2/21/13 UPDATE: Lawmakers are now demanding a Senate investigation into the Department of Toxic Substances Control after our investigative report exposed flaws in the agency.
Chair of the Senate Appropriations Committee and State Sen. Kevin De Leon, 22nd District, sent a letter to DTSC director Debbie Raphael on Feb. 21, 2013. “I have asked for an investigation by the Office of Oversight and Outcomes into the allegations in the NBC and Consumer Watchdog reports,” wrote De Leon. He referred to the our investigation and wrote, “…it’s disturbing to see current employees feel compelled to mask their identity out of fear of retaliation for discussing DTSC enforcement practices.”
Sources inside the Department of Toxic Substances Control say the agency has a dirty secret: Regulators are falling down on the job and public health is at risk because of it.
Two high-ranking DTSC employees with more than 40 years combined in the department told NBC Bay Area’s Investigative Unit that people would be outraged if they knew what was really happening to companies that pollute.
“People are getting sick, people are dying and community members are crying out,” said one source. “We’re not doing near enough; in fact, we are allowing it to happen.”
A second source believes the “expectation the public has of being protected is not being served.”
NBC Bay Area is not naming the DTSC sources because they fear retaliation.
The DTSC is a state department charged with protecting Californians from toxic substances. It licenses 118 waste facilities that treat, store or dispose of hazardous waste and oversees more than 100,000 transporters or generators of hazardous waste. Sources pointed to Newark-based motor oil recycler, Evergreen Oil, as an example of how the department has allowed a serial violator of state and city environmental laws to continue to operate.
The 25-year-old company has a history of problems, including a March 1989 oil spill into the Alameda Flood Control Ditch, a March 2011 fire that shot flames hundreds of feet into the air and a July leak of hazardous fluid that sent workers pouring out of the facility.
For nearly three decades, people who live near the facility have filed complaints against Evergreen Oil with the city of Newark, the Newark Fire Department and Bay Area Air Quality Management District. NBC Bay Area obtained hundreds of complaint logs from neighbors reporting sore throats, difficulty breathing and nausea from what they call noxious odors wafting from the facility.
“The odor is like an oil; a rancid oil, not like a clean oil,” said Rose Mary Waddel, who lives less than a mile from the facility. “Sinuses would burn and you just didn’t feel like you could work outside.”
Neighbor Lori Lowe said she feels like her pleas to regulators for answers are falling on deaf ears.
“I don’t think they are being regulated well at all,” Lowe said.
Evergreen Oil has been repeatedly cited and fined by multiple local agencies for everything from odor releases to chemicals like arsenic in wastewater that exceed legal limits. According to sources, the DTSC could take strict action against Evergreen, but instead the department has chosen to levy small fines against the company. Consent orders signed by the DTSC and Evergreen Oil show that between June 2006 and December 2012, the department fined the company a total of $69,500 for violations such as failing to prevent waste from leaking into the soil.
The DTSC maintains it has limited oversight over facilities like Evergreen Oil where multiple agencies have authority.
“We are trying to pawn off our responsibility,” said the first DTSC source, who added that the department should be taking the lead in environmental regulation.
In 2000 when the DTSC accused Evergreen Oil of illegally burning halogen-rich light ends, the company settled with the department for $825,000. Instead of cash, the settlement authorized the DTSC to give Evergreen Oil a break. The agreement allowed the company to apply to pay nearly half of its fines in equipment donations and hazardous waste collection services to the city of Newark.
A spokesperson for Evergreen Oil said the company had no comment.
“These fines amount to a pinprick on the hide of an elephant,” said Liza Tucker, author of a scathing new Consumer Watchdog report about the DTSC called Golden Wasteland. “People inside know where there is extensive pollution, in some of these instances, that can harm people and they do nothing about it and that is outrageous.”
Tucker said the DTSC has “every right under the law” to suspend permits “if there is any kind of recurring pattern of violating these hazardous waste laws.”
For weeks the Investigative Unit had requested an on-camera interview with the DTSC director, Deborah Raphael, or anyone else from the department who could address concerns raised by department employees and community members. The agency reneged on its offer to allow NBC Bay Area to interview the heads of enforcement and permitting, and in an email wrote that the DTSC is “working directly with stakeholders and those who have raised concerns. An on-camera interview on such a complex issue will not serve this discussion.”
NBC Bay Area caught up with Raphael on a public street in Sacramento to get some answers.
When asked what she would say to people who feel like their health is at risk, Raphael said her door is always open, and that if people who work for her aren’t responsive to community concerns she wants to know about it. When asked what letter grade she would give the permitting and enforcement programs, she said she couldn’t give them a letter grade and that’s why she has ordered an assessment.
“We are looking at permitting and enforcement programs,” she said, “and in fact we’re launching a permitting evaluation where we’re going to be asking hard questions of ourselves and asking where we could do a better job.”
A day after the interview, Raphael sent out an internal memo to staff stating that 22 businesses are currently working with “outdated permits.” She wrote “critics have complained the department does not have clear guidelines for when to deny a permit” and that companies “complain that standards are unevenly applied.”
A Southern California hazardous waste recycler called Phibro-Tech has come under fire by residents in Santa Fe Springs for operating under a DTSC permit that expired 16 years ago. According to DTSC regulations, permits are grandfathered-in and valid until the agency makes a decision whether to renew them. A Phibro-Tech spokesman said the DTSC issued the company a draft permit in 2010 and that the company is working with the agency to renew the permit.
Residents also believe the hazardous waste recycler Phibro-Tech is poisoning their groundwater with hexavalent chromium—the same chemical at the heart of the movie Erin Brockovich.
“My family had five members and four of us had cancer,” Santa Fe Springs resident Shirley White said at a DTSC town hall meeting in January.
In a letter issued to KNBC, NBC Bay Area’s sister station in Los Angeles, Phibro-Tech says it didn’t cause the groundwater contamination but that the company is cleaning it up.
DTSC insiders are also calling for a review of the way the department tracks toxic waste. One DTSC source says when it comes to the transportation of hazardous waste the department does not always know which toxic substances are going where.
The Hazardous Waste Tracking System generates reports on hazardous waste shipments for generators, transporters and disposal facilities. The Investigative Unit analyzed the most recent 13 years of hazardous waste tracking system data and found that 44 percent of the entries detailing types of hazardous waste were listed as blank, unknown or invalid.
“If the data is missing or wrong who is looking to see if you’ve got a shipment of Methyl-Ethel-Death going to Disneyland on Bin Laden Trucking?” said the second DTSC source.
Part of the problem could be the DTSC staff itself. A state audit by the California Department of Human Resources found that the department has a misallocation error rate of 59 percent, which according to the DTSC insiders, means that people were given positions for which they were not qualified. According to the report, that rate is six times what the state says is acceptable.
Ultimately, the first DTSC insider says, the department needs real reform that involves “accountability, transparency and results.”
Tucker agrees that reform is overdue.
“I think sunlight is the best disinfectant,” she said. “It’s better to put problems on the table so we can change them—so that it sends the right message to industry.”
Raphael promised to sit down with the Investigative Unit in the next two months after her assessment of the department is complete to discuss the results of the permitting and enforcement reviews and to address the concerns raised by her employees and Californians.
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