After years of criticism over lax oversight of polluters, the Legislature and governor have finally taken action and given more enforcement power to the Department of Toxic Substances Control (DTSC). The legislation is a good move forward, but more could be done.
Gov. Jerry Brown signed a package of bills authored by Assemblyman Luis Alejo to help protect the fiscal health of taxpayers in toxic cleanups. The DTSC gets to write off small sums out of $194 million in un-billed or uncollected oversight costs, gets to raise interest rates on uncollected bills, and gets the statute of limitations extended on expired projects. It also gets the right to financial information about the polluter's ability to pay. And it gives the DTSC the green light to revoke permits of serial polluters after three serious violations in five years.
A report by Consumer Watchdog revealed that the scandal-plagued DTSC has taken took a timid approach to polluters and, at times, was heavily influenced by the polluters’ lobby. The recent reforms followed a two-part NBC I team investigation into Boeing’s failure to clean up nuclear waste at its Santa Susana facility and DTSC’s role. The report was based on Consumer Watchdog’s research. Along with the law firm of Strumwasser & Woocher, Consumer Watchdog has also obtained a preliminary injunction against the DTSC to stop Boeing from disposing of nuclear waste in conventional recycling plants. The case over a permanent injunction will go to trial early next year.
But the reform wasn't the complete overhaul that the years of dysfunction mandated. There is plenty of room for polluters to continue to thumb their noses at DTSC unless the legislature passes a bill now languishing in an "inactive file" in the Assembly.
Instead of landing on the Governor’s desk for signature, SB 654, an important piece of hazardous waste legislation authored by Senate pro Tem Kevin de León, was shelved. The hazardous waste industry must have been quietly worked on moderate Dems to kill off any attempt to force accountability onto serial toxic polluters.
The legislation would have put an end to facilities that treat, store or dispose of hazardous waste operating for decades at a time on expired permits or on no permit at all--like now shuttered east LA battery recycler Exide Technologies that slathered communities with layers of toxic lead.
The legislation would have forced companies to reapply for permits two years before their permit expires, and made the Department of Toxic Substances Control (DTSC) say yay or nay within three years. That may not sound like a big deal. But it is. That’s because right now, companies whose permits expire can continue to operate—under the terms of the old permit.
A review of DTSC last year by consulting firm California Personnel Services found that nearly 20 percent of all hazardous waste facilities that treat, store or dispose of hazardous waste operate on expired permits. That’s 117 companies handling 1.8 billion tons of California’s hazardous waste every year.
That’s a great way to ignore improved technologies that regulators could make them consider as part of a permit renewal. That’s a great way to continue avoiding clean up of existing messes that can be written in as the condition of a new permit. That is a great way to avoid putting up the proper amount of money, required by law as a condition of a permit, to perform ordered fixes or to close the facility safely should it come to that.
DTSC now has more tools to work with and the onus is on it to come up with the regulatory criteria for punishing serial polluters. The Legislature has given the agency laws in the past that give it wide ranging authority to revoke or deny permits to serial polluters who break any number of environmental laws, and it has been reluctantly to use them. If DTSC continues to refuse to define regulatory criteria for such revocations, including how serious an infraction has to be, then the Legislature, with our help, must be made to do it.
