Sunday, December 29, 2013

If they only had a RCRA permit...Part 1

Been busy at work and have ignored my with that...

The Los Angeles Times had an article pop on my Google News feed yesterday:
Toxic waste watchdog can be glacially slow
It includes a photo with the caption " Protesters rally in October outside Exide Technologies, which has been required to set aside $7.7 million to replace leaking wastewater pipes and further reduce its arsenic emissions."  
Three reporters are credited with writing this article;  Jessica Garrison, Kim Christensen, and Ben Poston.  I am not sure where these three obtained their information for this story, but if I had to guess it was not from the DTSC (Department of Toxic Substances Control ), Exide, or anyone else in the Environmental Business other than those with the designation of "activist."

Maybe the "if it bleeds it leads" model is also in play for writing news articles on environmental issues.  Every photo they use is of protesters, except for the last one which is a really cool photo of a firefighter's arm and shadow while holding a sample.

There is a lot to talk about in this article, but I want to focus on the last part dealing with Exide.  Environmental regulation is complex.  I tell my students to "check their logic at the door" when we begin teaching our three day hazardous waste management class.  Laws and regulations are specific to what they cover and do not cover.  When you get into the environmental arena, it becomes even more convoluted and illogical.

So, if you are going to write about an environmental issue (take note Jessica Garrison, Kim Christensen, and Ben Poston), you need to spend some time understanding the topic.  You need to find the expertise out there to help you write objectively, unless that's not what you were going for with this article.

Hazardous waste requirements are very nuanced, so on the surface things can appear to be wrong, or dangerous, or unlawful.  That is why you attend training classes and consult with those that understand it.  Heck, even we experts get it wrong, but had we been consulted for this story, we would have painted a different picture about what is going on at Exide.

Let's start with this statement:

For decades, the Department of Toxic Substances Control has allowed the plant to operate without the full permit required by federal law. Instead, it has run on "interim status," a temporary designation intended to give companies time to qualify for permits and meet legal standards for safe handling and disposal of toxic materials.
What would a regular ol' Joe reading the LA Times come away with after reading that?  Is it true that for all this time they have not been required to perform safe handling and disposal of toxic materials?

These three reporters seem to be parroting the folks who are out there protesting.  They do not understand that there is almost no difference between the interim status requirements in 40CFR 265 and the full permit requirements in 40CFR 264.  They do not understand that even without an interim or full permit, Exide would meet the definition of a large quantity generator and would be required to meet most of the requirements for an interim status facility.

I lost you with that didn't I?  Too complicated, too many words, no photos of people in masks or with signs.  Boring ol' regulations.  That's what I write about.  Boring stuff in order to paint an accurate picture about what is really going on.  So if you are still reading, let's continue.

The Resource Conservation and Recovery Act (RCRA) is a federal law.  All states had to comply when the EPA's regulations were finalized in 1980.  California, being California (I was born there, educated there, and worked the first part of my environmental career there) set out to run their own RCRA program, getting full authorization in 1992.

I know this because I Googled for information on Exide in California and found this PDF from the DTSC.  After reading it, I became convinced that the three LA Times reporters never bothered to look for information that might paint Exide in a light other than bad.

I found another DTSC PDF that also describes the Exide situation regarding interim status.  Unfortunately, neither of these PDFs explain the nuance.  So I'll try and show why its no big deal for the facility to operate "for decades" under interim status.  That seems to be the crux of the "look how slow DTSC is."

Okay, from this point on, check your logic at the door and go where the regulations take you.

For four years prior to 1980 industry had known that there would be regulations coming out for waste streams deemed to be "hazardous."  The then owners of the Exide facility had been recycling the lead from lead-acid batteries for years prior to these new RCRA regulations.  They knew that the lead in lead-acid batteries was going to make their waste and their operation fall under RCRA.

So in 1980 the company that is now called Exide applied for an interim status permit with the EPA to continue their operation of recycling batteries and smelting lead. 

Let's look at how this permitting  process works:
The Resource Conservation and Recovery Act (RCRA) requires anyone who owns or operates a facility where hazardous waste is treated, stored, or disposed to have a RCRA hazardous waste permit issued by the U.S. Environmental Protection Agency (EPA).
We will come back to this because that requirement gets convoluted when it involves recycling.  According to the EPA:
There are two parts to a RCRA hazardous waste permit application – Part A and Part B.
Part A of the RCRA hazardous waste permit application consists of EPA Form 8700-23 (includes both the RCRA Subtitle C Site Identification Form and the Hazardous Waste Permit Information Form), along with maps, drawings, and photographs
Part B of the RCRA hazardous waste permit application contains detailed, site-specific information. There is no form for the Part B Permit Application; rather, the Part B Permit Application must be submitted in narrative form and contain the information described in applicable sections of 40 CFR 270.14 through 270.27.
That's the permit process in a nutshell.

1980 we get RCRA Regulations and in 1980 the Exide facility (different owner at the time) applies for a permit.  Here is what the EPA says about the interim permit:
Existing hazardous waste management facilities are those hazardous waste treatment, storage, or disposal facilities which were in operation or for which construction had commenced on or before November 19, 1980, or which were in existence on the effective date of the statutory or regulatory amendments that render the facility subject to the requirement to obtain a RCRA permit. RCRA establishes a procedure for obtaining interim status that allows these existing facilities to continue operating until a final hazardous waste permit is issued.
When did the Exide facility submit their interim status application?  November 19, 1980.

Now you need to remember that these were brand spanking new regulations for an agency that had been in existence for a little more than 8 years. Interim status was designed to give the EPA time to work through this process while allowing facilities to keep operating.

What's important to understand here is this statement made by the EPA:
RCRA establishes a procedure for obtaining interim status that allows these existing facilities to continue operating until a final hazardous waste permit is issued.
Here is what the EPA says about interim status:
Facility owners or operators with interim status are treated as having been issued a permit until EPA reviews the RCRA Part B Permit Application and issues a RCRA hazardous waste permit.
With or without a Part B permit, this battery recycling/lead smelting facility was required to meet regulatory standards for the treatments, storage, and disposal of hazardous waste.  But that's not what the three LA Times reporters tell you:
In 1992, soon after the state agency was founded, environmental activists flew to Sacramento and appealed to top officials to make sure the battery plant and similar facilities obtained permits.  
One by one, other facilities did.
Not Exide.
"How is that possible?" asked Jane Williams, executive director of California Communities Against Toxics, a nonprofit her mother helped found in 1989. "It's not like it's some small mom-and-pop facility that we have somehow missed ... Their smokestack can be seen from downtown L.A."
Those three reporters paint a very different picture for the reader then what is really going on.  Let's look at what the DTSC says about the Exide facility in 2006 when the Part B permit was up for public comment:
As part of the environmental impact evaluation of the facility, a Health Risk Assessment was prepared. The risk assessment evaluated potential cancer and non-cancer health effects that could be caused by the facility’s operations. The assessment took into account a variety of factors, including the types and maximum amounts of waste that would be stored and handled at the facility, and all the possible ways people could be exposed (through breathing the air emissions, coming into contact with the soil surrounding the facility, and similar activities).
For cancer, the potential effects from the facility are well within health risk limits.
For non-cancer health risks, the risk assessment evaluated chronic and acute health effects for both the nearby residents and facility workers. The assessment concluded that non-cancer health risks are also well within the state established limits.
"Well within health risk limits" or "Their smokestack can be seen from downtown L.A."

All I ask of folks who write for major news organizations is to write a full and accurate account of what is going on.

Yeah, I can hear what you are thinking, here it is in 2013 and Exide still does not have a Part B permit.  Yeah, that's a bit strange, but I think I have an answer for that.

Next post: If they only had a RCRA permit...Part 2


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