Richmond Toxic Oversight Panel Gets Mixed Message From State

By Richard Brenneman
Thursday June 18, 2009 - 07:35:00 PM

What began as a heated confrontation ended with qualified applause for the state’s top environmental cop during last week’s meeting of the citizen panel advising the state about the cleanup of toxic sites in South Richmond. 

Last Thursday’s meeting (June 11) brought other news, both good and potentially bad.  

On the potentially negative side, the state Department of Toxic Substances Control (DTSC) itself may cease to exist as an independent agency with its own enforcement powers if pending legislation is enacted that would merge the agency with the state Integrated Waste Management Board to create a new Department of Toxics and Waste Management. 

The new agency would be headed by a Pollution Prevention and Recycling Board.  

That proposal, pushed by Gov. Arnold Schwarzenegger, is now before the state Legislature. 

On a more positive note, DTSC enforcement chief Gale Filter promised to bring a representative of the federal Environmental Protection Agency to Richmond in August to discuss a possible U.S. takeover of cleanup oversight. 

Members of the Richmond Community Advisory Group (CAG) will give their recommendations to the DTSC about hazardous waste cleanup along the shoreline. 

Their anger had been raised by the announcement that the state had settled claims against UC Berkeley and a Swiss chemical corporation without ever consulting the CAG. 

The DTSC negotiated with UC Berkeley and Zeneca, Inc., over a lengthy list of charges of violations involving the disposal of more than 3,000 truckloads of contaminated soil, much of it originating in the university’s Richmond Field Station. 

Zeneca agreed to pay a total of $225,000 while the university will pay $285,000, with the proceeds evenly divided between the DTSC and Richmond BUILD, a city-sponsored program that trains young workers to install solar energy systems. 

Filter, DTSC’s deputy director for enforcement and emergency response, fielded CAG member questions about the settlement. 

“I’m here to address the settlement. I’m the person whose name is on it,” Filter told CAG members. 

A veteran prosecutor and former executive director of the California Deputy District Attorneys Association, Filter said the evidence in the case didn’t provide any justification to file a court case, even if the alleged acts hadn’t occurred four to seven years ago. 

The problem, he said, is that both the corporation and the university could defend themselves by declaring that their work was carried out under the supervision of a state agency, the San Francisco Bay Regional Water Quality Control Board. 

“They could say, ‘We’re just doing what the state told us to do,’” Filter said. In addition, he said, “The case was old, really old.” 

The DTSC’s takeover of cleanup supervision was ordered by the state after activists—including CAG members Sherry Padgett and Richmond Mayor Gayle McLaughlin—waged a long political struggle, including protests at both sites. The handover was announced during a legislative hearing convened at the Richmond Field Station by two state legislators—Assemblymembers (now state Senator) Loni Hancock and Cindy Montanez. 

The fines were levied after negotiations between Filter, Zeneca and the university, he told the CAG. 

But what angered many CAG members was the DTSC’s failure to advise them of the status of violation charges that had been filed two years ago, as well as the announcement of a settlement—all without any notice to the citizen panel, which is supposed to be advising the DTSC on the cleanups, despite repeated pleas from the CAG for information. 

“We have been asking about this, but all we got was a stone wall,” Padgett told Filter. “Perhaps if you had come to us you would have gotten some more insight.” 

“We were stonewalled,” said CAG member Eric Blum. 

“Repeatedly,” added chair Dan Schwab. “We just sent you a letter a month ago demanding to know what the settlement would be.” 

Barbara Cook, the Berkeley-based DTSC executive in charge of Northern California coastal cleanup operations, said her office’s blanket response to inquiries had been that “I’m not able to discuss enforcement letters,” the documents served on the two parties to the action. 

Blum also noted that the buildings at the Zeneca site—100 structures built during a century of chemical manufacturing—had been demolished and ground into powder before any regulatory agency had asserted jurisdiction over the site. 

“They filed a little index card with the city saying they were tearing down gardening sheds,” Blum said. 

Peter Weiner, a San Francisco environmental law specialist who has been volunteering his services to the CAG, characterized previous state involvement with the sites as “a zone of indifference.” 

“Since 2007, they [CAG members] have been asking about what was happening with the enforcement action, and they were told by enforcement that there would be no discussion with the community. That happened, and there’s been a lot of anger about it ... There’s been a great deal of disappointment in the way that this has turned out.” 

Filter said he wouldn’t attempt to defend what he’d heard from CAG members. “If you and I had known each other in 2004, we would’ve become good friends,” he said. 

“But you’ve been there two years, and this is the first time you’ve come to us,” said CAG member Tarnel Abbot. 

“I didn’t know about it,” Filter responded. 

One thread of the evening’s dialogue concerned the ultimate disposition of the waste from the two sites, most of it in the form of acidic ash from the incineration of iron pyrite—fool’s gold—to produce sulfuric acid, as well as a noxious stew of organic compounds and toxic metals. 

Most of the waste, including that from the university’s site, has been buried on the Zeneca site beneath a concrete-and-paper cap, separated from the waters of San Francisco Bay by an experimental biologically active permeable barrier with an unknown but finite lifetime. 

CAG members have repeatedly argued that the 350,000 cubic yards of contaminated soil at the Zeneca site should be removed and transported to an authorized hazardous waste disposal facility, but Filter said precedents did allow for on-site disposal if the waste is safely stored. 

“This process has been very flawed,” said Richmond Mayor McLaughlin, who dated her involvement with the site to 2004, in the months before her election to the City Council. 

“I was elected in November of 2004 and sworn in in January. On Feb. 5, I introduced the resolution that put the ball in motion to put all of Zeneca and the Richmond Field station under the DTSC,” she said. 

“I was very excited when the DTSC got on board ... but having these toxins remain on this site doesn’t work with me. This situation hasn’t been settled with us,” she said. “It doesn’t set well with me either that future members of our community might suffer because of this.” 

In the end, Filter offered CAG members an apology “for certain things I believe a government agency has a responsibility for. I believe you have a right to know what the status of a case is, and I apologize that that did not occur,” he said. “There are things you have a right to know. I am concerned you didn’t get status reports about the investigation.” 

Filter also said he thought there should be some process for appealing decisions such as the one that led to the settlement.  

At the end, CAG members and the audience applauded, though Padgett—who had joined in the applause—later said she would be waiting to see if promises of good intentions turned into positive actions.