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.
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."
"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.
(FRISCO)—Three new documents, including two reports paid for by the City of Frisco but never publicly released, confirm that the former Exide lead smelter is the source of battery chips and slag waste that line Stewart Creek from Frisco to Lake Lewisville, and concludes the smelter site remains a continuing source of contamination.
Samples taken in 2011 by a City of Frisco contractor found that 71% of Creek sediment collected had elevated levels of lead, cadmium or arsenic. A “visual survey” done for the City of smelter waste just three months ago found at least 45 “hot spots” of battery chips or slag along the entire five-mile route of the Creek, from the western edge of the smelter site all the way to its mouth at Lake Lewisville. Last year a state environmental inspector warned in an e-mail that she was concerned about the smelter’s battery chips making their way “into Stewart Creek and flowing to Grand Park where a parent who is also a Frisco resident pulls one out of their child’s mouth.”
Local group Frisco Unleaded received the documents last week as part of an Open Records Act Request to the Texas Commission for Environmental Quality. Members say the contents prove the public is right to be concerned about the impact of the smelter site on the City’s ambitious new Grand Park development. “These reports show why any activity downstream of the smelter, including the enjoyment of the new Grand Park, will be impossible without a comprehensive clean-up of the entire Exide site. This problem isn't just going to go away or fix itself," stated Meghan Green.
Green also called for the EPA to step in and take over a clean up that until now, has been directed by the state and city. "It’s clear that the toxins at the smelter are being washed into Stewart Creek with each rainfall and are surfacing and will continue to surface along the whole length of the Creek, which happens to also be a tributary into Lake Lewisville. To add insult to injury, Lake Lewisville is a source of drinking water for Dallas. To say that I'm concerned is an understatement. It’s time for the EPA to get more aggressive about protecting public health from this site.”
Although the smelter ceased operation in 2012 and demolition has taken place to remove most of the structures from the central Frisco site, the land itself is the burial ground for tons of lead waste in the form of pieces of used lead-acid batteries broken up for their contents and the slag waste produced from the smelting process. Frisco has arranged to buy an outer ring of the smelter property, but the core part of the operation remains in the hands of Exide, now going through bankruptcy. It’s that core, as well as the property Frisco is buying, that’s the source of the battery chips and slag migrating to Stewart Creek, which runs right though the middle of the Exide site.
That continuing threat to Stewart Creek, along with an assessment of historical contamination, is extensively chronicled in the City and State documents released by Frisco Unleaded today. They include:
1. A November 2011 “Limited Site Investigation” Of Stewart Creek by the City of Frisco
The City of Frisco specifically requested this investigation “to evaluate chemicals of concern in sediment in the vicinity of the Grand Park project.” Samples of sediment were collected at a total of 30 sites, and tested for Lead, Arsenic, Cadmium, Selenium, and Sulfates. 71% of the sediment samples tested for Lead, Cadmium and Arsenic exceeded the Texas Commission on Environmental Quality Ecological Benchmark.
2. March-April 2013, of Stewart Creek, Interim Report, City of Frisco
A year and a half after the Creek sediment sampling, contractors for the City of Frisco performed “a walking survey to identify and document the potential presence of visible battery chips and slag in Stewart Creek."
Chips and/or slag were observed in at least 45 different spots along the entire five-mile route of Stewart Creek from the smelter site in Frisco to the entrance of the Creek into Lake Lewisville, or an average of every 600 feet. The first sample was found at the mouth of the Creek as it flows into Lake Lewisville, a source of drinking water for the City of Dallas.
At least 29 hot spots of battery chips and/or slag were found within the boundaries of Grand Park, from Stonebrook Parkway on the south to the North Dallas Tollway, more than 4 times the number of any other segment along the survey. “Frequent occurrences of concentrated battery chips and potential slag material were observed in the Stewart Creek channel in Grand Park from Stonebrook Parkway to the Dallas North Tollway bridge.”
3. TCEQ_battery_chip_emails from Texas Commission On Environmental Quality Staff on Recurring Battery Chip Contamination
In June of last year a TCEQ inspector wrote her supervisors that new concentrations of battery chips had shown up in previously clean-up areas of the smelter site. “These battery chips were believed to have washed up this year and accumulated down gradient along the tree line. Some of these chips were observed making their way down towards Stewart Creek. It looks like they’re being carried toward the trees and the creek with the rainwater. (Exide and City representatives) stated that the area was tested (prior to this new accumulation of battery chips) and it was below 250 ppm. I pointed out that there also wasn’t as many battery chips in those areas when the APAR was submitted. In the report, it states that the area would be covered with the geomembrane fabric and it sounded like this is what they want to do with these new battery chips as well (cover them with fabric). I pointed out that if I were to collect a sample that it would most likely exceed 250 ppm and there were just too many that had accumulated to be covered up with the fabric. As we all know, these chips move under rainy conditions. I told (the City representative) that our concern and I’m sure the city’s concern as well is if these battery chips made it into Stewart Creek and flowed to Grand Park where a parent who is also a Frisco resident pulls one out of their child’s mouth.”
One of her supervisors responds that chips will always come up with a rain: “Based on my experience from working on site contaminated with battery chips and slag, rubber battery chips that are buried will float to the surface (just tires in landfills). While working on sites associated with the West Dallas RSR lead smelter, with the exception of where chips were used as road based, every site that had surface chips on the surface were located over areas where slag and battery chips have been deposited in the past. Were subsurface investigations conducted in the areas of concern to determine the extent of contamination? Or did they only conduct surface investigations.”
Critics of the City’s approach to the smelter site clean-up cited the e-mail as a stunning example of Frisco’s caviler attitude about the contamination problem posed by the Creek. “We’ve often said the City is trying to figuratively cover-up the problem of Stewart Creek, but here’s an example of where they’re doing it literally,” said Jim Schermbeck of Downwinders at Risk, the regional clean air group assisting Frisco Unleaded.
Along with the City and State documents, Frisco Unleaded released the results of its own small sampling of battery chips members collected only last week from the public Right-of-Way on the BNSF railroad tracks leading into the smelter site. One of the chips had over 100 ppm of lead on it and 8.5 ppm of Arsenic. The Lead level is above the TCEQ Ecological Benchmark and the Arsenic level is just below it. Schermbeck said it was easy to collect the chips because they’re lying on the open ground.
Besides demanding that the EPA issue a “Imminent and Substantial Endangerment” order to begin addressing the Creek’s clean up, Frisco Unleaded and Downwinders called for the City of Frisco to release all of its Exide-related documents to the public and for the City of Dallas to begin interceding on behalf of its residents, whose drinking water is under threat from the smelter waste.
Green said that despite the City’s rhetorical promise to its residents to be transparent with them about the site, “that obviously hasn’t been the case since we had to get these city documents from the state. We deserve all the information the City Manager and Mayor have about this site. It’s our families, it’s our town, and it’s our tax money. The Mayor and Council need to make a commitment to residents that they’ll share everything they have about the site with the public. ”
Addressing the issue that could pull in Dallas and other cities, Schermbeck noted, “There’s now clear evidence that the Exide smelter has been a constant source of toxic contamination in Lake Lewisville for decades. The City of Dallas needs to wake-up and begin to lobby for the kind of environmental clean up that can put a stop to that contamination to its water supply.”
According to Schermbeck, it’s the new-found evidence of a continuing threat to the Creek and Lake that make this more than just another effort to clean up a past environmental mess, and warrants a serious escalation of regulatory responses. He noted that most toxicologists agree that there is no safe level of exposure to lead, especially for children, whose minds and bodies are still developing. “And yet, here’s this property on Creek’s edge, that’s proven to be a fountain of constant lead contamination flowing downstream through the middle of densely populated neighborhoods, and ending up in a source of municipal drinking water. It’s a clear and present danger to public health that deserves an immediate and potent remedy.”
If you want to let Mayor Maso and the Frisco City Council know how you feel about their sitting on this inforamtion for almost two years, please send a qucik "Click N Send" e-mail to them via our "Featured Citizen Action of the Week." Thanks.
A months-long deathwatch surrounding Exide Technologies got a little closer to its climax on Thursday with a Wall Street Journal story quoting "people familiar with the matter" as saying the company was preparing to file for bankruptcy for a second time in a decade sometime this summer.
The original article is behind the Journal's pay wall, but it provides some details as to how the mechanics of such move would work. For one thing, the company's European operations won't be affected at all, according to the story. That's a hint that the company wants to find a way to fully separate its substantial US environmental liabilities – including the toxic waste dump formally known as the Frisco lead smelter – from what it considers to be its more salvageable parts.
Exide is carrying approximately $700 million in debt and many financial analysts doubt its ability to repay a $56 million note due in September. Thus, the summer timing. There was also probably some consideration to cash out while there was still some cash left. Shares of he company were selling for a record low of 34 cents on Thursday. It's last quarterly report in December 2012 cited a $15.4 million loss compared to a profit of $68 million in 2011.
Meanwhile, the company is providing plenty of work for lawyers and bankers:
Restructuring lawyers at Skadden, Arps, Slate, Meagher & Flom LLP are working with the company, while law firm Akin Gump Strauss Hauer & Feld LLP is advising an independent board committee, the people said. Paul, Weiss, Rifkind, Wharton & Garrison LLP is working with some bondholders and Andrews Kurth LLP is working with convertible-note holders, these people said.
Turnaround firm Alvarez & Marsal is working with the company, investment bank Houlihan Lokey is working with some bondholders and Moelis & Co. is working with convertible-note holders, they added.
Even money that the company has already spent more on this effort than they have cleaning up their mess in Frisco.
While completely predictable, this development now puts the City of Frisco at a crossroads for which it's not prepared.
Exide had no intention of rehabilitating or cleaning-up its Frisco smelter site – the part that still has decades and tons of lead contaminated waste buried in the ground – to provide for normal redevelopment. Even assuming the company and City are completely successful in cleaning up the outer zone of smelter property that the City is buying, there's no such plans for the 100 acres or more of hardcore toxic smelter property that was the core of the operations – and which has Stewart Creek running through it. The same Stewart Creek that runs from Exide into the proposed Grand Park. No matter how much the City tried to put a pretty bow on this situation, it still left a big toxic turd floating in the punchbowl, for which there was no contingency plans.
The upside of an Exide bankruptcy is that now the company won't be able to hold the rest of the City hostage by keeping the site a toxic dump forever. Because it won't own it anymore. Going belly up means there are other options besides the ones Exide was dictating because of its ownership.
On the other hand, bankruptcy for a company such as Exide usually means its environmental liabilities are absorbed by the taxpayers via the federal Superfund Site list. Exide already owns an abandoned local lead smelter. Dixie Smelter in South Dallas closed in 1990 as a result of the city's crack down on inner city lead smelters. It's been a fenced-off no man's land ever since. This is what Frisco city officials dread now. Once it's listed for clean-up it may take decades for it to actually happen. The result is the same as if Exide never lost ownership – you still have a toxic waste dump with the Creek running through it on the way to your new regional park.
What to do? The big difference between this lead smelter site and the ones in Dallas is location. Although originally sited on "the other side of the tracks" in Frisco, the city has transformed itself into the North Texas suburb of choice, to the point where the smelter property is now surrounded by exclusive gated communities and malls.
The City should use this fact, and this brief moment before actual bankruptcy, to work with Exide, the EPA, private developers who specialize in reclaiming contaminated sites, and local banks to formalize a plan to completely clean up the entire Exide smelter site in return for being able to build a signature project that will connect Grand Park to Downtown Frisco. Imagine if the smelter and its waste wasn't there on the property – immediately on the North Dallas Tollroad, with a creek running through it, connected to the city's signature green space. It would be another Los Colinas.
The problem, and its a huge one, is to assemble the considerable money it would take to clean the property, while also raising the money it would take to actually build the project, and assume liability for whatever surprises might be found on site in the future. Frisco could do its part by giving generous tax breaks to the developers. EPA could do its part by easing regulatory requirements for transfer. Exide could do its part by selling the land to the City for $1 so that Frisco could concentrate its resources on rehabilitation, not purchase price. There is now considerable self-interest to work a deal that wasn't there before the Exide bankruptcy.
The point is, Frisco officials must be able to answer the question: What's the ultimate plan for Exide property? To let it sit as a toxic waste dump? To let it sit as a toxic waste dump next to a new park that features the same creek that runs through the toxic waste dump? Or is there something more that can and should be done?
City Hall showed a great deal of creativity in drawing up the agreement that resulted in shutting Exide's outlaw smelter operation down. It now needs to exert the same creativity in coming up with a rescue plan for the property the smelter left behind.
(Frisco)–Frisco residents directly challenged their city’s attempt to gloss over what they say is an important decision to use a less-protective testing method to find toxic contamination on the Exide smelter site, while also releasing a new report that chronicles how that contamination could disrupt plans to build the city’s ambitious “Grand Park.”
Saying city officials either don’t know what method is actually being used for finding “hot spots” of contamination, or isn’t being truthful about its use, members of Frisco Unleaded contrasted an official city denial from Assistant City Manager Ron Patterson with a March memo from the Texas Commission on Environmental Quality.
“Although you state in your response….“an industrial sampling protocol is not being used on the J Parcel,” you are incorrect,” says a letter sent by the group to Patterson and the Frisco City Council on Monday. “Please refer to the Texas Commission on Environmental Quality memo, dated March 8th of this year, accompanying our May 28th letter….TCEQ’s Danielle Lesikar clearly states that the 2 samples per acre testing method, “is a Commercial Industrial Standard,” and “only meets (the) Commercial-Industrial” standards. We’d appreciate if you’d forward documentation that disproves this statement….”
Members of the group say the difference is small but critical. Instead of eight soil samples per acre at the highly contaminated site, Exide is only sampling twice per acre, and so far less likely to find all the toxic material that needs to be removed to bring down high levels of lead, cadmium and other potential contaminants after almost 50 years of smelter operation.
Making sure there are no toxic surprises is important for redevelopment of the site itself, as well as the construction and use of the City’s new 275-acre Grand Park, located only 500 feet away from the smelter property and directly downstream of the Exide contamination via Stewart Creek, which is key to the park’s chain of lakes and water features. That’s the subject of the group’s new report.
“Poisoned Park? How Exide’s Lead Contamination Risks Frisco’s Grand Park,” was released to coincide with the last of three public “design meetings” for Grand Park at City Hall on Monday afternoon. In it, Frisco Unleaded compiles the long litany of abuse to Stewart Creek and the surrounding land by the smelter recorded by state and federal inspectors, including lining the banks of the Creek with toxic lead slag waste, dumping lead waste directly into the Creek, and locating waste dumps and pits in its floodplains.
“This poor Creek has been more or less an open sewer for the entire Exide smelter property for decades. There’s every indication that a lot of contamination is still there. And yet city officials are pretending that they aren’t trying to build a huge park centered along the course of this same Creek, immediately next door, and upstream of the Smelter. None of the previous design meetings have even raised the possibility of an environmental assessment of the threat Exide’s contamination poses to the Park,” said Frisco Unleaded board member Meghan Green.
Besides chronicling the past and current threats to the creek and potential ones to the new Park, the report features the boundaries of Exide’s hazardous waster permit superimposed on FEMA 100-year floodplain maps and USGS topographical maps to indicate how much of Stewart Creek has been affected by the Smelter, which literally sits on either side of its banks before flowing west under the Dallas North Tollway into what would be the new Grand Park.
“It’s important to get the most protective clean-up of the Exide property that we can” said Frisco Unleaded Chair Colette McCadden, “because all of the run-off from the property will be headed directly into the Park and the City itself has proposed building an entire Stewart Creek green belt corridor that would follow the Creek into the Park. This isn’t an industrial site that is sitting in isolation from people and activity. This is a site that’s next to Frisco’s largest park.”
“With the financial condition of the company deteriorating,” added Downwinders at Risk Director Jim Schermbeck, “it’s very possible the smelter site could end up on the EPA’s federal Superfund Site list, and then you’d have the a toxic waste dump site as a neighbor to Frisco’s most ambitious park.”
Among problems for Grand Park development pointed out by the report:
- Despite inspection reports citing known and potential contamination affecting Stewart Creek, no remediation has been performed there in 13 years.
- There’s not sufficient protection from flooding at the site, despite most of the facility being located in low-lying, flood prone areas.
- The FEMA 100-year floodplain runs directly through a landfill full of Exide lead slag, within just 100 feet of a “waste pile” of contaminated dredging from Stewart Creek, and within 200 feet of lead landfills that are in various states of disrepair.
- There’s been no extensive testing of soil, sediment or water within the boundaries of the new park, or between the Smelter and the park, where new contamination has recently been discovered.
The report makes four specific recommendations to insure park and public safety:
- City Officials should commission a full environmental assessment of the Grand Park Project before project planning and development go any further.
- The clean-up of the Exide smelter site should be to the most protective “Residential” standards to allow for open spaces use along Stewart Creek.
- All landfills, dumps and pits of lead waste should be removed from the Exide site to prevent future contamination problems from occurring.
- The water quality of Stewart Creek must be assured.
This is a 23 second video shot on the corner of Eubanks and 5th Street in Frisco earlier this month. This corner is the northeast border for the property owned by the Exide lead smelter.
When it begins, the camera is looking south toward the now shuttered smelter. In fact, at the 3-second mark, you actualy see the smelter's smokestacks betwen two trees for a brief moment. In front of those trees is the fenceline separating the smelter property from the public. Immediately behind those trees is a berm that marks where the smelter's active landfill is.
This "non-hazardous" landfill holds approximately 9 million pounds of lead-contaminated waste. Lead itself is dangerous, but Exide got caught illegally burying hazarous waste in this non-hazardous landfill. The company's remedy is to dig the hazardous waste up, "re-treat it" and then re-bury it in exactly the same landfill. All this is to be done at the edge of the smelter's property at this corner of Eubanks and 5th.
Besides this waste from production, Exide is now using the landfill to dispose of as much smelter demolition waste as possible. That makes it the most active spot on the smelter property at this point, with trucks full of waste coming and going besides the on-going "digging and "re-treatment" there.
And when Exide is finished stuffing all the lead-contaminated waste it can into this landfill, it hopes to leave it buried in Frisco forever.
Directly across the street from this illegal hazardous waste landfill is the "Play Ball" rec center for kids – a batting cage business. On nice days, you can usually find the south-facing/smelter-facing metal garage door wide open to allow for air circulation for the kids taking practice inside.You can also find their sibings and peers playing on the front driveway, only about 50-100 feet away from the lip of that landfill berm.
When the wind is out of the south, as it often is from March to October, the Play Ball batting cages and the kids there are are directly downwind of the smelter and the landfill operation. A lead-in-air monitor operated by the the Texas Commission on Environmental Quality is located on Eubanks. It's that skinny white pole in the middle of the frame at the 5-second mark. This monitor has repeatedly found concentrations of lead in the air higher than the EPA's new national lead in air standard – since the smelter closed.
So not only are these kids subject to being downwind of all of the smelter's demolition activity. They're also just across the street from the most heavily used part of the smelter now, with a much larger risk of getting contaminated.
Exide, the City of Frisco and the Texas Commission on Environmental Quality all would have you believe that everything is hunky-dory at the lead-smelter site. Look, the smokestacks are coming down! But in reality, this site is still posing risks for Frisco children who are still playing right across the street.
Coming down the hill from the west is a freight train full of woe for Exide. It's carrying at least five shareholder lawsuits aimed at the company for not disclosing its environmental liabilities, including those stemming from the operation of its Vernon, California smelter. That would be the same smelter California state officials shut down due to leaking lead waste and an unacceptable cancer risk to over 100,000 local residents. On board is a "restructuring specialist" who is supposed to see the company through its second bankruptcy in a decade. As of last week, Exide stock was selling for a cool 75 cents a share. The whole company is about to shoot off the rails.
Meeting it head-on coming from the east is the Exide's smelter site in Frisco, over 100 acres and fifty years of sloppy handling and disposal of hazardous lead, arsenic, cadmium, dioxin and other poisons. There are "pre-RCRA" sites aplenty – meaning they were there before any regulations could catch up with them, as well as more recent disasters like the illegal burying of hazardous waste in a non-hazardous landfill. Just last week the City of Frisco released a preliminary environmental assessment of the LEAST-contaminated parts of the smelter that revealed new potential contamination as well as the fact that the entirety of Stewart Creek had been re-routed around the smelter in 1964 – leaving the original channel underneath the MOST contaminated part of the smelter. Moreover, even though the smelter closed in November of last year, it's been routinely causing high levels of lead air pollution from the demolition and closure operations going on.
Caught in the middle are Frisco residents who just want to live without a lot of lead in their air for awhile, and don't want to see a new Superfund Site in their town. The state's Texas Commission in Environmental Quality is in its usual "Yes Man" role to industry and seemingly finds no fault in any of Exide's plans to leave pits and landfills full of smelter waste in Frisco permanently. Having made its sweetheart deal to close the smelter, the City of Frisco has taken a back seat to the company and TCEQ when it's come time to figure out how best to clean-up the site.
Thursday night Exide is sponsoring another one of its "community meetings" in which the community is invited to come hear company representatives put nice spin on everything as well as duck questions about its financial responsibilities and long-term plans. It's no substitute for a real public meeting but its the only game in town for Frisco residents who don't want to see a toxic waste dump site remain downtown.