State agency slow to protect public from toxic waste

One summer Saturday in the Bay Area city of Richmond, nitric acid leaked from a tank at a metal plating company, forming a toxic cloud that floated over a neighborhood of small houses and stucco apartments.

"People were coughing. They were gasping for air," recalled Denny Larson, a community organizer who rushed to the scene. More than 125 people were taken to hospitals.

The year was 1992.

Four years later, state regulators decided a study was needed to assess the extent of contamination from that and other releases of hazardous materials at Electro-Forming Co. Seven more years passed before the Department of Toxic Substances Control began the assessment.

All the while, the company continued operating, even as signs of danger accumulated. A former employee told authorities toxic waste had been poured into a laundry sink. This year, state inspectors found cyanide stored near containers of acid; if the two were mixed accidentally, the resulting gas could kill workers and neighborhood residents.

The state obtained a court order forcing Electro-Forming to dispose of the cyanide safely. But the wider study of contamination at the site still has not been completed—more than 20 years after the nitric acid spill panicked the neighborhood.

The Department of Toxic Substances Control is supposed to use regulations, fines and the threat of legal action to protect Californians and the environment. But its oversight of hazardous waste operations — and its response to urgent problems — are often ineffectual and glacially slow.

This conclusion emerges from a Los Angeles Times review of departmental inspection reports, internal memos, court records and local fire and health department documents, as well as from interviews with residents, business owners and regulators.

The review found that:

•A quarter of California's 118 major hazardous waste facilities are operating on expired permits that may not meet current standards. In a conspicuous case, a battery recycler in Vernon whose lead and arsenic emissions have endangered the health of residents in southeast Los Angeles County has been smelting batteries for decades with only a temporary permit.

•Hundreds of companies have walked away from contaminated sites, sticking taxpayers with cleanup costs. The department acknowledges that it did not even try to collect $140 million in such costs from 1987 through last year.

In cases where the department did make some effort to recover cleanup costs, it folded when polluters simply failed to pay bills totaling about $45 million.

•Increasingly, regulators have not used their strongest legal weapons to bring polluters to heel. In a state where more than 100,000 businesses generate hazardous waste, the department has referred an average of four cases per year to prosecutors over the last five years – compared with more than 40 a year in the previous five-year period.

•The agency's use of financial penalties has also declined. From 2008 through 2012, companies agreed to pay fines totaling $2.45 million a year on average. That's half the average of the previous five years.

"There is a systemic problem with enforcement of regulations to protect the public," said state Sen. Kevin de Leon (D-Los Angeles), whose district includes Vernon, parts of the Alameda Corridor and other communities affected by hazardous waste operations. "It's the agency's main responsibility to ensure that these facilities pose no harm, and the reality is, that is not happening."

Agency in turmoil

The causes of the breakdown include inconsistent standards for regulation, haphazard enforcement, years of staff cuts and turnover at the top. The agency has had seven directors in the last 10 years.

"When I came on board, I found a department that was [in] what I would call structural disarray," current director Debbie Raphael said at a recent public meeting. "We had all sorts of problems with our budget... with our staffing. … There was a lot of turmoil."

Raphael, who took over in 2011, declined to be interviewed for this article. Previously, she has said she's working hard to correct a long list of inherited problems.

"We are committed to owning up to the problems and taking the steps necessary to ensuring they are fixed once and for all," she said in a statement posted on the agency's website.