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AUS01:613436.1

Aileen M. Hooks

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August 8, 2011

VIA ELECTRONIC MAIL AND FEDERAL EXPRESS

Mr. John Blevins Director, Compliance Assurance and Enforcement Division U.S. Environmental Protection Agency – Region 6 1445 Ross Avenue, Suite 1200 (MC-6EN) Dallas, TX 75202-2733 blevins.john@epa.gov Ms. Sunita Singhvi Chief, RCRA Corrective Action and Compliance Inspection Section U.S. Environmental Protection Agency – Region 6 1445 Ross Avenue, Suite 1200 (MC-6EN-HC) Dallas, TX 75202-2733 singhvi.sunita@epa.gov

Re: Exide Technologies, Inc. Docket No. RCRA-06-2011-0966

Dear Mr. Blevins and Ms. Singhvi:

I am responding on behalf of Exide Technologies, Inc. (Exide) to your office’s issuance of a Unilateral Administrative Order under section 3013 of the Resource Conservation and Recovery Act (RCRA), as amended. That order, dated August 1, 2011, and received by Exide by email on August 2, 2011, and by mail on August 5, 2011 (Order), requires Exide to develop a workplan for a site assessment at Exide’s Frisco Recycling Center. From our initial review, it appears that the Order combines certain specific investigations with the performance of a RCRA Facility Investigation (RFI) consistent with requirements of the corrective action program already required and being performed under section IX of the site’s Hazardous Waste Permit (No. HW-50206). That permit was issued by the State of Texas under its corrective action program, which we believe EPA has approved to operate in lieu of the federal program under section 3006 of RCRA. 42 USC § 6926(b); 40 CFR § 272.2201. The Order recognizes the potential overlap between its terms and the delegated program, and provides for the use of the work under the state program to meet the requirements of the Order, but does not explain how we are to coordinate between the two programs to avoid duplication and assure that the goals of RCRA are being met. Exide intends to work with EPA to address these issues and submit a responsive plan, consistent with the requirements of RCRA section 3013 and applicable federal and state law under the approved program.

Mr. John Blevins - 2 - August 8, 2011 Ms. Sunita Singhvi

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Exide’s Frisco Recycling Center recycles lead acid batteries. Recycling lead acid batteries has been an important factor in Exide’s business for many years. Exide has made a clear commitment to ensuring that this is a world class facility in terms of the environment and community responsibility. To that end, Exide and the former owners and operators of the Frisco Recycling Center have been performing site assessment and corrective action work at this site in accordance with the requirements of RCRA Permit No. HW-50206 and the EPA-approved Texas hazardous waste management program. This work has been conducted by Exide under the oversight of the Texas Commission on Environmental Quality and its predecessor agencies (TCEQ) since the 1980s.

Exide is continuing to review the Order and the accompanying letter in light of the available information. This review will allow Exide to identify any assessment work that may not already have been conducted by Exide that is sought by the Order and develop a more appropriate workplan to guide future assessment activities under appropriate legal authorities. This review will also allow Exide to identify and correct the mistaken factual findings in the Order and supplement the administrative record that has been compiled by EPA. EPA’s administrative record does not appear to contain a complete record of the site assessment and corrective action documents that are an integral part of the past facility investigation chronology included in the Order. As part of its review, Exide is compiling and will submit additional documents and materials that should have been included in EPA’s record. Exide has already noted significant and material gaps in EPA’s record. For example, paragraph 30 of the Order indicates that the Phase II RFI workplan submitted to TCEQ in 1994 and approved by TCEQ in 1998 was never implemented. In fact, the workplan was implemented soon after its approval, and a Phase II RFI report was submitted to TCEQ on August 31, 1998.

Another gap we believe exists in the administrative record that is relevant to the determinations in the Order is the absence of documentation relating to previous assessments of potential for exposure risks off-site. For example, EPA’s program to verify that human exposures have been controlled at each corrective action facility shows human exposures relating to the Frisco Recycling Center as controlled. See the RCRA 2020 Clean-up Baseline table for corrective action facilities in Region 6, including the Frisco Recycling Center (listed under Txd006451090/GNB Technologies Inc (Exide)), on the EPA Region 6 website, and the facility-provided Environmental Indicator forms linked to the table that were reviewed and accepted by TCEQ, available at http://www.epa.gov/region6/6pd/rcra_c/pd-a/eiforms/ca08table.htm. In addition, EPA conducted testing of offsite soils in the vicinity of the Frisco Recycling Center and concluded in the study results that sample results confirmed that concentrations are below regulatory levels of concern and “no further testing or remedial action is needed for those areas that were sampled.” EPA Frisco Neighborhood Soil Survey Summary; Sample Collection Dates March 15-16, 2010; Report Date January 20, 2011 (copy attached). We think it is appropriate to include in the administrative record the RCRA 2020 Clean-up Baseline table entry for the Frisco Recycling Center and related Environmental Indicator forms as well as the EPA offsite soil study.

Mr. John Blevins - 3 - August 8, 2011 Ms. Sunita Singhvi

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Despite the questions we have concerning the Order and the apparent gaps in the administrative record, Exide intends to develop and submit within 30 days a workplan based on its full review of the Order and the other available information in compliance with the RCRA corrective action program administered by TCEQ under federal authorization pursuant to RCRA section 3006 and with RCRA section 3013. While Exide intends to submit the workplan within 30 days, Exide also brings to your attention the challenges with this timeline, including the issues created by the incomplete nature of the administrative record, how the work that already has been done fits into the process, and how efforts are to be coordinated with Exide’s obligations under its Hazardous Waste Permit and the authorized Texas corrective action program. Further, we note that our efforts last week to obtain a copy of the administrative record to assist Exide in the review of EPA’s concerns and in the development of the workplan were unsuccessful. We were advised that the relevant contacts identified were on vacation and advised that we would need to make a FOIA request. We were advised today, however, that the documents comprising the administrative record would be placed on a CD and made available to us this afternoon. Nonetheless, this delay in access to the administrative record is significant given the short period of time Exide has to develop the workplan.

Exide has indicated its intent to meet its statutory obligations under RCRA section 3013. We believe we are fully able to meet the requirements of that section and the Order. We do have a question about the intent of the statement in your letter requiring a commitment to comply within five days. That requirement does not appear within either the Order or the statute. We interpret this to be a request for a prompt commitment to perform the workplan preparation specified in the Order, recognizing the need to avoid duplication of the corrective action process and work. If something else is intended, we can discuss that when we confer or you may contact me to discuss your intent in light of this response.

In addition to the statutory opportunity to confer with EPA prior to any decision by EPA to require implementation of a sampling plan that duplicates the corrective action process generally, Exide also asks for the opportunity to confer with you, your staff and TCEQ before the workplan is due so that we may resolve the questions raised by the order and make sure that our efforts meet your goals in issuing a section 3013 order. At the requested conference, Exide would like to discuss with you the Order, the correctness of the factual determinations upon which it is based, the appropriateness of the actions Exide is being requested to take in light of relevant facts and existing corrective action requirements, and other relevant and material issues relating to the Order and the requested site assessment activity. We anticipate we will have a number of questions related to the Order and the requested workplan that we would like to discuss with you. The following are some of the items we would like to discuss during the conference:

(1) Why is the investigation and corrective action program required by the terms of Exide’s RCRA permit not adequate? Among other things we note that the permit is currently in the renewal process and Exide is

Mr. John Blevins - 4 - August 8, 2011 Ms. Sunita Singhvi

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engaged in discussions with TCEQ concerning the status of RFI and corrective action activities as part of that process. We have received no indication over the prior course of the program implementation that EPA saw any problems with that program. We have received no notice that our efforts under that permit were not in compliance with the permit implementing the corrective action program.

(2) Did EPA review the RFI/corrective action process data and reports as they were collected? We note that EPA Region 6 was timely copied on Exide’s submittals to TCEQ under our RCRA permit, including submittal of the Phase II RFI report that EPA finds in its Order was never implemented.

(3) Why is EPA ordering Exide to implement the plan as approved by EPA without first reviewing and conferring with Exide on the proposed workplan? RCRA section 3013 specifically provides that a 3013 order shall require the submission of a plan for EPA review and discussion with the Respondent, and “may” require the performance of work based on the submitted plan with such modifications as EPA may reasonably require. The Order as drafted appears to eliminate any such consideration, and to presume that monitoring work under the Order is required in advance of the opportunity to confer provided in the statute.

Exide reserves all rights it may have to dispute or challenge the Order and the findings of fact and conclusions of law set forth therein and to develop a workplan consistent with corrective action requirements and RCRA section 3013.

In concluding this letter, we want to express our disappointment and concern that EPA would issue this Order without notice or prior discussion, after so many years in which Exide has been working with the State of Texas and under EPA oversight to perform these studies as part of corrective action. This concern is deepened by the fact that EPA has been reviewing our corrective action process at this Facility for more than two years under a multi-media inspection without ever raising issues that would warrant the effective removal of the RFI process from the State of Texas. If there are specific conditions that have been identified that require specific measures to investigate and consider remediation outside the normal corrective action process, Exide is always willing to consider such processes. In fact, the corrective action process itself provides a vehicle for EPA to suggest that the State and Exide consider interim measures to address such concerns. The issuance of this Order may not be the swiftest and most effective way to achieve your goals.

Mr. John Blevins - 5 - August 8, 2011 Ms. Sunita Singhvi

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This response meets Exide’s obligations under RCRA section 3013 and your request at this time. If you believe that it is in any way inadequate or inconsistent with EPA’s exercise of its authority under section 3013, please contact me immediately. We welcome the opportunity to meet in person with you and your staff to discuss the Order prior to September 1, 2011.

Sincerely,

Aileen M. Hooks Enclosure

cc: Richard Hyde Donald Barar Fred Ganster Christine Graessle Ed Hardy Jennifer Keane

ATTACHMENT

EPA Frisco Neighborhood Soil Survey Summary Sample Collection Dates March 15-16, 2010

Report Date January 20, 2011