F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

T H E B O E I

N G C O M P A

N Y , Plaintiff-Appellee

,

v

.

M A Z I A R M O V A S S A G H I , in his official capacity as the Acting Director of the California Dept. Of Tox ic Substances Control; L E O N A R D R O B I N S O N , in his official capacity as the Acting Director of the California Dept. Of Tox ic Substances Control, Defendants

,

and

D E B B I E R A P H A E L , in her official capacity as the Acting Director of the California Dept. Of Tox ic Substances Control,

Defendant-Appellant

. N o. 11-55903

D.C. No. 2:10-cv-04839- J F W

- MAN

OPI NI ON

A ppeal from the United States District Court for the Central District of California J ohn F . W a lter, District J udg e, PresidingT H E B O E I N G C O M

P A N Y V

. R A P H A E L 2

Submitted May 31, 2013 * Pasadena, California

F iled September 19, 2014

B efore: Alfred T. Goodwin, Andrew J . Kleinfeld, and B arry G. Silverman, Circuit J udg e s.

Opinion by

J udg e Kleinfeld

SUMMARY * *

Environm ental Law

The panel affirmed the district court’s decisio n t hat a C a l i fornia law g overning cleanup o f a federal nuclear s i t e violated the doctrine of interg overnmental immunity

.

The B oeing Co. challen g e d the validity o f California’s Senate B ill 990, which prescribes cleanup standards for radioactive contamination at Santa Susana F ield L aboratory

. SB 9 90 requires that the site b e made suitable for subsistence farming , a more demanding standard than that imposed by a plan adopted by

the federal Department of Energ y

.

* T h e p a n e l u na n im o u sly co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.T H E B O E I N G C O M

P A N Y V

. R A P H A E L 3

The panel held th a t Bo eing had standing because a s landowner, it established injury in fact.

The panel held that SB 990 viola t e d t h e d o ctrine o f interg overnmental immunity because i t reg ulated DOE’s cleanup activities direct l y i n violation of the Supremacy Clause. I n addition, SB 990 discriminated ag ainst the federal
g overnment and B oeing as a federal contractor hired to perform the cleanup of the Santa Susana site.

The panel did not rea c h t h e question of whether the federal l a w s g overning nuclear materials and cleanup o f haz a rdous substances preempted the state law. I t also did not reach B oeing ’s cl a i m under 4 2 U.S.C. § 1983 for a declaratory

judg ment and an injunction.

COUNSEL

B rian W

. H embacher, Supervising Deputy Attorney General, L os Ang eles, California, for Defendant-Appellant.

Randolph D. Mo s s , W ilmer Cutler Pickering Hale and Dorr L L P, W ashing ton, D.C., for Plaintiff-Appellee.

Daniel P. Selmi, L os Ang eles, Californi a, for Amici Curiae Southern California F e deration of Scientists, L o s Ange les Chapter o f Phy sicians for Social Responsibility

, Rocketdy ne Cleanup Coalition, and Committee to B ridg e the Gap.

David C. Shilton, United State s Department of J ustice, W a shing ton, D.C., for Amicus Curiae United States.T H E B O E I N G C O M

P A N Y V

. R A P H A E L 4

OP INION

KL EI N F EL D , Senior Circuit J udg e:

W e a ffirm the d istrict c o u r t ’s decision that a California law g o verning cleanup of a federal nuclear site viol a t es the doctrine of interg overnmental immunity

. B ecause we decide that the state law impermissibly reg ulates a n d discriminates
ag ainst the federal g overnment and its contractor, we do not reach the question o f whether the federal laws g overning nuclear materials and cleanup of haz ardous substances preempted the state law. W e need n ot reach B oeing ’s Section 1983 claim for a declaratory judg ment and an injunction.

F ACTS

The f ederal g overnment made and tested rockets, nuclear reactors, a

nd various nuclear applications for war a n d peace at the Santa Susana F ield L aboratory beg inning shortly a fter W o rld W a

r I I

. W hen built in the 1940s, this lab was far from people, thirty miles from L o s Ang eles in Vent u ra C ounty

. L os Ang e les g rew, thoug h, and now over 150,000 people live within five miles of the si t e a nd half a million people live within ten miles.

W h en the state law challeng ed in this case w a s promulg a ted, 452 acres o f the 2,850 acre lab site were federally owned and manag ed b y t h e National A eronautics and Space Association (“NASA”). Most of the site, the remainder, was owned by B oeing

, a defense contractor, which acquired the l a n d f rom another defense contractor, Rockwell I nternational Corpora t i on, in 1996. Rockwell I nternational and its predecessor, N orth American Aviation, had o ccupied or owne d t he land since 1947. (F o rT H E B O E I N G C O M

P A N Y V

. R A P H A E L 5

convenience, we refer to B oeing a nd its predecessor s , Rockwell I nternational a n d North Ame r i c a n Aviation, a s “B oeing .”) Since the 1950s, the federal De p a r t m e nt o f Energ y (“DOE”) and its predecessor ag encies have leased 90 acres of the site from B oeing , where it built and operated 16 nuclear reactors of var i o u s s orts and over 200 facilities for nuclear research.

These two federal ag en c i e s, DOE and NASA, hired B oeing to assist in the nuclear r e s earch and rocket testing

. Most of B oeing ’s work was as a contractor on be h a l f o f t he f e deral g o vernment, thoug h it also did some commerci al work on its own account at the s ite. B oeing operated o ne commercial nu clear reactor under a license from the Atomic Energ y Commission. I t a l s o handled what the California
statute calls “radiolog ical contaminants” under licenses from the State of California to perform activities involving the use of x -ray machines, calibration devices, g as c hromatog raphs, smoke detectors, and various g aug es.

All this work created a terrible environmenta l m e ss. I t also created tremendous benefits

, for war and peace, but the
g overnment’s work unarg uably imposed tremendous harm to the environment. The soil, g round w ater, and bedrock were seriously contaminated. Disasters and f oolishness a dded to the environmental harm.

I n 1959, one of the re a c tors ex p erienced a partial meltdown that released radioactive g ases into the atmosphere for three w eeks. This parti a l meltdown accounts f or about 90% of the r adioactive c ontamination. Much of the rest came from other nuclear reactor a c cidents, an open burn pit for sodium-coated materials, and numerous fires and accidents at the “Hot L ab.” The “Hot L ab” was used for cutting up spentT H E B O E I N G C O M

P A N Y V

. R A P H A E L 6

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 a round the site. One disposal procedure consisted of shooting barrels of tox ic substances with shotg uns to make them ex plode and burn.

The federal g overnment, not B oeing

, a p p e ars from the record to be responsible for the radioactive pollution. Thoug h B oeing conducted some commercial nuclear work at the site,

no radioacti v e contamination has been traced to B oeing ’s
p r i v a t e activity

. I t is undisputed in this case that the site’ s radioactive contamination e i t h e r r e s u l t e d from federal activity or is indisting uishable from federal contamination.

That is not to sug gest that the pollution was merely
wanton. The United States Air F orce and NASA used the site
to test rocket eng ines for b alli s t i c missiles and space

ex p loration. I n the 1940s, the A ir F orce hired B oeing to h elp develop the Navaho g uided missile sy ste m

. The Air F orce and N ASA also used B oeing to test liqu i d

- p ro pellant rocket
eng ines, many of which were used in the space prog ram. B ut

over 500,000 g allons of the solvent used to clean rocket
eng ines and launch sites, trichloroethylene, contaminated the soil, along w i t h heavy metals and other tox ins. A trichloroethylene containment sy stem was implemented in 1961, after which B oeing did its private commercial testing

, but the damag e was a lready done

. C alifornia concedes that it cannot identify any c hemical contamination that resulted from non-federal activity and that, to the ex tent that there is
any conta m i nation from B oeing ’s private activity

, it cannot be disting uished from federal contamination.

All this nuclear a

nd rocket r esearch i s over now. DOE ended its nuclear research at Sa n ta Susana in the 1980s. I nT H E B O E I N G C O M

P A N Y V

. R A P H A E L 7

1996, DOE decided to close its research center and removed

m a ny of the facilities. The Air F o rce’s and NASA’s rock et research ended in 2 0 0 6. Operations a t the site now a re limited to try

ing to clean i t up. Different aspects of the cleanup are c arried out under different federal and state authorities. The fede r a l g overnment supervised the cleanup of radioactive contamination, and the California Department of Tox ic S u b s tances Control supervised the c leanup o f chemical contamination under g enerally applicable state law.

The subject of this litig ation i s a state’s authority

, a s opposed to the federal g overnment’s authority

, to reg ulate the

c l e a n u p of radioactive pollution. The issue is whether the
state may mandate more s t r i ng ent c leanup procedures, not g enerally applicable w ithin the state, to a particular site where the federal g overnment underto o k t o clean up nuclear contami n a t i o n it created. I n the circumstances o f this c ase, the answer is no.

So far, the federal Department of Energ y , as successor to the Atomic En e rg y Commission, has supervised a nd implemented the cleanup of radioactive material. Under the Atomic Energ y Act, DOE is responsible for establish i n g a comprehensive health, safety

, and environmental prog ram for
manag ing DOE’s nuclear facilities nationwide

. 1 DOE has implemented t h a t a

uthority b y issuing o rders that set health and safety limits f

or radioactive releases and cleanup and siteclosure procedures. 2

1 4 2 U.S.C. § § 2 1 2 1 (a)(3 ), 2 2 0 1

.

2 S ee DOE Ord ers 4 3 5 .1
, 4 5 8 .1
, 5 4 0 0 .1
, 5 4 0 0 .5
, a va ila b l e a t h ttp s://w w w .d irecti v e s

. d o e

. g o v

/ d i r e c t i v e s

. D O E O r d e r 4 3 5

. 1
, Ra d io a ctive W a ste Ma na g emen t , an d its acco m p an y in g m an

u als set f o rth req u i rem en tsT H E B O E I N G C O M

P A N Y V

. R A P H A E L 8

To c lean up the radio a c t i ve contamination, DOE hired B oeing

. B oeing condu c t e d a study of the contamination at Santa Susana. The soil, b e d r o ck, and g roundwater contamination has been ex tensively sampled and ana l y z ed. Different p arts of the site h ave d iffer e n t sorts of p o llutants,

s i n c e rocket testing was done in some areas, and nuclear research in others. I

n 2003, DOE adopted an environmental
assessment for c leaning up radioactive waste in the area where nuclear research was performed. This federal p lan
p r o posed to clean it up to standards suitable f or indust ri a l

, recreational, and even suburban residential use. As a cleanup contractor, B oeing is actively cleaning u p the Santa Susana site on behalf of DOE. B oeing pay s a portion of the cleanup
costs and will be a r t he portion of costs not paid by o r recovered from the f

ed eral g overnment. The federal
g overnment sets the standard for the entire cleanup o f radioactive materials (the only w aste at issue in this case) a nd directs B oeing ’s conduct.

No t e v ery one was satisfied with the DOE plan. The federal Environmental Protection Ag ency (“EPA”), the State of California, and various advocacy gr o u ps have challeng ed both the p lan and DOE’s decision to prepare an environmenta l a ssessment as opposed to an environmental i m p act statement. The question whether an environmental impact state m e n t should be prepared is not before us in this litig ation. A federal district court injunction in another case prohibits DOE from transferring ownership, possession, o r

f o r m an ag i n g rad io activ e w aste in clu d in g ch aracterizatio n , treatm en t, d isp osal, an d m o n ito rin g

. DOE O rd er 5 4 0 0 .5
, Ra d ia tio n Pro t ectio n o f th e Pu b lic an d th e En viro nmen t , a d d resses clean u p stan d ard s th at DOE

co n tracto rs are req u ired to im p lem en t d u rin g d eco n tam in atio n an d d eco m m issio n in g activ ities.T H E B O E I N G C O M

P A N Y V

. R A P H A E L 9

control over any

thing in the primary area o f radioactive contaminatio n until it prepares an environmental impact
statement. 3

Non-radioactive chemical pollutants are r eg ulated differently from radio a c t i ve pollutants. 4 The California Department of Tox ic Substances Cont r o l reg ulates the cleanup of chemical contamination, pursuant to an ag reement with EPA authoriz ing state control, under a different federal
statute from the one applicable to radioactive materials. 5 The various state a nd federal ag encies involved, and B oeing

, ag reed upon an order from California’s Department of Tox ic Substances Control to c lean up the c h emical contamination to

a level adequate for suburban residential use. That o rder does not address the cleanup of radioactive materials.

This case arises from the State of California’s decision to

ex tend its control to cleanup of radioactive polluta n t s

. I n October 2007, California passed Senate B ill 990, “Cleanup o f Santa Susana F ield L aboratory ,” p rescribing cleanup standards for b oth radioactive and chemical contamination. 6 The statutory standard requires that the site be made suitable for “suburban residential o r r ural residential (ag ricultural)

3 N a t u ra l Res. Def. C

o u n cil, In c. v. Dep ’t of En erg y , No

. C

- 0 4

- 0 4 4 4 8 SC, 2 0 0 7 W L 1 3 0 2 4 9 8, at * 2 2 (N.D. Cal. May 2 , 2 0 0 7 ).

4 Un ited S ta tes v. Ma n nin g , 5 2 7 F.3 d 8 2 8 , 8 3 3 (9 th Cir. 2 00 8 ).

5 Calif o rn ia o perates a f

ed erally ap p ro v ed h azard o u s w aste m an ag em en t p lan p u rsu an t to th e Reso u rce Co n s erv atio n an d Reco v ery A ct, 4 2 U.S.C. § 6 9 2 6

. T h is p l an co v ers o n ly c h e m i c a l co n tam in atio n , n o t rad io activ e

m aterials. 4 2 U.S.C. § § 6 9 0 3 (5 ), (2 7 ), 6 90 5 (a).

6 S.B . 9 9 0 , 2 0 0 7 Reg . Sess., ch . 7 2 9 (Cal. 2 0 07 ).T H E B O E I N G C O M

P A N Y V

. R A P H A E L 10

[ use]
, whichever produces the lower permi s s ible residual concentration” for each contam i n ant f ound at the site. 7 The
state s t a tute does not further define the “rural residential (a gricultural)” standard, but the federal EPA “ag ricultural” standard apparently inte n d ed by the state statute assumes

“ consumption of farm products for a subsistence farmer,”
g etting all h is or her veg etables, f ruit, meat, f

ish, and milk from the land, along w ith incidental consumption of soil a nd in halation of dust. 8 I n effect, Senate B ill 990 (“SB 900”) would require that h

y p o t h e t i cal subsistence farmers c ould live safely on their farms eating nothing but their chickens, eg g s, crops, and cheese and drinking t h e ir milk from their cows eating the g r ass, in this p atch o f n u c l ear and chemical tox ic waste in the L os Ang eles suburbs.

B o eing and the f

ederal a g encies contend that this standard is more demanding than the usual pra ct i c e under state a nd federal law o f setting a cleanup level commensurate with a

s ite’s reasonably foreseeable use. 9 I t may well be

7 Cal. Health & Saf

ety Co d e § 2 53 5 9.2 0 (c).

8 EP A
, Prelimin a ry Remed ia tio n Go als f o r Ra dio n u clid

es: Ag ricu ltu r

a l Bio ta
, S oil a n d W

a t er Gra p h ic a n d S

u p p ortin g Text
, a va ila b l e a t h ttp ://ep a- p rg s.o rn l.g o v /rad io n u clid es/ag so ilim ag e.h tm l.

9 S ee C al. Health & Saf

ety Co d e § 2 5 3 5 6 .1 .5 (d ) (“ T h e ex po su r e

a s s e ss m en t o f an y risk assessm en t

. . . sh all in clu d e th e d ev elo p m en t o f

reaso n ab le m ax im

u m estim ates o f ex p osu

re f o r b o t h cu rren t l a n d use

co n d itio n s an d reaso n ab l y f o reseeab le fu t u re lan d u se co n d i tio n s at th e site.”); EP A
, OSW ER Directiv e No

. 9 3 5 5 .7

- 1 9
, C o n sid erin g Rea so na b ly An ticip a ted F

u t u r e L a n d Use a n d Red

u cin g Ba rriers to Reu se a t EPA-lea d S u p erfu n d Remed ia l S ites (2 0 10 ); EP A
, O S WE R D i r e c t i v e N o

. 9 3 5 5 .7

- 0 4
, La n d Use in th e CERCLA Remed y Selectio n Pro cess (1 9 9 5 ); EP A
, P u b l’ n No . 9 2 8 5.7

- 0 1 B
, Risk Assessmen t Gu id a n ce fo r S

u p erfu nd ( RAGS ) Pa rt B , ch . 2 .3 (1 9 9 1 ).T H E B O E I N G C O M

P A N Y V

. R A P H A E L 11

unreasonable to foresee subsistence farming at the site. The record d oes n ot show why this standa r d w a s adopted, o r whether subsistence farming of this sort was contemplated for the L os Ang eles suburbs. The subsistence farming standard is more string ent than the suburban residential stand ard required by the ag r eed-upon order g overning the c leanup o f non-radioactive chemicals. DOE’s c leanup procedures specif i c a l l y rejected the state law’s standard as “not a reasonable scenario for the site.” Bo e i n g has made a public commitment to dedicate the site for public use as open space parkland, not sub s i s t ence farming

. B ut reasonable foreseeability of subsistence farming is not the controlling issue in this case. The r elevant t ension in this case is the state’s authority to impose its subsistence farming standard a s ag ainst the less string ent federal industrial, recreational, a nd residential standard.

Until SB 990’s cleanup standard is met, the s tate law makes it a c rime for “[ any ] person or entity [ to] sell, lease, sublease, or otherwise transfer” the land. 1 0 The “Statement o f Uncontroverted F act s ,” not disputed by the California Depart m ent of T ox ic Substances Control, say s that remediating the g r oun d water to the California standard “could take as long

as 50,000 y ears.”

B o eing filed t h i s lawsuit in federal district court challeng ing the va l i d i t y of the California statute, SB 990, controlling cleanup of the Santa Susana L aboratory g rounds. B oeing arg ued, a

nd the d istrict court ag reed, that the federal
g overnment had preempted the f ield of reg ulation of nuclear safety

, and a lternatively that cleanup of radioactive materials
at the Santa Susanna site is a federal activity

, so state

10 Cal. Health & Saf

ety Co d e § § 2 5 3 5 9 .2 0 (d ); 2 5 1 9 0

.T H E B O E I N G C O M

P A N Y V

. R A P H A E L 12

reg ulation of how the federal g o vernment cleans it up violates the Supremacy Clause and the d octrine o f interg overnmental immunity

. The California Department o f Tox ic Substances Control (“California”) appeals. We vacated o ral arg ument to g ive the
g overnment an oppor t u n ity to file an amicus b rief, which it did. The f

edera l go v e rnment ag rees with the district court that the state law, SB 9 90, i s unconstitutional under the Supremacy Clause and alternatively

, b ecause Cong ress has preempted the field.

ANALYSIS

The cas e w as decided on summary judg ment, so we review de novo. 1 1

I. Standing

California d oes not challeng e B oeing ’s s t a n d i n g , b u t s o me advocacy g roups as amici curiae d o. Th eir arg ument is that B oeing suffers no injury in fact from SB 9 9 0 b e c a use as a federal contractor, it wil l b e paid for its work and bears no other costs. We disag ree. The law prohibi t s Bo e i n g from transfer ring its own real property , injury enoug h

. 1 2 Even if the federal g o vernment does pay for all the cleanup w ork, the estimat e d 50,000 y ear delay in transferability (based on estimated time for cleanup o f g roundwater to be completed)

11 Un ited S ta t es v. Ma n n in g , 5 2 7 F.3 d 8 2 8, 8 3 6 (9 th Cir. 2 0 0 8).

12 An d ru s v. A l l a r d

, 4 4 4 U.S. 5 1
, 6 4 n .2 1 (1 9 7 9 ) (“ B ecau se th e reg u latio n th ey ch allen g e restricts th eir ab i lity to d isp o se o f th eir p ro p erty , ap p ellees h av e a p erso n al, co n crete, liv e in terest in th e co n tro v ersy .”).T H E B O E I N G C O M

P A N Y V

. R A P H A E L 13

is indeed an inju r y in fact to B oeing as landowner. Nor has the federal g overnment ag r e e d to cleanup the entire site at its

own ex pense to SB 990’s standards. California concedes that B oeing will pay the portion of the cleanup ex penses n ot borne by the federal g overnment. I njury in fact is clear.

II. Intergovernm ental Im m unity

Under the Supremacy Clause, “the acti v i t i es of the F ederal Government are free from reg ulation b y any state.” 1 3 Accordi n g ly

, state laws are invalid if they “ reg ulate[ ] the United States directly or d iscriminate[ ] ag ainst the F ederal Government or those with whom it deals.” 1 4 SB 990 is invalid on both g rounds.

A. Direct Regulation of the U.S. G overnm e nt

SB 990 regu l a tes the Department of Energ y ’ s cleanup activities directly

. SB 990 authoriz es California’s Department of Tox ic Substances Control to “use any leg al remedies available” under the State’s h az ardous waste laws “to compel a responsible p arty o r p ar t i e s to take or pay for appropriate removal or remedia l action necessary to protect the public health and safety and the environment at the Santa Susana F ield L aboratory site.” 1 5 DOE is a “ r e s p onsible party ” with respect to radioactive contamination. A ll of the contamination at Santa Susana is the result of federal activity

13 Ma yo v. Un ited

S ta tes , 3 1 9 U.S. 4 41 , 4 4 5 (1 9 4 3 ).

14 No rth D a ko ta v. Un ited S t a t e s , 4 9 5 U.S. 4 2 3
, 4 3 5 (1 9 9 0 ); Un ited S ta tes v. City o

f Arca ta , 6 2 9 F.3 d 9 8 6 , 9 9 1 (9 th Cir. 2 0 1 0 ).

15 Cal. Health & Saf

ety Co d e § 2 5 3 5 9 .2 0 (a).T H E B O E I N G C O M

P A N Y V

. R A P H A E L 14

or is indisting uishable from contamination caused by federal activity

. I n addition, SB 990’s leg islative finding s state that the Act is necessary in larg e part because of federal activity
at the site a

nd because “DOE d eclined to follow the 1995 J oint Policy [ b etween E PA an d DOE] and chose to instead rely on less protective cleanup standards.” 1 6

The federal Department of Energ y has accep t ed responsibility for the cleanup of rad ioactive contamination, and it is actively conducting the cleanup throug h its cleanup

co n tractor, B oeing

. SB 990 affects nearly all of DOE’s decisions w ith respect to the cleanup, including the environmental sampling that is required, the clea nup procedures to be used, and the money and tim e t h a t will be spent. The state law requires an application of more string ent cleanup standards than fede ral laws a nd DOE’s cleanup procedures do. W hether state law is better or worse does not affect state authority , just whether the state reg ulates federal activity

.

T h e federal g o vernment’s decision to hire B oeing t o perform its c leanup work d oes n o t affect the leg al analy sis. I n Goodyear A tomic Corp. v. M iller

, the Supreme Court h eld that “ a federally owned facility performing a federal function is shielded from direct state reg u lation, ev e n thoug h the federal function is carried out by a private contractor, unless Cong r ess clearly authoriz es such reg ulation.” 1 7 I n Gartrell Construction Inc. v

. Aubry

, w e held that California’s licensing r e q u i rements for construction contractors were preempted to the ex tent that t h e y applied to federal

16 SB 9 9 0 § 2 (h ).

17 4 86 U.S. 1 7 4 , 1 8 1 (1 9 88 ).T H E B O E I N G C O M

P A N Y V

. R A P H A E L 15

contractors. 1 8 California arg ues tha t B oeing must “stand in the g overnment’s shoes” in order to assert i m munity from
state reg ulation. The c a ses that California cites to a re inapposite as they d iscuss g enerally applicable state tax laws,

w h ich resulted in merely an increased economic b urden o n federal contractors as well as others. These tax laws did not
reg ulate what the f

e d e r a l c ontractors had to do o r h ow they did it pursuant to their contracts.

SB 990 directly interferes w ith the functions of the federal
g overnment. I t mandates the wa y s in which B oeing renders services that the federal g overnment hired B oeing to p erform. The state law replaces the feder a l c leanup standards that B oeing has to meet to discharg e its contractual oblig ations to DOE with the standards c hosen by t h e state. I t overrides federal decisions as to necessary decontamination measures. Unlike the tax cases, SB 990 reg ulates not only t h e f ederal contractor but the effective terms of federal contract itself.

T h u s , S B 9 9 0 violates interg overnmental immunit y u n l e s s Cong r ess has clearly a nd unambig uously a u thoriz ed Ca lifornia to ex ercise authority over the Department o f Energ y with respect to radioactive m a t e r ials. “I t is w ell settled that the activities of federal installations are shielded by the Supremacy Clause from direct state reg ulation unless Cong r ess provides ‘clear and unambig u ous’ authoriz a tion for such reg ulation.” 1 9

18 9 40 F.2 d 4 37 , 4 4 1 (9 th Cir. 1 9 9 1 ).

19 Go o d yea r Ato mic Co r

p

. , 4 8 6 U.S. at 1 8 0 (q u o tin g EPA v. S ta te W ater Res. Co n tro l Bd

. , 4 26 U.S. 2 0 0 , 2 1 1 (1 9 7 6 )).T H E B O E I N G C O M

P A N Y V

. R A P H A E L 16

There is n o clear con gr e ssional a uthoriz a tion in the Atomic Energ y Act tha t w o u l d allow California to reg ulate DOE’s cleanup of radioactive materials at Santa Susana. The
ag reement entered between California and the Atomic E n erg y Commission in 1962 does not affect the immunity analy sis. The 1962 ag reeme n t was made pursuant to the 1959 amendment to the Ato m ic Energ y Act that allowed the Atomic E n e rg y Commission to transfer licensing authority

over nucl e a r materials to states, pursuant to individual
ag reements with individual states. 2 0 Cong ress soug ht, a mong other thing s, “to recog n iz e t h e need, and establish prog rams for, cooperation between the States and the Commission with respect to control of r adiation haz a rds associated with the use of [ nuclear material] .” 2 1 The Act provides that states “ shall have authority to reg ulate t he materials covered b y [an]
agr e e ment f

or the protection o f the p ublic health and safety from radiation haz ards.” 2 2 U n der the 1962 ag r eement, California’s Department of Public Health has l i c ensed B oeing ’s commercial nuclear work at Santa Susana.

The 1962 ag reement does not g rant California any authority to reg u late the federal g overnm e nt. The Atomic Energ y Commission’s reg ulations imple m enting the 1959 amendment ex p l i c itly state that ex emptions from federal licensing authority under the ag r e e m ent between states a nd the Commission “do not a p p l y to ag encies of the F ederal

20 4 2 U.S.C. § 2 0 2 1

.

21 4 2 U.S.C. § 2 0 2 1 (a)(2 ).

22 4 2 U.S.C. § 2 0 2 1 (b ).T H E B O E I N G C O M

P A N Y V

. R A P H A E L 17

g overnment.” 2 3 So even within “Ag reement States,” such a s California, the federal ag encies remain subject to the federal
g overnment’s ex clusive reg ulatory authority

. The 1962
ag reement references t h e se reg ulations, and n o lang uag e under the ag reement indicates that t h e AEC was ceding authority to reg ulate federal activities to state ag encies. Subsequent administrative developments make this clear. 2 4

Our c o n c l u s ion is consistent with the history of the At o m i c Energ y Act and Cong ress’s response to other attempts by states to reg ulate federal activities. Section 2018 of the Atomic Energ y Act provid e s that nothing in the A ct affects state r eg ulatory authority over the “g eneration, sale, o r transmission of electric power produced thro u g h the u se o f nuclear facilities li c ensed by the Commission.” 2 5 I n 1965, Cong r ess added the f

ollowing t o Section 2018: “ Provided

, That this section shall not be de em e d to confer upon any

23 2 7 Fed . Reg . 1 3 5 0 , 1 35 2 (1 9 6 2 ) (co dif ied at 1 0 C.F.R. § 1 50 .1 0 ).

24 T h e A to m i c En erg y Co m m issio n w as ab o lish ed in 1 9 7 4
, an d its d u ties d iv id ed b etw een th e Nu clear Reg u lato ry Co m m issio n (“ N R C”) an d th e En erg y Research Dev elo p m en t A d m in istratio n , su b seq u en tly tu rn ed in to th e cab in et- lev el Dep artm en t o f En erg y

. T h e Nu clear Reg u lato ry Co m m i ssio n , n o w w ith th e au t h o rity to en ter in t o ag reem en ts w ith states,

m ak es it clear th at th e ag reem en t w ith states “ do es n o t tran s f er reg u lato ry

au th ority to t

h e States o v er

. . . [a]ctiv i ties o f Fed eral A g en cies lo cated in A g reem en t States.” NRC Pro ced u re SA

- 5 0 0
, J u r i sd ictio n Determin a t io n s 2 ( S e p t

. 2 5, 2 0 0 7 ). NRC also req u ires th e A g reem en t States to p ro v id e

ex em p tio n s f o r NRC’ s an d DOE’ s p rim e co n tracto rs perf o rm in g w o rk on g o v ern m en t- o w

n ed o r co n tro lled sites f ro m licen sin g r e q u irem en ts. Statem e n t o f P o l icy

, 4 6 Fed

. Reg

. 7 54 3 (J an

. 2 3
, 1 9 8 1 ). Cf. 1 0 C .F.R. § § 3 0 .1 2 , 4 0 .1 1 , 7 0 .1 1 (ex em ptin g NRC’ s an d DOE’ s p rim e co n tracto rs f ro m licen sin g req u irem en t s u n d er th e A t o m ic En erg y A ct).

25 4 2 U.S.C. § 2 0 1 8

.T H E B O E I N G C O M

P A N Y V

. R A P H A E L 18

Fe d e r a l, State, o r local a g ency a ny authority to r eg u late

, control, or restrict a

n y activitie s o f the Commission.” 2 6 Cong r ess added th i s proviso to overrule a Ninth Circuit opinion, Maun v. United S tates , 347 F .2d 970 (9th Cir. 1965), which interpreted the section to allow a municipality to prohibit transmission lines that the Atomi c E n erg y Com mission soug h t to build in order to carry out its o wn activities. 2 7

The Resource Conservation a n d Recovery A ct (“RCRA”) 2 8 does not authoriz e California to reg ulate DOE’s cleanup of radioactive contamination. RCRA a llows states to operate a ha z a rdous waste manag ement plan applicable to federal facilities so long as the state reg ula t e s “ i n the same

m a n n er, and to the same e x tent, a s a n y person is subje c t t o such requirements.” 2 9 B ut RCRA e x cludes from its coverag e radioactive materials reg ulated under the A tomic E n erg y Act. 3 0 S o R C R A does not a pply to the radioactive contamination in this case.

Nor does the Comp r ehensive Environmental Response, Compensation, a n d L iability Act (“CERCL A”) 3 1 save SB

26 P u b. L . No . 8 9

- 13 5 , 7 9 Stat. 5 5 1

.

27 Pa c. Ga s & Elec. Co

. v. S ta te En erg y Res. Co n s e r v a t i o n & Dev. Co mm’n , 4 6 1 U.S. 1 9 0 , 2 1 0

– 1 1 (1 9 8 3).

28 4 2 U.S.C. § 6 9 0 1
, et seq

.

29 4 2 U.S.C. § § 6 9 2 6, 6 9 6 1 (a).

30 4 2 U.S.C. § § 6 9 0 3(5 ), (2 7 ), 6 90 5 (a).

31 4 2 U.S.C. § 9 6 0 1
, et seq

.T H E B O E I N G C O M

P A N Y V

. R A P H A E L 19

990. Under CERCL A, states may obtain authority to clean up certain h az ardous waste sites by obtaining EPA approval a nd entering into a “ cooperative ag reement.” 3 2 Unlike RCRA,

some provisions of CER C L A cover nuclear materials. The definition of “release” includes releases of nuclear materials

ex c e pt in certain situations. 3 3 EPA includes “radionuclides” in the list o f “haz ardous substances.” 3 4 And CERCL A contains a federal immunity w a i v er clause with r espect to state laws concerning removal and remedial o f h a z a rdous

s ubstances. However, the waiver does not apply “to t h e

ex tent a State law would apply any standard o r r equirement
to [ federal] facil i t ies which is more string ent than the standards and requirements applicable to facilities which a re not owned or operated by [ the federal g overnment] .” 3 5 S B 990 applies more string ent requirements to Santa Susana than
to non-federal facilities because it requi r e s cleanup to a standard suitable for subsistence farming , rather than for the site’s reasonably foreseeable future use. Under the s t a te’s
g enerally applicable process, the future use would be determined by considering a number of s ite-specific f actors such as current use, county g eneral plans, and topog raphy

. I t is u ndisputed that the subsistence f a rm i n g has not been so determined as a land use assumption for the Santa S u s a n a site.

32 4 2 U.S.C. § 9 6 0 4 (d )(1 )(A ).

33 4 2 U.S.C. § 9 6 0 1 (2 2 )(C).

34 4 0 C.F.R. P a r t 3 0 2
, T ab le 3 0 2 .4

. Un d er CERCL A
, EP A h as th e

au th ority to d esig n ate ad d itio n a l ha zard o u s su b stan ces b y reg u latio n s. 4 2 U.S.C. § 9 6 0 2

.

35 4 2 U.S.C. § 9 6 2 0 (a)(4 ).T H E B O E I N G C O M

P A N Y V

. R A P H A E L 20

Therefore, we c onclude that SB 990 reg ulates the federal
g overnment directly

in violation of the Supremacy Clause.

B. Discrim ination Against the U.S. G o vernm ent and Its Contractors

S B 990 also violates interg overnmenta l i m m u n i t y b e c a u s e it discriminates ag ainst the f ederal g overnment and B oeing a s

a federal contractor. “A state or local law disc riminates
ag ainst the federal g overnment if it treats someone else better than it treats the g o v ernment.” 3 6 California does not dispute that “ SB 990 sing les out B oeing

, DOE, NASA and the [ Santa Susan a Fi e ld L aboratory ] site for a substantially more string ent cleanup scheme than that which app l i e s elsewhere in the State.” The fact th a t S an t a Susana is especially contaminated does n ot rende r t he law non-discriminatory b e c a u s e C a l i f o r n i a ’ s g enerally -applicable environmental l a w s do not impose the SB 990 radioactive cleanup standards at the Santa Susana site.

T h e federal g o vernment’s decision to hire B oeing t o perform the cleanup r a ther than using federal employ ees does
not affect our immunity a n aly sis on t h is g round. W h en the
state law is discrimin a t o r y , a private entity with which the federal g overnment deals can assert immunity

. 3 7 I n Davis v

. Michigan Department of Treasury
, a retired federal employ ee challeng ed Michig an’s tax ation of his federal retirement

36 Un ited S ta tes v. C

ity o f Arca ta , 6 2 9 F. 3 d 9 8 6
, 99 1 (9 th Cir. 20 1 0) (in t ern al q u o tatio n

m ark s o m i tted ).

37 No rth Da ko ta v. Un ited S ta tes , 4 9 5 U.S. 4 2 3 , 4 3 5 (1 9 9 0 ).T H E B O E I N G C O M

P A N Y V

. R A P H A E L 21

benefits. 3 8 Michig an a

rg ued that o nly the federal g overnment,

n o t p r ivate entities o r individuals, are immune from sta t e laws. 3 9 T he Supreme Court disag reed because the state law
at issue discriminated ag ainst f ederal employ e es b y

ex e mpting from state tax ation r e tiremen t benefits paid to state employ e es, but not those p aid to f ederal employ ees. 4 0 The Supreme Court held that

I t is true that interg overnmental tax immunity i s b ased on the need to protect e a c h sovereig n’s g overnmental operations f rom undue interference by the other. B ut it does
not follow that private entiti e s o r individuals who are subjected to d i scriminatory tax ation

on account of their de aling s with a sovereig n cannot themselves r eceive the protection o f the constitutional d octrine. I ndeed

, all precedent is to the contrary

. 4 1

L i k e wise, B oeing cannot be subjected to discriminatory
reg ulations because it c ontracted with the federal g overnment for the nuclear research a nd now t h e cleanup of radioactive contamination.

SB 990 specifical l y t a r g ets Santa Susana because o f the radio a ct i ve p ollution created by federal activity on the site

38 4 89 U.S. 8 0 3 , 8 1 4 (1 9 89 ).

39 Id

.

40 Id

. at 8 1 4

– 15

.

41 Id

. at 8 1 4 (citatio n s o m itted ).T H E B O E I N G C O M

P A N Y V

. R A P H A E L 22

and because “DOE dec lined to follow the 1995 J oint Policy [ between EPA a n d D O E] and chose to instead rely on less protective cleanu

p s t a ndards.” 4 2 SB 990 applies more string ent cleanup standards t h a n g enerally applicable state

env i r o nmental laws. B y doing so, SB 990 discriminates
ag ainst th e f

ederal g overnment and ag ainst B o eing as a federal c ontractor. Therefore, it is invalid under the doctrine of interg overnmental immunity

.

The 2 0 10 Administrative Orders on Consent from the California D epartment of Tox ic Substances Contr o l that DOE and NASA a g reed to d o n ot affect the analy sis of SB 990. B oth O rders set a radioactive cleanup standard for the soil in certain areas of Santa Susana. T h ey do not set cleanup standards f

or b edrock or g roundwater, and SB 990 does. Any waiver clauses included in the Orders have no effect bey ond the term of the Orders.

III. Severability

W e ag ree w ith the district c ourt that the terms of SB 990

are unseverable. California concedes that apply ing SB 990 only to chemical cleanup is impossi b le without g utting the Act because the Act sets cleanup standards in p a r t b y requiring that “the cumulative risk from rad i o log ical a nd chemical contaminants at the site shall be summed.” 4 3 W e decline to construe SB 990 as limited to non-radioactive cleanup because it w ould “require us to ex amine and rewrite
most o f the statute in a vacuum as to h ow the v arious

42 SB 9 9 0 § 2 (h ).

43 Cal. Health & Saf

ety Co d e § 2 5 3 5 9 .2 0 (c).T H E B O E I N G C O M

P A N Y V

. R A P H A E L 23

provisions were intended to intersect and in a way that would be at odds with the purpose of the statute.” 4 4

The judg ment of the district court is AF F IRMED

.

44 Un ited S ta t es v. Ma n n in g , 5 2 7 F.3 d 8 2 8, 8 4 0 (9 th Cir. 2 0 0 8).