A 2015 law required the state Department of Toxic Substances Control to overhaul its permitting process to consider how multiple sources of pollution impacts health. Advocates now say the overdue rules aren’t protective enough.
By Alejandra Reyes-Velarde, CalMatters
This story was originally published by CalMatters. Sign up for their newsletters.
Residents of Kettleman City live surrounded by pollution.
Farms spray pesticides on almond and pistachio trees in this farmtown. A composting facility handles human sewage waste nearby. Particulate matter and diesel fumes from heavy freeway traffic fill the air. And the West Coast’s largest hazardous waste landfill is just a few miles away from town.
“There is a lot of cumulative burden from living next to, not just a landfill, but so many other polluting sources,” said community advocate Miguel Alatorre. When it comes to identifying why residents get sick, it’s impossible to point to any one cause.
A decade ago, California enacted a law that aimed to better protect people from the cumulative impacts of multiple pollution sources in places like Kettleman City. The law required regulators to include these cumulative impacts when weighing whether to grant a hazardous waste permit. People living near the Kettleman Hills landfill, and others living near hazardous waste facilities, hoped new rules would strengthen their ability to object to major pollution sources.
But the Department of Toxic Substances Control has released draft regulations seven years late. Asked why it missed the deadline, a spokeswoman for the department said only that regulators needed extra time to incorporate feedback after an earlier attempt to write rules five years ago.
Critics say the new draft still wouldn’t do enough to protect vulnerable communities. “It’s not enough to ‘consider’ cumulative impacts,” said Angela Johnson Meszaros, an attorney for the environmental group Earthjustice. “Communities want strong guidelines for when a permit should be denied. The draft doesn’t deliver that.”
Cumulative impact considerations in permitting
Under the draft regulation, hazardous waste facilities seeking new permits would have to profile the demographics and environmental risks of communities within one mile.
That includes documenting where people who are vulnerable to pollution live, including the elderly and children; identifying other hazardous waste handlers and businesses holding toxic chemicals; and taking note of transportation corridors, where air pollution is often elevated.
If the surrounding community ranks in the top 25% in CalEnviroScreen – a state tool that screens communities for environmental harm – then the facility seeking a permit would have to write a more detailed assessment. A state report has found that more than half of hazardous waste facilities are in vulnerable communities like Kettleman City, which ranks in the top 10% of CalEnviroScreen.
Regulators would review the assessment to decide if a permit should include special conditions, such as limiting facility hours during high wind events or requiring translations when a facility communicates with the public.
But the only basis for denying a permit would be the pollution from the hazardous waste facility itself, not the cumulative pollution impacts in the area.
In the department’s statement of reasons for pursuing the regulation, officials said the change will benefit communities.
“The enhanced transparency and consistency will foster greater public confidence in and understanding of DTSC’s permitting program,” the department wrote. “The proposed regulations will also lead to greater protection of public health and safety, and the environment.”
Advocates and businesses say the rules fall short
A central fight over the new regulation is whether it will actually force the state to deny permits in heavily polluted areas—or just add more paperwork.
Some advocates believe the original law requires regulators to come up with a clear threshold for when to deny a hazardous waste permit.
“We need DTSC, in accordance with the law, to tell us what’s the analytical process for identifying how much is too much?” Johnson Meszaros said.
DTSC spokesperson Alysa Pakkidis said that the law “directs DTSC to consider additional permit criteria, not to create a single threshold for denial.” The department “reviews the entire application when making decisions,” she added.
In Kettleman City, near where the Kettleman Hills hazardous waste landfill is operating on a continuation of a permit that expired in 2013, neighbors say the regulations wouldn’t improve scrutiny of the landfill. That’s because the town is three miles away, outside the one-mile radius applicants have to study.
“The geographic scope of studies really needs to be expanded in order to make sure that this regulation stays true to the intent” of the law, said Chelsea Tu, an attorney with California Rural Legal Assistance.
The draft regulation also comes too late for Kettleman City – and other communities where regulators have considered permits in recent years.
According to DTSC’s website, a final permit for the Kettleman Hills landfill is expected later this year. A spokeswoman for the department says that, because the regulation is not final, it cannot apply to that project.
The draft regulation also comes too late for permitting decisions at other major hazardous waste facilities located near homes, including two in Los Angeles County: Phibro-Tech, a toxic waste recycler next to Los Nietos, and Ecobat, a lead-battery recycling facility east of Los Angeles.
Phibro-Tech’s permit was renewed in February, despite dozens of violations. Ecobat operated on a continuation of a permit that expired in 2015 for 10 more years before DTSC renewed it in November, the same day the department published its draft regulations.
Environmental and community groups are appealing both permits.
Critics also raise questions about the regulation’s reliance on air quality status and CalEnviroScreen to determine community vulnerability. Some researchers have concluded that the tool is flawed because it is highly subjective and underrepresents some disadvantaged communities, like foreign-born populations.
“It’s a very blunt instrument for really understanding all the sources of contamination that we experience on a daily basis,” said Rebecca Overmyer-Velázquez, a coordinator for the Clean Air Coalition of North Whittier and Avocado Heights.
Much of the CalEnviroScreen data comes from polluters themselves, she said. That self-reported data can be out of date, especially for smaller businesses with less rigorous permits.
“There’s so many smaller sources of pollution – but many more of them, in our communities – that don’t get counted, like plating shops and auto body shops,” Overmyer-Velázquez said.
Officials with the state Office of Environmental Health Hazard Assessment, the state agency that maintains CalEnviroScreen, said the CalEnviroScreen tool is under review for an update.
The draft permitting rules would trigger a review process—and possible permit denial—when a facility increases a region’s cancer risk beyond a certain threshold. But Johnson Meszaros of Earthjustice is skeptical about how often that would result in action.
“All the regulation says is that they shall initiate the process,” Johnson Meszaros said.
Trade groups representing the waste industry say they’re concerned that the state will deny a facility’s permit because of pollution caused somewhere else.
Local zoning laws allow people like children and seniors to live in areas next to waste facilities, says Dawn Koepke, a lobbyist who represents the California Council for Environmental and Economic Balance.
The draft regulation, she said, “doesn’t do anything to resolve those decisions being made.”
California’s hazardous waste facilities have declined from more than 400 with permits to fewer than 100 still operating. Koepke says companies are concerned that the new regulation could strain the state’s hazardous waste system. “We’ve had a decline in facilities to help manage the waste we generate in the state…All of that has added costs.”
A cornerstone of environmental justice advocacy
The present regulatory fight over how to strengthen scrutiny for permits in places like Kettleman City was shaped in part a decade ago, by an environmental crisis that unfolded 150 miles south near Los Angeles.
Regulators determined that Exide Technologies was contaminating soil with lead and arsenic near thousands of homes over decades. The lead battery recycling plant operated with only a temporary permit for more than 30 years.
State officials documented more than 100 violations at the plant and allowed it to continue to operate. When federal authorities threatened criminal charges, the company signed a settlement and agreed to shut its doors. Exide declared bankruptcy in 2020, and the company abandoned the property for good.
The crisis exposed flaws in DTSC’s permitting process and prompted state leaders to promise reform.
Then-Assemblymember Ricardo Lara introduced legislation, Senate Bill 673, as an explicit response to the problems revealed Exide.
“SB 673 will create a conduit between DTSC and vulnerable communities across California that are impacted by hazardous waste facilities,” Lara said at the time, according to the legislative analysis documents. “This bill provides important accountability, transparency, and oversight measures that will improve the relationship between DTSC and the communities it is mandated to protect.”
In 2018, DTSC began carrying out the law by using new rules to score violations from hazardous waste facilities. The department has one last task under the law: finalizing the permitting updates.
Scientific research backs up community concerns that pollutants add up in the body and worsen health impacts, said Lara Cushing, an associate professor of environmental health sciences at UCLA.
“We can’t consider each pollution source in isolation, because we know communities are disproportionately exposed to multiple different types of contaminants at the same time, and they can accumulate,” Cushing said. “Chemicals can interact with each other in the body, and none of that’s considered in the current rulemaking.”
Advocates, like Alatorre in Kettleman City, have long sought regulations to acknowledge that.
Between 2007 and 2009, 11 babies were born with birth defects in Kettleman City, a town of just about 1,000 residents. Alatorre, a lifelong environmental justice advocate, says the town still has no explanation for the anomaly.
But the residents suspected the reason came from the combination of pollutants swirling in their air, water and soil.
“We have no idea what caused those birth defect clusters,” Alatorre said. “It could have been the dump. It could have been the pesticides, something in the soil, or something totally different.”
A history of broken trust
After waiting for almost a decade, environmental justice advocates were disappointed when regulations finally came. DTSC published its draft proposal just days before Thanksgiving, then gave the public just 45 days to comment – most of it over the Christmas and New Year’s holiday.
“It’s kind of a shame that after 10 years DTSC is trying to rush to finish the regulation while making it very convoluted, unnecessarily complicated and not protective enough,” said attorney Chelsea Tu.
After an outcry from advocates and a letter from state Sens. María Elena Durazo, Lena Gonzalez and Caroline Menjivar, DTSC extended the public comment deadline to Feb. 3 The department will host another public hearing the same day.
“We truly value the communities we serve and strive to strengthen our partnerships with community members to ensure all Californians are protected,” said department director Katherine M. Butler in a letter to Earthjustice. “DTSC remains committed to strong public engagement.”
This article was originally published on CalMatters and was republished under the Creative Commons Attribution-NonCommercial-NoDerivatives license.
