Exide's nearly $2.7 million cost to close Frisco site is 'grossly insufficient,' city sa

Five years and one bankruptcy later, Exide Technologies is still trying to get out of Frisco.

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Its buildings have all been torn down except the onsite wastewater treatment facility. Its proposed closure plan for the site near downtown has been submitted for review. Its obligatory legal notice seeking public comment on the hundreds of pages of technical documents has been sent.

In addition, its federal civil suit against the city for breach of contract recently received a green light to proceed.

But if city of Frisco officials have any say, the company has a lot more work to do.

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The company's plan lists the cost for total site closure at nearly $2.7 million. That compares with the $30 million to $40 million range noted by the city and the state during bankruptcy proceedings.

"Exide has yet to successfully complete the remediation commitments it made to the citizens of Frisco," city officials said in a statement Friday.

Much of the land on and around the former plant remains contaminated with hazardous waste from decades of recycling used automotive and industrial batteries. The main contaminants are lead, cadmium and arsenic. And if that waste isn't properly contained, city officials say, it will continue to plague this suburb long after Exide is gone.

The Texas Commission on Environmental Quality is still reviewing Exide's permit amendment, which includes the closure plan.

Exide said Friday that it would defer to the agency on its proposal.

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StartFragment"We believe it meets all of the relevant legal requirements to protect the environment and stand ready to consider and address input from the agency on the proposed plan to achieve this outcome," a statement from the company said. Show Full StoryEndFragment

An aerial photograph shows the building foundations that remained at the former Exide Technologies plant as of April 3, 2015, in Frisco. (G.J. McCarthy/Staff photographer)

Recycling plant closes

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Exide ceased operations at its Fifth Street plant on Nov. 30, 2012, as part of a settlement agreement reached that spring with Frisco. At the time, the plant employed 134 people and recycled more than 6 million batteries a year.

The deal called for the company to properly close its on-site landfills and clean up the property. In exchange, the city would buy 180 acres of undeveloped land surrounding Exide's plant for $45 million.

Exide won't get the money until state regulators certify the cleanup is complete. Frisco officials have called it an incentive to get the site properly cleaned up.

But there have been obstacles along the way, including Exide's bankruptcy filing in 2013. The latest complication came in May, when Exide sued the city of Frisco in federal court, alleging violations to that settlement agreement.

During an October hearing, attorneys for the city argued that the settlement was part of Frisco's governmental role. That gives the city immunity from the suit, they claimed.

But Exide's attorney characterized the city's motivation as proprietary. It referred to the agreement as a real estate deal.

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Magistrate's report

On Nov. 27, U.S. Magistrate Judge Kimberly C. Priest Johnson released her report and recommendation. She denied the city's motion to dismiss the suit, agreeing with Exide that the city was acting as a buyer when it signed the deal.

A smokestack was separated for demolition at Exide Technologies plant in Frisco on May 10, 2013.

(Vernon Bryant/Staff Photographer)

A smokestack at Exide Technologies plant is taken down in Frisco on May 10, 2013. (Vernon Bryant/Staff Photographer)

Her report cited former Mayor Maher Maso's statement at the time that the Exide land along the Dallas North Tollway would "have potentially greater value as corporate headquarters and office space."

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She denied Exide's claims for recovery of its attorneys' fees from the city. But her findings allow those claims to proceed against the city's economic development and community development corporations, which are also part of the suit.

"We're hopeful that the city's tactics to stall our lawsuit will continue to be unsuccessful," an Exide spokesman said by email. "We will now move forward with our demand that the city perform its obligations under its contract with Exide and for the recovery of the attorney's fees that we've been forced to incur in order to compel defendants' performance of their obligations."

The suit centered on the city's failure to issue the company a wastewater discharge permit. Without the permit, Exide has to pay to haul the wastewater offsite for disposal.

The Exide Technologies plant as seen in Frisco on Nov. 28, 2012, two days before it ceased operations.

(File photo)

City officials have said that before issuing the permit, they wanted information "to demonstrate that Exide would not deposit more hazardous industrial wastewater into Frisco's treatment plant. Exide has refused to provide the requested information."

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The city of Frisco "respectfully disagrees" with the magistrate's report and is reviewing its options.

Public comments accepted

TCEQ, meanwhile, is still accepting public comment on Exide's closure plan.

The city of Frisco has already weighed in, saying a detailed review would be "a waste of everyone's time" because of its "fatal flaws." The plan won't protect Stewart Creek from being recontaminated in the future, city of Frisco special counsel Kerry Russell wrote in a letter to TCEQ.

He criticized the company's aim to "get out of town" with minimal expense, calling its proposed cost for total site closure "grossly insufficient."

"There is simply no legitimate excuse for Exide's actions given the $45,000,000 the city has put in escrow.... to assure complete remediation," he wrote. "In essence doing it right will cost Exide nothing."

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