If they only had a RCRA permit...Part 8

I began writing these posts, like I always do, without an end in mind.  They are spur of the moment research based on information I can readily find on the internet.  I never know where the web research will take me, though I am usually pretty confident that the topic I am writing about will be supported in the way I thought it would.

What I really like about doing this blog are the rabbit holes I get sent down.

This series of posts resulted from a Los Angeles Times article on how California's Department of Toxic Substances has been "ineffectual" in protecting the environment.  The evidence for this failure came in the form of this:

A quarter of California's 118 major hazardous waste facilities are operating on expired permits that may not meet current standards. In a conspicuous case, a battery recycler in Vernon whose lead and arsenic emissions have endangered the health of residents in southeast Los Angeles County has been smelting batteries for decades with only a temporary permit.

I started my environmental career in California, and that's not the DTSC and California I know (and loved!).

So I dug into the complaint about Exide, which had a similar smelter recently shut down in Texas.  Eight posts later, here I am, and I just now got around to reading the court documents posted by DTSC regarding the Exide facility.

A lot about what has been said about Exide's Vernon California facility troubles me.  I expect the public to yell "shut it down, shut it down!" What I did not expect was the DTSC to kowtow to public pressure to the point where they would lead the public into a false determination of "imminent and substantial" harm.

Apparently the Judge - who overturned DTSC's cease order - thought so as well:

Source

If you recall in my fifth post on Exide, I took issue with DTSC using a one in 1,000,000 (10-6) threshold while Proposition 65 allows for a deminimis of one in 100,000 (10-5).  The Judge took issue with that threshold too:

Source

In 2006 the DTSC had given the green light for Exide to finally get their Part B RCRA Permit (not that it would change anything mind you, but that's how it's supposed to work - Interim to Full).  What happened from that point to the consultant the DTSC hired to "review the existing permitting program and develop a recommended standardized process with clear decision criteria and corresponding standards of performance" recommending that to the DTSC that:

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.

What took place from 2006 to 2013?

The LA Times October 8, 2013 article regarding the consultant's report on DTSC's permit review process and the public hearing called on the same day it was submitted, concludes with the following:

The 115-page report also noted that representatives of many environmental groups believe that the department has "a strong bias toward industry at the expense of public health." Some in the hazardous-waste industry, meanwhile, told the authors that the Department of Toxic Substances Control allows "unreasonable opposition" from the public to stand in the way of permits even when objections are "not based on science or law."

I found it interesting that these consultants would be aware of this dynamic and still make the statement that the Exide facility should serve "as an example of when a permit should be revoked."

Why?

What's the "science or law" that supports that?  How is allowing Exide to continue to operate doing so "at the expense of public health?"  These consultants bring up a 2002 consent order, arsenic air emissions, and the stormwater issue as their reason for having DTSC deny the permit.  If the 2002 consent order was a problem it would have been addressed in the 2006 public notice giving the green light for the Part B RCRA Permit.

You have read my posts on the arsenic emissions so let's look at how the Judge saw the stormwater pipe issue:

Source

When Exide bypassed the old system it removed any harm the old system could have been causing.  In addition to that bypass, the Judge found:

Source

That removes the objection for the stormwater piping causing harm, let alone "imminent and substantial" harm.

What does the Judge say about the arsenic emissions?

Source

Okay, let's be upfront here.  These guys (Exide) are an industry that smelts lead form the recycling of lead-acid batteries.  They generate air, water, and waste emissions.  They make mistakes, have spills, have busted pipes, leaks, blips, blunders, and upsets.  The question becomes are these issues significant enough that they are causing harm to the public or environment?  Are their actions inherently more dangerous then any of the other operations in the area?  Would shutting them down remove the risk to a point where it is noticeable?

Let's look at where Exide is located:

The nearest sensitive receptor, an Elementary School, is 1.9 miles away.  In terms of risk to the public who live there, is the following concern valid?

Delores Mejia held a cardboard box of red-paint-splattered fake million-dollar bills, which she said represented blood money Exide has made at the expense of the largely working-class and minority community. (1)

If you remove that red dot from the map, what will change?  Here again is what the Judge thinks about Exide:

Source

What aggravates me on all of this is that DTSC has now painted themselves into a corner.  They were wrong to claim imminent and substantial and the court told them so.  One thing that I know about government folks who control agencies is that the do not like to be told they are wrong.  If you think DTSC is going to back away now, I have a bridge that you might be interested in.  They are going to look, and look, and look until they find something. 

The DTSC, working with the SCAQMD will eventually shut Exide down.  Their Bankruptcy will exacerbate their resolve to fight it and both these two agencies will nickle and dime them with technicalities.  The DTSC especially.  It got its hand slapped pretty hard by this judge and they will not take too kindly to backing off.

The red dot will be removed and the people in the area will not be made more safe, more healthy, or the environment more protected.  

Next Post: If they only had a RCRA permit...Part 9 (End)

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If they only had a RCRA permit...Part 7

Does Exide pose an imminent or substantial risk to the community?

The DTSC ordered Exide to cease operation on April 24, 2013 claiming that:

16.1 In a letter dated March 1,2013, the SCAQMD advised Exide that the HRA submitted by Exide in January, 2013 indicates the Facility poses a maximum individual cancer risk (MICR) of 156 in one million for an offsite worker receptor about 300 meters northeast of the Facility (primarily arsenic).

In addition to compromised stormwater piping that Exide self-reported, the HRA values for cancer and non-cancer risk were also used by the DTSC to claim the need immediately shut down operations on the grounds that these two situations met the 25186.2 conditions for DTSC action "necessary to prevent or mitigate an imminent and substantial danger to the public health or safety or the environment."

Assuming that fixing the stormwater pipes corrects and mitigates that issue, does Exide pose a "maximum individual cancer risk" now or at the time of the DTSC notice to cease?

Looking at Exide's HRA:

You will notice that arsenic is the primary contributor to the risk number that was quantified.  In the RRP, Exide states:

Analysis of the HRA results and concurrent research determined that approximately 90 percent of the above-tabulated risks were due to emissions of arsenic from the Hard Lead Ventilation System stack and that the source of that arsenic was the “leakage” of blast furnace process exhaust from its primary ventilation system into hooding served by the Hard Lead Ventilation System.

So if both Exide and the DTSC conclude that arsenic is the chemical of concern for the risk, eliminating or reducing the amount of arsenic put into the air would reduce that risk.  Exide made some modifications to their equipment and went back into the original numbers and recalculated the theoretical risk:

Promptly after AQMD approval of the HRA on March 1, 2013, Exide designed an isolation door on the charge chute to the facility’s blast furnace to minimize the potential for blast furnace process exhaust gases to be drawn into the hooding served by the Hard Lead Ventilation System. This door system was permitted on March 28, 2013, and became operational on April 4, 2013. This door remains closed except to open briefly when charge material is actually being added to the furnace, only a small percentage of the time. (1)

What if instead of calculating a theoretical risk we could agree on something a little bit more quantitative and easier to understand.  Let's makes some assumptions and hold them as true.

1. Exide should only be held accountable for the risk they pose over background.  That is, if you take Exide out of the equation and there is no difference in the amount of arsenic in the air, then the same risk is still present.  Exide is responsible for what they put in over that baseline.
2. We will assume that the cancer potency the SCAQMD used for arsenic calculates a risk of 16 in one million for one nanogram per cubic meter of air.
3. We will assume that the data collected by SCAQMD and reported in this document accurately reflects the actual amount of arsenic in the air near the Exide Vernon facility.
4. We will assume that April 4, 2013 the facility was in operation with the new controls put in place and on April 24, 2013 operations ceased.
5. We will assume that "the last week of June" is the 24th of June to indicate when Exide resumed operations.

What I am going to do is calculate the average arsenic concentrations for each of the monitors based on the data presented in the SCAQMD document.  I am going to do this for the following periods:

• April 4 to April 23 (new controls in place)
• April 24 to June 23 (Exide not in operation - background)
• June 24 to September 30th (Exide in operation last date for data provided)

I'll attach at the bottom of this post a gif of the spreadsheet I used to show the numbers that went into calculating these three time frames.  Here is what I came up with:

Based on where these monitors are placed...:

SCAQMD

According to SCAQMD's graph:

Source

The SCAQMD states that an average concentration of 1 nanogram per cubic meter equates to a lifetime cancer risk of 16.6 additional cancers.  I am not sure how they calculated that risk because it does not seem to jive with their written methodology for calculating cancer risk.

Based on California's 2003 "Air Toxics Hot Spots Program Risk Assessment Guidelines" the formula for calculating excess cancer risk look like this:

Appendix I - 4

The Inhalation Dose is based on this formula:

Appendix I - 2

Using their arsenic example for calculating the dose...:

Appendix I - 3

...I replaced 0,0015 micrograms with 0.0001 micrograms (1 nanogram).  The inhalation dose, based on 1 ng/m3 equals 3.8 x 10-8 mg/kg-day

To calculate the cancer risk per million, I replaced the Inhalation dose in the following example with the one calculated based on 1 ng/m3:

Appendix I-4

Based on an exposure of 1 ng/m3 the inhalation cancer risk is 0.45 chances per million.  That number is consistent with the cancer risk calculated by the WHO (0.66). [Cancer Potency checked 2011 most current]

So what does all this mean?

The DTSC gave an immediate cease operation order to Exide based on "imminent and substantial" harm to the public, claiming that:

Based on the Health Risk Assessment submitted to the SCAOMD, DTSC has determined that the Facility is operating its furnaces and its air pollution devices in a manner that is not sufficiently protective of human health and the environment, impacting as many as 110,000 residents in a large geographical area...

The HRA is a theoretical exposure calculated by Exide.  The graph SCAQMD put together represents actual concentrations of arsenic in the air. Before the order to cease operations was given by DTSC the SCAQMD had been collecting arsenic concentrations in the air in and around the Exide facility.

The SCAQMD calculated the highest monthly average of 3.33 ng/m3 from the off-site ATSF in May of 2012.  Assuming that all of that arsenic came from Exide - less the background I calculated (0.75) - this would give us a concentration of 2.58 ng/m3.

2.58 ng/m3 exposure equals a dose of 9.7 x 10-7.  With that dose, using the California HotSpot calculations, the excess cancer risk would be 11.67 in one million.

Would the highest amount calculated - before the modifications were made - be considered "imminent and substantial"?  That depends on how those two terms are defined.  Here is what the SCAQMD defines as "significant" in their Rule 1402:

Under the rule for air emissions, a cancer risk of 11.67 per one million would equal a risk of 0.11 per one hundred million and would not be considered "significant."

All of this information was available to the DTSC.  Heck if I can find it just using Google and a team of me, myself, and I, so could the DTSC.

Next Post: If they only had a RCRA permit...Part 8


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If they only had a RCRA permit...Part 6

April 24, 2013:

A separate report submitted to the South Coast Air Quality Management District by Exide demonstrates that emissions from the facility operations pose a significant risk to the surrounding community.

That's the reason DTSC gave for telling Exide to "CEASE OPERATIONS EFFECTIVE APRIL 24, 2013."

That report, called a "Health Risk Assessment" was required by the SCAQMD and approved by them on March 1, 2013.  The next step was for Exide to make a public notice and develop a Risk Reduction Plan (RRP) which they did on August 28, 2013.

The DTSC, with the data from the HRA - along with the stormwater pipe issues - struck Exide with a cease operations mandate, which Exide challenged and won, starting operations back up on the last week of June, 2013.

That's a nice little history lesson you might be thinking, but what does it have to do with anything?

My question, at this point in time, regards harm or risk to the community around the Exide facility in Vernon.  The public wants it shut down and they are concerned for their health, as the Los Angeles Times wrote October 8, 2013:

Joe Gonzalez of Boyle Heights demanded of regulators: "How dare you come back here and ask us what we want. You're killing us...at what point does this become blatant racism?"

De León, who called the meeting, noted that "there are no Exides in Brentwood ... in Malibu."

"Are our children worth as much as any other child?"

 Does Exide present a "significant risk to the surrounding community."?

Well, I guess that would depend on how one defines the term "significant."

Here is how the SCAQMD defines it:

Rule 1402

What's a MICR?

Rule 1402

What did the DTSC find in the HRA that indicated a "significant risk level?"

Source

Based on the data from the HRA, Exide presents a "significant risk level" for workers but not for the folks who live in the area.

The problem with those numbers; 156 in one million and 22 in one million, is that they are theoretical and based on a model.  Here is what the formula looks like:

Rule 1402

The MICR that is calculated is an estimate based on the premise that the receptor will be exposed to the maximum emission rate every day for a particular length of time (70 years for a residence).  All of this predicated on a calculated annual average concentration for all the chemicals emitted.  Those numbers are then multiplied by this thing they call in California the "Cancer Potency."

Cancer Potency, or the Slope Factor is how we determine that one in a million risk.  I written about it a lot in previous posts.  It assumes a straight line dose-response where no exposure = no cancer and any exposure = risk of cancer.  Remember that SCAQMD graph on arsenic in and around the Exide facility?

Source

Look at the sentence at the bottom.  The cancer potency derived from the slope of the line calculates 16.6 additional lung cancers per million for one nanogram of arsenic in one cubic meter of air inhaled everyday for 70 years.

Let me remind you how small a nanogram is.

• 1 milligram = 0.001 grams
• 1 microgram = 0.000001 grams
• 1 nonogram = 0.000000001 grams

I was curious to how that number was derived.  So I went to the Google and found a document from the World Health Organization (WHO) Regional Office for Europe, Copenhagen, Denmark.

Neutron activation analysis (NAA) has a detection limit of 0.1 ng for total arsenic

Okay, I was wondering how they can detect with any degree of confidence to the nanogram level.

Then I read this in the WHO document:

WHO

Wait...if the breathing rate is 20 cubic meters a day, and the estimated lower end is 20 ng, that would mean in a rural area the average amount of arsenic in air is about 1 nanogram per cubic meter.  The SCAQMD graph shows the average arsenic in the SCAQMD area to be just above 0.5 nanograms.  I thought that seemed low when I first saw the graph, but now it does not jive with what the WHO states should be found in industrial areas.

But I digress.  Back to slope factors:

WHO

Okay, that's a bunch of words.  What does it all mean?

WHO

The WHO estimates about 2 additional cancers per nanogram while the SCAQMD estimates 16 per nanogram.  That's how this process of looking at cancer risk works.  It's kind-of-sort-of quantitative but how accurate it is in actually determining the real risk is anyone's guess.  So what ever model they use, or data they depend on, once accepted becomes the way it is calculated.  They hope it reflects reality, but really what they want is the most protective model they can "scientifically" support.  The WHO supports 0.66 ng/m3 for a one in one million risk while California supports about 0.06 ng/m3 for the same risk.  Which one is correct?

As I have said before, this is how we do it, this is all we got, so...if you can support your slope factor then I will need to accept your estimated cancer risk.

The problem I have with this as it relates to Exide is that the DTSC used this calculated risk to meet the definition of "significant" which they then used as the reason to tell Exide to cease operation.

That's not what the estimate of risk calculated in the HRA was to be used for, and somebody at the DTSC should have known that.

Those values calculated by Exide and reported in the HRA are used to determine where effort needs to be placed in terms of controls.  This is done through the submission of a Risk Reduction Plan (RRP)

DTSC used those numbers claiming that they required the operation cease to "prevent or mitigate the substantial danger pursuant to Health and Safety Code Section 25186.2."

25186.2.  The department may temporarily suspend any permit, registration or certificate issued pursuant to this chapter prior to any hearing if the department determines that the action is necessary to prevent or mitigate an imminent and substantial danger to the public health or safety or the environment.

I went looking for California's definition of "imminent" in the Health & Safety Code

113810.  "Imminent health hazard" means a significant threat or danger to health that is considered to exist when there is evidence sufficient to show that a product, practice, circumstance, or event creates a situation that can cause food infection, food intoxication, disease transmission, vermin infestation, or hazardous condition that requires immediate correction or cessation of operation to prevent injury, illness, or death.

I went looking for the definition of "substantial" in California and this is what I found:

A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

Okay, so you get the picture.  I think DTSC misused the information in the HRA - theoretical risk - to claim actual risk.  Apparently so did a Judge and Exide was up and running the last week of June 2013.

Remember that graph from the SCAQMD?  They included the data along with the graph.

Back to my question.  Does Exide pose a significant or substantial risk to the community?  Or, looking at it another way, would the community see their health positively impacted if Exide were closed?

Next Post:  If they only had a RCRA permit...Part 7

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If they only had a RCRA permit...Part 5

So the DTSC tells us in Exhibit 2 that they accept "a cumulative risk that does not exceed a one in one million (10-6) for cancer risk."

That did not sit right with me.  I wrote about California and how it calculates the slope factor for carcinogens and how it applies to the Proposition 65 notification requirements.  So I went about looking for that document.  And I found it:

Page 3

So DTSC accepts a 10-6 cumulative risk except when they accept a 10-5 cancer risk. This is one of the main problems in establishing risk.  Sometimes one in a million is okay, sometimes one in ten thousand is acceptable.

Okay, okay, I know what you are thinking.  The SCAQMD found a residential cancer risk of 22 in one million to the nearest residential receptor.  That's a 2.2 to the 10-5 risk and that's over one in 100,000.

Yeah, okay, that creates an increase risk - theoretical mind you - but a risk.  Not sure that 2.2 x 10-5 constitutes "an imminent and substantial danger to the public health or safety or the environment" though, even if you include the leaky stormwater pipes.

My question is, at this point in the discussion, does the arsenic emitted from Exide put the community at an imminent and substantial danger?  Remember our three intrepid reports at the Los Angeles Times?  Here is what they wrote about this risk:

In March, the South Coast Air Quality Management District reported that arsenic emissions from the plant created an elevated risk of cancer for as many as 110,000 people in an area stretching from Boyle Heights to Huntington Park.

I wonder where they got that number?  Oh, that's what the DTSC claims in Exhibit 2 of their justification to order Exide to halt operations:

18. Based on the Health Risk Assessment submitted to the SCAOMD, DTSC has determined that the Facility is operating its furnaces and its air pollution devices in a manner that is not sufficiently protective of human health and the environment, impacting as many as 110,000 residents in a large geographical area that includes portions of Vernon, Maywood, Huntington Park, Commerce, Boyle Heights and unincorporated areas of east Los Angeles. The predominant contributor to both chronic and acute cancer risk and non-cancer hazard is arsenic emissions from the Facility, with the primary human organs that are harmed are the cardiovascular system, central nervous system, developmental system, respiratory system and skin.

What this tells me is that the Exide facility in Vernon, California is pumping into the air enough arsenic to harm 110,000 people, causing cancer and affecting their cardiovascular system, central nervous system, developmental system, respiratory system and skin!

So...what did the SCAQMD find regarding arsenic and Exide?  Let's look at this graphic first:

Page 2 of the report

Before I get into the details of what is going on, I want you to look closely at this graphic paying particular attention to the "y" axis.  Do this while repeating "and non-cancer hazard is arsenic emissions from the Facility, with the primary human organs that are harmed are [sic] the cardiovascular system, central nervous system, developmental system, respiratory system and skin."

If you have read any of my other posts you will understand why this one bugs me.  Do you see how much arsenic was detected in the air around the facility?  Not milligrams (1,000th of a gram), not micrograms (1,000,000th of a gram) but nanograms - 1,000,000,000th of a gram.

Yeppers, that's what we now look at for arsenic in the air.  Nanograms per cubic meter.  So my next question will be, does less than 3.5 nanogram per cubic meter (the highest amount shown on the graph) present an "imminent and substantial danger?"

Remember those loud and angry folks yelling “Shut it down! Shut it down!”?  Those folks look to the DTSC for an answer.  They look to us scientists, toxicologists, experts for an answer to their number one concern "are we being harmed?"  And the DTSC gives them this:

Based on an average of about 2 nanograms of arsenic in each cubic meter of air, Exide is impacting "as many as 110,000 residents."  And "the predominant contributor to both chronic and acute cancer risk and non-cancer hazard is arsenic emissions from the Facility, with the primary human organs that are harmed are the cardiovascular system, central nervous system, developmental system, respiratory system and skin."

Is that an accurate representation of the risk these residence are encountering?


If they only had a RCRA permit...Part 6

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

As I left off in my last post:

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

Here is what the DTSC stated in their 2006 Fact Sheet about Exide:

DTSC conducted a detailed review of the Exide Technologies Part B Permit application and has determined that it complies with all applicable regulatory standards and requirements.

Okay...no administrative dottin' and crossn' stuff holding it up...

DTSC completed an environmental impact evaluation called a draft Environmental Impact Report (EIR).

Okay...

The proposed project was concluded to have a potentially significant adverse air quality impact because PM10 (very fine particulate matter, under 10 microns in size) and off-site NOx emissions (nitrogen oxides, primarily related to trucks) exceeded the South Coast Air Quality Management District’s significance threshold for new sources.

So we have some air issues for particulate matter and nitrous oxide...

Note, that the Facility is not a new source and that all other emissions were determined to be less than significant.

What that means is that the requirements to deal with the PM and NOx are not as robust as they could be if the facility was a new facility.  That's part of the grandfathering issues with the Clean Air Act.  However, the DTSC found that all other emissions - which would include lead - were less than significant.

The impacts of the facility on all other environmental resources were also determined to be less than significant.

So other than PM10 and NOx, the DTSC had no environmental issue with Exide in 2006.  What about human health issues?

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).

Okay...

For cancer, the potential effects from the facility are well within health risk limits.

Good on the cancer impact...

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. 

Good on the non-cancer health impacts.

So what's the problem with issuing Exide their Part B permit in 2006? I can't find anything from that time using Google.  What I do find is information on a public meeting two California lawmakers had with the head of the DTSC.

I'll quote from Jessica Garrison's Los Angeles Times October 8th, 2013 article, starting here:

"Are our children worth as much as any other child?"

Agency Director Debbie Raphael somberly told the crowd that she could not explain the failures of the past but that her agency has been vigorously working to bring the facility into compliance during her two-year tenure.

Interrupting Raphael at one point, Mejia picked up a megaphone and screamed: "Stop permitting serial polluters! That's what you can do!"

It's the next paragraph that brought me back to Google for a search:

The meeting came the same day that the Department of Toxic Substances Control issued a consultant's report saying that its permitting program is racked by "poor management practices" and that the department does not have a system for revoking or denying permits even when there is a significant threat to human health, according to a consultant's report released by the agency Tuesday.

I looked at that report.  And what caught my eye was this:

Page 51 of the report

Here was the head of the DTSC being asked about the "failures" of the department with a consultants report concluding that the Exide permit should be revoked.

In 2006 everything was fine and now in 2013 no permit is the recommendation of their consultants that were hired to:

Using CPS HR Consulting's questions, I set out to find out why they made this recommendation.  Here is what the consultants say about Exide in their report to the DTSC:

Exide. This is a battery recycling facility located in Los Angeles area (City of Vernon). Exide is one of the last “interim” permits (a disposal site in existence prior to the 1982 law that established DTSC and grandfathered pre‐existing operators.) It has been controversial both because the South Coast Air Quality district has recently found its air emissions to pose elevated cancer risk in the area, while the Department discovered that the facility was releasing hazardous waste into the soil due to a degraded pipeline. The Department believed Exide was not fully cooperative or responsive.

In 2006 everything was in order, so where did this new information come from?

April 24, 2013: DTSC issued the order after receiving reports regarding airborne emissions from Exide’s operations and ongoing subsurface releases from degraded underground pipes.

All of this was happening under the backdrop of the fight in Texas over the Exide facility in Frisco. So what new stuff came into existence?  Enter Exhibits 1, 2, 3, and 4.  Man you gotta really get into the weeds to figure out what is going on.

Exhibit 1- Order of Temporary Suspension: "I conclude that it is necessary to issue this Order for Temporary Suspension pending hearing to prevent or mitigate the substantial danger pursuant to Health and Safety Code Section 25186.2."

Substantial danger...go on...

Exhibit 2: On March 5, 2013, Exide submitted a Storm Sewer Inspection Report (Report) which indicates that the underground pipelines used to convey the lead contaminated storm water to a hazardous waste treatment tank system are in poor conditions. Exide proposes to replace and design the underground pipelines to meet with the tank ancillary equipment requirements ... 

Okay, so that's what the consultant means as "releasing hazardous waste into the soil due to a degraded pipeline."  What about the claim that the SCAQMD "recently found its air emissions to pose elevated cancer risk in the area?"  Was this for PM10 and NOx?

16.1 In a letter dated March 1,2013, the SCAQMD advised Exide that the HRA submitted by Exide in January, 2013 indicates the Facility poses a maximum individual cancer risk (MICR) of 156 in one million for an offsite worker receptor about 300 meters northeast of the Facility (primarily arsenic).

16.4 Also, according to the SCAQMD, the HRA indicates the Facility poses a maximum individual cancer risk (MICR) of 22 in one million to the nearest residential receptor.

Wait...arsenic?  Nooooo not arsenic, and cancer?  Nooooo.  But alas, I must now go back to my ol' faithful nemesis, Arsenic.  That's what the DTSC is using to claim that "emissions from the facility operations pose a significant risk to the surrounding community."

Good ol' Arsenic.  Good ol' cancer risk...now the fun begins.  Is the DTSC correct in the assertion that the Exide is emitting arsenic into the community that increases the risk to "pose a significant risk to the surrounding community?"  Here is what they say in Exhibit 2 about that:

DTSC accepts a cumulative risk that does not exceed a one in one million (10-6) for cancer risk. A risk level of 10-6 implies there is a likelihood that up to one person. out of one million equally exposed people, would contract cancer if exposed to the specific concentration continuously (24 hours per day) over 70 years (an assumed lifetime). This would be in addition to those cancer cases that would annually occur in an unexposed population of one million people.

Okay, so the pipes be leakin' and Exide is going to fix them.  The arsenic presents another hurdle to overcome.  What I want to know is how they calculated that 22 in one million to the nearest receptor risk.

Inquiring minds gotta know.


If they only had a RCRA permit...Part 5

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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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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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