BB&K In the News Sep 23, 2016

County Counsel Teamwork: The Exide Story

BB&K Part of Team Supporting Clean Up of Former Battery Recycling Site

Justice: (1) the principle or ideal of just dealing or right action; (2) conformity to this principle or ideal

The concept of environmental justice is straightforward, the pathway to practical solutions are often circuitous. In the case of Exide Technologies, the road ahead looked tortuous. Exide was a battery recycling facility in the City of Vernon that had operated for 33 years on a temporary permit issued by the State of California. Because of its location and exclusive regulation by the State, it was outside the County’s jurisdiction. After it was determined that the Exide facility had been emitting a significant amount of hazardous waste into the air, including lead, arsenic, and benzene, the State notified Exide that it would not issue another operating permit. Exide, which had previously declared bankruptcy in Delaware, closed its doors in March 2015. The County was then faced with a particularly intractable problem of how to bring relief to the residents living near the facility.

Although Exide was no longer emitting dangerous chemicals, years of damage had already significantly impacted the surrounding communities, including Maywood and Boyle Heights. “The Exide chemicals have raised the cancer risk of tens of thousands of people around the Exide facility,” said Dr. Cyrus Rangan, Director of the County’s Toxics Epidemiology Program.

State and County officials determined that environmental testing of all residential properties within a 1.7 mile radius of the facility was needed. This area includes approximately 10,000 homes. Initial soil testing revealed that lead levels in soil around some of the homes were found to be high enough to characterize the yards as hazardous waste sites. Total cleanup costs were estimated to be as high as $400 million. Based on the State’s bankruptcy claim, Exide paid $9 million for cleanup with an obligation to pay just another $5 million in 2020. The State was able to assess and clean 170 homes before it ran out of funds. State assessment and cleanup efforts slowed to a trickle. The residents were outraged, as the State allotted only $8 million for cleanup in the 2016-17 budget. The problem was straightforward: How could the County and First District Supervisor Hilda Solis — acting as concerned citizens — bring relief to the impacted residents in a timely manner, while supporting the State in its efforts to hold Exide responsible for this environmental catastrophe?

The pathway for resolution was not straightforward. It involved the coordination of litigation strategy, public testimony before the Assembly, community messaging, legislative initiatives, and environmental field testing.

Early on, our County Counsel, Mary Wickham, realized the complexity of the issues presented. She assembled a team to support Supervisor Solis’ efforts to bring relief to the affected communities. The team was comprised of members of the Department of Public Health (DPH), the Chief Executive Office’s Legislative Advocates Office in Sacramento, outside counsel from Best Best & Krieger, representatives from the First District, and County Counsel attorneys. Each group contributed its experience and expertise to solve the continual and evolving challenges met by the team on its path.

The first challenge was to increase the pace of residential home assessment to determine the scope and severity of the contamination. In November 2015, the Board approved a $2 million funding request to hasten the assessment and cleanup of the contaminated soil in the 1.7 mile radius around Exide. This effort required the coordination of DPH’s outreach to residents to permit access to their properties, creation of a rapid soil testing protocol, and teams of certified lead specialists contracted to perform the testing.

Between February 29 and March 9, 2016, DPH assessed lead in soil on 500 residential properties. The testing was carried out by 12 three-person teams in Maywood, Commerce, and East Los Angeles. The teams tested properties at a rate of approximately 48 per day.

The next challenge was how to obtain more dollars for residential cleanup. The $8 million earmarked in the Governor’s budget was simply not enough. This key development took us to Sacramento. The Exide team needed to hold meetings with legislators, involve community members, strategize with its partners, and create public advocacy messaging in support of this goal. In January, Supervisor Solis, along with members of County Counsel’s Exide team, traveled to Sacramento to testify before the Legislative Committee on Environmental Safety and Toxic Materials. The Supervisor’s heartfelt testimony relayed the troubling stories of residents living with debilitating and permanent medical conditions. She and other legislators advocated for $70 million for accelerated residential cleanup efforts. The testimony of DPH Interim Director Cynthia Harding supported this “ask”, as DPH was providing access to care and specialized health screenings for the early identification and treatment of potential health problems caused by the Exide facility’s environmental contamination.

Shortly after the team’s return, Governor Brown proposed $176.6 million in spending to remediate the Exide contamination. In recognition of this extraordinary result, before the Exide team’s next meeting Supervisor Solis provided red velvet cake and expressed her gratitude for all of the extensive work that kept the County on its path. At the meeting, John Holloway of Best Best & Krieger, observed “Each member of the team assembled by the County Counsel’s office played a key role in planning and executing the work that helped secure this phenomenal result. The progress on the Exide matter demonstrates that the County has tremendous resources to get big things accomplished when different divisions of the County work together in a coordinated manner.”

In April 2016, the Legislature approved this funding to expedite and expand testing and cleanup around the former Exide facility. Contaminated soil from places where lead levels are highest will be removed from residential properties, schools, daycare centers and parks within a 1.7-mile radius of the Exide plant. This hard-fought victory was a direct result of our Exide team’s coordinated effort to bring this issue to the forefront of the State’s priorities, and it provided a light at the end of the tunnel for residents.

Ben Polk, Justice Deputy for the First District, described the Exide team’s continuing journey: “Having our cross-County Exide team meet each week to discuss key decisions has been invaluable in developing our strategy and navigating new developments. Our team has succeeded, time and again, in integrating legal, political, and operational priorities.” When asked about the Exide team, County Counsel Mary Wickham commented that “it is a very exciting time to be an attorney in the Office of County Counsel. Our current Board is socially proactive and is tackling the issues of our day. This engaged and active Board deserves an equally engaged and committed Office of County Counsel with lawyers that communicate across divisional and departmental lines to provide the best legal analysis and work product. And that is what has occurred with the Exide team.”

The Exide team soldiers on. It will continue to support the State’s efforts to clean the homes of those affected by 30 years of environmental contamination by Exide.

This article was originally published in the August 2016 edition of The County Counsel Newsletter. Reprinted with permission. The original article can be found by clicking here.

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