Can California Avoid Another Toxic Waste Disaster?
For decades, large red-hot furnaces cooked the lead from smashed batteries at the Exide plant, just seven miles from Downtown Los Angeles, spouting plumes of toxic air that settled on and contaminated thousands of homes.
Exide’s residue remains with us in other ways. It isn’t just that the hazardous waste facility in the city of Vernon has been blamed for causing unexplained illnesses among nearby residents, or even that the bankruptcy agreement inked last year allowed the owners to leave the enormous bill for cleaning up one of the largest industrial messes in state history on California taxpayers.
The ghosts of Exide also haunt the Department of Toxic Substances Control (DTSC) — the agency responsible for managing the state’s nastiest toxic wastes — when it fails in its mission to protect human health and the environment, along with the taxpayer’s wallet.
This is especially relevant when we look toward other hazardous waste plants with their own troubled, poorly regulated records, and there seem to be plenty of such sites.
Whatever changes are made to the DTSC need to be focused on the needs of the communities most affected. Otherwise, when is enough, enough?
A half-decade after Exide closed, a Capital & Main analysis of dozens of permitted hazardous waste facilities in Los Angeles County has found that the department continues to make some of the same regulatory blunders that allowed the Exide disaster to get so bad. These failures are at the heart of a slew of DTSC proposals for funding and reform that Gov. Gavin Newsom has sought to include in the state’s budget for the next fiscal year.
Ten of the hazardous waste plants have expired permits, according to the most recent available documentation. One hazardous waste treatment and recycling facility has been operating on a permit that ran out a quarter-century ago under Gov. Pete Wilson. In the years since, the facility has been cited repeatedly for serious compliance problems.
According to a former DTSC senior scientist’s review of public records, at least four are responsible for soil and groundwater contamination that the department has or should have known about for years or even decades. In such cases, the owners are legally required to prove they have the money necessary to clean up their mess.
As with Exide, which has a cleanup bill that has already topped a quarter-billion dollars, taxpayers could once again be on the hook for cleanup costs in and around other facilities. Environmental justice advocates point out that strict policing of such facilities is particularly vital because the vast majority are clustered in some of the poorest and most environmentally burdened neighborhoods in California.
For longtime critics of the state’s approach to managing hazardous wastes, the findings of the analysis reflect chronic problems within the DTSC well beyond Exide.
Indeed, an independent multiyear review concluded in early 2018, uncovered a string of major systemic failures at DTSC, including the agency’s approach to both permitting and holding operators financially accountable for their lax practices.
The massive reform and funding packages written into the latest state budget includes tens of millions to plug gaping deficits in the department’s two major accounts, which are related to hazardous waste management and cleanup. The budget also establishes a key new oversight board. The goal is to make the DTSC function more smoothly and effectively.
Senior DTSC officials appear to have thrown their weight behind the proposals. But given the ongoing criticisms leveled at the agency for its role as an environmental custodian and recipient of California tax revenues, detractors argue that many of the reforms still don’t properly address root problems.
“It’s clear the DTSC still isn’t doing its job, so why would you want to give them more money?” says Jane Williams, executive director of California Communities Against Toxics. “You’re just rewarding them for bad behavior.”
They may sound like pro forma documents just waiting to be rubber stamped, but hazardous waste permits, which need to be renewed every 10 years, are regulatory linchpins that lay out the standards expected of facility operators.
“They’re super important because they are the foundation for compliance in monitoring, for compliance in enforcement, and for making sure facilities have up-to-to-date pollution control equipment,” says Angela Johnson Meszaros, the managing attorney for Earthjustice’s Community Partnerships Program.
There are, however, 10 hazardous waste permits in L.A. County that have expired, including four within the last two years, four others within five years, and a further two permits that lapsed in prior years, according to the DTSC.
Some of these hazardous waste facilities are plagued by checkered compliance histories, just as Exide was before the extent of its problems became clear.
One such plant is Phibro-Tech, which serves the electronic and water treatment industries, taking in used materials and recycling them to build new products.
According to the DTSC records, Phibro-Tech’s operating permit expired in August of 1996. The department’s records show that since the start of 2015 alone, the facility has been issued 30 class one citations during a series of on-site inspections.
In 2015, plant operators were repeatedly cited for their apparent failure to “maintain and operate the facility to minimize the possibility of fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste.” During a facility walkthrough in September of 2019, regulators reported finding multiple barrels of leaking hazardous waste.
Phibro-Tech is hardly alone.
Exide’s shuttered operations left Quemetco, in the City of Industry, as the only lead-acid battery recycling facility west of the Rocky Mountains. This sprawling plant’s permit expired in September of 2015, according to regulators.
Last year, the operators agreed to pay $600,000 to state regulators for a string of air quality violations.
According to the DTSC’s public records, the plant has received 20 class one citations during multiple inspections since April of 2015.
A major containment building used to store crushed lead-acid battery waste was found to have a hole in it, an ill-fitting door and waste piled to overflowing, among other problems, according to a 2018 DTSC suit filed against the company that included 29 alleged violations of the California Hazardous Waste Control Law.
Representatives for both Phibro-Tech and Quemetco placed the blame for slow permit renewals on the DTSC.
“Phibro–Tech is eager for DTSC to renew the permit. We have been working cooperatively with DTSC to that end. Unfortunately, DTSC staff assigned to the permit has changed on multiple occasions, which has caused significant delay,” a spokesperson for Phibro-Tech wrote in response to Capital & Main.
A Quemetco spokesperson wrote in an email response to questions from Capital & Main that the company “disputes all alleged” violations, and noted that “none of them involve a release of hazardous waste or other impact to the community,” the spokesperson wrote.
The spokesperson also lamented that the company has spent thousands of hours responding to DTSC’s document requests and questions, explaining that “Quemetco’s view is that DTSC should have completed its review of our renewal application years ago.”
In emailed responses to questions, a DTSC spokesperson acknowledged that very technical permit renewals “take years to evaluate and process.” The spokesperson added that the agency’s record was improving. “In 2013, it took an average of 4.5 years to make a final decision. Today, it takes an average of just 2.1 years. Our goal is to reduce that down to 2 years by 2024.”
As for Phibro-Tech, a draft permit decision from the DTSC is slated to come down “this calendar year,” the spokesperson wrote.
The Toxic Price Tag
Financial assurances are like insurance policies that owners must have in order to cover the costs of both cleaning up hazardous waste facilities when they shut down for good, and of any ongoing monitoring and management of waste that may remain on-site after operators hang the closed sign.
There’s also a third purpose of financial assurance — termed “corrective action” — required to pay for the investigation and cleanup of leaks and releases into soil, groundwater, surface water and air in areas not related to the plant’s hazardous waste operations.
At Exide, for example, the process of removing potentially dangerous levels of lead contamination of soil among the nearly 10,000 affected properties surrounding the former plant falls under the umbrella of corrective action, with the estimated cost to California taxpayers expected to top some $650 million.
Critics of the way hazardous waste facilities are policed point to what they see as deep cracks in the system’s framework. For one, financial assurances geared toward corrective action typically aren’t required until an environmental fix has been officially decided.
But the regulatory process aimed at evaluating the extent of the environmental damage, and then assessing the best way to mop up the mess, can take many years and involve multiple lawsuits, which can leave the door open for operators to escape legal responsibility. Indeed, rather than shoulder massive cleanup costs, the owners of Exide filed for bankruptcy — an enticing route for polluters aware of how certain laws can be twisted to benefit such a company.
Capital & Main asked retired DTSC senior geologist Phil Chandler, who has decades of permitting experience, to examine the DTSC’s public records for numerous waste facilities in L.A. County.
According to Chandler, there are at least four facilities at which the DTSC should have already required the operators to provide “corrective action” financial assurances. One is a fuel-blending facility near Downtown L.A. with a permit that expired in June of 2018. Another is a former plant in Gardena, officially closed in 1993, that is still undergoing groundwater and soil remediation.
Quemetco, which started operating in 1959, is currently embroiled in a battle over who’s legally responsible for residential soil lead contamination in the surrounding community. The crux of the issue pertains to historic emissions from before 2008, when the facility installed a pollution-slashing device. But documents suggest that the agency knew about potential off-site lead contamination in the early 1990s.
Quemetco denies that it’s responsible for off-site contamination that requires a fix. “The results of DTSC’s extensive soil sampling confirm Quemetco’s operations have not affected soils in neighboring areas,” a company spokesperson wrote.
Chandler also mentioned US Ecology, a plant in Vernon that deals with highly corrosive commercial acids, caustic solutions and other toxic metal-bearing wastes. According to the DTSC, a prior cleanup has been completed and no further action is required “at this time.”
But Chandler raised questions about the thoroughness of the department’s investigation of possible soil contamination from what he noted could be spills and leaks on the permitted site, apart from the area already cleaned up.
Sean Hecht, co-executive director of UCLA’s Emmett Institute on Climate Change and the Environment, highlighted the possibility that there is “contamination we haven’t discovered” around various hazardous waste facilities in L.A. County because facility owners and regulators don’t have clear enough incentives to track pollution while plants are operating.
What’s more, even when facilities have posted financial assurances, Johnson Meszaros warns, they can be for amounts that are far too low. The “closure” and “post-closure” costs for Exide are tens of millions of dollars. Quemetco has fronted $8.8 million in closure-related financial assurance. “That’s obviously not enough,” Johnson Meszaros says.
Quemetco disagrees. “The vast majority of the significant closure issues that DTSC is facing at Exide simply do not exist at Quemetco, rendering any comparison between closure costs of the two facilities meaningless,” a spokesperson wrote.
When asked about the system to hold polluters financially accountable, the DTSC pointed to “several improvements” in the proposed budget that include expanding cost-recovery requirements to unpermitted facilities.
The Department of Toxic Substances Control often fails to make the opaque universe of hazardous waste, with its complex maze of acronyms and arcane regulations, accessible to the public. Important documents are frequently missing from its public website or uploaded late.
Confusion also swirls around the department’s Violations Scoring Procedure — known as a VSP score — which is a system designed to allow the public to quickly assess a plant’s disciplinary record.
In a nutshell, the system rates a facility by calculating scored violations for compliance inspections over a 10-year period before dividing it by the number of inspections conducted. But the rollout of the program has been beset with problems, with industry fighting back against what it deems a needlessly punitive approach that fails to accommodate the nuances of running a hazardous waste facility.
Conversely, environmental advocates argue that the VSP system is designed to obscure the true risks a facility might pose. A proposed law would have ensured total violations scores are no longer divided by the number of inspections.
Under this system, Phibro-Tech and Quemetco, both of which currently have a “conditionally acceptable” VSP score, would be deemed “unacceptable,” according to Earthjustice’s calculations. Two other facilities in L.A. County — Veolia ES Technical Solutions and US Ecology — would be similarly downgraded from “acceptable” to “conditionally acceptable.”
State legislators recently killed that bill, but the proposed budget includes nearly $3.5 million for the VSP program, and environmental advocates are pushing for that money to be contingent upon modifications to its design. Elsewhere in the budget, the department is set to receive some $35 million in general funds to fill major deficits in its two major accounts. It also includes plans to implement an oversight board, an idea floating around Sacramento for a number of years.
According to Ingrid Brostrom, assistant director of the Center on Race, Poverty & the Environment, whatever changes are made to the DTSC need to be focused on the needs of the communities most affected. “If things don’t get better, we’re going to have to have serious conversations about at what point are the failures too much,” she says.
Capital & Main
Co-published by the Sacramento News & Review.