State Policy Lets Polluters Certify Toxic Sites as Safe

Swamped by a large and growing number of toxic dumps awaiting cleanup, the state Department of Health Services has adopted a policy of allowing some illegal toxic dumpers to clean up their own dumps--and certify them as safe--without an on-site state inspection.

The new “self-certification” policy, set out in an internal memo obtained by The Times, is the latest, most controversial element in a state campaign to cut its toxic waste regulatory workload--a goal environmentalists denounce as “outrageous” and dangerous to public health.

Among other changes implemented in the state’s toxic cleanup program in February is a shift from cleaning up specific dump sites as fast as possible to “stabilizing” such sites--or simply stopping their poisons from spreading--until the polluters themselves are coaxed into cleanups.

“It’s a lesser effort than what they have been doing in the past,” said a legislative aide familiar with the new program. “They are no longer going to try to clean up every site to the most pristine level possible. They’re just going to try to stop them from getting worse.”

“It is part of a wholesale march away from regulation,” said Ted Smith of the Silicon Valley Toxics Coalition in Santa Clara County, which now leads the nation in the number of Superfund cleanup sites. “They’ve basically caved in to industry pressure and given up the fight to clean up these dumps.”

Lach McClenahen, chief of the health department’s toxic waste cleanup section, countered that the policy will have the opposite effect, allowing the state to increase by 50% to 60% the number of dumps cleaned up each year.

Under the new process, McClenahen said, dumps will be investigated by the state and the site owner. Once the extent of the problem is determined, the owner will submit a cleanup plan. If the state approves it, the owner is obligated to carry it out at the owner’s expense.

State officials will monitor the owner’s progress and confirm completion using records--for example, auditing the invoices from hauling companies for the amount of tainted soils moved to an approved hazardous waste disposal facility.

The state’s goal, summarized by Deputy Health Director C. David Willis in a March 9 memo to Health Director Kenneth W. Kizer, is “self-certification site cleanup program that allows for independent RP (responsible party) cleanup without (state) oversight.”

Neither Kizer nor Willis could be reached for comment.

Responsible parties--that is, the polluters--who wish to clean up toxic dumps will be required to certify to the state that their efforts conform to state standards. But not all sites will be inspected by the state to make sure that the toxics have indeed been cleaned up.

Environmentalists criticize the program for putting too much faith in businesses that already have violated state regulations. The environmentalists question whether businesses that created the illegal dumps can turn around and start following state regulations when ordered to clean them up. A letter promising a thorough cleanup is not an acceptable substitute for having a state inspector on site to make sure the job gets done, they said.

Legislators also have expressed concerns about the new program.

“This is kind of an honor system, and I am not sure we’re comfortable with that,” said a staff member for the Assembly Ways and Means Committee, which scheduled a public hearing in May on the program after learning about it this week.

Although McClenahen conceded that toxic dumpers could simply lie about having mopped up their mess, he said his staff will be selective about which polluters to trust and which to inspect.

“There’s always the possibility somebody could do that (falsify a cleanup program),” he said. “In fact, they could do that now and we’d be none the wiser because we don’t have people on site every day now.

“We’re not going to turn everybody loose,” McClenahen said. “Only those who have shown they are cooperative and responsible. People with a bad track record will continue in the enforcement track (with on-site inspectors).”

McClenahen said the new policy was adopted because the Department of Health Services has long been criticized for not acting fast enough to clean up toxic dumps.

“There’s widespread disappointment that the state Superfund--and even the federal Superfund--have not done more about this problem,” he said. “We are under constant pressure to produce more cleanups.”

With the new policy of self-policing, the state anticipates it can increase the number of completed toxic dump cleanups by at least 50% in 1990, to about 45 sites from the current annual average of 30. About half those cleanups are major Superfund sites. There are 345 such Superfund sites in the state.

Self-certified toxic dump cleanups is one of dozens of “new initiatives” that the Health Services Department has adopted this year in an attempt to cope with the state’s growing hazardous waste problem.

Among the other initiatives is a self-certification licensing program that allows hazardous waste users to obtain state licenses to handle, store and dispose of toxic chemicals simply by writing to the state promising to follow all rules. In the past, on-site state inspections were required before permits could be issued.