BILL ANALYSIS �
SB 712
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: SB 712
AUTHOR: Lara
AMENDED: January 6, 2014
FISCAL: Yes HEARING DATE: January 15,
2014
URGENCY: No CONSULTANT: Rachel Machi
Wagoner
SUBJECT : HAZARDOUS WASTE FACILITY: PERMITTING: INTERIM
STATUS
SUMMARY :
Existing law :
1) Under the federal Resource Conservation and Recovery Act
(RCRA) of 1976, governs the disposal hazardous waste:
a) Through regulation, sets standards for the treatment,
storage, transport, tracking and disposal of hazardous
waste in the United States.
b) Authorizes states to carry out many of the functions
of the federal law through their own hazardous waste
laws if such programs have been approved by the United
States Environmental Protection Agency (US EPA).
2) Under the California Hazardous Waste Control Act (HWCA) of
1972:
a) Establishes the Hazardous Waste Control program.
b) Regulates the appropriate handling, processing and
disposal of hazardous and extremely hazardous waste to
protect the public, livestock, and wildlife from hazards
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to health and safety.
c) Implements federal tracking requirements for the
handling and transportation of hazardous waste from the
point of waste generation to the point of ultimate
disposition.
d) Establishes a system of fees to cover the costs of
operating the hazardous waste management program.
e) Authorizes the Department of Toxic Substances Control
(DTSC) to enforce federal law and regulations under
RCRA.
f) Requires DTSC to grant and review permits and enforce
HWCA requirements for hazardous waste treatment, storage
and disposal facilities.
This bill :
1) Makes various findings and declarations stating that the
Legislature intends to identify and protect overburdened
communities that suffer from asthma, cancers and other
illnesses born from heavy industrial pollution and ensure
increased public participation from affected communities in
governmental decision making processes.
2) Requires DTSC to take final action prior to July 1, 2015 on
an application for a hazardous waste facilities permit by
any facility operating under interim permit status issued
prior to January 1, 1986.
3) Provides that interim status granted for a hazardous waste
facility after January 1, 1986 but prior to January 1, 2015
shall terminate on January 1, 2020.
4) Provides that any interim status granted for a hazardous
waste facility shall terminate five years from the date on
which the status was granted.
COMMENTS :
1) Purpose of Bill . According to the author, the Exide
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Technologies battery recycling facility in Vernon, CA
recycles lead from used automotive batteries and has a long
history of hazardous waste law violations.
The author states that in April, 2013, the facility was
ordered to close immediately by DTSC due to "an imminent
and substantial danger to public health, safety, and the
environment" after testing showed unsafe levels of arsenic
in air emissions and degraded underground pipelines were
found to be leaking dangerous levels of lead into the
ground.
The author further states that Exide is currently operating
under an interim permit that was issued in 1981, and has
never been issued a final permit by DTSC and it is the only
facility, out of 117 facilities permitted by DTSC subject
to RCRA, which still has an interim status permit.
According to the author, this bill will require hazardous
waste facilities that have been operating under an interim
permit from DTSC for an extended period of time to achieve
compliance with federal and state hazardous waste laws and
for DTSC to render a final permit decision by July 1, 2015,
and will also limit the amount of time a facility can
continue to operate under an interim permit to five years.
2) Exide Technologies . Exide Technologies is an American
manufacturer of lead-acid batteries, including automotive
batteries and industrial batteries. Its four global
business groups (Transportation Americas, Transportation
Europe and Rest of World, Industrial Power Americas, and
Industrial Power Europe and Rest of World) provide stored
electrical energy products and services.
Exide's global headquarters are located in Milton, Georgia.
It has both manufacturing and recycling plants.
Equipment used in the battery recycling process includes
machines to break batteries apart and separate different
materials, furnaces and kettles to melt metals, and
miscellaneous equipment including storage tanks, conveying
equipment, and engines. Exide operates numerous pieces of
control equipment to reduce pollution including baghouses,
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dust collectors, and filters for reducing dust and metals;
and scrubbers, mist eliminators, and an afterburner, which
remove pollution from gases.
Exide has five "secondary lead" smelters or recyclers, only
two of which - Forest City, Missouri, and Muncie, Indiana -
are operating.
However, at the Muncie, Indiana plant, Exide settled a
notice of violation and signed an agreed order with the
Indiana Department of Environmental Management that calls
for fines if it does not meet specified cleanup conditions
involving brown-colored, lead contaminated water along a
storage area and rail spur near a ditch leading to a
stormwater outfall.
Exide closed its smelter in Frisco, Texas, in 2012 after a
lengthy battle by the city and residents over lead and
arsenic pollution coming from the site. The plant ceased
operations November 30, 2012, as part of an agreement with
the city. The agreement calls for the City of Frisco to
purchase about 170 acres of buffer land from Exide for $45
million. Exide will keep the 90 acres used for its
operations. The deal is contingent on complete cleanup.
Preliminary estimates peg cleanup costs at anywhere from
$15 million to more than $130 million. However, over a
year after the plant closed, Exide has not fully
characterized the extent of the contamination or cleanup.
An article by the Dallas Morning News, states that "efforts
the past year have been complicated by Exide's bankruptcy
filing in June."
3) Exide, Vernon, California . The Exide facility in Vernon,
California is one of two secondary lead smelting facilities
in California which recovers lead from recycled automotive
batteries. It has over 100 employees. It recycles 23,000
to 41,000 batteries daily and has an average production of
100,000 to 120,000 tons of lead per year. This is
equivalent to recycling approximately 11 million car
batteries, which is about the same number of used batteries
generated in California annually.
Battery recycling recycles 97% of the battery lead to be
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recycled.
Exide also recovers lead from lead bearing plant scrap and
secondary materials, primarily from lead-acid battery
manufacturers.
This facility is regulated by various local and state
regulatory agencies.
DTSC regulates companies that handle hazardous waste under
federal and state hazardous waste laws. DTSC permits and
inspects facilities, issues violations of hazardous waste
rules, and monitors corrective action at sites.
The South Coast Air Quality Management District (SCAQMD)
regulates Exide's air emissions, in part with what is
called a Title V permit, which allows the company to
release pollutants into the air up to certain levels.
The Los Angeles Regional Water Quality Control Board
(LARWQCB) is responsible for protecting water quality.
Exide has wastewater treatment systems, and a stormwater
system that includes a retention basin. LARWQCB with the
State Water Resources Control Board set and enforce
standards for water that flows away from Exide's property
into the sewer.
The City of Vernon issues health and other permits to
Exide.
4) The History of the Exide Hazardous Waste Permit . The
facility in Vernon has been operating with an interim
hazardous waste facility permit since 1981. However, it
has had several owners prior to Exide Technologies.
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
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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 US EPA rescinded the facility's Treatment and Storage
Facility classification by returning Gould Inc.'s original
RCRA Part A application, after Gould Inc. 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 hazardous waste
facilities permit was necessary.
GNB, Inc. submitted the first RCRA Part B application on
November 8, 1988.
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.
In 2006, Exide submitted a completed application and DTSC
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circulated for public hearing, a draft permit for the
Vernon Exide facility.
In mid-2006, DTSC received significant comments from the
SCAQMD and the public in regards to three specific areas:
1) the risk assessment prepared by the contractor used
proprietary software, which was not accessible by the
public to verify parameters and assumptions used in the
risk assessment model. The risk assessment model for the
air emissions model was not an approved model by SCAQMD; 2)
the environmental impact report (EIR) lacked significant
alternative analysis to mitigate the environmental impacts;
and 3) the Part B application had not adequately assessed
the secondary containment, tank systems, and closure of
former tank systems.
As a result DTSC took the following actions: 1) worked
closely with SCAQMD to require Exide to prepare a risk
assessment (AQMD required risk assessment for air
emissions); 2) prepared a revised EIR; and 3) required
Exide to submit a revised Part B application addressing
comments received during comment period.
In 2010, the risk assessment indicated high arsenic
emissions prompting Exide to petition SCAQMD to redo the
source testing (data required for the risk assessment) in
order to prepare a revised risk assessment. [Note: source
testing is an expensive process that can cost up to $1
million).
In January 2013, Exide provided DTSC and SCAQMD with a
revised risk assessment. The risk assessment showed high
risks to potential receptors (workers and residents).
In April 2013, DTSC issued an administrative suspension
order because it was concerned about the releases of
hazardous waste (leaking stormwater pipes) and air
emissions into the environment.
In May 2013, Exide requested a hearing with the Office of
Administrative Hearings (OAH). A hearing was held in June
2013 by OAH.
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In June 2013, the Los Angeles Superior Court granted
Exide's ex parte application and issued a temporary
restraining order which stayed the Order for Temporary
Suspension and prevented DTSC from enforcing it until the
hearing and determination on the order to show cause
regarding the preliminary injunction was concluded.
In October 2013, DTSC and Exide signed a Stipulation and
Order. 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. There are automatic penalties in place if
the timelines are not met as specified in the Stipulation
and Order.
October 2013 - Present: Exide is in the process of
implementing the requirements set forth in the Stipulation
and Order.
5) History of Environmental Impact and Enforcement at Vernon
Exide Facility .
1999-2000
DTSC found lead at levels of 40 percent in the
sediment at the bottom of the stormwater retention
pond and required Exide to clean it up.
2003
DTSC fined Exide $40,000 for improper storage of
used lead-acid batteries. Exide delayed payment
because of the company's Chapter 11 bankruptcy filing.
2004
DTSC took emergency measures in 2004 and again
in 2008 to require Exide to clean up a
lead-contaminated drainage channel, and public areas
like sidewalks, streets, and neighboring roofs.
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SCAQMD fined Exide and Exide paid $3,000 to
settle two air quality violations with regulators.
2006
DTSC fines Exide $39,000 for failing to minimize
the possibility of hazardous releases.
2007
A study prepared by e2 Environmental for Exide
at the request of the LARWQCB, and shared with DTSC
officials, said modeling of the dispersion of heavy
metals from the site "suggest that in the last three
years, Exide has contributed through deposition
approximately 424 lbs. of lead in both 2004 and 2005,
and 712 lbs. of lead in 2006 to the watershed."
2008
Exide paid $5,000 to settle an air quality
violation with SCAQMD.
2009
During an annual compliance evaluation
inspection, DTSC officials find lead sludge in the
stormwater retention basin. Exide tells regulators it
cleans out the basin once a year. That discovery
leads to an enforcement order in 2010.
In May, Exide paid $7,500 to settle an air
quality violation with regulators.
In July, Exide paid $150,000 to settle 14 air
quality violations with SCAQMD. In addition, Exide
paid $250,000 to partially reimburse air regulators
investigation and enforcement costs.
2010
DTSC fined Exide more than $100,000 for lead
releases into the environment.
SCAQMD adopted Rule 1420.1 - Emissions Standards
for Lead from Large Lead-Acid Battery Recycling
Facilities. The rule imposed on Exide more stringent
monitoring, operating and reporting requirements in
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order to meet the new lowered federal emissions
standards for lead. Rule 1420.1 requires total
facility enclosure, additional air monitoring and
sampling, annual source testing, and additional
housekeeping measures.
2011
Exide told SCAQMD that it exceeded ambient
concentrations of lead that had been defined the
previous November. By the beginning of 2012, the
company lowered its air emissions of lead with
additional measures, thereby complying with the law.
2012
SCAQMD approved a settlement with Exide of
$119,000 to settle 7 air quality violations.
2013
March
A Health Risk Assessment by Exide indicated 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). Air regulators also asserted that the
facility poses a maximum chronic hazard index (HI) of
63 for the respiratory system at the same offsite
worker receptor identified in Section 16.1 (from
arsenic).
In a report by Exide, breaches were detected in
underground pipelines which were used to convey the
lead contaminated stormwater to a hazardous waste
treatment tank system. They were found to be in poor
conditions from an accumulation of semi-solid sludge
materials (also known in the industry as mud)
generally throughout the piping system that contained
elevated levels of hazardous waste, specifically
metals (e.g., lead, arsenic and cadmium).
SCAQMD ordered Exide to submit a risk reduction
plan for air emissions, and ordered the company to
hold public meetings, after a report completed in
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January showed cancer risks of 156 in a million mostly
from arsenic in areas immediately surrounding the
plant.
April
DTSC director Debbie Raphael ordered Exide to be
closed, finding that "an imminent and substantial
danger to the public health, safety and the
environment" exists. The finding was based on a
"recent report" submitted by Exide showing that
underground storm sewer pipelines are releasing toxic
material to the environment, and on a report submitted
by Exide to SCAQMD showing that toxic emissions pose a
risk to the surrounding community.
May
Exide Technologies contested the shutdown and
called for a hearing before an administrative law
judge. "The DTSC has known of the issues raised in the
Order and Accusation for an extended period of time,
and has consented to Exide's continued operation,"
wrote the Los Angeles firm of Sheppard, Mullin,
Richter & Hampton, in the notice of defense Exide
submitted.
June
Exide Technologies filed for Chapter 11
bankruptcy protection. Exide Technologies reported
$1.9 billion in assets and $1.1 billion in liabilities
as of the end of last quarter. By entering Chapter 11,
the company is likely to avoid paying off maturing
bonds and payments for debt interest.
Judge Luis Lavin issued a temporary restraining
order against DTSC, writing that Exide would be
irreparably harmed by a slow administrative hearing,
and that the public interest will not suffer by
allowing the lead recycler to get the Vernon plant
back to work.
July
Judge Luis Lavin finalized his restraining order
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against DTSC, enabling Exide to open for business
while waiting for the administrative hearing.
Fire at an Exide baghouse temporarily shut down
operations. Baghouses reduce emissions from furnace
feed rooms and other places within the Vernon plant.
Exide reported "excessive heat" damage in one of those
baghouses, then restarted operations. SCAQMD
inspectors issued a notice of violation for that,
since both baghouses must be working when the plant is
working. The incident stopped Exide operations until
July 15th.
Emissions limits drove the plant's operators to
take two furnaces offline. The reverberatory furnace
and the blast furnace are steps in the smelting
process for lead. Creating heat to apply to
recyclable material produces carbon monoxide, a toxic
gas that is colorless, and can create dizziness,
fatigue, disorientation and nausea. Air regulators
limit the amount of carbon monoxide a source can emit
over a 30-day period; to stay within the limits, plant
regulators turned off the furnaces. Air regulators
reported that Exide began reheating the furnaces for
active use in early August.
August
Exide gave regulators a plan to reduce hazards
posed by air emissions that include toxic chemicals.
September
The Los Angeles County Department of Public
Health said it would offer blood testing for lead to
members of the community.
October
DTSC announced that it reached a stipulation
order with Exide that would allow the plant to stay
open. The order required Exide to clean up leaky
stormwater pipes and control toxic substances in air
emissions and additionally identify potential impacts
the facility may have had on surrounding communities.
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Also, Exide agreed to pay up to $7.7 million for
cleanup of those violations and to cover the cost of
blood tests for lead for people living and working
around the facility, and other environmental tests.
Lawyers for the SCAQMD appealed to the
district's hearing board to shut Exide down for
"failing to adequately capture and control gaseous
emissions from its blast and reverberatory furnaces,
including arsenic."
December
DTSC issued an emergency order directing a
Vernon battery recycler to clean up lead and other
metals that had been deposited near the Exide
Technologies plant. Dust and soil samples with metals
in concentrations at or near hazardous waste levels
have been found near the facility and must be cleaned
up by January 31, 2014. The order is urgent, the
agency wrote, because winter rains could wash the
metals into the Los Angeles River.
1) Permitting timeline . Pursuant the Stipulation and Order
with DTSC, Exide has committed to complete the permitting
process by the end of 2015. The committee may wish to
amend the bill to be consistent with the agreed upon
timeline.
2) What is the incentive for facility owners to be diligent
about completing the permit process ? There appear to be no
repercussions for a facility that does not have a current
and up-to-date permit in place. In fact there seem to be
advantages to the facility by having the process continued
for as long as possible under an interim or previous permit
because a new permit is likely to require more stringent
conditions and/or mitigation measures. It is business as
usual until a new permit is issued.
In the case of the Exide facility in Vernon, operations
have been allowed to continue for many years even with a
history of emission violations, mishandling of waste, and
findings of degradation within the facility.
This presents an apparent disconnect.
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When a facility violates the law and puts the public at
risk, should that facility be allowed to continue to
operate without a finalized permit?
The author may wish to add an amendment to this measure to
authorize DTSC to issue a suspension order for operations
at any permitted facility operating under an interim or
continued permit where a significant violation is found
that presents harm or risk of harm to human health or the
environment.
The threat of possible operation suspension will create an
incentive for facilities to work diligently on the
completion of the permit and would also prevent those
operating without a current permit from continuing to
operate if they have put human health or the environment at
risk.
3) Duplicative provisions . Both SB 812 (de Le�n) and SB 712
(Lara) provide that interim status for hazardous waste
permits terminates after 5 years. Is it necessary to have
this provision in two bills?
4) California Hazardous Waste Facilities . Battery recyclers
provide an important service in recovering lead and reusing
the metal rather than disposing of it in a hazardous waste
landfill and mining new metals. However, these facilities
must operate in a manner that does not jeopardize public
health and the environment.
SOURCE : Author
SUPPORT : Bell Mayor Violeta Alvarez
Bell Vice Mayor Ana Maria Quintana
Bell Councilmember Alicia Romero
Bell Councilmember Nestor Enrique Valencia
Florence Firestone Merchants Association
Lynwood Mayor Aide Castro
Lynwood Councilmember Jos� Luis Solache
OPPOSITION : None on file
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