The state Department of Toxic Substance Control ordered Exide Technologies in Vernon to conduct an emergency clean up of off-site contaminated soil, dust and sediment at several locations and in at least two storm drains within 1,500 feet of the plant that been found to have concentrations of lead and other metals at or near hazardous-waste levels. Concerned that anticipated rainfall could wash the hazardous waste into local storm drains, officials on Monday told Exide in a letter the clean-up must be done by Dec. 31.
DTSC’s emergency order comes in the heels of a hearing last Saturday during which hundreds of angry residents from southeast Los Angeles County told a Southern California Air Quality Management District independent hearing board they are fed up with the battery recycler and want the facility shut down.
Residents were joined Saturday by a number of elected officials representing the area impacted – from Boyle Heights to Huntington Park. Exide however was not without its own group of supporters, many of them workers at the plant and local union representatives.
The formal judicial proceeding held Saturday at Cal State Los Angeles marks the latest round to hold accountable the Vernon based facility accused of failing to maintain toxic lead and arsenic emissions at permissible levels, thereby allegedly elevating the cancer risk for more than 100,000 people living in the region.
The hearing was held in response to SCAQMD’s petition to temporarily shut down Exide’s smelting operations until it upgrades its air pollution control systems to reduce the release of toxins into the air.
Exide and SCAQMD presented their cases to the board before the start of public testimony. To promote greater participation from the community, air quality officials provided a free shuttle service to and from the meeting.
Nancy S. Feldman, attorney for the air quality district, told the hearing board Exide’s air pollution control system is not adequately controlling emissions from its blast furnace.
According to the district’s petition, Exide is accused of consistently violating its permit conditions and District Rule 1407, which requires that good operating practices be used to maintain air movement and emission collection efficiency.
“We will establish that Exide’s air pollution control equipment has insufficient draw to control the arsenic emissions into its air pollution control system as intended,” Feldman said in her opening remarks. She said the problem has been further compounded by leaks in the furnace.
But Exide’s lead attorney Steve O’Neill argued that Exide’s current emissions do not exceed limits set by AQMD.
He said the facility has made substantial improvements since emission samples were taken back in March. Relying on data from those tests would be “relying on obsolete evidence,” he said.
In March, air quality officials found lead and arsenic emissions from the battery recycler high enough to warrant notifying 200,000 residents in Boyle Heights, Maywood, Vernon, Commerce, East Los Angeles and Huntington Park that their cancer risk had been raised.
O’Neil also called the argument for requiring negative pressure “incomprehensible.”
“The District is making a highly technical argument,” he said, adding they had failed to identify what “design criteria has not been complied with by Exide.”
But Feldman said the reduced risk of arsenic exposure does not equate compliance with all other district rules and regulations.
During public testimony, speaker after speaker said health and safety, not technicalities, are what matters. They cited personal cases of cancer, asthma and other health issues they believe were caused by the lead battery recycler.
“We know… that there is no safe level of lead in children’s blood,” said Congresswoman Lucille Roybal-Allard, who represents many of the impacted cities and neighborhoods. “Without board action the environment and quality of life of hundreds of thousands of local residents and their children will continue being at risk of silently being poisoned.”
O’Neill, however, said AQMD must prove its case with facts, not “emotional” testimony.
“This [hearing] is not a referendum on Exide’s popularity,” he argued. “The central issue is simple: Is Exide operating its furnace and control equipment as designed and engineered and permitted by AQMD?”
Feldman, hoping to make the district’s case more understandable, used the analogy of a household vacuum cleaner to further her argument.
She said a vacuum cleaner is supposed to suction up dirt and debris, filter and capture it in a canister. But if the vacuum’s suction capabilities are not strong enough, not everything will be picked up and the debris could instead be scattered into the air “before it ever reaches the filters.”
“But what if all that dust, dirt and debris from the vacuum cleaner also contained toxins, poisons, things that were carcinogenic,” she said. “While this case may focus on the technical issues, we must not lose sight on the fact that an order of abatement is to protect the public health”
O’Neill claims the district is trying to impose requirements on Exide that currently do not exist in the district’s rules or Exide’s permit.
But Feldman says the abatement order is not about trying to enforce a non-existent requirement, but “giving meaning and substance to the rules that are already on the book.”
“No matter how the district tries to word its argument the fact remains that the district is trying to impose a standard that does not exist in any rule or any permit condition,” said O’Neill.
He said AQMD’s hearing board can only issue an abatement order if there is an ongoing violation and shutting down the operation is necessary to stop the violations.
“The rules language states in present tense that the rule must be ‘being’ violated in order to justify abatement,” he said. “A historic violation that has been remedied or fixed cannot provide basis for abatement.”
Santiago Rosas, an Exide worker for over 32 years, called on the hearing board to look at actual facts, not just information from people who do not know about the plant’s operations.
“Exide has spared no expense by using first quality and top of the line equipment,” he said in Spanish.
Exide’s lawyers say the closure order is being fueled by politics, not facts. They claim an unnamed politician confronted AQMD’s Executive Officer Dr. Barry Wallerstein to find a “creative way” to shut down Exide at a public meeting at Resurrection Church on Oct. 8, 10 days before the abatement petition was filed.
“We are here because of political and public pressure,” O’Neill said. “There has been a great deal of political and public pressure on state environmental agencies to shut down Exide since the health risk assessment results.”
It was a point echoed by many speakers, with most seeing the move to seek closure as a positive outcome of efforts to pressure air quality officials to move in that direction.
“Absolutely we are!” responded Martha Molina-Aviles, field director for Sup. Gloria Molina. “These [residents] have come to us and asked for us to advocate on their behalf because they have not been listened to prior to this.”
Longtime Boyle Heights community activist, Monsignor John Moretta of Resurrection Church, testified Exide has not done enough to win back the community’s trust. He said the company released higher than safe levels of arsenic while it was being closely monitored following findings of too high lead emission.
Moretta said he was there not because of “political pressure,” but out of “moral pressure.”
“Can you imagine how we felt, first lead, now arsenic,” said Moretta. “Exide has not been a company of their word; they have been given many opportunities to clean up their act.”
Several speakers called for the plant to be permanently closed, rather than temporarily as called for in SCAQMD’s petition. They said public health should be the priority.
“Put some teeth on these orders to keep these companies from throwing out emissions and endangering our community,” said Boyle Heights resident Arturo Herrera.
Some, however, see the state agency’s petition as overreaching. They say approval would not solve the health and environmental problems in the community.
“Closing Exide is not going to get rid of cancer, autism or asthma,” Huntington Park resident Esmeralda Rosas said.
David Campbell, secretary-treasurer of United Steel Workers Local 675, in a statement called for keeping the plant open in order to protect 100 good paying union jobs.
On Saturday, O’Neill emphasized that Exide had never been cited for violating Rule 1407 until Dec. 4, days before the hearing. He argued the district’s move to amend its rules to require negative pressure contradicts its allegation that Exide is violating the negative pressure requirement.
The state’s department of Toxic Substance Control in April tried to close the plant due to its hazardous emissions, but Exide appealed and a judge overturned the order.
Saturday’s hearing was the first of several hearings to be held as part of the petition process. The next hearing will be held January 7, 2014 at the board’s Diamond Bar headquarters. Testimony is expected to continue in subsequent days and another community hearing will be announced before closing arguments.