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California DTSC's Efforts to Address the Segregation of Pollution

Friday, July 19, 2019

Davina Pujari

Partner, Hanson Bridgett LLP

Cole A. Benbow

Associate, Hanson Bridgett LLP

The mission of California's Department of Toxic Substances Control (DTSC) is to "protect California's people and environment from harmful effects of toxic substances by restoring contaminated resources, enforcing hazardous waste laws, reducing hazardous waste generation, and encouraging the manufacture of chemically safer products." But, like any critical mission, its success depends on sufficient funding. And, to the detriment of the vulnerable communities it is charged with protecting, the Department is in the midst of dealing with a budget shortfall that will handicap its ability to reduce the amount of hazardous waste generated in California—hazardous waste that disproportionately impacts low-income and minority communities. These financial constraints will prevent DTSC from investigating and delineating upwards of 212,000 potentially contaminated sites in California, and lead to a whole heap (no pun intended) of other problems. For example, financial restraints will make it difficult for DTSC to oversee permitting and compliance at the 119 authorized facilities that manage hazardous waste, regulate approximately 900 registered businesses that transport hazardous waste, and adequately monitor the approximately 100,000 entities that generate hazardous waste in the state. The result? Adverse consequences to poor and minority communities—communities that tend to be located near the extreme emitters and hazardous waste generators.

Living Next Door to Extreme Polluters

Given the national attention paid to environmental catastrophes in recent years, such as the Flint water crisis, it comes as no surprise that relatively poor and minority communities, like Flint, Michigan, are disproportionately exposed to some of the most intense pollution. In fact, a paper in 2016 by a number of sociologists validated this very impression by cross-referencing industrial emissions with socioeconomic data on the communities surrounding the facilities. The authors concluded that the highest polluting facilities were also more likely to be located near poor and minority communities. While it certainly may not be news that low-income and minority communities are disproportionately affected, the research could help the Department employ targeted, voluntary programs to help the heavy emitters reduce their emissions. 

Unsurprisingly, the paper added to a growing body of evidence that the country, as well as the state, continues to grapple with the notion of "environmental justice," a term used to express the notion that poor and minority communities tend to have excessive exposure to environmental hazards. And, although studies dating back to the 1970s have pointed to a consistent pattern regarding who lives near those types of hazards, the paper added to the conversation by arguing that, rather than looking broadly at all polluters, more focus should be paid to the large polluters, since those facilities are generally located in poor and minority communities. But, this still begs the question: How does DTSC fund its efforts to target the bigger emitters, especially given its current financial dire straits? Maybe, the answer lies not in what individuals and companies contribute monetarily (by way of taxes and hazardous waste disposal fees), but instead what they contribute to the Department in the form of information relating to their individual efforts to reduce the generation of hazardous wastes.

Increasing DTSC's Revenue and Incentivizing Less Pollution

As it now stands, in order to fund its duties of regulating hazardous waste management, the Department relies on: (1) fees paid by persons who generate, transport, store, treat, or dispose of hazardous wastes; (2) environmental fees levied on businesses; (3) the state's General Fund; and (4) federal funds. Unfortunately for California's vulnerable communities, the Trump Administration has been taking steps, some quietly, some very publicly, to decimate EPA and limit federal funds to states, including California. And, although not as sinister, California has failed to provide full and adequate funding to the Department, instead redirecting certain funds for other purposes. That leaves DTSC with one main method of increasing revenue: restructuring hazardous waste fees in order to increase revenue.

We will leave it to the policy wonks to best describe how to address the Department's budget shortfalls, but will end by noting that contributions to achieving environmental justice can come in many forms, and not just in the form of added revenue for the Department charged with protecting California's people and environment from the harmful effects of hazardous waste. One such form is the Community Protection and Hazardous Waste Reduction Initiative. Importantly, one of the goals of the project is to "[i]dentify hazardous wastes that are generated, treated, or disposed in California communities that are disproportionately burdened by multiple sources of pollution." In other words, low-income and minority communities burdened by the extreme emitters. Under the initiative, the Department will seek proposals for selecting pilot-scale projects that demonstrate reduction of hazardous wastes that are generated in significant quantities. The initiative will also seek information on activities in California, as well as in other states, where hazardous waste reduction efforts are being pursued. With the gathered information, the Department will develop a report that is to be delivered to the Secretary of the California EPA, as well as to the legislative committees with jurisdiction over the regulation of hazardous waste, which should help generate legislation to protect vulnerable communities. Although this sort of information may not directly contribute to the Department's bottom line in addressing environmental injustice, it is adequately designed to assist the Department's stated goal of protecting all of California's people from the harmful effects of hazardous wastes, including its most vulnerable communities.