Right now, bills are moving through the state legislature to force our top toxics regulator to decide when hazardous waste polluters lose their permits, and to create internal and external oversight of the scandal-plagued Department of Toxic Substances Control (DTSC).
The question is, will they all pass the legislature, and will Governor Jerry Brown veto any of them as he did a powerful piece of DTSC reform legislation authored by Senate pro Tem Kevin de León last year.
DTSC has steadfastly refused to deal administratively with serial polluters. It has historically cut polluters endless breaks. It has allowed dozens to operate on expired permits lacking updated rules of the road, and levied wrist slap fines instead of using its broad powers to suspend, revoke, or deny them permits for breaking any number of state environmental laws.
Just think Exide Technologies, the lead battery recycler that was allowed to spew lead and arsenic all over East Los Angeles for decades — without ever getting a permit at all. The site will now cost hundreds of millions to clean up—and taxpayers will be on the hook for it because DTSC has never imposed financial accountability onto polluters as state law requires. It required Exide to put up only a fraction of what was really necessary to close and clean up as a condition of operation.
Here are the bills and other maneuvers to reform DTSC:
•The budget Governor Brown approved in May creates a three-person, independent review panel to oversee DTSC's permitting, enforcement, and fiscal management. The legislature and Governor will appoint a community representative, a toxic materials expert, and a local government management expert to that panel.
•Senator de Leon’s SB 654 would force companies to submit complete applications for permit renewals at least two years prior to their expiration. DTSC would be forced to grant or deny them within 36 months. The independent review panel will review them. It's currently on the Assembly floor.
•Senator Ricardo Lara’s SB 673 establishes a DTSC California Communities Committee composed of 13 members from communities affected by toxic pollution to make recommendations on practices that have benefitted polluters over the public. The Senate, Assembly and Cal EPA will appoint them. The legislation also forces DTSC to determine how many violations it takes for a polluter to lose or be denied a permit. DTSC has never defined that, and has used this as an excuse to virtually never revoke or deny one. This bill is also on the Assembly floor.
•A package of four Assembly bills by Assemblyman Luis Alejo addresses $194 million that DTSC failed to collect or assess polluters for its oversight work on cleanups. The package increases interest rates DTSC charges polluters on unpaid bills, and writes off missing sums of $5,000 or less. The package also adjusts statutes of limitation on cost recovery. It's sitting on Governor Brown's desk now for signature.
If passed and signed, these bills are good steps for reform. But here’s the rub. The State of California appears not to want to address the massive fiscal failure of DTSC to force polluters to upgrade their equipment to cut pollution and to ensure that polluters have the funds to clean up as a condition of operation. Instead, DTSC allows egregious serial pollution in exchange for what they see as a public service. Sure, recycling is good. But it's not green. Who ever said we are supposed to accept the poisoning of people in exchange for the commercial enterprise of battery recycling or metal shredding or any other dirty activity that threatens public health?
Laws are only as good as they are written—and these bills do nothing to ensure that Californians are protected from fiscal harm. Right now, the cleanup of Exide is estimated to cost $200 million to $400 million. Where will that money come from? DTSC never required Exide to put up nearly enough money as a condition of operation, as the law requires, to cover the true costs of closing a facility like this and cleaning up the mess. And it never required Exide to show them the money for ordered corrective action.
Ironically, California has some of the toughest environmental laws in the country. Trouble is, DTSC ignores them. The only way to protect Californians from toxic fiscal harm is for the department to be forced to follow them. California’s Health and Safety Code requires that companies show they have enough funds to cover closure and ongoing maintenance as a condition of their operation. DTSC consistently lowballs the required amounts. The law also requires companies to put up the money to perform ordered corrective action up front. DTSC studiously avoids this, though such costs can be easily estimated.That's why cleanups take decades, or don't happen at all--polluters have no skin in the game.
Somehow Sacramento hasn’t gotten the memo—or doesn't want to read it.
