If they only had a RCRA permit...Part 3

Okay, so let's be honest with one another here regarding the Exide facility in California.  The NIMBY folks and the environmental activists folks do not want it.  Period.  No matter what Exide does to reduce, control, or eliminate exposure, the fact that they have a smoke stack, operate a smelter, and work with lead - a chemical they know causes harm to children - makes this facility unwanted.

There is nothing, absolutely nothing, that will convince these loud and angry folks otherwise.

Nothing.

That's not how the DTSC is supposed to look at the situation.  They are supposed to make decisions on health impact based off of data that supports or contradicts the contention of "imminent and substantial danger to public health and the environment." (1)

The loud and angry folks that protest, yell, threaten, and show up at public meetings to discus things like Exide's Part B permit, are the ones who get the agency's attention.  No one at the DTSC has the guts to tell them to shush and look at the numbers and evidence to determine harm.

On Tuesday, critics of Exide and state regulators, including Assembly Speaker John A. Pérez and two state senators, complained bitterly about how the residents were being treated. According to the Los Angeles Times, lawmakers clapped along while the audience rhythmically chanted, “Shut it down” at a community meeting attended by DTSC Director Debbie Raphael and other regulators.  (2)

 The other issue at hand is an agency - and this is not inclusive of only DTSC - that does not fully understand the science and technicalities regarding the stuff they regulate.  Remember the quote from the DTSC's "top spokesman" as quoted in the LA Times article that started these blog posts?

Jim Marxen, the agency's top spokesman, said last week that regulators do not have a good explanation for the plant's continued operation without a full permit.  "I don't blame the activists who say we are slow to act," he said. "If that was in my neighborhood, I would say the same thing. ... Ten years ago, when they had hearings on this, there was frustration even then."

Maybe he does know there is no difference between an interim status facility and a full Part B facility, but he is perpetuating the belief that the "neighborhood" is being impacted without a Part B in place.

The other issue in play regarding the permit revolves around the question; Is a Part B permit actually required?  Here is what California says about the Exide facility in Vernon:

A RCRA Permit (42 U.S.C. Section 6901 et seq.), is required for the storage, treatment, and disposal of hazardous wastes, and corrective action for the releases of hazardous wastes / substances found at the facility. On August 1, 1992, DTSC received RCRA final authorization from the U.S. EPA to implement the State Hazardous Waste Management Program (HWMP) in lieu of the federal RCRA program. Therefore, a Permit issued by DTSC is considered a RCRA-equivalent Permit.

The issue of whether a Part B permit is actually required in California is beyond my expertise. What I do know about Part B permitting is from the Federal point of view.

Under 40 CFR 266.100(c), owners or operators of smelting, melting, and refining furnaces that process hazardous wastes solely for metals recovery are conditionally exempt from regulation, except for 40 CFR 266.101 and 266.112, provided they comply with limited requirements set forth in Section 266.100(c). Similarly, 40 CFR 266.100(f) provides that owners or operators of smelting, melting and refining furnaces that process hazardous wastes for the recovery of precious metals are conditionally exempt from regulation, except for 40 CFR 266.112, provided they comply with limited requirements specified in Section 266.100(f).

Here is where it gets nuanced.  Are lead-acid batteries hazardous waste?  In California they appear to be:

Processing lead-acid batteries for recycling by draining the electrolyte, crushing, smelting or other physical methods is a fully regulated hazardous waste activity that requires a hazardous waste treatment permit. (4)

From the federal perspective, they are not:

40 CFR 266.80: If you generate, collect, transport, store, or regenerate lead-acid batteries for reclamation purposes, you may be exempt from certain hazardous waste management requirements.  Alternatively, you may choose to manage your spent lead-acid batteries under the ‘‘Universal Waste’’ rule in 40 CFR part 273.

40 CFR 273.2: A used battery becomes a waste on the date it is discarded (e.g., when sent for reclamation).

Remember how I said hazardous waste regulations are nuanced?  Let's not get into the definition of "discarded" or "core charges."  At some point the used lead-acid battery will need to be reclaimed.  That's what Exide does.  They smelt the lead to make new batteries.  The act of smelting is reclamation.  The reclamation allows the lead to be used again in new batteries.  That's recycling.

EPA says that Universal Waste (lead-acid batteries) that will be sent for recycling, fall under 273.60

(b) The owner or operator of a destination facility that recycles a particular universal waste without storing that universal waste before it is recycled must comply with 40 CFR 261.6(c)(2).

Because Exide stores the batteries, they must do the following in (c)(1):

(c)(1) Owners and operators of facilities that store recyclable materials before they are recycled are regulated under all applicable provisions of subparts A though L, AA, BB, and CC of parts 264 and 265, and under parts 124, 266, 267, 268, and 270 of this chapter and the notification requirements under section 3010 of RCRA, except as provided in paragraph (a) of this section. (The recycling process itself is exempt from regulation except as provided in §261.6(d).)

Note the last sentence?  "The recycling process itself is exempt from regulation except as provided in §261.6(d)"  Because Exide will store the batteries prior to reclamation, they must meet those requirements in 264/265.  In a nutshell, here is what the EPA says:

Spent lead-acid battery reclamation regulations are found in Part 266, Subpart G. Generators, transporters and storers are not subject to regulation under 40 CFR Parts 262 through 266 or Parts 270 or 124 or Section 3010 of RCRA per 40 CFR 266.80(a). However, reclaimers who store batteries prior to reclamation are subject to most facility standards and permit requirements with regard to storage per 40 CFR 261.6(a) and 40 CFR 266.80(b). Generally, the reclamation process itself is exempt from regulation.

261.6(a) states the same thing as (c)(1) above.  266.80(b) is the requirement for lead-acid batteries and a facility like Exide that stores and reclaims "are subject to 40 CFR parts 261, §262.11, and applicable provisions under part 268 [land disposal requirements]."

This leaves the "recycling unit itself" - in this case the smelter - which for lead-acid battery smelting is exempt.

Under 40 CFR 266.100(c), owners or operators of smelting, melting, and refining furnaces that process hazardous wastes solely for metals recovery are conditionally exempt from regulation, except for 40 CFR 266.101 and 266.112, provided they comply with limited requirements set forth in Section 266.100(c)[sic]. (5) (Note: 266.100(c) should be 266.100(d))

266.101: Management prior to burning

266.112: Regulation of residues

266.100(d): owners or operators of lead recovery furnaces that are subject to regulation under the Secondary Lead Smelting NESHAP must comply with the requirements of paragraph (h) of this section.

266.100(h): Starting June 23, 1997, owners or operators of lead recovery furnaces that process hazardous waste for recovery of lead and that are subject to regulation under the Secondary Lead Smelting NESHAP, are conditionally exempt from regulation under this subpart, except for §266.101. To be exempt, an owner or operator must provide a one-time notice to the Director identifying each hazardous waste burned and specifying that the owner or operator claims an exemption under this paragraph. The notice also must state that the waste burned has a total concentration of non-metal compounds listed in part 261, appendix VIII, of this chapter of less than 500 ppm by weight, as fired and as provided in paragraph (d)(2)(i) of this section, or is listed in appendix XI to this part 266.

That's on the federal side of it.  California, a whole 'nother beast if thar ever be one, can ignore all that and be much more stringent.

Which brings us to the 2006 DTSC public notice regarding the Part B permit?  What happened between 2006 and present date?

If they only had a RCRA permit...Part 4

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