Judge’s Reversal of Cleanup Order May Slow State’s Pollution Fight

A court decision blocking the state-ordered cleanup of an industrial site at Agua Dulce could help polluting companies resist costly cleanups at other California waste sites, according to state and private attorneys involved in the case.

The court case, which involves Space Ordnance Systems’ Mint Canyon plant at Agua Dulce, is the first successful legal challenge of a cleanup order issued under the state’s Superfund program, according to state officials.

Because of the ruling last year by Los Angeles Superior Court Judge Loren Miller Jr., Space Ordnance may never have to carry out a ground-water cleanup at an estimated cost of $726,800.

And if the ruling is upheld on appeal, it could complicate attempts to decontaminate some other sites among the 423 on the state Superfund list, lawyers in the case agree.

Could Be Restrictive

The ruling could “place a restriction on the state’s ability to fashion an appropriate cleanup plan for the different hazardous waste sites in the state of California,” said Deputy Atty. Gen. Donald A. Robinson, who represents state health officials.

Ernie Getto, a lawyer for the firm that filed the challenge, said it might force the Department of Health Services to take a “more practical approach to seeking cleanup,” with “a harder look at a cost-benefit kind of analysis.” Getto represents Allied-Signal, Space Ordnance’s landlord, which would have to share the cost. Allied-Signal argued in court that the cleanup would produce “no meaningful public health benefit.”

The state Court of Appeal may hear oral arguments on the state’s appeal by the end of the summer.

Challenge Filed

Allied-Signal filed the challenge late in 1987 after state health officials directed Space Ordnance, a defense and aerospace contractor, to purge soil and ground water of chemicals at both its Mint Canyon plant and its Placerita Canyon plant 15 miles away.

Space Ordnance, a division of Sherman Oaks-based TransTechnology Corp., came under health department scrutiny in 1984 when a small army of health and law enforcement officers swarmed over its plants in a probe of hazardous waste violations.

The raids turned up evidence that Space Ordnance had improperly stored and disposed of solvent-tainted waste water, including dumping it along creek beds and spraying it from sprinklers. The company eventually paid $300,000 in fines for misdemeanor violations of hazardous waste rules, and two executives served brief jail terms.

2 Plants On State List

Both the Mint and Placerita Canyon plants were put on the state Superfund list of toxic cleanup sites. As with the parallel federal Superfund program, state Superfund sites are considered a threat to health or the environment. Those responsible for the wastes are required to do cleanup work as prescribed by the state. If they cannot be identified, the state can finance the work.

But the Space Ordnance affair produced more legal pyrotechnics than proof of grave environmental harm. And in November, 1987, soon after the state issued a cleanup order for the Mint Canyon plant, Allied-Signal went to court.

Allied-Signal, an aerospace and chemical giant, had just acquired Garrett Corp., which owned and leased the Mint Canyon plant to Space Ordnance. In acquiring Garrett, Allied-Signal also took over its obligation to share in the cost of the Space Ordnance cleanup.

The main ground-water contaminant was trichloroethylene (TCE), a solvent used to degrease metal and a suspected human carcinogen. But even TCE was present only in low concentrations, averaging between 5 parts per billion and 8.5 p.p.b. in the most polluted test wells. Although the state followed an “action level,” or advisory limit, of 5 p.p.b. for TCE in drinking water, no one drank this ground water after 1984, when Space Ordnance switched to bottled water at the plant.

“Ground-water contamination at the site is exceptionally minor,” Allied-Signal argued in court. The $726,800 cleanup was “not justified by the levels of chemicals reported,” it said.

Space Ordnance petitioned to intervene on Allied-Signal’s side, arguing in court papers that carrying out the cleanup would place it in legal jeopardy of violating Proposition 65. Passed by the voters in 1986, the measure bars release into water of cancer-causing chemicals and allows private citizens to sue to enforce its provisions.

Under the state’s order, Space Ordnance was to extract ground water, filter it and return it to the ground, but “not every molecule of TCE will always be removed,” the company said in court papers. As a result, the company could “be exposed to potential civil penalties” under Proposition 65 for following the state’s orders, Space Ordnance said.

The attorney general’s office countered that the Department of Health Services, as “the state agency with experience and expertise” in the area, should have broad authority to direct cleanup work without being second-guessed.

As for contentions that the water pollution was minor, the state said the water was not Space Ordnance’s or Allied-Signal’s to pollute.

State Replies

“The People of the State of California did not choose to have its ground water contaminated by TCE,” the state said. “The People are entitled to have their ground water free of a probable human carcinogen. . . . It makes good technical sense (and good common sense) to remove as much TCE as possible from the ground water now, rather than to allow it to remain there and hope that some future generation will not have to reckon with it.”

But in his order in July, Judge Miller found that the state did not have the “substantial evidence” needed to support the cleanup plan. In particular, Miller said, to require TCE levels to be reduced below 5 p.p.b. was not justified because this was merely an “action level”--an informal guideline adopted without public hearings or comment.

The four-paragraph ruling made no mention of the fact that 5 p.p.b. already was the formal federal drinking water standard for TCE. The level was in the process of being adopted as a formal state standard, and since has been.

And Space Ordnance’s Proposition 65 concerns have since been addressed by a state regulation. The rule makes it legal to put contaminated water back even if a trace of pollution remains.

Many toxic compounds found in soil or water at hazardous waste sites are not yet covered by formal state standards. This has not stopped the state from ordering cleanups, using informal guidelines or its best judgment of health risks.

Little Effect Noted

Still, Miller’s ruling has received virtually no public attention and has not noticeably affected the state toxic waste program, said Bob Borzelleri, a spokesman for the health services department’s toxics control program. Agency officials “are not shaking in their boots over this,” he said.

A ruling by one Superior Court judge is not binding on another. And lawyers for both sides said an impact would be felt only if the Court of Appeal upholds Miller’s decision.

With Allied-Signal challenging only the ground-water filtering at Mint Canyon, Space Ordnance has gone ahead with the rest of the work.

Contaminated soil at the Mint Canyon plant has been removed, said Alan Opel, chief technical officer for TransTechnology, the Space Ordnance parent.

The company has also gone ahead with a $1.5-million cleanup at the Placerita plant, where contaminated soils and buried tanks have been removed, and ground water is being extracted and filtered at a rate of about 15,000 gallons per day to remove chemicals, primarily TCE and benzene. Opel said the ground-water cleanup will probably continue for five years.