Toxic Law May Have Swayed Lockheed Case
Case involving state toxics law was ‘waiting to happen’
August 26, 1996
By CHIP JACOBS
Daily News Staff Writer
The unprecedented $60 million out-of-court settlement by Lockheed Martin with about 1,300 Burbank residents over operations at the company’s old aircraft manufacturing plant seemed to many to spring from nowhere.
But to those who carefully monitor California’s environmental laws, it was only a matter of time before the state’s trailblazing right-to-know toxic hot spots law provided ammunition for such a case.
“The Lockheed case was just waiting to happen thanks to the hot spots law,” said Chris Mathis, an organizer for the Labor Community Strategy Center, an environmental watchdog group. “These companies know what the data is, and they know it shows significantly high emissions of dangerous stuff. They know lots of people are being exposed.”
The Air Toxics Hot Spots Information and Assessment Act of 1987 – the first in the country – requires polluters to assess the health risks to their neighbors. Above a certain risk level, the companies are required to inform each affected neighbor with a letter and to conduct meetings to discuss the risks.
Lockheed had closed its plant, known as B-1, by the time the residents brought their claims against the company. But their attorneys had access to the health risk assessment required of Lockheed for air emissions from the plant in 1989.
Those assessments showed Lockheed’s three plants, when operating, were emitting a combined total of 1,015 pound of toxins daily. Company documents showed a 10-in-1 million cancer risk to more than 44,000 residents as recently as 1991.
In particular, the assessment disclosed that the B-1 plant was emitting at least 2.28 pounds of hexavalent chromium, a known carcinogen, into the air in 1989. The health assessment concluded the compound was primarily responsible for the risk, estimated at 180 additional cancers per 1 million people among residents receiving a maximum exposure over a lifetime.
The private judge who mediated the settlement, John Trotter, said the toxics law was pivotal to the residents’ claims, which he said hinged largely on the hexavalent chromium emissions chronicled in the health risk assessment, as well as other data submitted to the South Coast Air Quality Management District.
“Had these filing requirements not existed, the plaintiffs would not have had access to this information,” Trotter said during a Friday news conference in Orange. “They were vital to the plaintiff’s case in showing what Lockheed had done.”
Trotter said there may be implications for other companies that emitted hexavalent chromium in the past as well.
“Anyone who has used it in the past is sitting with their fingers crossed,” he said.
Lockheed officials and the attorney for the residents, David Casselman of Tarzana, declined to discuss the role the toxic hot spots disclosures played in the settlement.
The settlement has renewed debate about the toxic hot spots law, which environmental groups hail as a milestone in public disclosure. But many businesses say it is overly harsh in requiring expensive inventory reports for minimal risks.
At the heart of the debate is the lag in reporting among companies.
Seven years after the AQMD enacted local standards for the hot spots rules, only seven of the region’s 325 biggest polluters have held the neighborhood meetings, according to state records. AQMD officials had predicted up to 100 would hold the meetings this year.
Not a single company has been required to develop an emission reduction plan as envisioned under the hot spots law.
In 1994, a total of 1.3 million people in Los Angeles, Orange, Riverside and San Bernardino counties had been exposed to cancer risks above the level requiring public notification, according to air district officials.
The seven companies that held meetings were responsible for exposing an estimated 37,000 workers and residents to elevated risks, generating a combined 96,507 pounds of toxic air emissions in 1989, records show.
Assembly Minority Leader Richard Katz, D-Panorama City, said he believes the AQMD held back on aggressively implementing the hot spots rule, noting the state political pressure to scale back the requirements.
“The AQMD has been backsliding for years,” Katz said.
The Senate next week will vote on AB 564 by Assemblyman Sal Cannella, D-Turlock. The measure would exempt all but the state’s biggest toxic emitters from the fees and regulatory oversight they now face.
Cannella said in an interview the hot spots law exceeded its original scope by including small companies that emitted minute amounts of toxins.
“The (hot spots bill) was needed to identify toxics and get a handle on what was going on,” Cannella said. “But once the state and air districts knew who the large polluters were, they made no attempt to reform it. It got out of hand.”
Environmental groups, however, are worried the bill will set back public disclosure of toxic emissions.
Bonnie Holmes, the Sierra Club California’s legislative director, said, “It should be about improving the information. Instead they are cutting off information that neighborhoods need and far beyond what we believe is reasonable.”
AQMD officials say they’ve been slowed down by the complexity of the reporting requirements, but say the law has done what it was intended to do in many instances – to dramatically reduce toxic emissions.
“Toxics have been cut in this area more than anywhere in the world, period,” said Benjamin Shaw, the AQMD’s senior manager for toxics.
“The beating we’ve taken is because the program is much bigger than we realized, and it’s taken too long.”
A log of 15 key toxins spewed by Southland companies show emissions dropped 41 percent – from 43.9 million pounds to 26.4 million pounds – between 1990 and 1993, the last year the information was available, according to district records.
Lockheed would have been required to hold community hearings, but the company decided to dismantle its 103-acre aircraft-manufacturing plant six years ago, Shaw said.
Residents learned about hot spot emissions after they were notified by the air quality district two years ago of a plan to clean up toxic vapors in the soil at the site. The notification was required because the plan to emit 40 pounds of trichloroethylene and perchloroethylene daily into the air carried an increased cancer risk estimated at a maximum of 3.03 people per million for a lifetime of exposure. The emissions have since been reduced to 9.8 pounds per day.
The cleanup is part of a federal Superfund site in the east San Fernando Valley. Lockheed is expected to pay the bulk of the $300 million groundwater cleanup. Officials have identified dozens of smaller responsible parties.
AQMD officials said attorneys for the residents obtained copies of the health risk assessment required under the toxics law.
Bob Wyman, a Los Angeles attorney who has represented large defense companies, refiners and others before the air district, said there have been few hearings, because corporations voluntarily slashed their toxic use in response to federal Superfund clean-up rules.
“They’ve implemented pretty aggressive phase-out programs,” Wyman said. “They know if they use highly toxic chemicals they’ll be regulated. It’s embarrassing to report that you are on the top of the (toxic) list.”
Terry McGuire, technical support chief for the California Resources Board, which has the overall responsibility for setting emission standards, said that while the law has shown total toxic inventories lower than originally thought, he’s surprised the South Coast Basin, which accounts for roughly half of all the toxics emitted in the state, hasn’t triggered more public meetings.
“Seven is a small number,” McGuire said. “Other air districts have held more.” McGuire said he didn’t have a count of Northern California public hearings.
Based on an initial list of 1,200 major polluters, AQMD officials required 325 submit inventory and health risk assessments. So far, only 40 have been approved, with 150 in the final stages of review. Hundreds of smaller facilities, most of them dry cleaners, are also being studied.
When the health risks assessments conclude the cancer risk would cause more than 10 cancers among 1 million exposed residents, it triggers the meeting notification. When the risk exceeds 100 cancers among 1 million people exposed, the facility must develop a strategy to reduce the risk.
Some of the executives who have held the meetings complain they were unfairly forced to do so under the toxics law, saying in some cases they already had changed their operations to be below the reporting threshold and were still forced to hold community meetings.
That was the case for Prudential Overall Supply, which stopped using the toxic solvent PCE at its industrial dry cleaning operations in Commerce and Irvine by the time of the meetings.
“In our view, instead of being used as a human health tool, they’re using it to help those who might want to pursue toxic tort claims,” said Lee Terry, the company’s environmental manager.
Continental Airlines’ aircraft maintenance hub near Los Angeles International Airport posed the highest cancer risk – 764 in 1 million additional cancers at maximum exposure over a lifetime – of the seven companies that have so far held the meetings, records show.
Company officials refused to talk about the meeting.
BP Chemicals, a Gardena aircraft and aerospace-components manufacturer, and McWhorter Technologies, a Lynwood casting and resin maker, also provided notice to residents and staged meetings. Officials did not return phone calls.
Los Angeles-based Modern Plating, a metal plating company that serves the aerospace and automobile industries, also was required to put on a community forum. Company President Chuck Manzetti said his firm was being assessed based on emission information that was obsolete.
“I grew up on the East Coast, where companies would dump millions of dollars of chlorinated solvents in Lake Erie and it would wipe out the wildlife,” he said. “The planet can’t withstand that, but what I’m concerned about is how a small company like Modern Plating can be classified at the same level as large companies. There is a dichotomy that doesn’t make sense.”
Shaw said it was unfair to judge the hot spots law based on the hearings so far. Another 75 companies may have to hold them once officials review their health assessments, he said.
The only Valley candidates are in Van Nuys: the Anheuser-Busch brewery, Prudential Overall Supply and radar maker ITT Gilfillan.
Officials at those companies said they don’t believe they’ll have to stage hearings because of their programs to reduce emissions.
Officials at Rockwell International Corp.’s Rocketdyne division in Canoga Park say they’ve moved away from toxin use since the law went on the books – so much so they don’t believe they’ll have to stage a community hearing. Two years ago, they were listed just below the reporting limit, at 9 additional cancers per million for a lifetime of maximum exposure.
The company, for instance, nearly eliminated its hexavalent chromium emissions by adding better filters at paint booths and using low-evaporative oils on NASA projects.
“We’ve made substantial progress,” said Kim O’Rourke, a Rocketdyne environmental engineer. The law “definitely made us rethink our priorities.”
copyright Daily News of Los Angeles