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December 6, 2006

Ms. Tam Doduc, Chair
State Water Resources Control Board
1001 I St. Sacramento, CA 95814

Re: Draft SWRCB Order on Waste Discharge Requirements at Boeing for the Santa Susana Field Laboratory, State Water Resources Control Board File A-1653 and A-1737

Dear Chairperson Doduc:

As you are undoubtedly aware, the pollution at the Santa Susanna Field Laboratory and subsequent cleanup issues have been of concern to my constituents and to me for a number of years.  It is, without compare, the most lengthy and complex cleanup issue in my district, and likely one of the most difficult in the state.  I strongly opposed the stay of the Los Angeles Regional Water Board order, issued by outgoing board member Mr. Jerry Secundy, and I was pleased when that stay was vacated.  Now that I have seen the draft order of the State Water Resources Control Board, I respectfully request that this letter be included with the public comment on that draft order.

There are aspects of the draft order that I support.  I was pleased to see that the draft order supports my view that numeric limits in stormwater runoff are acceptable and that the runoff from the site should be characterized as commingled wastewater.

However, you and your colleagues must surely appreciate that the community that I represent will object to the draft order provision that the regional board erred in not allowing Boeing a compliance schedule, which will have the effect of further delaying compliance by an entity with a proven record of environmental law violations at this site.  It is entirely inappropriate that Boeing’s record of misfeasance, nonfeasance,

delay, and failure to produce records results in an order allowing them even more time to comply with water quality laws.  The proposed order is totally inconsistent with the goal of gaining compliance.  It actually goes in the other direction by allowing more of a delay in compliance.

Secondly, the draft order is premised on an erroneous notion that a fire that occurred in 2005 somehow entitles Boeing to a compliance schedule.  In actuality, the fire merely burned vegetative cover and a number of strawbales which Boeing had placed around various water outfalls and which they had labeled their “best management practices.”   However, as my constituents have pointed out, Boeing, itself, testified that every one of these BMPs was replaced within a short period after the fire. Vegetation has quickly re-established itself. The fire is a totally inappropriate excuse for non-compliance.

The draft order also expresses a concern that, somehow, the retention of numeric criteria in the interior outfalls may increase the number of violations and potential administrative liability faced by the discharger.  The goal of enforcement is to enforce the law.  Reason would dictate that it is important to retain, to the maximum extent possible, any potential for enforcement actions against Boeing.  This is not a company with a track record of working with the community or trying to achieve compliance at this site. The use of enforceable deadlines is essential to the eventual cleanup of this site.

I strongly encourage the Board to affirm the regional board order.  If it should choose not to do so, I would like to emphasize that the elimination of the discharge limits in the interior outfalls would undoubtedly compromise the ongoing work of the Department of Toxic Substances Control. Those outfalls are near areas of soil contamination that must be remediated in order to avoid further human health and environmental impacts.  The case before the Board should be considered in its full context, taking into account the work of other agencies.  Boeing’s appeal to the State Water Board is not simply a matter of administrative efficiency or of reducing Boeing’s liability exposure.  DTSC and the public rely on the data from the interior outfalls to ascertain whether the enforceable limits near the point of contamination have been violated. 

The State Board should not adopt a compliance schedule for Boeing.  The case has not been made.  If the State Board is determined, however, to adopt a compliance schedule, it is critical that the compliance schedule be as short as possible. Five years is simply too long. The regional board orders, together with the beginning signs of a more vigorous approach by DTSC, are major signals to the public that our environmental laws should be strictly enforced against polluters.

The evidentiary burden is on Boeing to clearly demonstrate why any compliance schedule should not be as short as possible. Both federal regulations and California law support this requirement, and I urge the State Water Board to unequivocally state this requirement in applying the Porter Cologne Water Quality Act. Under Section 13385 (j) (3)(c), cease and desist orders avoid mandatory penalties only if the time schedule for compliance is “as short as possible.” Had Boeing’s Clean Water Act permit included a compliance schedule, it also would have had to require “compliance as soon as possible.” (40 C.F.R. Sec. 122.47(a)). At a minimum, the State Water Board should affirm to the regional board that Boeing should be held to a schedule that is as short as possible, where “possible” has some credible basis.

If the State Board chooses to use a compliance schedule in this case, the development of that schedule should, at the very least, be delegated to the regional board and the regional board must be directed that any such schedule must be as short as possible.



I respect and appreciate the fact that this site poses many difficult enforcement issues, not only for water quality regulators but also for other agencies and the public.  I would be pleased to provide any assistance you may need as you and your colleagues consider this matter.

Thank you for your consideration in this matter.

Sincerely,



Sheila Kuehl, Senator
23rd District

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