Debunking Misconceptions about the Agreements in Principle
Support for the SSFL cleanup agreements was overwhelming—1700+ comments in favor, compared to a handful of comments that raised some questions. Even those few questions, however, were largely due to misconceptions about the agreements, or about matters that were addressed in more detail in the subsequent draft Agreement on Consent. These questions are briefly discussed here. [A more detailed explanation by DTSC is found in its Response to Comments document.]
THE AGREEMENTS DO ALLOW IN-SITU TREATMENT. In-situ treatment has to do with some techniques that potentially could treat soil in place to neutralize some contaminants, which is possible for some pollutants. The Agreements-in-Principle (AIPs) require that contaminated soil be removed. But if one treats soil so that it is no longer contaminated, it obviously is no longer contaminated and doesn’t have to be removed. (AIP. p. 3) The Agreement on Consent (AOC) has specific provisions for in-situ treatment and treatability studies. (AOC sections 22.214.171.124, 2.6) In-situ treatment is permitted.
THE AGREEMENTS DO NOT REQUIRE THE REMOVAL OF SOIL THAT HAS VOLATILE ORGANIC COMPOUNDS (VOCs) EMANATING FROM CONTAMINATED GROUNDWATER. A significant part of SSFL’s groundwater is contaminated with TCE, a volatile solvent. Some of that TCE moves up through the soil as a gas. Cleanup of the groundwater and vapor extraction of TCE from the soil without having to dig up the soil is covered by the existing 2007 Consent Order. The new agreement expressly says it does not include VOCs emanating from contaminated groundwater that migrates into the overlying soil. (AOC §1.5.1, 1.8.1)
THE AGREEMENTS DO CONTAIN PROVISIONS FOR PROTECTION OF FEDERALLY PROTECTED ENDANGERED SPECIES. The agreements require compliance with the Endangered Species Act and expressly state that if the U.S. Fish and Wildlife Service determines that any aspect of the cleanup would jeopardize a protected species and directs that mitigation measures be undertaken, they will be; or if there is a determination that there is jeopardy and no possible mitigation and that therefore a particular aspect of the cleanup cannot go forward, it will not. (AIP, p. 1)
THE AGREEMENTS DO INCLUDE PROVISIONS FOR PROTECTION OF STATE PROTECTED ENDANGERED SPECIES. The agreements require compliance with all applicable federal, state, and local laws, including therefore compliance with directives by the California Fish & Game Department regarding any state protected species. (AOC § 7.11, 7.24)
THERE ARE NO LIMITS TO THE EXCEPTIONS FOR ENDANGERED SPECIES ACT CONSIDERATIONS, NATIVE AMERICAN RELICS, OR DETECTION LIMITS. A few people thought that there was a 5% limit to the application of the above exceptions. There are no such limits. (See AIP p. 1.)
THE AGREEMENTS DO CONTAIN PROVISIONS FOR COMPLIANCE WITH THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA). The agreements provide provisions specifying compliance with CEQA and what the CEQA analysis must contain. (AOC §4.1-4.2.3)
THE AGREEMENTS DO NOT COVER CLEANUP OF THE SOUTHERN BUFFER ZONE. A couple of people thought that cleanup of the undeveloped area called the Southern Buffer Zone was covered by these agreements. It is not. (AIPs p.1) The Southern Buffer Zone, which is the most undisturbed part of the property, is part of the continuing negotiations with Boeing. There is a provision in the DOE and NASA agreements requiring confirmation that any fill, wherever it may come from, is clean. But that in no way provides authorization by the AIP for use of soil as fill from the Southern Buffer Zone.
THE AGREEMENTS DO NOT REQUIRE CLEANUP TO A STRICTER STANDARD THAN REQUIRED BY SB990; INDEED, THE AGREEMENTS REFLECT WHAT SB990 REQUIRES. A couple of people thought that cleanup to background or detection limits would require a lower concentration of residual contaminants and removal of more soil than required by SB990, the state law mandating cleanup of SSFL. They thought that background and detection limits were lower than the one-in-a-million (10-6) cancer risk point of departure in SB990 and the Superfund law (CERCLA). But, as DTSC demonstrates in its Response to Comments, background for SSFL is in fact not lower than 10-6, but rather is higher; in fact, it exceeds the upper permissible limit of one-in-ten-thousand risk (10-4) in SB990 and CERCLA. (Response to Comments, Vol. 1, p. 7-17) The agreements thus do not require a stricter cleanup than SB990. And because under SB990 and CERCLA one isn’t required to clean up below background or detection limits, a cleanup, as set forth in the agreements, to the higher of background or detection limits is precisely what SB990 would default to. Furthermore, because under SB990 and CERCLA, balancing criteria can only be applied to adjust cleanup levels within the 10-6 to 10-4 risk range, and because background is higher than that acceptable risk range, no further balancing/relaxation of cleanup standards is available. The agreements are fully consistent with SB990.
CLEANUP OF GROUNDWATER IS REQUIRED
The 2007 Consent Order, which is still in force, requires the cleanup of the chemical contamination in the groundwater. The new Agreement on Consent expressly says that those requirements remain in place and are unaffected by the new Agreement. There is one addition: the new Agreement requires that in addition to the chemical contamination addressed by the 2007 Order, the radioactive contamination in the groundwater also be cleaned up, using the same procedures set forth in the still-in-force 2007 Order. Thus, the new Agreement on Consent does nothing to weaken the requirement to clean up groundwater, but instead strengthens it by requiring cleanup of both radioactivity and chemicals.
BOEING’S ESTIMATE OF 1.6 MILLION CUBIC YARDS OF SOIL TO BE REMOVED IS UNSUPPORTED, SPECULATIVE, AND SIGNIFICANTLY INFLATED. Boeing for years has claimed that virtually no contamination was released at SSFL, and thus very little soil contained any pollutants. Now, faced with an agreement between DOE, NASA and DTSC to clean up the DOE and NASA areas, Boeing has reversed course and is claiming so much contamination was released that 1.6 million cubic yards of soil would need to be removed. [Boeing and its predecessors were contractors for DOE and NASA at SSFL and thus it was their sloppiness that resulted in the contamination.] Boeing can’t have it both ways. Either there is very little contaminated soil, and thus little soil will have to be removed, or they contaminated huge amounts of soil, in which case significant cleanup will be required. Boeing has refused to release the calculations on which it claims to have based its estimate—its refusal to permit scrutiny speaks volumes. But they have indicated that they assumed in-situ treatment was prohibited and soil with VOC soil vapor emanating from contaminated groundwater would have to be removed—and both assumptions, as seen above, are false and thus significantly exaggerate any soil removal estimate. These, plus several other unsupportable assumptions, greatly inflate their estimates. The reality is that no one knows at present how much soil is contaminated, and we won’t know until EPA completes its radiological studies and DTSC their chemical contamination sampling. If little was contaminated, little will need to be cleaned up; if much was contaminated, more will have to be cleaned up. But the bottom line is that under these agreements, at long last there will be measurements independent of Boeing to find out how much contamination there is, and once detected, it will be cleaned up and the neighboring communities will be able to breathe easier.