LA chemical plant on short leash from state regulators as neighbors continue to protest its operations

For nearly 30 years, an electronic waste processor in Los Angeles County has operated on a permit that expired in 1996 while neighbors, some living 550 feet away, say it harms their community.

On Thursday, a state oversight board faulted the Department of Toxic Substances Control for how it renewed that permit, but stopped short of revoking it. It was the first time in the board’s five-year history that residents asked it to pull a facility’s permit.

The Board of Environmental Safety granted separate appeals by community members and the company, Phibro-Tech. But it voted to allow the facility to continue operating while state regulators reassess the permit, which they renewed for the first time in the facility’s history last year. 

Environmental advocates say the case is a test of whether the board, created in 2022 to address the Department of Toxic Substances Control’s  history of flawed oversight, would put communities first. Its mandate is to protect public health, particularly in communities most burdened by pollution.  But the decision shows the board and the community disagree about how the board uses its authority, and how far that authority goes.

The department recorded 29 violations at Phibro-Tech between 2013 and 2022 for actions such as failing to clean up leaks and treating waste its permit doesn’t allow. Officials say the facility has since improved, but the state is still suing over alleged violations of hazardous waste laws. Phibro-Tech maintains that DTSC inspected it more often than other facilities and cited it disproportionately as a result.

Neighbors Against Phibro-Tech, a community group represented by Earthjustice, argued that state regulators renewed the permit without accounting for that violation history, failed to provide the public with a complete record on the decision and relied on health and cumulative impact analyses that didn’t properly evaluate the risk to nearby residents. 

“It’s important to acknowledge the victory that happened today,” said Esme Levy, Earthjustice attorney. “But the board has the opportunity or had the opportunity to go further.” 

The board granted Phibro-Tech’s two appeals and ordered the department to remove some rules from the permit that don’t apply to them. Robert Martin, an attorney for the company , said he appreciated the board’s consideration, but declined to comment on the decision before reviewing the board’s official order. 

CalMatters provided questions to the board about its performance in its first five years. In an emailed statement, Andrew Rakestraw, board chair, said the board has made the department “more fiscally stable, more transparent, and more accountable to the public, particularly those communities across California dealing with the burdens of toxic waste. 

The board debates

On Wednesday, lawyers for the community argued that the Department of Toxic Substances Control illegally renewed Phibro-Tech’s permit because it did not consider the company’s longstanding history of serious violations in the decision. 

The department “didn’t think that Phibro-Tech was able or willing to comply with its permit, and yet it went ahead and granted a permit that significantly expands Phibro-Tech’s operations without an explanation,” Earthjustice attorney Esme Levy told the board.

Earthjustice also said the department’s public record was incomplete. Levy told board members that Earthjustice representatives had to request specific documents and that the department asked for more time to prepare them after the permit decision.  

Wayne Lorentzen, head of the department’s permitting division, said the complete record “was accessible to the public and contained the documents that permitting relied on and considered when making its permit decision.”

“That same administrative record provides specific evidence to refute the allegation that (the department) did not consider Phibro-Tech’s complete compliance history,” he told the board.

The board ultimately agreed with Neighbors Against Phibro-Tech that the record was incomplete and that the department didn’t show it completely reviewed the company’s compliance history. 

The department itself “recognizes that there’s a significant concern for (Phibro-Tech’s) ability or willingness to comply,” board chair Andrew Rakestraw said. “Those are two issues that really get at the core of the permit decision, and so what I would have expected to see here is some connection between this significant concern … and their subsequent decision to grant this permit.” 

Byron Chan, an Earthjustice attorney, said he appreciated the board’s willingness to identify problems in the department’s process, but hoped for stronger action. 

“They agreed with us that permitting violated the law in three different ways in issuing this permit,” Chan said. “How many illegal acts does permitting have to do until (the board denies) the permit?” 

Greg Forest, the board’s attorney, said it has authority to ask the department to deny permits. But the board didn’t discuss that option. 

Phibro-Tech’s appeal 

The board also heard a separate appeal from Phibro-Tech. The company argued the department should have issued a permit for 10 years instead of five and that the department wrongly imposed waste-treatment rules that shouldn’t apply. 

The board agreed that the department didn’t adequately explain why the permit was issued for five years and required the department to reconsider the permit and justify its term limit. The board also asked the department to remove the waste-treatment rules. 

“What we’re asking for is not a specific term, but to show the work,” said board member Rhys Williams. 

Phibro-Tech had also asked the board to review the department’s decision to certify its tanks for three years instead of five. But a week before the hearing, the company and state regulators settled that issue, with regulators agreeing to extend the tank certification to five years.

Chan said the settlement undermined the appeal process. 

“You can see an effort from permitting and Phibro-Tech to try to avoid the public scrutiny of the board and try to resolve as much as they can before they have to go before this public-facing body,” Chan said. “That’s really troubling, especially for what the board is supposed to represent as far as protecting communities.”

Asked about this criticism, the department didn’t comment on it, or the earlier settlement. 

But at the hearing itself, Mandi Bane, a deputy director at the department who oversees its hazardous waste management program, said the board’s independent check on its work has been “a great addition.” The department will wait for written direction from the board before taking its next steps. 

The board has 30 days to finalize its decision.  

In a 2024 cross-complaint, Phibro-Tech alleged the Department of Toxic Substances Control violated its due process rights by inconsistently applying rules to the company.

“DTSC inspected (Phibro-Tech) over the past (10 years) considerably more frequently than other permitted facilities,” the suit states. “Because of this, DTSC has disproportionately cited (the company) for violations.”

Residents living in the nearby Los Nietos neighborhood say the company has impacted their lives for over 30 years. 

“To think that the whole time that I’ve been alive (Phibro-Tech) has been operating kind of under the radar, with little consequences, with very little oversight, it’s just so frustrating and so disheartening,” said resident Jordan Salcido.

The renewed permit is temporarily paused while the appeals process continues, but Phibro-Tech continues to operate under its original permit.

The board’s authority

Lawmakers created the board, but some now say it may need more direction. 

A legislative committee reviews the board and the department’s performance in oversight hearings yearly. At this year’s hearing, Rakestraw told legislators it has met its mandate to improve transparency and fiscal responsibility at the department. But it’s still unclear how far the board can go in telling department staff what specific actions to take. 

Rakestraw said the public expects detailed oversight, and that the board will force regulators to take action in a certain way. But, he added, much of the department’s work “occurs outside of the board’s jurisdiction.”

“Many stakeholders view the board as California’s hazardous waste watchdog,” he said. “In reality … we have decision-making authority in a handful of areas.”