It's 2014. Distant parts of the globe are connected within micro seconds. Some of us are driving electric cars. Our phones are more powerful than all the computers it ever took to put a human being on the Moon, combined.
And we use five gallon buckets from Academy to collect and store industrial hazardous waste.
Or at least the Exide contractors that are in charge of "cleaning-up" Frisco's Stewart Creek do. And they not only use them, they lose them.
On May 8th, workers for Apex-Titan Inc. were collecting battery casing chips and bits of lead slag from fields near the Creek a the intersection of Legacy and Stonebrook and putting them into the bucket. For decades before it closed in 2012, the Exide lead smelter dumped waste into and around the Creek, leaving a still-contaminated trail from the plant site all the way to Lake Lewisiville, approximately five miles away.
After collecting a full load of Exide waste, the contractors placed the bucket in the back of a pick-up truck and drove off – apparently without securing the tailgate first. Despite two staff from the Texas Commission on Environmental Quality on the scene to "document field activities" and the City of Frisco's own contractor present – nine people in all – no one noticed when or how the bucket fell off the truck on he way back to the plant site.
When they discovered the loss, the workers retraced their route. They searched the parking lot of a city park located across the street from a school – one of two in the immediate vicinity. No bucket. More than two weeks later the bucket of hazardous waste is still missing. But we're only now finding out about it.
This would be funny if it weren't for the possibility of this bucket ending up with kids or in a garden or as a water container. As a memo from the City of Frisco puts it:
"We believe it is a reasonable assumption that the bucket was found in the street by a person who picked it up for their own use; without realizing the contents might be hazardous waste."
With that in mind, did the City of Frisco inform the Frisco School District? Did any warnings get issued to students and parents at the two near-by schools? Not as far as we know. Did the City put out an All Points Bulletin for the bucket? No it did not. Embarrassment often keeps officials from doing the right thing about public health. So there's hazardous lead waste out there in a Frisco neighborhood that could be diminishing kids' IQs even as you're reading this, even as officials are too embarrassed to ring the alarm.
Now maybe you're thinking this whole Frisco lead cleanup fiasco now has a new mascot. And you' be right. This bucket pretty much sums up the FUBAR'd state of things. A bankrupt company entrusted to clean-up its own mess. A city council seemingly intent on making sure it ends up with a Superfund Site in the middle of the "second-fastest growing city in America." A state and federal government asleep at the wheel. It's all nicely summed up by that lost five gallon Academy bucket. That's the image. Here's the caption, however, thanks to Jack Fink at Channel 11:
"Mack Borchardt of the city of Frisco said he’s surprised, since they were assured going into this process by Exide that there wouldn’t be any problems with the system in place. “Obviously, that didn’t turn out to be the case,” said Borchardt."
City officials were shocked! Shocked they tell you, that Exide screwed up.
Frisco City officials handed the job over to Exide and expected the same company that ran an outlaw smelter operation to provide an excellent clean-up of their own mess. They had faith! The City is handing over the toxicology and assessment to the state and EPA. They have faith! They're handing the decision about what to do with the waste in Frisco to their lawyers, who are recommending the city host a toxic waste landfill by Stewart Creek in front of the new Grand Park. They have faith! What they don't have is any faith in their own citizenry. After 2 years there's still no transparent, civic dialog on the fate of the thousands of tons of lead waste that remains in the heart of the central business district.
There's no question that given a choice, most Frisco residents would vote to haul the waste completely out of town to a hazardous waste disposal site and develop the property as any other prime piece of real estate. And yet the Frisco City Council is still on course to approve a permanent toxic landfill of its own…… that would be monitored by the same state agency that didn't see that five gallon bucket falling out of the contractor's truck.
What's needed now more than anything else is homegrown vision and leadership. The city needs to take its fate into its own hands instead of entrusting others to look out for its self-interests. There's millions of dollars in state-collected battery fees that are supposed to be going to communities impacted by lead smelting. Frisco certainly qualifies. Instead of arguing with its own residents over a permanent landfill, the Council should be proposing legislation for the next session in Austin to finance a full clean-up.
This incident is a five-gallon splash in the face. Following instead of leading can only result in many future "problems with the system."
After a brief honeymoon, is it Splitsville for the 2012 clean-up agreement between Exide and the City of Frisco? And if their shotgun marriage is breaking apart, what are the implications for Frisco residents and the surrounding area, including Lake Lewisville, a source of drinking water for Dallas that sits directly downstream of what now may become a Superfund site?
On February 25th, Channel 11 broke the story that, after almost two years of assuming the settlement would guide clean-up efforts, the City of Frisco doesn't "know if the company will stick with the deal or walk away from it until the company files a reorganization plan by the end of May."
That's a big deal. Having declared bankruptcy last year, Exide is now dealing with thousands of creditors with competing claims. Frisco is only one of them, and only one of a half dozen closed or operating lead smelter sites that are also suffering from contamination. If the City's deal with the company can't survive the bankruptcy process, all the current planning for clean-up and redevelopment of the outer ring of Exide will be derailed. And that's important because the settlement has been the Frisco City Council's justification for not opening up the fate of the property to more public discussion, like whether residents would prefer building a toxic landfill and keeping Exide's waste in town, or cleaning up the entire sire and hauling off all contamination to allow for normal development.
It's also important because without the city's deal in place, and Exide in bankruptcy court, there is no Plan B to prevent the entire site from becoming an EPA federal Superfund site, exactly the same way the still languishing RSR lead smelter site in West Dallas ended up as as Superfund site in the early 1990's after that company went belly up. It's a designation that Frisco officials are known to dread.
There have been signs of trouble with the agreement for months now. According to documents filed by the City of Frisco in federal bankruptcy court last December, Exide is in default on its agreement with the City, and risks further claims of breaches, as well as “fraud in the negotiation, execution, and performance” of the settlement.
The historic 2012 settlement arranged for a swap of 179 acres of Exide-owned land in Frisco in return for $45 million from the Frisco Economic Development Corporation and the Frisco Community Development Corporation. Passed unanimously by the Frisco City Council with only a week’s public notice and no public hearings, the agreement closed the smelter earlier than expected but is based on an elaborate series of conditions and clean-up standards.
It’s at least one of those conditions, the required demolition of “all above-ground structures” in a section of the smelter site the city is purchasing called the “Bowtie Parcel,” which appears to be the center of the default claim by Frisco. Specifically, it’s the continued presence of a specialized building involved in the treatment of the smelter’s wastewater known as “The Crystallizer,” that prompted the legal tension.
Last August, Mack Borchardt, the City’s Special Assistant in charge of monitoring the Exide clean-up, wrote a letter to the company disputing the Agreement’s demolition provision had been fulfilled as long as the Crystallizer remained standing:
“Frisco disagrees with your assessment that the demolition activities on the Bowtie Property have been completed and demand that you retract Exide’s notice immediately. For example, the Master Settlement Agreement requires (A)ll above ground facilities on the Bowtie Parcel…” to be removed from the Bowtie Parcel as part of Demolition Activities.” The above ground facilities include the Crystallizer which has not been removed and it has not been approved in writing by Frisco to remain standing. If you fail to immediately withdraw Exide’s notice, Frisco reserves the right to pursue all available remedies.”
By December 9th, when a Bankruptcy Court deadline required the City to file its claims against Exide, Frisco City Hall was adamant that “Exide has not demolished and removed all above ground facilities…. As a result, Exide is in default on its performance obligations under the Master Settlement Agreement.” But along with that outstanding claim, City lawyers also added a new list of possible Exide violations, both civil and criminal:
“Finally, Frisco may also have additional contract and/or tort based claims against Exide, including,without limitation, breaches of the Master Settlement Agreement, nuisance, quantum meruit, money had and received, breach of fiduciary duty, negligence and gross negligence, conspiracy, and claims based on fraud and fraud in the inducement and/or negligent misrepresentations relating to the negotiation, execution, and performance of the Master Settlement Agreement.”
If the deal between Frisco and Exide comes apart, there’s nothing to guarantee that any of the smelter property gets cleaned-up or redeveloped the way the City’s been promising.
Although the entire Exide smelter site and surrounding property is full of toxic hot spots, the facility at the center of the latest legal dispute, “the Crystallizer,” has been a source of particular regulatory concern. As part of the final processing of contaminated waste water at the smelter, it condensed filtered liquids into sodium sulfate solids.
In a December 2009 report, EPA inspectors at Exide observed, “Uncontrolled salt laden runoff from the Crystallizer plant was observed as salt deposition on the concrete aprons around this process area at the plant. The ‘frac’ tank used for holding purge water from the crystallizer plant was leaking at the time of viewing.” This crystallized substance tested high for toxic metals content and testing of the contents of the frac tank showed toxic levels of selenium and cadmium.
In September 2010 inspectors again found “uncontrolled salt laden runoff from the Crystallizer plant and also that the frac tank was leaking.”
In July of last year the Texas Commission on Environmental Quality reported that “the levels of sulfate in soils surrounding the Crystallizer unit are much higher than in other areas” and “drums of PCBs were noted in the Crystallizer area.” PCBs, or Polychlorinated biphenyls, were once widely used as cooling fluids, but have been banned in the US since 1979 because of their persistent toxicity.
Because of its use of chlorine in treatment of waste, the Crystallizer could also be one of the major reasons Exide became one of Texas’ largest Dioxin polluters. In 2009, the Frisco facility was ranked as the 9th largest source for Dioxin pollution in Texas, surpassing all other North Texas facilities, including the Midlothian cement plants. Dioxin is one of the most potent toxins ever tested by EPA, and is measured in grams, not pounds.
Despite this history, no testing for Dioxin contamination has ever taken place at the former Exide smelter site by any regulatory agency, and that’s a point of contention for critics of the smelter clean-up.
Exide’s choice to risk an agreement that could give it $45 million in much-needed cash over the demolition of one remaining structure is curious. And it’s one that poses a challenge to the entire future the City of Frisco has laid out for the smelter site. If the City doesn’t buy the 179 acres of Exide property surrounding the smelter, it’s fate will be tied to the company’s and it might either become part of a future Superfund site or languish in a kind of real estate purgatory for a very long time.
That would more than double the size of the economic black hole the core plant site already poses for central Frisco. Frisco City Hall has come out in favor of locating a permanent toxic dump for Exide waste on that core property, but residents who are members of the local group Frisco Unleaded says there’s no reason to believe an Exide landfill would be run any better than an Exide smelter.
There's already been documentation of extensive lead contamination up and down Stewart Creek from the Exide property, through Grand Park and all the way to Lake Lewisville. Although the City of Dallas Water Utilities Department says that's not a threat to the city's drinking water because of its treatment facilities, the presence of a large landfill and/or Superfund site poses a danger of catastrophic releases that an operating smelter doesn't. And of course, recreational users of the Lake are being routinely exposed.
On February 26th, the Dallas Morning News identified competing plans for the clean-up of Stewart Creek as another source of tension between Frisco and Exide.
The only good news from this great unraveling is that it provides a chance to restart the public debate about what to do with the Exide site – a debate that was short-circuited by the council's settlement agreement that made everything seem like a done deal, even though its obvious now there were a lot of unanswered questions. There continues to be a need for a bottom-up, community wide discussion of what Frisco residents want to see happen with the site. Events in May might make that a more pressing priority.
Homeowners within a half mile of the former Exide lead smelter site and other lead-contaminated properties in Frisco are seeing a 15% drop in their property value from the stigma associated with the toxins, according to a new economic analysis done by an independent North Texas economist hired by local environmental groups.
“There are double-digit negative impacts on the assessed values of all 90 homes,” concluded Dr. Bill Luker, Director of Denton-based Terranovum Solutions, who was asked by Downwinders at Risk and Frisco Unleaded to examine the economic impact of the Exide environmental controversy on surrounding home values.
“There’s an average negative discount of $24,613,” stated Dr. Luker. “In other words, if it were not in close proximity to two sources of contamination, i.e., the Exide site and Stewart Creek, the average home would be assessed at about $213k, $24k more than its current appraisal of $189.3k.”
Dr. Luker said that although the study was relatively small in focus, he was confident of the results and said it pointed to the need by the City of Frisco to do its own more comprehensive economic analysis before it decides what environmental clean-up options to follow.
“The costs we’ve reported, while substantial for many homeowners, will be unquestionably dwarfed by the magnitude of those from the discounting of residential and commercial property values, and the negative effect on local personal income, employment, average and median household income, and ultimately, lost tax revenue for local government….”
Downwinders Director Jim Schermbeck called this economic impact a hidden “toxic landfill tax” that was already being assessed on the community now, in contrast to what some Frisco City Council representatives have said would be a necessary property tax increase to pay for a complete clean-up of the Exide property.
“City Hall may not want to talk about it, but there’s a heavy tax already being paid by Frisco property owners for being located in proximity to Exide. That tax will only increase and spread if a temporary clean-up of Exide is turned into a permanent landfill site for its toxic wastes.”
Monday at 5 pm was the deadline for government entities to put in their claims against Exide in the east coast bankruptcy court hearing the company’s case. Frisco City Hall has insisted that leaving a 40-acre toxic waste landfill behind on the Exide property will allow for normal economic development and a 4cheaper clean-up bill. The City has only asked the court for approximately $20 million for that option, versus the $135 million for a full clean-up.
But the city has yet to release an itemized accounting of their consultant’s cheaper estimate and this new report casts doubt that normal economic development can ever take place in the presence of so much toxic contamination.
According to Luker, “Re-development of the Exide site and surrounding property cannot occur if environmental remediation is viewed by the market as neither thorough nor complete. The net result of years or even decades of contamination will not only continue to depress values for both residential and commercial property, but will also hold down the growth of local private employment and levels of personal and household income. All of these factors will contribute to the indefinite perpetuation of economic underdevelopment in the center of Frisco.”
Schermbeck agreed. “This report is just the tip of the iceberg of likely economic problems caused by the City’s choice to allow a hazardous landfill to dump wastes improperly stored in Frisco to begin with . The total costs of keeping toxic waste in the middle of town could easily run into the billions in terms of lost taxes and lost economic opportunities. It’s in Frisco’s best interest to tally those costs up before they decide that it’s cheaper in the short run just to bury it in place downtown.”
He pointed out that it was Frisco Unleaded members who had already approached state legislators about redirecting state battery fees from general fund accounts to the Exide clean-up, something that Frisco City Hall had not yet committed to, despite tapping those funds during the last legislative session. “With state help you could totally remove the source of this economic stigma. You wouldn’t have to settle for a hazardous wast landfill in the middle of town. But the City won’t commit to this strategy.”
Schermbeck and Frisco Unleaded members have been criticizing the Frisco City Council for accepting the landfill option too quickly in light of so many unknowns of cost and contamination threat. They’ve asked for the city to release it’s own detailed consultant’s report on the different clean-up options, but so far City Hall has refused.
“There is a rush to judgment taking place within Frisco City Hall about the Exide site that’s totally at odds with the facts on the ground,” said Schermbeck. “This new study should be a big red flag to the City Council about its current course. The long term costs to the city ‘s economic growth may be larger than the short-term savings it thinks it will accrue by taking what looks like a cheaper option.”
You can download Dr. Luker's summary here.
Methodology: Dr. Luker’s economic analysis is a summary of impacts on property values of a sample of 90 homes in close proximity (between 3000 and 3600 feet) to the former Exide Corporation’s lead smelting operations in what is now downtown Frisco, TX. It uses reliable estimates drawn from the very broad and deep empirical literature on the statistically and commercially significant negative economic impacts of closely similar brownfield sites on residential property values in their immediate locale. For the year 2011, findings from that literature were used to calculate the negative impact on the assessed property values of 90 homes, a 3 percent non-random, spatially bounded sample from a population of 2782 homes identified within .5 to 1.5 miles of Exide-Frisco.
Results from on-site testing at Saturdays’ Community Lead Clean-Up in Frisco shows volunteers collected battery chips from the city’s Grand Park that had up to 5000 ppm of lead on them, making them “extremely hazardous” by government standards.
Saturday’s event marked the first time citizens have done their own testing of the battery chips and slag waste that’s been flowing off of the Exide lead smelter site into Stewart Creek for years. The smelter site sits just upstream of the creek’s mile-long passage through the city’s 300-acre Grand Park.
Using a portable RXF analyzer at the Clean-Up’s Saturday headquarters on Frisco Square, Dallas-area technician Dean Lovvorn confirmed that at least two of the dozens of chips brought in by volunteers contained 3000-5000 parts per million of lead. The clean-up standard for lead in soil is 250 ppm.
Volunteers reported that there were battery chips on every gravel bar they passed on their half-mile trek up Stewart Creek from the southern boundary of Grand Park bordering Stonebrook Parkway, and they often found chips planted in the creek bed itself. Ironically, city plans call for this particular area of the creek to become the "natural creek corridor" when the park is fully developed.
Although their effort lasted less than a day, Frisco Unleaded volunteers have already removed more contamination from Stewart Creek and Grand Park than the city, state or federal government had in two years of investigation. The waste is being isolated from the environment in the sample bags it was collected in and will be turned over to the authorities when an off-site disposal option is established.
Frisco Unleaded members are asking the city to request enough money from Exide’s bankruptcy court to completely clean-up the smelter site and all of Stewart Creek. In contrast, the city is only putting in a claim for enough money to pay for burying the waste on-site in Frisco, and doesn’t even attempt to pay for the clean-up of the Creek.
Let's be clear. This is a city park with a contaminated creek flowing right down the middle of it. There’s no fencing. There are no warning signs about the presence of toxic levels of lead in and near the creek. There’s nobody but citizens actually removing contamination from the creek. And yet Frisco City hall will not ask that Exide pay to clean up its waste. Truly mystifying.
On Monday the Washington Post published a comprehensive look at the troubled Fukushima nuclear power plant site two-and-a-half years after meltdown, and concludes that the clean-up "is turning into another kind of disaster." The same could be said of the Exide lead smelter clean-up in Frisco, and indeed the stories parallel one another in eerie ways.
One of the most difficult problems at Fukushima has been what to do with so much groundwater flowing through the site. It's already retaining enough radioactive water to fill Yankee Stadium, but almost 400 tons a day still flows into the Pacific. As it turns out, the plant site sits on top of an old riverbed.
One of the most difficult problems at the Exide site is the amount of groundwater running underneath it, flowing into Stewart Creek and on to Lake Lewisville, a source of drinking water for Dallas. As it turns out, some of the most contaminated parts of the Exide facility were built on top of an old branch of Stewart Creek and the facility almost entirely sits in the creek's flood plain. So much groundwater has been found under Exide that the state had to admit that the entire site belonged in a different clean-up category that's 100 times stricter than what it had initially proposed because we could end up drinking that water.
In Japan, Tokyo Electric, the company responsible for the accident three years ago is now responsible for the site's clean-up. It's not going well.
In Frisco, Exide Technologies, the company responsible for causing widespread lead contamination is also in charge of the clean-up of the site. That's not going well in Frisco either.
Tokyo Electric is on the brink of bankruptcy. Exide is already there.
Tokyo Electric keeps under-estimating the scope of the required clean-up, it "doesn't have enough of that questioning attitude" according to one U.S. nuclear official, making the same mistakes that lead to the meltdown. Likewise, Exide keeps underestimating the extent of the contamination at its Frisco site and how much effort it will take to clean it up. It's clean-up plans have been rejected by the state and EPA.
Failure by Tokyo Electric to contain the groundwater problem at Fukushima has lead the government to propose a $500 million "ice wall" that would hold back tons of radioactive water contaminating from the ocean. Failure of Exide to adequately isolate its toxic lead waste from the groundwater running underneath it has prompted a consultant for the City of Frisco to propose building a $23 million, mile-long "slurry wall" to surround a permanent toxic waste landfill on the Exide site, designed to hold back waste from contaminating Stewart Creek and Grand Park.
Tokyo Electric had a plan to "decontaminate" the groundwater on site, only it's never worked, leaving tons and tons of highly radioactive water in storage at the plant. Exide had a plan to "decontaminate" its illegally-stored toxic waste on site, but can't seem to find a way to make it work, leaving thousands of tons of highly toxic lead waste stored at the smelter site.
Tokyo Electric has lost the trust of government officials and the public at large, but is still being allowed to direct the clean-up of its own site. Likewise, even the City of Frisco is skeptical of Exide these days, but the company is still setting the pace for its own clean-up.
But there is one important exception to these parallels. Frisco still has time to change its fate. By December 9th, the Frisco City Council must submit a claim to the judge hearing the Exide bankruptcy case. It can submit a claim for the $23 million option that leaves a toxic landfill in Frisco forever, or it can submit a claim for $135 million, the amount its consultant says is needed to dig-up Exide contamination and haul it away so the land can be redeveloped.
Why would the Council choose any other option other than the most comprehensive one? Great question that no one at City Hall has been able to answer. The submission of the claim to the judge doesn't obligate the city to pay for the clean-up. It's a statement of its goals for the clean-up.
Nobody expects the City to get everything it's asking for, but in a proceeding where many other creditors have lined up to carve up Exide's assets, it needs to protect its self-interests by asking for the maximum credible amount. That's the $135 million figure, backed-up by a report from a city consultant that describes the extensive contamination caused by Exide and what it will take to remove it.
If you haven't already, please send an e-mail to the Frisco City Council requesting that they submit the $135 million claim by the court's deadline of December 9th. To approve the toxic landfill option is to consign Frisco to getting fully "Fukushimaed."
For over a year now, Downwinders and Frisco Unleaded members have been urging the City Council and regulators to treat Exide's on-site "non-hazardous waste" landfill as a hazardous waste dump. Our characterization was based on the evidence already in the files, combined with Exide's own track record. But a new round of discoveries validates our conclusion.
On September 28th, the Texas Commission on Environmental Quality issued 10 violations concerning Exide's disposal and treatment of hazardous waste.
Those violations include samples taken from the closed parts of the "non-hazardous waste" landfill that turn out to be extremely hazardous. The particular cells sampled contain waste from operations as far back as 1998. That means we're looking at thousands of tons of illegally-disposed hazardous waste where there wasn't supposed to be any at all.
Exide has been arguing that any discrepancies between the toxic contents of their landfill and its "non-hazardous waste" designation was a recent problem because of a bad treatment recipe. Turns out, not so much.
In fact, after taking samples from the still-open parts of the landfill back in Spring, the state found they too violated toxicity standards. Reportedly, the TCEQ engineers have been trying to recreate Exide's "treatment process" without any success. Looking back over all the (post-closure) test results, the truth is that that "treatment process" probably never worked in the first place.
The September 28th violations also include open piles of lead slag waste on the edge of the landfill itself and stacks of 2-ton "superbags" of lead waste slag lying around various parts of the smelter site – all testing at hazardous levels for lead and other toxics, and all completely unauthorized as hazardous waste sites.
Among the most mysterious discoveries is that Exide sent over 3,300 tons of this same lead slag waste to be buried at the huge landfill in Lewisville at the corner of 121 and I-35 in May of 2012.
Exide labeled the waste "non-hazardous" as it went through the landfill's gate, but that label wasn't correct. Exide didn't adequately test the waste for cadmium, despite knowing the waste could easily test positive for the toxin. There is now going to be a whole chapter of the Exide clean-up taking place in Lewisville.
Now that it's official that Frisco has a hazardous waste dump, the City Council must decide by December 9th if it wants to keep that dump permanently, or dig up and haul off its toxic contents. That's the day the city must put in its monetary claim to the judge overseeing the Exide bankruptcy case.
This summer the city hired a consultant that gave it two options for dealing with the Exide site in case the company could not pay for the clean-up, which now appears likely.
The city could ask for $25 million to be set-aside for a 40-acre permanent toxic waste dump surrounded by a mile long "slurry wall" to keep the content from leaking out into Stewart Creek and Grand Park. Tha's the "Kia" option.
Or it could ask for $135 million to be set aside for a clean-up that would dig up all the waste, haul it off to a licensed hazardous waste landfill, and leave the property fit for commercial development and green space. That's the "Cadillac" option.
Even though it's probable that Exide won't have the money itself to finsih the clean-up, it's important for the Council to publicly take a stand for the complete "Cadillac" clean-up of Exide. A landfill would pose a permanent risk to both Stewart Creek abd Grand Park. Financing the plan without using Exide money will be a challenge, but then so was buying the company out and closing it down, and putting together the package that recently brought the Cowboys training facility to Frisco.
You can click here at our Citizen Action of the Week page to send a read-to-go e-mail to the Frisco City Council requesting they choose the comprehensive "Cadillac" option, You can also add your own comments too.
Besides finding massive violations in and around its Frisco landfill, the Texas Commission on Environmental Quality and EPA have also recently rejected Exide's proposed clean-up of the smelter property.
Among the largest issues was disagreement over the classification of groundwater flowing underneath the Exide site, which straddles two forks of Stewart Creek and sits in the steam's natural valley.
Both the state and EPA are insisting that the flow of Exide groundwater is so high that the entire property should be held to stricter clean-up standards – 100 times better than what Exide was proposing. This is also a standard that Frisco Uneaded and Downwinders has been pushing for.
Other issues in the rejection include the demand by the agencies that the company also address contamination in Stewart Creek, the appearance of mysterious barrels of toxic and long-ago banned PCB's, and more investigation of what kind of fill the entire complex was built on (hint: it might be the same stuff that's also going into the "non-hazarous waste" landfill).
In all there are 34 separate items that the state has given Exide to change, report on, follow-up, or sample. The TCEQ's rejection letter can be accessed and downloaded through the City of Frisco website here.
This is all good news. Frisco Unleaded has been arguing that the entire Exide site should be cleaned-up to levels that would allow residential and green space use.
On the other hand, it might all be academic because of the fact that Exide is in bankruptcy court. We'd have a standard but no money to get the job done.
That's why the decision the council makes on December 9th is so important. It must decide to ask the bankruptcy court for the amount to cover either a permanent toxic waste landfill in downtown Frisco forever, or a clean-up that will leave the site available for prime real estate development. Please send the City Council a message that you don't want them to be cheapskates with public health.
(Frisco) — Representatives of local groups that were instrumental in shutting down the ill-fated Exide lead smelter in Frisco say the company is now using the wrong environmental standard to direct the clean-up of the facility and surrounding property.
Their primary source is testimony from an Austin engineer hired by the City of Frisco that says the smelter decontamination should be governed by toxic contamination standards that are 100 times stricter than the ones currently being used.
"Based on evidence already in the record and cited by the City's new expert, its clear that Exide is trying to get away with a cheaper, less protective clean-up than the Agency's own regulations demand," said Colette McCadden, the Chair of Frisco Unleaded, the citizens group that campaigned for almost a year to successfully close the last secondary lead smelter in Texas.
She referred to testimony submitted by Austin-based engineer William Wheatley in July on behalf of the City of Frisco for Exide's bankruptcy proceedings. In it, the former Director of the Waste Permits Division for the Texas Commission on Environmental Quality (TCEQ), concludes that the company is erroneously using a less-protective classification for categorizing the groundwater running underneath the smelter site.
That classification is the basis of all decontamination and closure efforts at Exide, including how to deal with a still-active landfill full of lead waste.
In his testimony, Wheatley explains what this mistake means in practical terms when it comes to cleaning up lead contamination at the site:
"Exide is operating under the assumption that a Class 3 groundwater designation will be approved and, as a result, that remedial action levels for soils at the site will be less stringent (in most cases, soil action levels based on Class3 groundwater would be 100 times the levels that would be required for Class 2 groundwater).
It is my opinion that existing information clearly demonstrates the groundwater at the site is Class 2 and significantly more stringent action levels are therefore appropriate and necessary."
Jim Schermbeck, Director of the clean air group Downwinders At Risk accused Exide of purposely trying to get by with a cheaper clean-up in Frisco because it's already bankrupt. He applauded the City for hiring an independent expert who could provide oversight of the company's claims, and double-check the state's assertions as well.
"The city is finally providing a much needed second opinion on the way Exide is conducting its clean-up of the smelter site. We hope it listens to its own expert and demands a clean-up that's 100 times better than it has been to date."
At issue is whether there's sufficient groundwater flow underneath the smelter site to categorize it as a Class 2 or Class 3 groundwater resource under state rules.
If a well produces more than 150 gallons of water a day, then it's a Class 2 resource. Below that number and it's a Class 3.
The difference is not only a soil clean-up standard that's 100 times stricter, it also means more work for Exide in cleaning up existing groundwater contamination that's not acceptable when the higher standard is applied.
Wheatley doesn't mince words in calling out the company's mistake, stating,
"(Exide's engineering consultants) concluded that groundwater at the site is not impacted. However, as discussed below, that conclusion is based in part on the characterization of the uppermost groundwater bearing unit as a "Class 3" groundwater resourceIt is my opinion that a "Class 3"designation is unsubstantiated and technically incorrect based on currently available information which clearly indicates that the groundwater is a 'Class 2' resource."
Frisco Unleaded and Downwinders both used Wheatley's report for the City to request that the state reject Exide's planned remediation of its active landfill in official comments that were submitted last Friday because, they said, that plan is based on the wrong groundwater classification.
After a swift campaign that closed the smelter last year, it's been a more difficult task to deal with decades of toxic contamination. In June, Downwinders and Frisco Unleaded released City of Frisco reports that showed widespread lead-contaminated waste in Stewart Creek, including parts of the City's planned "Grand Park."
Citizens say it's unacceptable to leave tons of lead waste behind in Frisco, as Exide wants to do, because it would mean the creation of an economic and public health "dead zone" in the middle of town.
"We know we have to get this right the first time because we night not get a second chance, "said McCadden, who's lived in Frisco since the mid-1990's. "We have to demand the most protective clean-up we can get under the law."
We haven't said anything about it until now because the expectations have become so very low for these things, but the bankrupt Exide Technologies Corporation is holding another public information meeting on its clean-up of its former smelter site in Frisco at The Depot behind Babe's in downtown, starting at 6:30 pm tonight.
That will be about 1500 miles from where all the action is really taking place concerning the clean-up – in Connecticut state bankruptcy court. Filings have been flying back and forth between the company, the City of Frisco, and the EPA about how much money should be set aside for cleaning-up acres of lead, arsenic and cadmium waste sitting in the middle of town along Stewart Creek.
There's a September 6th deadline for comments on the company's plan to rehabilitate its still-active hazardous waste dump into a non-hazardous waste dump and leaving it in Frisco for the next umpteen years. This will be the first time Frisco has had an opportunity to respond to the company's plans to leave landfills behind since Exide went belly up. It's also the first time for the City to comment since its own consultant laid out the "Kia vs Caddy" approach to the site's clean-up – one low-ball estimate for leaving everything in the ground and building a 40 acre waste site with a mile-long surry wall, and a much higher bill for complete removal of all wastes so the land can be developed.
Despite the recruitment of the Cowboys training facility to town, Frisco has not yet declared itself in favor of he Caddy approach, although its hard to imagine how the Chamber of Commerce folks are going to sell the advantages of moving to a town with the most recent Superfund site in Texas.
Tonights "meeting" is actually just another open house where Exide employees and consultants will be forced to staff a ring of tables, and be prepared to answer evasively answer questions about any topic concerning the clean-up. Since no new information is offered, citizens have to guess at the right questions to ask, assuming any show up. Tonight is also the Frisco School District's open house, so most parents will be checking out their kids' teachers rather than showing up to another useless Exide meeting. All in all another massive PR fail by a company that's rapidly specializing in such things
"Environmentalists and Frisco residents have long wondered whether contamination existed beyond the borders of Exide Technologies’ shuttered Frisco plant.
Now they know, thanks to recent open records requests from Frisco Unleaded and Downwinders at Risk to state environmental officials. Waste materials from battery recycling processes exist in the 340-acre Grand Park area, the proposed site of an elaborate regional park.
If you live in Frisco, you should be perturbed that you didn’t hear this sobering news sooner — or hear it from the city, which has known of these findings for a couple of months. Instead, the information comes from environmental groups that stumbled across the test results in the Texas Commission on Environmental Quality’s response to their records request.
Given the lingering controversy over the extent and pace of the cleanup of Exide’s plant site, city officials owed it to residents to disclose everything they knew as soon as they learned it. Governmental transparency and communication are important, especially when health, safety, property values and the credibility of cleanup efforts are at stake. This is important because the new reports detail problems on land outside of Exide’s property that need to be cleaned up.
City officials contend they’ve been open with residents and last Monday filed an application to include the Grand Park area in a state voluntary cleanup program.
The city has done itself no favors by sitting on information. Frustrated with the pace of the cleanup, environmental groups want the Environmental Protection Agency to issue an imminent and substantial endangerment order and take over cleanup from TCEQ, which they allege is moving too slowly. While that is unlikely, the complaint underscores the desire of residents and environmental groups to make sure the cleanup is done properly.
What Frisco residents want is what any resident of any community wants — assurances that land that could house levels of lead, cadmium and arsenic in excess of state benchmarks will be cleaned up. The best way to do that is for Frisco to make sure residents know what’s going on — even steps the city might think are minor and procedural. And if subsequent testing definitively links the broader contamination to Exide, then Frisco has to make sure the battery company, now in bankruptcy proceedings, will pay for the cleanup.
More than a year has passed since Exide and Frisco struck a landmark deal to shutter the battery recycler, a major step toward Frisco reclaiming industrial land for a cleaner environment and recreational purposes. Now Frisco must make sure that the area is free of potentially deadly contaminants and that residents are fully aware of the extent of contamination.
Frisco has an opportunity to use land for a grand community vision, but it has to deal openly and transparently with residents and make sure those responsible for the contamination clean up the mess they’ve made."
There have been times and places when Frisco's official municipal insularity has undoubtedly worked in its favor. It's focused, "go-our-own-way" style is probably a big reason why the city has carved such a high-profile niche among DFW suburbs.
But the last two years of wrestling with the Exide lead smelter has revealed all of the vices of such an approach when it comes to environmental hazards and public health.
Given the rapidity of events, it's easy to forget that only two years ago, the same city officials now in charge of pursuing a clean-up of the Exide site were lauding the smelter as a valuable member of the local business establishment and trying to find ways to keep it operating. Having a lead smelter spewing tons of toxic air pollution near the High School in the middle of town was OK with these folks. They'd overlooked decades of state and federal environmental violations by the smelter. They overlooked the destruction of a city water treatment plant by the smelter. Hey, Exide employed 100 people. And "what could the city do anyway?"
Only the intervention of citizens, campaigning with the well-known idea of the city being able amortize the facility out of existence, forced the city to finally confront the incongruity of the smelter's operation with its 2013 Frisco surroundings.
Frisco parents didn't sign their mortgages in blood to gain entry in a prized school district only to have their kids IQ suffer because of an obsolete lead smelter. To their credit city officials sensed that the curtain had been pulled back too far on their pretense to go on. They did a 180 and got the smelter out of town. But they did it the Frisco Way: the city manager and city attorney wrote a secret, complicated, $45 buy-out agreement with Exide that was passed by the Council without any public hearing and no debate.
After the unanimous vote, when someone asked Frisco Councilman John Keating if he'd support a community oversight committee to make sure we got the best clean-up of he smelter site, his response was "We're it." And just like that, it was supposed to all go away. Containment.
But lead smelters are messy places, especially outlaw operations like the one Frisco hosted for so long. Especially when they operate decades before most of the regulations governing them now were implemented or enforced. They're hard to contain unless you know what you're doing. And nobody could tell Frisco it didn't know what it was doing. It was Frisco!
The city didn't feel any obligation to let its residents know how it would handle the clean-up, how extensive the clean-up would be, what kind of technologies or strategies might be used. Perhaps most importantly of all though, city officials never asked themselves or their constituents the most basic of planning questions, "What's going to happen to the Exide site?"
The City's de facto answer seems to be: a toxic waste dump. It appears to be fine with letting Exide hold on to the core of the smelter property, where all the worst contamination is, where tons and tons of lead waste are buried or piled or dumped, all uphill from Stewart Creek that still runs right through the site. So amidst all the million-dollar homes and exclusive shopping malls there will be this large toxic no-man's land with scary warning signs and the need for continued monitoring for decades. City officials meet any skepticism of this plan with a shrug of their shoulders. "What can the City do?" For a town with a reputation for being "can-do." Frisco City Hall has lacked the imagination to see anything but the need for an extensive cover-up – literally and figuratively – when it comes to the Exide situation.
Instead of dealing straight-on with the challenge, officials decided to play a game of misdirection by emphasizing what a great new regional park it was building…..directly downstream of the still-contaminated smelter site. But please, mention of any current or potential contamination problems at these presentations by any city official is strictly prohibited. It's just so uncouth to keep bringing that up.
If you lived outside the bubble of Frisco City Hall, you could see the absurdity in this strategy. Putting a park downstream of a dirty Exide site is like putting puppies on the rail at the end of a roller coaster ride. You're just waiting for disaster to strike.
And it turns out those city officials knew it too. They just didn't want to tell their residents.
Six months before they signed that complicated $45 million secret deal, officials were aware there was extensive contamination of the Grand Park area by Exide. Maybe that's one reason they wanted to keep the agreement secret.
We've been told by more than one engineer that the City had a responsibility to turn over that information to the EPA and state when it got the results in November 2011. Instead it just sat on it. How many Frisco children have been needlessly exposed to hazardous material in and around Stewart Creek in the intervening 18 months? How could any Frisco official in good conscience keep this kind of thing from the public?
It took another year and a half for the City to follow-up with its "visual survey" of the entire 5-mile course of Stewart Creek, from the smelter to Lake Lewisville. Then, instead of taking equipment with them on that trip up the Creek that would be able to identify lead waste and give you some idea about its toxicity, including stuff you couldn't necessarily see at first glance, it was merely a sightseeing affair where "suspected" slag and chips that were out in the open were inventoried.
However, even that expedition was enough to confirm that the Creek had been acting as a sluice for Exide waste into the Lake. The City had those results three months ago.
All of this information was known in early June when Frisco Unleaded and Downwinders released a small report on the threat to Frisco's Grand Park from the smelter site. We did it at one of those Council presentations about the park where all of its virtues are discussed, but none of its environmental problems.
Not one city official spoke to the contamination problems facing the park. And it was clear that most were furious at citizens for once again raining on their Grand Park parade. It's as if Frisco city officials really believe that if you just don't mention the Exide toxic waste problem out loud, it can't hurt you.
It's one thing to apply that kind of magical thinking in denying Open Records Act requests and fluffing-up park presentations, but when it infects your ability to protect public health, it becomes a more serious matter.
Not only has the city hid information about hazardous materials that it had a duty to make public. It's been caught trying to actually hide the hazardous materials. When a TCEQ inspector advises the city in 2012 that there's a new pile of battery chips that's washed up, the city's response is to cover it up with "geo-membrane fabric" – even when the TCEQ inspector says that's not going to be sufficient. They don't want to dig it up. They don't want to do more testing to see the extent of contamination. They don't want to actually remove it. They want to cover it up. That's the city's entire M.O. when it comes to Exide these days. And that's what must change.
Had the city been up front with its own residents in real time about the smelter contamination, there would have been no press in June about how the smelter will impact Grand Park. The public would have already known. There would have been no wave of coverage about these City reports and TCEQ memo all of this last week. It would have been out in the open already. By trying to hide information from the public the city only insures it will always be in a reactive mode and behind the curve. It automatically gives more power to curious citizens to write the narrative, as this past month has shown. When your residents are finding this stuff out from us, instead of the local government that insists it's got everything under control, it's a sure sign that they don't have every thing under control
So far, only Frisco Unleaded and Downwinders have offered anything like a long-term answer to the most important question – what's going to happen to the Exide site? And we're even on the planning department's payroll.
But the City Manager, City Attorney and Mayor would all rather drink lye than admit they've been wrong about this problem, or that Frisco Unleaded might have a good idea or two. It's the toxic mix of arrogance, lack of vision, and conflict of interest that's doing the most to poison Frisco right now. Exide's messy waste problem is only a symptom of this kind of mind-set. Before the definitive clean-up can happen at Exide, there's got to be one at City Hall.