New documents reveal that, contrary to its public statements, the state’s top toxics regulator knew about lead and arsenic emissions at Exide Technologies for years but looked the other way, Consumer Watchdog said today.

The Department of Toxic Substances Control (DTSC) suspended Exide’s operations on April 24 and is now negotiating with the company on how to resume operations in heavily industrial Vernon where roughly one hundred residents live, but some 45,000 factory workers go every day.

“This serial toxic polluter should be shut down permanently and required to pay to clean up their mess,” said consumer advocate Liza Tucker.  “The fact that the DTSC did not protect the public when people were in harm’s way is inexcusable.”

On the day of Exide’s suspension, DTSC Director Debbie Raphael told reporters that there was no reason to believe that hazardous releases were going into the LA River or drinking water. She said the DTSC suspended Exide’s operations after recently learning of dangerous arsenic emissions to the air and of leaky pipes releasing hazardous waste into the soil.

In fact, the DTSC knew of the emissions for years. Exide Technologies confirms this in a filing before the department contesting the shutdown and calling for a court hearing. “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.

And the department could not draw conclusions about the drinking water as DTSC regulators say that Exide was never compelled to dig monitoring wells deeply enough to ascertain if contamination had reached water as deep as public drinking wells.

Documents obtained by Consumer Watchdog show that the DTSC knew that the lead battery recycler’s operations endangered the public, that lead and arsenic emissions were going into the air and accumulating at hazardous levels on the ground, and were washing away into the surrounding watershed. Lead exposure can cause learning disabilities and high blood pressure. Arsenic exposure can cause heart disease, strokes, and cancer.

A study prepared by e2 Environmental for Exide at the request of the California Regional Water Quality Control Board and shared with DTSC officials in 2007 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.”

A letter sent earlier this month to DTSC Director Debbie Raphael from DTSC Senior Hazardous Substances Engineering Geologist Philip Chandler makes clear that top staff resisted internal recommendations to do what was necessary to ensure long-term safety at the plant. The letter says:

• DTSC “has conveniently ignored for years” lead, arsenic and other heavy metal emissions that were permitted by air regulators but accumulated to hazardous waste levels on the ground.
• Exide’s own arsenic emissions source tests in 2010 and 2012, showed a significant spike in emissions over tests in 2006 and 2008. “DTSC had the ability to evaluate the change in emissions risk years before it issued this order” suspending the plant’s operations.
• Between 1999-2000, DTSC found lead at levels of 40 percent in the sediment at the bottom of the storm water retention pond and required Exide to clean it up. DTSC “was clearly aware” that the storm water drain lines were bringing lead particulates to the pond and that the lines were reportedly “perforated” so that they could leak into the soil on purpose.

The Exide facility emitted hazardous waste for years under a permit from the South Coast Air Quality Management District. This waste had a history of depositing and accumulating on the ground and roofs around the site.

In 2002, the DTSC issued an order requiring Exide to take measures to characterize the contamination and clean up 76 different waste units.  In 2003, the DTSC fined Exide $40,000 for improper storage of used lead-acid batteries, but delayed payment because of Exide’s Chapter 11 bankruptcy filing.

The DTSC took emergency measures in 2004 and again in 2008 to force Exide to clean up a lead-contaminated drainage channel, and public areas like sidewalks, streets, and neighboring roofs. In between, in 2006, the DTSC fined the company $25,000 in 2006 for failing to minimize the possibility of hazardous releases. “DTSC and air regulators failed miserably in coordinating to prevent continuous accumulation of hazardous waste on the ground,” Tucker said.

Though DTSC regulators in Southern California pushed the company to investigate and clean up, higher ups deferred taking corrective action in favor of issuing a final permit to the company that never materialized. “While lead and arsenic were piling up, soaking into the groundwater, and also flowing into the Los Angeles River, Exide and its negligent operations were falling through the regulatory cracks,” said Tucker. “And top DTSC managers refused to force the company, which is a polluter on a national scale, into compliance.”

For more on the DTSC and toxic pollution around the state, see: http://www.consumerwatchdog.or…

It’s Earth Day. Here in California, state regulators are celebrating with their Keep California Beautiful Event that kicks off at the State Capitol followed by cleanup activities, like picking up litter and collecting e-waste, across the State. The Department of Toxic Substances Control (DTSC) that protects communities from toxic harm is in on the act with Caltrans, California Highway Patrol, CalRecycle, and several other agencies.

The Director of the DTSC, Debbie Raphael, recently characterized her agency as one that “creates ballfields, parks, schools, and vibrant communities.” She says, “We hold people accountable for polluting the world and California. We protect drinking water…we give people a voice. We are problem solvers. We protect. We heal.”

Really? Tell that to the poisoned community of Wildomar built on toxic soil, or to the community of Los Nietos in the heart of Los Angeles that may be drinking water laced with carcinogenic hexavalent chromium, or to the people of Simi Valley who suffer the runoff of carcinogenic waste from the land Boeing owns at the Santa Susana Field Lab that suffered the worst nuclear meltdown in US history years ago.

All of these are platitudes and make-believe that don’t reflect reality. Government exists to solve collective problems that industry, with its profit motive and cutting corners, just can’t manage. Government has to provide the right incentives and the right regulation.  What the government has to offer individuals on Earth Day-US EPA tips include don’t litter, save water, compost, and ride a bike to work-doesn’t get us all the way there.

Here in California, we got a sobering picture last week. The US EPA said that the state of California has failed to spend $455 million of federal money to improve water structure in the state including on water treatment facilities. Thousands of Californians are exposed to water contaminated with nitrates and other toxins every day. The California Department of Public Health had no good answer for this. And where is the State Water Resources Control Board, that paragon of water quality protection? Apparently AWOL.

And you can trust the DTSC to circle the wagons instead of look soberly at how it falls down in protecting communities and the environment from toxic harm, as outlined in our report Golden Wasteland.

The DTSC routinely lets toxic polluters who manage hazardous waste slide. We have some of the toughest environmental laws in the nation, but some of the weakest enforcement. The DTSC is the poster child for that. The department levies wrist slap fines that are just the cost of doing business, lets companies operate on expired permits for decades at a time, and doesn’t have the moxie to revoke or deny the permits of serial toxic violators as the law intends. The result is communities that report illnesses from cancer to lupus because of toxic soil and groundwater. The devastation in these communities isn’t as visible as the devastation in West, Texas. But the harm is real. It just takes longer for it to manifest.

And don’t think that a West, Texas can’t happen here, either. The Chevron refinery fire in Richmond last summer is a case in point. It could have been far worse than sending 15,000 people to the hospital. People could have been killed as they were in West, where a deadly explosion at a fertilizer plant razed five blocks around the facility. But our system of fragmented regulation and passing off of responsibility from one regulatory agency to the next almost ensures we’ll have more disasters to come.

Here in Richmond, at a public meeting on Friday night that the regional head of the U.S. Chemical Safety Board couldn’t attend-because he was investigating the Texas explosion-the chairman of the federal body said that the secretive refinery industry should provide regulators with information on refinery technology and regulators should work together to monitor wear on materials.

Chevron chose not to replace corroded pipes that led to the explosion and toxic cloud over Richmond. The explosion could have been prevented, but the regulatory system is reactive and not capable of foreseeing and forestalling problems, according to the Board. And there aren’t enough skilled refinery inspectors in the state.

The DTSC’s own priorities are so inside out that the department has gutted its refinery inspection capability to two inspectors for the whole state-while two top officials invest in refineries and other companies the department regulates. The California Department of Occupational Safety and Health (Cal/OSHA) also has too few inspectors for workplace safety. Cal OSHA fined Chevron a pinprick $1 million dollars for the fire, while DTSC refused to sanction the refinery at all even though it has the legal right. And what about the Bay Area Air Quality Management District? AWOL too. Wrist-slap fines are routine for refinery air infractions and air regulators haven’t made a peep about the toxic black cloud over Richmond.

Ironically, the U.S. Chemical Safety Board is “grossly mismanaged” itself, according to one former board member. It’s got a short attention span and hasn’t completed investigations into the Tesoro disaster in Washington State and the Deepwater Horizon disaster. Thirteen board investigations are incomplete, according to the Center for Public Integrity.

We need a new regulatory paradigm. One where we break apart the fractured system of regulation we’ve got now in favor of coordinated inspections of refineries, chemical plants, pharmaceutical plants, hazardous waste processors and other large companies. We need to grow a spine when it comes to serial violators of environmental laws and enforce the laws on the books to break the pattern. We need to focus our efforts on enforcement-DTSC now has only 13 criminal investigators for the whole state and none in Southern California. And we need to let these investigators coordinate efforts across agencies.

The pressure is growing. Eighteen environmental groups, concerned citizens, and victims of toxic harm just petitioned Senator Kevin De Leon to thoroughly investigate the Department of Toxic Substances Control for gross mismanagement, including the drop in the number of cases referred to public prosecutors, and failure to insist on strict cleanup requirements for contamination. The group is also asking for legislators to jam the revolving door of industry influence on government regulators. So, as the Earth spins, don’t let anyone spin you. Instead, keep the pressure on. Set the regulators spinning to work for us, like they are supposed to. It’s in our hands.

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Posted by Liza Tucker, Consumer Advocate and author of Consumer Watchdog’s groundbreaking expose Golden Wasteland. Follow Consumer Watchdog on Facebook and Twitter.