EPA UPDATE: Frisco citizens met with EPA officials about Exide in October; Follow-up letter poses more questions, asks for answers
Members of the Frisco Unleaded: Exide Out! citizens group met with senior Region 6 EPA officials on October 6, to discuss their growing concerns about the negative impact of the Exide lead smelter.
The group followed up its meeting with a seven-page letter to Carl Edlund, the EPA’s Region 6 director for multimedia planning and permitting, outlining additional questions and concerns and pushing for response to previous inquiries.
You can download a PDF copy of the complete letter here:
Below are highlights from the seven-page letter:
“As we understand it, neither certainty nor proof of actual harm is required for Region 6 to invoke the RCRA imminent and substantial endangerment clause. Simply showing a risk of harm to public health and/or to the environment is sufficient. The historical record at Exide and the inspection reports from the TCEQ and EPA contain ample evidence that current conditions at Exide pose such risks.
Moreover, as we mentioned in the October 6th meeting, we believe the level of negligence documented by these inspection reports rises to a criminal level and perhaps indicates more than just negligence. We urge EPA to look at the history of Exide, as well as current practices documented by the EPA and TCEQ inspections, with the idea of pursuing criminal charges against the company and its representatives.
With the Administrative Order, the designing of the State Implementation Plan, and various enforcement investigations, EPA has a chance to demonstrate that itâ€™s finally taking the lead contamination problems caused by Exide seriously after decades of letting the facility slip through its regulatory cracks. We urge EPA to take advantage of these opportunities on behalf of public health and the environment. “
Regarding the State Implementation Plan:
Redrawing Non-Attaintment Area Boundary Lines
“Weâ€™ve been disappointed not to have heard back from anyone at EPA about the change to the non-attainment area boundary lines to account for background lead concentration levels. The lack of a background lead number was one of the reasons EPA rejected the first proposed SIP for Frisco last summer and it should have also been a reason to reject the boundary lines of the non-attainment area when it was proposed. Can you please tell us when you expect the new boundary lines for the non-attainment area to be made official?
In language surrounding the publication of the new National Ambient Air Quality Standard for Lead, EPA itself stated that emissions from long-time large sources of lead, that is, sources that emitted a ton or more of lead a year like the Exide lead smelter,â€œhave been deposited in neighboring communities (e.g. on roadways, parking lots, yards, and off-plant property).Â This historically deposited lead, when disturbed, may be re-entrained into the ambient air and may contribute to violations of the lead NAAQS in the affected areas.â€
Since a lead-emitting facility has been operating on the Exide site for nearly 50 years and in light of what we know so far about lead-contaminated waste lining city streets and Stewart Creek, extensive lead contamination on and off the plant site, and a history of voluminous fugitive emissions, itâ€™s not unreasonable to expect EPA to require a higher-end estimate for background lead in Frisco. If it hasnâ€™t done so already, we strongly urge the Agency to approve a background lead concentration of between 0.05 and 0.10 ug/m3 for use in the SIP and redrawing the boundary lines.”
TCEQ’s failure to consider effective emissions control technology in use at other lead smelters in the U.S.
A final issue with the SIP that we discussed on October 6th was EPAâ€™s hesitancy to challenge the TCEQ over its definition of what constituted a â€œReasonably Available Control Technology,â€ or RACT, specifically the use of wet electrostatic precipitators that are in operation now, or will be shortly, on at least three other U.S. secondary smelters.
The Clean Air Act requires that a SIPâ€œprovide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoptions, at a minimum, of reasonably available control technology) and shall provide for the attainment of the national primary ambient air quality standards.â€
RACT is defined as, â€œthe lowest emissions limitation that a particular source is capable of meeting by application of control technology that is reasonably available considering technological and economic feasibility.â€ However, the TCEQ inexcusably attempted to bar consideration of wet electrostatic precipitators for the Exide smelter in its SIP analysis by misapplying EPAâ€™s caution about overwhelming smaller, â€œde minimisâ€ sources of lead contamination with expensive controls, to a lead smelter thatâ€™s routinely emitting anywhere from 1 to 3 tons of lead particulate matter annually. As was previously noted, the National Ambient Air Quality Standard for Lead itself defined a â€œlarge sourceâ€ of lead as one that emitted a ton or more of lead a year. Exideâ€™s stack and fugitive emissions of lead are not â€œde minimisâ€ and the TCEQâ€™s arguments against wet electrostatic precipitators as RACT do not apply.
In publishing the NAAQS for Lead, EPA made clear that any RACT analysis must consider the controls already in use in similar facilities. Specifically, the Agency â€œas a general matter expects that it is reasonable for similar sources to bear similar costs of emissions reduction.Â Economic feasibility for RACT purposes is largely determined by evidence that other sources in a particular source category have in fact applied the control technology or process change in question.â€ Moreover, â€œstates should consider and address RACT and RACM measures developed for other areas, as part of a well-reasoned RACT RACM analysis.â€
However, itâ€™s clear TCEQ didnâ€™t do this. If it had, it would have had to include wet electrostatic precipitators in its definition of RACT for the Exide smelter.
Wet electrostatic precipitators have been operating successfully at the Quemetco secondary lead smelter operation in City of Industry, California since 2008.Â Like Exide, the California smelter also recovers lead from spent lead acid batteries. Stack tests show a 98% reduction in lead emissions, as well as decreases in the emissions of other toxic metals Exide is emitting, like arsenic and cadmium.
Representatives of Envitech, the manufacturer of the California smelterâ€™s precipitators, have stated for the record that the same system is capable of handling the emissions of the Exide facility with similar results. Envitech is installing wet electrostatic precipitators in another secondary lead smelter in Indiana that is due to open any week now, and on a third smelter in New York next year.
Since EPA estimates there are only 14 secondary lead smelters in the entire U.S., this means that approximately 22% of all secondary smelters either have now, or are installing, wet electrostatic precipitators to control their lead emissions.
EPA must hold Exide and the TCEQ to the definitions and processes outlined in the published NAAQS and the Agencyâ€™s rules. That means EPA must require wet electrostatic precipitators as Reasonably Available Control Technology for Exideâ€™s Frisco smelter since theyâ€™re already being used or installed by a significant percentage of similar smelters in the U.S. Weâ€™re requesting Region 6 make this explicit to Exide and the TCEQ as soon as possible.
Because of its location, as a general principal in the course of regulating the Exide smelter, EPA and the TCEQ should be demanding nothing less than the very best, most protective technology. In this case, that means requiring wet electrostatic precipitators to help capture significantly more lead pollution before itâ€™s released into Frisco skies.”
Regarding the EPA’s Administrative Order and Enforcement; Frisco-Exide Hot Line requested
“An objective examination of the history of the Exide site over the last 48 years reveals not only a long-standing culture of public health and environmental neglect within the various companies operating the smelter, but an equally disturbing pattern of government neglect as well. Reading the EPA and TCEQ enforcement records of the facility is like reading the same chapter of a book over and over again. Problems first identified and believed to be definitively resolved in the 1980â€™s, surface again in the 1990â€™s to be addressed by this or that administrative procedure, only to show up again in this century, and right on up to this yearâ€™ inspection by the TCEQ. Not only have Exide and its predecessors been bad actors; EPA and TCEQ have allowed the show to go on for decades too long.
One of the biggest concerns our group has about the Administrative Order is the quality of the required sampling and testing taking place if Exide is left to do this on its own. Given its history of noncompliance, and the possible consequences of discovered wrongdoing, we donâ€™t trust Exide, or its hired agents, to perform its own investigative sampling in an honest or objective way. Weâ€™re respectfully asking for EPA Region 6 to commit to on-site supervision of all sampling and testing called for by the Administrative Order and that the Agency split any samples taken as part of the Order.
More information requested about the extent of Exide’s on and off-site contamination
Weâ€™re also concerned about the narrow focus of the sampling protocol being required in light of how much we do not know about the extent of on or off-site contamination. As part of its on-going investigation of Exide, we respectfully urge EPA to design a wider and more thorough testing grid that envelops the entire facility, itâ€™s property, the area surrounding the plant, follows Stewart Creek downstream to Lake Lewisville and picks a number of streets that are historically likely candidates for lead paving. A comprehensive accounting of how far afield Exide contamination extends is long overdue. EPA should use this investigation to finally perform one.
We also respectfully ask that EPA issue official guidance to the City of Frisco concerning the location and excavation of lead-paved city streets. The City should be required to identify and map all city streets that existed from the mid-1960â€™s to 1980â€™s when using the smelter waste for paving material was apparently commonplace. As needed or routine repairs occur on these streets, the City should be required to grid sample the area of the repairs at various depths for lead before they begin. Positive results of over 400 ppm would require notification of EPA and implementation of a clean-up protocol that would be protective of near-by residents and the environment.
Since we last spoke to you, weâ€™ve received information about suspected Exide dumping grounds for its lead-contaminated waste in Frisco that have not been previously investigated. Much like the RSR smelter in Dallas left behind a Superfund Site worth of lead â€œslag pilesâ€ throughout West Dallas neighborhoods that went unacknowledged for decades, we believe that there could be numerous such dumping grounds within the city limits that are known to long-time residents, former Exide employees, etc.
In order to facilitate a comprehensive mapping and clean-up of Exide contamination in Frisco, we respectfully request EPA sponsor a â€œFrisco-Exide Lead Hotlineâ€ that could be widely publicized in our community, receive and catalogue information provided by the public, and serve as the basis for further sampling and testing.
Because of the litany of old problems cited once again in the recent EPA and TCEQâ€™s inspections of Exide, weâ€™re also respectfully requesting the EPA use its statutory authority and invoke the Resource and Recovery Actâ€™s â€œimminent and substantial endangermentâ€ clause to stop the operation of the smelter until such time that full compliance is finally established and the endangerment to public health and the environment is prevented.
There are a number of on-going practices at Exide highlighted by these inspections that provide evidence that the smelterâ€™s â€œpast or present handling, storage, treatment, transportation or disposal of hazardous or nonhazardous waste may present an “imminent and substantial endangerment to health or the environment”.
Regarding the Continued Poisoning of Stewart Creek
Perhaps no other issue exemplifies the historical failure of government to seriously address Exide contamination as the continued poisoning of Stewart Creek. It dates back to at least 1988, when a RFI report declared that the smelterâ€™s portion of the creek was a Solid Waste Management Unit and needed a permit. That same report identified a problem with hazardous waste releases via municipal storm water culverts.
In 1999, a 2000 foot-long segment of Stewart Creek was dug up because it was heavily contaminated with lead slag and battery chips. In all, the Creek has been dredged three times. Still, as of this year, lead slag is continuing to be found along the banks of the creek because the recent drought has caused the ground to crack and reveal it.
In December of 2009 an EPA inspector found a white crystalline substance and liquid leeching from Exideâ€™s retaining wall into Stewart Creek. Â He records that â€œIt appears that the facility is discharging high amounts of dissolved metals.â€ A year later the same EPA inspector again found a white crystalline material â€œleeching from cracks in the concrete retaining wall, depositing along the north shore of Stewart Creek, and directly impacting the waters of the creek. This was the same material that was observed during the December 2009 inspection.â€
In May of this year, TCEQ inspectors discovered â€œliquid discharging through cracks and seeps in the barrier wall into the environment (Stewart Creek embankment)â€ at more than one location.Â Soil lead levels where these leaks were occurring were measured at 3,560 to 39,000 ppm and represented â€œthe potential to adversely affect the downstream waters and stream beds of Stewart Creek,â€ according to the TCEQ inspection summary. This same inspection came across battery chips in municipal storm water culverts and associated lead soil levels of almost 700ppm. Those would be the same culverts first cited as a problem in 1993.
Chronic leaks and spills to Stewart Creek represent a continuing threat to water that eventually flows to Lake Lewisville, a source of drinking water for millions of DFW residents. This is a basic and fundamental environmental violation thatâ€™s extended over at least the last three decades and a dozen different government inspections and corrective actions that were supposed to resolve it. How long should citizens have to wait to see EPA enforce the law?
You can dowload and read the entire seven-page letter from Frisco citizens to the regional EPA officials here: