Filed Under: Sort of Good News for Boyle Heights

Haven’t had a chance to get that pesky blood test done yet to see if you’ve got lead coursing through your veins courtesy of the Exide battery recycling plant in time to meet the Oct. 31st deadline?

You’re in luck! Of a sort, I guess.

The U.S. Bankruptcy Court in the District of Delaware, where Exide Technologies is undergoing bankruptcy proceedings, ruled earlier today to extend the deadline by 90 days for residents who would like to file personal injury claims against Exide’s Vernon-based battery recycling facility. Claims are now due January 31, 2014.

The ruling was made in response to the request by State Senators Kevin de Leόn and Ricardo Lara that residents be granted an extension of at least 6 months to file injury claims. Ideally, the senators would have liked to have seen personal injury claims exempted from Exide Technologies’ bankruptcy proceedings altogether. As they noted in their letter to the judge earlier this month, this is a specific local health matter tied to this particular plant in the community (not a financial restructuring issue) and residents have neither the health nor legal expertise necessary to move quickly on claims.

Word is still slow in getting out to residents about the potential harm caused by the plant, given the inherent communication challenges in a community where many residents are recent immigrants and of a lower-income status. Moreover, as discussed here, the blood tests that the Department of Public Health is offering to up to a quarter million residents (to be paid for by Exide) only test for recent, not chronic, lead exposure and cannot definitively pinpoint Exide as a source of any lead exposure. Nor are tests being offered for arsenic, despite it being a known carcinogen and one of the emissions for which Exide has been cited.

And, soil testing in the area is still underway, meaning that Exide itself does not yet have complete information about what quantities of which toxins it has managed to blanket the good people of Boyle Heights and surrounding communities with.

It seems unfair, then, to expect residents to file specific damage claims (or lose the right to file altogether) when only partial information about what injuries might have been inflicted upon them and partial testing for those injuries is only just now being made available to them. It seems even more unfair to allow the plant to remain open while testing of both soil and residents gets underway. The argument made in favor of allowing Exide to resume operations in July was that opponents could not prove that it posed “an imminent and substantial” threat to the community. But the extent of that threat can’t truly be known until a substantial (and more substantive) sampling of residents has been completed and area soils have been thoroughly tested for toxins.

So, hooray: residents have an extra 90 days.

But, beware: as of now, those who do not file a claim by the deadline are, per the ruling,

…forever barred, estopped, and enjoined (subject to a court order finding excusable neglect for such failure) from asserting such Vernon Claim against the Debtor [Exide], its property, or estate (or submitting a Proof of Claim with respect thereto), and the Debtor, its property, and its estate shall be forever discharged from any and all indebtedness or liability with respect to such Vernon Claim under a confirmed plan of reorganizing so providing…

In other words, those claiming any injury must still do it by the deadline or forever hold their peace, even if they come down with cancer or some related illness a year or two down the road.

Hooray?