For public officials, accountability for Exide lead contamination has been scant

California regulators allowed the Exide Technologies battery recycling plant in Vernon to operate for decades without a full permit.

By Tony Barboza

May 28, 2016 5 AM PT

California officials have talked tough about the contamination of up to 10,000 homes with lead from a battery recycling plant, calling it a regulatory failure, an environmental injustice and a public health disaster.

Yet accountability for years of pollution by Exide Technologies has been scant.

The company struck a deal with federal prosecutors last year allowing it to close down and avoid criminal charges for years of admitted felonies. But to the dismay of community groups in southeast Los Angeles County, almost nothing has been done to hold government employees accountable for allowing the plant to operate illegally for decades.

“People want to know how can such calamity go on for so many years without any agency stopping it,” said Msgr. John Moretta of Resurrection Catholic Church in Boyle Heights. “From day one we’ve been concerned about why this took place and we haven’t gotten a good answer.”

The lack of scrutiny has frustrated people in the working-class Latino communities near Exide who see an aggressive pursuit of justice for environmental disasters elsewhere.

In Michigan, state prosecutors have filed criminal charges against state and local government employees involved in allowing the residents of Flint to drink lead-tainted municipal water. In California, numerous government investigations are examining the Aliso Canyon natural gas leak that sickened nearby residents last fall and winter.

But with Exide, no institution with the power to hold officials or workers accountable has disclosed any efforts to investigate. Not the governor, the attorney general or the state Legislature.

Gov. Jerry Brown’s office and state legislators pointed to new laws, oversight hearings and other reform efforts aimed at longstanding problems at the state Department of Toxic Substances Control.

But community activists and residents say they have gotten nowhere with their demands for an investigation to determine what went wrong and who is to blame.

Health concerns have only widened since the plant’s closure. People across half a dozen communities have confronted alarming news of an expanding cleanup, hazardous backyards and children with elevated levels of lead in their blood.

“Clearly everyone failed that community,” said state Assemblywoman Cristina Garcia (D-Bell Gardens), who wants an independent commission to investigate multiple government agencies. “The danger is if we do not figure out what was wrong with the process, we could repeat history.”

There is no doubt that government played a key role.

California regulators let the facility operate without a full permit for more than three decades and did not require the company to set aside adequate funds to clean up its pollution. The state knew for years that Exide was running afoul of environmental regulations, violating hazardous waste laws and releasing illegal amounts of lead and other toxic air pollutants, but failed to put a stop to it.

The plant, which melted down thousands of used car batteries a day, operated since 1922 in the industrial city of Vernon. State regulators now believe lead dust from its smelting operations deposited in surrounding neighborhoods over decades.

Exide, which took over the facility in 2000, did not respond to requests for comment.

It took reports of ash raining down on cars and businesses for the South Coast Air Quality Management District to act to reduce emissions of the toxic metal in 2008.

That same year, the Department of Toxic Substances Control found hazardous levels of lead in neighboring businesses, streets and soil, but waited another five years to test residential areas near the plant and to step up its enforcement. Regulators are now overseeing their largest cleanup ever, an effort expected to take years and more than $400 million to complete.

Brown has approved spending more than $180 million to test and clean lead from thousands of homes near the plant, but his office has not disclosed taking any steps to investigate or hold employees responsible.

“This administration is committed to holding all state agencies and departments accountable,” said Deborah Hoffman, a spokeswoman for Brown’s office. “We don’t discuss personnel actions.”

In Michigan, the U.S. attorney’s office, the FBI and the Environmental Protection Agency’s office of inspector general are part of a multi-agency investigation of potential criminal wrongdoing in Flint’s drinking water crisis. Michigan’s governor appointed a task force and the state attorney general named an outside counsel to avoid potential conflicts of interest from the office’s dual roles as defender of the state and prosecutor.

The California attorney general’s office has similar potential for conflict because it is responsible for defending the Department of Toxic Substances Control in lawsuits and other legal matters related to Exide. Atty. Gen. Kamala D. Harris has not announced the appointment of an outside counsel.

Asked whether Harris has launched an investigation, her office said only that it is “committed to ensuring that those responsible for endangering the health of our communities are held accountable.”

Barbara Lee, who was appointed director of the toxic substances department by Brown in 2014, has acknowledged the agency’s past oversight of Exide was unacceptable and that employees failed to do their jobs.

The department has not disclosed whether anyone has been disciplined or dismissed, citing the confidentiality of personnel actions. A spokesman noted that the project is now managed by employees who were not involved in decisions about the facility before 2013, when the department began taking a stronger enforcement approach.

Recent reform efforts have targeted broad deficiencies in the Department of Toxic Substances Control’s permitting, enforcement and fiscal management and its response to environmental hazards in poor communities of color. State legislative leaders said they expect additional improvements from the Independent Review Panel, a three-member body created under a law passed last year to study the toxic substances department and make recommendations for reform.

Gideon Kracov, an attorney who chairs the review panel, said its “mission is to focus on the department as a whole, not only one site.” He added that the panel is “learning a lot from Exide to make sure the right accountability measures are in place to prevent this from happening again.”

To investigate regulatory breakdowns and potential wrongdoing specific to Exide, the Brown administration or state lawmakers could commission a panel or inspector general with the authority and resources to review records and conduct interviews, said Sean Hecht, an environmental law professor at UCLA who has worked on behalf of community groups on the issue.

Gladys Limón, an attorney for Communities for a Better Environment, said residents deserve a thorough investigation that “could reveal potential wrongdoing or deficiencies that prevented a proper and lawful response to Exide’s numerous violations.”

“But the questions haven’t even been asked,” she said.

State and federal lawmakers have called for such investigations but have not followed through with concrete action.

U.S. Sen. Dianne Feinstein, U.S. Rep. Lucille Roybal-Allard (D-Downey), California Senate leader Kevin de León (D-Los Angeles) and other state legislators say the state should investigate.

“It is critical that the state conduct a thorough investigation into how the plant was allowed to operate and pollute for so long,” Feinstein said.

The U.S. Senate Committee on Environment and Public Works is looking into the Exide site and its history on behalf of ranking member Sen. Barbara Boxer, said spokeswoman Mary Kerr.

The state toxic substances department has faced the most scrutiny for not acting quickly. But the problems at Exide also occurred under the oversight of others, including local air quality officials, public health authorities and the EPA.

“We must question all those with oversight responsibility who could have acted sooner,” Roybal-Allard said.

The EPA would not comment on whether it has any open investigations regarding Exide, but noted that its criminal probe last year led to the permanent closure of the facility.

A South Coast Air Quality Management District spokesman said “we welcome all inquiries and investigations into the root causes of issues regarding Exide.”

Some elected officials, while voicing public support for an investigation, said that holding government officials accountable is a lower priority than removing lead from homes.

“The most immediate urgent need is to clean up this neighborhood and that’s where the energy is going,” said Assemblyman Miguel Santiago (D-Los Angeles).

Though the Legislature could order an audit of the toxic substances department and other agencies, Santiago said, he believes state and county prosecutors are better equipped to find out whether the company or government officials broke the law.

Assembly Speaker Anthony Rendon (D-Lakewood) encouraged Harris and L.A. County Dist. Atty. Jackie Lacey to investigate their legal options against the company and “to make public announcements as soon as possible without impeding their investigation.”

If existing efforts “reveal the slightest hint of criminal wrongdoing, we will absolutely follow up on those allegations,” Rendon added. He voiced no support for investigating the conduct of government employees.

The district attorney’s office said it is reviewing and monitoring “the serious environmental impact and clean-up efforts surrounding Exide Technologies.” A spokeswoman declined to answer additional questions “because there is an ongoing criminal investigation.”

That long-running investigation has not led to charges.

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@tonybarboza