If they only had a RCRA permit...Part 9

On December 15, 2013, the Los Angeles Times begins another article about Exide with this:

One by one, hour after hour Saturday in a ballroom at Cal State Los Angeles, residents, elected officials and activists from southeast Los Angeles pleaded with an air district hearing board to shut down a Vernon battery recycler accused of endangering hundreds of thousands of people because of unsafe arsenic and lead emissions.

"I'm a mother, asking you, please, do something," said Sandra Martinez. "I go days without sleeping, worrying about my child dying in his sleep from asthma."

The DTSC consultant hired to look into problems with the permitting process tells us:

The facility serves as an example of when a permit should be revoked; it is on an interim status permit and has numerous air quality, solid waste and hazardous waste issues.

The DTSC tells us:

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 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.

Is Exide the health and environmental problem these three three organizations tell us it is?

I have tried to look at this question from the case of actual harm.  I cannot see it, nor can I see anything that comes close to imminent or substantial harm.  That leaves risk.  Does Exide pose a risk whereby shutting it down will make a difference?

That's a difficult question to answer because risk perception is in the eye of the one who thinks they may be at risk.  So we normally focus on the term "significant" or statistically high risk.

Let's look at this common situation as an example.  Is there a risk that an airplane up in the air could crash onto your house and harm you?  If you live close to an airport, does that risk increase?  If the airport is a major one, does that risk increase more?  If you live in the flight path does the risk increase even further?

Is there risk living in Vernon, California?  Let's look at their City Logo:

If you live in or around an area that claims itself to be "exclusively industrial" then your risk increases regardless of Exide being present.  That does not mean you need to be exposed to unnecessary risks or risks that have very little benefit.  The question becomes how do we define what is a necessary risk or a benefit that makes the risk acceptable?

The folks that show up at these meetings do not care about the question of acceptable risk.  Exide does not benefit them so shutting it down will remove the risk, end of story.

So, how many planes do we need to remove from the sky to benefit those that live near a major airport in the flight path to reduce their risk?  Should those folks get a say in the amount of risk they must endure, that is, should they be able to ground the planes or close the airport?

If we were to shut down Exide today, would the overall risk to their health be greatly improved or would it be negligible?  Unless we remove every airplane from the sky the chance of an airplane crashing into your house is always there.  There is always a risk.  Removing an airplane, or the airport, does not eliminate the risk, it lowers it from there to still there only less.  Same goes with removing Exide.  Based on the data available, the risk to health and safety and to the environment is no different than any of the other businesses that use chemicals and emits into the air.

Is Exide inherently more dangerous than the freeway, rail yard, or other businesses with air permits in and around the community that thinks it is being harmed?

How should we make this determination?  Should it be based on evidence?  Should we use science and consensus?   Should one contributor to risk be singled out or should it be compared to others?

Let's start with science.  In particular lets look at dose-response, one of the fundamental principles of toxicology - the study of harmful effects caused by poisons.  Basically, everything is toxic but at a certain dose, it is not.  We look at carcinogens differently, claiming a risk at any dose, the less exposure the less risk.

Here is how those smarty-pants at Johns Hopkins University look at it

The magnitude of the toxic effect will be a function of the concentration of altered molecular targets, which in turn is related to the concentration of the active form of the toxicant (biologically effective dose) at the site where the molecular targets are located.

If you think Exide is causing a toxic health impact where is the data to back that up?  The judge that overturned DTSC's cease operation order recognized this when he stated that the evidence DTSC provided was an "avalanche of conclusions, speculation, and innuendo [which is] not a substitute for evidence,"

The activists leading the call to "shut it down, shut it down!" are never going to be satisfied with any scientific evidence provided showing that the facility is not impacting the community in which it resides.

Case in point:  The folks who took issue with the Exide smelter in Frisco, Texas, started a group called "Get the lead out of Frisco"  This Exide smelter had been operating with no issues up until the EPA lowered the threshold for lead from 1.5 ug/m3 to 0.15.  With that change the facility was out of compliance and new controls had to be put into place.

Honeycutt Presentation - TCEQ

At the new threshold of 0.15, some folks in Frisco deemed the smelter unsafe fearing that they were being impacted by the lead that was being emitted.  Even when the State of Texas showed that 95% of the 605 blood samples collected within the community "did not contain detectable levels of lead" this same group would not accept the results as valid or indicative of no impact.

“There are many questions concerning the methodology for the sample collection, the size and demographics of the population sampled...” “Because important details are lacking, the TDSHS fact sheet is unusable to citizens and policy makers of the City of Frisco for establishing primary prevention priorities for the community.”

That blood-lead analysis took place in 2011.  So what does the DTSC require Exide in Vernon, California, to do in 2013?

Additional funds also will pay for the voluntary blood testing of residents of Vernon and other nearby neighborhoods...

The tests will provide more information regarding potential health and environmental impacts from the Exide facility. Higher lead levels in blood could be an indicator of a health risk. Those findings, combined with data from soil and dust sampling, will help determine if the facility is a source of contamination. That information will be helpful to DTSC in determining future steps.

At what threshold of lead in the blood will the DTSC deem to be safe?  How will they convey those finding to the public, especially if they are below 10 ug/dL, to those that are chanting for the facility to be shut down?

The data we have does not support shutting Exide down.  And yet, as reported by the LA Times on December 15, 2013, Nancy Feldman, the SCAQMD's lawyer tells us:

...compared Exide's pollution control system to a vacuum cleaner that spews dust and debris from the carpet "out of the sides before it ever reaches the filters in the vacuum" and "more distressing ...it actually spits dirt right out the front, back onto your carpet."

That may be an apt analogy but that's not what her agency's arsenic monitoring shows is happening in terms of impact.  So why paint a picture in the public's eye that they are not being protected, that Exide is just letting this dust spew all over?

The public does not understand toxicity, cancer potency, nanograms, blood-lead levels, imminent, substantial, significant, or elevated health risk.  It understands a smoke stack, lead, arsenic, and cancer.  It needs the agencies tasked with protecting them to tell them what it all means.  And Exide, along with all the other businesses that are regulated by these agencies, need a fair representation of what their impact is.

How should risk and harm be quantified and what standards should we use?  Are reasonable standards of impact and risk being utilized by the DTSC, SCAQMD, The LA Times, and the activists groups yelling shut it down, shut it down?

Or maybe Exide employee Juan Felix - who told the LA Times that he has seen "vast improvements" to reduce emissions at the plant - should be considered.  "They do care about the community and they do care about the health and safety of employees," he said. "Take the time to look at the facts."

They will shut down Vernon's  Exide facility just like they did in Frisco, Texas.  And that will leave one lead-acid battery recycler in California.  The number of spent lead-acid batteries being generated will not decrease, in fact, with all the smart cars being proposed, the need to recycle this lead will increase.

Here's the thing.  You cannot recycle lead-acid batteries without a smelter.

So where will all these lead-acid batteries go?  Not here in the US.  They will most likely open a facility in Mexico.  It will be operated safely to Mexico standards. Those standards, by the way, are not the same as California - you know - the state where Exide currently resides.  But that's okay isn't it? It won't be in their backyard any more, so all will be good.

And here is something I will bet money on.  You know that Senator Kevin de León the LA Times quoted as saying "are our children worth as much as any other child?"  He won't be in Mexico demanding that California controls and regulations be used for the smelter they will use to recycle the lead-acid batteries we generate but don't want to properly recycle in our own country.

"Shut it down, shut it down!" is nothing more than "not in my backyard" which is nothing more than turning a blind eye to where it eventually ends up.  And that, in my opinion, is a terrible way to manage risk and set policy.

Thanks for reading.

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

Been busy at work and have ignored my blog...so 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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