The Boeing Company v. Maziar Movassaghi

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).