Public Interest Groups Move Forward with Lawsuit
A hastily-arranged press conference call Tuesday revealed Cal-EPA Department of Toxic Substances Control’s strategy in dealing with revelations of illegally dumping and recycling radioactive material from the Santa Susana Field Laboratory (SSFL): feign outrage and boldly claim, without proof, that DTSC hadn’t done anything wrong.
Santa Monica-based Consumer Watchdog and a coalition of nuclear watchdog and environmental groups had delivered an ultimatum to the state department overseeing the controversial cleanup of SSFL Monday, August 5. It put DTSC on 24-hour notice that if the department didn’t stop lab owner Boeing from recycling radioactive metal and sending it to unlicensed dumps throughout Southern California, that they would sue.
The clock was ticking and would soon run out. The coalition sued DTSC and the Department of Public Health Tuesday afternoon less than an hour after DTSC’s bizarre press conference.
“Respondents have approved, without environmental review, the demolition and disposal of structures that are, by Boeing’s own measurements, radiologically contaminated,” the Consumer Watchdog and Strumwasser & Woocher LLP complaint says. “Worse, Respondents are expressly approving Boeing’s disposal of this radiologically contaminated waste offsite to toxic waste facilities that are neither licensed, nor designed, to accept radiologic material. Many tons of these materials have even been sent to recycling facilities so that these radiologically active materials enter the commercial metal supply.”
The lawsuit comes eight months after EnviroReporter.com exposed DTSC in December 2012 for greenwashing, astroturfing and gutting the SSFL cleanup which has cost hundreds of millions of taxpayer dollars to partially clean up with the majority of the contamination still remaining. Soon after, Consumer Watchdog came out with a blistering report over the agency’s failure to protect California communities from toxic waste.
A subsequent Consumer Watchdog investigation exposed that two top DTSC officials owned large amounts of stock in corporations DTSC regulated. One of those officials was Stewart Black, DTSC’s deputy director of Brownfields and Environmental Restoration.
Perhaps anger at the conflict of interest charges informed Black’s bombastic bluster during Tuesday’s press call. “It’s not only false and irresponsible,” he said of the Consumer Watchdog SSFL report. “It’s frankly reprehensible… I am appalled at the reckless nature of the characterization of cleanup activities at Santa Susana.”
One wonders whether or not Black had even read the extensively sourced 9-page letter and 114-page report that had been delivered to the department the prior day. The letter and report alleged illegal dumping and recycling of tons of radioactive metal, concrete and asphalt as reported in Boeing’s Meltdown Mess.
Deputy director Black seemed outraged and quite sure of himself until he was questioned about the actual levels of radiation outlined extensively in the report. While continually stating that DTSC was in charge of SSFL building demolition and disposal, he referred an increasingly frustrated reporter to the California Department of Public Health (CDPH) which was also put on notice by the coalition. Black wouldn’t answer questions about radiation issues raised in the report even as he attacked it with a rainbow of rhetoric.
The report was causing “unnecessary fear in Southern California communities” Black said. “The safety and care that we implement as we’re overseeing cleanups at sites like Santa Susana are extremely important to us, and we take that responsibility very seriously.”
So seriously does DTSC take that responsibility that DTSC senior staff legal counsel Nancy Bothwell assured reporters that the department was “following the relevant laws” at the same time as saying “I wished these organizations might have provided more information.”
Bothwell apparently did not consider over a hundred pages of fact-sourced accusations to be enough information. Black seemed satisfied being outraged by the report without actually knowing what’s in it.
This became clear when this reporter asked Black about the building at the center of the controversy, the former plutonium fuel fabrication facility. The report shows that 88 of 108 radiation samples taken of the building by Boeing were significantly above background, yet the building was kicked loose for demolition by DTSC with no restrictions.
Plutonium-239 is one of the most fearsome radionuclides known yet the Boeing data of the 108 samples did not distinguish between radionuclides that could also be present including strontium-90 and cesium-137. If the exceedances of background were due to any of these radionuclides, it could allow radioactive materials into the product stream with unforeseen, and possibly tragic, consequences. There is next to no chance that the overages were caused by anything but manmade radiation.
Black refused to answer these reporter’s questions and suggested that it would be best to get it “from the horse’s mouth” referring to the CDPH. After the teleconference ended, the CDPH’s contact number was sent to this reporter by a DTSC press liaison.
DTSC wasn’t so reticent to provide comment online where it posted an interesting characterization of the issues. “The allegations are that DTSC allowed radioactively contaminated waste to be disposed of at landfills and other facilities not licensed to take it,” DTSC said in a Santa Susana Statement for Web. “And that DTSC failed to follow all laws and regulations that govern environmental cleanups.”
“Both allegations are false,” the statement says. “None of the building material demolished and disposed of under DTSC’s oversight from Area IV or any other portion of the SSFL site poses a risk to public health or the environment. In addition, none of the cleanup activities has occurred without required review of the environmental impacts.”
The report by the nuclear watchdog group and member of the coalition, Committee to Bridge the Gap, says otherwise, and notes that more than a decade ago, then-Governor Gray Davis signed an executive order prohibiting disposal of any radioactive material in landfills in California.
Davis’ executive order specifically ordered polluters to not dump hot material in landfills: “If your radioactive materials license is terminated or modified through a decommissioning action to allow release of a site or materials for unrestricted use, it is imperative that you not dispose of any decommissioned materials with residual radiation above background levels at Class III landfills or unclassified waste management units during this moratorium. If there is a violation of the moratorium, the Water Boards will consider enforcement actions against the owner and/or operator of the facility from which the decommissioned materials originated.” [Emphasis added]
This order would seem especially targeted at places like the former Rocketdyne and Atomics International outdoor lab where the nuclear work was so extensive. Indeed, the 1959 partial meltdown of the Sodium Reactor Experiment unleashed hundreds of times more radiation into the environment than the partial meltdown of Three Mile Island in 1979. At least two other partial meltdowns occurred in Area IV of SSFL in 1964 and 1969.
“The radioactive work took place in Area IV, which housed ten nuclear reactors, a plutonium fuel fabrication facility, a ‘hot lab’ for cutting apart irradiated nuclear fuel and manufacturing radioactive sources, an accelerator, various ‘criticality’ facilities, a burn pit in which radioactively contaminated wastes were burned in the open air, and numerous other radioactive operations,” the Committee to Bridge the Gap report reads. “One of the reactors suffered a partial meltdown in which a third of the fuel experienced melting; radioactive material was exhausted into the atmosphere for weeks. At least three others suffered accidents as well. None had containment structures. Decades of accidents, spills, and other releases led to widespread radioactive and hazardous chemical contamination of soil, groundwater, surface water, and structures at the site, as well as migration offsite.”
The report shows that four additional Area IV buildings are about to be demolished as well as the plutonium fuel fabrication facility. The remnants of a sixth reactor have also been okayed for unrestricted release. The amount of radioactive material that has already been demolished and dumped or recycled is staggering according to the report’s numbers.
Six structures already torn down were, according to radiation readings of the material, radioactively contaminated, found above background by Boeing or its predecessors. That includes 493 tons of metal that were allowed to be recycled into the commercial metal supply and 2,432 tons of concrete and asphalt recycled into the consumer products stream including home construction and neighborhood street repair and replacement.
The amount of waste sent to Class I landfills designed for only chemical and not radioactive wastes was 1,153 tons. 568 more tons were put in Class II landfills which are for industrial waste but not radioactively contaminated material. Even municipal dumps are designated targets for this radioactive material with 242 tons of the hot stuff dumped across the Southland in five landfills.
“Additionally, Boeing employed questionable procedures in making the measurements, asserting background levels that appear markedly inflated, using such short count times that detection limits were incapable of catching a large fraction of actual exceedances, and failing to follow established protocols requiring reporting hundreds of measurements that exceeded the critical level for identifying contamination,” the report says. “Nonetheless, Boeing’s own reported radiation readings show that the material is contaminated, yet it has been sent out to recyclers, municipal landfills and other facilities not licensed or designed to handle radioactive waste.”
Low level radioactive waste has to be sent to licensed radiation dumps for a reason, the report points out. Otherwise the ionizing contamination could pollute groundwater and expose the public though the water and the crops watered with it. Indeed, during a DTSC-led meeting discussing SSFL cleanup Tuesday up at the lab, the toxics agency revealed that strontium-90 has now been found in the former Rocketdyne lab’s groundwater along with the radioactive tritium and vaporizing rocket engine solvent trichloroethylene that was previously known.
“Airborne radioactive particulates can be inhaled and lodge in the lung,” the report says. “Exposure to radiation from contaminated metals can produce direct radiation doses. All such radiation doses increases the risk of cancer, leukemia, and genetic effects. The fundamental principle of environmental review is to assess the potential impacts before taking irreversible actions that could significantly affect the environment.”
DTSC has overseen the $41.5 million EPA survey of Area IV’s radiation contamination that Boeing has said had been cleaned twice beforehand and still comes back thousands of times above background. Yet despite this, the department has repeatedly given Boeing the go-ahead to dump and recycle nuclear waste from facilities in Area IV side-stepping the illegality of the violating the Governor’s Moratorium by claiming that the materials are harmless even when so many samples are radiating above background.
This violates a basic tenant of radiation science that has been established since July 2005 in an historic peer-reviewed study. No amount of low-level radiation exposure is safe according to the prestigious National Academy of Sciences. “The scientific research base shows that there is no threshold of exposure below which low levels of ionized radiation can be demonstrated to be harmless or beneficial,” said Richard R. Monson, the panel chairman and a professor of epidemiology at Harvard’s School of Public Health.
DTSC seems keen to subvert its own Agreement on Consent (AOC) with the Department of Energy (DOE) that was agreed to three years ago. The main thrust of the agreement was that everything in 270-acre Area IV, including the 90 acres DOE leased to run its secret nuclear program for decades, would be cleaned up to background. The $41.5 million EPA study determined the background in Area IV and the many places it was exceeded, often by astronomical amounts of cesium-137, strontium-90 and plutonium-239/240.
The AOC covers everything in Area IV including all structures, man-made material and debris and binds DOE as well as its subcontractors such as Boeing. That has required some fancy footwork to dance around the requirements of the agreement.
Boeing seems to have come up with a convenient answer to the problem of dismantling structures in Area IV according to the report. Call the structures “non-radiological,” even when by the company’s own records, these were former radiological facilities. The questionable logic holds that if the structures weren’t involved in nuclear research, they couldn’t possibly be contaminated even though they are in close proximity to the sites of the three partial meltdowns as well as the sodium burn pit where radioactive barrels of goo were tossed into and set afire by shooting guns at the metal containers.
State and federal law prohibit the dumping of radioactive waste in anything but a licensed low-level radioactive waste disposal facility. DTSC and DPH’s use of “risk” levels to determine if the radiation waste presents a health threat is not allowable legally to determine the disposition of this toxic trash according to government statutes analyzed at depth. Indeed, the Nuclear Regulatory Commission tried to enact a “below regulatory concern” level in the late 1980s but was rebuffed when Congress struck it down.
But Boeing is not declaring its debris to be uncontaminated based on the false notion of risk that DTSC has floated. The company is actually using levels based on what was easily detectable by old radiation detectors from decades ago in the 1960s which have no relevance or basis in legal or practical reality today.
The Consumer Watchdog report shows these buildings are contaminated with uranium or mixed fission products including plutonium, cesium-137, uranium-plutonium oxide and a dozen other of some of the most deadly man made radionuclides known. What are unknown are the exact radionuclides that irradiated the 88 out of 108 samples from the plutonium fuel fabrication facility that this reporter failed to pry an answer out of Black about.
No amount of bluster, obfuscation and runaround can diminish the seriousness of the situation. If DTSC, DPH and Boeing have it their way, this metal may end up in kid’s braces, silverware and drive shafts in cars to name just but a few materials where recycled radioactive metal was found.
DTSC’s response to Consumer Watchdog’s demands ended with “we welcome the opportunity to address your mischaracterizations in a court of law.” Now that the coalition has moved forward with its lawsuit, it will be up to the judicial system – which allows far less exaggeration and false outrage – to determine where Boeing’s radioactively contaminated building debris will end up.