Federal contractors performing a $15 million cleanup of Barber’s Orchard have violated state erosion laws, failing to keep the arsenic-tainted soil from eroding and washing away, according to state environmental inspectors.

The massive operation calls for digging up the top foot of soil from 88 acres, trucking it off and hauling in clean dirt to replace it.

“It’s been something to watch them trying to keep this from washing away,” said Carolyn Large, a homeowner in the Haywood County subdivision, whose view now includes a barren hillside of dirt rutted with gulleys from the rain.

See also: Uphill battle to purge Barber’s Orchard of dirty soil

Trace levels of arsenic in the soil date back to its days as an apple orchard, when pesticides leached into the soil from a system of underground pipes. The Environmental Protection Agency designated it a Superfund site more than a decade ago and is overseeing the cleanup.

“The whole effort is to remediate the site and we don’t want to do more damage by remediating it than it we had left in place,” said Landon Davis, a state groundwater specialist based in Asheville.

A massive team of state inspectors descended on the site last month: officials from both Asheville and Raleigh across three separate branches of the N.C. Department of Environment and Natural Resources.

See also: Is it worth it?

The team of inspectors found sediment had washed into nearby creeks, onto neighbors’ property and even down one woman’s well.

“I’m surprised they don’t have better control of that,” said Tom Beaty, another homeowner in Barber’s Orchard. “With the steepness of the slopes, I don’t know how they are going to do it.”

The contractors fell down in two areas: they not only had an inadequate plan to deal with sediment from the get go, but over-extended themselves by laying bare too much of the mountainside at one time, according to the state environmental agencies.

“Our concerns are that the site did lose sediment to the stream, and it did not appear there were adequate measures in place to prevent that from happening in future rain events,” said Roger Edwards, water quality specialist with the N.C. Division of Water Quality.

The EPA contractor erred by relying solely on rows of fabric silt fences and straw bales, which is hardly adequate when faced with acres and acres of a stripped mountainside, said Gray Hauser, a sediment specialist with the N.C. Division of Land Quality.

The standard practice in mountainous terrain is sediment basins, which act like a retaining pond to catch sediment-laden rainwater running off the site.

The cleanup has three main steps: slash down the trees, dig up the contaminated soil, and bring in new soil.

The contractor moved too rapidly across the mountain, slashing new areas for excavation before old ones were covered back up, according to inspectors.

“Obviously they need to get what they got opened up under control,” Hauser said.

A drive through Barber’s Orchard reveals giant swaths of the mountainside that are slashed and partially excavated, then left exposed. Contractors have more than 45 acres in some stage of active excavation. Only 10 to 15 acres have been finished and covered back up with clean dirt.

“I think what happened is they went too quickly on the work that was being done,” said Nile Testerman, a state environmental engineer who serves as a liaison to the EPA on Superfund projects. “Now they have stepped back.”

Jon Bornholm, the EPA project manager for the site, was a little more forgiving on the subject.

“I think they are feeling that out right now,” Bornholm said when asked about the contractor’s zeal for opening up new areas. As for tempering that zeal?

“They have come to that decision on their own. They are not excavating anymore until they get caught up,” Bornholm said.

State inspectors say they told the contractor as much.

“That was our suggestion, that they stabilize existing areas and not open up more than they can get stabilized and protected,” Edwards said.

The project will cost more if done piecemeal, with smaller sections at a time being worked on, however.

“One issue is the cost of the efficiency of the excavation and backfill. If you do small parcels at a time, the cost will go up,” said Will Smith, the onsite EPA field rep.

The site poses sediment challenges to say the least. The very nature of the job — stripping the top soil from a vast expanse of a steep mountainside — is an erosion nightmare.

“We have lots of exposed areas so when there’s heavy rain, we have lots of erosion,” Bornholm said. “We know there is going to be erosion. It is keeping it contained.”

In one area, contractors hit the groundwater table during excavation, opening up hidden springs.

“They had a steady flow of water over raw earth. It was pushing a lot of sediment off site,” Hauser said.

That was in addition to some major rains in April, one that brought an inch and a half of rain in a day.

Unchecked erosion from Barber’s Orchard heads downhill into Richland Creek, which then runs through the heart of Waynesville.

“If you have that long enough you will have deposition of sediment in that creek and that’s not good for habitat. Even if it is clean soil. But worse yet is runoff from Orchard soil, that is a big concern,” said Landon Davis, a groundwater specialist with the state Aquifer Protection agency.

Smith said none of the contaminated soil has washed away. He said erosion was limited to areas already covered over with clean dirt.

However, Hauser said sediment has washed off all portions of the project — including areas where contaminated soil was actively being excavated.

Who has authority?

State inspectors weren’t sure at first how much authority they had.

“I spent a good bit of time trying to research what our options are,” Hauser said.

“This is unique situation,” Edwards said.

As a federal Superfund site, the project is exempt from filing a sediment and erosion control plan with either the county or state. It isn’t exempt from state erosion laws, however.

“We don’t have to get the permits, but we have to meet the substantive requirements, which means control the runoff as best as you can,” Bornholm said.

State law dictates that no soil is supposed to leave the site.

Without a plan, sediment officers don’t know until after it is too late whether a site may be destined for erosion problems. The beauty of crafting a sediment plan is feedback from state inspectors.

“One of the main standards of the sediment and erosion control program is to develop a plan before you start and follow the plan,” said Hauser. “The Superfund activities don’t have to have a plan and that makes it very difficult.”

EPA’s Bornholm countered that the contractor did write a sediment and erosion control plan before they started. However, it was only a rough outline of their intention to use straw bales and silt fences. There were no maps showing the streams or the land’s contour, no diagrams of where erosion safeguards should go, and no calculations of how many it would take.

The state also never got a chance to see the contractor’s outline before work started.

“We never approve a sediment and erosion control plan in the state of North Carolina that uses straw bales as their primary means of control,” Hauser said.

The plan would not have met Haywood County’s criteria either, according to Marc Pruett, the Haywood County erosion enforcement officer.

Some Superfund projects get sediment and erosion permits even though they don’t have to, Testerman said. The reason not to — and why sites are exempt in the first place — is usually one of timing, Testerman said.

“When we get ready to clean up these sites, we don’t want the administrative process to hold up the work,” Testerman said.

In this case, time wasn’t exactly of essence, as it might be with a highway chemical spill.

Going forward, Hauser has called on the contractor to do proper sediment plans for each area.

“They were going to develop little plans in-house on each section before they open it up rather than it being an ad hoc process,” Hauser said.

Meanwhile, the Division of Water Quality has asked the EPA contractor to bring in an environmental consultant to delineate the streams, assess negative impacts and come up with a plan to restore them, but that is secondary to stemming the tide of sediment loss from the slopes.

“There is no point in cleaning up the streams until the site is stabilized,” Edwards said.

The contractor was also asked to change its approach for establishing ground covering, by placing netting over seeded areas to keep the seed from washing away until it can get established.

State erosion inspectors still have authority to inspect the site and issue violations and fines. At this stage, no one has issued a formal violation, although Hauser said if it was any other contractor they would have.

“I think they will follow our suggestions. I do believe the contractors are willing to follow our recommendations,” Edwards said.

One orchard’s journey from cutting edge to Superfund

While today people might curse the pollution it caused, the underground pesticide system at Barber’s Orchard was on the cutting edge of agriculture for its time.

A network of underground pipes carried pesticides through the orchard to a series of above ground nozzles. The pressurized system was easily activated, requiring little labor to spray the hillsides of apple trees.

The system was revolutionary. There was only one other system like it, at the Francis Farm apple orchard, also in Haywood County.

“Both of these men were icons of local agriculture,” said Landon Davis, a groundwater specialist with the N.C. Department of Environment and Natural Resources in Raleigh.

The downside is that the underground pipes leaked. Barber’s Orchard had a long run — from 1908 to 1988. In its early years, arsenic was an acceptable pesticide used against the codling moth, a major enemy of apple farmers. But the codling moth eventually developed a resistance to arsenic pesticides, requiring more and more of it to get the job done.

In the 1940s, arsenic was replaced with the equally bad DDT — which is now banned as well.

The orchard posed a perfect storm: heavy and prolonged pesticide use of both arsenic and DDT being delivered by pressurized underground pipes that leaked, Davis said.

“This is the only site like this in the country,” Davis said.

Six years after the Environmental Protection Agency said it would cart away the arsenic-tainted topsoil from Haywood County’s Barber’s Orchard subdivision, the trucks are set to begin hauling out the contaminated earth by this December.

The site, once an apple orchard, is now a residential neighborhood and an EPA-designated Superfund site. It was the scene of an emergency clean-up effort in the late 1990s when it was discovered that hazardous pesticides pumped through the orchard’s underground irrigation network had, over time, seeped through rusty, unstable pipes and into soil and groundwater.

The EPA is now mobilizing to clear up contamination that’s still lingering in much of the soil in the subdivision, but the groundwater cleanup won’t be part of the effort.

“We are removing the top foot of soil from the areas that are contaminated,” said Jon Bornholm, the EPA Project Manager that’s in charge of the cleanup. “That encompasses about 80 acres.”

The quandary surrounding where to put the polluted soil, however, remains unresolved. When the EPA handed down its decision in 2004, saying that the dirty dirt must go, the issue of exactly where it must go to became a bone of contention in the county.

The suggestion to dump it into the county’s White Oak landfill drew ire from then-county manager Jack Horton, who contended that taking on the bad soil would be too costly and use too much room in the small landfill.

“There’s so much dirt that has to be taken out of Barber’s Orchard, that it would completely fill up our existing cell. What would we do with our garbage then?” he said.

At the time, some Barber’s Orchard residents favored the plan because it was predicted to cut the cleanup time — which was projected to be around 10 years — nearly in half, and many property owners were less-than-pleased with the prospect of sitting on virtually useless property for a decade.

But now, according to Bornholm, the project is slated for completion in September 2011, whether or not the waste is dumped in or out of the county.

“All of it is to be disposed of offsite and those offsite options are still being evaluated,” said Bornholm. “We’re looking at some of the local landfills, and if we can’t find a nearby landfill, then our fallback position is to take it to the Republic landfill in South Carolina.”

Republic, a sanitation company that has placed a bid to take over operations at Haywood County’s White Oak landfill, operates a mega-landfill in Lee County, S.C., that accepts waste from around the nation.

Bornholm said once the operation ramps up in earnest, workers will be at the site 10 hours a day, Monday through Friday and at least half a day each Saturday until the job is complete. The EPA estimates around 127,374 cubic yards of contaminated soil will be trucked away.

While most sites will only have the top foot skimmed off, the 16 sites that showed contamination below the one-foot mark will have two feet of soil excavated.

Altogether, the former orchard site encompasses 438 acres in Waynesville that was sliced up and sold piecemeal after the orchard went bankrupt in 1988.

The groundwater contamination that was a result of the same leaky pipes, Bornholm said, was part of a separate EPA case and no verdict has yet come down on what should be done to remedy the issue. A decision is expected by September of next year.

Preliminary work is currently underway to prepare the site for the 100 to 120 trucks that will be rolling through the facility daily during the cleanup.

Advocates for a cleaner Pigeon River have filed a formal challenge against a state water pollution permit for the Canton paper mill that was renewed this summer. They allege that Evergreen Packaging can well afford to be held to stricter environmental standards.

Though the Environmental Protection Agency took a rare step in demanding stricter standards from the N.C. Division of Water Quality, some say the federal agency did not go far enough.

“We really wish they had pushed the envelope even further,” said Hope Taylor, executive director of Clean Water for North Carolina. “We felt they had strong grounds to be able to do so.”

The advocates’ objections are many, but their two chief complaints are that the permit doesn’t adequately regulate the temperature and the color of the water discharged from the Canton paper mill into the Pigeon River.

The paper mill draws roughly 29 million gallons a day out of the river and uses it in myriad aspects of the paper making process — from cooling coal-fired boilers to flushing chemicals through wood pulp  — before returning it to the river.

“Citizens downstream from the plant are being deprived of high quality recreational experiences as well as a healthy environment to develop their businesses and raise their families,” said Iliff McMahan, Jr., Mayor of Cocke County, Tenn., in a statement.

Mike Cohen, a spokesman for Evergreen, said the company has no public comment about the appeal that was filed.  

Sergei Chernikov, the state environmental engineer who was charged with writing the permit, said he, too, could not comment.

Jamie Kritzer, a spokesman for the N.C. Department of Environment and Natural Resources, confirmed the agency had received the petition last week.

“We haven’t had an opportunity to review the specific comments made in the challenge,” said Kritzer. “Challenges like this are very much a part of the process.”

The mill must renew its water pollution permit every five years. The state imposes tougher limits on the mill every time the permit comes up, and as a result, the Pigeon River has made a dramatic turnaround in water quality.

During the 1990s, the mill embarked on a $300 million environmental overhaul, spurred partly by lawsuits. Fish consumption advisories for every species in the Pigeon have now been lifted due to the major reduction of chemicals. The better water quality gets, the tougher it gets to make additional incremental improvements, however.

As for the next step, a formal hearing akin to a court proceeding will be held by the N.C. Office of Administrative Hearings, likely three to four months from now. In the meantime, all parties will be allowed to file more detailed pre-hearing statements, which will include facts that will be used to determine the case. The current permit will remain in effect unless it is overturned.

Opponents line up

The Southern Environmental Law Center will argue the appeal on behalf of Clean Water Expected for East Tennessee, Clean Water for North Carolina, Cocke County, Tenn.; the Tennessee Chapter of the Sierra Club, Tennessee Conservation Voters, Tennessee Scenic Rivers Association and Western North Carolina Alliance.

The sheer number of groups that have signed on is telling, according to Hartwell Carson, French Broad Riverkeeper for the Western North Carolina Alliance.

“This is a big deal,” said Carson “ You have county government, you have environmental groups, you have rafting folks. It’s a pretty broad spectrum.”

In filing the challenge, the groups cited a 2007 incident in which hot water discharged from the mill killed more than 8,000 fish. That occurrence did not count as a violation of the mill’s permit, which measures compliance based on a monthly average. The spike, while deadly to fish, did not bump the mill to more than the monthly temperature requirements.

For Carson, the new permit still has no safeguards to prevent a similar occurrence in the future.

It allows Evergreen Packaging to raise the water temperature in the river by a monthly average of 8.5 degrees Celsius when comparing the water upstream of the mill to that downstream.

The state’s proposed permit would have allowed the water temperature to be increased by 13 degrees – instead of only 8.5 if the EPA hadn’t intervened. Also, the state’s draft permit didn’t require sampling of fish tissue for dioxins, cancer causing chemicals.

For Carson, having a daily — not monthly — limit for how much the mill’s discharge raises the temperature of the river is the only answer.

Opponents also point out that the temperature gauge is located nearly half a mile downstream from the mill. That gives the discharge a long distance to mix with the cooler water before being monitored, essentially sacrificing the stretch of river in between.

“It’s far too weak to protect the fisheries in this area,” said Taylor.

Another issue is the amount of color allowed by the latest permit. Color is measured in pounds of discharge per year. The new state permit allows Evergreen Packaging to dump 38,020 pounds per day. Four years from now, Evergreen will be required to reduce that figure to reach between 32,000 and 36,000 pounds of color per day. While it is less that what was allowed under the old permit, the mill had already reduced color to those levels.

“This is right around what they have been discharging anyway,” D.J. Gerken, senior attorney with the Southern Environmental Law Center. “It’s not tightening down at all.”

Threat to jobs?

Many in Haywood County have stood up for the mill, arguing that stricter environmental regulations might put the paper mill out of business and deal a massive blow to its workers along with the local economy.

Haywood County commissioners approved a resolution in support of the mill and against the EPA’s objections in March. The resolution first cited that the mill currently employs more than 1,000 area residents.

Commissioners said they supported the state in saying that the color standard is purely “an aesthetics concern and not based on scientific evidence.” They pointed out that 22 other states have similar effluent color standards as North Carolina.

“The [EPA’s] proposed color limit requirements appear to single out Evergreen Packaging without the benefit of support from scientific data,” the resolution said.

Disagreeing with the economic argument, however, Taylor alleges that the Canton paper mill even has a chance of saving money by using more efficient methods that also decrease pollution.

“The mill has available affordable technology that are no threat to the mill or jobs,” said Taylor.

Taylor said she was confident that the current permit requires “significantly less” than what is reasonable and best available technology would require, which is precisely what the Clean Water Act calls for.

“The permit limit is so weak,” said Taylor. “It doesn’t require significant progress at all.”

Limit prior to 2008: .08 parts per million

New limit set in 2008: .075 parts per million

New limit pending in 2010: Between .06 and .07 parts per million

How WNC stacks up

Ozone levels have improved gradually in WNC over the past 10 years. They can vary widely from year to year depending on weather, however. Wetter and cooler summers see fewer bad ozone days that hotter, drier ones.

To determine whether WNC meets the new ozone limits, an average of three years worth of ozone readings — from 2008 through 2010 — will be used.

Here’s the levels for ozone monitoring stations in the region based on the three-year average from 2007-2009. Ozone is worse at higher elevations and surprisingly consistant across the mountains.

Waynesville    .068 parts per million

Bryson City    .064 parts per million

Asheville    .069 parts per million

High elevation sites

Purchase Knob    .074 parts per million

(near Hemphill Knob above Jonathan Creek in Haywood County)

Frying Pan    .074 parts per million

(near Mount Pisgah off the Blue Ridge Parkway in Haywood County)

Mount Mitchell    .074 parts per million

(highest elevation on the east coast)

• A monitoring station has been recently installed on Barnet Knob on Cherokee Indian Reservation and will be providing data this year.

New federal standards for ozone will be issued by year’s end, and the verdict will determine whether Western North Carolina is out of compliance with air quality.

Western North Carolina likely can’t fix its air quality problem alone. Charlotte, Knoxville and Atlanta are all out of compliance under current ozone limits, let alone the more rigorous ones that are pending. Smog is carried from these metropolitan areas into the mountains.

In addition, antiquated, dirty coal plants operated by Tennessee Valley Authority from Ohio to Tennessee to Alabama send pollution this way.

“Is there enough we could do in North Carolina to achieve the standards?” asked Paul Muller, regional supervisor for the N.C. Division of Air Quality in Asheville.

Probably not, he said. But since WNC won’t be alone in its violation of ozone standards, a multi-state approach will be inevitable.

“Knoxville has a problem. Atlanta has a problem. So they are going to have to be making reductions as well,” Muller said.

Ozone levels have declined over the past decade, proving that tailpipe regulations and new emissions standards gradually being imposed on coal plants can work, according to Muller.

“How do we keep getting cleaner so we can meet the tighter standards?” Muller said. “In a lot of ways we depend on the federal government to put in reduction programs that will affect a larger area.”

But attempts to impose tougher pollution limits on coal plants have met resistance in court. The benefits that would otherwise be realized by new regulations are taking longer, Muller said.

While it is easy to point fingers at dirty coal plants or wafting smog from urban centers, it will ultimately take everyone working together to improve air quality — including steps by everyone living in the region.

“Air quality is impacting our health our environment and our economy,” said Bill Eaker, environmental specialist with Land of the Sky Regional Council. “We are going to have to take action to reduce energy consumption and reduce fuel use for our cars and vehicles.”

Ozone, which is the main ingredient in smog, is worse in the summer. The Land of the Sky Regional Council hosted an ozone season press conference last week, as it does every year at the outset of the ozone season. Speakers at the event educate the press on the latest air pollution rules, tout success stories and share various initiatives underway throughout the region to improve air quality.

Limit in flux

An ozone standard is set by the Environmental Protection Agency every five years. New limits came out in 2008, but have been in flux ever since, due both to lawsuits and a shift in policy from the Bush to Obama administration.

When reviewing the ozone standard, the EPA relies on a panel of scientists to recommend a safe limit both for human health and the environment. But in 2008, the EPA bucked the scientists and instead settled on a slightly laxer number.

“This was a big deal because EPA usually takes the advice of its science committee,” according to Vicki Sandiford, an air quality specialist with the EPA in Raleigh. “The law requires EPA to explain in a rational way why it chose not to follow the recommendation of its science advisers.”

Apparently, the explanation was lacking, since lawsuits by environmental groups promptly followed. The scientists on the panel even weighed in expressing anger that their advice was not followed.

When Obama took office, he appointed a new EPA director, and a policy shift followed suit.

“It is the goal of this administration to have science in the forefront of the regulations it considers,” Sandiford said.

So it was back to the drawing board. The new ozone standards will be announced by August (see box).

There are 1,200 ozone monitors in the United States, mostly in urban areas. The EPA wants to see 270 new monitors installed throughout the country.

With many areas in violation of the old ozone limits, it is unclear how quickly even tougher limits will be complied with. Charlotte has been in violation of federal ozone standards since 1997. Why such a long leash to meet the standards?

“Partly because of the difficulty for many areas in meeting the standard,” Sandiford said. “They want to give area time to put programs in place and see the results it keeps it from being so burdensome.”

Ozone forecast

To get your ozone forecast, go to ncair.org. Click on “air quality forecast.”

A water pollution permit for the Canton paper mill has come under fire by the Environmental Protection Agency.

The pollution permit is up for a periodic review by the state. The EPA isn’t pleased with the standards the state has proposed and is calling for tougher limits.

If the state doesn’t ratchet up the controls, the EPA has threatened to step in and handle the permit itself. The EPA gave the state 90 days to respond with a rewritten permit. Such intervention is rare.

The state environmental engineer who wrote the draft permit was barred from speaking to the press after making controversial comments to other newspapers last week. Sergei Chernikov told media outlets that the standards suggested by EPA would come with astronomical costs that are financially out of reach for Evergreen Packaging. He also defended the mill and spoke out against the tougher requirements being sought by EPA. After the comments appeared in print, the Division of Water Quality press office took over media inquiries related to the EPA intervention.

“The information Sergei expressed was the information he had when he designed the draft permits. But we have other information being evaluated,” said Susan Massengale, public information officer for the Division of Water Quality. “It is a much bigger picture.”

Three hearing officers will ultimately decide on how stringent the state permit is, not the engineer who wrote the draft permit. The suggested limits in the draft permit are only part of what the hearing officers will consider when making a final decision, Massengale said.

They will take into account numerous comments from the public input period, from environmental groups to mill supporters. The EPA falls in that category as well, Massengale said.

“It has submitted its comments for this process the same as any other commenter,” Massengale said.

But unlike the other commenters, the EPA carries regulatory weight and can mandate pollution limits by taking over the permit.

Massengale would not comment on what limits the EPA wants tightened up.

“I am not going to parse the language. That is up to the hearing officers,” Massengale said.

To Hope Taylor, executive director of Clean Water for NC, the EPA recommendations don’t go far enough.

“If you were going to bother objecting to the permit, why not do so in a way that could accomplish a lot more?” Taylor said

For example, the color limit recommended by the EPA of 36,000 pounds a day is only 1,000 pounds less than what the mill is discharging now. And while the EPA is taking a tougher stance on temperature, it would only look at monthly averages, which does nothing to rein in spikes of hot discharges that can lead to fish kills, Taylor said.

During the 1990s, the mill embarked on a $330 million environmental overhaul, spurred partly by expensive lawsuits. Environmentalists and downstream communities want the mill to make further improvements. But instead, it seems progress has plateaued.

As for Evergreen Packaging, they released a written statement about the news saying that the EPA comments were part of the permit process, which is designed to consider all voices and viewpoints.

“We look forward to continuing to work with regulators on finalizing a permit to continue the progress that has been made,” the statement read.

What the EPA wants

Evergreen paper mill in Canton sucks roughly 29 million gallons a day out of the river and uses it in myriad aspects of the paper making process — from cooling coal-fired boilers to flushing chemicals through wood pulp — and then dumps it back in the river again.

The EPA wants the mill to reduce the dark color of its discharges slightly beyond what the state is calling for and wants to see a study of color going into the Pigeon River. The state was willing to reclassify the mill as being in compliance with the state’s color standards and no longer in need of a color pollution variance, but the EPA maintains that the mill should not come out from under the oversight of a color variance.

The water the mill puts back in the river is much hotter than the river’s natural temperature. The EPA also wants tougher limits on the temperature than the state asked for.

The state also was willing to drop testing of fish tissue for dioxins, since there is no longer a warning against eating any of the fish species from the Pigeon. But the EPA still wants to see testing every other year. The state proposed monitoring dioxin discharges based on a monthly average, but the EPA wants a maximum daily limit imposed as well. The EPA also called for more monitoring in several areas the state was willing to overlook.

Jackson County’s Green Energy Park has received the Environmental Protection Agency’s Project of the Year award, giving the one-of-a-kind methane gas recovery project some much deserved recognition.