Report: State Environmental Agency a 'Problem Child'

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The consumer advocacy group Consumer Watchdog issued a harsh report this week of California's Department of Toxic Substances Control.

Report sources say the DTSC puts vulnerable communities last, citing as an example the handling of last year's Chevron refinery fire in Richmond.

The agency is charged with protecting Californians and their environment from the harmful effects of hazardous waste.

Liza Tucker of Consumer Watchdog is the report's author, and she spoke with KQED's Stephanie Martin.

STEPHANIE MARTIN: Ms. Tucker, your report concludes that even though California has some of the toughest environmental regulations in the nation, enforcement is another story, and you say the Department of Toxic Substances Control is doing a bad job of that. Who did you talk to that led you to that conclusion?
LIZA TUCKER: I talked to a number of people inside this department. It’s a sad fact that they did not feel comfortable coming forward and having their names used. They’re afraid of retaliation. But these are people who have been with the department for quite a long time, and they occupy positions in which they exercise their knowledge. They range from scientists to engineers, geologists, policy analysts, investigators. So these are people who have been with the department for a long time and understand its culture very well, and they care about their jobs and feel they’re being interfered with.
MARTIN: And one thing they said is that culture is part of what they say is a problem at the DTSC. Explain.
TUCKER: Well, they say that the culture is very fearful and risk-averse, that this particular department is very much cowed by the industry it regulates, that it’s rather captive to the industry it regulates, and that it fears the wrath of lawmakers and possibly the Governor’s office as well when it comes to interfering with the business of hazardous waste because it might cost jobs, and that in a fragile recovery especially, that that is a big concern. But it seems to me that you don’t protect jobs and risk the public health. Basically what that boils down to is, “Let’s not risk jobs; let’s risk the public health.” That’s not right. But they describe a culture that has for many years now been quite risk-averse and quite cowed by industry.
MARTIN: One of the most scathing accusations your sources make is that the DTSC puts vulnerable communities last. One of the examples is the way it handled last summer’s Chevron refinery fire in Richmond, which our listeners will remember sent thousands of people to the hospital for smoke inhalation. How in your view did the DTSC drop the ball?
TUCKER: Well, the DTSC in actual fact has extremely broad statutory authority. There is a law here in the state of California that empowers them to actually suspend the permit of a hazardous waste handler for infractions of a number of different laws to do with hazardous waste, hazardous materials and hazardous substances if there is a recurring pattern of violations of those laws, or if there is even a threat to the public health.
Now, Chevron is a gigantic generator of hazardous waste. This particular department actually does have purview over Chevron as a large generator. And so they could have stepped in at the time of the fire and done a number of different things to signal to Chevron that this isn’t going to be business as usual. For example, in the state of California, you’re not allowed to deposit hazardous waste outside of a licensed facility. And you could argue that the deposition of airborne particles that were hazardous waste, by virtue of the fact that they were by-products of burning oil, would have landed – I don’t know where – in the bay or on fields or near people, but certainly not at a facility that was licensed to take in hazardous waste. That could have been one avenue.
It probably could have also issued a substantial endangerment order asking Chevron to cease and desist putting the community at risk with that emission. Chevron also holds permits for its refineries because it has hazardous waste that accumulates on the property. So they could have probably saber-rattled about that particular permit.
There would have been a number of different ways in which the DTSC could have gotten involved, but the DTSC chose not to. They had the right to, but they declined and they basically said, “Oh, it’s the problem of the Contra Costa County health services and the fire department and all the rest of it. We really don’t regulate at the local level.” And in fact, they used that with me for a long time as an argument. They were basically saying, “It’s really the local authorities. We’ve delegated all of our authority over hazardous waste generators to the local authorities and we don’t want to step in and contradict their jurisdiction.”
In actual fact, the Contra Costa health services hazmat specialist actually called the DTSC and asked for help and the DTSC had nothing to offer. They said they might send around a refinery inspector. Evidently they only have two on staff, according to the sources I’ve talked to. They have only ten criminal investigators for the entire state of California, none in Southern California, even though they have an office of criminal investigations. And the only sworn peace officers on staff in the entire California EPA apparatus reside in the DTSC. So they have their priorities, I think, not exactly aligned in the best way.
MARTIN: And bringing it back to the community around the refinery, how did the DTSC inaction, in your view, affect the community?
TUCKER: Well, I think the point is the community was affected by a lot of illness from that fire. People – 15,000 people or so I think – went to the hospital. Breathing problems, eye problems, skin problems. It’s a matter of business as usual. I think the people in the Richmond community are simply used to this.
I think regulation in this state is quite fractured. It’s not just the DTSC. You have the air quality management districts. You have the water boards. All of them kind of protect their own turf instead of cooperating with each other, which is really the way things were supposed to go under the California EPA.
The California EPA itself is very weak. It cannot compel the other regulators to do much of anything. The sad part is the DTSC does have authority over water – hazardous waste in water and in air and certainly in soil. You could have that office of criminal investigations do what it supposed to do, which is multimedia investigations because most situations involving hazardous waste or substance pollution have to do with more than just one medium. They usually have to do with air and water and soil, and this particular division is supposed to be doing so-called multimedia investigations. But it’s being hampered from doing so by the actual management by the Department of Toxic Substance Control, and it cannot compel other agencies to cooperate with it.
The department also seems to be declining to do the right thing in many instances. We have a community down here called Wildomar, which is halfway between Los Angeles and San Diego, and it looks like a complex there, a residential complex of large houses – maybe 3,500 square feet. These houses were built on toxic soil, and the DTSC is really the agency that ought to be on the scene investigating this and instead has left it to air regulators to do all the investigation including the soil.
MARTIN: So where does the buck stop?
TUCKER: I think it all began with the way the legislature set up the whole structure of this. I don’t think it was ever very well thought through and certainly wasn’t codified, so I do think it’s probably time. I don’t think the DTSC is the only portion of the California EPA that struggles with how to regulate pollutants and polluters. And I think perhaps we are at the point now where it’s time to rethink our approach in terms of how that is handled by all the different components.
We already had today a letter from Senator de León calling for an investigation together with Senator Lara from Long Beach responding to the report we put out, and I think it really is time to sort of take a hard look – first at the DTSC, do a financial audit because some things there just don’t square, and replace some of the top managers there who’ve been there since the days of Pete Wilson. And kind of rethink the proper structuring of the DTSC, but also by virtue of looking at that, perhaps of the larger structure of the California EPA.
MARTIN: The department issued a statement today saying your report contains some inaccuracies, and also raises some valid issues, but they don’t go into specifics about either of those points. They did give me a letter dated from Feb. 15 that acknowledges that they need to improve their permitting program. What problems did you find with that program?
TUCKER: Well there are a number of problems with the permitting program. One is that they do let companies operate on expired permits, sometimes for as long as 16 years at a time. That is not okay. They would say that these companies are still bound by the terms of the expired permit, but many things change in the course of those years in terms of approaches to solving some of these problems and so forth. So it’s really not helping anyone including the communities that these companies are located in when they’re operating on expired permits for so long.
The department also levies wrist-slap fines. It fines violations of laws, like cracked and corroded containment systems – secondary containment systems around hazardous waste tanks – or it finds that a spill has taken place, or that a company may be storing three times too much hazardous waste that it’s not authorized to store. It gives them out-of-court, wrist-slap fines away from public view. There’s no transparency, and they might do that again and again and again – maybe five, six, seven times in a row. My position is three strikes and you’re out. The law clearly gives them the authority to revoke these permits if there is a pattern of violations that do not cease, and they simply refuse to do that. They have not revoked a permit in 15 years. These are just some of the problems with the permits.
One more is, often when a permit is granted to a hazardous waste handler who may be treating and storing and disposing of waste, they tell that company that they need to take corrective action – that there’s still something really wrong with their operation. Maybe it’s a spill they never cleaned up, maybe it’s something else. But as a condition of the permit, they’re supposed to do these things, and then what happens is the permit gets awarded, and they don’t do what they’ve been told to do. Instead of taking action against them, following up and making sure that this is enforced, they simply allow the company to thumb their nose at the DTSC for years at a time, even functioning on an expired permit. These things are simply not acceptable. They should be immediately stopped, and there shouldn’t be this fear that if they actually regulate these companies properly that the sky is going to fall.
MARTIN: Liza Tucker, thank you.
TUCKER: Thank you so much Stephanie.
MARTIN: Liza Tucker of Consumer Watchdog is the author of “Golden Wasteland” a report on the California Department of Toxic Substances Control. I’m Stephanie Martin.
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