The Boeing Company v. Maziar Movassaghi , 768 F.3d 832 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE BOEING COMPANY, No. 11-55903
Plaintiff-Appellee,
D.C. No.
v. 2:10-cv-04839-
JFW-MAN
MAZIAR MOVASSAGHI, in his official
capacity as the Acting Director of
the California Dept. Of Toxic OPINION
Substances Control; LEONARD
ROBINSON, in his official capacity as
the Acting Director of the California
Dept. Of Toxic Substances Control,
Defendants,
and
DEBBIE RAPHAEL, in her official
capacity as the Acting Director of
the California Dept. Of Toxic
Substances Control,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
2 THE BOEING COMPANY V. RAPHAEL
Submitted May 31, 2013*
Pasadena, California
Filed September 19, 2014
Before: Alfred T. Goodwin, Andrew J. Kleinfeld,
and Barry G. Silverman, Circuit Judges.
Opinion by Judge Kleinfeld
SUMMARY**
Environmental Law
The panel affirmed the district court’s decision that a
California law governing cleanup of a federal nuclear site
violated the doctrine of intergovernmental immunity.
The Boeing Co. challenged the validity of California’s
Senate Bill 990, which prescribes cleanup standards for
radioactive contamination at Santa Susana Field Laboratory.
SB 990 requires that the site be made suitable for subsistence
farming, a more demanding standard than that imposed by a
plan adopted by the federal Department of Energy.
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
THE BOEING COMPANY V. RAPHAEL 3
The panel held that Boeing had standing because as
landowner, it established injury in fact.
The panel held that SB 990 violated the doctrine of
intergovernmental immunity because it regulated DOE’s
cleanup activities directly in violation of the Supremacy
Clause. In addition, SB 990 discriminated against the federal
government and Boeing as a federal contractor hired to
perform the cleanup of the Santa Susana site.
The panel did not reach the question of whether the
federal laws governing nuclear materials and cleanup of
hazardous substances preempted the state law. It also did not
reach Boeing’s claim under 42 U.S.C. § 1983 for a
declaratory judgment and an injunction.
COUNSEL
Brian W. Hembacher, Supervising Deputy Attorney General,
Los Angeles, California, for Defendant-Appellant.
Randolph D. Moss, Wilmer Cutler Pickering Hale and Dorr
LLP, Washington, D.C., for Plaintiff-Appellee.
Daniel P. Selmi, Los Angeles, California, for Amici Curiae
Southern California Federation of Scientists, Los Angeles
Chapter of Physicians for Social Responsibility, Rocketdyne
Cleanup Coalition, and Committee to Bridge the Gap.
David C. Shilton, United States Department of Justice,
Washington, D.C., for Amicus Curiae United States.
4 THE BOEING COMPANY V. RAPHAEL
OPINION
KLEINFELD, Senior Circuit Judge:
We affirm the district court’s decision that a California
law governing cleanup of a federal nuclear site violates the
doctrine of intergovernmental immunity. Because we decide
that the state law impermissibly regulates and discriminates
against the federal government and its contractor, we do not
reach the question of whether the federal laws governing
nuclear materials and cleanup of hazardous substances
preempted the state law. We need not reach Boeing’s Section
1983 claim for a declaratory judgment and an injunction.
FACTS
The federal government made and tested rockets, nuclear
reactors, and various nuclear applications for war and peace
at the Santa Susana Field Laboratory beginning shortly after
World War II. When built in the 1940s, this lab was far from
people, thirty miles from Los Angeles in Ventura County.
Los Angeles grew, though, and now over 150,000 people live
within five miles of the site and half a million people live
within ten miles.
When the state law challenged in this case was
promulgated, 452 acres of the 2,850 acre lab site were
federally owned and managed by the National Aeronautics
and Space Association (“NASA”). Most of the site, the
remainder, was owned by Boeing, a defense contractor,
which acquired the land from another defense contractor,
Rockwell International Corporation, in 1996. Rockwell
International and its predecessor, North American Aviation,
had occupied or owned the land since 1947. (For
THE BOEING COMPANY V. RAPHAEL 5
convenience, we refer to Boeing and its predecessors,
Rockwell International and North American Aviation, as
“Boeing.”) Since the 1950s, the federal Department of
Energy (“DOE”) and its predecessor agencies have leased 90
acres of the site from Boeing, where it built and operated 16
nuclear reactors of various sorts and over 200 facilities for
nuclear research.
These two federal agencies, DOE and NASA, hired
Boeing to assist in the nuclear research and rocket testing.
Most of Boeing’s work was as a contractor on behalf of the
federal government, though it also did some commercial
work on its own account at the site. Boeing operated one
commercial nuclear reactor under a license from the Atomic
Energy Commission. It also handled what the California
statute calls “radiological contaminants” under licenses from
the State of California to perform activities involving the use
of x-ray machines, calibration devices, gas chromatographs,
smoke detectors, and various gauges.
All this work created a terrible environmental mess. It
also created tremendous benefits, for war and peace, but the
government’s work unarguably imposed tremendous harm to
the environment. The soil, ground water, and bedrock were
seriously contaminated. Disasters and foolishness added to
the environmental harm.
In 1959, one of the reactors experienced a partial
meltdown that released radioactive gases into the atmosphere
for three weeks. This partial meltdown accounts for about
90% of the radioactive contamination. Much of the rest came
from other nuclear reactor accidents, an open burn pit for
sodium-coated materials, and numerous fires and accidents at
the “Hot Lab.” The “Hot Lab” was used for cutting up spent
6 THE BOEING COMPANY V. RAPHAEL
nuclear fuel from the site’s reactors and spent fuel shipped to
the lab from elsewhere in the United States. Radioactive
material was also dumped at various locations around the site.
One disposal procedure consisted of shooting barrels of toxic
substances with shotguns to make them explode and burn.
The federal government, not Boeing, appears from the
record to be responsible for the radioactive pollution. Though
Boeing conducted some commercial nuclear work at the site,
no radioactive contamination has been traced to Boeing’s
private activity. It is undisputed in this case that the site’s
radioactive contamination either resulted from federal activity
or is indistinguishable from federal contamination.
That is not to suggest that the pollution was merely
wanton. The United States Air Force and NASA used the site
to test rocket engines for ballistic missiles and space
exploration. In the 1940s, the Air Force hired Boeing to help
develop the Navaho guided missile system. The Air Force
and NASA also used Boeing to test liquid-propellant rocket
engines, many of which were used in the space program. But
over 500,000 gallons of the solvent used to clean rocket
engines and launch sites, trichloroethylene, contaminated the
soil, along with heavy metals and other toxins. A
trichloroethylene containment system was implemented in
1961, after which Boeing did its private commercial testing,
but the damage was already done. California concedes that
it cannot identify any chemical contamination that resulted
from non-federal activity and that, to the extent that there is
any contamination from Boeing’s private activity, it cannot
be distinguished from federal contamination.
All this nuclear and rocket research is over now. DOE
ended its nuclear research at Santa Susana in the 1980s. In
THE BOEING COMPANY V. RAPHAEL 7
1996, DOE decided to close its research center and removed
many of the facilities. The Air Force’s and NASA’s rocket
research ended in 2006. Operations at the site now are
limited to trying to clean it up. Different aspects of the
cleanup are carried out under different federal and state
authorities. The federal government supervised the cleanup
of radioactive contamination, and the California Department
of Toxic Substances Control supervised the cleanup of
chemical contamination under generally applicable state law.
The subject of this litigation is a state’s authority, as
opposed to the federal government’s authority, to regulate the
cleanup of radioactive pollution. The issue is whether the
state may mandate more stringent cleanup procedures, not
generally applicable within the state, to a particular site where
the federal government undertook to clean up nuclear
contamination it created. In the circumstances of this case,
the answer is no.
So far, the federal Department of Energy, as successor to
the Atomic Energy Commission, has supervised and
implemented the cleanup of radioactive material. Under the
Atomic Energy Act, DOE is responsible for establishing a
comprehensive health, safety, and environmental program for
managing DOE’s nuclear facilities nationwide.1 DOE has
implemented that authority by issuing orders that set health
and safety limits for radioactive releases and cleanup and site-
closure procedures.2
1
42 U.S.C. §§ 2121(a)(3), 2201.
2
See DOE Orders 435.1, 458.1, 5400.1, 5400.5, available at
https://www.directives.doe.gov/directives. DOE Order 435.1, Radioactive
Waste Management, and its accompanying manuals set forth requirements
8 THE BOEING COMPANY V. RAPHAEL
To clean up the radioactive contamination, DOE hired
Boeing. Boeing conducted a study of the contamination at
Santa Susana. The soil, bedrock, and groundwater
contamination has been extensively sampled and analyzed.
Different parts of the site have different sorts of pollutants,
since rocket testing was done in some areas, and nuclear
research in others. In 2003, DOE adopted an environmental
assessment for cleaning up radioactive waste in the area
where nuclear research was performed. This federal plan
proposed to clean it up to standards suitable for industrial,
recreational, and even suburban residential use. As a cleanup
contractor, Boeing is actively cleaning up the Santa Susana
site on behalf of DOE. Boeing pays a portion of the cleanup
costs and will bear the portion of costs not paid by or
recovered from the federal government. The federal
government sets the standard for the entire cleanup of
radioactive materials (the only waste at issue in this case) and
directs Boeing’s conduct.
Not everyone was satisfied with the DOE plan. The
federal Environmental Protection Agency (“EPA”), the State
of California, and various advocacy groups have challenged
both the plan and DOE’s decision to prepare an
environmental assessment as opposed to an environmental
impact statement. The question whether an environmental
impact statement should be prepared is not before us in this
litigation. A federal district court injunction in another case
prohibits DOE from transferring ownership, possession, or
for managing radioactive waste including characterization, treatment,
disposal, and monitoring. DOE Order 5400.5, Radiation Protection of the
Public and the Environment, addresses cleanup standards that DOE
contractors are required to implement during decontamination and
decommissioning activities.
THE BOEING COMPANY V. RAPHAEL 9
control over anything in the primary area of radioactive
contamination until it prepares an environmental impact
statement.3
Non-radioactive chemical pollutants are regulated
differently from radioactive pollutants.4 The California
Department of Toxic Substances Control regulates the
cleanup of chemical contamination, pursuant to an agreement
with EPA authorizing state control, under a different federal
statute from the one applicable to radioactive materials.5 The
various state and federal agencies involved, and Boeing,
agreed upon an order from California’s Department of Toxic
Substances Control to clean up the chemical contamination to
a level adequate for suburban residential use. That order does
not address the cleanup of radioactive materials.
This case arises from the State of California’s decision to
extend its control to cleanup of radioactive pollutants. In
October 2007, California passed Senate Bill 990, “Cleanup of
Santa Susana Field Laboratory,” prescribing cleanup
standards for both radioactive and chemical contamination.6
The statutory standard requires that the site be made suitable
for “suburban residential or rural residential (agricultural)
3
Natural Res. Def. Council, Inc. v. Dep’t of Energy, No. C-04-04448
SC, 2007 WL 1302498, at *22 (N.D. Cal. May 2, 2007).
4
United States v. Manning, 527 F.3d 828, 833 (9th Cir. 2008).
5
California operates a federally approved hazardous waste management
plan pursuant to the Resource Conservation and Recovery Act, 42 U.S.C.
§ 6926. This plan covers only chemical contamination, not radioactive
materials. 42 U.S.C. §§ 6903(5), (27), 6905(a).
6
S.B. 990, 2007 Reg. Sess., ch. 729 (Cal. 2007).
10 THE BOEING COMPANY V. RAPHAEL
[use], whichever produces the lower permissible residual
concentration” for each contaminant found at the site.7 The
state statute does not further define the “rural residential
(agricultural)” standard, but the federal EPA “agricultural”
standard apparently intended by the state statute assumes
“consumption of farm products for a subsistence farmer,”
getting all his or her vegetables, fruit, meat, fish, and milk
from the land, along with incidental consumption of soil and
inhalation of dust.8 In effect, Senate Bill 990 (“SB 900”)
would require that hypothetical subsistence farmers could live
safely on their farms eating nothing but their chickens, eggs,
crops, and cheese and drinking their milk from their cows
eating the grass, in this patch of nuclear and chemical toxic
waste in the Los Angeles suburbs.
Boeing and the federal agencies contend that this standard
is more demanding than the usual practice under state and
federal law of setting a cleanup level commensurate with a
site’s reasonably foreseeable use.9 It may well be
7
Cal. Health & Safety Code § 25359.20(c).
8
EPA, Preliminary Remediation Goals for Radionuclides: Agricultural
Biota, Soil and Water Graphic and Supporting Text, available at
http://epa-prgs.ornl.gov/radionuclides/agsoilimage.html.
9
See Cal. Health & Safety Code § 25356.1.5(d) (“The exposure
assessment of any risk assessment . . . 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.”); EPA, OSWER Directive No. 9355.7-19, Considering Reasonably
Anticipated Future Land Use and Reducing Barriers to Reuse at EPA-lead
Superfund Remedial Sites (2010); EPA, OSWER Directive No. 9355.7-04,
Land Use in the CERCLA Remedy Selection Process (1995); EPA, Publ’n
No. 9285.7-01B, Risk Assessment Guidance for Superfund (RAGS) Part
B, ch. 2.3 (1991).
THE BOEING COMPANY V. RAPHAEL 11
unreasonable to foresee subsistence farming at the site. The
record does not show why this standard was adopted, or
whether subsistence farming of this sort was contemplated for
the Los Angeles suburbs. The subsistence farming standard
is more stringent than the suburban residential standard
required by the agreed-upon order governing the cleanup of
non-radioactive chemicals. DOE’s cleanup procedures
specifically rejected the state law’s standard as “not a
reasonable scenario for the site.” Boeing has made a public
commitment to dedicate the site for public use as open space
parkland, not subsistence farming. But reasonable
foreseeability of subsistence farming is not the controlling
issue in this case. The relevant tension in this case is the
state’s authority to impose its subsistence farming standard as
against the less stringent federal industrial, recreational, and
residential standard.
Until SB 990’s cleanup standard is met, the state law
makes it a crime for “[any] person or entity [to] sell, lease,
sublease, or otherwise transfer” the land.10 The “Statement of
Uncontroverted Facts,” not disputed by the California
Department of Toxic Substances Control, says that
remediating the groundwater to the California standard
“could take as long as 50,000 years.”
Boeing filed this lawsuit in federal district court
challenging the validity of the California statute, SB 990,
controlling cleanup of the Santa Susana Laboratory grounds.
Boeing argued, and the district court agreed, that the federal
government had preempted the field of regulation of nuclear
safety, and alternatively that cleanup of radioactive materials
at the Santa Susanna site is a federal activity, so state
10
Cal. Health & Safety Code §§ 25359.20(d); 25190.
12 THE BOEING COMPANY V. RAPHAEL
regulation of how the federal government cleans it up violates
the Supremacy Clause and the doctrine of intergovernmental
immunity.
The California Department of Toxic Substances Control
(“California”) appeals. We vacated oral argument to give the
government an opportunity to file an amicus brief, which it
did. The federal government agrees with the district court
that the state law, SB 990, is unconstitutional under the
Supremacy Clause and alternatively, because Congress has
preempted the field.
ANALYSIS
The case was decided on summary judgment, so we
review de novo.11
I. Standing
California does not challenge Boeing’s standing, but some
advocacy groups as amici curiae do. Their argument is that
Boeing suffers no injury in fact from SB 990 because as a
federal contractor, it will be paid for its work and bears no
other costs. We disagree. The law prohibits Boeing from
transferring its own real property, injury enough.12 Even if
the federal government does pay for all the cleanup work, the
estimated 50,000 year delay in transferability (based on
estimated time for cleanup of groundwater to be completed)
11
United States v. Manning, 527 F.3d 828, 836 (9th Cir. 2008).
12
Andrus v. Allard, 444 U.S. 51, 64 n.21 (1979) (“Because the
regulation they challenge restricts their ability to dispose of their property,
appellees have a personal, concrete, live interest in the controversy.”).
THE BOEING COMPANY V. RAPHAEL 13
is indeed an injury in fact to Boeing as landowner. Nor has
the federal government agreed to cleanup the entire site at its
own expense to SB 990’s standards. California concedes that
Boeing will pay the portion of the cleanup expenses not borne
by the federal government. Injury in fact is clear.
II. Intergovernmental Immunity
Under the Supremacy Clause, “the activities of the
Federal Government are free from regulation by any state.”13
Accordingly, state laws are invalid if they “regulate[] the
United States directly or discriminate[] against the Federal
Government or those with whom it deals.”14 SB 990 is
invalid on both grounds.
A. Direct Regulation of the U.S. Government
SB 990 regulates the Department of Energy’s cleanup
activities directly. SB 990 authorizes California’s
Department of Toxic Substances Control to “use any legal
remedies available” under the State’s hazardous waste laws
“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.”15 DOE is a “responsible
party” with respect to radioactive contamination. All of the
contamination at Santa Susana is the result of federal activity
13
Mayo v. United States, 319 U.S. 441, 445 (1943).
14
North Dakota v. United States, 495 U.S. 423, 435 (1990); United
States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010).
15
Cal. Health & Safety Code § 25359.20(a).
14 THE BOEING COMPANY V. RAPHAEL
or is indistinguishable from contamination caused by federal
activity. In addition, SB 990’s legislative findings state that
the Act is necessary in large part because of federal activity
at the site and because “DOE declined to follow the 1995
Joint Policy [between EPA and DOE] and chose to instead
rely on less protective cleanup standards.”16
The federal Department of Energy has accepted
responsibility for the cleanup of radioactive contamination,
and it is actively conducting the cleanup through its cleanup
contractor, Boeing. SB 990 affects nearly all of DOE’s
decisions with respect to the cleanup, including the
environmental sampling that is required, the cleanup
procedures to be used, and the money and time that will be
spent. The state law requires an application of more stringent
cleanup standards than federal laws and DOE’s cleanup
procedures do. Whether state law is better or worse does not
affect state authority, just whether the state regulates federal
activity.
The federal government’s decision to hire Boeing to
perform its cleanup work does not affect the legal analysis.
In Goodyear Atomic Corp. v. Miller, the Supreme Court held
that “a federally owned facility performing a federal function
is shielded from direct state regulation, even though the
federal function is carried out by a private contractor, unless
Congress clearly authorizes such regulation.”17 In Gartrell
Construction Inc. v. Aubry, we held that California’s
licensing requirements for construction contractors were
preempted to the extent that they applied to federal
16
SB 990 § 2(h).
17
486 U.S. 174, 181 (1988).
THE BOEING COMPANY V. RAPHAEL 15
contractors.18 California argues that Boeing must “stand in
the government’s shoes” in order to assert immunity from
state regulation. The cases that California cites to are
inapposite as they discuss generally applicable state tax laws,
which resulted in merely an increased economic burden on
federal contractors as well as others. These tax laws did not
regulate what the federal contractors had to do or how they
did it pursuant to their contracts.
SB 990 directly interferes with the functions of the federal
government. It mandates the ways in which Boeing renders
services that the federal government hired Boeing to perform.
The state law replaces the federal cleanup standards that
Boeing has to meet to discharge its contractual obligations to
DOE with the standards chosen by the state. It overrides
federal decisions as to necessary decontamination measures.
Unlike the tax cases, SB 990 regulates not only the federal
contractor but the effective terms of federal contract itself.
Thus, SB 990 violates intergovernmental immunity unless
Congress has clearly and unambiguously authorized
California to exercise authority over the Department of
Energy with respect to radioactive materials. “It is well
settled that the activities of federal installations are shielded
by the Supremacy Clause from direct state regulation unless
Congress provides ‘clear and unambiguous’ authorization for
such regulation.”19
18
940 F.2d 437, 441 (9th Cir. 1991).
19
Goodyear Atomic Corp., 486 U.S. at 180 (quoting EPA v. State Water
Res. Control Bd., 426 U.S. 200, 211 (1976)).
16 THE BOEING COMPANY V. RAPHAEL
There is no clear congressional authorization in the
Atomic Energy Act that would allow California to regulate
DOE’s cleanup of radioactive materials at Santa Susana. The
agreement entered between California and the Atomic Energy
Commission in 1962 does not affect the immunity analysis.
The 1962 agreement was made pursuant to the 1959
amendment to the Atomic Energy Act that allowed the
Atomic Energy Commission to transfer licensing authority
over nuclear materials to states, pursuant to individual
agreements with individual states.20 Congress sought, among
other things, “to recognize the need, and establish programs
for, cooperation between the States and the Commission with
respect to control of radiation hazards associated with the use
of [nuclear material].”21 The Act provides that states “shall
have authority to regulate the materials covered by [an]
agreement for the protection of the public health and safety
from radiation hazards.”22 Under the 1962 agreement,
California’s Department of Public Health has licensed
Boeing’s commercial nuclear work at Santa Susana.
The 1962 agreement does not grant California any
authority to regulate the federal government. The Atomic
Energy Commission’s regulations implementing the 1959
amendment explicitly state that exemptions from federal
licensing authority under the agreement between states and
the Commission “do not apply to agencies of the Federal
20
42 U.S.C. § 2021.
21
42 U.S.C. § 2021(a)(2).
22
42 U.S.C. § 2021(b).
THE BOEING COMPANY V. RAPHAEL 17
government.”23 So even within “Agreement States,” such as
California, the federal agencies remain subject to the federal
government’s exclusive regulatory authority. The 1962
agreement references these regulations, and no language
under the agreement indicates that the AEC was ceding
authority to regulate federal activities to state agencies.
Subsequent administrative developments make this clear.24
Our conclusion is consistent with the history of the
Atomic Energy Act and Congress’s response to other
attempts by states to regulate federal activities. Section 2018
of the Atomic Energy Act provides that nothing in the Act
affects state regulatory authority over the “generation, sale, or
transmission of electric power produced through the use of
nuclear facilities licensed by the Commission.”25 In 1965,
Congress added the following to Section 2018: “Provided,
That this section shall not be deemed to confer upon any
23
27 Fed. Reg. 1350, 1352 (1962) (codified at 10 C.F.R. § 150.10).
24
The Atomic Energy Commission was abolished in 1974, and its duties
divided between the Nuclear Regulatory Commission (“NRC”) and the
Energy Research Development Administration, subsequently turned into
the cabinet-level Department of Energy. The Nuclear Regulatory
Commission, now with the authority to enter into agreements with states,
makes it clear that the agreement with states “does not transfer regulatory
authority to the States over . . . [a]ctivities of Federal Agencies located in
Agreement States.” NRC Procedure SA-500, Jurisdiction Determinations
2 (Sept. 25, 2007). NRC also requires the Agreement States to provide
exemptions for NRC’s and DOE’s prime contractors performing work on
government-owned or controlled sites from licensing requirements.
Statement of Policy, 46 Fed. Reg. 7543 (Jan. 23, 1981). Cf. 10 C.F.R.
§§ 30.12, 40.11, 70.11 (exempting NRC’s and DOE’s prime contractors
from licensing requirements under the Atomic Energy Act).
25
42 U.S.C. § 2018.
18 THE BOEING COMPANY V. RAPHAEL
Federal, State, or local agency any authority to regulate,
control, or restrict any activities of the Commission.”26
Congress added this proviso to overrule a Ninth Circuit
opinion, Maun v. United States, 347 F.2d 970 (9th Cir. 1965),
which interpreted the section to allow a municipality to
prohibit transmission lines that the Atomic Energy
Commission sought to build in order to carry out its own
activities.27
The Resource Conservation and Recovery Act
(“RCRA”)28 does not authorize California to regulate DOE’s
cleanup of radioactive contamination. RCRA allows states to
operate a hazardous waste management plan applicable to
federal facilities so long as the state regulates “in the same
manner, and to the same extent, as any person is subject to
such requirements.”29 But RCRA excludes from its coverage
radioactive materials regulated under the Atomic Energy
Act.30 So RCRA does not apply to the radioactive
contamination in this case.
Nor does the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”)31 save SB
26
Pub. L. No. 89-135, 79 Stat. 551.
27
Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev.
Comm’n, 461 U.S. 190, 210–11 (1983).
28
42 U.S.C. § 6901, et seq.
29
42 U.S.C. §§ 6926, 6961(a).
30
42 U.S.C. §§ 6903(5), (27), 6905(a).
31
42 U.S.C. § 9601, et seq.
THE BOEING COMPANY V. RAPHAEL 19
990. Under CERCLA, states may obtain authority to clean up
certain hazardous waste sites by obtaining EPA approval and
entering into a “cooperative agreement.”32 Unlike RCRA,
some provisions of CERCLA cover nuclear materials. The
definition of “release” includes releases of nuclear materials
except in certain situations.33 EPA includes “radionuclides”
in the list of “hazardous substances.”34 And CERCLA
contains a federal immunity waiver clause with respect to
state laws concerning removal and remedial of hazardous
substances. However, the waiver does 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].”35 SB
990 applies more stringent requirements to Santa Susana than
to non-federal facilities because it requires cleanup to a
standard suitable for subsistence farming, rather than for the
site’s reasonably foreseeable future use. Under the state’s
generally applicable process, the future use would be
determined by considering a number of site-specific factors
such as current use, county general plans, and topography. It
is undisputed that the subsistence farming has not been so
determined as a land use assumption for the Santa Susana
site.
32
42 U.S.C. § 9604(d)(1)(A).
33
42 U.S.C. § 9601(22)(C).
34
40 C.F.R. Part 302, Table 302.4. Under CERCLA, EPA has the
authority to designate additional hazardous substances by regulations.
42 U.S.C. § 9602.
35
42 U.S.C. § 9620(a)(4).
20 THE BOEING COMPANY V. RAPHAEL
Therefore, we conclude that SB 990 regulates the federal
government directly in violation of the Supremacy Clause.
B. Discrimination Against the U.S. Government and
Its Contractors
SB 990 also violates intergovernmental immunity because
it discriminates against the federal government and Boeing as
a federal contractor. “A state or local law discriminates
against the federal government if it treats someone else better
than it treats the government.”36 California does not dispute
that “SB 990 singles out Boeing, DOE, NASA and the [Santa
Susana Field Laboratory] site for a substantially more
stringent cleanup scheme than that which applies elsewhere
in the State.” The fact that Santa Susana is especially
contaminated does not render the law non-discriminatory
because California’s generally-applicable environmental laws
do not impose the SB 990 radioactive cleanup standards at the
Santa Susana site.
The federal government’s decision to hire Boeing to
perform the cleanup rather than using federal employees does
not affect our immunity analysis on this ground. When the
state law is discriminatory, a private entity with which the
federal government deals can assert immunity.37 In Davis v.
Michigan Department of Treasury, a retired federal employee
challenged Michigan’s taxation of his federal retirement
36
United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010)
(internal quotation marks omitted).
37
North Dakota v. United States, 495 U.S. 423, 435 (1990).
THE BOEING COMPANY V. RAPHAEL 21
benefits.38 Michigan argued that only the federal government,
not private entities or individuals, are immune from state
laws.39 The Supreme Court disagreed because the state law
at issue discriminated against federal employees by
exempting from state taxation retirement benefits paid to state
employees, but not those paid to federal employees.40 The
Supreme Court held that
It is true that intergovernmental tax immunity
is based on the need to protect each
sovereign’s governmental operations from
undue interference by the other. But it does
not follow that private entities or individuals
who are subjected to discriminatory taxation
on account of their dealings with a sovereign
cannot themselves receive the protection of
the constitutional doctrine. Indeed, all
precedent is to the contrary.41
Likewise, Boeing cannot be subjected to discriminatory
regulations because it contracted with the federal government
for the nuclear research and now the cleanup of radioactive
contamination.
SB 990 specifically targets Santa Susana because of the
radioactive pollution created by federal activity on the site
38
489 U.S. 803, 814 (1989).
39
Id.
40
Id. at 814–15.
41
Id. at 814 (citations omitted).
22 THE BOEING COMPANY V. RAPHAEL
and because “DOE declined to follow the 1995 Joint Policy
[between EPA and DOE] and chose to instead rely on less
protective cleanup standards.”42 SB 990 applies more
stringent cleanup standards than generally applicable state
environmental laws. By doing so, SB 990 discriminates
against the federal government and against Boeing as a
federal contractor. Therefore, it is invalid under the doctrine
of intergovernmental immunity.
The 2010 Administrative Orders on Consent from the
California Department of Toxic Substances Control that DOE
and NASA agreed to do not affect the analysis of SB 990.
Both Orders set a radioactive cleanup standard for the soil in
certain areas of Santa Susana. They do not set cleanup
standards for bedrock or groundwater, and SB 990 does. Any
waiver clauses included in the Orders have no effect beyond
the term of the Orders.
III. Severability
We agree with the district court that the terms of SB 990
are unseverable. California concedes that applying SB 990
only to chemical cleanup is impossible without gutting the
Act because the Act sets cleanup standards in part by
requiring that “the cumulative risk from radiological and
chemical contaminants at the site shall be summed.”43 We
decline to construe SB 990 as limited to non-radioactive
cleanup because it would “require us to examine and rewrite
most of the statute in a vacuum as to how the various
42
SB 990 § 2(h).
43
Cal. Health & Safety Code § 25359.20(c).
THE BOEING COMPANY V. RAPHAEL 23
provisions were intended to intersect and in a way that would
be at odds with the purpose of the statute.”44
The judgment of the district court is AFFIRMED.
44
United States v. Manning, 527 F.3d 828, 840 (9th Cir. 2008).