Toxic substance department records point to inaction in chemical cases

November 21, 2013

By KAREN VELIE

Almost two years ago, a San Luis Obispo city employee ordered others to dump chemicals and paints at a city facility. The state’s Department of Toxic Substance Control began an investigation and told witnesses that criminal cases would be started in about six months.

As the two-year anniversary of the dumping approaches, the department has not taken any enforcement action and the case remains open, DTSC staff counsel Jay Cross said. The department’s own records suggest that it is highly unlikely that any enforcement action will ever happen.

The department is charged with protecting Californians from exposure to toxic substances. But even though the agency’s criminal investigators open dozens of cases each year, they rarely follow through with prosecution and often fail to collect fines.

Since Jan. 1, 2012, the agency has opened 239 investigations, though it only followed through with an enforcement request in one case, according to DTSC spreadsheets.

In January, 2012, a city employee told several subordinates to pour out cans of acetone (solvents), varnish, epoxy, creosote, enamel paint and latex paint. The chemicals were dumped on an asphalt parking lot that abuts a grassy area and is within 250 feet of a waterway, CalCoastNews reported.

Following the CalCoastNews article, investigators from the Department of Toxic Substance Control arrived in the city and mounted an investigation. Investigators assured witnesses who agreed to provide information about the deliberate dumping that the DTSC planned to file criminal charges.

The 25-year-old agency is responsible for enforcement, regulation, and pollution prevention. If investigators discover illegal disposal of waste, their job is to seek criminal prosecution from city attorneys, county district attorneys, the California Attorney General or the U.S. Attorney, according to the DTSC.

But over the past decade, the number of department criminal investigations has dropped by half while the number of cases sent for enforcement is almost non-existent, according to DTSC spreadsheets.

In 2005, department investigators asked prosecutors to bring charges against polluters involved in 45 investigations. Those numbers have fallen to two requests for enforcement in 2011, one in 2012 and none in 2013, according to department spreadsheets.

The department has a budget of $189 million for 2013 and has 866 employees, its files show.

In addition to a failure to initiate criminal enforcement, in May the agency admitted it had no system in place to track unpaid fines and that it had failed to collect more than $185 million, DTSC spokesman Jim Marxen told NBC.

Several legislators have asked the California Office of Oversight and Outcomes to investigate allegations the department’s failures to act are costing taxpayers and risking the public’s health.

In January 2011, San Luis Obispo waste water collections supervisor Bud Nance told staffers to remove the contents of the hazardous waste storage shed at the city corporation yard on Prado Road and empty cans in the yard. After about two weeks, the chemical dump was reported to firefighter Kerry Boyle who inspected the site, according to city staff emails.

At the time, Boyle concluded that the city was not required to follow laws regarding the disposal of hazardous materials. Instead, he allowed city staff to pour kitty litter onto the chemicals and then transport the waste to the Cold Canyon Landfill for disposal.

San Luis Obispo city attorney Christine Dietrick supported Boyle’s conclusion and said that no wrong doing had occurred.

In June 2012, the San Luis Obispo Fire Department filed a notice of violation against the city’s public works department for the illegal dumping of hazardous waste. However, no criminal prosecution has been brought or fines levied.