Governor’s Proposal for Toxic Cleanups Faces Rigorous Test

The unsafe disposal of toxic waste is the most serious public health problem facing our society today.

--Gov. George Deukmejian, Jan. 8, 1985.

In the nine months since Gov. George Deukmejian first announced his intention to create a new department to manage and clean up toxic wastes, his plan has had rough going.

His goal was to lift the state’s hazardous waste problems to the highest level of government--concentrating most existing enforcement powers in a department whose chief would report directly to the governor and would serve in the governor’s cabinet.

But in the final days of the 1985 legislative session, Deukmejian’s reorganization has still not won approval. If the new Department of Waste Management, and the system of state and regional waste commissions that go along with it, are to be in place by Jan. 1, 1986--the governor’s self-imposed deadline--the Legislature must approve the proposal before it adjourns Sept. 13.

Deukmejian’s initial proposal, sent to the Legislature in May, was criticized as shoddily drafted. It was so flawed in the view of former state Sen. Gordon R. Cologne (R-Indio), one of the governor’s strongest supporters and co-author of the state’s landmark 1969 Clean Water Act, that Cologne confessed to a legislative committee that he would not have voted for it if he were still in the Senate.

After the plan was knocked down by Assembly Democrats in June on a partisan 46-31 vote, Deukmejian turned to Cologne to put the pieces together again.

By all accounts, Cologne and a task force of lawyers and staff members from the various agencies that now have roles in regulating hazardous waste did a careful job. They closed many of the gaps that were present in the first plan--errors and omissions that might have voided existing anti-pollution orders by the state Water Resources Control Board. The board, together with nine regional water quality control boards, administers the Clean Water Act. Their role now overlaps, in some respects, that of the Department of Health Services, which shares responsibilities for toxic wastes.

Deukmejian said he wanted to streamline the approach.

“If you think of hazardous waste law as a jigsaw puzzle, we had to fit all the pieces together so there would be no gaps, no holes, so that anyone looking at it would get a picture, a very clear picture,” said William R. Attwater, chief counsel for the water board and one of the drafters of the latest Deukmejian toxics proposal.

Under the plan, for example, the water board would bow out of most hazardous waste matters. It would turn over to the new waste management department most of its power over hazardous waste sites, which can have devastating effects on land, water and air.

The plan remains the object of intense criticism from some Democrats and environmental groups who charge that the reorganization could add to environmental problems rather than solve them.

In a lengthy Aug. 30 memorandum, two lawyers in state Atty. Gen. John Van de Kamp’s office charged that the changes the governor has proposed “will likely weaken the state’s enforcement program and, therefore, threaten our protection against hazardous substance problems.”

A Question of Blame

However, some legislators have indicated a willingness to give Deukmejian much of what he has asked for. They fear that the Republican governor will blame the Democrat-controlled Legislature for any failure to move fast enough in cleaning up thousands of dump sites around the state that may threaten water supplies and the health of nearby residents.

There are already signs that hazardous waste policy will be an issue next year when Deukmejian has said he will seek a second term. Los Angeles Mayor Tom Bradley, a likely Democratic candidate for governor in 1986, has been attacking Deukmejian’s performance on toxic cleanups for more than a year.

Deukmejian and his staff have been touting their own accomplishments, taking credit for cleaning up more than 100 spills and deliberate dumpings--and a few dump sites--compared to only 13 cleanups under Democratic Gov. Edmund G. Brown Jr.

The Administration has argued that current law spreads responsibility for toxics among too many agencies. The result is a bureaucratic tangle that retards cleanups and slows the issuing of permits to facilities that transport, store, and dispose of toxic materials.

New Bureaucracy Seen

But one key Democrat, Sen. Art Torres of South Pasadena, has complained that the Deukmejian plan introduces new layers of bureaucracy into an already cumbersome system. Torres, who chairs the Senate Toxics and Public Safety Management Committee, has vowed to fight the governor’s plan and has offered an alternative of his own.

Most importantly, the Torres plan would place the new waste management department under the existing Environmental Affairs Agency, alongside the state and regional water boards and the Air Resources Board. In that way, a single agency secretary would be responsible for most of the state’s pollution problems, whether they affect land, water or air.

“We’re dealing with what I consider the most important issue of our lives, that’s the quality of what we put into our bodies,” Torres said in an interview. He said he was distrustful of the governor’s motives and his commitment to cleaning up the state’s environment.

The governor’s latest plan, he said, “is a bit premature and ought to be put back in the intensive care unit and looked at a lot more carefully.”

The governor is willing to make some changes in his proposal, Cologne said. “We’re not in concrete,” he said.

But Deukmejian is insistent that the waste management director report directly to the governor--not through the environmental affairs secretary, as in Torres’ proposal.

Key Test Today

“That’s non-negotiable,” Cologne said.

A key test will come today when both the governor’s plan and the Torres bill are scheduled to be heard by the Assembly Environmental Safety and Toxic Materials Committee.

THE GOVERNOR’S REORGANIZATION PLAN: A NEW DEPARTMENT OF WASTE MANAGEMENT ORGANIZATION The Issue

Control, monitoring and cleanup of hazardous waste is divided among the Department of Health Services, the state Water Resources Control Board and nine regional water quality control boards. Critics have complained that overlapping jurisdictions have created confusion and delays. They have also charged that the Health Service’s toxics unit is buried in the department’s health care bureaucracy.

The Governor’s Proposal

The proposal creates a new $94- million-a-year, Department of Waste Management, its 583 employees transferred from other agencies. The department would have primary responsibility for most hazardous waste. Its director would report directly to governor and serve on his cabinet. A new California waste commission and three regional waste commissions would review department regulations and handle appeals of department decisions. The new department would also take over all the duties of the California Waste Management Board, which oversees the regulation of non-hazardous garbage dumps. The governor would resolve any jurisdictional disputes.

The Debate

Supporters say that a strong department would speed cleanup efforts and improve regulation of waste disposal, storage and treatment. They say the proposal would eliminate duplication of effort while preserving, through public hearings, industry and public participation in decisions. Opponents argue that the new commissions would add layers to appeals by toxic waste law violators. Critics say the department director could also make compromises in ordering cleanups. They say these compromises would allow violations of the state Water Resources Control Board’s policy prohibiting degradation of water supplies. Some want the new Department of Waste Management to be placed under the Environmental Affairs Agency, which oversees water and air pollution agencies.

CLEANUP AND ENFORCEMENT The Issue

The issuing of cleanup orders for hazardous waste sites and the policing of permit violators are shared by the Department of Health Services and the state and regional water quality boards. In cases where water quality might be threatened, both water and health officials have responsibilities, raising the possibility of omissions, conflicts or unnecessary duplication.

The Governor’s Proposal

The governor’s plan would turn over the enforcement of most hazardous waste and water quality rules to the new department. The new department could issue orders and seek civil or criminal penalties against those who improperly move, store or dispose of hazardous waste. The department would also take over responsibility for state programs to identify, monitor and contain underground tanks and toxic ponds. But the state Water Resources Control Board would continue to regulate such agricultural run-offs as the selenium-contaminated San Joaquin Valley drainage that has killed waterfowl at the Kesterson Reservoir.

The Debate

Unlike the first version of the governor’s plan issued in May, the latest plan would leave no major gaps in enforcement, say supporters. The earlier plan was criticized because it appeared to invalidate existing cleanup orders issued by the water boards. But critics question whether enforcement of the state’s clean water rules ought to be removed from the state water board that writes them. And they object to a provision of the proposal giving the department director the ability to ignore water board recommendations in cleaning up contaminated sites.

APPEALS AND REGULATIONS The Issue

The rules for the transport, storage, disposal and cleanup of hazardous wastes are written by the Department of Health Services. Clean water rules are developed by the state and regional water boards. Both water and health agencies have systems in place for public reviews of rules and appeals of enforcement orders. In all cases, final decisions can be appealed to the courts. Problems can arise when both water and health agencies have jurisdiction and issue contradictory orders.

The Governor’s Proposal

The governor would create a 13-member California waste commission and three nine-member regional waste commissions to review regulations and hear appeals of decisions made by the director of the new waste management department. The governor would appoint all commissioners except for eight to be named by the Legislature. Most decisions by the director would be subject to a two-step commission review process. Cleanup orders would also have to be reviewed by the state water board, which would continue to write clean water standards. And in all cases, the final decision could be appealed to the courts.

The Debate

Its backers contend that the proposed system provides the public, environmental groups and industry with opportunities to object to department decisions. And because the new commissions would by law have public health officers, local enforcement officials and industry representatives in their membership, decisions would be thoroughly scrutinized. But opponents argue that industry-oriented groups would be overrepresented on the commmissions and that tougher conflict-of-interest requirements are needed for members. Opponents also contend that the multilevel appeals process would mean delays and inaction.