DTSC & Exide Technologies reach a settlement agreement but fail to include community input.

CBE responds to the settlement agreement between DTSC & Exide.

On November 6, 2014, the DTSC and Exide Technologies announced a settlement agreement purporting to resolve all compliance and other issues in dispute concerning the Vernon battery-recycling plant.

The settlement agreement caps Exide’s financial liability for residential cleanup at $9 million, even though there is nothing upon which the public can determine the reasonableness of that amount, and the scope and extent of contamination remain undetermined. The agreement also limits the number of residential properties that Exide may have to remediate, and leaves open the level to which it must remove lead contamination. Further, residents should not have to wait and continue to be exposed to dangerous levels of lead for up to five years, as provided in the agreement.

While the settlement agreement must still be approved by the bankruptcy court where Exide has a pending Chapter 11 case, the record indicates that a purpose of the agreement is to clear a path for the facility’s re-opening, its continued operations, and for the Department’s approval of the facility’s pending hazardous waste permit.

“Once again, we have been hit with an agreement between DTSC and Exide that fails to protect the public and the residents most impacted by this facility,” said Staff Attorney Yana Garcia. Garcia stated that “the Settlement provides no known recourse in the event of Exide’s liquidation, and sets forth arbitrary monetary amounts for clean-up before the Department has even finalized the scope and level of clean-up to necessary to deliver the protections it has promised residents. It is unacceptable for this Department to continue to proceed in a manner that prioritizes Exide’s ability to continue its operations, over the community’s health and wellbeing.”

CBE is disappointed that the DTSC entered into this settlement agreement without consulting with or notifying residents, whom are the people most impacted by the agreement. It is alarming that the Department proceeded without community input in limiting Exide’s liabilities and responsibilities at the cost of the community, especially in light of the haphazard process to date for soil testing and cleanup. The agreement’s limitations on Exide’s liabilities, and the ambiguities and contingencies of its terms create great uncertainty for affected residents and place their health in continued jeopardy.

CBE believes it is reckless for the State to allow continued operation of this facility, in light of its egregious history of violations of state and federal environmental laws, and which, in the state’s own words, has created “shockingly high” levels of contamination and cancer risks. No reasonable person would allow a childcare provider to stay in business after a history of abuse, nor a pilot to continue to carry people’s lives in her hands in light of a string of dangerous violations, and no reasonable state agency would allow Exide to continue to operate in Vernon.

DTSC’s actions show that it is once again relegating its affirmative obligations to enforce federal and state law to mere agreements, subject to conditions decided by only it and Exide. DTSC must remain accountable to the community, despite its agreement to limit Exide’s accountability.