Tetrachloroethene is a volatile, colorless and sweet-smelling chemical — what environmental engineers call a “sinker,” meaning it sinks more deeply into the soil than most contaminants and is extremely difficult to clean up. The Centers for Disease Control considers it a probable carcinogen and says breathing, drinking or touching it for long periods of time can also cause liver damage, stomach pain and dizziness. Dangerously high concentrations of tetrachloroethene detected in a monitoring well on the former Sayles-Biltmore Bleacheries property have at least one state official concerned about the $50 million Riverbend Shopping Center (which will include a Wal-Mart Supercenter) that JDN Development wants to build on the site.
“Basically, the developer needs [to do] more work there to determine whether the source is on the property or not, the impact on the ground water, and any plans for remediation,” said environmental toxicologist Hanna Assefa of the North Carolina Division of Waste Management, Superfund Section.
Assefa explained that the state can’t currently stop JDN from developing the site, because no one is drinking the water. But she added, “[It] would be in their best interest to resolve these issues [before proceeding],” noting that if the surrounding surface water becomes contaminated during construction, JDN could be held liable. Ground-water cleanup can be expensive and lengthy. “It can take years,” said Assefa, adding that, to date, no surface-water testing has been done at the site.
Just what could JDN’s liability be if contamination spreads as a result of construction of the shopping complex? According to Richard Whisnant — an associate professor of public law and government at the state Institute of Government in Chapel Hill — under North Carolina General Statute 130a-310.7, Inactive Hazardous Sites, a developer who is proven to know about contamination at a site and “does something on the property to make the contamination worse, such as bulldozing and moving contaminated dirt around, … could be held responsible. The state would have the legal hook to force them to do a clean-up.” If a contaminant becomes what Whisnant called “a public-health nuisance or an imminent hazard,” then the state (along with the county health department) would have the legal authority to obtain an injunction to halt construction on the property, he explained. If no public-health threat appears imminent (as could be the case with the Sayles property, since there are no known drinking-water wells on the property), according to Whisnant, “The developer could go ahead and develop the property, and it could sit there for years and nothing would happen. But it could become high-risk later.” If contamination entered the Swannanoa River as a result of the proposed development, Whisnant noted that the developer could be forced to clean up what is known as “illegal discharge,” under state law.
Under questioning at the city’s Technical Review Committee’s public hearing on the project in June, JDN representatives said that the Environmental Protection Agency had “given the site a clean bill of health,” according to Asheville Chief Planner Gerald Green. He said the company had made no mention of a January 2000 letter from Assefa recommending that JDN find the source of the problem and draw up a plan to fix it. City staff, added Green, had no knowledge of either the monitoring-well contamination or the state’s continued involvement with the site until contacted by Xpress in connection with this article. However, Green reported that he is “unaware of any legal requirement that environmental contaminants be divulged by a developer as part of the application process to [obtain the necessary building permits from] the city.”
Harley Dunn, Steve Haney and Bob Jolly are the owners of the Sayles property. Asked about the state’s concerns and the tetrachloroethene tests during an interview at the site on July 20, Dunn maintained, “There’s nothing wrong with the ground water.”
A long and troubled history
The 75-acre property along the Swannanoa River contains some 600,000 square feet of derelict buildings, vacant since the textile-dyeing plant went belly up in January 1991, ending a 69-year presence in Asheville. The closure put 300 people out of work. Since then, the property owners say they have received no reasonable development offers (other than an ill-fated scheme to build a prison there) — until JDN Development jumped in last year. The Atlanta-based JDN essentially does one thing — build Wal-Marts and other large retail stores — and the company has petitioned the city of Asheville for permits to construct a supercenter and accompanying stores (totaling 355,929 square feet), plus the necessary parking spaces and a 13-acre public greenway.
Green says the project has generated more opposition — phone calls, letters, e-mails and faxes — than any other proposed development that Planning Department staff can recall. Much of that opposition has focused on quality-of-life issues affecting the surrounding neighborhoods (such as traffic congestion and the character of the buildings), as well as on JDN’s plan to reconfigure of the floodplain to prepare the site for development.
Meanwhile, letters to the editor decrying the proposed Wal-Mart Supercenter continue to pour into Mountain Xpress and other local publications. Some writers have focused on the toxic chemicals that they believe remain in the soil, ready to be disturbed by bulldozers and graders. Some contend that the property was and still is a federal Superfund site — which is not true. But the EPA did conduct an emergency cleanup there beginning in 1994.
On April 30, 1994, while extinguishing a blaze at the abandoned bleachery, the Asheville Fire Department discovered several hundred drums, vats and laboratory items full of chemicals. An EPA assessment determined that some of the 350 drums found scattered around the property contained various toxic substances, including sodium hydroxide, sulfuric and acetic acid, and tetrachloroethene — commonly used as a commercial solvent to clean and degrease metals, and as a bleaching agent in the dry cleaning process.
Security had been nonexistent at the plant since the shutdown, and vandals had been active there, according to EPA scene coordinator Robert Rosen. “Lab containers have been broken against floors and walls, and many drums have been tipped over and the contents dumped on the floors. Several of the vat lids (metal gratings) had clear sneaker prints on them,” he wrote in a formal report.
Rosen also wrote that site conditions posed “an immediate threat to public health and welfare; the nature of some of the substances at the Site is such that death could occur through accidental exposure.” He initiated an emergency removal, though the property did not meet the standards for designation as a federal Superfund site.
In an EPA memorandum dated June 9, 1998, Rosen reported that the $600,000 cleanup was complete, noting that no contaminants had been found during soil tests. At that time, says Assefa, the EPA turned the Sayles Bleachery situation over to the state Superfund Section, which conducted a single ground-water test.
According to the federal Agency for Toxic Substances and Disease Registry, the safe limit for tetrachloroethene in drinking water is .5 parts per billion. The state test results came in at 7 parts per billion — 14 times the safe limit. That wasn’t enough to make cleaning up the Sayles site a top priority for the state; but Assefa explained that, as funds become available, the problem would likely be addressed by the state Division of Waste Management.
Seeking to clear the site’s environmental record, JDN contacted the Division of Waste Management last year and requested “a no further action,” Assefa continued. The “no further action” determination request, according to Assefa, means that JDN “wanted [the state to issue] a clean ‘bill of health’ for the site. We looked at the files and determined there were outstandng issues they needed to address.” The state directed JDN to conduct another ground-water test, and their independent consultant, Gregory Holton of Tennessee, obtained a tetrachloroethene reading of 4.5 parts per billion in December 1999 — still way over the safe limit, according to Assefa. She explained that, in January 2000, she sent a letter to JDN informing the company that, before proceeding, it should find the source of the pollution and develop a plan for fixing the problem. “We haven’t heard back,” she said.
Muddying the waters
But toxic chemicals aren’t the only problem facing this project.
JDN approached the city about six months ago armed with a plan — already approved by the Federal Emergency Management Agency — to lower the banks of the Swannanoa River by 17 feet in places, creating a retention area as a flood-control measure. (Certain spots downstream from the site, such as Biltmore Village, are prone to flooding.) But to lower the riverbank, according to Green, JDN would need to obtain a variance from the city’s Unified Development Ordinance, which requires a 50-foot buffer to protect natural areas along riverbanks. To obtain such a variance, an applicant must prove either that there isn’t enough space available for construction or that the property has no other reasonable use. But JDN’s proposal doesn’t satisfy those conditions, Green maintained in a July 19 interview, adding that he planned to recommend against granting the variance at the Board of Adjustment’s July 24 public hearing on the project. Green also noted, however, that the company could build a smaller store on the property, and not need a variance.
Mike Parker of the state Department of Environment and Natural Resources, Division of Water Quality, said that JDN would also need permits from both DENR and the U.S. Army Corps of Engineers, in addition to the FEMA approval, before it could alter the river channel. “We haven’t heard anything from [JDN],” said Parker.
At the July 24 hearing, facing a crowd of about 200 and a questionable verdict from the Board of Adjustment, JDN representative Ralph Knauss asked for and was granted a continuance until September.
The next Board of Adjustment meeting is scheduled for late September, and Green said that at that point JDN could either come back with a new plan or scuttle the project altogether.