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State Lawmakers Must ‘Let the Sunshine In’ Before Passing SB 633 to Clean Up the Santa Susana Field Lab

ENVIRONMENT POLITICS-“Let the sunshine in” is in reference to our California State Sunshine laws. It is what guides the public process.

The City of Los Angeles has to follow them; Neighborhood Councils have to follow them. In this case, I am referencing the Brown Act. What I am asking for in this article is more transparency in the process of passing an important bill that should be circulated statewide before it goes to the Governor for his signature.

In February 2019, my State Senator, Henry Stern, introduced Senate Bill 633, legislation that is site specific to the Santa Susana Field Laboratory. It was coauthored by Assembly member Jesse Gabriel and Assembly member Christy Smith.

This is the language that existed on February 22, 2019:

“An act to amend the heading of Article 5.5 (commencing with Section 25359.20) of Chapter 6.8 of Division 20 of, and to add Section 25359.21 to, the Health and Safety Code, relating to hazardous materials.


LEGISLATIVE COUNSEL'S DIGEST

SB 633, as introduced, Stern. Santa Susana Field Laboratory: monitoring program.

Existing law authorizes 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 the County Ventura. Existing law prohibits the sale, lease, sublease, or other transfer of any land presently or formerly occupied by the Santa Susana Field Laboratory unless the Director of Toxic Substances Control certifies that the land has undergone complete remediation pursuant to specified protective standards.

This bill would require the Office of Environmental Health Hazard Assessment, on or before July 1, 2020, in coordination with specified entities, to develop and implement a monitoring program to collect data on contaminants from the Santa Susana Field Laboratory that could migrate to and pollute surrounding areas.

DIGEST KEY

Vote: majority   Appropriation: no   Fiscal Committee: yes   Local Program: no 

BILL TEXT

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

The heading of Article 5.5 (commencing with Section 25359.20) of Chapter 6.8 of Division 20 of the Health and Safety Code is amended to read:

Article 5.5. Cleanup of Santa Susana Field Laboratory

SEC. 2.

Section 25359.21 is added to the Health and Safety Code, to read:

25359.21.

On or before July 1 2020, the Office of Environmental Health Hazard Assessment, in coordination with the State Water Resources Control Board, relevant regional water boards, the South Coast Air Quality Management District, and the department, shall develop and implement a monitoring program to collect data on contaminants from the Santa Susana Field Laboratory that could migrate to and pollute surrounding areas.”

This bill, as it states above, has two parts and it leads the reader to believe that Article 5.5 of Chapter 6.8 of Division 20 of the Health and Safety Code is the existing State law. However, that is no longer the case. Article 5.5 of Chapter 6.8 of the Health and Safety Code was the Cleanup of the Santa Susana Field Laboratory, originating with Senate Bill 990 (Kuehl) in 2007: “SB-990 Hazardous waste: Santa Susana Field Laboratory (2007-2008).”

Unfortunately to some, but not for others, this bill was found to be unconstitutional by the 9th Circuit Court of Appeals after litigation was brought by The Boeing Company. (The Boeing Company v the California Department of Toxic Substances Control.)

The second iteration of this legislation, Senate Bill 633, was to implement a monitoring program to collect data on contaminants from the Santa Susana Field Laboratory that could migrate to and pollute surrounding areas.

For the life of this bill (SB 633) -- from February to September 4, 2019 -- this language regarding offsite monitoring stood.

Then suddenly in the third reading on September 6, 2019, the final day to amend the bill, something interesting happened: The original language that was site specific to the Santa Susana Field Laboratory, reference to Chapter 6.8 of the Health and Safety Code, was all gutted.

Who did this and why? Why did we lose the potential to have a Santa Susana Field Laboratory offsite monitoring program? And what does Senate Bill 633 say today?

SECTION 1.

Chapter 7 (commencing with Section 25560) is added to Division 20 of the Health and Safety Code, to read:

CHAPTER  7. Cleanup Standards

25560.

 For purposes of this chapter, the following definitions apply:

(a) “Contaminated site” means a site contaminated with any material over which the department has jurisdiction.

(b) “Department” means the Department of Toxic Substances Control.

25561.

(a) Any cleanup standards finalized by the department on and after January 1, 2020, for a contaminated site shall be, at a minimum, protective of reasonably foreseeable land uses of the site, as determined by all the uses allowed under the applicable zoning and general plan land use designations.

(b) In finalizing cleanup standards for a contaminated site, the department shall consider both of the following:

(1) The history of, and potential for, future migration of contamination offsite or to groundwater or surface water.

(2) Current and anticipated future uses of land in the vicinity of the site.

(c) In finalizing cleanup standards for a contaminated site, the department is not required to consider institutional controls on the site, unless the department consents to the institutional controls.”

The September 6, 2019 Assembly Committee analysis states the following:

“SENATE THIRD READING SB 633 (Stern) As Introduced September 6, 2019 Majority vote SUMMARY: Requires the Department of Toxic Substances Control (DTSC) to impose additional cleanup standards for contaminated sites that are finalized after January 1, 2020.

Major Provisions

1).  Require any cleanup standard for a contaminated site finalized by DTSC, on or after January 1, 2020, to, at a minimum, be protective of the reasonably foreseeable land uses of the site, as determined by all uses allowed under the applicable zoning and general plan land use designations; and, 

2).  Require DTSC, when finalizing cleanup standards for a contaminated site, to consider the history of, and potential for, future migration of contamination offsite or to groundwater or surface water and the current and anticipated future uses of land in the vicinity of the site,

COMMENTS: 

Carpenter-Presley-Tanner Hazardous Substances Account Act (HSAA): State law provides DTSC, with general administrative responsibility for overseeing the state’s responses to spills or releases of hazardous substances, and for hazardous waste disposal sites that pose a threat to public health or the environment. DTSC utilizes the HSAA for cleanup of contaminated sites and the Hazardous Waste Control Law for the regulation of hazardous waste sites. Additionally, DTSC ensures that the state meets the federal requirements that California pay 10 percent of cleanup costs for federal Superfund sites and 100 percent of the operation and maintenance costs after cleanup is complete. The HSAA, provides DTSC with the authority, procedures, and standards to investigate, remove, and remediate contamination at sites; to issue and enforce a removal or remedial action order to any responsible party; and to impose administrative or civil penalties for noncompliance with an order. Federal and state law also authorizes DTSC to recover costs and expenses it incurs in carrying out these activities.

DTSC's cleanup process: The cleanup process under the HSAA is a very comprehensive process designed to ensure that a contaminated site is cleaned up in a manner to protect human health and the environment. The process begins with an assessment of the contaminated site, known as a Preliminary Endangerment Assessment (PEA). The PEA is a detailed evaluation of the contaminated property including assessing past uses of the property, past and current land uses, identifying potential exposure pathways on site and off site for the contamination on the property, as well as sampling of soil and groundwater at the site. Based upon the PEA, the cleanup of a site could include the need for a land use covenant which is a document tied to the property detailing the contamination on the site and any restrictions for future use of the site. Additionally, the site is cleaned up to a standard that meets the intended land use of a site. For example, if a contaminated property is zoned for residential use, then DTSC would require the site to be cleaned up in a manner that would allow for residential housing to be built on the site. SB 633 is designed to codify DTSC's current practice of requiring the cleanup of a site to meet the expected land use of that site. 

According to the Author: "This bill states that the determination of anticipated future land use for setting cleanup standards is based on all the land uses allowed by local zoning and General Plans land use designations for the site. The bill also states that in setting cleanup standards for a contaminated site, in addition to anticipated future land use of the site, DTSC shall consider present and anticipated future use of land in the vicinity of the site, and the potential for migration offsite and into groundwater or surface water. These provisions are vital in protecting public health and nearby populations." Arguments in Support: None on file.

Arguments in Opposition: None on file.

FISCAL COMMENTS: No fiscal analysis for this version of this bill.”

What is not made clear in this comment from the Author is that The Boeing Company has an environmental or conservation easement on its portion of the Santa Susana Field Laboratory. See:

Conservation Easement.”  

Are we opening a “Pandora’s Box” by creating a statewide bill for DTSC based on zoning rather than future planned land use? 

These are cleanup sites for parts of Los Angeles and Ventura County that could be impacted by this law if the cleanup standard for a site is not in place by January 1, 2020.

Senate Bill 633 will impact clean ups of “Contaminated Sites.” It is now almost ready to go to the Governor for signing. Although I am not an attorney, I do have the following thoughts to share with concerned CityWatch readers:

  1. How would language like this apply to State property such as open space in the Santa Monica Mountains, the Santa Susana Mountains, the Simi Hills, and the San Gabriel Mountains which has become contaminated by wildfires such as the Woolsey Fire last year? Would the State be obligated to clean up their property based on its proximity to agricultural property in these mountains or to residential property in these mountains?
  2. Would residents be required to have their property cleaned up to a stricter cleanup standard than a residential standard after a fire, an earthquake, or another natural disaster if they are adjacent to an agricultural property?
  3. How would a bill like this apply to Warner Center? We know there is groundwater contamination below the former Rocketdyne site on Canoga Avenue and under other properties including Northrop -- Grumman on Burbank. These sites are currently under the lead agency the Los Angeles Regional Water Quality Control Board (WaterBoard) for cleanup. Would this bill require – after the WaterBoard says that the groundwater contamination is mitigated – owners of the property to work with DTSC for further cleanup before they can be sold for future use?
  4. Would this legislation just create numerous lawsuits against the State by individual City or County governments who want a cleanup based upon existing cleanup standards throughout the country?  Cleanups are often based upon Federal Environmental Protection Agency (EPA) guidance which is used to cleanup of contaminated sites based upon planned end use and a health risk analysis.
  5. Is this language just “SB 990 Redoux” – a way of creating a State law that allows the State to push The Boeing Company, NASA, and the DOE into a stricter cleanup based upon the Ventura County designation that allows agricultural use in this area of the Simi Hills?

This bill will probably be approved by this Friday, September 13, 2019, which is the last day for legislation.

Time is of the essence!

Please send your comments to your State Senators and Assembly members.

Please urge the Governor to veto this bill as amended until it can be given a new number, and it is circulated statewide for all jurisdictions and the public to consider.

You can contact the Governor via web form on this link.  You can also call or FAX:

Governor Gavin Newsom

Phone: (916) 445-2841

FAX: (916) 558-3160

 

(Chris Rowe has been a 41-year resident of West Hills. She is a former West Hills Neighborhood Council Board Member where she was the Public Health Committee Chair. Chris has a B.S. in Health Education from CSUN). Edited for CityWatch by Linda Abrams.