If they only had a RCRA permit...Part 2

According to the Los Angeles Times article:

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.

Mr. Marxen goes on to say:

"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."

In my previous post, I showed that an interim permit or a full permit really does not change anything.  To reiterate, there is very little difference between what an interim status facility does and what they will do when they receive their full Part B permit.

Interim status facilities, such as Exide, operate under the 40 CFR Part 265 standards:

PART 265—INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES.

This particular standard has a purpose:

(a) The purpose of this part is to establish minimum national standards that define the acceptable management of hazardous waste during the period of interim status and until certification of final closure or, if the facility is subject to post-closure requirements, until post-closure responsibilities are fulfilled.

Here is what the EPA has to say about this difference:

RCRA §3004 requires that EPA develop standards for both existing TSDFs that were immediately subject to regulation at the time the statute was enacted and for facilities that would be built after regulations were established. Congress also mandated that the standards for both types of facilities should only be different where absolutely necessary. To make allowances for existing facilities that would not be able to comply with the full regulatory program immediately, EPA promulgated interim status standards in Part 265.

Let's put this " For decades, the Department of Toxic Substances Control has allowed the plant to operate without the full permit required by federal law" to rest.  The LA Times and the DTSC spokesperson do not appear to understand that there is no difference.  Instead, lets look at why it is 2013 and the Part B Permit that Exide did apply for has still not been approved.

Here is a time line of permiting events for this facility:

The Facility has been used for a variety of metal fabrication and metal recovery operations since 1922. Previous owners have included Morris P. Kirk & Sons, Inc., NL Industries, Gould Inc. and GNB Inc.

Gould Inc. filed a RCRA Part A notification on November 19, 1980, as a treatment and storage facility. This Part A identified storage of spent lead-acid batteries and other lead-bearing material prior to treatment and recycling, and a wastewater treatment system.

Gould Inc. was issued an Interim Status Document (ISD) by the State of California Department of Health Services (DHS), DTSC’s predecessor agency, on December 18, 1981.

The U.S. EPA rescinded the Facility’s Treatment and Storage Facility classification by returning Gould Inc.’s original RCRA Part A application, after Gould eliminated its waste pile, claimed that the smelters do not require a permit, and requested reclassification to generator status.

The Interim Status Document was subsequently rescinded by DHS in 1982.

GNB, Inc. purchased the Facility and filed a revised Part A application on July 5, 1985.

On September 3, 1986, DHS determined that a permit was necessary.

GNB, Inc. submitted the first RCRA Part B application on November 8, 1988.

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.

On December 13, 1999, DTSC approved a Class 2 Interim Status modification for Supplemental Environmental Projects (SEPs) as a result of an enforcement case settlement.

On June 30, 2000, DTSC approved a Class 2 Interim Status modification, for replacement of the Waste Water Treatment Plant and to provide secondary containment.

On January 5, 2001, DTSC approved a Class 1 Interim Status modification, for change of ownership and operational control to Exide Corporation.

On November 16, 2001, DTSC approved a Class 1 Interim Status modification, for a name change from Exide Corporation to Exide Technologies.

Revisions to the Part B Application were submitted over the ensuing years with the latest being on April 17, 2006 and supplemental information on May 2, 2006.

In June of 2006 the Draft Part B goes out for public comment. 

Here is the most current information I could find about the status from DTSC, dated 10/18/2013:

Exide operates under an interim status authorization, and DTSC is reviewing the company’s application for a permit. As part of that review, DTSC could impose additional requirements that would force Exide to spend more money on upgrading the facility. In addition, Exide was required to set aside $10.9 million in a special fund to pay for any costs associated with closing the facility should that happen.

So, Exide is in bankruptcy, which you can than the good folks in Frisco, Texas, for.  That does not explain why from 2006 to October of 2013 the Part B has not been issued.  Here is what the DTSC says on their website for Exide:

DTSC then public noticed a draft Hazardous Waste Facility Permit (Permit), a Health Risk Assessment (HRA) and an Environmental Impact Report (EIR) on July 7, 2006. DTSC received numerous comments on the draft Permit, HRA and EIR.

Based on significant public inquiry and new regulations, significant upgrades were initiated at Exide under the joint oversight of the South Coast Air Quality Management District (SCAQMD) and DTSC. Exide has submitted a new permit application to DTSC which is currently under review by DTSC. 

Disregarding the bankruptcy issues, the time delay appears to be based on no one wanting to bring this thing to closure.  The local community wants the facility shut down.  But the DTSC nor the SCAQMD can shut them down permanently as long as they comply with corrective orders.  Every time they bring something up, Exide sets out to fix it.  There is no reason to delay the Part B permit other than public outcry that will come forth because a permit was approved.

DTSC is in a very bad place with this.  The latest tactic appears to involve going after Exide because the facility poses "an imminent and substantial danger to public health and the environment."

The Stipulation and Order resolves the administrative suspension order that DTSC issued against Exide in April 2013 and resolves a legal action that Exide filed against DTSC in June 2013. The Stipulation and Order sets out conditions that Exide must meet and timelines for completing them. It requires Exide to set aside $7.7 million in a special fund for upgrading the storm water system, reducing arsenic emissions in the air, blood lead testing in the community and sampling dust and soil around the facility. It sets a sliding scale of fines up to $10,000 per day if the conditions are not met. It means that Exide is being closely monitored, and the facility will be made safe or DTSC will shut it down again should the facility pose an imminent and substantial danger to public health and the environment. The Stipulation and Order addresses concerns additional to those posed in the earlier suspension order. The Stipulation and Order is separate from Exide’s application for a permit, which will be decided on its own merits.

As long as Exide commits to fixing the problem, the less reason DTSC has to deny the permit. Once the permit is issued, nothing changes other than the public's understanding that Exide is going to continue operation.

There are two things going on here.  This is speculation on my part.

1. The DTSC keeps them in perpetual interim status to promote the appearance that they could be shut down and to avoid the public's wrath for issuing a permit.
2. Keeping Exide in perpetual interim status benefits both parties and prevents Exide from pursuing a legal challenge.

I suspect that Exide knows that it needs to do what it takes to meet the current requirements in terms of perceived risks.  If the levels of air contaminants are too high then they will put controls in place.  If the stormwater pipes are leaking they will fix them.  This seems to be what is taking place.

As long as the public does not want Exide there in Vernon, DTSC will drag their feet until Exide cries uncle, which is probably in the next year since they also had public problems with their smelter in Frisco, Texas.

I want to move from Exide as a company and look at RCRA permitting for a company that recycles lead acid batteries.

Next post: If they only had a RCRA permit...Part 3

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