1

Filed 5/24/23 Physicians for Social Responsibility Los Angeles v. Dept. of Toxic Substances Control CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

PHYSICIANS FOR SOCIAL RESPONSIBILITY -

LOS ANGELES et al.,

Plaintiffs and Appellants,

v.

DEPARTMENT OF TOXIC SUBSTANCES 

CONTROL et al.,

Defendants and Respondents;

THE BOEING COMPANY,

Real Party in Interest and Respondent.

C088821

(Super. Ct. No. 34-2013-

80001589-CU-WM-GDS)

ORDER MODIFYING 

OPINION AND DENYING 

REHEARING

[NO CHANGE IN 

JUDGMENT]

THE COURT:

It is ordered that the nonpublished opinion filed herein on May 2, 2023, be modified as 

follows:

1. On page 6, in the third sentence of the third paragraph, the words “calls for an 

environmental impact report (EIR) from DOE, requires” are deleted and replaced 

with “cooperation in providing all available information necessary to facilitate 

DTSC’s preparation of an environmental impact report (EIR),” so the sentence 

reads:
2

DOE’s obligations under the 2010 AOC include cleanup of both chemical 

and radiological contamination pursuant to both the HWCL and HSAA, 

cooperation in providing all available information necessary to facilitate 

DTSC’s preparation of an environmental impact report (EIR), the 

remediation of soils (including structures and debris) to local background 

levels and disposal of all materials with radiation above background levels to 

be disposed of in a licensed radioactive waste facility.

2. On page 45, in the partial paragraph, the second to last sentence “In fact, it appears 

Boeing sought to use criteria more restrictive than the federal standards when it 

chose to remediate exposure levels comparable to background levels” is deleted. 

3. On page 49, the paragraph beginning at the top of the page with “As a final note” 

and ending with “the decommissioning process regarding other licensees” is 

deleted. 

There is no change in the judgment. 

Appellants’ petition for rehearing is denied.

BY THE COURT:

 /s/

DUARTE, Acting P. J.

 /s/

EARL, J.

 /s/

MESIWALA, J.
1

Filed 5/2/23 Physicians for Social Responsibility Los Angeles v. Dept. of Toxic Substances Control CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

PHYSICIANS FOR SOCIAL RESPONSIBILITY -

LOS ANGELES et al.,

Plaintiffs and Appellants,

v.

DEPARTMENT OF TOXIC SUBSTANCES 

CONTROL et al.,

Defendants and Respondents;

THE BOEING COMPANY,

Real Party in Interest and Respondent.

C088821

(Super. Ct. No. 34-2013-

80001589-CU-WM-GDS)

After decades of use as a chemical and nuclear research and testing site for federal 

defense and space programs, additional decades have been spent working to clean up an 

area known as the Santa Susana Field Laboratory. The Boeing Company owns much of 

the land comprising the field laboratory and intends to demolish its own buildings located 

in a section of land previously used for nuclear research. Concerned that the buildings to 

be demolished are contaminated with carcinogenic radionuclides, and improper disposal 
2

of contaminated debris would have significant and troubling environmental and public 

health risks, plaintiffs sued respondents, accusing them of, inter alia, abdicating their 

duties to protect the public from these hazards by failing to analyze the environmental 

consequences of the demolition as required in the California Environmental Quality Act 

(CEQA) (Pub. Resources Code, § 21000 et seq.), deviating from the regulatory standard 

for eliminating radiation, and hiding their treatment of this dangerous waste from the 

public. The superior court denied plaintiffs’ petition for writ of mandate, primarily on the 

basis that The Boeing Company’s demolition activities did not constitute a project for 

CEQA purposes. Plaintiffs appeal that decision, arguing that the public agencies’ actions 

in approving, controlling, and directing The Boeing Company’s predemolition activities 

resulted in the issuance of an “entitlement for use” and/or direct action toward the 

demolition project and therefore qualified as a project under CEQA. Plaintiffs also argue 

that respondents improperly attempted to avoid CEQA by segmenting the project. 

Finally, they accuse respondents of violating a prior writ of mandate regarding setting the 

standards for radiological remediation and promulgating underground regulations. We 

affirm. 

FACTUAL BACKGROUND

I

Activity at Santa Susana Field Laboratory

Since the start of the nuclear age, the federal government made and tested liquidrocket engines, nuclear reactors, and various nuclear applications at the Santa Susana 

Field Laboratory (SSFL). When built in southeastern Ventura County in the 1940s, this 

lab was in a remote area. It is fair to say that this area is no longer considered remote. 

(Boeing Co. v. Movassaghi (9th Cir. 2014) 768 F.3d 832, 834 (Movassaghi).)1 It would 

1 The unique use of the land over a long period of time prompted litigation over the 

years, especially relating to remediation efforts. As one example, Movassaghi, supra,
3

also be an understatement to say that this site, while no longer involved in active 

research, has been subjected to contamination by nuclear and chemical toxins, sometimes 

with abandon.2

The National Aeronautics and Space Administration (NASA) owned roughly 

16 percent of the 2,850-acre lab site and The Boeing Company (Boeing), or its 

predecessor Rockwell International Corporation, owned the remainder. (Movassaghi, 

supra, 768 F.3d at pp. 834-835.) Since the 1950s, the federal Department of Energy 

(DOE) and its predecessor agencies have leased 90 acres of the site, known as Area IV, 

from Boeing, where it built and operated several nuclear reactors and other facilities for 

nuclear research. (Id. at p. 835.)

NASA and DOE hired Boeing to assist in nuclear research and rocket testing

within Area IV. Most of Boeing’s work was as a contractor on behalf of the federal 

government, though Boeing also operated one commercial nuclear reactor under a license 

from the Atomic Energy Commission. Boeing also handled radiological contaminants 

under licenses from the State of California to perform certain activities related to 

research. As a result of the work performed on behalf of the federal government, the soil, 

groundwater, and bedrock were seriously contaminated.3 (Movassaghi, supra, 768 F.3d 

at p. 835.)

768 F.3d 832 involved the constitutionality of a state law governing cleanup standards at 

this site. This case is referenced by the parties as providing relevant history of the site. 

We also rely on Movassaghi to provide useful historical background as to the site and the 

relationship between the parties.

2

(See, e.g., Movassaghi, supra, 768 F.3d at p. 835 [noting disposal methods included 

dumping radioactive material at various locations around the site and “shooting barrels of 

toxic substances with shotguns to make them explode and burn”].)

3 As stated in Movassaghi, supra, 768 F.3d at page 838, the parties appear to have 

agreed that remediating the groundwater “ ‘could take as long as 50,000 years.’ ” In 

addition, the federal court found that the “federal government, not Boeing, appears from 

the record to be responsible for the radioactive pollution. Though Boeing conducted 
4

DOE ended its nuclear research at SSFL in the 1980s and closed its research 

center in 1996. NASA’s rocket research ended in 2006. As part of the process of halting 

research, six previously licensed buildings in Area IV were ultimately decommissioned 

by the State Department of Public Health (DPH) and its predecessors. (Movassaghi, 

supra, 768 F.3d at p. 836.) It was Boeing’s notification of intent to demolish several of 

its buildings within Area IV that spawned this lawsuit.

II

Remediation Oversight at SSFL

SSFL is currently undergoing cleanup efforts. Different aspects of the cleanup are 

being carried out under different federal and state authorities. The federal government, 

through the DOE, is responsible for supervising and implementing the cleanup of 

radioactive contamination. California’s Department of Toxic Substances Control 

(DTSC) is the lead agency responsible for regulating the cleanup of chemical 

contamination.4 (See Movassaghi, supra, 768 F.3d at p. 836.)

A. DOE

Nonradioactive chemical pollutants are regulated differently from radioactive

pollutants. DOE is responsible for remediating radioactive contamination. Remediation 

of radioactive materials is proceeding, in part, pursuant to an environmental assessment 

and plan adopted by DOE. (See Movassaghi, supra, 768 F.3d at pp. 836-837.)

some commercial nuclear work at the site, no radioactive contamination has been traced 

to Boeing's private activity.” (Id. at p. 835.)

4

In 2007, the California Legislature attempted to change the standards governing the 

cleanup of radioactive contamination at SSFL when it passed Senate Bill No. 990 (2007-

2008 Reg. Sess.) (Stats. 2007, ch. 729). Senate Bill No. 990 attempted to establish more 

stringent standards than federal law and DOE’s procedures set. (Health & Saf. Code, 

§ 25359.20.) Boeing brought a legal challenge to Senate Bill No. 990 that resulted in the 

Ninth Circuit holding Senate Bill No. 990 unconstitutional as violating the Supremacy 

Clause. (See Movassaghi, supra, 768 F.3d at pp. 840-842.)
5

B. DTSC 

DTSC regulates hazardous waste under both federal and state law. The federal 

law, the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.) (RCRA), 

“governs the handling of solid wastes, both hazardous and nonhazardous.” (Ashoff v. 

City of Ukiah (9th Cir. 1997) 130 F.3d 409, 410.) The RCRA “provides a mechanism by 

which the states can administer their own hazardous waste programs ‘in lieu of the 

Federal program.’ [Citation.]” (State of Washington v. EPA (9th Cir. 1985) 752 F.2d 

1465, 1466.) California’s hazardous waste program, which the United States 

Environmental Protection Agency (US EPA) authorized in lieu of the federal program, is 

contained in the Hazardous Waste Control Law (Health & Saf. Code, § 25100 et seq.)

(HWCL), and accompanying regulations (Cal. Code Regs., tit. 22, § 66260.10 et seq.). 

(See also 42 U.S.C. § 6926(b); Health & Saf. Code, § 25159.)5

Through the HWCL and California’s Carpenter-Presley-Tanner Hazardous 

Substance Account Act (Health & Saf. Code, § 25300 et seq.) (HSAA), DTSC regulates 

soil and groundwater cleanup. The HWCL governs handling, transport, storage and 

disposal of “hazardous waste” but does not apply to certain radioactive materials 

regulated under federal law. (See Health & Saf. Code, §§ 25140 et seq., 25150 et seq., 

25160 et seq., 25167.1 et seq.; Cal. Code Regs., tit. 22, § 66261.4, subd. (a)(2).) The 

HSAA governs cleanup of “hazardous substance” release sites, which includes certain 

radionuclides. (Health & Saf. Code, §§ 25356, subd. (a)(1), 25356.1.3, subd. (a), 25316; 

40 C.F.R. § 302.4.) DTSC represents it has not issued an order to, or entered into any 

agreement with, Boeing under the HSAA.

5 Both the RCRA and HWCL govern chemical contamination and exclude radioactive 

materials regulated under the federal Atomic Energy Act. (42 U.S.C. §§6903(5), (27), 

6905(a); Cal. Code Regs., tit. 22, § 66261.4, subd. (a)(2).)
6

In addition to its overall regulatory authority pursuant to statute, DTSC oversees 

the chemical remediation of SSFL pursuant to two consent orders: the 2007 consent 

order for corrective action (2007 Order), and the 2010 administrative order on consent for 

remedial action (2010 AOC).6 

The 2007 Order was entered into between DTSC, Boeing, DOE and NASA, 

pursuant to the HWCL. The 2007 Order applies to all of SSFL and identifies structures 

in Area IV (none at issue in the instant matter) that require further chemical investigation 

and remediation, but it has no provisions governing the cleanup of radiological

contamination and excludes radioactive wastes, noting those are evaluated by DOE under 

a different program. The 2007 Order contemplates the process of remediation of 

chemical contamination in the soil and groundwater and acknowledges that work 

performed under the order is subject to CEQA. (See Boeing Co. v. Robinson (C.D.Cal. 

Apr. 26, 2011, No. CV 10-4839-JFW (MANx)) 2011 WL 1748312, at *5.) Significant to 

our review, the 2007 Order does not obligate Boeing to demolish any of its buildings in 

Area IV. 

The 2010 AOC, entered into by DTSC and DOE (not Boeing), applies to Area IV

and an area not relevant to this case known as the Northern Buffer Zone. The order itself 

describes its purpose as “to further define and make more specific DOE’s obligations 

with respect to only the cleanup of soils at the Site.” DOE’s obligations under the 2010 

AOC include cleanup of both chemical and radiological contamination pursuant to both 

the HWCL and HSAA, calls for an environmental impact report (EIR) from DOE, 

requires the remediation of soils (including structures and debris) to local background 

6

In 2010, at DTSC’s request, Boeing prepared standard operating procedures (SOP) that 

would govern its demolition activities at SSFL. The SOP was amended twice: 

Amendment 1 addresses demolition of nonradiological buildings in Area IV and 

Amendment 2 specifically addresses former radiological buildings in Area IV.
7

levels and disposal of all materials with radiation above background levels to be disposed 

of in a licensed radioactive waste facility. The 2010 AOC requires DOE to obtain 

DTSC’s review and approval of the demolition and disposal plans for buildings owned by 

DOE. The 2010 AOC also charged DOE with trying to obtain Boeing’s cooperation with 

the removal of buildings owned by Boeing and clarified the obligations of DOE 

regarding the cleanup of soils if and when Boeing chose to demolish the buildings in 

Area IV. Specifically, the 2010 AOC dictates: “To the extent DOE is unable to remove, 

or arrange with Boeing to remove, the buildings at the Site that remain under the 

ownership and control of Boeing, DOE’s obligations under this Order related to soils 

beneath those buildings shall be stayed, and DOE shall retain the responsibilities for the 

soils beneath those buildings that are described in this Order until such time as the 

buildings have been removed and the soils beneath them can be accessed, assessed and 

remediated as necessary.”7

DTSC’s selection of the final remedies to remediate the contaminated soil and 

groundwater at the SSFL site is subject to environmental review pursuant to CEQA. 

DTSC represents it is currently conducting a CEQA review of the proposed soil and 

groundwater cleanup required under the 2007 Order and the 2010 AOC.

7 The 2010 AOC references Natural Resources Defense Council, Inc. v. Department of 

Energy (N.D.Cal., May 2, 2007, No. C-04-04448 SC) 2007 WL 1302498, at *22, opn. 

amended (N.D.Cal., Aug. 15, 2007, No. C-04-04448 SC) 2007 WL 2349288, in which a 

federal district court concluded DOE has continuously violated the National 

Environmental Policy Act and permanently enjoined DOE “ ‘from transferring ownership 

or possession, or otherwise relinquishing control over, any portion of Area IV until the 

Department of Energy has completed an [Environmental Impact Statement] [regarding 

remediation plans at SSFL] and issued a Record of Decision pursuant to NEPA. . . . The 

Court will retain jurisdiction over this matter until it is satisfied that the DOE has met its 

legal obligations as they relate to the remediation of Area IV.’ ” The parties do not 

discuss the impact of this prior suit on the activities at issue in this case.
8

C. DPH

Respondent DPH regulates radioactive materials in California and issues 

radioactive material licenses, like the one it issued for SSFL under the Radiation Control 

Law. (Health & Saf. Code, §§ 114990, 11500, subd. (b), 115060, subd. (a).) The license 

applies to the SSFL site, subject to conditions on use locations and areas released from 

the license (including buildings). As a result, various restrictions still attach to the 

property. (Cal. Code Regs., tit. 17, §§ 30190-30205.) DPH also oversees the disposal of 

“low-level radioactive waste.” (See id., § 30470.) 

When DPH terminates a license, it does so through a decommissioning process

that requires licensees “to remove safely from service and reduce residual radioactivity to 

a level that permits release of the property for unrestricted use and termination of the 

license.” (Cal. Code Regs., tit. 17, § 30100, subd. (c).) A prerequisite for terminating a 

license is a determination by DPH that the radioactive material has been properly 

disposed, reasonable effort has been made to eliminate residual radioactive 

contamination, and a radiation survey has been performed and demonstrates that the 

premises are suitable for unrestricted use. (Cal. Code Regs., tit. 17, § 30256, subd. (k).)8 

Removing a building from a license ends DPH’s regulation of that building.

DPH also has authority to prohibit the disposal of low-level radioactive wastes in 

such a manner as would “result in . . . significant radioactive contamination of the 

environment.” (Health & Saf. Code, § 114715; see id., § 114720.) Generally, this 

8

 California Code of Regulations, title 17, section 30256, subdivision (k) provides: 

“Specific licenses shall be terminated by written notice to the licensee when the 

Department determines that: [¶] (1) Radioactive material has been properly disposed; 

[¶] (2) Reasonable effort has been made to eliminate residual radioactive contamination, 

if present; and [¶] (3) A radiation survey has been performed which demonstrates that 

the premises are suitable for release for unrestricted use; or other information submitted 

by the licensee is sufficient to demonstrate that the premises are suitable for release for 

unrestricted use.”
9

statutory authority does not apply to material from a decommissioned building because 

by the time a building is decommissioned, all radioactive waste must have been “properly 

disposed.” (Cal. Code Regs., tit. 17, § 30256, subd. (k)(1).)

Disposal of “low-level radioactive waste,” defined as “regulated radioactive 

material” that meets certain technical requirements, is regulated under a separate multistate compact.9

 (Health & Saf. Code, §§ 115255, art. 2, 115261, subd. (e)(4).) Because 

there is no longer any “regulated radioactive material” in a decommissioned building, the 

compact would generally not apply. (Health & Saf. Code, § 115255, art. 2(I).) Under an 

executive order signed in 2002 by then-Governor Davis, decommissioned materials may 

not be disposed into municipal solid waste landfills and unclassified waste management 

units.

III

Boeing’s Demolition of Buildings in Area IV

In 2008, Boeing alerted DTSC of its intent to demolish a building at SSFL. 

DTSC’s request to delay the demolition was rejected by Boeing, and the demolition 

proceeded. DTSC subsequently asked to: inspect buildings at SSFL before demolition; 

be present during demolition; identify the source and nature of any chemical 

contamination beneath the buildings as well as to maintain the integrity of the ongoing 

site investigation and cleanup under the 2007 Order and the HWCL. As part of this 

process, DTSC contracted with DPH so that DPH could provide expertise on the 

adequacy of previous radiological surveys and release decisions regarding the 

decommissioning of six buildings as well as in evaluating soils and building materials 

9 Under this compact, California agreed to host a facility for disposal of low-level 

radioactive waste and DPH was authorized to license that facility. However, this facility 

has not yet been built.
10

disposition. Between April 8 and June 11, 2013, DPH prepared seven memoranda 

(contract memoranda) reviewing historical documentation as to the buildings. 

In 2009, DTSC asked Boeing to prepare an SOP that would govern its demolition 

activities at SSFL. DTSC requested the SOP to ensure the corrective action addressed in 

the 2007 Order would not be compromised by the demolition activities and to establish a 

review process to identify materials impacted by chemical releases in the area. DTSC 

made the draft SOP available for public review and comment. In notifying the public, 

DTSC clarified the SOP did not apply to demolitions in areas where known radiological

contaminant releases are documented or suspected (such as Area IV) and demolition in 

those areas was not planned at that time. In 2010, Boeing issued the SOP regarding all 

building demolition and debris management at SSFL. The SOP stated that Boeing would 

give DTSC 30-days’ notice and an opportunity to comment on Boeing’s plans prior to 

any demolition to ensure that the demolition would not impact cleanup efforts.

Between 2010 and 2012, Boeing demolished and removed eight structures from 

Areas I and III. In 2012, Boeing began submitting demolition notifications to DTSC for 

nonradiological buildings in Area IV, starting with Building 4015. DTSC asked Boeing 

to amend the SOP to cover specific demolition procedures for buildings in Area IV that 

were never used for radiological activity. Boeing did so in November of 2012. This was 

labeled Amendment 1 and explains that “Boeing acknowledges the heightened interest in 

Area IV operations, and has coordinated with DTSC in planning demolition of Boeing 

owned buildings in Area IV.”

On October 15, 2012, DTSC informed Boeing by letter that it had concluded that 

the proposed demolition of Building 4015 “should not disturb chemically-impacted soil 

or other impacted surficial media currently under investigation” and that the proposed 

actions did not merit a more detailed work plan. DTSC also provided comments on the 

radiological screening criteria Boeing intended to use for Building 4015. Following 

DTSC’s consultation with DPH and US EPA, DTSC concluded that “radionuclide 
11

contaminants are not present above background activity levels at the Building 4015 

demolition area or in demolition materials identified for disposal and recycling.” DTSC 

recommended that Boeing screen certain features (e.g., the road base underlying the 

asphalt) for radiological activity and also sample these materials for chemicals and 

metals, and it told Boeing that DTSC staff planned to be present for the radiological 

screening. DTSC posted its review letter on the SSFL Web site. Boeing performed 

radiological screening on all demolition waste.

In September 2012, Boeing informed DTSC that it planned to demolish its six 

buildings in Area IV, some of which had been licensed for radiologic uses by either DPH 

or the federal Nuclear Regulatory Commission. These included Building 4005 

(remaining slab only); Building 4009; Building 4011 (low bay); Building 4055; the L-85 

site (remaining slab and wall from former Building 4093); and Building 4100. Except for 

Building 4100,10 each of these buildings had been decommissioned and released for 

unrestricted use by the relevant radiological licensing authority decades earlier.

On February 6, 2013, Boeing sent DTSC the first demolition notification package 

for a former radiological building in Area IV, specifically concerning the removal of 

some remaining asphalt, several concrete slabs, and a wall from the site of a former 

radiological building, L-85. The actual buildings that comprised L-85 had been 

demolished and removed in 1995. DTSC again requested that Boeing revise the SOP, 

this time to provide specific demolition procedures for former radiological buildings in 

Area IV, and Boeing did so. In this amendment, labeled Amendment 2, Boeing 

“acknowledges the heightened interest in released former radiological buildings in Area 

IV, and has coordinated with DTSC and the California Department of Public Health 

(CDPH) in planning demolition of these buildings. As a result of that coordination, 

10 Building 4100 was decommissioned in July 2013.
12

DTSC has requested that the SOP be amended to specifically address application of the 

SOP to former radiological buildings Area IV.” In Amendment 2, Boeing agreed that 

“[i]f building material surface activity exceeding federal and state release criteria is 

observed during the above post-demo survey, demolition will be halted and DTSC, DPH 

and the Department of Energy (DOE) will be notified. Contaminated structural material 

would be segregated and managed and disposed of as low level radioactive waste.”

Amendment 2 specifically applies to the six buildings at issue in this case.

To assist its review of the notification packages for Boeing’s former radiological 

buildings to determine whether any changes should be made, DTSC consulted with DPH 

and US EPA and asked these agencies to review the historical radiological release survey 

documents for these structures, created during the decommissioning process. Upon 

review, DPH concluded there was no evidence to contradict past conclusions made in the 

decommissioning process and that no further radiological surveys were recommended. 

DTSC expressed the view that soils would not be affected by building demolitions 

following recommended procedures, and so it did not intend to bring an enforcement 

action concerning such demolitions. After consulting with DPH and US EPA, DTSC 

sent Boeing a letter on May 1, 2013, in response to the notification package for the L-85 

site. In its letter, DTSC recommended additional postdemolition radiological screening 

for some of the material at the L-85 site.11 Boeing agreed to perform this screening. In

May 2013, Boeing removed the asphalt, concrete, and wall at the L-85 site, and DTSC 

staff were present to observe some of the work. Per agreement, Boeing stockpiled some 

of the concrete and metal piping onsite for focused radiological surveys. DTSC reviewed 

11 This was apparently intended to address a note discovered in the 1987 federal Nuclear 

Regulatory Commission decommissioning report stating that, during the initial building 

demolition, a small volume of neutron-activated concrete had been left in place and 

covered with fresh concrete to complete the decay process.
13

the screening results, and agreed it was suitable for disposal at a Class I facility. During 

July and August 2013, Boeing provided notice of its plans to demolish the other former 

radiological buildings.

PROCEDURAL BACKGROUND

When this litigation was filed in August 2013, Boeing had submitted requests to 

demolish four more of its six structures. Plaintiffs contacted respondents and raised 

concerns about the environmental consequences of demolition and offsite disposal.

Plaintiffs filed a petition for writ of mandate asserting claims under CEQA and the 

Administrative Procedure Act (Gov. Code, § 11340 et seq.) (APA), along with a claim 

that DPH violated a writ of mandate issued in 2002. Within days, DTSC and Boeing 

agreed to pause Area IV demolition.

Plaintiffs’ CEQA claim in their original petition referred to six SSFL buildings 

that were the subject of contract memoranda prepared by DPH. Referring to a DTSC 

letter attaching one of those memoranda, plaintiffs alleged that respondents had 

“approved” demolition of a building known as “L-85.” Plaintiffs later filed an amended 

petition, adding a claim that DPH improperly decommissioned Building 4100 without 

complying with CEQA.

As amended, the petition raised five causes of action. First, plaintiffs alleged that 

respondents failed to consider the cumulative impact on the environment prior to 

decommissioning and demolishing radioactive buildings and disposing of the debris. 

They argued this obligation was triggered by Public Resources Code section 21065,12

which applies to discretionary projects approved by public agencies. Plaintiffs asserted

that DTSC exercised control, authority, and discretion over Boeing’s demolition and 

disposal activity and as such, the activity constitutes a project for purposes of CEQA. As 

12 Undesignated statutory references are to the Public Resources Code.
14

to DPH, plaintiffs argued that in decommissioning Building 4100, DPH exercised its 

discretion to release the building for unrestricted use, thereby allowing Boeing to 

demolish the building without review under CEQA. Second, plaintiffs alleged

respondents violated a peremptory writ of mandate issued in 2002, in which the superior 

court found respondents violated CEQA and the APA when they adopted numerical 

standards for the cleanup of, and the termination of licenses for, nuclear sites. The court 

prohibited respondents from readopting the criteria under 10 Code of Federal Regulations 

parts 20.1401-20.1406, or similar provisions, without first complying with CEQA and the 

APA. Third, plaintiffs alleged respondents engaged in unlawful underground rulemaking 

when, in issuing their approvals of Boeing’s decommissioning, demolition and disposal 

activities, respondents relied upon several specifically identified standards of general 

application, none of which were adopted pursuant to the APA’s requirements but were 

intended to apply generally rather than to a specific case. As fourth and fifth causes of 

action, respectively, plaintiffs sought declaratory and injunctive relief.

The superior court rejected all of plaintiffs’ claims.13 On the CEQA claim against 

DTSC, the superior court found the dispositive issue was whether Boeing’s demolition 

and disposal of the six decommissioned buildings constituted a “project” (or multiple 

“projects”) under the definition in section 21065, subdivision (c). The court concluded 

that such activity was not a project because DTSC did not issue a “lease, permit, license, 

certificate, or other entitlement for use” granting Boeing legal authorization to take action 

it could not lawfully take without preapproval. The court explained that DTSC’s 

13 Previously, in December 2013, the superior court granted plaintiffs’ motion for a 

preliminary injunction against DTSC for violating CEQA but denied that relief for all 

other claims. Pending a merits ruling, the court enjoined DTSC from approving Boeing’s 

demolition and disposal activities unless DTSC complied with CEQA. The court also 

later denied Boeing’s motion for summary judgment. Although the preliminary 

injunction is no longer in effect, Boeing represents it has voluntarily refrained from 

implementing its demolition and disposal plans during the pendency of this appeal.
15

acquiescence in Boeing’s plans did not constitute an entitlement but rather “efforts to 

gather information and observe private activities that could impact the SSFL site 

investigation and cleanup . . . as part of [DTSC’s] responsibilities under” state 

environmental statutes. Similarly, the court rejected plaintiffs’ alternative argument that 

DTSC had improperly segmented Boeing’s demolition activities from the CEQA review 

for the agency’s own project regarding soil and groundwater remediation, “find[ing] there 

is insufficient evidence to establish that Boeing’s structure demolition is part of the 

overall site remediation.” The court, moreover, specifically deemed forfeited plaintiffs’ 

argument, raised for the first time in their reply brief, that DTSC itself carried out a 

project under section 21065, subdivision (a) when it reviewed Boeing’s SOP.

The superior court also rejected the CEQA claims against DPH, finding that DPH 

did not approve a project in either its consulting role or in decommissioning Building 

4100. The court concluded that, in DPH’s consulting role, the agency “merely reviewed 

and commented on certain documents provided by Boeing to DSTC,” which did not 

“implicate[]” any “ ‘entitlement for use.’ ” The court further concluded that, in 

decommissioning Building 4100, DPH lacked any authority “to direct the future of 

building 4100 subsequent to its decommissioning” and thus did not “ ‘approve[]’ ” any 

post-decommissioning demolition by Boeing. Accordingly, DPH did not grant an 

“ ‘entitlement for use’ ” in decommissioning Building 4100.

Finally, the court rejected the APA claim against both agencies. It found that the 

documents plaintiffs claimed were underground regulations were not regulations at all, 

because the alleged standards discussed in those documents did not “ ‘apply a rule 

generally’ ” or “ ‘declare how a certain class of cases will be decided.’ ” As there was no 

violation of the APA, there also was no violation by DPH of the 2002 writ of mandate, 

which similarly restricted the use of such standards.
16

Judgment was entered on January 2, 2019. Plaintiffs timely filed a notice of 

appeal on January 24, 2019.14

DISCUSSION

I

The “Project,” Defined

Plaintiffs argue because CEQA exists to protect against activity that may impact

the environment, and the demolition and disposal of buildings contaminated with both 

chemicals and radiation has “obvious potential environmental impacts,” CEQA must 

therefore apply to Boeing’s demolition and disposal activity at SSFL, and respondents 

violated the law by failing to comply with its requirements prior to the project approval. 

Not only is it common sense that CEQA would apply to activity involving dangerously 

contaminated areas such as SSFL, according to plaintiffs, but the obligations under 

CEQA were triggered by the nature of the activities undertaken by the parties to prepare

for the demolition and disposal of Boeing’s buildings. Specifically, as to DTSC plaintiffs 

argue that the demolition and disposal activities constitute a project for purposes of 

CEQA with DTSC in two ways because: (1) DTSC exercised authority and control over

the demolition and disposal of the buildings, thereby issuing an “entitlement for use” 

under section 21065, subdivision (c) and (2) in reviewing and approving Amendment 2 to

Boeing’s SOP, DTSC engaged in an “activity directly undertaken by any public agency,” 

under section 21065, subdivision (a). In addition, plaintiffs argue that because the 2010 

AOC encompassed the demolition of Boeing’s buildings within Area IV, such activity 

was a functional component of the overall soil and groundwater remediation plan and the 

failure of DTSC to include Boeing’s demolition activity as part of the overall plan, 

resulted in DTSC improperly segmenting those activities from the CEQA project it is 

conducting for its soil and groundwater remediation plan.

14 The matter was assigned to this panel on November 30, 2022.
17

As to DPH, plaintiffs further argue that the act of decommissioning Building 4100, 

thereby releasing the building for unrestricted use, constitutes a CEQA “project” under 

section 21065, subdivision (c) because during that process DPH issued an entitlement to 

Boeing to demolish the building.15 Plaintiffs also argue that respondents sought to avoid 

their responsibilities under CEQA by improperly segmenting the licensing portion of the 

project from the future demolition and disposal plans.

We conclude that under the facts of this case, the activities undertaken to demolish 

Boeing’s buildings are private activities not subject to discretionary approval by a public 

agency, and thus not subject to CEQA. (§ 21080; CEQA Guidelines, Cal. Code Regs., 

tit. 14, § 15060, subd. (c)(1).)

16

A. Standard of Review

The appellate court’s review of a CEQA case “is the same as the trial court’s: [It] 

reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial 

review under CEQA is de novo.” (Vineyard Area Citizens for Responsible Growth, Inc. 

v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427.) We independently determine 

whether the record “demonstrates any legal error” by the agency and deferentially 

consider whether the record “contains substantial evidence to support [the agency’s] 

factual determinations.” (Ibid.) “When an agency concludes an activity is exempt based 

on factual considerations, a court reviews for substantial evidence. If the agency’s 

determination ‘involves pure questions of law, we review those questions de novo.’ 

15 We reject Boeing’s claim that plaintiffs’ CEQA claim against DPH is time-barred 

because it was not raised in, or relate back to, the original petition. The original petition 

and amendment demonstrated that plaintiffs challenged the decisionmaking process 

regarding demolition and disposal of Boeing’s buildings, which reasonably includes the 

decommissioning process. 

16

 Further references to the CEQA Guidelines, pursuant to California Code of 

Regulations, title 14, section 15000 et seq., are as “Guidelines.”
18

[Citation.]” (Protecting Our Water & Environmental Resources v. County of Stanislaus

(2020) 10 Cal.5th 479, 495.) Whether a public agency has given approval to a project 

under CEQA is a predominantly legal question that is reviewed de novo on appeal. 

(Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 382.) 

Similarly, “[w]hether two activities are parts of a single project is a question for our 

independent review.” (County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th

377, 385.) As plaintiffs’ CEQA claims involve questions of law, we review them de 

novo.

B. Background Legal Principles

“CEQA is designed to compel government to make decisions with environmental 

consequences in mind.” (McCorkle Eastside Neighborhood Group v. City of St. Helena

(2018) 31 Cal.App.5th 80, 89.) It “requires public agencies to undertake an 

environmental review of proposed projects that require their discretionary approval. 

(Pub. Resources Code, § 21080, subd. (a).)” (Tuolumne County Citizens for Responsible 

Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1221 (Tuolumne County).) 

Under CEQA, all local agencies must “prepare, or cause to be prepared by contract, and 

certify the completion of, an environmental impact report on any project that they intend 

to carry out or approve which may have a significant effect on the environment.” 

(§ 21151; see § 21080, subd. (d).) This report must be prepared and considered prior to a 

public agency’s approval or disapproval of a project. (§ 21061; see Guidelines, § 15004, 

subd. (a) [“Before granting any approval of a project subject to CEQA, every lead agency 

or responsible agency shall consider a final EIR or negative declaration or another 

document authorized by these guidelines to be used in the place of an EIR or negative 

declaration”].) If the proposed activity does not qualify as a project, it “is not subject to 

CEQA” and an environmental review under the statute is not required. (Muzzy Ranch 

Co. v. Solano County Airport Land Use Com., supra, 41 Cal.4th at p. 380; Guidelines, 

§ 15060, subd. (c)(3).) 
19

“ ‘Project’ means an activity which may cause either a direct physical change in 

the environment, or a reasonably foreseeable indirect physical change in the environment, 

and which is any of the following: [¶] (a) An activity directly undertaken by any public 

agency. [¶] (b) An activity undertaken by a person which is supported, in whole or in 

part, through contracts, grants, subsidies, loans, or other forms of assistance from one or 

more public agencies. [¶] (c) An activity that involves the issuance to a person of a 

lease, permit, license, certificate, or other entitlement for use by one or more public 

agencies.” (§ 21065; see Guidelines, § 15378.) “The term ‘project’ refers to the activity 

which is being approved and which may be subject to several discretionary approvals by 

governmental agencies. The term ‘project’ does not mean each separate governmental 

approval.” (Guidelines, § 15378, subd. (c).) “ ‘Project’ ” refers to “the whole of an

action” (Guidelines, § 15378, subd. (a)); it “ ‘is given a broad interpretation in order to 

maximize protection of the environment.’ ” (County of Amador v. City of Plymouth

(2007) 149 Cal.App.4th 1089, 1099, quoting McQueen v. Board of Directors (1988) 

202 Cal.App.3d 1136, 1143.) 

C. The Scope of the Soil and Groundwater Remediation Project

The parties agree that the soil and groundwater remediation program is a project 

subject to CEQA. This CEQA project includes the chemical soil and groundwater 

remediation program set forth in the 2007 Order, as well as the chemical and radiological 

soil remediation program set forth in the 2010 AOC. The parties disagree whether and 

how Boeing’s demolition-related activity is subject to CEQA. Plaintiffs contend the 

2010 AOC “provides that buildings on-site will be demolished, eventually including 

Boeing’s.” As a result, plaintiffs argue, Boeing’s demolition-related activities are 

encompassed within the 2010 AOC and thus part of the overall soil and groundwater 

remediation project such that compliance with CEQA was required prior to the 

demolitions. Plaintiffs also contend that by treating the demolition of Boeing’s buildings 

in Area IV as an independent activity, respondents improperly segmented the demolition 
20

and disposal portion from the remediation project. Respondents disagree, maintaining 

Boeing’s demolition-related activity is separate from the remediation project and, as a 

private activity, not subject to CEQA review. 

We start by determining which acts to include and exclude from the scope of the 

CEQA project. (Tuolumne County, supra, 155 Cal.App.4th at p. 1223.) “Which acts, 

that is, constitute the ‘whole of an action’ for purposes of determining the scope of a 

potential project? (Guidelines, § 15378, subd. (a) [term ‘project’ encompasses ‘whole of 

an action’ affecting environment].)” (Ibid.) Segmenting (or piecemealing) happens 

when “an agency . . . split[s] a project into separate segments to avoid consideration of 

the cumulative environmental impacts of a project.” (McCann v. City of San Diego

(2021) 70 Cal.App.5th 51, 84.) The California Supreme Court has held “that an EIR 

must include an analysis of the environmental effects of future expansion or other action 

if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future 

expansion or action will be significant in that it will likely change the scope or nature of 

the initial project or its environmental effects.” (Laurel Heights Improvement Assn. v. 

Regents of University of California (1988) 47 Cal.3d 376, 396; see also Banning Ranch 

Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1222 (Banning 

Ranch) [acknowledging this is the test for piecemealing].)

There may be improper piecemealing when the purpose of the activity at issue is 

to be the first step toward future development. (See, e.g., City of Carmel-by-the-Sea v. 

Board of Supervisors (1986) 183 Cal.App.3d 229, 244 [county rezoned land as “a 

necessary first step to approval of a specific development project”], superseded by statute 

on other grounds as recognized in People ex rel. Brown v. Tehama County Bd. of 

Supervisors (2007) 149 Cal.App.4th 422, 450; City of Antioch v. City Council (1986) 

187 Cal.App.3d 1325, 1337 [negative declaration wrongly issued; “the sole reason” city 

approved road and sewer construction was “to provide a catalyst for further 

development”].) There may also be improper piecemealing when the activity at issue
21

legally compels or practically presumes completion of another action. (Nelson v. County 

of Kern (2010) 190 Cal.App.4th 252, 272 [EIR for reclamation plan should have included 

mining operations that necessitated it]; San Joaquin Raptor/Wildlife Rescue Center v. 

County of Stanislaus (1994) 27 Cal.App.4th 713, 732 [EIR for residential development 

should have included sewer expansion that was a “crucial element[]” of development]; 

Plan for Arcadia, Inc. v. City Council of Arcadia (1974) 42 Cal.App.3d 712, 726 

[shopping center, parking lot, and adjacent road widening “should be regarded as a single 

project”].) However, no piecemealing occurs “when the projects have different 

proponents, serve different purposes, or can be implemented independently.” (Banning 

Ranch, supra, 211 Cal.App.4th at p. 1223.)

Here, Boeing and DOE have different obligations within the overall soil 

remediation project, and plaintiffs have not demonstrated any legal obligation Boeing has 

to demolish its own buildings as part of its remediation efforts. While the 2010 AOC 

mandates the demolition of DOE’s buildings, Boeing is not a party to the 2010 AOC. 

Thus, contrary to plaintiffs’ contentions, the 2010 AOC does not legally compel Boeing 

to perform any activity, including demolishing its building(s). (Cf. Banning Ranch, 

supra, 211 Cal.App.4th at p. 1223 [“there may be improper piecemealing when the 

reviewed project legally compels or practically presumes completion of another action”].) 

Nor is the demolition of Boeing’s buildings a necessary first step in the soil and 

groundwater remediation program. The record demonstrates that cleanup efforts have 

been taking place for decades and the remediation program and demolitions were each 

proceeding independently of one another. Thus, the activities encompassed within the 

2010 AOC and Boeing’s demolition and disposal program have different proponents and 

are independent of each other. 

Support for this conclusion is even greater considering the 2007 Order, through 

which Boeing’s obligations regarding the chemical contamination of soil and 

groundwater are established. The 2007 Order does not require demolition or disposal of 
22

any of Boeing’s buildings. In fact, the areas of concern listed in the 2007 Order do not 

include the buildings at issue here and it imposes no specific obligations on Boeing 

regarding the buildings involved in this case. Thus, even under the 2007 Order, to which 

Boeing is a party, Boeing’s decision to demolish and dispose of its own buildings 

constitutes activity independent from the soil remediation project. (See Communities for 

a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 99 [the upgrade of 

a refinery and construction of pipeline exporting excess hydrogen were “independently 

justified separate projects with different project proponents”]; Planning & Conservation 

League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 237 [water transfer 

had “significant independent or local utility” from a broader water supply agreement, and 

would be implemented with or without the supply agreement]; Sierra Club v. West Side 

Irrigation Dist. (2005) 128 Cal.App.4th 690, 699 [two water rights assignments to city 

were “approved by different independent agencies” and “could be implemented 

independently of each other”]; Plan for Arcadia, Inc. v. City Council of Arcadia, supra,

42 Cal.App.3d at p. 724 [shopping center EIR could exclude adjacent road work which 

the city had “long before” decided would be needed due to the construction of a new 

freeway].)

Our conclusion does not waiver even when we more broadly consider how closely 

related the act of Boeing’s demolition and disposal of decommissioned buildings is to the 

overall objective of the soil and groundwater remediation project. “The relationship 

between the particular act and the remainder of the project is sufficiently close when the 

proposed physical act is among the ‘various steps which taken together obtain an 

objective.’ (Robie et al., Cal. Civil Practice—Environmental Litigation (2005) § 8.7.)” 

(Tuolumne County, supra, 155 Cal.App.4th at p. 1226.) “Some courts have concluded a 

proposed project is part of a larger project for CEQA purposes if the proposed project is a 

crucial functional element of the larger project such that, without it, the larger project 

could not proceed.” (Communities for a Better Environment v. City of Richmond, supra,
23

184 Cal.App.4th at p. 99.) Put another way, “ ‘Courts have considered separate activities 

as one CEQA project and required them to be reviewed together where . . . both activities 

are integral parts of the same project (No Oil, Inc. v. City of Los Angeles (1987) 

196 Cal.App.3d 223).’ ” (Tuolumne County, at p. 1229.) 

While the 2010 AOC contemplates demolition of DOE-owned buildings, it also 

contemplates that Boeing may not demolish its buildings. The 2010 AOC specifically 

provides that if Boeing does not move forward on demolishing its building(s), DOE’s 

obligations of soil remediation beneath Boeing’s buildings is stayed. On the other hand, 

DOE’s remediation plan, as defined in the 2010 AOC, includes soil remediation of areas 

other than beneath Boeing’s buildings. If Boeing never demolishes its buildings, the rest 

of the soil and groundwater remediation project can continue. Thus, it is clear that the 

two activities can be implemented independently. While Boeing’s demolition and 

disposal program is somewhat related to the soil and groundwater remediation project, we 

cannot conclude it is so closely related to the overall objective of the project, i.e., clean 

soil and water, as to constitute a crucial functional element. Nor can we conclude that 

Boeing’s demolition and disposal program is an integral part of the overall soil 

remediation project. 

We find the circumstances in this case are unlike the piecemealing found in 

Tuolumne County, a case upon which plaintiffs rely. There, the city approved the 

application of a proposed home improvement center project. The city’s approval of the 

site plan submitted for the project was conditioned upon the realignment of an existing 

road that would allow access to the center. (Tuolumne County, supra, 155 Cal.App.4th at 

pp. 1219-1220.) The road realignment was not included in a mitigated negative 

declaration prepared for the project, which was adopted by the city. The plaintiffs there

argued that the road realignment was part of a single CEQA project and asserted the city 

violated CEQA by not considering the road realignment in the mitigated negative 

declaration. In response, the respondents argued the road realignment constituted 
24

independent activity. (Id. at p. 1221.) Noting that commencement of building operations 

at the home improvement center was conditioned on the completion of the road 

realignment, the appellate court concluded the two acts were part of a single CEQA 

project. “Their independence was brought to an end when the road realignment was 

added as a condition to the approval of the home improvement center project.” (Id. at 

p. 1231.) 

Instead, we find this case closer to Banning Ranch, supra, 211 Cal.App.4th 

1209. In that case, the plaintiffs alleged that a planned residential development adjacent 

to a planned park with an access road between the park and neighborhood were one 

CEQA project, subject to one EIR. (Id. at p. 1224.) The appellate court disagreed, 

finding that while the access road was a “baby step” (id. at p. 1225) toward, and 

consistent with, the residential development, the park project was separate from the 

residential project. The court reasoned that they served different purposes and were 

independent in that the park could proceed without the new neighborhood. (Id. at 

p. 1226.) Similarly, in the case before us, Boeing’s demolition and disposal program 

might be consistent with the soil and groundwater remediation plans, but they ultimately

serve different purposes: one removes a structure and the other cleans the soil and water. 

The activities are not conditioned on one another; they may independently proceed. DOE 

is bound to clean up the radiological contamination, but no party can compel Boeing to 

demolish its own buildings (under the 2007 Order or 2010 AOC) so that DOE can meet 

its obligations. Accordingly, we conclude that the demolition and disposal of Boeing’s 

buildings is not part of the CEQA project.17

17 In light of this conclusion, we need not address respondents’ argument that the 

prohibition against segmentation presumes that each smaller part of the larger project 

meets the definition of “project” under section 21065.
25

D. Boeing’s Demolition Activities Are Not a “Project” under Section 21065, 

subdivision (c).

Plaintiffs argue when DTSC required Boeing to obtain DTSC’s approval for the 

demolition of buildings in Area IV, those actions constituted “[a]n activity that involves 

the issuance” of an “entitlement for use” and meets the definition of a “project” under 

section 21065, subdivision (c). Plaintiffs argue the superior court’s finding to the 

contrary is wholly unsupported by law or logic. We disagree.

1. Neither DTSC Nor DPH Has Statutory Authority Over Boeing’s Demolition 

Activities.

Plaintiffs do not assert that Boeing was statutorily obligated to obtain approval 

from DTSC before demolishing buildings Boeing owns at SSFL. Respondents argue this 

lack of statutory obligation is paramount: because no statutory authority exists, DTSC or 

DPH could not and did not issue an official permit, license or other entitlement for use to 

allow Boeing to demolish Boeing’s buildings. DTSC notes that the structures in Area IV 

were not “permitted” units under the HWCL, which is the statute governing DTSC’s 

oversight of Boeing’s chemical cleanup efforts at SSFL, and thus pre-approval by DTSC 

for any modification of those structures was not required. (See Health & Saf. Code, 

§ 25200.15 [owner or operator of a hazardous waste “may change facility structures or 

equipment” if they are “not within a permitted unit”].)

Boeing agrees and argues that it did not need a license, permit or entitlement to 

demolish its own buildings that were not under the regulatory purview of DTSC or DPH. 

Since, as DTSC noted, none of the six buildings at issue were “permitted units” under the 

HWCL, and each of them was previously decommissioned by DPH (or a predecessor) 

and thereby restored to unrestricted use, Boeing was free to do anything with the 

buildings—including demolish them—at any time.

We agree with respondents that plaintiffs have not shown DTSC or DPH had 

statutorily vested discretionary authority in determining whether Boeing’s demolition 
26

activities could take place. (See Guidelines, § 15357 [the key question in determining a 

project is discretionary is “whether the public agency can use its subjective judgment to 

decide whether and how to carry out or approve a project”].) With respect to disposal of 

demolished buildings, neither the HWCL nor the HSAA require a private party to obtain 

DTSC’s preapproval. Rather, a party that generates waste must determine whether the 

waste is hazardous and dispose of the waste appropriately or be subject to enforcement 

remedies. (See Cal. Code Regs., tit. 22, § 66262.11.) Moreover, under the statute, the 

demolished buildings are not low-level radioactive waste that can be disposed of only at 

certain waste facilities because, once the buildings were decommissioned, they no longer 

constituted “regulated radioactive material.” (Health & Saf. Code, §§ 115255, art. 2(I), 

115261, subd. (e)(4).) Accordingly, the only restriction on disposal of the building

materials is the 2002 executive order prohibiting the disposal of decommissioned 

materials into municipal landfills or unclassified waste management units, which is not a 

restriction placed by DTSC or DPH. We further agree with respondents that the lack of 

statutory authority providing DTSC or DPH discretion over whether Boeing’s demolition 

activities can take place is critical to the outcome of this case. (See § 21080, subd. (a) 

[CEQA applies to “discretionary projects proposed to be carried out or approved by 

public agencies”].)

2. Cooperation Between Boeing and DTSC Did Not Constitute Agency 

“Approval” or an Issuance of an “Entitlement for Use.”

Plaintiffs argue that the interaction between Boeing and DTSC went beyond 

voluntary cooperation. They assert that DTSC’s ability to control whether, when, and 

how Boeing demolished Area IV structures is evidence that DTSC operated as though it 

regulated Boeing’s demolition activities and constituted an issuance of an entitlement for 

use under section 21065, subdivision (c). We disagree. 

Private activities are subject to CEQA if they involve government participation, 

financing, or approval. (§ 21065, subds. (b)-(c).) Activities that involve public agency 
27

approval include the issuance by a public agency of a lease, permit, license, certificate or 

other entitlement for use. (§ 21065, subd. (c); see also Natural Resources Defense 

Council, Inc. v. Arcata Nat. Corp. (1976) 59 Cal.App.3d 959, 966-967.) The Guidelines 

define the word “approval” for public agency projects as “the decision by a public agency 

which commits the agency to a definite course of action in regard to a project intended to 

be carried out by any person.” (Guidelines, § 15352, subd. (a).) Approval, within the 

context of a CEQA project, cannot be equated with an agency’s mere interest in, or 

inclination to support a project. (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 

116, 136-137.) “ ‘If having high esteem for a project before preparing an environmental 

impact report (EIR) nullifies the process, few public projects would withstand judicial 

scrutiny, since it is inevitable that the agency proposing a project will be favorably 

disposed toward it.’ [Citation.]” (Ibid.)

“The problem is to determine when an agency’s favoring of and assistance to a 

project ripens into a ‘commit[ment].’ ” (Save Tara v. City of West Hollywood, supra,

45 Cal.4th at p. 130.) To make that determination, “we apply the general principle that 

before conducting CEQA review, agencies must not ‘take any action’ that significantly 

furthers a project ‘in a manner that forecloses alternatives or mitigation measures that 

would ordinarily be part of CEQA review of that public project.’ ([Guidelines], § 15004, 

subd. (b)(2)(B); accord, [Concerned McCloud Citizens v. McCloud Community Services 

Dist. (2007)] 147 Cal.App.4th [181,] 196 [agreement not project approval because, inter 

alia, it ‘did not restrict the District’s discretion to consider any and all mitigation 

measures, including the “no project” alternative’]; Citizens for Responsible Government 

[v. City of Albany (1997)] 56 Cal.App.4th [1199,] 1221 [development agreement was 

project approval because it limited city’s power ‘to consider the full range of alternatives 

and mitigation measures required by CEQA’].)” (Id. at p. 138.) With respect to private 

projects, “approval occurs upon the earliest commitment to issue or the issuance by the 

public agency of a discretionary contract, grant, subsidy, loan, or other form of financial 
28

assistance, lease, permit, license, certificate, or other entitlement for use of the project.” 

(Guidelines, § 15352, subd. (b).) 

According to plaintiffs, the conditions DTSC placed on Boeing’s demolition and 

disposal activity and Boeing’s acquiescence to those conditions resulted in DTSC 

shaping the project in a way that foreclosed measures that would ordinarily be part of a 

CEQA review, such as in an EIR. Plaintiffs also argue that such behavior demonstrated 

that Boeing needed respondents’ approval to move forward with the demolitions and 

constituted a commitment to that authority paradigm. In support of plaintiffs’ argument, 

plaintiffs point to a multitude of communications primarily between DTSC and Boeing 

demonstrating DTSC’s purported position of authority over the demolition activities. We 

agree these communications are riddled with terms such as “review,” “approve,” 

“potentially allow” and “required” used by DTSC in the context of Boeing’s demolitions. 

We summarize this evidence with plaintiffs’ best examples.

In 2008, when DTSC learned that Boeing had plans to demolish a structure at 

SSFL, DTSC “required” advance notice for future demolitions. In 2009, when Boeing 

first proposed demolition near Area IV, DTSC expressed concern about the presence of 

contamination that might have migrated from Area IV and claimed it was “essential 

DTSC be advised of any potential demolition activities that may require DTSC oversight 

and/or approval.” DTSC “require[d]” Boeing to prepare SOPs for the demolition, which 

DTSC staff reviewed and asked Boeing to modify. DTSC explained the SOPs were 

meant to “assure that building demolition w[ould] not result in the removal and 

uncontrolled reuse of potentially contaminated debris,” and to “ensure that the review, 

approval, documentation, and the administrative record of proposed building demolitions

at a minimum meet federal [RCRA] and state [HWCL] regulatory requirements.”

Internally, DTSC staff also shared concerns about demolition activity, including 

“[p]otentially allowing poorly characterized soils to be transported offsite” and 

“[p]otentially generating contaminated building or road debris that will be taken offsite in 
29

an uncontrolled manner.” DTSC told the public it had “required the Boeing Company to 

submit the SOP document to make sure an evaluation of each structure proposed for 

demolition occurs. The SOP requires an assessment of each structure for possible 

chemical and radiologic contamination.”

When Boeing first raised the prospect of demolishing structures in Area IV, it told

DTSC that its radiological structures would not be further surveyed prior to demolition.

DTSC told Boeing, “DTSC cannot concur with pre-demolition activities by Boeing in 

Area IV that involve the removal or disturbance of any site features.” Boeing disagreed 

the predemolition activities would generate debris that would leave the site. 

Nevertheless, DTSC requested demolition and predemolition activities be delayed until 

DTSC completed a review of Area IV, and Boeing agreed to delay. Several months later, 

DTSC informed Boeing that it could commence “pre-demolition activities” only at 

nonradiological facilities in Area IV. DTSC also stated that Boeing “should” conduct

radiation screening results from predemolition work before material was sent offsite for 

disposal.

Boeing submitted requests to demolish Area IV nonradiological structures. DTSC 

“approved” these requests, but Boeing was obligated to conduct additional radiological 

screening and provide results to DTSC.

Boeing then planned the demolition of the six structures at issue in this case, the 

former radiological facilities. In December 2012, Boeing was waiting for an “ok to 

proceed” with predemolition activities in the Area IV former radiological buildings and 

was told by DTSC that it was “looking to have DPH agree with an ‘ok to begin 

demolition.’ ” In January 2013, DTSC issued a status update and noted that Boeing 

began “pre-demolition” work in Area IV radiological facilities “with DTSC 

concurrence.”

In March 2013, Boeing submitted its SOP Amendment 2 to address the former 

radiological facilities. Boeing subsequently incorporated DTSC’s revisions in April 
30

2013. These amendments clearly state that the SOPs were prepared at DTSC’s specific 

request and “approved” by DTSC. Amendment 2 requires the involvement of both 

DTSC and DPH in reviewing demolition requests, and commits to sending all demolition 

waste to a Class I hazardous waste landfill.

Pursuant to the amendment, Boeing’s request to demolish L-85 was reviewed by 

both DTSC and DPH, which required Boeing to conduct an additional radiological 

survey of the debris prior to offsite disposal. Boeing performed this survey and the 

results were reviewed by DTSC, DPH, and US EPA. In its review letter, DTSC states 

that it and DPH “concur with Boeing’s proposals” for radiological screening of the 

debris, that additional data would “be reviewed by the agencies prior to clearance of this 

debris for Class I landfill disposal.” After reviewing data from the debris screening, 

DTSC agreed that the debris could be disposed at a Class I facility.

Plaintiffs argue that DTSC’s communications with Boeing show both parties’ 

intent to be constrained by DTSC’s authority to provide permission for Boeing’s 

demolition and disposal activities; DTSC’s approval constituted the pivotal “go/no-go” 

determination. Plaintiffs argue the superior court failed to understand DTSC’s approval 

of the demolition and disposal “involves” issuance of an “entitlement for use” under 

CEQA (§ 21065, subd. (c)) because, as the Supreme Court held in Friends of Mammoth, 

to qualify as a “ ‘project’ ” requires “only that . . . the government must have some 

minimal link with the activity, either by direct proprietary interest or by permitting, 

regulating, or funding private activity.” (Friends of Mammoth v. Board of Supervisors

(1972) 8 Cal.3d 247, 262-263, disapproved of on other grounds in Kowis v. Howard

(1992) 3 Cal.4th 888.) Plaintiffs argue that coupling that “minimal link” requirement to 

our Supreme Court’s instruction to interpret the statutory language to afford the fullest 

possible protection (Friends of the Sierra Railroad v. Tuolumne Park & Recreation Dist.

(2007) 147 Cal.App.4th 643, 653), DTSC’s approval to proceed with demolition and 

disposal is an “entitlement for use.” 
31

Respondents acknowledge a link between the demolition-related activity and the 

government but contend that it is not the appropriate link to trigger CEQA. Respondents 

argue that the link is not related to whether the demolitions can take place but rather if 

and when they do, and whether they will interfere with DTSC’s CEQA project. DTSC 

asserts it exercised only its enforcement authority (as opposed to regulatory authority)

when it asked Boeing to prepare the revised SOP and the two amendments, reviewed 

those documents, and reviewed and provided comments on Boeing’s demolition 

packages out of concern for protecting the integrity of the ongoing cleanup efforts 

regarding the chemically contaminated soil and groundwater. (See Health & Saf. Code, 

§ 58009; Gov. Code, § 11180.) According to respondents, their use of terms such as 

“approval” and “allow” at most “expressed a view that the demolition and disposal plans 

would not affect the soil and groundwater remediation.” Indeed, Boeing notes, DTSC 

also often used terms like “request” and “recommend,” indicating a lack of definitive 

authority on the demolition activities.

Boeing faults plaintiffs for failing to cite to any evidence that CEQA has ever 

applied in the context where, as Boeing argues is the situation here, parties and regulators 

engage in informal communications to ensure no interference with an existing project. 

Instead, respondents argue, the Guidelines make clear that private activities are projects 

under section 21065, subdivision (c) only when preapproval is legally necessary. 

Because plaintiffs have not established that Boeing’s ability to demolish its buildings was 

contingent on the approval of DTSC, DTSC is not the “pivotal go/no-go approval” for 

Boeing’s private activity in demolishing the buildings. Boeing underscores this 

contention when it notes that it demolished a building in 2008 over DTSC’s objection—

without consequences. 

We agree with respondents that the Guidelines generally contemplate that when 

private projects may not proceed without discretionary government approval, CEQA is 

triggered. (See, e.g., Guidelines, §§ 15002, subd. (b)(3) [stating CEQA applies to 
32

governmental action which may involve private activities which require approval from a 

governmental agency], 15377 [defining “ ‘private project’ ” as “a project which will be 

carried out by a person other than a governmental agency, but the project will need a 

discretionary approval from one or more governmental agencies” for a contract or 

financing, or a “lease, permit, license, certificate, or other entitlement for use”], 15351 

[defining “ ‘[a]pplicant’ ” as “a person who proposes to carry out a project which needs a 

lease, permit, license, certificate, or other entitlement for use or financial assistance from 

one or more public agencies when that person applies for the governmental approval or 

assistance”].) We also agree that in some circumstances, when a public agency, in 

theory, retains legal discretion to reject a proposed project, the public agency may as a 

practical matter, have committed itself to the project. (Cedar Fair, L.P. v. City of Santa 

Clara (2011) 194 Cal.App.4th 1150, 1164.) We don’t find those circumstances present 

in this case.

In Save Tara v. City of West Hollywood, supra, 45 Cal.4th 116, the California 

Supreme Court clarified that the Guidelines’ definition of approval involved a 

“commit[ment]” by the agency. The Supreme Court stated: “A public entity . . . may, by 

executing a detailed and definite agreement with the private developer and by lending its 

political and financial assistance to the project, have as a practical matter committed itself 

to the project.” (Tara, at p. 135.) On the other hand, the Supreme Court recognized that 

“[a]gencies sometimes provide preliminary assistance to persons proposing a 

development in order that the proposal may be further explored, developed or evaluated.” 

(Id. at p. 136.) It reasoned: “Not all such efforts require prior CEQA review. (See, e.g., 

[Guidelines,] § 15262 [conduct of feasibility or planning studies does not require CEQA 

review].)” (Ibid.) “[B]efore conducting CEQA review, agencies must not ‘take any 

action’ that significantly furthers a project ‘in a manner that forecloses alternatives or 

mitigation measures that would ordinarily be part of CEQA review of that public 

project.’ ” (Id. at p. 138.) “Thus the touchstone is whether the approval process involved 
33

allows the government to shape the project in any way which could respond to any of the 

concerns which might be identified in an environmental impact report. And when is 

government foreclosed from influencing the shape of the project? Only when a private 

party can legally compel approval without any changes in the design of its project which 

might alleviate adverse environmental consequences.” (Friends of Westwood, Inc. v. City 

of Los Angeles (1987) 191 Cal.App.3d 259, 267, italics omitted.)

Applying these principles, we cannot conclude that either DTSC or DPH

controlled the demolition and disposal activities such that either agency had discretionary 

authority to command or prevent the demolition or that the agency committed itself to the 

project in such a way as to effectively preclude any alternatives or mitigation measures 

CEQA would require, including not going forward with the activity. (See Friends of 

Westwood v. City of L.A., supra, 191 Cal.App.3d at p. 270 [a discretionary project 

requires the exercise of judgment in approving or disapproving a particular activity, “ ‘as 

distinguished from situations where the public agency or body merely has to determine 

whether there has been conformity with applicable statutes, ordinances, or 

regulations’ ”].) DTSC provided neither financial or political support for the demolitions, 

nor did DTSC confer a vested right to Boeing to demolish its own buildings. (See 

Citizens for Responsible Government v. City of Albany, supra, 56 Cal.App.4th at p. 1215 

[a development agreement providing a vested right to complete a project within certain 

clear and narrowly defined parameters constituted an “ ‘entitlement for use’ ” within the 

meaning of subd. (c) of § 21065].) Rather, DTSC provided guidance and suggestions on 

how Boeing should implement its autonomous decision to demolish Boeing’s buildings, 

so that the integrity of the existing remediation project would not be compromised. 

DTSC hired DPH to assist in reviewing data regarding radiological contamination. In 

these ways, DTSC continued to participate in the remediation programs already 

underway. Although Boeing could have performed the demolition activity on its own, 

without any change in its design, it decided to address the concerns of DTSC while doing 
34

so. We conclude this activity represents Boeing’s cooperation and voluntary agreement 

to complete certain tasks while undertaking its demolition and disposal activities. 

Contrary to plaintiffs’ contentions, Boeing’s cooperation with DTSC in how it conducted

the demolition activities did not trigger DTSC’s obligations under CEQA. (See 

McQueen v. Board of Directors, supra, 202 Cal.App.3d at p. 1146 [“CEQA requires 

consideration of the potential environmental effects of the project actually approved by 

the public agency, not some hypothetical project”], disapproved of on other grounds in 

Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570 & fn. 2; 

Prentiss v. City of South Pasadena (1993) 15 Cal.App.4th 85, 86-87 [application for a 

building permit was a ministerial act; the city failed to show that any statute or ordinance 

gave it discretion to deny the permit on historical architectural grounds and in 

misinterpreting its authority, it failed to distinguish between laws designed to encourage 

voluntary historical preservation by private property owners and zoning laws designed to 

require historical preservation].)

Additionally, plaintiffs mischaracterize Stockton Citizens for Sensible Planning v. 

City of Stockton (2010) 48 Cal.4th 481, which does not support their argument that 

DTSC’s “ostensible authority” (id. at p. 506), suffices to transform the agency’s 

communications with Boeing into an “approval” of a project under section 21065, 

subdivision (c). In that case, the Supreme Court described the underlying situation as 

“under the ostensible authority of a previously adopted master development plan (MDP) 

for a large urban tract, the City of Stockton (City), through the director of its Community 

Development Department (Director), purported to approve, as consistent with the MDP, 

the construction of a Wal-Mart Supercenter on certain parcels within the tract. City then 

filed an NOE [notice of exemption] announcing its determination that the approval came 

within CEQA’s exemption for ministerial actions.” (Stockton Citizens, at p. 488, fn. 

omitted.) However, the issue for the Supreme Court was not whether the ostensible 

authority constituted “approval,” as is the issue here, but which statute of limitations 
35

applied to plaintiffs and their challenge to the approval of the CEQA project. (Id. at 

p. 501.) Thus, the issue in Stockton had nothing to do with whether the public entity’s 

communications with a private party constituted approval of a project pursuant to section 

21065, subdivision (c).

Plaintiffs’ reliance upon McQueen v. Board of Directors, supra, 202 Cal.App.3d 

1136, is equally misplaced. In that case, the public agency acquired and maintained 

improved real property, which included storage of hazardous wastes known to exist on 

the property. The appellate court concluded this land acquisition and maintenance was a 

project “directly undertaken” by the public agency under section 21065, subdivision (a). 

(McQueen, at pp. 1143, 1147.) Because McQueen does not address the “approval” 

requirement under section 21065, subdivision (c), it does not support plaintiffs’ 

argument. Moreover, plaintiffs overstate the holding in McQueen as standing for the 

proposition that “CEQA . . . holds government officials accountable for how they 

manifest their authority,” in support of plaintiffs’ argument that even if DTSC did not 

actually have the authority to preapprove Boeing’s building demolitions, DTSC’s air of 

authority in working with Boeing was sufficient to bestow an “approval” for CEQA 

purposes. McQueen merely rejected the agency’s argument that a governmental agency 

could avoid consideration of and compliance with hazardous waste regulations until after 

purchase and pending a final decision on the use of property containing the hazardous 

waste. (McQueen, at p. 1146.) 

County of Amador v. City of Plymouth, supra, 149 Cal.App.4th 1089 and 

RiverWatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, also 

provide support for our conclusion, albeit in contrast to the case at bar. In Amador, the 

city entered into an agreement that required it to send a letter supporting a tribe’s casino 

complex, vacate a portion of a road, and remodel a fire station. (Amador, at pp. 1104-

1109.) The agreement also committed the city to provide water and sewer services to the 

gaming development and to install related infrastructure. (Id. at pp. 1109-1111.) Those 
36

specific commitments by the city constituted CEQA “approval” because the agreement 

committed the city to taking actions which would have an environmental impact, even 

though the casino itself required no city approval. (Id. at pp. 1099-1100.) The analysis 

focused on the “causal link” between the city’s action and the potential for environmental 

impact. (Id. at p. 1101.) Moreover, the agreement committed the city to a “definite 

course of action” with respect to specific future actions and activities. (Id. at p. 1103.) 

That causal link and commitment to a definite course of future action are both lacking in 

the current case.

Similarly, in RiverWatch v. Olivenhain Municipal Water Dist., supra,

170 Cal.App.4th 1186, the water district entered into a contract committing it to sell and 

transfer water for use at a landfill. (Id. at pp. 1196, 1212.) Further, the contract “set forth 

the specific details regarding [the district’s] 60-year obligation to deliver recycled water 

. . . and the construction required to allow that delivery.” (Id. at p. 1212.) The appellate 

court concluded that the district’s agreement was an “approval” under CEQA because it 

committed itself to a definite course of action regarding its part in the project. (Ibid.) 

Here, in contrast, DTSC’s purported approval did not commit DTSC to any action 

not already inherent in its regulatory authority over the soil remediation project (i.e., 

ensuring humans were protected from contaminated soils). Even if certain activities, 

such as DTSC’s presence at the demolitions or the review of additional radiological 

screening surveys, are considered new tasks for DTSC, we cannot conclude that DTSC’s 

desire to monitor the demolition activities created a potential for environmental impact. 

Parchester Village Neighborhood Council v. City of Richmond (2010) 

182 Cal.App.4th 305 supports our conclusion. In Parchester, a Native American tribe 

sought to recover its tribal lands and build a casino on them. (Id. at p. 308.) The 

appellate court held that “the Tribe’s casino development does not constitute a ‘project’ 

of the City under CEQA because the City has no legal authority over the property upon 

which the casino will be situated.” (Id. at p. 313.) Although the city’s “agree[ment] to 
37

support the Tribe’s efforts” may well have had “ ‘substantial influence’ over the federal 

government’s decision” regarding the acquisition of lands, the decisive factor under 

CEQA was that, if the city instead had “decide[d] to ‘disapprove’ of the project, its 

decision would not be binding.” (Ibid.) Because the city did not have the authority to 

issue the “ ‘pivotal go/no-go approval of this project,’ ” “its refusal to support the Tribe 

could” not “have prevented the casino from being constructed,” and so the casino was not 

the city’s project. (Id. at p. 314.) So too here. While DTSC may have had substantial 

influence over how Boeing carried out its demolition activities, DTSC does not have the 

power to grant “go/no-go approval” of Boeing’s demolition and disposal plans. If Boeing 

had rejected DTSC’s requests to inspect Boeing’s buildings prior to demolition, to 

monitor demolition, or to amend their SOPs, DTSC was powerless to act, and it could not 

have prevented Boeing from going forward with its demolition and disposal activities. 

Thus, there was no discretionary authority DTSC had over Boeing’s program.

E. DTSC’s Review of Boeing’s SOPs Did Not Constitute Direct Activity Under 

Section 21065, subdivision (a).

Plaintiffs argue that DTSC directly undertook an activity that could result in a 

physical change in the environment when it approved Amendment 2 to the SOPs, 

establishing conditions under which Boeing could demolish its buildings, thereby 

constituting a CEQA project under section 21065, subdivision (a). In the writ proceeding 

below, the trial court found the issue forfeited because “points raised in a reply brief for 

the first time will not be considered unless good cause is shown for the failure to present 

them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) 

Respondents argue this issue remains forfeited by plaintiffs’ failure to include this issue 

in their opening brief below and, in the alternative, has no merit.

We exercise our discretion to reach the issue. “[T]he fact that a party may forfeit a 

right to present a claim of error to the appellate court if he or she did not raise the issue in 

the trial court does not mean the appellate court is deprived of authority to reach the 
38

merits of the issue.” (People v. Young (2017) 17 Cal.App.5th 451, 463; see People v. 

McCullough (2013) 56 Cal.4th 589, 593 [“neither forfeiture nor application of the 

forfeiture rule is automatic,” and “[c]ompeting concerns . . . may also cause an appellate 

court to refrain from applying the forfeiture bar”].)

Plaintiffs argue that DTSC’s approval of Amendment 2 constituted a project under 

section 21065, subdivision (a) because the SOP was a regulatory document governing the 

demolition activities, including the determination that “[a]ll demolition waste, including 

the contents of buildings removed during pre-demolition preparations, will be disposed of 

to a Class 1 hazardous waste landfill.” However, the cases cited by plaintiffs do not 

appear to support their argument that DTSC’s approval of the SOPs and Amendment 2 

constituted “direct activity” under subdivision (a). (See, e.g., John R. Lawson Rock & 

Oil, Inc. v. State Air Resources Bd. (2018) 20 Cal.App.5th 77, 99 [modification of current 

regulations qualifies as “approval” of the modified regulations under CEQA, but does not 

address whether it constitutes direct activity]; California Unions for Reliable Energy v. 

Mojave Desert Air Quality Management Dist. (2009) 178 Cal.App.4th 1225, 1240-1242

[the agency admitted its adoption of a rule was a “project” under CEQA; the issue was 

whether it was exempt from CEQA review].)

In addition, contrary to plaintiffs’ claim, the SOPs and in particular Amendment 2, 

do not constitute a regulatory document. Rather, Amendment 2 is a document drafted by 

Boeing and, while DTSC requested the amendment, and made suggestions regarding its 

contents, it is not a regulation. In contrast, the examples of direct agency activities 

provided by the Guidelines include “public works construction and related activities 

clearing or grading of land, improvements to existing public structures, enactment and 

amendment of zoning ordinances, and the adoption and amendment of local General 

Plans or elements thereof pursuant to Government Code Sections 65100-65700.” 

(Guidelines, § 15378, subdivision (a); cf. POET, LLC v. State Air Resources Bd. (2017) 

12 Cal.App.5th 52, 73-74 [it was undisputed that a state agency’s enactment of 
39

regulations constituted a CEQA project; the question was defining the scope of the 

project]; Plastic Pipe & Fittings Assn. v. California Building Standards Com. (2004) 

124 Cal.App.4th 1390, 1412-1413 [concluding a regulation excluding a certain type of 

pipe based on public health concerns was a discretionary CEQA project]; see also 

Guidelines, § 15378, subd. (a)(1).) Encouraging and ultimately agreeing to Boeing’s 

additional procedures as outlined in Amendment 2, is not the equivalent to creating 

ordinances or amending local general plans. 

We also agree with respondents that, contrary to plaintiffs’ claims, any 

concurrence by DTSC regarding the removal of demolition debris to a Class I disposal 

facility does not constitute direct agency activity. First, the decommissioning process 

indicated that residual radioactivity had been removed, and any debris from a 

decommissioned building was no longer regulated. (Cal. Code Regs., tit. 17, § 30100, 

subd. (c).) Moreover, DTSC’s concurrence to remove demolition debris to a Class I

facility simply reflects the policy established in the 2002 executive order governing the 

disposal of materials from decommissioned facilities released for unrestricted use.

Finally, even if we were to assume DTSC’s review of Amendment 2 constituted 

direct activity under subdivision (a), to be considered a “project” under section 21065, an 

activity still must meet the key requirement that it may cause “either a direct physical 

change in the environment, or a reasonably foreseeable indirect physical change in the 

environment.” (§ 21065.) Here, the review of Amendment 2 does not cause a direct or 

reasonably foreseeable indirect physical change to the environment because it does not 

mandate the demolition and disposal activities actually take place. Nor did the SOPs 

cause a reasonably foreseeable indirect change to the environment because the SOPs did 

not mandate the demolition. (Cf. Union of Medical Marijuana Patients, Inc. v. City of 

San Diego (2019) 7 Cal.5th 1171 [ordinance allowing marijuana dispensary in the city 

was a CEQA project because it could result in reasonably foreseeable changes in the 

environment through new construction to accommodate new retail businesses].) Here, 
40

the review considers only additional measures to protect the soil remediation program 

already underway. It does not create new obligations for DTSC’s existing CEQA project.

In the absence of any such showing, plaintiffs’ subdivision (a) argument fails. 

F. DPH’s Act of Decommissioning the Buildings Did Not Constitute a “Project” 

for CEQA Purposes. 

Plaintiffs argue that when DPH decommissioned Building 4100, with knowledge 

of Boeing’s intent to demolish it, DPH provided Boeing with an entitlement to do so. 

DPH maintains that plaintiffs misconstrue the nature of the judgment exercised by DPH 

in the decommissioning process. DPH’s position is that the “only judgment DPH 

exercised was that authorized by section 30256, subdivision (k) [decommissioning 

buildings]: evaluating whether Boeing had properly disposed of radioactive material and 

made a reasonable effort to eliminate residual radioactive contamination, and whether 

Building 4100 was ‘suitable for release for unrestricted use.’ ” Under the law, if the 

licensee has met the conditions of California Code of Regulations, title 17, section 30256, 

DPH “shall” terminate the license. (Cal. Code Regs., tit. 17, § 30256, subd. (k).) There 

are no provisions allowing DPH to consider whether the premises are suitable for a 

specific use including demolition; the question is whether the premises are suitable for 

unrestricted use. Nor is decommissioning an “approval” of any disposition of the 

property because the process is not dependent on any particular intended use of the 

decommissioned premises. (Guidelines, § 15352.) According to DPH, it would be 

impossible for it to issue an entitlement for use through the decommissioning process 

because when it terminated the license for Building 4100 as a location for Boeing’s 

possession or use of a radioactive material, any restrictions placed on the building’s use 

through the licensing process were removed, not imposed. DPH has the better argument.

Boeing’s plans for the building were not a permissible consideration in deciding 

whether the building could be decommissioned. Nor was a planned demolition a 

condition precedent to decommissioning. Any reference to demolition in the license 
41

amendment was simply an acknowledgement that the building was suited for any use, 

which in this case happened to be a planned demolition. Under these circumstances,

DPH did not issue an “entitlement for use” specifically permitting Boeing to demolish the 

buildings when it decommissioned Building 4100. Contrary to plaintiffs’ claims, this 

does not result in “turning a blind eye to the effects of demolition and disposal of 

radiological material.” The decommissioning process means that, as a matter of law, any 

radioactive material has been properly disposed, reasonable effort has been made to 

eliminate residual radioactive contamination, and a radiation survey has been performed 

and demonstrates that the premises are suitable for unrestricted use. (Cal. Code Regs., tit. 

17, § 30256, subd. (k).) To the extent plaintiffs challenge the adequacy of the 

decommissioning process, those claims should have been raised long ago.

Finally, we reject plaintiffs’ related argument that DPH improperly segmented its 

licensing responsibilities from future demolition and disposal activities. While an agency 

must consider the “whole of an action” (Guidelines, § 15378, subd. (a)), we have already 

determined that neither the demolition activity nor the decommissioning process 

constitutes a project for CEQA purposes. In light of this and, given the lack of 

contractual connection between the decommissioning process and the demolition, the 

parties did not improperly segment the two independent activities in violation of CEQA. 

(See City of Santee v. County of San Diego (2010) 186 Cal.App.4th 55, 67-68.)

II

Underground Regulations

Plaintiffs argue DTSC and DPH have ignored the existing rule allowing for 

decommissioning of a radiological facility after “[r]easonable effort has been made to 

eliminate residual radioactive contamination, if present” (Cal. Code Regs., tit. 17 

§ 30256, subd. (k)(2), italics added) and instead have followed “more permissive” 

numeric cleanup standards for radioactive materials. Plaintiffs assert that DTSC and 

DPH have been doing this for decades, prompting a lawsuit in 2002. In the previous 
42

lawsuit, the superior court ordered DPH to not adopt the radiological criteria for license 

termination pursuant to 10 Code of Federal Regulations parts 20.1401-20.1406, which

employs numeric cleanup standards for radioactive materials, without first complying 

with CEQA or the APA. Plaintiffs contend that DTSC and DPH continue to violate that 

prior ruling as well as the APA by relying on four “underground regulations” to approve 

demolition and disposal of radiological structures.

Both DTSC and Boeing assert that plaintiffs forfeited this argument as it relates to 

the decommissioning process. DTSC notes that in the superior court, plaintiffs defined 

the class to which the underground regulations purportedly applied as: “[T]he demolition 

of radiologically contaminated structures, and disposal of the resulting waste.” Plaintiffs 

respond that this claim is not forfeited; the nature of their claims always included the 

decommissioning process as well as the demolition and disposal activities. We conclude 

the claim is not forfeited. Plaintiffs amended their petition to include the 

decommissioning process as part of their claim respondents engaged in underground 

rulemaking. Plaintiffs also included this argument in their superior court briefs.

A. The Four Documents Are Not Underground Regulations Under Tidewater.

A “regulation” is defined as a rule, order or standard of general application 

adopted by a state agency to implement, interpret or make specific the law it enforces or 

administers, or to govern its procedures. (Gov. Code, § 11342.600; Tidewater Marine 

Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 571 (Tidewater).) Generally, state 

agencies must adopt regulations following the procedures established in the APA. These 

procedures, among other things, require state agencies to provide the public with notice 

of proposed regulations (Gov. Code, §§ 11346.4, 11346.5), give interested parties an 

opportunity to comment on proposed regulations (id., § 11346.8), and respond in writing 

to submitted written comments (id., §§ 11346.8, 11346.9). Regulations wrongly adopted 

outside these procedures are known as “underground regulations” and are void. (See Cal. 

Code Regs., tit. 1, § 250, subd. (a); Tidewater, at pp. 572-573.)
43

“A regulation subject to the APA thus has two principal identifying characteristics. 

[Citation.] First, the agency must intend its rule to apply generally, rather than in a 

specific case. The rule need not, however, apply universally; a rule applies generally so 

long as it declares how a certain class of cases will be decided. [Citation.] Second, the 

rule must ‘implement, interpret, or make specific the law enforced or administered by 

[the agency], or . . . govern [the agency’s] procedure.’ ” (Tidewater, supra, 14 Cal.4th at 

p. 571.) But not all agency interpretations are regulations. For instance, “interpretations 

that arise in the course of case-specific adjudication are not regulations, though they may 

be persuasive as precedents in similar subsequent cases.” (Ibid.; see also Alvarado v. 

Dart Container Corp. of California (2018) 4 Cal.5th 542, 555 [interpretations 

“announced in the context of resolving a specific case” are not regulations under the 

APA].)

“The case law does not precisely define the complete standard of review when the 

underlying question is whether the administrative agency promulgated and relied upon an 

underground regulation.” (Malaga County Water Dist. v. Central Valley Regional Water 

Quality Control Bd. (2020) 58 Cal.App.5th 418, 435.) Tidewater suggests that whether a 

public agency has engaged in underground rulemaking in violation of the APA is 

reviewed de novo as to questions of law. (See Tidewater, supra, 14 Cal.4th at p. 572 

[independently reviewing the record and determining, as a matter of law, that the 

disputed policy was an underground regulation].) However, as Tidewater notes, one of 

the two factors for determining whether an underground regulation exists is whether the 

agency intends its policy or document apply to cases generally, which may require factual 

determinations. (See id. at p. 571.) The parties agree there are no factual disputes and 

that a de novo standard of review applies. We agree. (See Malaga, at pp. 435-436 [de 

novo review is appropriate where there is no indication of a factual dispute that would 

trigger any additional standards of review].)
44

Plaintiffs contend DTSC and DPH are using four “guidance documents” as 

underground regulations that governed their approval of Boeing’s decommissioning, 

demolition and disposal activities: (1) Regulatory Guide 1.86 published by the federal 

Atomic Energy Commission regarding termination of operating licenses for nuclear 

reactors. This regulatory guide contains a table identifying “acceptable” radiation levels 

for decommissioned facilities; (2) A document promulgated by DOE, identified as DOE 

Order 5400.5, regarding radiation standards for the protection of the public and the 

environment; (3) Guidelines promulgated by DPH for “Decontamination of Facilities and 

Equipment Prior to Release for Unrestricted Use.” These guidelines are referred to by 

the parties as DECON-1; and (4) A 1991 DPH policy memorandum identified as IPM88-2 outlining procedures to verify facilities where radioactive materials were used have 

been decontaminated to acceptable levels prior to release for “uncontrolled use.” 

Specifically, plaintiffs argue that DPH improperly adopted these guidelines during the 

decommissioning process and that DTSC relied on those documents (as they provided the 

standards for “unrestricted use”) in DTSC’s demolition and disposal decisions.

It is undisputed neither DTSC nor DPH adopted these documents pursuant to the 

APA. DTSC and DPH argue, however, these documents are not regulations within the 

meaning of the APA. We agree.

First, even if DECON-1 and IPM-88-2 once met the definition of a regulation, it 

appears they have not been DPH policy since at least 2002. The other two documents 

announce rules promulgated by two federal agencies, not rules of DTSC or DPH, and 

DOE Order 5400.5 was canceled by DOE in 2011. Moreover, it was Boeing that 

voluntarily proposed the release criteria for decommissioning, demolition and disposal, 

not DPH or DTSC.

DPH argues that Boeing’s proposed criteria was an appropriate way to achieve the 

governing standard for decommissioning under California Code of Regulations, title 17, 

section 30256. In a large-scale decommissioning, like that involving SSFL, the licensee 
45

submits a decommissioning plan including proposed release criteria as a benchmark for 

decontamination efforts, a final radiation survey and a request for license termination. 

(See Cal. Code Regs., tit. 17, § 30256, subds. (d), (f), (g), (h) [decommissioning plans to 

be submitted by licensees and approved by DPH].) Different licensees propose different 

criteria and will not necessarily match the limits in the four documents at issue. DPH is 

free to reject the proposed release criteria. DPH evaluates every proposed 

decommissioning plan to determine whether the licensee has met the conditions of 

section 30256, subdivision (k) by making a “[r]easonable effort . . . to eliminate residual 

radioactive contamination.” (Cal. Code Regs., tit. 17, § 30256, subd. (k)(2).) Indeed, 

DPH evaluates each such decommissioning on a case-by-case basis, without requiring or 

adhering to the four documents or any criteria outside of section 30256. (Cf. Clovis 

Unified School Dist. v. Chiang (2010) 188 Cal.App.4th 794, 803 [rule was intended to 

apply generally where staff lacked “ ‘discretion to judge on a case[-]by[-]case basis 

whether to apply the rule’ ”].) In fact, it appears Boeing sought to use criteria more 

restrictive than the federal standards when it chose to remediate exposure levels 

comparable to background levels. Due to the individualized approach and release criteria 

considered in each potential decommissioning, it cannot be said that these four 

documents are uniformly used.

Moreover, it is well-established that procedures governing one specific company’s 

activity are not rules of general application. (Tidewater, supra, 14 Cal.4lh at p. 571 [to 

be a regulation, the agency must intend its rule to apply generally, rather than in a 

specific case]; Faulkner v. California Toll Bridge Authority (1953) 40 Cal. 2d 317, 323-

324 [resolution regarding construction of one particular bridge not a regulation because 

not rule of general application]; Roth v. Department of Veteran Affairs (1980) 

110 Cal.App.3d 622, 630 [although rule of general application need not pertain 

universally, it must pertain to all members of a particular class].) Here, none of the 

documents “declare[] how a certain class of cases will be decided.” (Tidewater, at 
46

p. 571.) They do not “function[], in both intent and practice, as a rule that must be 

followed prospectively” in agency proceedings. (Alvarado v. Dart Container Corp. of 

California, supra, 4 Cal.5th at p. 556.) Indeed, the documents are not even entirely 

consistent with one another.18 

In support of plaintiffs’ argument that those standards are universally set, they

point to the adoption of one or more of the four documents by General Atomics (relying 

on DECON-1), as well as University of California, Berkeley, Stanford University and 

Hunter’s Point Naval Station (all relying on Regulatory Guide 1.86). Yet the record 

includes evidence of multiple other licensees proposing other criteria. While we 

acknowledge that the rule (regarding release criteria) need not be universally applied, the 

fact that there are so many examples where the criteria were different than those in the 

four documents, weigh in favor of our conclusion that this is not a general rule, despite 

examples of cites where the guidance criteria were followed.19 Indeed, at Berkeley and 

Stanford, those licensees proposed using background levels as the standard for cleanup 

rather than the four documents. And, at Hunter’s Point, the Navy and the US EPA 

selected the radiological release criteria.

Finally, plaintiffs’ reliance on SSFL license amendments, asserting that each of 

these amendments reference and rely upon one or more of the same four underground 

18 Although DECON-1 and IPM-88-2 include the same surface contamination table, that 

table is not consistent with DOE Order 5400.5, which “reserve[s]” values for certain 

nuclides and places one nuclide, I-125, in a different category. Further, Regulatory

Guide 1.86 differs from DOE Order 5400.5 in that it does not “reserve” any categories of 

nuclides, and it differs from DECON-1 and IPM-88-2 in that it places I-125 in a different 

category.

19 Plaintiffs also argue that the record is “bereft of any evidence or analysis or 

consideration whether lower radiation levels than those set in the Guidance Documents 

could practicably be achieved at a given site.” Whether any given site could have “done 

better” in their efforts to decontaminate that site is beyond the scope of this appeal.
47

standards, does not persuade us to conclude that the release criteria here were used in any 

way other than in agreeing to consider them in Boeing’s specific situation.

Case law also supports our conclusion. For example, this case is not like Malaga

County Water District v. Central Valley Regional Water Quality Control Board, supra, 

58 Cal.App.5th 418, where the appellate court held that a template hearing procedure, 

formally “adopted for all cases,” was a regulation subject to the APA. (Malaga, at 

pp. 436-437.) Similarly, in Vasquez v. Department of Pesticide Regulation (2021) 

68 Cal.App.5th 672, a rule applicable to every user of any pesticide product containing a 

particular ingredient was a regulation. (Id. at pp. 687, 689-690.) And in Californians for 

Pesticide Reform v. Department of Pesticide Regulation (2010) 184 Cal.App.4th 887, 

907, a pesticide priority list that would “be applied to all pesticides in the state” was a 

regulation. Here, in contrast, the four documents are not implemented by DPH, do not 

govern any identifiable class of cases, nor have they been required to be used uniformly 

in all decommissioning cases. (Cf. Vasquez, at p. 690 [“ ‘a state regulation that is 

implemented through a private intermediary is still a regulation’ ”].) Accordingly, we 

conclude plaintiffs have not proven DPH is applying an underground regulation by way 

of the four documents.

With respect to DTSC, plaintiffs have not shown that DTSC required compliance 

with the four documents as a rule to apply generally and did not “ ‘implement, interpret, 

or make specific the law enforced or administered by [the agency], or . . . govern [the 

agency’s] procedure.’ ” (Tidewater, supra, 14 Cal.4th at p. 571.) First, the radiological 

release criteria have nothing to do with DTSC’s implementation of the HWCL, which 

governs hazardous waste cleanup for soil and groundwater. (See, e.g., Health & Saf. 

Code, §§ 115060, subd. (a) [DPH authority to license the possession of radioactive 

materials], 114715, 114720 [authorizing DPH to “prohibit the disposal of radioactive 

wastes” in such a manner as would “result in . . . significant radioactive contamination of 

the environment”].) As noted above, the HWCL authorizes DTSC to compel cleanup 
48

actions of hazardous waste contamination at hazardous waste management facilities such 

as SSFL. (Health & Saf. Code, § 25200 et seq.; Cal. Code Regs., tit. 22, § 66261.20 et 

seq.; Health & Saf. Code, § 25187.) However, both thr RCRA and the HWCL 

specifically exclude from the definition of hazardous waste radioactive materials 

regulated under the federal Atomic Energy Act. (42 U.S.C. §§ 6903(27), 6905(a); Cal. 

Code Regs., tit. 22, § 66261.4, subd. (a)(2); see also U.S. v. Manning (9th Cir. 2008) 

527 F.3d 828, 833, fn. 4 [the RCRA does not explicitly allow states to engage in broad 

regulation of the radioactive component of mixed waste].) Thus, when DTSC issued its 

review letter in 2013 stating that the “exposure levels” of the L-85 debris qualified for a 

Class I facility, DTSC was not enforcing an underground regulation but merely reporting 

test results. In addition, it was Boeing that voluntarily proposed using these release 

criteria for decommissioning and thereafter in connection with the demolition and 

disposal and there is every indication DTSC and DPH could have rejected them. 

Accordingly, plaintiffs have not demonstrated that DTSC required Boeing’s compliance 

prior to enforcement of, or compliance with, a law within DTSC’s jurisdiction.

Plaintiffs also assert that by utilizing the numerical standards for release criteria, 

DPH impermissibly deviated from the statutory standard of elimination of all radiation 

that can reasonably be eliminated. In other words, whereas the statutory goal is to 

achieve the lowest amount of residual radiation prior to decommissioning, licensees can 

use the four documents as an upper limit such that when providing their own target 

amount, they simply need not go above the criteria in the document(s). We disagree. 

Contrary to plaintiffs’ claim, even if those four documents were set apart as the standard 

for the maximum limits, that does not necessarily render them regulations or 

incompatible with the requirement that licensees make reasonable efforts to eliminate 

residual radioactive contamination. (Cal. Code. Regs., tit. 17, § 30256, subd. (k).) As 

previously noted, the process is case-by-case, with many licensees committing to cleanup 

standards to background levels in an effort to achieve the goal of elimination. 
49

As a final note, to the extent plaintiffs are challenging the sufficiency of the 

decommissioning process for the buildings completed in 2013, plaintiffs’ challenge is 

untimely. (See Kupka v. Board of Administration (1981) 122 Cal.App.3d 791, 794 

[“Where judicial review of an administrative decision made under the Administrative 

Procedure Act (Gov. Code, § 11370 et seq.) is sought by writ of mandate, the petition 

must be filed ‘within 30 days after the last day on which reconsideration can be ordered.’

(Gov. Code, § 11523)”].) Plaintiffs contend that the chapter of the Government Code in 

which section 11523 is located concerns decisions in adjudicatory hearings before 

administrative law judges and has no application here. We disagree. While the chapter is 

titled: “Administrative Adjudication: Formal Hearing,” Government Code section 11501 

states, “[t]his chapter applies to any agency as determined by the statutes relating to that 

agency.” (Gov. Code, § 11501, subd. (a).) The APA generally governs adjudicative 

decisions by DPH (Health & Saf. Code, § 131071). Thus, with certain exceptions not 

relevant here, a petition for a writ of administrative mandate seeking judicial review of a 

DPH decision “shall be filed within 30 days after the last day on which reconsideration 

can be ordered.” (Gov. Code, § 11523; see Saint Francis Memorial Hospital v. State 

Dept. of Public Health (2021) 59 Cal.App.5th 965, 975.) In addition, it is beyond the 

scope of the instant appeal to review the adequacy of the decommissioning process 

regarding other licensees. 

B. The Release Criteria Did Not Violate the 2002 Writ of Mandate. 

Plaintiffs argue that DPH’s use of the four documents is also a violation of the 

court’s order in Committee to Bridge the Gap v. Bonta (Super. Ct. Sac. County, No. 

01CS01445) stating that DPH cannot adopt regulations under 10 Code of Federal 

Regulation parts 20.1401-20.1406, which essentially establishes numeric cleanup 

standards for radioactive materials, without first complying with CEQA and the APA. 

As we have already concluded DPH is not violating the APA and is not using the four 

documents as an underground regulation, this argument also fails.
50

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(5).) The stay of the Department of Toxic Substances 

Control’s approval of any demolition and disposal activities related to the Area IV 

buildings, issued by this court on February 28, 2019, is vacated upon issuance of the 

remittitur.

 /s/

EARL, J.

We concur:

 /s/

DUARTE, Acting P. J.

 /s/

MESIWALA, J.