Panel Serves Up Tepid Recommendations For Reforming The Toxics Agency

While Governor Jerry Brown vetoed Senate pro Tem Kevin de León’s signature legislation a year ago to revamp the Department of Toxics Substances Control (DTSC), he approved funds for an Independent Review Panel to advise what to do with the profoundly dysfunctional agency. In vetoing the powerful legislation, Brown signaled that he wants business as usual. Nonetheless, the panel’s first set of recommendations to the legislature takes some steps toward reform but doesn't provide a true blueprint for it.

The most powerful statement by the panel is the finding that more half of its 119 permitted facilties will be runnning on expired permits by 2020, meaning that the DTSC gets 50% or an F for not keeping on top of hazardous facilities that threaten our communities with toxic contamination. If you cannot revisit and update a permit, you cannot regulate because there are no rules of the road for polluters.

Many of the panel's recommendations fail to wow, but there's some redemption in them. Here's a review, one thumb up:

• The panel recommends throwing more money and more bodies at the DTSC. Specifically, the panel is concerned about insufficient funds to clean up “orphan” sites where no responsible party can be identified, and for superfund sites that the US EPA is transferring to the state. But no amount of appropriated money will be sufficient for this purpose.

The only way sufficient funds can be generated is if the DTSC does its assigned job of enforcing environmental laws. The fines generated by enforcement actions are used to replenish orphan funds. Enforcement at DTSC has been decimated through the concerted elimination of positions in the agency’s Office of Criminal Investigations, the only such arm under the California EPA with sworn peace officers on staff.

The panel directs the DTSC to provide statistics, such as how many environmental cases are being referred to the State’s Attorney General’s Office. But so far, there is not a word about beefing up enforcement taken against serial polluters—which is the central most troubling aspect of DTSC’s mismanagement. How about hiring more badges, if you want more enforcement? 

• The panel recommends that the DTSC require companies receiving hazardous waste facility permits to set aside adequate amounts of money for “corrective action,” in other words for cleaning up their pollution. Facilities are already required to put up money for post-closure decommissioning of equipment and ongoing maintenance at sites where  pollution that can seep out for centuries. A 2006 Legislative Analyst Office Report on financial assurances for such facilities reported that in just one instance— that of the BKK Landfill site in West Covina — the owner's bankruptcy left California holding the bag. In one year alone, the legislature had to appropriate $14 million to cover maintenance. 

The problem at the DTSC is that it routinely fails to demand that companies put up nearly enough money to decommission and maintain facilities, and virtually never demands that they put up the money to cover corrective action. Exhibit A is Exide Technologies. The shuttered lead battery recycler never put up enough money for closure, and none for corrective action--both of which should have been required in sufficient amounts as a condition of operation. The $38 million the company was finally forced to set aside is gone and the clean up of up to 10,000 homes is stalled while children continue to play in hazardous waste levels of lead.

The question is who will determine what “adequate amounts of money” are for corrective action, closure, and maintenance at hazardous waste facilities. It should not be the utterly financially incompetent DTSC, and this panel has to admit that and designate a mechanism whereby independent professionals hired directly by the agency make those estimates and the companies pay for them. The problem is the lack of will, not way.

• The panel recommends transparency in enforcement actions that are taken, including orders and settlements, in one tab on the DTSC’s website. Ditto for CEQA notices and permits. Bravo if that ever happens, but how can we trust DTSC to do what it has the power to do right now but has never done? It's got to be mandatory under penalty of perjury. Here's an agency that allows a supervising toxicologist to email racist, derogatory remarks about communities he decides the state doesn't need to clean-up. He's still on the job, and that sends the wrong message to communities.  

Until the the culture of the DTSC is reformed, the goals outlined by the panel to  ”improve public outreach,” will remain just that. Resentment will continue to fester in communities that know they are not getting the thorough cleanups that they deserve.

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