MAC: Mines and Communities

USA: The fight to clean up Exide battery plant in California

Published by MAC on 2021-06-09
Source: LA TACO, CNS, The Guardian,

A judge approved Exide's bankruptcy settlement allowing the company to abandon the plant.

Neighbors and activists have been fighting for years to clean up contamination at the Exide Technologies battery recycling plant in Vernon, a city five miles south of downtown Los Angeles. Last month, Gov. Gavin Newsom included $454 million in his state budget proposal to clean up the polluted homes, neighborhoods and Latino communities.
"No one should have to slowly see their family members dying in excruciating pain," said Boyle Heights resident and activist Terry Gonzalez-Cano. "Or their children not be able to have children, or not even be able to live long enough to see them graduate. We need this money." Gonzalez-Cano lost both of her parents, several neighbors and friends to illnesses caused by toxic levels of lead contamination linked to the plant.
More than 10,000 homes in the communities of Bell, Boyle Heights, East Los Angeles and Vernon were polluted by the former Exide battery recycling facility, CNS reported.
See also:

California Department of Toxic Substances Control, The State’s Poor Management of the Exide Cleanup Project Has Left Californians at Continued Risk of Lead Poisoning, California State Auditor, October 2020
Previous on MAC:
2011-06-20 Recycled U.S. battery lead is poisoning Mexico: Report
2010-11-22 US: toxic lead is affecting eleven states

Exide cleanup: Newsom budget proposes $454M for Vernon battery plant site

May 18, 2021

VERNON, Calif. (KABC) -- A decades-long battle to clean up contamination in Vernon and surrounding communities is getting a new boost from Gov. Gavin Newsom's proposed budget.

"No one should have to slowly see their family members dying in excruciating pain," said Boyle Heights resident and activist Terry Gonzalez-Cano. "Or their children not be able to have children, or not even be able to live long enough to see them graduate. We need this money."

Gonzalez-Cano lost both of her parents, several neighbors and friends to illnesses caused by toxic levels of lead contamination linked to the plant.

More than 10,000 homes in the communities of Bell, Boyle Heights, East Los Angeles and Vernon were polluted by the former Exide battery recycling facility.

"This is our very own Flint, Michigan," said Los Angeles City Councilman Kevin de Leon, referring to the water contamination scandal in that city. "You don't have to go to the Midwest to find lead poisoning and contamination. It's in our own very backyard."

Local leaders say Exide Technologies' corporate greed allowed the pollution to materialize for years. And they blame the state's Department of Toxic Substances and Control for failing to take action.

Last fall a judge approved Exide's bankruptcy settlement, allowing the company to abandon the plant and leaving taxpayers responsible for footing the cleanup.

Neighbors say they will continue to raise their voices until the nearly half-billion dollar cleanup is approved.

'I felt I killed my children': lead poisons California community – and fills kids' teeth

A battery recycling plant blanketed Latino communities with chemicals – and thousands of properties remain toxic.

Brian Osgood

29 Mar 2021

For years, Terry Gonzalez-Cano encouraged her children to get outside and play in the dirt. “I grew up doing everything outside, and I encouraged my kids to do the same thing. We played in the backyard, we gardened,” she said. “I thought I was being a good mother by forcing them to spend time outside.”

Gonzalez-Cano, 48, didn’t know that, for decades, the Exide lead battery recycling plant in the neighboring Los Angeles-area city of Vernon had blanketed blue-collar Latino communities with layer after layer of lead and cancer-causing arsenic.

In June 2015, the soil on her property in the LA neighborhood of Boyle Heights was tested for lead by the California department of toxic substances control. Gonzalez-Cano said the results had come back in April 2016, 10 months after her property had been tested: her home had more than double the 80 parts per million (ppm) that California deems acceptable. At her father’s home a block away, where she and her brother spent countless hours playing in the backyard when they were children, the number averaged over 800ppm. One neighbor’s soil tested so high that it surpassed the 1,000ppm required to qualify as toxic waste.

“When I found out, I couldn’t breathe,” said Gonzalez-Cano. “I felt like I was the worst mother in the world. I felt that I had killed my children.”

Sitting next to her on the couch at her home recently, her brother Jose Gonzalez emptied a plastic bag full of bracelets from his dozens of trips to the hospital for sinus cancer on to the floor. “Here’s Exide’s legacy,” he said. “I thought I was staying fit when I used to play football in the mud. I didn’t know it, but I was poisoning myself.”

Six years after their property was tested, the siblings say that the state has not given them even a prospective timeline for when their property will be cleaned up. They worry about the damage that has already been done, and the health problems they and their families may have that will only manifest with time.

The evidence of the plant’s contamination is not just in the soil of local homes, but in the teeth of the children who inhabit them. A 2019 study found high levels of lead in the teeth of local children, indicating long-term exposure that was passed along to many while they were still in their mother’s wombs. “Mothers in these communities are exposed, and they pass that exposure on to their children before they’re even born,” said Jill Johnston, an assistant professor of preventive medicine at the University of Southern California who authored the study.

Despite its nearly 100-year presence, many in the community had never heard of Exide until less than a decade ago, although community organizers had been protesting against the plant and demanding action for many years. The company could not be reached for comment.

“This was a facility with a long history of violations,” said Sean Hecht, co-executive director of the UCLA School of Law’s Emmett Institute on Climate Change and the Environment. “But the regulatory system sees these facilities as serving an important purpose” – about 11m used lead batteries were processed by the smelting plant on an annual basis – “and this gives these companies leverage, even when they’re violating the law.”

Idalmis Vaquero, a Boyle Heights resident and volunteer with Communities for a Better Environment, said that, when she first heard about Exide in 2013, she was shocked they hadn’t been shut down by regulatory agencies. “They knew for years and did nothing. I realized that they weren’t interested in protecting us. They were interested in protecting Exide,” she said.

Many residents expressed skepticism that the pollution would have gone on as long as it did if their neighborhood looked different. “Because we’re working-class and Latino, we’re not a priority,” Terry Gonzalez-Cano stated flatly. She had to sell her father’s home in part to cover medical bills.

The plant was shuttered in 2015 as part of an agreement with the US Department of Justice that allowed Exide to avoid criminal prosecution for a litany of emissions and hazardous waste violations, although the department promised the company would be financially responsible for the cleanup. The enormous plant now stands derelict, covered with a white sheet meant to stop toxins from escaping.

At least 7,800 properties in the area have dangerous levels of lead contamination. About 3,200 are considered the most affected, but so far only 2,407 have been cleaned, and a damning report by the California state auditor found that the rest of that initial, most-dangerous batch are not expected to be cleaned until August 2022, over a year behind schedule.

The state has not given any timeline for the remainder, leaving thousands of families with few options but to tell their children not to play in dirt that has been infected with toxins for decades. “They tell us to stay home to stay safe from Covid-19,” said Rossmery Zayas, a community organizer. “But for us, home isn’t safe. There’s no escaping the contamination.”

Kids are especially vulnerable to lead poisoning, and once exposed, the effects on their development can be devastating, such as learning disabilities, fatigue and seizures. Lead poisoning can also cause premature births and slowed growth in toddlers. Yet with the exception of a single childcare center, between May 2018 and May 2020, the state toxic substances department had not cleaned any “childcare centers, parks, or schools”. The department said that about 10 remained to be cleaned.

The California auditor blasted it for careless mistakes that “put the children and other at-risk individuals who spend time at these properties at unnecessary risk of the serious consequences of lead poisoning”.

“This is the largest residential cleanup of its kind in California,” the toxic substances department told the Guardian in an email. “We have listened to the heartbreaking stories from residents of the communities surrounding Exide and know they are dealing with the negative impacts from contamination from nearly a century of smelting activity.”

The department said it had implemented a handful of recommendations from the auditor’s report meant to speed up operations and allow for the expeditious decontamination of sensitive locations frequented by children.

But residents and activists are unimpressed. Some worry that as officials clean individual parcels instead of cleaning up block by block, properties risk being recontaminated when the wind blows dust from properties that have yet to be cleaned on to those that have been. Johnston from USC also said it was “highly unlikely” that the 1.7-mile radius cleanup area accurately captured the full extent of Exide’s contamination.

“I don’t believe that for a second,” said mark! Lopez, an organizer with East Yard Communities for Environmental Justice. “But that’s the last thing the state wants to hear. They’re strapped for cash, and they want to put this behind them and move on. But we’ll still be living here with the effects.”

The community’s morale was dealt yet another blow last year when a Delaware bankruptcy court ruled that Exide could walk away from the property without financing the remaining cleanup costs, despite the government’s assurances otherwise.

It has left California taxpayers on the hook for the cleanup effort that could surpass $650m, a decision the state has vowed to fight.

Residents are unanimous in their own verdict: disgust.

“We were told Exide was going to pay to clean up its mess,” said Pastor John Moretta of Resurrection church in Boyle Heights. “But they’re getting off scot-free. We feel betrayed.”

CA Legislators Introduce Bill to Fund Clean-Up of Homes Polluted by Exide

“Families need peace of mind and the assurance that their homes and backyards will not remain poisoned with dangerous levels of arsenic or lead that could lead to cancer, respiratory illness, learning problems and other chronic diseases.”

CNS - City News Service

February 18, 2021

Four Los Angeles-area state legislators announced Thursday that they have introduced a bill to provide $540.4 million to fund a clean-up of 10,000 homes polluted by the nearby Exide Technologies battery facility in Vernon.

“What Exide left us with is nothing less than corporate criminal pollution,” said Assemblyman Miguel Santiago, D-Los Angeles. “Exide's abandonment and (the Department of Toxic Substances Control) clean-up delays have left our children to live and play in lead-soaked soil. AB 1024 will finally fund a complete clean-up of Exide's pollution while implementing transparency and accountability protocols for DTSC to prevent any further delay.”

AB 1024 was introduced by Santiago along with Assemblywoman Cristina Garcia, D-Bell Gardens; Sen. Lena Gonzalez, D-Long Beach; and Sen. Maria Elena Durazo, D-Los Angeles.

The Exide plant, which opened in Vernon in 1922, operated for years despite continuing environmental violations. It allegedly released toxic chemicals including lead, arsenic and mercury into more than 10,000 properties in Bell, Boyle Heights, Commerce, Maywood, East Los Angeles, Huntington Park and Vernon, according to Santiago.

In addition to lead-contaminated soil, concerns were raised about the emission of cadmium and other toxic chemicals and the release of battery acid onto roads.

AB 1024 would fund the clean-up of 10,000 residential properties affected by the facility, Santiago said.

“I stand with my colleagues as a co-author on this important measure to allocate $540 million dollars in funding for the continued cleanup of the East Los Angeles communities surrounding the Exide Vernon battery site in strong solidarity with the 100,000 plus community members and families whose health and well-being has been disregarded for decades,” Durazo said in a statement Thursday.

“For too long, Exide and other bad actors have been allowed to engage in criminal behavior on this site, contributing to dangerous levels of contaminants polluting the areas where our children play. This is one of the worst environmental disasters and cases of environmental racism in our state's history. Our Government has failed them. The state needs to step in and do right by these communities by prioritizing the clean-up of the areas surrounding the site.”

In 2015, the U.S. Department of Justice agreed not to prosecute Exide for violations of hazardous waste law in exchange for safely shutting down the Vernon facility and cleaning up related contamination, including lead found in the soil of surrounding homes.

When Exide closed the lead-acid battery recycling plant, it committed to pay $50 million for cleanup of the site and surrounding area. Of that amount, $26 million was meant to be set aside for residential cleanup.

DTSC officials issued a formal determination in October that the condition of the site presents an “imminent and substantial endangerment to the public health or welfare or to the environment.”

Later that month, a bankruptcy court judge approved a settlement agreement allowing Exide to formally abandon the Vernon facility without further liability. Under the agreement, a bond of $11.16 million was issued in connection with liabilities related to the Vernon site.

Los Angeles Mayor Eric Garcetti, Gov. Gavin Newsom and other officials expressed outrage over the bankruptcy court's decision and vowed to continue to fight to hold Exide accountable.

In October, an auditor found that even high-risk properties like child care centers and schools had yet to be cleaned and only about 2,000 residential properties in the area were cleaned.

The DTSC set a goal to clean the 3,200 most contaminated properties by June 2021, but is unlikely to meet that plan, according to the audit.

“While we move toward stronger enforcement policies and transparency measures to help us prevent these grave environmental injustices in the future, our community must no longer have to suffer the detrimental health consequences,” Gonzalez said in a statement Thursday.

“Families need peace of mind and the assurance that their homes and backyards will not remain poisoned with dangerous levels of arsenic or lead that could lead to cancer, respiratory illness, learning problems and other chronic diseases.”

The bill is expected to be heard in April in the Assembly Committee on Environmental Safety and Toxic Materials.

Behind The ‘Ultimate Hypocrisy’ of Letting Vernon’s Toxic Battery Plant Off the Hook for Millions

Dan Ross - Capital & Main


December 4, 2020

The bankruptcy settlement reached between Exide Technologies and the Department of Justice (DOJ), recently inked in a Delaware bankruptcy court, was a bitter pill to swallow for many community members, environmentalists, and officials. It allowed, among other things, the company to essentially walk away from financial obligations to fully remediate its former lead-acid battery recycling plant located in Vernon, near downtown Los Angeles, along with the surrounding contaminated communities.

For those monitoring the state’s coffers, the agreement was especially galling as state officials had promised over many years that the more than $250 million the California taxpayer has put towards the residential cleanup would be reimbursed. The remaining work is expected to cost hundreds of millions more.

In 2015 Barbara Lee, former director of the Department of Toxic Substances Control (DTSC), the state agency overseeing the cleanup, said, “We are looking to put a funding stream in place to get started. Then we will recover the cost and pay ourselves back as we go.” The agency also promised to “initiate cleanups and recover our costs later from all responsible parties, including Exide.”

The following year, Los Angeles City Councilman Jose Huizar called the $176.6 million of general funds then-Gov. Jerry Brown funneled towards the cleanup a down payment. The agency reiterated in 2018 how it was “holding Exide accountable” for the contamination, vowing at a subsequent L.A. City planning and land use management committee meeting to “pursue Exide to recover the costs of investigation and cleanup.”

Today these protestations seem moot, especially as the ruling’s profound long-term impacts are going to stretch far into the future. This leaves many who follow the project to demand answers to some tough questions: Could and should the state have done more to secure recovery costs from Exide? Are other responsible parties potentially liable? And how can the state prevent this from happening again?

Five years ago the U.S. Attorney’s Office entered into a nonprosecution agreement with Exide, essentially requiring the company to comply with the DTSC’s orders on the project in order to avoid prosecution. As news of the recent settlement agreement with the DOJ broke, various politicians and environmental groups saw it as an act of political betrayal by a Trump administration seeking to “punish” blue California.

But according to Jim Woolford, who led the Environmental Protection Agency’s (EPA) Superfund remedial program from 2006 until earlier this year, the bankruptcy agreement was fairly standard. “There is nothing that struck me as out of the ordinary on this,” he said. And while it appeared that the DOJ tried to better meet the demands of other states than California, Woolford added, it doesn’t appear “on paper” as though the Trump administration cut a special deal with Exide.

Rather, Woolford explained how serious doubts surrounded the “ability of Exide to perform all the work” even before California took the lead on the project. Prior to that, there were discussions between the EPA and the state about putting the site on the National Priorities List—a ranking of highest priority environmental cleanups as part of the federal Superfund program—as a result of the sheer scale of the pollution at and surrounding the Exide plant, and the company’s ability to pay for the project. In other words, “Whether they would be viable and be able to carry things out,” said Woolford.

“I don’t know if their assessment of the corporate assets—[Exide’s] ability to pay—I just don’t know how good that was,” Woolford added, speaking of the state. “That’s obviously an area in hindsight that wasn’t so good.”

The state’s ability to secure recovery costs from Exide, other experts claim, was hindered by a string of decades-long failures to hold Exide accountable.

According to Angelo Bellomo, former deputy director of the L.A. County Department of Public Health, “the real story” revolves around how the state allowed Exide to operate for 33 years on a temporary permit, how it failed to ensure that the company post adequate financial assurances as required by law, and how the federal government, rather than California, took the lead on finally shutting Exide down. Combined, these factors “compromised their ability to be tough on Exide,” Bellomo said.

“Had the state attorney general been the lead on this, with assistance from the feds on the criminal case, it probably would have ended up very differently,” Bellomo added. “They screwed the whole thing up by not securing the money when the money was there.”

Barry Groveman, former head of the Environmental Crimes/OSHA Division in the L.A. County District Attorney’s Office, said that after Exide was shuttered, the state attorney general’s office should have conducted a comprehensive investigation into the case—how it happened, who’s culpable, and who are other potential responsible parties—with a view to drafting a roadmap for avoiding a repeat at other contaminated sites in the state.

“There’s never been accountability for any of this, and nobody’s afraid of anything,” Groveman said.

Capital & Main repeatedly sought comment from the attorney general’s office, which each time directed requests to the DTSC. “When we represent a client, we refer all inquiries to the client,” a spokesperson wrote in an email.

When asked what specific actions the DTSC took to ensure cost recovery from Exide, an agency spokesperson wrote that it secured $26.4 million in financial assurances from the company for the facility cleanup.

“DTSC also required Exide to pay costs DTSC incurred to oversee Exide’s closure work and corrective action work. DTSC invoiced Exide for oversight costs, and DTSC has filed Proofs of Claim in the bankruptcy seeking recovery of the outstanding balance,” the spokesperson wrote. “DTSC has appealed the Bankruptcy Court’s order confirming the bankruptcy plan and will continue to fight to hold Exide accountable.”

But is the DTSC looking at other ways to recover costs?

Sean Hecht, co-executive director of the University of California, Los Angeles’ Emmett Institute on Climate Change and the Environment, was formerly a deputy attorney general for the California Department of Justice, representing the state on environmental and public health matters. He said that under the law, any party that arranges for the disposal of hazardous substances at a hazardous waste site “potentially could be a responsible party.” But in a case like Exide, cost recovery is “much harder” as legal “recycling exemptions” can protect parties that arrange for certain types of waste, including waste lead-acid batteries, to be recycled.

Hecht warned that the state could waste “a lot of time and money” if it decided to go down this route.

Nevertheless, given the Exide plant’s history of violations, the exemptions might not apply in this case, said Groveman. “Exemptions are privileges and they are not extended to those who are not diligent, let alone negligent in their duty of care,” he said.

Other experts look to fundamental revisions to the legal apparatus available to officials to hold polluters like Exide accountable for their damage. According to Lynn LoPucki, distinguished professor at the UCLA School of Law and founder of the UCLA-LoPucki Bankruptcy Research Database, California needs an environmental “super priority lien statute,” as have other states including Illinois, Maine and Michigan. Such a statute would put the state, and the hazardous waste remediation it’s overseeing, much higher up in the priority queue in the event the responsible party files for bankruptcy.

Angela Johnson Meszaros, the managing attorney for Earthjustice’s Community Partnerships Program, agrees that the bankruptcy system is “set up” to provide polluters legal avenues to escape accountability. By the time a case like Exide’s has made it to bankruptcy court, however, “It’s  too late,” she said.

“Exide is just an example—a superclear, very visible high interest example—of a more structural failure in how we deal with pollution.” Assembly Bill 995, a DTSC reform measure that was sent to the governor’s desk at the end of the last legislative session, offered a potential fix by tightening things like the financial assurances that hazardous waste facilities post. Gov. Gavin Newsom vetoed the bill. “We have lost our way,” Johnson Meszaros said. “The polluters have pulled us off of our path.”

The bill is expected to be reintroduced at the start of the next legislative session. “I am 100% committed to continue working with stakeholders to fully reshape this entity into one that will prevent the next Exide and can oversee the management of hazardous waste in California in a transparent manner that fully protects all communities and public health,” wrote Assemblymember Cristina Garcia, a lead author on the bill, in a statement.

And what does the battery industry have to say about the case? Roger Miksad, executive vice president of the Battery Council International, wrote in an email how his organization is “disappointed with the level of funding provided through the bankruptcy process for the continued cleanup of the Vernon facility,” and that Exide’s membership in the association was suspended in July—two months, however, after the company’s latest bankruptcy filing.

Aside from political and regulatory miscalculations, the Exide case represents a failure by officials to protect the state’s most vulnerable, said Groveman, who singled out Attorney General Xavier Becerra—whose constituency, when he was a state assembly member, included neighborhoods that overlapped with those in the residential cleanup—for pointed criticism due to his very public environmental justice stance. “It’s the ultimate in hypocrisy at the expense of the people of East Los Angeles.”


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