DOE’s Draft EIS Violates Federal Law, DOE’s Written Agreement with California and Leaves Up to 94% of Contamination at SSFL Not Cleaned Up

On January 6, 2017 the Department of Energy (DOE) released its draft environmental impact statement (DEIS) for its proposed cleanup of Area IV of the Santa Susana Field Laboratory (SSFL), the site of a partial nuclear meltdown and numerous other radioactive and toxic chemical releases. In the DEIS, DOE has proposed three alternative cleanup plans. All three of DOE’s cleanup plans violate the legally binding agreement DOE signed with California in 2010. All three options call for leaving vast amounts of contamination at SSFL without being cleaned up, so it will continue to migrate offsite to people living nearby. One of the plans provides for no cleanup of up to 94% of the contamination at SSFL.

It is very important that all community members and other interested persons submit their comments to DOE regarding the DEIS (see instructions at the end of this post on how to submit your comments). Many in the community have been waiting for years, quietly wondering when their chance would come to take a concrete step to ensure that SSFL is cleaned up in a responsible manner for future generations of residents. The time has come with this DEIS.

DOE admits that two of its three proposed cleanup plans are at variance with Administrative Order on Consent (AOC), an agreement that DOE signed with California requiring a cleanup of all detectible radioactive and chemical contamination at SSFL. In reality, all three of the proposed plans would violate the AOC. Nowhere does DOE address the fact that the AOC is a legally binding set of commitments, and that it cannot ignore them.

All three proposals (besides the “no action” alternative) would provide for an unacceptably lax cleanup (or nearly none at all) and walk away from DOE’s prior commitments to the people of California:

  • Option 1 would leave 34% of the soil DOE estimates is contaminated not cleaned up.
  • Option 2 would leave 86% of the contaminated soil not cleaned up.
  • Option 3 would leave up to 94% of the contaminated soil not cleaned up.

Beyond an attempt by DOE to avoid a meaningful cleanup, DOE is acting without any legal authority. Since DOE is a regulated entity for chemical contamination at Area IV under the federal law known as the Resource Conservation and Recovery Act (RCRA), the regulator of the cleanup of Area IV is the California Department of Toxic Substances Control (DTSC). As the polluter, DOE is merely the regulated entity. It doesn’t have the power to decide how much of the pollution it created it will clean up. It is not up to DOE, the entity that polluted the site, to decide how much of its pollution it will clean up. The California Department of Toxic Substances Control is the regulator and DOE is the regulated entity. By writing this DEIS, DOE asserts it can be both the criminal and the jury that decides the criminal’s fate. DTSC should be issuing a DEIS for chemical contamination and not DOE. DTSC is also responsible as the regulator for radioactive contamination at Area IV since the AOC agreement signed by DOE gave regulatory authority for radioactive contamination to DTSC and not DOE. DOE in its DEIS is just thumbing its nose at the state, ignoring both the legally binding cleanup agreement it executed and the state’s authority to regulate the cleanup of the toxic mess DOE created by its carelessness at SSFL.

DOE’s release of the DEIS is also a politically calculated move. The DEIS was due over three years ago, in 2014. Instead of releasing it then, DOE released it a few days after Senator Barbara Boxer (who has advocated for a strict cleanup of SSFL) left office and only two weeks before the existing DOE political appointees will also be out of office. Indeed, the AOC promised that all of the contamination at the site would be cleaned up by 2017. By dragging its feet, whatever cleanup occurs – which they propose will be very little – won’t even begin by then.

Option 1: DOE pretends it Will Cleanup SSFL to AOC Standards

DOE characterizes the first option as remediation to “AOC” standards. In describing the first option in this way, DOE dishonestly claims it would somehow clean up contamination to the standards in the AOC. In reality, DOE’s first option would exempt 34% of the soil from cleanup that it had already committed to when DOE signed the AOC. Adding insult to injury, DOE even admits that the 34% of the soil it would exempt from cleanup under option one is contaminated above the limits imposed by the AOC.

Option Two: DOE’s Attempt to Revise the AOC’s Cleanup Standards, Since the AOC’s Standards are “Too Hard.”

DOE characterizes option two as an “alternative” to the AOC’s cleanup standards by watering down the cleanup limits imposed by the AOC agreement it signed with California. The underlying assumption of this option is that DOE should lower its cleanup standards since DOE now doesn’t like the cleanup standards it solemnly committed to in 2010 in a legally binding agreement. Under this second option, 86% of the soil that DOE had promised to cleanup would be exempted from cleanup. The more lax standards are simply a plan for DOE to break the agreement and to ignore 86% of the contaminated soil.

DOE also dishonestly claims that option two would require a cleanup to the Environmental Protection Agency’s (EPA) “suburban residential standards.” But in footnote 22 of the DEIS, DOE quietly notes that option two removes the part of the standard that is based on the risk for a resident from a backyard garden—which EPA and DTSC require be included in the suburban residential standard. The DOE pretend “suburban residential standard,” with the backyard garden not included, is 100 to 1,000 times more lax than the actual EPA and DTSC suburban residential standards which include the presumption of someone having a fruit tree or lettuce and tomato plants, for example, growing at their residence. By this buried footnote and misleading claim, DOE would leave behind hundreds of times as much contamination as is allowed under a suburban residential standard.

The removal of the backyard garden assumption is extremely dangerous, and would be a public health disaster for future residents of the area who may decide to grow tomatoes in their backyard. Even Boeing, in its own risk analysis, admitted that when the backyard garden is included in the assumption, as it should be, the risk of developing cancer is as high as 96 out of 100. This is vastly beyond an acceptable risk range for people who may ultimately live on land with a legacy of multiple nuclear accidents. DTSC (DOE’s regulator) also issued a written order that the garden scenario must be included in the risk assessment, something DOE refuses to do in option two—and in fact lies about, claiming they are excluding the garden based on DTSC’s risk assessment methodology.

Even if the AOC cleanup requirements are ignored under option two, longstanding EPA guidance dictates that DOE rely on local zoning for setting a cleanup standard. In AREA IV’s case, that standard would be agricultural (e.g., cows grazing a few feet away from the sodium burnpit), but that standard is also completely ignored by DOE in option two.

DOE repeatedly claims under option two that it will use a cleanup standard that will provide for a “one in a million” chance of someone becoming sick with cancer or some other serious illness. At face value, this seems like a responsible goal, but what DOE does not tell say is that the “one in a million” number is also based on the assumption that residents have no gardens, as well as ignoring agriculture. With the backyard garden back in the assumption, the risk for illness skyrockets and is nowhere near “one in the million” (or 1 x 10-6) as DOE claims. Translation: if you they used the EPA-required assumptions for residences or agriculture, the risk of illness is 100 to a 1,000 times higher than “one in a million.

Option Three: DOE Talks the Talk, But Refuses to Walk the Walk

After having contaminated the natural environment of SSFL for decades, DOE shamelessly characterizes cleanup option three as the “natural resources” alternative. In reality, option three leaves almost all contamination on site and allows DOE to almost entirely walk away from its cleanup obligations. Option three would allow up to 94% of the contamination at Area IV to remain in place.

Option three would be a cleanup that allows for an exposure of up to 25 millirem of radiation per year (the equivalent radiation of about a dozen chest x-rays per year, every year, from conception to death). As with option two, DOE intentionally leaves out both the agricultural exposure and for residential, the backyard garden, in direct violation of DTSC’s and EPA’s requirements. DOE goes on to pretend in option three that it may cleanup some of the radioactive contamination to an exposure rate below a dozen x-rays per year, but it does not say how it would do that or even if it would do that. There are no guarantees in option three, only a promise that DOE will “think about it” when it comes to the cleanup of radioactive contamination at SSFL.

As with the other two options, option three violates DOE’s prior written agreement under the AOC. It also violates the 1995 DOE-EPA Joint Policy that all DOE sites must be cleaned up consistent with EPA guidance. EPA has long declared 25 millirem to be nonprotective and bars its use at sites following EPA guidance, which DOE committed in the 1995 Joint Policy to follow. In the Joint Policy, DOE also agreed with EPA that a cleanup must generally be done to agricultural standards if the land is zoned that way. To avoid that agricultural standard requirement, DOE instead claims to use a suburban residential cleanup standard, but even in using that standard DOE could not help itself from trying to deceive the public by removing the assumption that a future resident will have a backyard garden, which is generally required to be included by EPA guidance. The only way that DOE is allowed to remove the backyard garden under the residential scenario is if there is some clear reason why residents would not have one, which is not the case here.

In option three, DOE proposes cleanup standards which average contamination over wide areas, so that contamination in one place that exceeds even the weak standard they propose would not be cleaned up, because it would be averaged with cleaner areas elsewhere. By averaging areas with little or no pollution with areas of high pollution to make a cleanup standard, DOE obviously ends up with watered down cleanup standards. DOE fails to explain this in the DEIS.

Option three is the most dangerous option since it would leave almost all of the contamination in place and provide for a cleanup that almost guarantees illness to future residents on the SSFL Area IV land.

Options 2 and 3 violate the 1995 EPA-DOE Joint Policy for Cleaning Up DOE Sites to EPA guidance. Options 1,2, and 3 all violate the 2010 DTSC-DOE AOC.

DOE’s Attempt to Discredit the AOC

Throughout the DEIS, DOE makes a series of statements that have no purpose other than to attack the standards DOE already agreed to in a contract with the state of California.

First, DOE claims the AOC’s protective cleanup standards make it hard to determine if DOE has met them. This is nonsense. The agreement is to clean up to background, and EPA established what background is, with a very high statistical degree of certainty, so that one errs in the direction of not removing soil that is really at background as opposed to erring on the side of protecting people by not leaving behind soil that is actually contaminated. In any case, it is not up to DOE, the polluter, to set background; the AOC gives that authority to DTSC.

Second, DOE claims that it simply cannot find any soil—anywhere in America—that does not exceed the limits imposed by the AOC. DOE’s attempts to find soil, however, are based on bogus claims. In other words, the books were cooked when it came to DOE finding “clean” offsite soil as well. EPA and DTSC established background, by measuring radioactivity and chemicals in areas a few miles from SSFL; of course there is soil that hasn’t been affected by SSFL’s pollution.

Third, DOE claims that even if it did find “clean” off-site soil, the soil would not be the same as the soil that is naturally at SSFL, making it hard to establish native vegetation. Area IV, however, already had its native vegetation scrubbed off years ago by DOE to build its nuclear reactors and other highly toxic research projects. For DOE to now pretend that it cares for native vegetation that it already killed off and destroyed is cynical at best. Furthermore, DOE’s flaky concern over using soil that will be a bit different than the polluted soil that is already at SSFL does not give it permission to breach its agreement to cleanup SSFL to the standards it already agreed to in the AOC.

The Bottom Line

The bottom line with the DEIS is that DOE has given itself three options for cleanup. All three of the options would violate the written agreement that DOE has signed regarding cleanup, allow DOE to act as its own regulator when federal law and the AOC mandate that DTSC should be the regulator, violate longstanding cleanup practices agreed to by EPA and DOE, and impose a manipulated cleanup standard that in some scenarios would leave up to 94% of contamination on site and allow for people living in the area being at risk for developing cancer or some other horrible disease due to exposure to the contamination that would keep migrating from SSFL to their communities.

Do Something Important for the Health of Your Family and Community, Right Now!

CBG strongly urges you to take action now to make sure DOE does not violate its prior written agreements or federal law. Here are the steps you can take to make a real difference today:

  • Prepare to write your own letter of comment, urging DOE to uphold the AOCs and reject the weaker alternatives. And forward far and wide to all your contacts to get them to do the same.
  • Mark your calendars for DOE’s two public meetings, the first is on Saturday, February 18, 2017, in the Grand Vista Hotel’s ballroom in Simi Valley (999 Enchanted Way, Simi Valley, California 93065) from 9:30 a.m. to 12:00 noon. The second in the Airtel Plaza Hotel’s Golfstream Ballrom in Van Nuys (7277 Valjean Avenue, Van Nuys, California 91406) on Tuesday, February 21, 2017 from 6:30 p.m. to 9:00 p.m. Please attend at least one meeting, if you can attend both, even better!
  • Send a letter to the editor to the VC Star by emailing letters@vcstar.com telling the VC Star that you do not support DOE’s DEIS.
  • Call, write, and meet with your local California state assembly member and/or senator (http://findyourrep.legislature.ca.gov/), and your Congressperson (http://www.house.gov/representatives/find/) or California U.S. Senators Dianne Feinstein and Kamala Harris. We need to renew our efforts to meet with elected officials. Tell your elected officials that the three options provided by DOE violate their prior commitment to cleanup SSFL to strict standards and would be dangerous for generations of local residents.