As the agency rolls out a $500 million clean up program, it must navigate skepticism from environmental experts and the public.

By Dan Ross, Capital & Main

This story is produced by the award-winning journalism nonprofit Capital & Main and co-published here with permission.

As Gov. Gavin Newsom described it, a set of legislative reforms and financial plugs to the Department of Toxic Substances Control (DTSC) — the agency responsible for the state’s most dangerous materials and wastes — would prove a huge boon for the state, vulnerable communities in particular. “In the California Comeback, no one is being left behind,” he enthused after the bill was passed last year.

But Luis Olmedo, executive director of Comité Cívico del Valle, Inc., a grassroots environmental group, is highly skeptical after living and working for more than four decades in a low-income community in Imperial County surrounding a toxic site. Olmedo questioned the adequacy and ultimate intent of some of the reforms, which include $500 million for cleanups in vulnerable neighborhoods.

“I have never seen where disadvantaged communities are that important” to the DTSC, he said.

These diametric views epitomize the critical juncture for the agency as it seeks to execute its new mandate and justify a newly swollen budget against a backdrop of ingrained public distrust.

More than a dozen former DTSC officials, key environmental figures and impacted community members outlined to Capital & Main what they see as serious ongoing issues within the department unaddressed in the reforms. They include a flawed approach to the investigation and cleanup of toxic sites, a pattern of putting industry interest over public health, and bureaucratic inefficiency. These frustrations spilled over last August in Sacramento when protesters confronted senior DTSC and CalEPA officials about the agency’s record.

Capital & Main requested an interview with the DTSC director, Meredith Williams, who declined. In response to some of the criticisms leveled against the DTSC, a spokesperson, Allison Wescott, outlined in an email the agency’s general approach to site assessments, investigations and cleanups in accordance with state and federal guidelines. Wescott also pointed out the agency’s complicated task, writing how “not all contamination falls neatly into a circle.”
 

Do Reforms Go Far Enough?

For years, the DTSC has been the subject of concerted blowback for ongoing failures, both proven and not. In 2013, Consumer Watchdog issued a damning report on the DTSC that found it was deferential to industry interests due to a “revolving door between regulators, lobbyists, and lawyers.” Between 2015 and 2017, an independent panel conducted an exhaustive review of the agency that ripped the curtain back on major institutional problems. Last year, a Capital & Main investigation into the agency’s oversight of L.A. County–based hazardous waste facilities found repeated issues of lax enforcement and permitting problems. Currently, around 25% of the state’s top-tier hazardous waste facilities have expired permits, according to the DTSC’s public online records.

The independent review panel was also charged with recommending key fixes, some of which were instituted last year as part of a package of DTSC reforms, including the restructuring and increasing of hazardous waste handling fees. The fee reforms are expected to add some $104 million annually in revenues to help reverse significant accounting problems within the agency’s two major accounts. Last year alone, the legislature appropriated more than $40 million of general funds to keep these accounts in the black.

Arguably the most anticipated review panel recommendation formally realized last year was the creation of a new Board of Environmental Safety to oversee the agency, including an office of the ombudsperson to receive and evaluate complaints and suggestions from the public, before then reporting its findings and recommendations to the DTSC. The board, however, is still months away from taking full shape.

The governor recently announced his three appointees, pending Senate confirmation. They join Georgette Gomez, an expert in public health. DTSC spokesperson Barbara Zumwalt says the chairperson will likely first select an executive officer who is responsible for hiring the board’s support staff — a process expected to take until April or longer. The board’s rules of conduct and operating procedures will not be finalized until it has “been seated and convenes as a body,” Zumwalt wrote in an email, adding that the DTSC has studied operating procedures of other comparable state boards “to accelerate their adoption of their own set of operating procedures.”

While the board remains in its infancy, the DTSC barrels along with implementing the $500 million taxpayer-funded Cleanup in Vulnerable Communities Initiative, passed last year to accelerate the investigation and cleanup of contaminated sites. As first proposed, the cleanups were to facilitate future affordable housing redevelopments. In the end, legislators prioritized the investigation and cleanup of sites in communities with “high cumulative environmental burdens,” while leaving the end use of these sites open.

Of that pot of money, more than $250 million is available in community grants for local governments, nonprofits and Tribes to conduct environmental investigations and cleanups. The full application process has already opened. There’s another nearly $150 million for the DTSC to identify, assess and, in some cases, begin cleaning up sites associated with the dry cleaning industry, notorious for its prodigious pollution footprint. The DTSC estimates 7,500 current or former dry cleaners in the state, many of which are in disadvantaged neighborhoods.
 

“The scale of the cleanup needed in California is daunting,” said director Williams at a DTSC online forum last November. “With these funds, you have entrusted us with the protection of California’s most vulnerable communities.” But can they be trusted?

The jury’s out, says Angela Johnson Meszaros, the managing attorney for Earthjustice’s Community Partnerships Program. That’s because the state Legislature failed to make broader policy changes to what she sees as the DTSC’s flawed approach to toxic cleanups, including to the department’s practice of leaving elevated levels of toxic waste in place. Everything about the reforms was “status quo, and the status quo doesn’t work,” she added. Earthjustice was one of dozens of key organizations to oppose the reform bill last year, in part because the oversight board fails to give the public a decision-making role at the DTSC. “The status quo has been harming people for decades,” says Meszaros.

For regulators, dry cleaners pose a major headache due to the difficulty and costs associated with removing toxic dry-cleaning chemicals and solvents from groundwater, where environmental conditions are constantly changing.

“It’s typically an expensive task to have a good understanding of these large complex sites,” said Lorne Everett, a world-renowned expert in groundwater contamination and partner in the environmental consultancy firm LEA Environmental. That’s one reason why the DTSC has been historically slow to act on cleanup and enforcement of these polluted sites, he said. But as environmental science has improved over the years, so too has the DTSC’s approach to cleaning up polluted groundwater, he added, and new state guidelines on indoor vapor intrusion — a problem commonly associated with toxic dry-cleaning chemicals — can only help.

“Are they perfect? I don’t think they’re perfect,” Everett said of the DTSC. “But I do see improvement.”

Not so for Jane Williams, executive director of California Communities Against Toxics and a mainstay of California’s environmental movement. The DTSC, she said, exploits the complexity of polluted sites — especially those in poorer neighborhoods — to confuse the public and engineer cleanups that put industry-stakeholder bottom lines ahead of human health.

“I call it ‘don’t test, don’t tell,’” she said, pointing to controversial cleanups like that at Treasure Island in the San Francisco Bay, a former nuclear training site now touted as a fix to the city’s affordable housing crisis. “If you don’t test for contamination, you’ll never find it.”

Dan Hirsch, president of the Committee to Bridge the Gap, a nuclear industry watchdog nonprofit, is a fierce critic of the agency’s oversight of the Santa Susana Field Laboratory cleanup. He describes the DTSC as “among the most captured and dysfunctional regulatory agencies” he has seen. “It is simply cheaper for a polluter to hire a well-connected lobbyist, who may be a former DTSC or CalEPA official,” he said, “than it is to control their emissions, their releases, and to meet their cleanup obligations.”

In the same vein, DTSC critics voice serious concerns that the state’s builders and developers maintain an outsized influence on the department. Though the cleanup initiative no longer prioritizes the building of affordable housing on remediated land, a separate state infill infrastructure grant program receives a possible $500 million in one-time general funds in this year’s budget to prioritize parcels in areas including contaminated brownfield sites, for example.

Jane Williams calls it “a direct subsidy for the developers.” This, when the California Building Industry Association — a statewide trade association representing thousands of member companies including homebuilders, trade contractors and engineers — is a political behemoth in Sacramento, having spent over $1 million in lobbying during the first three quarters of the current legislative session alone.

“The DTSC is captured by developers,” said Bradley Angel, San Francisco–based executive director of Greenaction for Health and Environmental Justice, an environmental advocacy nonprofit. “They are clearly working to help in many cases luxury upscale developers build housing on toxic sites that aren’t going to get properly cleaned up.”
 

But Michael Lane, state policy director with the San Francisco Bay Area Planning and Urban Research Association (known as SPUR), takes a more positive tack. He said the DTSC’s new mandate represents a noticeable step forward for the troubled agency.

“The Legislature sent a clear message that business as usual is unacceptable and it will monitor progress and improvement at the Department like a hawk,” he wrote in an email. “We must have a new and improved DTSC and the oversight board is essential to accomplish that goal.”
 

Dramatic Ramp Up in Staffing

Public frustration with the DTSC is telling, considering the agency has made community involvement a major pillar of its success.

In its Strategic Plan for 2020–2024, for example, the DTSC promises to “create and enhance partnerships that focus on community-based and indigenous-led solutions.” A key conduit of that approach is the DTSC’s Office of Environmental Equity, under which sit three DTSC community programs for environmental justice, public participation and Tribal affairs. Some key employees within the Office of Environmental Equity have recently left, including the assistant director at the head of the table. Indeed, a significant percentage of positions are vacant, according to the December organization chart, though some of these vacancies have been due to underfunding.

“There are so many problems that go back so far, there’s so much distrust, how does one go about rebuilding that trust?” said Ingrid Brostrom, assistant director of the Center on Race, Poverty & the Environment.

One way is through a massive hiring drive. The department’s budget change proposals for this year request funding for 260 new permanent positions across the agency, including at least six new positions in the Office of Environmental Equity. This, at a time when California businesses and many state agencies are struggling to hire new employees.

Not everyone agrees that more staff is the solution.

“It’s like the cartoon where there’s 20 guys at a Caltrans project, one guy with the shovel and the other 19 telling him how to dig,” said Maureen Gorsen, DTSC director between 2006 and 2009. She now works as a lawyer for a legal firm that represents industry interests. The department has long been “gunked-up” with multiple layers of bureaucracy, she added. “They’ve actually made themselves so myopic in the way they’ve organized themselves, even they don’t know how myopic they are.”

In response to Gorsen’s comments, the DTSC spokesperson, Wescott, wrote that “It’s now 2021, and subsequent DTSC directors have changed the patterns that may have been in place under Gorsen.”

Current director Williams has been “tireless in initiating changes at DTSC,” Wescott added. “She has led outreach efforts to the Administration and Legislature that have shown the chronic underfunding of DTSC mandates. This has led to substantive reform Legislation, which is in the process of being implemented.”

In the same vein, Assemblywoman Cristina Garcia, a prominent champion of the DTSC reforms in Sacramento, urges patience. “Trust is earned,” she said, “and trust takes time.”

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