Judge hears ar­gu­ments in city’s ef­fort to dis­miss Ex­ide case

She’ ll de­cide fate of suit, whether deal’s fo­cus was health or land

The Dallas Morning News - - State - By VA­LERIE WIGGLESWORTH Staff Writer vwig­glesworth@dal­las­news.com Twit­ter: @vl­wigg

Was the city of Frisco act­ing in its gov­ern­men­tal ca­pac­ity or en­ter­ing into a pro­pri­etary land deal when it signed the 2012 agree­ment to close the Ex­ide Tech­nolo­gies plant in ex­change for buy­ing about 180 acres?

The an­swer will de­ter­mine whether the civil suit Ex­ide filed in fed­eral court against the city can pro­ceed.

At­tor­neys pre­sented ar­gu­ments Thurs­day on the city’s mo­tion to dis­miss the suit in fed­eral court in Plano. Mag­is­trate Judge Kim­berly Priest John­son said she would rule later.

If Frisco was per­form­ing its govern­ment func­tions such as those re­lated to res­i­dents’ health and safety, it would have im­mu­nity from the suit. If the agree­ment was part of a real es­tate trans­ac­tion, the city would not be pro­tected.

The plant orig­i­nally opened in 1964 along Frisco’s Fifth Street just south of down­town. At the time of Ex­ide’s clo­sure in Novem­ber 2012, it em­ployed 134 peo­ple and was the only sec­ondary lead smelter op­er­at­ing in Texas. It re­cy­cled as much as 6 mil­lion used au­to­mo­tive and in­dus­trial bat­ter­ies a year.

But Ex­ide also gen­er­ated a host of con­tam­i­nants, in­clud­ing lead, cad­mium and ar­senic. The Texas Com­mis­sion on En­vi­ron­men­tal Qual­ity had is­sued sev­eral en­force­ment ac­tions against the com­pany. And with a nod to the dan­gers from lead, the U.S. En­vi­ron­men­tal Pro­tec­tion Agency re­vised its rules and found that the area around the Frisco plant ex­ceeded the air qual­ity stan­dard for the heavy metal.

The months lead­ing up to the 2012 master set­tle­ment agree­ment in­cluded lots of heated ex­changes between both sides, threats of le­gal ac­tion and the early steps of amor­ti­za­tion — a le­gal tool cities use to re­move un­wanted busi­nesses.

The agree­ment signed that June called for Ex­ide to dis­man­tle its op­er­a­tions and clean con­tam­i­nated ar­eas. In ex­change, the city would pur­chase the va­cant land sur­round­ing the plant’s op­er­a­tions for $45 mil­lion. The funds would come from the Frisco Eco­nomic De­vel­op­ment Cor­po­ra­tion and the Frisco Com­mu­nity De­vel­op­ment Cor­po­ra­tion.

Mark Stra­chan, who rep­re­sents the city, ar­gued Thurs­day that Frisco en­tered the agree­ment to pro­tect the health, safety and wel­fare of its res­i­dents. The deal gave the city the tools needed to stop Ex­ide’s on­go­ing pol­lu­tion and clean up decades of con­tam­i­na­tion.

“Us­ing money to achieve that health and safety does not ren­der it pro­pri­etary,” he told the court.

Ex­ide at­tor­ney Van Beck­with ar­gued that Frisco en­vi­sioned a fu­ture cen­tered on shop­ping malls and en­ter­tain­ment fa­cil­i­ties. And the city used its de­vel­op­ment cor­po­ra­tions, which he claimed are not pro­tected through im­mu­nity, in the deal to gain more land to de­velop.

Beck­with cited the land­mark de­vel­op­ments along the Dal­las North Toll­way that make up what’s known as the $5 Bil­lion Mile. A por­tion of Ex­ide’s prop­erty faces the toll­way and is less than 2 miles north of the Dal­las Cow­boys’ new head­quar­ters and prac­tice fa­cil­i­ties.

“Frisco wanted the land that faced the bil­lion-dol­lar toll­way,” he said.

Ex­ide’s civil suit, filed in May, claims Frisco is in breach of the 2012 agree­ment. It cites the city’s re­fusal to add more money to an es­crow ac­count for cleanup and its at­tempts to block Ex­ide from re­ceiv­ing a per­mit for waste­water dis­charges. City of­fi­cials have de­nied those claims.

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