Toxics Department Vows to Improve Permitting Program

California’s Department of Toxic Substances Control responds to a critical audit of its hazardous waste permitting program by acknowledging the need to shore up the division, but critics say it fails to spell out measurable plans for improvement

By Vicky Nguyen, Liz Wagner and Felipe Escamilla
|  Thursday, Jan 9, 2014  |  Updated 2:16 PM PDT
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State toxics regulators addressed problems with their office of permitting on Monday — 10 months after the Investigative Unit first raised questions about the way the department grants permits to hazardous waste facilities. Vicky Nguyen continues her series about the Department of Toxic Substances Control in a story that aired on December 16, 2013.

State toxics regulators addressed problems with their office of permitting on Monday — 10 months after the Investigative Unit first raised questions about the way the department grants permits to hazardous waste facilities. Vicky Nguyen continues her series about the Department of Toxic Substances Control in a story that aired on December 16, 2013.

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During the first public meeting of its kind on Monday, leaders from the Department of Toxic Substances Control pledged to make its office of permitting stronger by implementing a set of recommendations from auditors, but didn’t commit to making many immediate major changes.

Addressing members of the public, director Debbie Raphael said that when she first took over as director in May 2011, she began evaluating what programs needed reform.

“What came out loud and clear was a small program in terms of number of people, but a very critical one — our permitting program,” she said.

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Raphael said she ordered an outside review of the permitting division — touted by DTSC leaders as the cornerstone of the department — because she wasn’t confident that staff could take a hard look at the program themselves. After a comprehensive 10-month audit, consulting group California Personnel Services reported in October that the DTSC’s permit process lacks clearly stated objectives and that permit renewals for hazardous waste facilities often drags on too long, taking an average of four years to complete.

Raphael said the results of the review indicated that businesses wanted timely decisions about permit renewals and consistent standards applied evenly across the board, and that members of the public worried that the DTSC failed to “mind the store” — or regulate facilities with histories of environmental violations.

In a draft report the DTSC outlined its improvement plan, consisting of more than 50 tasks, which the toxics regulator plans to implement within the next 12 months. They include beefing up its permitting office, increasing training for current staff, improving the type of data reported to the public and defining standards for permit denials and suspensions, but the department did not elaborate with specific details just how it plans to turn around the permitting program for the better.

Permitting director Brian Johnson said that his mission is to ensure that the DTSC’s permit decisions protect the public and the environment, are enforceable and legally defensible and issued without delay.

“The goal is to issue good permits quickly,” he said, adding that the quality of the permits, and the parameters for enforcement, are paramount. “That is the most important thing we do.”

Currently, a quarter of the state’s permitted hazardous waste facilities — 30 out of 117 — are operating on expired permits and awaiting DTSC renewal or approval.

“That metric will be a challenging one,” Raphael said in the meeting. “That metric is of incredible importance to us and we must be judged on getting that number down in the future.”

But, Raphael warned that the number will probably not decrease in the short term as staff will be committed to putting processes in place before it can bring the permits into compliance. 

While leaders agree that the department needs to hire additional six or seven staffers in the permitting office to facilitate a timely approval process, they could not specify when they plan to add those additional resources. Staff levels have gone from 95 authorized positions in 2006 to just 26 this year.

Maricela Mares-Alatorre was among a handful of residents who drove four hours from Kettleman City to Sacramento to address department leaders. Her community is home to a hazardous waste landfill, which has asked the state for a permit to expand, but Mares-Alatorre said she doesn’t want that to happen until the DTSC completes a health impact study that shows the facility is not affecting the health of people who live nearby.

“We’re in a situation [where] we don’t know what’s caused children to have birth defects,” Mares-Alatorre said, claiming the community has suffered from the death of three babies in the past 14 months. “Regulations are great but when you don’t use them to protect people then they’re not functioning and you need to do something else.”

She also said, “It is very important to us that health is addressed and we feel that it wasn’t.”

Department spokesperson Sandy Nax said in an email that cumulative impacts to the community were examined as part of a “comprehensive review required by the California Environmental Quality Act” and that the review “showed that that the community near this facility faces more pollution burdens than many other cities in the state and residents there may be more vulnerable.”

The Investigative Unit first exposed problems within the DTSC in February, launching two state investigations into dysfunction in the department. Members of the public criticized the department for failing to revoke the permits of so-called “serial violators” — facilities that continue to break environmental laws. DTSC insiders spoke exclusively to NBC Bay Area about their frustration with the lax enforcement standards in the department.

Since February, the toxics regulator has suspended the permits of two facilities — Exide Technologies in Vernon and GEM in Rancho Cordova — but the department refused to disclose whether the DTSC plans to revoke any other permits, citing the policy to “not comment on pending enforcement cases.” In an email, Nax said “every enforcement case is considered on its own merits and fines are assessed accordingly” and that “a facilities compliance history is included in that consideration.”

In its draft report, the DTSC wrote that the department understands the public’s desire to know how enforcement actions are considered in permit decisions, but did not offer any explanation. Instead, the department plans to “evaluate the need to develop a separate policy document” to communicate the decision-making process.

Leaders said that they welcome scrutiny from the public.

“The proof of the pudding is in our actions and not in our words,” Johnson said, asking stakeholders to hold the DTSC accountable for the plans laid out in its draft report.

Director Raphael said her door is always open, though she declined a formal sit down interview request to speak with NBC Bay Area. The Investigative Unit asked the director for her thoughts about the audit before the public meeting.

“There were no surprises in the review,” she said, adding that “being accountable to the public is what’s most important.”

If you have a tip for the Investigative Unit email theunit@nbcbayarea.com or call 888-996-TIPS.

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