification for the law “federal historical activities, accidents, and the

resulting contamination, all of which are beyond California’s authority to

regulate”; and “any effort to save SB 990 by attempting to carve out the portion

related solely to private contamination would fail because the invalid portion of SB

990 cannot be removed ‘without affecting the wording of any of the measure’s

other provisions.’” Id.

SUMMARY OF ARGUMENT

A. As the district court correctly held, SB990 is invalid for two

independent reasons. First, by purporting to govern the cleanup and handling of

DOE-related radiological materials, SB990 regulates squarely in the federally

occupied field of nuclear health and safety. Courts have consistently rejected state

attempts to regulate in this quintessentially federal area, see Manning, 527 F.3d at

836, and the district court correctly recognized that SB990’s regulation of DOE-

related radiological materials at SSFL is no exception. Although DTSC contends

that SB990 falls within the scope of authority delegated to California under the

AEA’s “Agreement State” provision, only the NRC can delegate its authority to

states under that provision, and the NRC’s authority extends only to licensing and

regulation of commercial radiological activities and material, not to DOE

materials. Nor does CERCLA “expressly cede[]” authority to regulate DOE-

related AEA materials to states.


- 23 -

DTSC’s effort to salvage SB990 on the ground that it is merely a “land-use”

statute is not credible. DTSC admits that SB990 targets the cleanup of DOE

radiological materials for safety reasons and acknowledges that SB990 does not

regulate how the SSFL land can or should actually be used. Instead, as SB990’s

express terms and legislative history make clear, it is plainly an environmental-

cleanup statute regulating radiological materials covered by the AEA.

Second, SB990 violates intergovernmental immunity. That doctrine

prohibits states from directly regulating the federal government and from

discriminating against the federal government or those with whom it deals. North

Dakota v. United States, 495 U.S. 423, 437-438 (1990) (plurality); see also id. at

444 (Scalia, J., concurring). SB990 does both by singling out SSFL, based on a

history of federal activity and contamination, for more stringent cleanup

requirements than apply to all other sites in California. But the Supremacy Clause

forbids precisely that kind of discriminatory state regulation of federal activities,

contractors, and lessors absent express congressional authorization, and Congress

has not granted such authorization here. Although DTSC contends that Boeing

cannot raise this challenge because it is not an “instrumentality” of the federal

government, DTSC waived that argument by failing to raise it below. Regardless,

that argument cannot save a state law that, like SB990, discriminates against a

contractor based on its dealings with the federal government.


- 24 -

B. SB990 is invalid in its entirety. DTSC did not contest Boeing’s

argument below that SB990 is not severable, and Amici’s argument here that

SB990 can be applied only to chemical contamination fails. SB990’s terms focus

on the cleanup of DOE-related AEA materials and reveal the legislature’s desire to

create site-wide cleanup procedures overseen by one regulator. SB990 thus cannot

be rewritten to apply only to chemical contamination.

C. Boeing has Article III standing, and Amici’s argument to the contrary

is baseless. It is undisputed that as a result of SB990 Boeing would have to clean

up its land to a standard many times more demanding than pre-existing law; that

Boeing is incurring, and will continue to incur, substantial and unique costs

because of SB990; and that Boeing is barred from transferring its land until

SB990’s requirements are satisfied. These injuries plainly satisfy Article III.

D. This Court need not reach DTSC’s argument that Boeing’s field-

preemption claim is not cognizable under 42 U.S.C. §1983 because Boeing also

brought its field-preemption claim directly under the Supremacy Clause, and

DTSC waived its argument by failing to raise it below. In any event, DTSC is

wrong: Claims “to enforce the provisions of the AEA, including those mandating

an exclusive federal regulatory scheme for radiation hazards,” are cognizable under

§1983. Kerr-McGee Chem. v. City of W. Chicago, 914 F.2d 820, 824 (7th Cir.

1990).


- 25 -

STANDARD OF REVIEW

This Court reviews decisions granting summary judgment de novo and may

affirm on any ground supported by the record. Community Bank v. G.V.M. Trust,

366 F.3d 982, 984 (9th Cir. 2004). Review, however, “is limited to consideration

of issues of fact presented to the district court”; accordingly, parties may not

attempt to raise factual disputes on appeal that were not raised below. Harkins

Amusement Enters. v. General Cinema, 850 F.2d 477, 482 (9th Cir. 1988).

ARGUMENT

I. SB990 IS PREEMPTED

The Supremacy Clause mandates that federal law trumps state law where a

“scheme of federal regulation [is] so pervasive as to make reasonable the inference

that Congress left no room for the States to supplement it,” or where federal law

“touch[es] a field in which the federal interest is so dominant that the federal

system will be assumed to preclude enforcement of state laws on the same

subject.” Rice v. Santa Fe Elevator, 331 U.S. 218, 230 (1947). Under the field-

preemption doctrine, “states are deemed powerless to act because of a vacuum

deliberately … created by federal legislation. … [A]ny state or local action,

however consistent its substantive content might be with the content of relevant

federal statutes, is held invalid[.]” Tribe, 1 American Constitutional Law 1172 (3d


- 26 -

ed. 2000) (emphasis omitted). As the district court correctly held, the AEA

preempts SB990.12

A. With Few Exceptions, The Federal Government Occupies The Field Of Nuclear Health And Safety

Given the paramount national-security and safety issues surrounding nuclear

technology, “the federal government has occupied the entire field of nuclear safety

concerns, except the limited powers expressly ceded to the states.” PG&E v. State

Energy Res. Conserv. & Dev. Comm’n, 461 U.S. 190, 212 (1983); see English v.

General Elec., 496 U.S. 72, 82 (1990); Silkwood v. Kerr-McGee, 464 U.S. 238,

249 (1984); Manning, 527 F.3d at 836. Until 1954, the federal government

maintained a monopoly over both the regulation and the “use, control and

ownership” of radiological materials. PG&E, 461 U.S. at 206; English, 496 U.S.

at 80-81. “The federal government’s historic role as the force behind the discovery

and utilization of nuclear power,” accordingly, “gives it a longstanding monopoly

over all matters nuclear.” Long Island Lighting v. County of Suffolk, 628 F. Supp.

654, 662 (E.D.N.Y. 1986).

12 DTSC argues (at 14) that a “presumption” against preemption applies. But no such presumption exists “when the State regulates in an area where there has been a history of significant federal presence.” United States v. Locke, 529 U.S. 89, 108 (2000). That is the circumstance here, where the federal government has, since the beginning of the nuclear age, taken lead responsibility for nuclear regulation. Cf. Silvas v. E*Trade Mortg., 514 F.3d 1001, 1005 (9th Cir. 2008). Yet, with or without such a presumption, SB990 clearly exceeds the limited state regulatory authority permitted under the AEA.


- 27 -

Congress enacted the AEA in 1954 to “encourage[] the private sector to

become involved in the development of atomic energy for peaceful purposes under

a program of federal regulation and licensing.” PG&E, 461 U.S. at 207; see 42

U.S.C. §2011. Accordingly, the AEA “provid[ed] for licensing of private

construction, ownership, and operation of commercial nuclear power reactors,”

while preserving the federal government’s exclusive control over source, special

nuclear, and byproduct materials (“AEA materials”). PG&E, 461 U.S. at 207. The

AEA gave the AEC—the predecessor to DOE and the NRC—authority to perform

two functions: (1) to promote and control a nationwide program of government-

sponsored research into nuclear-technology development, see 42 U.S.C. §§2051(a),

2052, 2061(b), 2201(b); and (2) to regulate the health and safety aspects of private

commercial “transfer, delivery, receipt, acquisition, possession and use of” AEA

materials by issuing commercial licenses, PG&E, 461 U.S. at 207; see 42 U.S.C.

§§2201(b), 2071, 2073-2078, 2111-2114. “Upon these subjects, no role was left

for the states.” PG&E, 461 U.S. at 207.

In 1959, Congress amended the AEA, authorizing the AEC to cede to states

a narrow portion of its licensing authority. See 42 U.S.C. §2021(a)(4). That

provision permits the “Commission … to enter into agreements with the Governor

of any State providing for discontinuance of the regulatory authority of the

Commission” to regulate for health and safety purposes the commercial handling


- 28 -

and use of certain AEA materials, but not the government’s research activities. Id.

§2021(b).

Although the AEA still uses the term “Commission” to refer to the AEC, id.

§2014(f), in 1974 Congress dissolved that agency, dividing its responsibilities

between DOE’s predecessor agency and the NRC. Id. §§5801-5891; see also 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); see 42 U.S.C. §§5801(b),

5814(c), 5841(f).

The NRC—and not DOE—is the agency authorized to cede part of its

regulatory authority to Agreement States under the 1959 AEA amendments. See

PG&E, 461 U.S. at 209. DOE, on the other hand, is “authorized and directed to

conduct, through its own facilities,” a federal nuclear-research program, 42 U.S.C.

§§2051-2052, and has maintained such a program at various sites, including at

SSFL, BER697-698; BER303-305. DOE has exclusive authority to regulate all

aspects of that program, including “the protection of health and the promotion of

safety during research and production activities,” and “the preservation and

enhancement of a viable environment.” 42 U.S.C. §2051(a)(5), (a)(6); see also id.

§§2121(a)(1), (2), 2201(b), 5801(b). DOE may hire contractors to carry out its


- 29 -

AEA duties and requires that their contracts “contain ‘such provisions (1) to

protect health, (2) to minimize danger to life or property, and (3) to require the

reporting and to permit the inspection of work performed thereunder, as [DOE]

may determine.” Bramer v. United States, 595 F.2d 1141, 1142 (9th Cir. 1979)

(quoting 42 U.S.C. §2051(d)).

B. SB990 Regulates In A Federally Occupied Field

1. As the district court recognized, this case begins and ends with this

Court’s decision in Manning, 527 F.3d 828—a case that DTSC does not even cite,

much less try to distinguish. In a decision “dictated by … longstanding principles

of federal preemption,” this Court in Manning invalidated a Washington law that

attempted to regulate the cleanup of DOE-related AEA materials at DOE’s

Hanford facility for environmental health and safety reasons. Id. at 831.

Recognizing that “‘the federal government has occupied the entire field of nuclear

safety concerns, except the limited powers expressly ceded to the states,’” id. at

836 (quoting PG&E, 461 U.S. at 212), this Court explained that a state law

regulates within that field, and thus is preempted, if “(1) the purpose of the [law] is

to regulate against radiation hazards, or (2) [the law] directly affects decisions

concerning radiological safety,” id. (citing English, 496 U.S. at 84).13

13 DTSC misstates the second prong of this test, focusing on whether the law “regulates matters directly affecting the radiological safety of nuclear-plant construction and operation.” Br. 18 (citing English, 496 U.S. at 84 (emphasis


- 30 -

Applying that test, this Court held that the Washington law, which prevented

a DOE nuclear facility from obtaining a state hazardous-waste permit until it

complied with state cleanup laws, was preempted because it was “intended to

regulate both nonradioactive hazardous substances and radioactive hazardous

substances in order to protect health and environmental safety.” Id. at 837. The

law was also preempted because it “trump[ed] DOE decision-making with respect

to the cleanup and disposal of AEA radionuclides.” Id. at 840 n.10. In so

concluding, this Court relied on United States v. Kentucky, 252 F.3d 816 (6th Cir.

2001)—another case not mentioned in DTSC’s brief—which likewise invalidated a

state law seeking “to impose [permit] conditions to protect human health and the

environment” at a DOE uranium-enrichment facility. Id. at 823. Because the law

in Kentucky “represent[ed] an attempt by the [state] to regulate materials covered

added)); Br. 31. To be sure, commercial nuclear-plant construction and operation was specifically at issue in English. 496 U.S. at 82; see 42 U.S.C. §2021(c)(1) (authority over construction and operation of nuclear facilities cannot be delegated to states). But in Manning, which addressed a state law regulating the handling and cleanup of DOE-related AEA material, this Court recognized that the proper test is whether the stated purpose for enacting the law is to regulate nuclear health and safety or if the law in fact affects nuclear health and safety decisions regardless of the legislature’s asserted reasons. 527 F.3d at 836 (citing English, 496 U.S. at 84). As the district court held, that standard applies here. ER17-18.


- 31 -

by the AEA based on the [state’s] safety and health concerns,” it also was

preempted. Id.14

For these same reasons, the district court correctly held that SB990 is

preempted. SB990’s express purpose is “to protect the public health and safety

and the environment” by requiring “complete remediation” of DOE-related AEA

materials “pursuant to the most protective standards.” Cal. Health & Safety Code

§25359.20(a), (e) (emphases added). SB990’s legislative history confirms that

purpose, citing “various piecemeal cleanups around the SSFL site … undertaken

with varying degrees of protective quality” and concerns regarding “inadequate

characterization and cleanup.” BER10. It also details past DOE radiological

activity at SSFL and criticizes DOE’s cleanup, asserting that “the DOE cleanup

was not adequately protective of public health,” BER10-11, and explaining that, by

placing the cleanup of radiological materials under State authority, “this bill will

simply ensure that the SSFL cleanup is done thoroughly and completely to an

appropriately protective standard for the community and environment,” BER15.

Indeed, even now, DTSC admits that “SB 990 is … a health and safety law”

14 Numerous courts have also struck down state attempts, like SB990, to regulate AEA materials for health and safety reasons. See, e.g., Skull Valley Band v. Nielson, 376 F.3d 1223, 1246-1248 (10th Cir. 2004); Jersey Cent. Power & Light v. Township of Lacey, 772 F.2d 1103, 1110-1112 (3d Cir. 1985); Brown v. Kerr-McGee Chem., 767 F.2d 1234, 1240-1243 (7th Cir. 1985); Illinois v. General Elec., 683 F.2d 206, 214-216 (7th Cir. 1982); Northern States Power v. Minnesota, 447 F.2d 1143, 1147-1154 (8th Cir. 1971).


- 32 -

designed “to protect the health and safety of its citizens posed by contaminated soil

and groundwater resulting from nuclear-related operations and activities” at

SSFL. Br. 19 (emphases added). This Court need go no further.

2. DTSC wholly ignores Manning and Kentucky, and Amici’s efforts to

distinguish those cases fail. Amici argue (at 23) that those cases are inapposite

because they involved DOE-owned property. Neither case, however, places any

weight (let alone turns) on DOE’s land ownership as the basis for its field-

preemption holding; rather, both stand for the settled proposition that federal law

preempts state regulation of DOE-related “AEA materials out of concern for the

health and environmental risks that increased contamination will cause.” Manning,

527 F.3d at 838 (emphasis added); see Kentucky, 252 F.3d at 823 (“[T]he AEA

preempts any state attempt to regulate materials covered by the Act for safety

purposes.” (emphasis added)).

Amici (at 23) and DTSC (at 18-19) contend that SB990 cannot be preempted

because it does not affect the operations of a DOE facility. But as the district court

recognized, that argument is wrong on both the law and the facts. Manning and

Kentucky make clear that a state may not regulate DOE-related AEA materials,

which is exactly what SB990 purports to do, and courts have found AEA

preemption with respect to state attempts to regulate contamination resulting from

nuclear work that had long ceased. See, e.g., Brown, 767 F.2d at 1236, 1240-1243


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(state-law injunction ordering radioactive-waste removal at “inactive” site

preempted). At any rate, it is undisputed that DOE remains a lessee at SSFL,

BER697; that DOE is conducting ongoing remediation operations, BER711-712;

and that Boeing is acting as a DOE contractor to carry out those operations in Area

IV, id. See also BER823.

3. DTSC contends (at 27-28) that SB990 cannot affect DOE nuclear-

safety decisions at SSFL because DOE signed an AOC after SB990 was enacted.

But it is well established that when the federal government occupies a field, “states

are deemed powerless to act because of a vacuum deliberately … created by

federal legislation.” 1 American Constitutional Law 1172. This is true even where

(unlike here) the state statute is consistent with federal requirements. See id.

Because the California legislature was “powerless to act,” any developments

following SB990’s enactment are irrelevant to Boeing’s field-preemption claim,

and DTSC’s suggestion that the AOCs are somehow relevant to that claim lacks

merit.15 ER21. Because SB990 regulates in a field reserved exclusively to federal

law, it is a nullity, and nothing short of an Act of Congress can change that result.16

15 There is likewise no basis for DTSC’s contention (at 13) that the Court should decline to apply the Supremacy Clause out of comity to the states. 16 Even if the AOCs were somehow relevant, they prove only that SB990 has already affected DOE’s decisions regarding nuclear health and safety at SSFL. As DTSC admits (at 13), SB990 is the “jurisdictional basis” for those agreements,


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At any rate, SB990 will affect cleanup decisions at SSFL notwithstanding

the AOCs because those agreements are contingent on future events and are not co-

extensive with SB990. Although Amici (at 14-15) claim that the AOCs are

currently effective and govern the cleanup of all contamination at SSFL, that

argument is contrary to the AOCs’ plain language and undisputed testimony from

DTSC’s witnesses. Specifically, the DOE AOC is contingent on modifying a final

judgment from the Northern District of California requiring DOE to perform an

Environmental Impact Statement under the National Environmental Policy Act of

1969 (“NEPA”), 42 U.S.C. §§4321, et seq. It provides that “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,” and that if the parties do not obtain such

relief, “DOE’s obligations under this Order shall be stayed,” ER57 ¶6.2. To date,

neither party has attempted to seek the necessary relief. See NRDC v. DOE, No.

04-cv-4448 (N.D. Cal.) (last docket entry May 23, 2008).

Likewise, the NASA AOC hinges on analyses required under the California

Environmental Quality Act, Cal. Pub. Res. Code §§21000, et seq., and NEPA, see

ER107-108 ¶¶4-4.3. DTSC’s witness testified that, depending on the outcome of

and there is no evidence or reason to believe that DOE would have entered into the AOC but for SB990.


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these analyses, the AOC may have to be revisited in the future. BER238-240 (“Q.

… [T]o conduct those processes in good faith, the DTSC would have to actually be

open to actually changing its mind, because otherwise there would be no reason to

go through the process, right? A. I would think that that’s correct.”).

Even if those conditions are satisfied, the AOCs would not apply to the

entire site, including large areas that contain federal contamination, and thus

SB990 would continue to govern the cleanup of those areas. See ER38 ¶1.2 (DOE

AOC applies only to Area IV and northern undeveloped area); ER92 ¶1.2 (NASA

AOC applies only to “Area II and the portion of Area I owned by the federal

government and administered by NASA”). And even within the covered portions

of the site, the AOCs apply only to the cleanup of soil contamination, not of

groundwater and certain bedrock where federal contamination is also present. See

ER40 ¶1.6; ER42 ¶1.8.4; ER93-96 ¶¶1.4.1, 1.5, 1.7.1, 1.7.4.17 As DTSC’s SSFL

Project Director confirmed, the AOCs “cover[] soils and soils only.” BER798; see

BER795-796; BER814.

17 Contrary to Amici’s contentions (at 13-14), each AOC makes clear that compliance will constitute the federal agency’s “full and complete compliance” with SB990, “but only with respect to the application of these provisions to radiologic or chemical contamination of soil.” ER40 ¶1.6; ER94 ¶1.5 (emphasis added); see ER42 ¶1.8.4; ER96 ¶1.7.4 (“‘Soils’ does not include surface water [or] groundwater[.]”); ER95 ¶1.7.1 (excluding groundwater and soil below bedrock from “[c]leanup of soils.”).


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4. DTSC contends (at 28-31)—for the first time on appeal—that the

federally occupied field of nuclear health and safety does not extend to the cleanup

of DOE-related AEA materials because “nothing in the AEA provides clear

authority over the cleanup of radionuclides.” That argument, which DTSC waived

by not raising below, see Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010),

is baseless. As an initial matter, both Manning and Kentucky expressly recognized

that the AEA preempts state attempts to regulate the cleanup of such materials.

Manning, 527 F.3d at 836-837, 840 n.10; Kentucky, 252 F.3d at 823.

Moreover, DOE is self-regulating under the AEA and has exclusive

authority over its nuclear-research program, see supra pp.28-29, including the

handling and cleanup of AEA materials released into the environment.

Accordingly, using its AEA authority, DOE issues orders governing

environmental-cleanup procedures and general environmental and radiological

safety at its sites.18 BER713; see Kentucky, 252 F.3d at 821; NRDC v. NRC, 606

F.2d 1261, 1266 (D.C. Cir. 1979) (“Congress gave [DOE] responsibility for

insuring that its programs are environmentally sound and not adverse to public

health and safety.”); 42 U.S.C. §§2121(a)(3); see also id. §5812(d); S. Rep. No.

18 See, e.g., ER299-483 (DOE Orders 5400.5, Chg. 2, Radiation Protection of the Public and the Environment IV-1 (Jan. 7, 1993), 5400.1, Chg. 1, General Environmental Protection Program (June 29, 1990), 231.1A, Chg. 1, Environment, Safety, and Health Reporting 1 (June 6, 2004), 450.1A, Environmental Protection Program 1 (June 4, 2008)).


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93-980, at 30 (1974) (creating DOE Assistant Secretary position “to ensure …

appropriate health, public safety and environmental protection standards for all

activities of the agency[, which] is especially imperative in the noncommercial

nuclear R. & D. area because the [NRC] will have no licensing jurisdiction over

such [DOE] nuclear activities”).19 DTSC can point to no authority granting states

concurrent jurisdiction over such activity.

C. Authority To Regulate Handling And Cleanup Of DOE Nuclear Material Cannot Be Ceded To States

The sole exception to AEA preemption is where authority to regulate certain

AEA materials has been “expressly ceded to the states.” PG&E, 461 U.S. at 212.

But authority to regulate the cleanup of AEA materials related to a DOE nuclear-

research program has never been ceded to the states, expressly or otherwise.

19 Indeed, DOE’s website confirms that DOE “operates the world’s largest nuclear cleanup program,” which coordinates the remediation of radiological contamination remaining at DOE Cold War legacy sites. DOE, EM Environmental Management: The EM Story, available at http://www.em.doe.gov/pdfs/EM% 20Story%20brochure%20final%20final.pdf (last visited Feb. 12, 2012). Because “[c]leaning up and ultimately disposing of these wastes is [DOE’s] responsibility,” DOE manages a nationwide cleanup and closure program for over 100 former DOE nuclear-research complexes—including its ETEC facilities at SSFL. DOE, Report to Congress: Status of Environmental Management Initiatives to Accelerate the Reduction of Environmental Risks and Challenges Posed by the Legacy of the Cold War i, vi (2009), available at http://www.em.doe.gov/pdfs/NDAA% 20Report-(01-15-09)a.pdf.


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1. The AEA Agreement State provision does not authorize SB990

a. DTSC contends that California has authority to enact SB990 under the

AEA’s Agreement State provision, which allows the NRC—but not DOE—“to

enter into agreements with the Governor of any State providing for discontinuance

of the [NRC’s] regulatory authority” to license private commercial use of certain

AEA materials. 42 U.S.C. §2021(b). As the district court correctly held, that

authority does not extend to the nuclear-research and cleanup activities of DOE or

its contractors, which remain under exclusive federal control. ER18-20.

To begin, the NRC cannot delegate authority over DOE prime contractors to

Agreement States because DOE—not the NRC—has exclusive regulatory

authority over DOE prime contractors. See 42 U.S.C. §§2051(a), 2061(b); Bramer,

595 F.2d at 1142. DOE prime contractors performing work “at a United States

Government-owned or controlled site,” such as Boeing, are therefore exempt from

NRC licensing requirements. 10 C.F.R. §§30.12(a), 40.11(a), 70.11(a); see also 42

U.S.C. §2140(a). Agreement States must provide corresponding “exemptions for

… [p]rime contractors performing work for the DOE at U.S. Government-owned

or controlled sites.” 46 Fed. Reg. 7540, 7543 (Jan. 23, 1981).

Additionally, the AEA grants DOE exclusive authority over its research

activities and the handling of related AEA materials, including cleanup. See

NRDC, 606 F.2d at 1266 (discussing “the general exemption of [DOE] programs


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from NRC licensing authority”); 42 U.S.C. §2014(s)20; see supra pp.28-29, 36-37.

Because the NRC lacks authority over these DOE activities and AEA materials, it

has no authority over them to delegate to Agreement States.21 Indeed, the NRC’s

own regulations governing the Agreement State program make clear that states

cannot regulate DOE activities. See 10 C.F.R. §150.3 (excluding “Government

agencies” from definition of “[p]erson” subject to state license authority); NRC

Procedure SA-500, Jurisdiction Determinations 2 (Sept. 25, 2007) (NRC

agreement with state “does not transfer regulatory authority to the States over …

[a]ctivities of Federal Agencies located in Agreement States”), available at

20 The AEA defines “person” as

(1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, Government agency other than the Commission …; and (2) any legal successor … of the foregoing.

42 U.S.C. §2014(s) (emphasis added). Because “person” excludes “the Commission” and its successors, DOE is exempt from the AEA’s provisions requiring NRC licenses for any “person” handling AEA materials or engaging in NRC-regulated activities. See, e.g., id. §2111(a) (“[n]o person may transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, own, possess, import, or export any byproduct material” without an NRC license) (emphasis added); see also 10 C.F.R. §30.4. 21 DTSC attempts (at 23-24) to distinguish authorities the district court relied on, asserting they do not support the conclusion that states cannot be delegated authority to regulate DOE-related AEA materials on private property. To the contrary, they demonstrate that the federal government has occupied the entire field of nuclear health and safety, see ER19-20, and DTSC can point to nothing expressly ceding authority over DOE-related materials—on private or public property—to the states.


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http://nrc-stp.ornl.gov/procedures/sa500.pdf; see also 42 U.S.C. §2018. In short,

whatever authority California might have as an Agreement State, it does not

include the power to regulate the activities of contractors that perform AEA-related

work or handle AEA materials on DOE’s behalf.22

Finally, as the district court recognized, ER20-21, DTSC’s attempt to

salvage SB990 as a valid exercise of California’s Agreement State authority also

fails because DTSC is not an implementing agency under NRC regulations. Only

states with nuclear-regulatory regimes “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 NRC’s licensing functions. 46 Fed. Reg. at

7542. The NRC closely supervises the regulatory activities of its Agreement

States, and as a condition of retaining Agreement State status, the designated state

agency must undergo periodic NRC audits. Id. But, as DTSC’s 30(b)(6) witness

testified, the California Department of Public Health—not DTSC, the agency that

administers SB990—is the state agency designated to assume licensing authority

22 Indeed, DTSC’s witness confirmed that, “[t]o my knowledge, all of the [radiological] volume contamination at SSFL was DOE materials for which we do not have regulatory authority.” BER103; see BER104 (“[I]f it’s DOE material, we do not have regulatory jurisdiction.”).


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from the NRC, BER97-101; BER43-44, and as DTSC has acknowledged, DTSC is

not subject to NRC oversight, BER729.

b. DTSC responds (at 27) that the State can regulate DOE-related AEA

materials and cleanup operations because California’s agreement “predates” the

NRC regulations precluding Agreement States from regulating DOE and because it

“makes no mention of DOE.” Putting aside the fact that states cannot regulate

federal agencies or activities absent express authorization from Congress, see infra

pp.46, 49-50, the NRC’s regulations apply to all Agreement States—which must

comply with those regulations and undergo regular NRC audits—regardless of

when they executed their agreements. See 46 Fed. Reg. at 7542; NRC Directive 5.6,

Integrated Materials Performance Evaluation Program Manual 1 (rev. 2004).23

Amici attempt (at 18-22) to supplement the parties’ summary-judgment

record with new evidence regarding the state license that regulated Boeing’s

private commercial nuclear work at SSFL, and contend that a state license for the

commercial use of AEA materials enables the State to regulate DOE-related AEA

materials. Amici Br. 20 n.6. But that license was not at issue below because it is

irrelevant, and this Court has made clear that, on a summary-judgment record, it

“is limited to consideration of issues of fact presented to the district court.”

Harkins Amusement, 850 F.2d at 482; see also Franz Chem. v. Philadelphia

23 Available at http://pbadupws.nrc.gov/docs/ML0414/ML041410578.pdf.


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Quartz, 594 F.2d 146, 150 (5th Cir. 1979) (“It is almost axiomatic that any genuine

issue of fact must somehow be shown to exist at the district court level.”).

Even if this issue were properly presented, Amici cite no law supporting

their argument that a state license for the commercial use of AEA materials

somehow enables the State to regulate DOE-related AEA materials. Boeing has

never denied holding a state license for the use of certain non-DOE radiological

materials used during its private commercial work, although Boeing conducted

only a relatively small amount of state-licensed work at SSFL, and such activity

was unlikely to have resulted in any existing contamination. BER702-703. To the

extent that Boeing may have voluntarily allowed the State to play a role in the

release of DOE buildings out of comity at a site where multiple regulators were

present, Amici do not (and cannot) show that the law mandated such an

arrangement, or that such actions somehow authorized SB990.

Finally, DTSC (at 18-19) and Amici (at 22) contend that SB990 is not

preempted because Agreement States are precluded from regulating only the

construction and operation of nuclear reactors. But that argument misunderstands

the district court’s holding and the law. Contrary to Amici’s contention, “the key

conclusion of law by the District Court” was not “that ‘Agreement States lack

authority over … cleanup of radiological contamination resulting from [operation

of nuclear reactors].’” Br. 21-22 (quoting ER19 n.11)). That holding—as


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evidenced by its placement in a footnote—was an alternative holding. Instead, the

district court’s primary holding was that SB990 regulates DOE-related AEA

material and that such authority cannot be ceded to the states. ER17-20.

Nonetheless, the district court’s alternate holding was correct. All states—

even Agreement States—are precluded from regulating the operation of a nuclear

reactor and nuclear-fuel manufacturing, see 42 U.S.C. §2021(c)(1), and that

authority necessarily includes the regulation of radiological effluents and cleanup

of resulting contamination, see, e.g., Northern States Power, 447 F.2d at 1149;

Missouri v. Westinghouse Elec., 487 F. Supp. 2d 1076, 1078 (E.D. Mo. 2007); see

also 10 C.F.R. §150.15(a)(1)(i).

2. CERCLA does not authorize SB990

DTSC contends that CERCLA authorizes SB990 because radionuclides fall

within the definition of “hazardous substances” covered by CERCLA. Br. 29-30

(citing 40 C.F.R. pt. 302). But even if CERCLA and its regulations allow the

federal government to regulate the cleanup of some radionuclides, DTSC can point

to nothing suggesting that CERCLA overturns AEA preemption concerning DOE-

related activities—much less that it “expressly cede[s]” such authority to states.

PG&E, 461 U.S. at 212. Indeed, as the only court squarely to have addressed the

issue explained, “[n]othing in CERCLA authorizes states to regulate within the

field of nuclear safety concerns preempted by the AEA.” United States v.


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Manning, 434 F. Supp. 2d 988, 996 (E.D. Wash. 2006), aff’d, 527 F.3d 828 (9th

Cir. 2008). DTSC contends (at 31) that its state-law CERCLA analog somehow

authorizes SB990, but a state obviously cannot cede to itself the authority to

regulate AEA materials. Finally, DTSC’s contention that CERCLA’s sovereign-

immunity waiver allows the State to regulate the radiological cleanup of a DOE

facility is incorrect because that waiver does not apply to state laws, like SB990,

that single out federally operated facilities for heightened cleanup requirements.

42 U.S.C. §9620(a)(4); see infra pp.49-50.

D. SB990 Is Not A “Land Use” Statute

DTSC’s attempt (at 17-21) to salvage SB990 by contending that it is a mere

“land use” statute outside the AEA’s preemptive scope is entirely without merit.

That argument, which the district court correctly rejected, ER18, would require a

wholesale rewriting of SB990, ignores the actual (and undisputed) effects of

SB990, and is inconsistent with DTSC’s own arguments in this litigation.

Although DTSC argues that SB990 is primarily concerned with ensuring the

widest possible land use for SSFL, DTSC has never offered any legislative or

record evidence that SB990 was enacted for that purpose. SB990 itself says

nothing concerning land use, and as DTSC conceded below, “SB 990 does not

determine the eventual land use for the SSFL.” DTSC Br. 11, Dkt. 125 (Mar. 18,

2011). Instead, SB990 grants DTSC authority “to compel a responsible party … to


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take … appropriate removal or remedial action necessary to protect the public

health and safety and the environment at” SSFL. Cal. Health & Safety Code

§25359.20(a). The legislative history confirms that the legislature was concerned

solely with the cleanup of SSFL, particularly given the legislature’s belief that “the

DOE cleanup was not adequately protective of public health” and concerns

regarding “soil contaminated with strontium-90, cesium-137 and other

radionuclides.” BER10; see SB990 §2(h) (SB990 necessary because “DOE

declined to follow the 1995 Joint Policy and chose to instead rely on less protective

cleanup standards”). Moreover—as the district court recognized, ER18—if

ensuring flexibility in the future use of the SSFL land were truly the law’s primary

focus, the legislature presumably would not have attempted to do so through a

statute that could restrict the “[sale], lease, sublease, or … transfer” of that

property for up to 50,000 years. Cal. Health & Safety Code §25359.20(e);

BER727.

But even if SB990 were a “land use” statute, it would still be preempted

because, as DTSC concedes, SB990’s actual effect is to impose “a substantially

more stringent cleanup scheme than that which applies elsewhere in the State” for

contamination at the site. BER729. As the Supreme Court has explained, a statute

is preempted if, as here, it has an “actual effect on nuclear safety.” English, 496

U.S. at 84. Any other rule would permit states to end-run the AEA’s preemptive


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effect by articulating ostensible non-safety rationales for laws that actually regulate

nuclear health and safety. See id. DTSC’s concession (at 19) that “SB990

undoubtedly addresses health and safety concerns at SSFL” is therefore

dispositive.

II. SB990 VIOLATES INTERGOVERNMENTAL IMMUNITY

A. DTSC does not dispute that, under the intergovernmental-immunity

doctrine, “states may not directly regulate the Federal Government’s operations or

property,” Blackburn v. United States, 100 F.3d 1426, 1435 (9th Cir. 1996); see

Goodyear Atomic v. Miller, 486 U.S. 174, 180-181 (1988); Hancock v. Train, 426

U.S. 167, 180 (1976), or “discriminate against the Federal Government or those

with whom it deals,” North Dakota, 495 U.S. at 437 (plurality; emphasis added);

see id. at 444 (Scalia, J., concurring); see also Moses Lake Homes v. Grant County,

365 U.S. 744, 751 (1961) (“If anything is settled in the law, it is that a State may

not discriminate against the Federal Government or its lessees.”); Phillips Chem. v.

Dumas Indep. Sch. Dist., 361 U.S. 376, 387 (1960) (same).

But SB990’s sole purpose is to single out SSFL for different treatment and

to regulate directly the manner in which the federal government and its contractor

Boeing conduct federal activities. It is undisputed that “SB 990 prescribes cleanup

rules that apply only to SSFL and to no other site in the State,” BER722-723,

BER53; that, unlike generally applicable law, SB990 would require cleanup of


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SSFL to levels suitable for subsistence farming even though it will not be used as a

farm, BER723; BER725-726; and that SB990 prevents Boeing and the federal

government from transferring their SSFL land until cleanup is complete, BER67,

BER254.24 SB990 thus treats SSFL, Boeing as a federal contractor and a federal

lessor, and the federal government far less favorably than other contaminated sites

and potentially responsible parties.25 It does so, moreover, even though nothing

unique about SSFL or its contamination justifies such disparate treatment. See

supra p.19; North Dakota, 495 U.S. at 438 (state “‘discriminate[s] against the

Federal Government and those with whom it deals [if] it treats someone else better

than it treats them’”).

Although Amici argue (at 25-26) that SSFL is different from other sites,

DTSC’s witnesses admitted that the factors listed in SB990 that purportedly make

24 Amici contend (at 26-28) that SB990 does not differ from generally applicable law. In addition to contradicting DTSC’s own concession that SB990 singles out SSFL for uniquely stringent cleanup requirements, BER729, that contention is not credible: There would have been no reason to pass SB990 if it had no effect beyond otherwise-applicable law. 25 DTSC asserts (at 20-21) that “Boeing does not claim that SB 990 imposes any stricter requirements with respect to the cleanup of radiological materials than would ordinarily apply for a ‘rural residential (agricultural)’ property,” but that misses the point entirely. The relevant question is whether SB990, by requiring cleanup of a non-agricultural property to agricultural levels, imposes stricter cleanup requirements than ordinary law for a property that will not be used as a farm. DTSC concedes that it does. BER725-726; BER729.


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SSFL “unique” are common at sites throughout California. BER730-735.26 For

example, the same contaminants listed in SB990 §2(g)—“perchlorate, heavy

metals, PCBs, dioxins, volatile organic, and semivolatile organic compounds, in

addition to radioactivity”—exist at numerous other California sites, and in higher

concentrations than those at SSFL. See supra p.19. Similarly, other contaminated

sites in California are closer than SSFL to major population centers. BER735;

BER671-674.

Indeed, the legislature’s (and Amici’s) unsuccessful efforts to identify some

basis for SSFL’s different treatment merely underscore the law’s

unconstitutionality. As noted supra p.18, the supposedly “unique circumstances”

on which the legislature and Amici now rely involve overwhelmingly the federal

activity and resulting contamination—including, most notably, the 1959 core-

damage accident involving a DOE reactor—that the State simply may not regulate

under the Supremacy Clause.27

26 See supra n.7. 27 Amici argue (at 25-26) that “a rational basis … exist[s]” for the legislature’s decision to single out SSFL, but, even if one did exist, they cite no authority recognizing such an exception to intergovernmental immunity, and this Court has consistently held that a state law violates intergovernmental immunity simply if “‘it treats someone else better than it treats’” the government or those with whom it deals. United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010).


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B. The one exception to intergovernmental immunity is where “Congress

provides ‘clear and unambiguous’ authorization for such regulation.” Goodyear,

486 U.S. at 180. But, as the district court recognized, ER22-23, no such waiver

exists here. Even without regard to the AEA’s preemptive effect, “[n]either the

AEA nor any other federal law waives federal immunity from regulation of DOE

facilities by states with respect to materials covered by the AEA.” Kentucky, 252

F.3d at 825; see 42 U.S.C. §2018; Pacific Legal Found. v. State Energy Res.

Conserv. & Dev. Comm’n, 659 F.2d 903, 920 n.26 (9th Cir. 1981), aff’d, PG&E,

461 U.S. 190.

DTSC erroneously contends (at 30) that CERCLA’s limited waiver of

immunity authorizes SB990. That narrow waiver, which permits certain state

cleanup laws to apply to sites owned or operated by the federal government, see 42

U.S.C. §9620(a)(4), does not overturn the AEA’s preemptive regime. See supra

pp.43-44. Even more fundamentally, DTSC omits the key portion of the waiver

from its brief: The CERCLA waiver “shall not apply to the extent a State law

would apply any standard or requirement to [federal] facilities which is more

stringent than the standards and requirements applicable to facilities which are not

owned or operated by” the federal government. 42 U.S.C. §9620(a)(4) (emphases

added). This provision prevents states from “singl[ing] out only Federal facilities

by creating special rules for them that are not otherwise applicable to similar


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situations at private sites, and then expect these rules to be enforceable under

Superfund.” 132 Cong. Rec. 28,413 (1986). That is precisely what SB990 does; if

anything, CERCLA reinforces that SB990 cannot stand because SB990 imposes a

“more stringent” standard on SSFL than all other California sites.

Nor does RCRA authorize SB990. RCRA expressly excludes AEA

materials from its scope, see 42 U.S.C. §§6903(5), (27), 6905(a), and, like

CERCLA, allows states to regulate federal facilities only “in the same manner, and

to the same extent, as any person is subject to such requirements.” Id.

§6961(a)(2).

C. DTSC’s remaining arguments are equally flawed. First, DTSC

contends (at 31-37) that Boeing cannot challenge SB990 on intergovernmental-

immunity grounds because it is a “for profit” company and not an

“instrumentality” of the federal government. DTSC waived this argument by

failing to raise it below. See Hillis, 626 F.3d at 1019.28

DTSC is also wrong. A state regulation can violate intergovernmental

immunity in two ways: “if it regulates the United States directly or discriminates

against the Federal Government or those with whom it deals.” North Dakota, 495

U.S. at 435 (emphasis added). DTSC relies (at 33-37) exclusively on cases

28 DTSC’s argument depends on facts—such as Boeing’s contractual relationship with DOE and whether Boeing acted “for profit” during its federal work at SSFL—that have no support in the summary-judgment record.


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holding that, to be immune from direct, non-discriminatory state taxation, a federal

contractor must be an “instrumentality” of the federal government. See, e.g.,

United States v. New Mexico, 455 U.S. 720, 735 (1982); United States v. Boyd, 378

U.S. 39, 47-48 (1964); City of Detroit v. Murray Corp., 355 U.S. 489, 492-494

(1958). But the instrumentality requirement does not apply in the context of

discriminatory state regulation. In New Mexico, the Supreme Court made clear

that, even though the state could tax the federal contractor under generally

applicable law because it was not an instrumentality, “state taxes on contractors

are constitutionally invalid if they discriminate against the Federal Government.”

455 U.S. at 735 n.11 (emphasis added); see City of Detroit, 355 U.S. at 494.

Indeed, the Court has invalidated state laws discriminating against federal lessees

who were not instrumentalities of the federal government. See Moses Lake Homes,

365 U.S. at 751; Phillips Chem., 361 U.S. at 387.

Second, DTSC’s contention that SB990 singles out Boeing as a private

company and landowner rather than as a federal contractor or lessor cannot save

the statute. As the district court observed, “[t]here is no basis for such a distinction

in light of the undisputed evidence.” ER23. Boeing operated on the federal

government’s behalf at SSFL for more than fifty years, BER697-698; BER705-

706, and SB990 regulates the cleanup of the resulting contamination, see Cal.

Health & Safety Code §25359.20. DTSC does not dispute that the vast majority of


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activity at SSFL was performed for the federal government, BER696; BER699;

BER708, or that the overwhelming majority of contamination at SSFL resulted

from those operations, BER701; BER708-710. Nor does DTSC dispute that the

legislature relied on that history of federal activity and contamination as its basis

for enacting SB990. Indeed, DTSC (at 4-7) and Amici (at 25-26) cite this very

federal activity—in particular, the 1959 “partial meltdown” involving DOE’s

Sodium Reactor Experiment—as the “‘unique circumstances’” purportedly

justifying SB990. Moreover, Boeing conducts a substantial portion of its activity

at SSFL as a federal contractor. For instance, Boeing has conducted—and is

continuing to conduct—the cleanup of Area IV as a DOE contractor, BER711-712,

and SB990 was enacted in response to that cleanup, BER14-15.

Given SB990’s focus on federal activity, the comparatively small amount of

commercial work that also occurred at SSFL is immaterial. DTSC cannot

identify any contamination at SSFL resulting from private activities, BER703;

BER709-711, and does not dispute that any such contamination would be de

minimis compared to the federal contamination, BER701; BER708-710. DTSC

does not, and cannot, argue that the State would have imposed uniquely onerous

cleanup requirements on SSFL but for the federal activity cited in SB990’s

legislative findings—but that is precisely what intergovernmental immunity


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forbids. North Dakota, 495 U.S. at 437; cf. Moses Lake Homes, 365 U.S. at 751;

Philips Chem., 361 U.S. at 387.

Third, DTSC is wrong to contend (at 39-40) that intergovernmental

immunity does not apply because SB990 purportedly does not interfere with

federal operations. To start, DTSC’s premise is incorrect—DTSC concedes that

Boeing currently conducts federal cleanup operations at SSFL, BER711-712, and

the AOCs, even if their conditions are fulfilled, are not coextensive with SB990.

See supra pp.34-35. Moreover, the Supreme Court has rejected the contention that

“so long as the challenged [state action] does not interfere with the Federal

Government’s ability to perform its governmental functions, the constitutional

doctrine has not been violated.” Davis v. Michigan Dep’t of Treasury, 489 U.S.

803, 814 (1989). Striking down a discriminatory state tax based on a former

federal employee’s challenge, the Court explained that although intergovernmental

immunity protects federal activities from state interference, “it does not follow that

private entities or individuals who are subjected to discriminatory [state regulation]

on account of their dealings with a sovereign cannot themselves receive the

protection of the constitutional doctrine. Indeed, all precedent is to the contrary.”

Id. (citing Moses Lake Homes, 365 U.S. 744; Phillips Chem. Co., 361 U.S. 376).29

29 As these cases show, Amici’s contention (at 24) that Boeing cannot bring such a claim without the federal government’s participation is meritless.


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III. SB990 IS INVALID IN ITS ENTIRETY

The district court correctly struck down SB990 in its entirety. ER24. DTSC

has never disputed that SB990 must stand or fall in its entirety, and neither Amici

nor DTSC argued otherwise below. Amici now argue (at 29-32) that SB990 can be

severed to apply to chemical contamination outside Area IV.30 But that argument

is waived, see Hillis, 626 F.3d at 1019, particularly because no party to the case

has ever raised the argument, see Russian River Watershed Prot. Comm. v. City of

Santa Rosa, 142 F.3d 1136, 1141 n.1 (9th Cir. 1998).

In any event, Amici’s argument is meritless. As an initial matter, the vast

majority of chemical contamination at SSFL is federal and cannot be regulated by

the State because, as discussed supra p.50, RCRA’s waiver of immunity does not

apply. More fundamentally, the very purpose of SB990 is not to regulate the

chemical contamination, but is instead to regulate DOE radiological contamination

and cleanup. When SB990 was enacted, the legislature recognized that it was

extraordinary to single out one contaminated site in the State for uniquely onerous

requirements, and it accordingly attempted to identify factors rendering SSFL

sufficiently unique to justify “special” legislation. See SB990 §2. Those factors,

as discussed above, focused overwhelmingly on DOE activities that fall far beyond 30 Amici do not argue, nor could they, that it is possible to sever SB990 to apply only to non-federal contamination because, as the district court noted, “[i]t is undisputed that any private contamination at SSFL is inextricably intermixed with and indistinguishable from the federal contamination.” ER24.


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the State’s power to regulate. Because SB990’s essential purpose is invalid, there

is no colorable basis for applying its uniquely harsh requirements to activities that

did not justify—and could not have justified—its enactment in the first place. See

Butts v. Merchants & Miners Transp., 230 U.S. 126, 133 (1913).

SB990’s invalid regulation of DOE radiological contamination and cleanup,

moreover, cannot be removed “‘without affecting the wording of any’ of the

measure’s ‘other provisions.’” Hotel Emps. & Rest. Emps. Int’l Union v. Davis,

981 P.2d 990, 1009 (Cal. 1999). Here, as in Manning, 527 F.3d at 840, construing

“the remaining sections of [the law] as limited to” chemical contamination “would

require … examin[ing] and rewrit[ing] most of the statute in a vacuum as to how

the various provisions were intended to intersect and in a way that would be at

odds with the purpose of the statute.” SB990 mandates procedures that apply to

the site as a whole, requiring that “the cumulative risk from radiological and

chemical contaminants at the site shall be summed.” Cal. Health & Safety Code

§25359.20(c) (emphases added). But as DTSC concedes, “[i]f SB 990 could not

be applied to all of the contamination at SSFL, it would not be possible to ‘sum’

the risks for the entire site and to develop [a] ‘cumulative risk’ assessment as

required by SB 990.” BER740; see BER166; BER317-318; BER638; BER657.

Severing radiological cleanup from SB990 would make impossible the

comprehensive approach to the cleanup that SB990 mandates, and for this reason


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too SB990 fails in its entirety. See Manning, 527 F.3d at 840 (refusing to

“unscrambl[e] the egg”).

IV. BOEING HAS STANDING

Amici’s contention (at 9-18) that Boeing lacks standing because it has

suffered no injury is also baseless. First, “[e]conomic injury is clearly a sufficient

basis for standing.” San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121,

1130 (9th Cir. 1996). The district court correctly found that “Boeing has been

injured by the enactment of SB 990” because “SB 990 has caused Boeing to

sustain, and will continue to cause Boeing to sustain, harm in the form of

substantial additional expenses and demands on its resources and time that did not

exist prior to SB 990.” ER17 n.9; see BER426-427; BER825-828 (providing

examples). DTSC does not dispute that conclusion, and indeed admits that Boeing

is actively conducting the cleanup at SSFL, pays a portion of the costs, and will

bear the costs not paid by or recovered from the federal government. BER711-

712.

Amici contend (at 10-12, 15-16) that SB990 does not injure Boeing by

speculating that DOE will ultimately bear all of the radiological cleanup costs at

SSFL. That speculation, however, has no basis in the summary-judgment record,

does not address radiological contamination outside of Area IV, and does not

address the costs of chemical cleanup at all.


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Moreover, Amici’s suggestion (at 12) that Boeing cannot be liable for any

federal contamination rests on a fundamental misunderstanding of the

environmental-cleanup process, under which landowners and operators are

presumed jointly-and-severally liable (subject to an after-the-fact allocation

process).31 See 42 U.S.C. §§9607(a)-(c), 9613(f); City of L.A. v. San Pedro Boat

Works, 635 F.3d 440, 451-452 (9th Cir. 2011). And even if Boeing may ultimately

recover a substantial portion of its cleanup costs, the fact that Boeing initially must

pay some of those costs constitutes immediate injury sufficient to establish

standing. Courts have made clear that the possibility that an immediate economic

injury can later be relieved does not deprive a plaintiff of standing—particularly

where, as here, any such future relief is speculative. See Clinton v. City of N.Y.,

524 U.S. 417, 430-431 (1998) (state injured by line-item veto of provision

eliminating state’s debt to federal government, even though debt could be waived

in the future, because reinstatement of debt was immediate injury); In re Global

Indus. Techs., 645 F.3d 201, 213 (3d Cir. 2011) (“an injury’s having a contingent

31 To the extent Amici suggest that the federal government has agreed to cover the costs of any cleanup performed under the AOCs, that is also wrong. Even if the AOCs someday take effect, DOE and NASA have reserved their right to attempt to recover the costs of complying with the AOCs from Boeing. Each expressly “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.” ER67 ¶7.12.2; ER119 ¶5.12.2.


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aspect does not necessarily make that injury incognizable under Article III[;] a

tangible disadvantage to the affected party can lead to standing”); Lac Du

Flambeau Band v. Norton, 422 F.3d 490, 498 (7th Cir. 2005) (“[T]he present

impact of a future though uncertain harm may establish injury in fact for standing

purposes.”).

Second, injury to property rights provides an independent basis for standing.

See United States v. City of Tacoma, 332 F.3d 574, 578-579 (9th Cir. 2003). Here,

SB990 imposes severe burdens on Boeing’s rights as a landowner. DTSC

concedes that SB990 requires Boeing to comply with far more stringent procedures

than generally applicable law, BER729-730, and restrains Boeing’s ability to

transfer its land until the cleanup is complete, BER254.32 DTSC’s witnesses also

conceded that SB990’s stringent cleanup procedures will require Boeing to

excavate more of its land than otherwise required. BER285-286; BER293-295; see

BER639; BER675-676; supra n.8. Those concessions also establish Boeing’s

32 Amici contend (at 17) that the record does not definitively show that SB990 will prevent Boeing from transferring its land for 50,000 years. But regardless of whether that estimate—provided by DTSC’s own witness, BER71, and undisputed by DTSC, BER727—turns out to be precisely accurate, the undisputed fact remains that SB990 restrains Boeing’s right to alienate its land. Moreover, Amici’s claim (at 17) that DTSC “could” choose not to require Boeing to comply with SB990 regarding groundwater cleanup is contrary to SB990’s text, which provides no such exception; is speculative at best; and does not change the fact that Boeing would be precluded from transferring its land until such certification occurs.


- 59 -

Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561

(1992); Central Ariz. Water Conserv. Dist. v. EPA, 990 F.2d 1531, 1537 (9th Cir.

1993).

Finally, Amici contend (at 11-15) that the AOCs deprive Boeing of standing,

an argument the district court correctly rejected. ER17 n.9. Standing is

determined at the time the complaint is filed, Sacks v. OFAC, 466 F.3d 764, 774

(9th Cir. 2006), and the AOCs were signed after Boeing filed suit.

Regardless, the AOCs are conditional and may never take effect. See supra

pp.34-35. And they apply only to the cleanup of contamination within the NASA-

owned portions of SSFL, Area IV, and certain undeveloped areas, and only to soil,

excluding groundwater and associated bedrock. See supra p.35. Federal

contamination, however, is present throughout the site, BER707, and is in the soil,

bedrock, and groundwater, BER700. Thus, even if DTSC deems SB990 to be

“satisfied” regarding contamination within the AOCs’ scope, and even if the AOCs

ultimately guide some of the cleanup, SB990 would continue to govern the cleanup

of federal contamination in the SSFL areas not covered by the AOCs and in the

groundwater and associated bedrock, and Boeing would still be prohibited from

transferring its land until the cleanup is complete.

Furthermore, the AOCs do not, as Amici contend (at 11), bind Boeing or

prohibit it (or the federal government) from challenging SB990. Amici point to the


- 60 -

“Parties Bound” provision of the agreements, but cite no authority for the

proposition that DTSC could bind Boeing, a non-party, without Boeing’s consent.

Rather, a party generally lacks authority to bind a separate party absent

authorization. See, e.g., Local No. 93, Int’l Ass’n of Firefighters v. City of

Cleveland, 478 U.S. 501, 529 (1986). The AOCs themselves, moreover, provide

merely that DOE and NASA will not challenge DTSC’s authority under the AOCs,

but are silent regarding the agencies’ rights to challenge SB990. ER73-74 ¶7.19.9;

ER126 ¶5.19.9.

V. BOEING’S FIELD-PREEMPTION CLAIM IS COGNIZABLE UNDER SECTION 1983

DTSC argues (at 40-41) that Boeing’s preemption claim cannot be brought

under 42 U.S.C. §1983. This Court need not reach that issue both because DTSC

waived this argument by failing to raise it below, see Hillis, 626 F.3d at 1019, and

because Boeing brought its field-preemption claim directly under the Supremacy

Clause (Count One of the Amended Complaint) and under §1983 (Count Two).

Boeing is entitled to identical relief under Count One regardless of the Court’s

disposition of Count Two.

DTSC is also wrong on the merits. DTSC cites no cases addressing the

AEA, and as the Seventh Circuit has held, a §1983 action is available where an

AEA-regulated party brings a field-preemption claim “to enforce the provisions of

the AEA, including those mandating an exclusive federal regulatory scheme for


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radiation hazards.” Kerr-McGee, 914 F.2d at 824. Unlike the statutes in many

field-preemption cases, “the AEA on its face gives the nuclear industry the right to

answer only to the federal government regarding the utility and safety of the

radiological aspects of nuclear facilities.” Id. at 825. Boeing seeks to enforce

those rights rather than merely enforcing the allocation of authority between

federal and state governments. Indeed, “[i]t would be peculiar to find

[congressional intent] to create a comprehensive and exclusive federal scheme to

encourage the safe and productive uses of nuclear energy, and yet not find that the

preemptive power of that scheme could be enforced in the federal courts as a

‘federal right.’” Id. (citation omitted).

CONCLUSION

The judgment of the district court should be affirmed.

Respectfully submitted.

/s/ Randolph D. Moss STEVEN W. HORTON J. STEVEN ROGERS STEVEN E. RUSAK THE BOEING COMPANY P.O. Box 3707 MC 7A-XP Seattle, WA 98124 (425) 865-1074

SETH P. WAXMAN RANDOLPH D. MOSS CARL J. NICHOLS ANNIE L. OWENS WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000

February 13, 2012


APPENDIX List of Acronyms

AEA Atomic Energy Act of 1954

AEC Atomic Energy Commission

AOC Administrative Order on Consent

CERCLA Comprehensive Environmental Response, Compensation, and Liability Act

DOE U.S. Department of Energy

DTSC California Department of Toxic Substances Control

EPA U.S. Environmental Protection Agency

NASA National Aeronautics and Space Administration

NEPA National Environmental Policy Act of 1969

NRC Nuclear Regulatory Commission

OSWER EPA Office of Solid Waste and Emergency Response

RCRA Resource Conservation and Recovery Act of 1976


SB990 California Senate Bill 990

SSFL Santa Susana Field Laboratory

TCE Trichloroethylene


ADDENDUM


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TABLE OF CONTENTS Page

Atomic Energy Act, 42 U.S.C. §2014(f) .........................................................................................................1a §2014(s) .........................................................................................................1a §2018 .............................................................................................................1a §2021 .............................................................................................................1a §2051(a) .........................................................................................................6a §2052 .............................................................................................................7a §2061(b).........................................................................................................7a §2140(a) .........................................................................................................7a §2201(b).........................................................................................................8a

Resource Conservation and Recovery Act of 1977, 42 U.S.C. §6961(a)................8a

Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §9620(a)(4) ..............................................................9a

10 C.F.R. §30.12(a) ........................................................................................................9a §40.11 ..........................................................................................................10a §70.11 ..........................................................................................................10a §150.3 ..........................................................................................................11a

76 Fed. Reg. 7540 (Jan. 23, 1981) .........................................................................11a

California Health & Safety Code §25356.1.5(d) ...................................................14a

California Senate Bill 990......................................................................................15a


- 1a -

Atomic Energy Act

42 U.S.C. §2014—Definitions * * *

As used in this chapter: * * *

(f) The Term “Commission” means the Atomic Energy Commission.

* * *

(s) The term “person” means (1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, Government agency other than the Commission, any State or any political subdivision of, or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and (2) any legal successor, representative, agent, or agency of the foregoing.

* * *

42 U.S.C. §2018—Agency jurisdiction

Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State, or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission: Provided, That this section shall not be deemed to confer upon any Federal, State, or local agency any authority to regulate, control, or restrict any activities of the Commission.

42 U.S.C. §2021—Cooperation with States

(a) Purpose

It is the purpose of this section—

(1) to recognize the interests of the States in the peaceful uses of atomic energy, and to clarify the respective responsibilities under this chapter of the States and the Commission with respect to the regulation of byproduct, source, and special nuclear materials;


- 2a -

(2) to recognize the need, and establish programs for, cooperation between the States and the Commission with respect to control of radiation hazards associated with use of such materials;

(3) to promote an orderly regulatory pattern between the Commission and State governments with respect to nuclear development and use and regulation of byproduct, source, and special nuclear materials;

(4) to establish procedures and criteria for discontinuance of certain of the Commission’s regulatory responsibilities with respect to byproduct, source, and special nuclear materials, and the assumption thereof by the States;

(5) to provide for coordination of the development of radiation standards for the guidance of Federal agencies and cooperation with the States; and

(6) to recognize that, as the States improve their capabilities to regulate effectively such materials, additional legislation may be desirable.

(b) Agreements with States

Except as provided in subsection (c) of this section, the Commission is authorized to enter into agreements with the Governor of any State providing for discontinuance of the regulatory authority of the Commission under subchapters V, VI, and VII of this division, and section 2201 of this title, with respect to any one or more of the following materials within the State:

(1) Byproduct materials (as defined in section 2014(e) of this title).

(2) Source materials.

(3) Special nuclear materials in quantities not sufficient to form a critical mass.

(4) Repealed. Pub. L. 109-58, Title VI, § 651(e)(2), Aug. 8, 2005, 119 Stat. 807.

During the duration of such an agreement it is recognized that the State shall have authority to regulate the materials covered by the agreement for the protection of the public health and safety from radiation hazards.

(c) Commission regulation of certain activities


- 3a -

No agreement entered into pursuant to subsection (b) of this section shall provide for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to regulation of—

(1) the construction and operation of any production or utilization facility or any uranium enrichment facility;

(2) the export from or import into the United States of byproduct, source, or special nuclear material, or of any production or utilization facility;

(3) the disposal into the ocean or sea of byproduct, source, or special nuclear waste materials as defined in regulations or orders of the Commission;

(4) the disposal of such other byproduct, source, or special nuclear material as the Commission determines by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission.

The Commission shall also retain authority under any such agreement to make a determination that all applicable standards and requirements have been met prior to termination of a license for byproduct material, as defined in section 2014(e)(2) of this title. Notwithstanding any agreement between the Commission and any State pursuant to subsection (b) of this section, the Commission is authorized by rule, regulation, or order to require that the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source, byproduct, or special nuclear material shall not transfer possession or control of such product except pursuant to a license issued by the Commission.

(d) Conditions

The Commission shall enter into an agreement under subsection (b) of this section with any State if—

(1) The1 Governor of that State certifies that the State has a program for the control of radiation hazards adequate to protect the public health and safety with respect to the materials within the State covered by the proposed agreement, and that the State desires to assume regulatory responsibility for such materials; and

1 So in original. Probably should read “the.”


- 4a -

(2) the Commission finds that the State program is in accordance with the requirements of subsection (o) of this section and in all other respects compatible with the Commission’s program for the regulation of such materials, and that the State program is adequate to protect the public health and safety with respect to the materials covered by the proposed agreement.

(e) Publication in Federal Register; comment of interested persons

(1) Before any agreement under subsection (b) of this section is signed by the Commission, the terms of the proposed agreement and of proposed exemptions pursuant to subsection (f) of this section shall be published once each week for four consecutive weeks in the Federal Register; and such opportunity for comment by interested persons on the proposed agreement and exemptions shall be allowed as the Commission determines by regulation or order to be appropriate.

(2) Each proposed agreement shall include the proposed effective date of such proposed agreement or exemptions. The agreement and exemptions shall be published in the Federal Register within thirty days after signature by the Commission and the Governor.

(f) Exemptions

The Commission is authorized and directed, by regulation or order, to grant such exemptions from the licensing requirements contained in subchapters V, VI, and VII of this division, and from its regulations applicable to licensees as the Commission finds necessary or appropriate to carry out any agreement entered into pursuant to subsection (b) of this section.

(g) Compatible radiation standards

The Commission is authorized and directed to cooperate with the States in the formulation of standards for protection against hazards of radiation to assure that State and Commission programs for protection against hazards of radiation will be coordinated and compatible.

* * * (j) Reserve power to terminate or suspend agreements; emergency situations; State

nonaction on causes of danger; authority exercisable only during emergency and commensurate with danger

(1) The Commission, upon its own initiative after reasonable notice and opportunity for hearing to the State with which an agreement under subsection (b)


- 5a -

of this section has become effective, or upon request of the Governor of such State, may terminate or suspend all or part of its agreement with the State and reassert the licensing and regulatory authority vested in it under this chapter, if the Commission finds that (1) such termination or suspension is required to protect the public health and safety, or (2) the State has not complied with one or more of the requirements of this section. The Commission shall periodically review such agreements and actions taken by the States under the agreements to ensure compliance with the provisions of this section.

(2) The Commission, upon its own motion or upon request of the Governor of any State, may, after notifying the Governor, temporarily suspend all or part of its agreement with the State without notice or hearing if, in the judgment of the Commission:

(A) an emergency situation exists with respect to any material covered by such an agreement creating danger which requires immediate action to protect the health or safety of persons either within or outside the State, and

(B) the State has failed to take steps necessary to contain or eliminate the cause of the danger within a reasonable time after the situation arose.

A temporary suspension under this paragraph shall remain in effect only for such time as the emergency situation exists and shall authorize the Commission to exercise its authority only to the extent necessary to contain or eliminate the danger.

(k) State regulation of activities for certain purposes

Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.

* * *

(m) Limitation of agreements and exemptions

No agreement entered into under subsection (b) of this section, and no exemption granted pursuant to subsection (f) of this section, shall affect the authority of the Commission under section 2201(b) or (i) of this title to issue rules, regulations, or orders to protect the common defense and security, to protect restricted data or to guard against the loss or diversion of special nuclear material. For purposes of section 2201(i) of this title, activities covered by exemptions granted pursuant to subsection (f) of this section shall be deemed to constitute


- 6a -

activities authorized pursuant to this chapter; and special nuclear material acquired by any person pursuant to such an exemption shall be deemed to have been acquired pursuant to section 2073 of this title.

* * *

42 U.S.C. §2051—Research and development assistance

(a) Contracts and loans for research activities

The Commission is directed to exercise its powers in such manner as to insure the continued conduct of research and development and training activities in the fields specified below, by private or public institutions or persons, and to assist in the acquisition of an ever-expanding fund of theoretical and practical knowledge in such fields. To this end the Commission is authorized and directed to make arrangements (including contracts, agreements, and loans) for the conduct of research and development activities relating to—

(1) nuclear processes;

(2) the theory and production of atomic energy, including processes, materials, and devices related to such production;

(3) utilization of special nuclear material and radioactive material for medical, biological, agricultural, health, or military purposes;

(4) utilization of special nuclear material, atomic energy, and radioactive material and processes entailed in the utilization or production of atomic energy or such material for all other purposes, including industrial or commercial uses, the generation of usable energy, and the demonstration of advances in the commercial or industrial application of atomic energy;

(5) the protection of health and the promotion of safety during research and production activities; and

(6) the preservation and enhancement of a viable environment by developing more efficient methods to meet the Nation’s energy needs.

* * *


- 7a -

42 U.S.C. §2052—Research by Commission

The Commission is authorized and directed to conduct, through its own facilities, activities and studies of the types specified in section 2051 of this title.

42 U.S.C. §2061—Production facilities

* * *

(b) Operation of Commission’s facilities

The Commission is authorized and directed to produce or to provide for the production of special nuclear material in its own production facilities. To the extent deemed necessary, the Commission is authorized to make, or to continue in effect, contracts with persons obligating them to produce special nuclear material in facilities owned by the Commission. The Commission is also authorized to enter into research and development contracts authorizing the contractor to produce special nuclear material in facilities owned by the Commission to the extent that the production of such special nuclear material may be incident to the conduct of research and development activities under such contracts. Any contract entered into under this section shall contain provisions (1) prohibiting the contractor from subcontracting any part of the work he is obligated to perform under the contract, except as authorized by the Commission; and (2) obligating the contractor (A) to make such reports pertaining to activities under the contract to the Commission as the Commission may require, (B) to submit to inspection by employees of the Commission of all such activities, and (C) to comply with all safety and security regulations which may be prescribed by the Commission.

* * *

42 U.S.C. §2140—Exclusions from license requirement

Nothing in this subchapter shall be deemed—

(a) to require a license for (1) the processing, fabricating, or refining of special nuclear material, or the separation of special nuclear material, or the separation of special nuclear material from other substances, under contract with and for the account of the Commission; or (2) the construction or operation of facilities under contract with and for the account of the Commission;

* * *


- 8a -

42 U.S.C. §2201—General duties of Commission

In the performance of its functions the Commission is authorized to—

* * *

(b) Standards governing use and possession of material

establish by rule, regulation, or order, such standards and instructions to govern the possession and use of special nuclear material, source material, and byproduct material as the Commission may deem necessary or desirable to promote the common defense and security or to protect health or to minimize danger to life or property; in addition, the Commission shall prescribe such regulations or orders as may be necessary or desirable to promote the Nation’s common defense and security with regard to control, ownership, or possession of any equipment or device, or important component part especially designed for such equipment or device, capable of separating the isotopes of uranium or enriching uranium in the isotope 235;

* * *

Resource Conservation and Recovery Act of 1977, 42 U.S.C. §6961—Application of Federal, State, and local law to Federal facilities

(a) In general

Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any solid waste management facility or disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal or management of solid waste or hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal and management in the same manner, and to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges.

* * *


- 9a -

Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §9620—Federal facilities

(a) Application of chapter to Federal Government

* * *

(4) State laws

State laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United States or facilities that are the subject of a deferral under subsection (h)(3)(C) of this section when such facilities are not included on the National Priorities List. The preceding sentence shall not apply to the extent a State law would apply any standard or requirement to such facilities which is more stringent than the standards and requirements applicable to facilities which are not owned or operated by any such department, agency, or instrumentality.

* * *

10 C.F.R. §30.12—Persons using byproduct material under certain Department of Energy and Nuclear Regulatory Commission contracts

* * *

[A]ny prime contractor of the Department is exempt from the requirements for a license set forth in sections 81 and 82 of the Act and from the regulations in this part to the extent that such contractor, under his prime contract with the Department manufactures, produces, transfers, receives, acquires, owns, possesses, or uses byproduct material for:

(a) The performance of work for the Department at a United States Government-owned or controlled site, including the transportation of byproduct material to or from such site and the performance of contract services during temporary interruptions of such transportation;

* * *


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10 C.F.R. §40.11—Persons using source material under certain Department of Energy and Nuclear Regulatory Commission contracts

[A]ny prime contractor of the Department is exempt from the requirements for a license set forth in sections 62, 63, and 64 of the Act and from the regulations in this part to the extent that such contractor, under his prime contract with the Department, receives, possesses, uses, transfers or delivers source material for: (a) The performance of work for the Department at a United States Government-owned or controlled site, including the transportation of source material to or from such site and the performance of contract services during temporary interruptions of such transportation; … any prime contractor or subcontractor of the Department or the Commission is exempt from the requirements for a license set forth in sections 62, 63, and 64 of the Act and from the regulations in this part to the extent that such prime contractor or subcontractor receives, possesses, uses, transfers or delivers source material under his prime contract or subcontract when the Commission determines that the exemption of the prime contractor or subcontractor is authorized by law; and that, under the terms of the contract or subcontract, there is adequate assurance that the work thereunder can be accomplished without undue risk to the public health and safety.

10 C.F.R. §70.11—Persons using special nuclear material under certain Department of Energy and Nuclear Regulatory Commission contracts

[A]ny prime contractor of the Department is exempt from the requirements for a license set forth in section 53 of the Act and from the regulations in this part to the extent that such contractor, under his prime contract with the Department receives title to, owns, acquires, delivers, receives, possesses, uses, or transfers special nuclear material for:

(a) The performance of work for the Department at a United States Government-owned or controlled site, including the transportation of special nuclear material to or from such site and the performance of contract services during temporary interruptions of such transportation; … any prime contractor or subcontractor of the Department or the Commission is exempt from the requirements for a license set forth in section 53 of the Act and from the regulations in this part to the extent that such prime contractor or subcontractor receives title to, owns, acquires, delivers, receives, possesses, uses, or transfers special nuclear material under his prime contract or subcontract when the Commission determines that the exemption of the prime contractor or subcontractor is authorized by law; and that, under the terms of the contract or


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subcontract there is adequate assurance that the work thereunder can be accomplished without undue risk to the public health and safety.

10 C.F.R. §150.3—Definitions

As used in this part: * * *

Person means: (1) Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, agency, and State or any political subdivision of any political entity within a State, and any legal successor, representative, agent, or agency of the foregoing other than Government agencies;

* * *

46 Fed. Reg. 7540 (Jan. 23, 1981)

NUCLEAR REGULATORY COMMISSION

Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement

Friday, January 23, 1981

* * *

SUPPLEMENTARY INFORMATION:

1. These criteria were developed to implement a program, authorized by Pub. L. 86-373 which was enacted in the form of a new section to the Atomic Energy Act (Section 274) and approved by the President on September 23, 1959 and amended by Pub. L. 95-604 approved November 8, 1978. These criteria are intended to indicate factors which the Commission intends to consider in approving new or amended agreements. They are not intended to limit Commission discretion in viewing individual agreements or amendments. In accordance with these statutory provisions, when an agreement between a State and the NRC is effected, the Commission will discontinue its regulatory authority within that State over one or more of the following materials: byproduct material as defined in Section 11e(1) of the Act (radioisotopes), byproduct material as defined in Section 11e(2) of the Act (mill tailings or wastes), source material (uranium and thorium), special nuclear material (uranium 233, uranium 235 and plutonium) in quantities not sufficient to form a critical mass and permanent


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disposal of low-level waste containing one or more of the materials stated above but not including mill tailings.

2. An agreement may be effected between a State and NRC: (1) upon certification by the Governor that the State has a program for the control of radiation hazards adequate to protect the public health and safety with respect to the materials within the State covered by the proposed agreement and the State desires to assume regulatory responsibility for such materials; and (2) after a finding by the Commission that the State program is in accordance with the requirements of subsection o of section 274 and in all other respects compatible with the Commission’s program for the regulation of such materials, and is adequate to protect the public health and safety with respect to the materials covered by the proposed agreement. It is also necessary that the State have enabling legislation authorizing its Governor to enter into such an agreement.

3. The original criteria were published on March 24, 1961 (26 FR 2537) after discussions with various State officials and other State representatives, to provide guidance and assistance to the States and the AEC (now NRC) in developing a regulatory program which would be compatible with that of the NRC. The criteria were circulated among States, Federal agencies, labor and industry, and other interested groups for comment.

* * * Personnel

20. Qualifications of Regulatory and Inspection Personnel. The regulatory agency shall be staffed with sufficient trained personnel. Prior evaluation of applications for licenses or authorizations and inspection of licensees must be conducted by persons possessing the training and experience relevant to the type and level of radioactivity in the proposed use to be evaluated and inspected. This requires competency to evaluate various potential radiological hazards associated with the many uses of radioactive material and includes concentrations of radioactive materials in air and water, conditions of shielding, the making of radiation measurements, knowledge of radiation instruments—their selection, use and calibration—laboratory design, contamination control, other general principles and practices of radiation protection, and use of management controls in assuring adherence to safety procedures. In order to evaluate some complex cases, the State regulatory staff may need to be supplemented by consultants or other State agencies with expertise in geology, hydrology, water quality, radiobiology and engineering disciplines.


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* * *

Administration

23. State practices for assuring the fair and impartial administration of regulatory law, including provision for public participation where appropriate, should be incorporated in procedures for:

a. Formulation of rules of general applicability;

b. Approving or denying applications for licenses or authorization to possess and use radioactive materials, and

c. Taking disciplinary actions against licensees.

Arrangements For Discontinuing NRC Jurisdiction

24. State Agency Designation. The State should indicate which agency or agencies will have authority for carrying on the program and should provide the NRC with a summary of that legal authority. There should be assurances against duplicate regulation and licensing by State and local authorities, and it may be desirable that there be a single or central regulatory authority.

* * *

28. NRC and Department of Energy Contractors. The State should provide exemptions for NRC and DOE contractors which are substantially equivalent to the following exemptions:

a. Prime contractors performing work for the DOE at U.S. Government-owned or controlled sites;

* * * and

d. Any other prime contractor or subcontractor of DOE or NRC when the State and the NRC jointly determine (i) that, under the terms of the contract or subcontract, there is adequate assurance that the work thereunder can be accomplished without undue risk to the public health and safety and (ii) that the exemption of such contractor or subcontractor is authorized by law.

* * *


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Cal. Health & Safety Code §25356.1.5—Response action criteria; risk assessments

* * *

(d) The exposure assessment of any risk assessment prepared in conjunction with a response action taken or approved pursuant to this chapter shall include the development of reasonable maximum estimates of exposure for both current land use conditions and reasonably foreseeable future land use conditions at the site.

* * *


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SENATE BILL NO. 990

CHAPTER 729

An act to add Article 5.5 (commencing with Section 25359.20) to Chapter 6.8 of Division 20, of the Health and Safety Code, relating to hazardous waste.

[Approved by Governor October 14, 2007. Filed with Secretary of State October 14, 2007.]

LEGISLATIVE COUNSEL’S DIGEST

SB 990, Kuehl. Hazardous waste: Santa Susana Field Laboratory.

(1) Existing law charges the Director of Toxic Substances Control with oversight over hazardous waste control in the state. A violation of the hazardous waste control laws is a crime.

This bill would authorize the Department of Toxic Substances Control to compel a responsible party or parties to take or pay for appropriate removal or remediation action, as prescribed, necessary to protect public health and safety and the environment at the Santa Susana Field Laboratory site in Ventura County. The sale, lease, sublease, or other transfer of any land presently or formerly occupied by the Santa Susana Field Laboratory would be prohibited unless the Director of Toxic Substances Control certifies that the land has undergone complete remediation pursuant to specified protective standards.

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 and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

The people of the State of California do enact as follows:

SECTION 1. Article 5.5 (commencing with Section 25359.20) is added to Chapter 6.8 of Division 20 of the Health and Safety Code, to read:


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Article 5.5. Cleanup of Santa Susana Field Laboratory

25359.20. (a) Notwithstanding paragraph (1) of subdivision (b) of Section 25187 of the Health and Safety Code, the department may use any legal remedies available pursuant to Chapter 6.8 (commencing with Section 25300) or Chapter 6.5 (commencing with Section 25100) to compel a responsible party or parties to take or pay for appropriate removal or remedial action necessary to protect the public health and safety and the environment at the Santa Susana Field Laboratory site in Ventura County.

(b) A response action taken or approved at the Santa Susana Field Laboratory site shall be conducted in accordance with the provisions of this chapter.

(c) A response action taken or approved pursuant to this chapter for the Santa Susana Field Laboratory site shall be based upon, and be no less stringent than, the provisions of Section 25356.1.5. In calculating the risk, the cumulative risk from radiological and chemical contaminants at the site shall be summed, and the land use assumption shall be either suburban residential or rural residential (agricultural), whichever produces the lower permissible residual concentration for each contaminant. In the case of radioactive contamination, the department shall use as its risk range point of departure the concentrations in the Preliminary Remediation Goals issued by the Superfund Office of the United States Environmental Protection Agency in effect as of January 1, 2007.

(d) Notwithstanding any other provision of law regarding transfers of land, no person or entity shall sell, lease, sublease, or otherwise transfer land presently, or formerly occupied by the Santa Susana Field Laboratory, except as provided in subdivision (e).

(e) As a condition for a sale, lease, sublease, or transfer of land presently or formerly occupied by the Santa Susana Field Laboratory, the Director of the Department of Toxic Substances Control or his or her designee shall certify that the land has undergone complete remediation pursuant to the most protective standards in subdivisions (a) to (c), inclusive.

SEC. 2. The Legislature finds and declares that due to the following unique circumstances regarding the former Santa Susana Field Laboratory, a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution.


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(a) Founded in late 1940s, the Santa Susana Field Laboratory (SSFL) was a facility dedicated to the development and testing of nuclear reactors, rockets, missiles, and munitions. The location of SSFL was chosen for its remoteness in order to conduct work that was considered too dangerous to be performed in more densely populated areas. In subsequent years, however, southern California’s population has mushroomed. Today, more than 150,000 people live within five miles of the facility, and at least half a million people live within 10 miles.

(b) Throughout the years, approximately 10 nuclear reactors were operated at SSFL, in addition to several “critical facilities” (low power reactors); a sodium burn pit in which sodium-coated radioactively contaminated objects were burned in an open pit; a plutonium fuel fabrication facility; a uranium carbide fuel fabrication facility; and a Hot Lab used for remotely cutting up irradiated nuclear fuel.

(c) The Hot Lab suffered a number of fires involving radioactive materials and at least four of the 10 nuclear reactors suffered accidents, including a partial meltdown.

(d) The reactors located on the grounds of SSFL were considered experimental, and, therefore, had no containment structures. Reactors and highly radioactive components were housed without the large concrete domes surrounding modern power reactors.

(e) The most famous accident occurred in July of 1959, when the Sodium Reactor Experiment (SRE) experienced a partial core meltdown releasing radioactive gasses and particles into the atmosphere over a period of weeks. Recent studies have concluded that this accident may have caused hundreds of cancer cases in the Los Angeles area.

(f) One of the disposal procedures at the site in the 1950s and 1960s would consist of workers disposing of barrels filled with highly toxic substances by shooting the barrels at a distance with shotguns, so that they would explode and burn, releasing some of their contents in the form of gasses and particulates into the air. In the mid-1990s a similar practice involving the illegal disposal by open air burning led to the death of two workers at the facility.

(g) Additionally, large amounts of toxic chemicals were released into the soil, air, and groundwater and surface water. For example, the rocket test stands were routinely washed off with TCE, approximately half a million gallons of which were allowed to percolate into the soil and groundwater. Significant


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contamination exists by perchlorate, heavy metals, PCBs, dioxins, volatile organic, and semivolatile organic compounds, in addition to radioactivity.

(h) In 1989, the United States Department of Energy (DOE) found widespread chemical and radioactive contamination at the site, and a cleanup program commenced. In 1995 the United States Environmental Protection Agency (EPA) and DOE announced that they had entered into a Joint Policy Agreement to assure that all DOE sites would be cleaned up to standards consistent with EPA’s Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) standards, also known as Superfund. Those standards would have required a full characterization of the site and cleanup of the remaining contamination to standards deemed protective by EPA. In 2003, DOE declined to follow the 1995 Joint Policy and chose to instead rely on less protective cleanup standards. EPA declared that under the circumstances the site would not be safe for unrestricted release but only for day hikes with restrictions on picnicking; however, DOE continues to insist upon unrestricted release despite the use of sitewide cleanup standards not in keeping with the 1995 Joint Policy and EPA CERCLA guidance.

SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.


CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of February, 2012, I electronically filed

foregoing Brief for Appellee with the Clerk of Court of the United States Court of

Appeals for the Ninth Circuit using the appellate CM/ECF system. Counsel for all

parties to the case are registered CM/ECF users and will be served by the appellate

CM/ECF system.

/s/ Randolph D. Moss RANDOLPH D. MOSS WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000


CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the

undersigned hereby certifies that this brief complies with the type-volume

limitation of Federal Rule of Appellate Procedure 32(a)(7)(B)(i).

1. Exclusive of the exempted portions of the brief, as provided in Federal

Rule of Appellate Procedure 32(a)(7)(B), the brief contains 13,994 words.

2. The brief has been prepared in proportionally spaced typeface using

Microsoft Word 2003 in 14 point Times New Roman font. As permitted by

Federal Rule of Appellate Procedure 32(a)(7)(B), the undersigned has relied upon

the word count feature of this word processing system in preparing this certificate.

/s/ Randolph D. Moss RANDOLPH D. MOSS WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000

February 13, 2012


In the United States Court of Appeals for the Ninth Circuit · 2012-02-14 · No. 11-55903 In the...

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