State Aims to Close Funding Gap for Lead Contamination Cleanup, Neighbors Skeptical

In some ways, the neighborhood around the Exide Technologies battery recycling plant in Vernon doesn't seem to have changed much in the two years since Exide shut down operations there.

Trucks keep rumbling by. The summer sun bears down on the treeless street, sending up waves of heat from the asphalt. And once again, each faint puff of wind carries a bolus of foul air, the stench of decaying flesh from a rendering plant down the block, solid and heavy, like blows to the stomach.

But even when the Exide plant was still operating, often the only sign of the industrial work behind the gates was the occasional employee crossing the street between buildings, or the very thin, very pale streams of fumes from the chimneys.

Just before it closed, the Exide plant -- several miles southeast of downtown Los Angeles -- was recycling as many as 40,000 car batteries a day. Authorities believe it showered the neighborhood with lead dust for decades.

Today there are a few outward signs that the factory infrastructure is going away.

The "God Bless America" poster has vanished from a factory wall, as have the company's navy-blue Exide logos.

The state Department of Toxic Substances Control, which regulates hazardous waste sites, has approved a conceptual plan for demolishing the plant and is studying procedures for doing that without further polluting the surrounding area. In July, the department issued a plan for cleaning up about a quarter of the most contaminated homes nearby.

But some people living near the plant fear the cleanup could drag on indefinitely or peter out with the job incomplete.

"With some things, you take one look or you get one little sniff and you know it's bad news. You know to stay away from it or to complain," said Joaquin Romero, watching his son at a park about 2 miles from the battery recycling plant.

Romero added: "With Exide, it's not like the lead stank or anything. It just kept falling on us and falling on us. We didn't know much about it. Then suddenly it was a real big problem, and I haven't heard yet how they're going to make everybody safe."

In March 2015, as public protests mounted against the battery recycler for allegedly poisoning its neighbors with lead and arsenic, the company struck a deal with the federal Department of Justice to avoid felony prosecution for illegally storing and transporting lead and acid.

Lead is a potent neurotoxin, especially dangerous to children, pregnant women and the elderly. Studies also have linked lead exposure to cancer.

An estimated 10,000 homes are contaminated. So far, the state has only come up with enough to clean up 2,500.

At a recent community meeting, state Department of Toxic Substances Control Director Barbara Lee told Exide neighbors that her department is doing the best it can to clean up the contamination with the money it has.

“I’m not going to tell you that the other properties aren’t contaminated," she said. "But I am going to tell you that in this phase of the cleanup, we are cleaning up all of the properties that have the highest levels of lead.”

She said it’s just a start.

“Exide is obligated under the law to clean up all its contamination and we are going to make sure they do that,” she said.

Teresa Marquez wonders, with a great deal of skepticism, how far that pledge will go.

Marquez lives on a leafy street in Boyle Heights, outside the radius that the department has drawn for its cleanup program. She says she built her house for family, a place where her grandchildren could come play in the dirt.

But Marquez says she can't risk having her grandchildren play in her yard after a lead survey found high levels of contamination.

"Do you know how much that hurts me?" she said. "It hurts."

Marquez serves on a neighborhood group that advises the Department of Toxic Substances Control on the cleanup. She is campaigning to nearly triple the size of region that the department has identified as contaminated by Exide.

"This is a family neighborhood," she said. "The children here all face the same risks."

But it could be at least two years before the department can press Exide on the cleanup area it has now.

When state officials ordered the battery recycler closed, it gave Exide until 2019 to identify the extent of the contamination and make a cleanup plan. It also ordered the company to pay into a remediation fund.

Los Angeles County Supervisor Hilda Solis, who represents parts of the contaminated area, believes the full cleanup could cost at least $500 million.

So far, the state has required Exide to put up only $9 million. When Exide shut down, the department didn’t know how widespread the contamination was.

“Now that we have much more information -- you know, we have tens of thousands of sampling results -- we are pursuing Exide for a much greater cleanup," said the department's Mohsen Nazemi, who is overseeing the cleanup.

Nazemi​ ​says​ ​there​ ​may​ ​be​ ​a​ ​legal​ ​fight.​ ​The company has repeatedly challenged claims that it is primarily responsible for the lead contamination. ​Exide​ ​has​ ​sued​ ​the​ ​state​ ​for​ ​data​ ​it claims​ ​may​ ​point​ ​to​ ​other​ ​polluters.

In a written response to questions, Exide spokeswoman Melissa Floyd points out that the region has a long history of exposure to leaded gasoline and lead-based paint. The company did not answer questions about what it considers a fair payment to be.

Nazemi said in order to make an effective argument in court, the department must be able to demonstrate that it has considered all possible sources of pollution. The department will assess cleanup costs to any other alleged polluters identified besides Exide, Nazemi said.

For years, courts have applied a principle called "joint and several liability" to such cases, said Sean Hecht, co-director of the Emmett Institute on Climate Change and the Environment at the UCLA School of Law. It's a little like the reasoning that can find a getaway car driver criminally liable for violence during a bank robbery.

Courts have been prepared to hold polluters responsible for cleanups even when they created only part of the mess. But Hecht says in several recent cases, those penalties have been reduced.

In such cases, "[Plaintiffs are] taking a risk that ultimately an appeals court might decide to shave off the liability and only hold the defendant responsible for some much smaller percentage of the contamination, and so typically there will be a settlement," he said.

David Pettit, a senior attorney at the Natural Resources Defense Council, said the Department of Toxic Substances Control's record of lax enforcement could undermine its legal strategy.

The department let the Exide plant operate without a fully approved hazardous waste permit for 33 years.

In all that time, Exide didn’t satisfy regulators that it fully met California’s rules for the safe operation of such toxic sites. Further, state investigators failed to follow up in repeated instances where Exide allegedly violated department regulations, records show.

"What [Exide] will say is, 'We had monitoring and you knew what was coming in and going out, and you didn't do a thing until it became politically expedient for you to do something because politicians started making noise,' " Pettit said.

Ingrid Brostrom, a senior attorney with the Center on Race, Poverty & the Environment, said the department's lapses in oversight could end up costing taxpayers.

“I have seen on numerous occasions companies simply walking away and vanishing and leaving communities holding the bag, or that there just isn’t enough money available to the company to pay for the harm it has caused,” she said.

Brostrom supports proposed legislation, Assembly Bill 245, that increases requirements for facilities that handle hazardous waste, as did Exide, to fund the cleanup of contamination they have caused. The legislation would also increase the penalties for violations of waste disposal laws.

In April, another piece of Exide-related legislation by Assemblywoman Cristina Garcia, D-Bell Gardens, took effect. For each lead-acid battery sold, the state would impose a $1 fee on the purchaser and another $1 fee on the manufacturer, with the money devoted to a special fund for cleaning up lead contamination. A state analysis predicts the fees could raise $26 million annually.

Garcia spokeswoman Teala Schaff said some of that money could go to the neighborhoods around Exide.