Feds Violate State & Local Erosion Laws

Barber’s Orchard in Haywood County was once the state of the art in pesticide technology. It pressure-fed arsenic in underground lines for spraying apple trees. Arsenic was great for exterminating the codling moth until the moth’s resistance became so great, DDT was used instead. All along, the pipelines had been leaking somewhat. So, after both chemicals became banned substances, Barber’s Orchard became a Superfund site.

For just $15 million, the federal government went to work. The rough plan was to haul off the uppermost foot of topsoil and replace it. (Clues about the identity of the unsuspecting NIMBY’s receiving the topsoil are not provided in the Smoky Mountain News article.) As may be expected, the federal government’s cleanup strategies did not comply with state standards. Erosion laws were violated, causing rainwater to wash away soil that could have been contaminated, wounding de-vegetated acres with gullies and ruts.

The EPA went to work about ten years ago, but it wasn’t until last month that “a massive team of state inspectors descended on the site.” Presumably toxic soil had washed into creeks and residential lands, and down at least one well. The problem is attributed to the EPA not presenting a plan for remediation, which would have been a requirement for anybody else.

Much research had to be conducted to come to a legal conclusion about what authority the state had to intervene. Superfund sites are exempt from filing plans with state and local governments. They don’t need to procure permits. The federal government, however, may be held accountable for breaking state laws. The federal government violated state laws mandating that no soil wash off the work site.

The EPA’s approach involved stripping too much land of vegetation at a time. The state would have preferred remediation efforts to strip a small section and let new growth grip the soil before clearing the next section, even though the piecemeal approach is more expensive. Furthermore, the national experts supposed fabric fences and straw bales would provide sufficient stormwater mitigation, when the state requires the construction of sediment basins.

“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,” [Gray Hauser, a sediment specialist with the N.C. Division of Land Quality,] said. The plan would not have met Haywood County’s criteria either, according to Marc Pruett, the Haywood County erosion enforcement officer. . . .

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.

The EPA hit a hidden spring in its excavation during April, which was a rainy month. That caused issues for habitat – including one occupied by humans with the name of Waynesville. Officials dispute whether only new, clean dirt was washed offsite, or contaminated products are making the rounds.