Secrecy, Obfuscation, and Broken Promises: The Santa Susana Field Lab and 60+ Years of Bad Governance
By Carmi Orenstein, MPH, CHPNY Program Director and Networker Editor, SEHN
On August 11, 2022, in Valencia, California, I attended a nine-hour special meeting of the Los Angeles Regional Water Quality Control Board, one of several state Water Boards, tasked with making one decision relating to an epic problem: more than 60 years of radioactive and chemical contamination at the Santa Susana Field Lab (SSFL), with no comprehensive cleanup accomplished. Nine hours later, a solution was further away than ever.
For those of us who work in environmental health, the scene in Valencia was familiar. Representatives of the industry accused of contaminating a community arrived in suits and a black SUV with out-of-state plates. They huddled, during the breaks in the proceedings, with a dozen or so union workers identifiable by their t-shirts, an alignment presumably brought on by the promise of good jobs for their membership.
Filling the other seats were members of the impacted community who stood outside before the meeting began with signs that read “Protect Our Water” and “Protect Our Kids.” Most heartbreakingly, other posters had no words at all, just photographs of ill children, some in hospital beds. Most were signed up to testify for the few minutes allocated for public comment about the policy decision under consideration, however ignored their voices may have been by unresponsive regulators in years past. Hundreds more joined by Zoom, many having registered to give their permitted testimony remotely. The community members were organized by Parents Against Santa Susana Field Lab, whose overall demands include attention to the possible pediatric cancer cluster surrounding SSFL, as well as the site’s comprehensive cleanup.
The Board members themselves were assembled up front, and the agenda that brought us all together for the special meeting was a proposed Memorandum of Understanding (MOU) between the Board and the Boeing Company, outlining a process by which Boeing would eventually be exempted from the stormwater pollutant permitting system that the Board oversees.
This MOU represented the final approval needed for a larger deal between the state and Boeing to take effect. That larger deal would allow Boeing to leave much of the contamination in place at SSFL. This Water Board meeting, focused on the MOU, was the only public hearing at which all of the concerns about the full Boeing deal could be aired.
As for me, I took my seat as a public health researcher and educator who helps provide and amplify good science to frontline communities, and also as a former resident of this community. I grew up in the shadow of SSFL, its constant rocket engine test booms part of the soundtrack of my childhood. More than 500,000 people currently live within ten miles of the site. I remain deeply concerned about the ongoing deprivation of this community’s right to a clean and healthy environment, which I wrote about here last year, and deeply committed to deciphering the connection of that deprivation to California’s apparent patterns of poor governance—and to defending and restoring that right. Processes and power relationships revealed in the last year, including at this special meeting, keep the alarm bells ringing for me.
The author (rear) with members of Parents Against Santa Susana Field Lab, August 11, 2022
Photo credit: Melissa Bumstead
Sixty years of silence and delay
Beginning in the late 1940s, SSFL, originally known as Rocketdyne, developed and tested rocket engines and conducted experiments with nuclear reactors in what was then the mostly unoccupied Simi Hills outside of Los Angeles. In 1959, research and development activity there led to a partial meltdown of one of its uncontained nuclear reactors that released up to 459 times more radiation than the infamous meltdown at the Three Mile Island nuclear reactor some twenty years later. The disaster was compounded by six decades of other radioactive accidents, toxic chemical spills, and burns in open-air pits of both chemical and radioactive wastes.
Secrecy about the meltdown and the various fires and releases prevailed for decades, and there was no comprehensive cleanup. Along the way, Boeing took ownership of the main site from Rocketdyne; NASA and the Department of Energy (DOE) own smaller portions. Hence, Boeing holds responsibility for the cleanup of a large portion of the site, and NASA and DOE for the remainder.
Despite the good work of grassroots groups and non-governmental organizations, and occasional exposés and news stories over the years, the reckless life of SSFL has mostly been characterized by inattention. Suburban development has crept closer and closer to the site, placing more people in harm’s way.
Finally, in 2007—15 years ago—the California Department of Toxic Substances Control (DTSC) emerged as the lead regulator agency and entered into a Consent Order with the responsible parties. (NASA and DOE signed an even stronger “Order on Consent” in 2010; see this timeline. The DTSC and Los Angeles Regional Water Quality Control Board both fall under the umbrella of the California Environmental Protection Agency [CalEPA]. DTSC has jurisdiction over the cleanup, as well as soil and groundwater issues at the site, and the Board permits stormwater runoff.)
As part of that 2007 consent order, DTSC set 2017 as the legally binding completion date for cleanup. Nevertheless, by 2018, no meaningful clean-up had even commenced. And that was the year the catastrophic Woolsey Fire blazed through the site, spreading radioactive contamination linked to SSFL into surrounding neighborhoods as far as nine miles away.
With earlier generations of cleanup advocacy groups largely gone, residents once again organized, as Parents Against SSFL, and made sure the story would keep making headlines. And it did. SSFL is “one of the most toxic sites in the United States by any kind of definition,” Jared Blumenfeld, then-head of the CalEPA, told Los Angeles Times columnist Michael Hiltzik in 2020. “It demands a full cleanup.”
However, two years later, the promise of the full cleanup seems to have dimmed even further. Recent developments appear for now to have given the advantage to Boeing: the novel use of conservation easements to lower toxic cleanup standards and the new agreements secretly negotiated between Boeing and the state of California. The specific contents of this new 796-page cleanup plan, beyond my scope here, are being deciphered by the independent organizations that have long monitored the situation. Committee to Bridge the Gap has published an analysis, including 20 pages of charts comparing the cleanup standards required by the 2007 Consent Order to those in the 2022 agreement, finding dramatically weakened requirements.
Conservation easement as environmental decoy
With impacted communities and their local governments remarkably responsive and engaged in the political process, what is now impeding the implementation of that elusive, and legally mandated, full cleanup? Ironically, part of the answer may lie in the application of conservation easement designations which offer tax benefits to landowners that set property aside to remain undeveloped. According to the National Conservation Easement Database, “a conservation easement is a voluntary, legal agreement that permanently limits uses of the land in order to protect its conservation values.”
As revealed by a July 2022 Reuters investigation, Boeing—despite its binding agreement to restore 1,900 acres of SSFL land to a standard by which “people could live on the land and eat vegetables from their gardens”—pursued conservation easements to prohibit the land from development. With the land thus “conserved,” no one would live on it and no gardens would be planted. This arrangement may offer Boeing the option of cleaning up the area to only the much more relaxed standard associated with future opportunities for “light recreation.” As the Reuters analysis noted, that lesser standard “would leave the vast majority of chemical pollution in the ground and shave at least tens of millions and perhaps hundreds of millions of dollars off the company’s cleanup costs.”
SSFL’s attempt at a near-magical transformation from a frightfully contaminated industrial area to a recreational preserve is not unique. Reuters found conservation easements on at least 40 other contaminated sites in the United States, “including former landfills, mines, waste ponds and burn pits.” It is intuitively clear that this was never an intended purpose of this legal tool. “Plunking a conservation easement on a property in lieu of cleaning it up is a perversion of the use of a conservation easement,” according to Nancy McLaughlin, a law professor at the University of Utah, interviewed by Reuters.
The corporate unaccountability created when conservation easements allow polluters to rebrand toxic sites as conservations lands is deeply troubling. As explained by Reuters, the US Environmental Protection Agency (US EPA) encourages conservation easements as a “win-win,” that will save time and money and incur additional benefits, including boosting a company’s image as “a friend of the environment” and repairing their “relationship with the community.” It is alarming that US EPA expresses goals from the perspective of the polluter at all.
I have been troubled for years by seemingly endlessly expanding suburban development around SSFL both because of the impact of expanding infrastructure on the fragile, erodible landscape and because of what I know about the potential health impacts of the toxic landscape on the new residents moving in. Re-development (e.g., allowing housing) on the site itself must obviously be prohibited pending a comprehensive cleanup. But make no mistake: comprehensive cleanup is imperative because it is the only way of preventing the in-perpetuity toxicity of SSFL and the areas that surround it. Even if it were possible to seal off the borders of the SSFL so that contaminants could not escape its footprint, partial cleanup and conversion of the area to light recreational use—as the conservation easements would allow—leaves unanswered pressing questions about the potential impacts on wildlife of the left-in-place contaminants and even whether the light recreation standard truly would protect visitors.
Confidentially negotiating versus publicly regulating
In addition to the conservation easement masquerade, the replacement of legally binding agreements with those resulting from confidential negotiations between the state of California and Boeing is impeding a meaningful cleanup at SSFL. Those confidential negotiations, from which a new “comprehensive framework” for the clean-up emerged, took place despite previous legally binding agreements, and a pledge by then CalEPA Secretary Jared Blumenfeld “to regulate, not negotiate.”
The contours of the backroom deal became clearer during the Valencia meeting last August. Because the MOU, which was subject to the Board’s vote, was the last piece needed by Boeing to finalize its new cleanup plan, allusions to the history of the opaque plan’s development came up again and again in Valencia. During opening presentations, Jared Blumenfeld and the Boeing representative frequently referred to a history of “disputes” between the two parties—vague phrasing that also turns up in the publicity materials the state generated following the new cleanup plan, released prior to the hearing. Blumenfeld (on what turned out to be the day before the announcement of his departure) openly referred to the “twelve years of wrangling” that had elapsed before he became CalEPA Secretary in 2019.
The Boeing representative, Steven Shestag, Senior Director of Environmental Sustainability and site leader for SSFL, referred to delays to the cleanup in much more sanguine terms, asserting, curiously, that he had both worked “more than 20 years for Boeing on the Santa Susana remediation and restoration,” and claiming that he wants “to see the cleanup start as soon as possible.” It was an astonishing claim. “With your approval today,” Shestag said to the Board, “there is a clear and accelerated path forward to complete Boeing’s final cleanup.” He spoke of the “high cost of continued delay and continued dispute,” and said, “we agree that the final cleanup has been delayed much too long.”
No one concerned with the contamination of SSFL and the ongoing release of those contaminants doubts the urgency of the cleanup. Communities and municipalities have expressed urgency for decades. But several lines of evidence suggest that, in the last two and half decades, it is Boeing that has aggressively resisted its responsibilities through elaborate detours, buoyed by the state’s apparent inability or unwillingness to enforce the 2007 agreement.
Memorandum of Misunderstanding
The MOU under discussion in Valencia was to approve a process by which Boeing would, at some point—following a cleanup designed and agreed upon within closed-door negotiations—be completely absolved from oversight by the Board. Several commenters at the meeting used their constrained time allotment (with no opportunity to submit written comment) to speak on the irregularities they had discerned regarding the features of the MOU. These irregularities exemplify managerial and administrative processes contrary to a good governance model.
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Governance refers to all processes of governing, the institutions, processes and practices through which issues of common concern are decided upon and regulated. Good governance adds a normative or evaluative attribute to the process of governing. From a human rights perspective it refers primarily to the process whereby public institutions conduct public affairs, manage public resources and guarantee the realisation of human rights.
The Human Rights Council has identified the key attributes of good governance:
transparency
responsibility
accountability
participation
responsiveness (to the needs of the people)
[W]ithout good governance, human rights cannot be respected and protected in a sustainable manner. The implementation of human rights relies on a conducive and enabling environment. This includes appropriate legal frameworks and institutions as well as political, managerial and administrative processes responsible for responding to the rights and needs of the population.
Jeff Ruch, Pacific Director for PEER (Public Employees for Environmental Responsibility) worked for over a decade as a committee staff attorney with the California State Legislature and with PEER for over thirty years. PEER was in fact responsible for bringing the fact of the secret negotiations into the public view in early 2021. Ruch opened his comments saying: “During those three decades working in more than 40 states, I never encountered a document resembling this proposed MOU.” Ruch said that PEER could not find any document like it “in the annals of this Regional Water Quality Control Board, nor any other Regional Water Quality Control Board, for that matter.” A former US EPA attorney whom he queried said that it looked to be “completely contrary to long-standing EPA guidance governing permitting.” Ruch sharpened the point: “Suffice it to say, this MOU is an unprecedented concession to an industrial polluter.”
“Suffice it to say, this MOU is an unprecedented concession to an industrial polluter.”
Ruch explained that, first, the MOU asks the board to commit to rescinding Boeing’s water pollutant discharge permit, leaving future stormwater runoff unregulated on the promise of a future clean up. The MOU basically states, echoing Boeing’s website content, that stormwater runoff from Boeing areas will no longer be polluted, and thus in no need of regulation. Ruch said that he could find no factual basis for such assumptions. He questioned how, at this moment, the Board could be confident of this?
Moreover, Ruch asserted that the MOU requires the Board to surrender its independent judgment. The MOU provides that a panel appointed and financed by Boeing will determine all the relevant measurement, modeling, cleanup confirmation, and human health risk assessment for the Santa Susana site. The MOU, Ruch emphasized, “does not specify what, if any, discretion the Board will retain to disagree with the Boeing consultants or even to rely upon data not approved by Boeing.”
The remainder of Ruch’s testimony was equally devastating. He explained that the entire premise of the MOU amounts to allowing Boeing to turn upside down the normal regulatory procedure for issuing and terminating pollutant discharge permits. The Los Angeles Water Board is one of nine such boards in California, which, under the State Water Resources Control Board implement the Federal National Pollutant Discharge Elimination System (NPDES) Program. “Under standard practice,” Ruch said, the NPDES permit,
… would remain in effect until completion of the site cleanup. Then, there would have to be at least several years of data showing no releases above permit limits at the outfalls to demonstrate that the cleanup had succeeded. Only then would the permit be lifted…. The decision to eliminate the NPDES permit would for all intents and purposes be made long before the full site is cleaned up.
Ruch questioned why a Memorandum of Understanding,
… provides for not only a formal dispute resolution process but also for Boeing to appeal to the State Water Board and, ultimately, for judicial review. Why should the Board consent to be sued for the pleasure of entering into a Memorandum of Understanding with Boeing? Did the Board’s attorneys actually negotiate this language? Or was it, like so much of this MOU, language that clearly appears to have been dictated by Boeing?
Ruch went on to describe a regulatory “donut hole,” by which the DOE and NASA, who have separate responsibilities over the site and its cleanup, will hypothetically obtain new NPDES permits when Boeing’s are terminated, though they are not parties to the DTSC settlement or to the MOU. He decried the casualness of this assumption for “a site that suffered a nuclear reactor meltdown, 50-years of rocket testing, and other chemical contamination that makes this the most polluted place in California and perhaps the nation.” The MOU would only require that Boeing use “best efforts” to persuade NASA and DOE to obtain water pollutant discharge permits. The respective areas of the site for which the three parties have responsibility are contiguous. Ruch questioned how the Board will determine what stormwater runoff originates from which area and, if Boeing is off scot-free due to the future termination of permits built into this MOU, the assumption seems to be that NASA and DOE would be responsible for all remaining legacy industrial pollution, though it does not explicitly say so.
“[The entire process is in] blatant violation of the California Environmental Quality Act. ”
Ruch contended that the entire process is in “blatant violation of the California Environmental Quality Act.” And he expressed disdain, as has Parents Against SSFL, that leading up to this hearing, DTSC used paid social media ads and a dot.com web address to promote its agreement with Boeing.
Paid ad by government agency DTSC appearing on August 1, 2022, directing recipient to a dot.com address; screen shot by Melissa Bumstead. The messaging sets up the premise that opposition to this cleanup plan is obstructionist.
“What about this proposed MOU inspires public trust?”
Larry Yee served on the Water Board, since 2012, including a stint as Chair, and resigned on May 20, 2022, two months prior to the Valencia meeting (under pressure from Secretary Blumenfeld, according to Yee’s comment at the hearing). Yee began his testimony stating that he had “important process history” to share, and that the reason the hearing was taking place at all was due to his intervention when he became aware that the board’s executive officer, Renee Purdy, was prepared to sign the MOU with Boeing without public discussion.
I intervened and explained to Renee that the board had delegated the authority for her to participate and represent the regional water board in the mediation, but she did not have the authority to approve and sign the MOU. I stated emphatically that before the MOU could be approved it had to come before the board in our customary open and public process of deliberation and decision making. On this I was firm and not willing to concede.
He continued his call-in comment questioning the legitimacy of the MOU under consideration:
Santa Susana needs to be healed. The people and the earth need to be protected. We don’t need perfection, but we do need protection. Santa Susana has weighed heavy on my mind ever since I joined the water board ten years ago. I strongly believe that the process that gave rise to the settlement agreement was flawed and unfair. Of greatest concern, the people most affected by the decision were not at the table. It was all done behind closed doors. As for the MOU, in my ten years on the board, I do not know when we have ever granted a permittee all the special considerations and concessions that have been granted to Boeing regarding the cleanup. There is much about the MOU that just doesn’t add up. And board members, I’d have to ask you: what about this proposed MOU inspires public trust?... In my judgement, the settlement between Boeing and DTSC is simply not good enough. We can do better. We must demand better. If I were still on the board today, my vote would be to reject the MOU and I urge you to vote no.
“If I were still on the board today, my vote would be to reject the MOU and I urge you to vote no.”
When the public comment period was concluded, the Board approved the MOU with Boeing by a 5-0 vote, thus enabling what many deeply knowledgeable experts see as a profoundly compromised cleanup plan, and a termination of Boeing’s stormwater permit obligations in a future “all-clear” heavily determined by the company itself. One must wonder whether the fox was not only guarding this henhouse but also designing it. (H/t Carl Weimer, former executive director of the Pipeline Safety Trust).
Earlier in the month, Ventura County, Simi Valley, Los Angeles County, and the city of Los Angeles announced that they would partner together “to consider litigation if the cleanup isn't done to background levels.” Perhaps good governance is best exemplified by these local government bodies, with little money and power, but with their ears closer to the ground. Unfortunately, the higher levels of government—that should be defending and restoring the community’s right to a clean and healthy environment—continue to enable Boeing’s resistance to the complete SSFL cleanup.
Following the meeting, with its conclusion serving as another glaring reason for cynicism, Parents Against SSFL founder Melissa Bumstead said, “This is just another bump on the road. Boeing can't possibly understand this about us—we’re parents. We don’t give up until our kids are safe.” Onward. And stay tuned: The parents and their allies have plans.