BREAKING NEWS: Judge gives bankrupt Exide final approval for $500M DIP loan despite objections from City of Frisco, TCEQ, 10 states, EPA, Department of Justice due to concerns that city, state and U.S. taxpayers will be left to pay for cleanup of toxic contamination at Exide facilities; Frisco cleanup costs now range between $15 million and $130 million; How will Exide deal with its environmental liabilities in this second bankruptcy?

 

Exide received final Bankruptcy Court approval today of its $500 million debtor-in-possession (DIP) financing provided by JPM Chase and a group of lenders to whom the DIP financing was syndicated.

This final approval came in spite of objections filed by entities ranging from the City of Frisco, the TCEQ, environmental agencies from California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Kansas, Mississippi and Missouri and the Department of Justice/EPA. All expressed objections to how the DIP loan terms essentially were crafted to prevent Exide from having to pay full cost of cleanup of existing contamination at its facilities, or to pay for environmental cleanup from an accident or emergency at one of Exide’s lead smelters or facilities.

This is Exide’s second bankruptcy in 11 years. The company last filed bankruptcy in 2002. It officially came out of bankruptcy in 2004. Exide didn’t settle its environmental liabilities with the EPA, NOAA, etc., until May, 2011. Click here and scroll down to “NATIONAL” headline to read how Exide shed environmental cleanup liabilities in its last bankruptcy.

On July 19, the City of Frisco joined with the TCEQ in objecting to final approval of the $500 million loan. Below are excerpts from the City’s filings with the U.S. Bankruptcy Court. (Links to download copies of full filings are below each) What Frisco officials know at this point about the extent of contamination from the Exide lead smelter, as well as the City’s concerns about how the terms of Exide’s debtor-in-possession loan were crafted to keep it from paying for the true cost of the cleanup of toxins such as lead and cadmium in nearby soil and water (including Stewart Creek, which is a tributary to Lake Lewisville, a major water supply for the area) are documented in these filings.

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

§ Case No. 13-11482 -KJC

§ Chapter 11

EXIDE TECHNOLOGIES §

Debtor.

§ Final Hearing: July 24,2013 at 10:00 a.m.

§ Relates to Dkt. 17 and 79

DECLARATION OF WADE M. WHEATLEY, P.E. IN SUPPORT OF THE

JOINDER BY THE CITY OF FRISCO, TEXAS IN THE

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY’S OBJECTION

TO DEBTOR’S MOTION FOR INTERIM AND FINAL ORDERS (I) AUTHORIZING

DEBTOR (A) TO OBTAIN POST-PETITION FINANCING PURSUANT TO 11 U.S.C. §§

105,361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1), AND 364(e) AND (B) TO UTILIZE

CASH COLLATERAL PURSUANT TO 11 U.S.C. § 363, (II) GRANTING ADEQUATE

PROTECTION TO PRE-PETITION SECURED PARTIES PURSUANT TO 11 U.S.C. §§

361, 362, 363 AND 364 AND (III) SCHEDULING FINAL HEARING PURSUANT TO BANKRUPTCY RULS 4001 (b) and (c)

CONTAMINATION OF SITE AND SURROUNDING AREA

7. The waste streams produced at the Exide facility have resulted in widespread contamination of the site and surrounding area, and multiple state and federal environmental enforcement actions have been taken at the facility. Since 2010, the Texas Commission on Environmental Quality(TCEQ) has issued three Agreed Orders to the facility (Docket #2011-1712-IHW-E for improper waste management; Docket #2011-0521-MIS for excessive discharges oflead particulate to the atmosphere; and Docket #20 10-1818-IWD-E forunmonitored wastewater discharges to Stewatt Creek). It is also under a United States Environmental Protection Agency (EPA) Administrative Order on Consent (RCRA 06-2012-0966) for improper waste management practices.

8. As discussed above, the Exide facility is constructed, in part, over the historic stream channel for Stewart Creek and the northern tributary. Boring logs (soil lithology records) indicate that slag, battery chips, and soil have been used as fill material under the facility. The deepest repmt of battery chips and slag is at a depth of28.5 feet below grade in MW-30. Based on soil sample results provided in the 7/10/2013 Mfected Property Assessment Report1 (AP AR), almost the entire surface of the Exide facility is contaminated with lead. Exceptions to that include the eastern edge of the facility and the Battery Receiving/Storage Building area, which is the westernmost building in the main portion of the facility. Although the near-surface soils aren’t contaminated under the Battery Receiving/Storage Building and surrounding area, significant contamination is present from 4 to 10 feet below grade in that area.

9. In the 7/10/2013 APAR, Pastor, Behling & Wheeler, LLC (PBW) 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 resource.2 It 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.

On-Site Landfills

10. There are several landfills located on the Exide property(7/10/2013 APAR) which represent areas of environmental concern and pose potential threats to public health and safety. I have evaluated potential remedies to address areas of environmental concern associated with the operation of the Exide facility, including the on-site landfills, which include the potential excavation of waste and contaminated environmental media present above environmental action levels that will be protective of human health and the environment. 11. As discussed below, the majority of the materials from these landfills would likely meet the definition of hazardous waste under the RCRA if the materials were to be exhumed and actively managed. As such, these exhumed materials would have to be managed in accordance with applicable RCRA regulations.

CLICK HERE TO DOWNLOAD COMPLETE COPY OF FILING

 

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

§ Case No. 13-11482 -KJC

§ Chapter II

EXIDE TECHNOLOGIES §

Debtor.

§ Final Hearing: July 24, 2013 at I 0:00a.m.

§ Relates to Dkt. 17 and 79

DECLARATION OF HENRY J. HILL IN SUPPORT OF TI-IE

JOINDER BY THE CITY OF FRISCO, TEXAS IN THE

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY’S OBJECTION

TO DEBTOR’S MOTION FOR INTERIM AND FINAL ORDERS (I) AUTHORIZING

DEBTOR (A) TO OBTAIN POST -PETITION FINANCING PURSUANT TO 11 U.S.C. §§

105,361,362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(J), AND 364(e) AND (B) TO UTILIZE

CASH COLLATERAL PURSUANT TOll U.S.C. § 363, (II) GRANTING ADEQUATE

PROTECTION TO PRE-PETITION SECURED PARTIES PURSUANT TO 11 U.S.C. §§

361, 362, 363 AND 364 AND (III) SCHEDULING FINAL HEARING PURSUANT TO

BANKRUPTCY RULES 4001(b) AND (c)

5. This Declaration is filed in support of the Joinder by the City of Frisco in the

Objection of the Texas Commission on Environmental Quality’s Objection to the Debtor’s Motion

for Interim and Final Orders (I) Authorizing the Debtor (a) to Obtain Post-Petition Financing

Pursuant to 11 U.S.C. §§ 106,361,362, 364(c)(l ), 364(c)(2), 364(d)(l) and364(e), and (b) to Utilize

Cash Collateral Pursuant to § 363, (II) Granting Adequate Protection to Pre-Petition Secured

Creditors Pursuant to 11 U.S.C. §§ 361, 362, 363, and 364, and (III) Scheduling Final Hearing

Pursuant to Bankruptcy Rules 400 1 (b) and (c).

6. In my capacity as the Deputy City Manager I provide general administrative support

for the City Manager. I am also responsible for the Public Works, Parks and Recreation,

Communications, Library, Convention and Visitors Bureau, and Human Relations Departments. In

that capacity, I have dealt with, and have had partial oversight responsibility for, City personnel and

City consultants who are monitoring the demolition of the existing Exide plant and facilities,

monitoring the testing of the real property owned by Exide for contamination, and monitoring the

clean-up of the Exide property as well as land outside the boundaries of the Exide propetty which

lay within the Frisco City Limits.

8. On June 6, 2012, Exide and Frisco entered into a Master Settlement Agreement (the

“Agreement”) to (a) close the Ex ide Frisco Site subject to satisfaction of the requirements of the

Texas Commission on Environmental Quality (TCEQ) under the Texas Risk Reduction Program

(TRRP) and (b) remediatc, under the Voluntmy Cleanup Program (VCP), and then sell

approximately 170 acres of the land surrounding the Exide Frisco Site to Frisco and its development

corporations (the “J Parcel”) after issuance of the Final Certificate of Completion by the TCEQ on

that acreage. Under the Agreement, Exide would (a) perfonn any necessary cleanup of the property

to be sold, and (b) provide release ofthe liens held by secured lenders on the J Parcel as conditions

precedent to the closing. Exide would retain ownership oftheremainingproperty at the Exide Frisco

Site. Frisco agreed to pay a premium for the J Parcel, considering the potential contamination, to

cause Exide to cease operations, to facilitate environmental cleanup of the Exidc plant and the Exide

Frisco Site, and to put into place necessary protection of downstream prope1iies. A true and correct

certified copy of the Agreement is attached hereto and incorporated herein as Exhibit “A.”

9. On May 2, 2012, Exide entered into a Consent Order with the United States

Environmental Protection Agency, RCRA Docket No. 06-2012-0966, (the “Consent Decree”) which

required Exidc to (a) finalize the implementation of a revised sampling and analysis plan for the

Ex ide Frisco Site and (b) to finalize and submit a Site Investigation Report. The Consent Decree

was incorporated by reference into the Agreed Order in Docket No. 2011-1712-IHW-E between

Exide and the TCEQ dated January 30, 2013, (the “Agreed Order”). A true and correct certified

copy of the Agreed Order is attached hereto and incorporated herein as Exhibit “B.” The Consent

Decree and the Agreed Order defined, in part, the actions to be taken by Exide on the Ex ide Frisco

Site.

1 0. The cleanup and closure of Exide Frisco Site that began in December 2012 was also

addressed in part by Exide Permit HW -50206 issued on March 31, 2001. A first step in the closure

process is decontamination and demolition of the various buildings, infrastructure, and associated

equipment. In December 2012, Ex ide posted plans athttp://www.exidefriscoclosure.com describing

its plans for decontamination and demolition of the site, including dust control and air monitoring.

The TCEQ issued a letter dated February26, 2013, stating that there was no Agency objection to the

decontamination and demolition plans. The Exide Frisco Site decontamination and demolition was

commenced prior to the bankruptcy filing.

I I. On October 25, 2012, Exide and Frisco entered into a Volw1tary Cleanup Program

Agreement (the “VCP Agreement”) with the TCEQ regarding the J Parcel. A true and correct

certified copy of the VCP Agreement is attached hereto and incorporated herein as Exhibit “C.” In

the VCP Agreement, Ex ide has agreed to use cleanup levels for lead that are at least as stringent as

standard residential cleanup requirements to include a cleanup level of250 parts per million. The

VCP Agreement requires Exide to submit an Affected Property Assessment Report (APAR) to

TCEQ not later than September 13, 2013.

12. On April 29, 2013, Exide, though W & M Environmental Group, Inc., issued its

“Interim Action Work Plan for Slag and Battery Case Fragment Removal and Disposal” (the

“Interim Work Plan”). On July I, 2013, the TCEQ issued its approval letter of the “Interim Work

Plan.” This Interim Work Plan limits the cleanup activities to removal of Battery Chips which can

be recovered using hand tools and is not a comprehensive remediation plan. A true and correct copy

of the Interim Work Plan is attached hereto as Exhibit “D.” The Interim Work Plan will not

accomplish the necessary remediation to satisfy the requirements of the Agreement.

13. The investigation of the contamination of the Exide Frisco Site has now expanded

to areas beyond the borders of the Exide property based on investigations conducted by both the

TCEQ and Frisco in Stewart Creek, a tributary that runs through the Exide Frisco Site westward and

ultimately enters Lewisville Lake which is a major water reservoir for North Texas. Battery Chips

and slag from the Exide plant have been found in and on either side of Stewart Creek and

investigations are now underway to determine both the extent of the contamination, its severity, the

potential method of remediation, and the costs of remediation. No data is yet available to make

reasonable estimates of costs on any of these issues. However, if the studies reveal additional

contamination which presents a threat to public health and safety, action may be required from Frisco

to address these issues if they are not immediately addressed by the Debtor.

14. Frisco has taken action on more than three previous occasions of its own volition to

protect the public from the contamination created by the Exide plant. Three of the most recent are:

First, on December I 0, 2007, Frisco enrolled a 3.3 acre parcel lying south of Stewart Creek and

adjacent to the Exide property known as the Stewart Creek Wastewater Treatment Plant Site in the

Voluntary Cleanup Program (the “Stewart Creek Wastewater VCP Application”). A true and conect

ce1tified copy of the Stewart Creek Wastewater VCP Application is attached hereto and incorporated

herein as Exhibit “E.” The Stewart Creek Wastewater Treatment Plant Site was found to contain

Battery Chips and slag from the Exide plant, and Frisco initiated a cleanup ofboth the Batte1y Chips

and the slag on this parcel. Second, on September 28, 2011, Frisco submitted a Sclfimplcmcntation

Notice (SIN) on a 12 acre parcel north of Stewart Creek and in close proximity to the Exide property

for voluntary cleanup. Third, on July 8, 2013, Frisco enrolled an additional 340 acres of land known

as “Grand Park,” which is land lying West of and not adjacent to the Exide property, in the TCEQ’s

Voluntmy Cleanup Program to investigate the contamination issues in the portions of Stewart Creek

which traverse Grand Park (the “Grand Park VCP Application”). A true and cotTect certified copy

ofthe Grand Park VCP Application is attached hereto and incorporated herein as Exhibit “F.” On

July 17, 2013, the TCEQ accepted the Grand Park VCP Application for assistance and review of site

investigation and cleanup activities. The land lying between the Ex ide propctty and Grand Park as

well as the land lying West of Grand Park, including those remaining portions of Stewart Creek

leading to Lewisville Lake, are not cunently subject to any Voluntary Cleanup Program applications

and/or agreements with the TCEQ. The extent and degree of contamination in those areas remain

unknown but present a potential threat to public health and safety as well as an additional Exide

cleanup responsibility.

15. Paragraph 6.13 of the Supe:rpriority Debtor-in-Possession Credit Agreement (the

“Credit Agreement”) does not appear to allow the Debtor to usc any portion of the proceeds from

the proposed financing to pay for the costs that are currently known to be necessary and will be

incuned to remediate the Exide Frisco Site, Grand Park or Stewart Creek as well as those costs

which may be detcnnined to be necessary by on-go.ing environmental studies. The Events ofDefault

under the Credit Agreement include Covenant Defaults which appear in Paragraph 8.2. A Covenant

Default includes a failure to produce earnings before income taxes, depreciation and amortization

(“EBITDA”) which complies with the requirements of Sections 7.4 and 7.5. Schedule 1.1 of the

Credit Agreement defines the term “EBITDA” in part as follows:

“EBITDA” means, at any date of determination, with respect to the

Company and its Restricted Subsidiaries, for the applicable period,

the sum (without duplication) of(a) Net Income; plus (b) to the extent

Net Income has been reduced thereby, … (v) any unusual or

non-recurring gain (or loss), together with any related provision for

taxes on any such unusual or non-recurring gain (or the tax effect of

any such unusual or non-recurring loss), realized by the Company or

any Restricted SubsidiaJy during such pc1iod, including, without

limitation (A) any charges, costs, fees and expenses directly incurred

as a result of restructuring activities (including, without limitation,

severance cost and facility closures) and discontinued operations

(other than such charges, costs, fees and expenses to the extent

constituting losses arising from such discontinued operations), (B)

non-recurring cost and expenses incurred in connection with cost

reduction or environmental compliance initiatives of the

Company and its Restricted Subsidiaries in an aggregate amount

not to exceed $5 million during the term of the Agreement ….

To the extent net income is allowed to be used to fund an “environmental compliance initiative,”

including those required by the VCP Agreement, the Consent Decree the Agreed Order, and the

Agreement, that usage is effectively limited to $5,000,000.00 in the aggregate during the tcm1 of the

Credit Agreement. The term “Maturity,” which would equal the term of the agreement, is defined

in Schedule 1.1 as:

… the earliest to occur of (a) the first Business Day that occurs 16

months after the Closing Date, (b) the acceleration of the Advances

and the termination of the Commitments pursuant to Section9.1, (c)

45 days after the entry of the Jnteiim Financing Order if the Final

Financing Order has not been entered by the Bankruptcy Court prior

to the expiration of such 45-day period and (d) the substantial

consummation (as defined in Section 1101(2) of the Bankruptcy

Code, which for purposes hereof shall be no later than the effective

date thereat) of a Reorganization Plan that is confirmed pursuant to

an order entered by the Bankruptcy Court.

Therefore, the funds necessary to fund “environmental compliance initiative(s)” could be garnered

only out ofless than one and one-half years of earnings assuming those expenditures did not reduce

the EDITDA below the required contractual levels. Based on the Debtor’s earnings history reported

on its Fom1 10-K for the period ending March 31,2012, filed with the Securities and Exchange

Commission (the “SEC”) on June 7, 2012, and theFonn 10-K for the period ending March 31,2013,

filed with the SEC on June 14, 2013, the Debtor has, and continues to experience, losses or

diminished earnings which would not allow the Debtor to comply with the terms of the Credit

Agreement and would eliminate the possibility of using the Debtor’s net income for remediation

costs.

16. TI1e Debtor’s Fom1 1 0-K for the period ending March 31, 2013, makes the following

statement concerning its environmental liabilities:

The Company has established liabilities for on-site and off-site

environmental remediation costs where such costs are probable and

reasonably estimable and believes that such liabilities are adequate.

As of March 31, 2013 and March 31, 2012 , the amount of such

liabilities on the Company’s Consolidated Balance Sheets was

approximately$25.4 million and$27.7 million, respectively. Because

environmentallia bilities are not accrued until a liability is determined

to be probable and reasonably estimable, not all potential future

environmental liabilities have been included in the Company’s

environmental liabilities. Therefore, changes in estimates or future

findings could have a material adverse effect on the Company’s

financial condition, cash flows, or results of operations.

Since the costs associated with the remediation of the Exide Frisco Site have not yet been completely

ascertained, but arc estimated by Frisco’s environmental consultants to be a minimum of $15.0

million and potentially exceed $100.0 million, it is probable that those costs arc not included in the

foregoing environmental liability estimates. Without regard to whether the Exide Frisco Site

remediation costs are or are not included, this significant liability cannot, under the terms of the

Case 13-11482-KJC Doc 375 Filed 07/19/13 Page 8 of 9

Credit Agreement, be funded. Therefore, the taxpayers of Frisco and the State of Texas may be

required to finance the Debtor’s environmental remediation obligations. Moreover, the proposed

Credit Agreement does not allow the collateral which is proposed to secure the advances made under

the Credit Agreement to be surcharged to recoup those tax dollars. This is the primary basis of

Frisco’s objection.

17. The Credit Agreement does not, from Frisco’s perspective, serve the best interest of

Frisco as a party in interest in this case. It does not permit the Debtor to address, financially or

otherwise, the public health and safety concerns created by the contamination at the Exide Frisco Site

as well as those lands lying downstream from that site in Grand Park or in Stewart Creek. If the

Debtor is handcuffed in its ability to undertake remediation of the Ex ide Frisco Site, Grand Park,

and/or Stewart Creek, Frisco and other govemmental entities may be compelled to immediately

respond to these public health and safety concerns as Frisco has previously done. Delay is not an

option since that could potentially further jeopardize public health and safety. Therefore, Frisco

must have the light to pursue a Section 506( c) surcharge to recoup the taxpayer funds which will be

expended under such circumstances for the benefit of the Debtor, the proposed debtor-in-possession

lenders, and the other parties to this case.

Dated: July 19,2013 ,~vtk

Henry J. Hill

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The City of Frisco’s Exide website

TCEQ Exide website

FRISCO ENTERPRISE

City considering removal of Exide landfills

By Anthony Tosie, atosie@starlocalnews.com, @anthonytosie

CLICK HERE FOR LINK TO STORY

DALLAS MORNING NEWS

Cleanup at Exide site in Frisco could cost up to $130 million-plus

Tags: agreement with Exide, cadmium, contamination, Department of Justice, dust, EPA, Exide, Exide debtor-in-possession loan, Exide DIP loan, Exide loan, Exide loan approval, Frisco, ground, hazardous waste, health, lead, lead accumulation, lead deposition, News1, Settlement Agreement, soil, Stewart Creek, water