On August 5, the A’s sued the California Department of Toxic Substances Control (DTSC) to compel it to comply with applicable law by applying the Hazardous Waste Control Law to Schnitzer Steel’s management of hazardous waste and revoking a variance called an “f letter.” As detailed in that lawsuit:
1. Schnitzer produces approximately 200,000 tons per year of metal shredder residue that exceeds the toxicity thresholds for hazardous waste in a predominantly low-income, largely African-American West Oakland community.
- Schnitzer Steel (Ticker: SCHN) is a publicly-traded multinational corporation. Over the last three years, Schnitzer has generated an average of over $2 billion in total revenue and $85 million in net income, with cash flow from operations averaging approximately $135 million.
- Schnitzer operates the largest metal-shredding facility in California, a 26.5-acre complex at 1101 Embarcadero West in West Oakland, a low-income community of color with a long history of suffering environmental pollution.
- The Schnitzer facility is located closer than any other metal shredder in California to nearly every class of sensitive receptor.1 The Facility is located within a mile of approximately 23,000 residents and dozens of “sensitive receptors,” including numerous daycare centers, parks, schools, senior living centers, and hospitals.
- Schnitzer’s operations include shredding junk automobiles, appliances, and other metal-containing materials in a “mega-shredder,” and removing ferrous (iron-containing) and non-ferrous metals.
- Junk vehicles and other metal-containing “feedstock” regularly contain hazardous materials, including gasoline, oil, antifreeze, lead-acid batteries, vehicle air bags, compressed gas cylinders (e.g., propane tanks, compressed gas tanks, and fire extinguishers), refrigerants in air conditioning or heat transfer systems, capacitors containing polychlorinated biphenyls (PCBs), light ballasts, transformers, and items containing elemental mercury (e.g., tilt-switches or thermostats). California law requires metal shredders to remove hazardous materials from feedstock before feeding the scrap metal through the shredder, a process known as “de-pollution.
- Each year, the shredding process yields hundreds of thousands of tons of materials, including the harvested metals, which can be resold. But the process also generates waste, classifications of which include aggregate (a combination of metal shredder residue and non-ferrous metals), untreated metal shredder residue, and treated metal shredder residue.2
- As explained in the complaint, regulators have consistently found contaminants in both Schnitzer’s aggregate, untreated metal shredder residue and treated metal shredder residue to exceed toxicity thresholds for hazardous waste under California law. However, pursuant to policies that a DTSC legal memo found to be “outdated and legally incorrect” 20 years ago, Schnitzer still does not manage or dispose of these materials as hazardous waste.3,4
- Furthermore, Schnitzer trucks approximately 200,000 tons per year of “treated” metal shredder residue—which DTSC has found continues to exceed hazardous waste toxicity thresholds despite treatment—through surrounding neighborhoods to landfills that are not designated to receive hazardous waste. Once there, the toxic shredder residue is spread as a top layer over nonhazardous garbage as “alternative daily cover.”
2. Multiple agencies have found that Schnitzer’s metal shredder residue has polluted West Oakland’s air, water, and soil.
Schnitzer stores aggregate and metal shredder residue in large stockpiles outside and uncovered where contaminants can leach into the soil and groundwater, blow offsite, and catch fire.
- Soil and groundwater contamination. Soil and groundwater tested throughout the Schnitzer facility have been found to exceed San Francisco Bay Regional Water Quality Control Board (RWQCB) Environmental Screening Levels) for several metals, including arsenic, copper, lead, and zinc.5
- “Fluff” deposited in neighboring areas. Schnitzer’s shredding, stockpiling, processing, and treatment of aggregate and metal shredder residue have also caused hazardous materials, including light fibrous material (also known as “LFM” or “fluff”) to be blown offsite and migrate onto neighboring properties. Multiple agencies have found that Schnitzer’s operations have caused a large amount6 of LFM to be deposited across a broad swath of West Oakland. DTSC has determined that LFM frequently exceeds toxicity thresholds for hazardous waste under California law due to high concentrations of lead, copper, and zinc.
- Water pollution and “fugitive dust”. Schnitzer’s hazardous-waste-management practices have degraded the San Francisco Bay and Oakland Inner Harbor. The San Francisco RWQCB recently acknowledged that the “discharge of unacceptable contaminated groundwater [from the Schnitzer facility] to the San Francisco Bay has been occurring and documented since 2013.”7 The agency also concluded that these discharges are still “degrading the water quality of San Francisco Bay and adversely affecting the Bay’s beneficial uses.” The SF RWQCB has also found evidence that airborne fugitive dust from the Facility is deposited directly into the Oakland Inner Harbor.
- Toxic fires. Schnitzer’s operations have led to at least six fires in eleven years, many of which have sent dark plumes of toxic smoke into the air and forcing local residents to seek refuge indoors.
3. For nearly forty years, DTSC has allowed Schnitzer to operate without complying with Hazardous Waste Control Law (“HWCL”) requirements, pursuant to an outdated exemption called an “f letter.”
- Enacted in 1972, the HWCL directs DTSC to regulate the handling, processing, and disposal of hazardous and extremely hazardous waste to protect the public and environment from hazards to health and safety.
- In 1984, DTSC first determined that metal shredder residue was California hazardous waste. These findings subjected metal shredder residue to statutory and regulatory requirements for California hazardous waste management, including permitting, treatment, transportation, and disposal requirements. In accordance with these findings, on March 9, 1984, DTSC directed metal shredding facilities to manage metal shredder residue in accordance with hazardous waste regulations.
- Between 1986 and 1992, DTSC issued conditional nonhazardous waste classifications to seven shredder facilities in California. These conditional nonhazardous waste classifications were referred to as “f letters.” Under the “f letters” and DTSC’s Official Policy and Procedure Number 88-6 (OPP 88-6), metal shredders were not required to handle and dispose of metal shredder residue as hazardous waste – even though the residue continued to exceed toxicity thresholds for hazardous waste after “treatment.”
- On numerous occasions over the last 20 years, DTSC has come close to ordering metal shredders to comply with the HWCL, only to retreat at the last minute after intensive lobbying efforts by the metal shredding industry.
- On October 9, 2001, DTSC issued a legal memorandum concluding that DTSC’s policies on metal shredder waste, including “f letters,” were “outdated and legally incorrect.”12 Yet DTSC left its policies in place.
- In 2002, DTSC issued a report recommending rescission of the “f letters.” However, the agency did not act to rescind these policies and regulate metal shredders pursuant to the HWCL.
- In 2008, DTSC’s Director notified Schnitzer that rescission of the “f letters” was required to “ensure the safety of public health and the environment from harmful exposures to toxins.” After an intense lobbying campaign by the metal shredding industry, however, DTSC again did not act.13
- In 2009, the California Integrated Waste Management Board (now CalRecycle) issued the “Alternative Daily Cover White Paper,” raising concern about metal shredders’ hazardous waste management practices, stating that “the material should be considered hazardous, and [metal shredder waste] should be required to be disposed in Class I landfills.”14
- DTSC has found that hazardous waste management practices like Schnitzer’s pose significant public health risks to the surrounding community. However, DTSC allows Schnitzer to continue operations that do not meet requirements of the HWCL, a law that numerous other industries and businesses comply with every day.
4. In 2014, frustrated state leaders passed a new state law requiring DTSC to revoke the “f letter” and require DTSC to “thoroughly evaluate and regulate[ metal shredders] to ensure adequate protection of the human health and the environment.”
- In 2014, after a series of toxic fires at metal shredder facilities, Governor Jerry Brown, Senator Jerry Hill, and the California State Legislature finally took matters into their own hands by passing the Metal Shredding Facilities Law (MSFL) into law.
- During the legislative process, the Senate Committee on Environmental Quality explained that legislation was required because “DTSC has failed to revoke the nonhazardous waste classifications for treated shredder waste granted decades ago to the metal shredding industry despite a 2001 legal opinion by DTSC attorneys, which called the exemption ‘outdated and legally incorrect,’ and warnings from the department’s scientists that this waste could become hazardous during the shredding process.”15
- The Bill’s author, Senator Jerry Hill, explained that SB 1249 was prompted in part by several fires that had occurred at metal shredding facilities, including at least one within his District. (Id. at p. 3.) He explained that the Counties of San Mateo, Alameda, and Santa Clara issued health advisories because of the smoke from these fires, and school districts were forced to keep students inside because of poor air quality. (Id.) He concluded that “these incidents provide clear evidence that this industry is not currently adequately regulated.” (Id.)
- The MSFL required DTSC to take one of two actions before January 1, 2018: (1) develop and apply alternative management standards to the metal shredding facilities or (2) apply the HWCL to the facilities and rescind the “f letters.”
- In 2015, DTSC’s Deputy Director sent Schnitzer a letter explaining that the “onsite activities and management of wastes and materials” at metal shredding facilities “raised serious concerns” and were “alarming.” Again, however, DTSC did not act, notwithstanding the legislative mandate of SB 1249.
5. DTSC failed to act by the January 1, 2018 deadline and the hazardous-waste-management practices of concern continue.
- DTSC failed to act by the MSFL’s January 1, 2018 deadline. Even in the face of a clear legislative mandate, DTSC failed to revoke the variance that the State Legislature had specifically commanded it to revoke. That same month, another toxic fire was reported at the Schnitzer facility.
- DTSC neither adopted alternative management standards nor began to apply the Hazardous Waste Control Law to metal shredders, as the MSFL required. Rather, DTSC issued a “draft evaluation,” which yet again found that metal shredders’ hazardous waste management activities “pose substantial risks to nearby communities.” DTSC concluded that the MSFL did not authorize alternative management standards, which should have left DTSC with no other option but to rescind its outdated policies and apply the HWCL to metal shredders.
- Over two and a half years later, DTSC still has not acted. The “f letters” remain in place. Schnitzer continues to be excused from complying the HWCL as hundreds of companies around the state do every day. And DTSC still had not acted despite repeatedly finding that Schnitzer’s practices place surroundings communities and the environment at substantial risk.
6. Meanwhile, West Oakland residents are experiencing significant economic, environmental, and health distress.
- High poverty. The Schnitzer facility is surrounded by neighborhoods that have a high proportion of socioeconomically disadvantaged populations. Approximately 27% of residents living in zip code 94607, which encompasses most of West Oakland, live below the federal poverty level. This is almost three times greater than Alameda County’s overall 10.6% poverty rate.
- High pollution levels. The community surrounding the Facility is also already burdened by much higher pollution levels than other areas in Oakland and California.16 The Alameda County Public Health Department has found that “[l]ow income neighborhoods and communities of color [in Alameda County] are unjustly burdened by a disproportionate number of hazardous facilities that pollute the air, ground water and soil with toxic contaminants.” In fact, “the density of industrial chemical and fuel release sites in very high poverty neighborhoods [in Alameda County] is 4 times higher than in affluent neighborhoods.”
- Environmental distress in local schools. The Oakland Unified School District has found that five schools in West Oakland near the Facility show the highest “environmental stress indicators” based on exposure to poor air quality, among other risks.17
- Prescott School, an elementary school near the Facility, has the highest score possible (145 out of 145) for environmental stress factors.
- Martin Luther King Jr Elementary School is located less than a mile from the Facility and is shown to be “highly stressed,” with a score of 112. In 2014, DTSC found that Schnitzer had caused hazardous LFM to be deposited at Martin Luther King Jr Elementary School. DTSC’s testing showed that the LFM samples exceeded California hazardous waste toxicity threshold for lead.
- Poor health conditions. The rate of asthma emergency department visits in West Oakland neighborhoods surrounding the Facility is almost double Alameda County’s rate. Stroke and congestive heart failure-related hospitalization rates are also much higher in West Oakland, as well as stroke and heart disease mortality rates. Death rates in West Oakland are 1.3 times the rate for Oakland overall and 1.5 times the rate for Alameda County overall. In fact, an African American child born in West Oakland has a life expectancy that is 12.4 years shorter than a white child living in the more affluent Oakland Hills.
7. West Oakland deserves environmental justice now.
- DTSC’s failure to obey the Legislature and act on its own findings have let down the West Oakland community, its residents, students, and the thousands of people who access its services and businesses. As if to punctuate the ongoing harm caused by DTSC’s violation of the law, just last month, a large fire at Schnitzer’s Facility sent dark plumes of toxic smoke into the skies above Oakland and Alameda.
- Included in that West Oakland community are the Oakland Athletics baseball club, who maintain business operations near the Schnitzer facility and are in the process of seeking approvals to build a ballpark for Major League Baseball games and other events in close proximity to the Schnitzer facility.
* * *
As the A’s establish a presence in West Oakland, environmental justice is one of their top priorities. In February 2019, the team announced a groundbreaking partnership with the West Oakland Environmental Indicators Project to support their work and inform the ballpark community benefits agreement process. In addition, the A’s have made binding commitments to the State of California to uphold environmental standards in the development of their new ballpark. This includes building to LEED Gold standards and ensuring net zero greenhouse gas emissions, with 50% of offsets done locally.
The Athletics have filed the lawsuit described above to compel DTSC to perform its duties under state law and to protect the West Oakland community by—as required by statute—rescinding Schnitzer’s outdated and unlawful “f letter” and applying the HWCL to its operations.
1 “The Department of Toxic Substances Control (DTSC) has identified and compared six metal shredding facilities that process automobiles in CA. (DTSC, Evaluation and Analysis of Metal Shredding Facilities and Metal Shredder Wastes (Jan. 2018) (“2018 DTSC Evaluation”), p. 83.)”
2 DTSC has defined “metal shredder wastes” to include all of this material: “A collective reference to all wastes being managed at metal shredding facilities that emanate from the metal shredding process, including metal shredder aggregate, metal shredder residue, and Chemically Treated Metal Shredder Residue (CTMSR).” (2018 DTSC Evaluation, p. 4.)
3 In 2019, Schnitzer indicated that it had taken steps to improve its environmental performance during the last several years, such as enclosing its “mega-shredder” and joint products plant, installing scrubbers at the mega-shredder to reduce particulate matter emissions, improving its stormwater collection system, modifying its ship conveyor belt to reduce discharges to the Bay, electrifying its crane, expanding paved surfaces, and working to clean up large quantities of toxic materials from the Facility that were blown offsite. However, public records indicate that several substantial public health and environmental concerns with Schnitzer’s Oakland Facility remain, including those identified in the complaint.
4 DTSC Senior Staff Counsel Nancy J. Long, memorandum to DTSC Senior Environmental Scientist Peter Wood, Oct. 9, 2001, p. 17.
5 2018 DTSC Evaluation, pp. 61-62; Terraphase Engineering, Revised Groundwater Investigation and Monitoring Well Installation Report, Schnitzer Steel Facility (July 14, 2017) Table 4; Terraphase Engineering, Draft Multi-Media Investigation Report, Schnitzer Steel Facility (2016).
6 E.g. (Community Meeting Regarding Schnitzer Steel, pp. 71, 73; DTSC, Proposed Operational Considerations for Hazardous Waste Operations at Metal Shredding Facilities (Feb. 2019) p. 3.)
7 SF RWQCB California Water Code section 13267 Order to Schnitzer Steel Industries, Inc. (April 16, 2019), p. 2.)
8 D. Sanchez, ABC News, Fire Breaks Out at Steel Plant in Oakland (Apr. 8, 2009); 2018 DTSC Evaluation, p. 61.
9 A. Woodall, East Bay Times, Oakland Firefighters Extinguish Scrap Metal Blaze (Sept. 29, 2011); 2018 DTSC Evaluation, p. 61.
10 L. Anthony, ABC Channel 7 News, West Oakland fire is recycling plant’s fifth in eight years, (June 4, 2018); A. Hassan, NBC Bay Area, Air Quality Concern in Oakland Following Recycling Plant Fire (June 2, 2018).
11 KTVU, Crews responding to blaze at Schnitzer Steel in Oakland, (June 17, 2020).
12 DTSC Senior Staff Counsel Nancy J. Long, memorandum to DTSC Senior Environmental Scientist Peter Wood, Oct. 9, 2001, p. 17.
13 C. Richard, Is California’s Toxic Waste Regulator Letting Oversight Slide?, KQED News (April 24, 2017.)
14 California Integrated Waste Management Board, Alternative Daily Cover White Paper (Oct. 2009) p. 22.
15 Sen. Comm. on Environmental Quality Analysis of SB 1249 (2013–2014 Reg. Sess.) p. 4.
16 Alameda County Pub. Health Dept., East and West Oakland Health Data Existing Cumulative Health Impacts (Sept. 3, 2015), p. 7.
17 Oakland Unified School Strict, School Environment: Environmental Stress Factors 2016.