CTS Superfund site cleanup at crossroads

ASHEVILLE - Cleaning pollutants that have been threatening a South Asheville neighborhood is akin to killing a snake, a federal environmental engineer said in a public meeting last month. Its head must be lopped off to stop the source of the toxin.

Craig Zeller, the Environmental Protection Agency’s project manager for CTS of Asheville, said he believed the company’s proposal to address a one-acre area didn’t go far enough to address the source of trichloroethylene, better known as TCE, in the groundwater table.

To kill the viper and stop the dripping flow of the carcinogenic chemical, Zeller and the EPA are advocating the area expand to 2.5 acres. But other than publicly pressuring CTS Corp. to spend more money to clean up the Superfund site, environmental officials have said little about if and how they might bend the Indiana-based company to their will.

“How much do we want to kick over this apple cart right now and start throwing apples or are we going to take what we can get and fight the battle later?” Zeller asked an audience of about 60 people at a public comment session on CTS cleanup. “That’s the calculus that’s going through our head right now.”

In the long and contentious history of the site, the EPA often has taken to fighting the battle later against CTS, and sometimes not at all. The Superfund site has played host to a revolving door of EPA project managers, but a review of documents and comments indicates the agency may be preparing to take an aggressive position.

Zeller and other EPA officials have declined to discuss what measures they may be taking against CTS, but they have a weapon far more threatening than apples at their disposal. If the agency approves internal funding to throw at the site, it could recoup treble damages, a legal term describing EPA’s ability to recover up to three times its costs on some projects when the responsible party is not cooperative.

Should CTS refuse to expand cleanup, the EPA could act unilaterally, seizing authority to complete the work itself and send CTS a bill for cost of the work multiplied by three. What would likely total about $10 million dollars in costs if CTS controls the jobsite and hires its own contractors could balloon to a future $30 million note to the company if EPA takes over work.

Any expanded remediation would most immediately impact the Rice family, whose property abuts CTS to the east. Springs in their yard are outfitted with a piping system to treat toxic vapors rising from wetlands.

At October’s public meeting, Dot Rice urged Zeller to push for an expanded cleanup sooner and said she’s yet to hear an apology from CTS.

“I am the eastside. I am the springs. And I am not no spring chicken to live and wait for this,” she said. “And I have a family that is sick on that property, as you well know. CTS needs to see the whole corner is cleaned up so we can feel safe in our community. If you don’t want to do that now, buy us out.”

The company, which designs and manufactures electrical components, is traded publicly and reported $90 million in sales in the third quarter of 2015, and had anticipated about $400 million in sales for the year, according to a statement issued last month.

In it, the company’s chief executive said sales volumes were soft and the company with international locations had suffered recently from unfavorable foreign exchange rates. Kieran O’Sullivan also acknowledged the Asheville issue in the document directed at investors.

“We are addressing a legacy environmental issue and working closely with the EPA on remediation, while remaining focused on executing our business strategy,” he wrote. “We expect sequential sales growth in the fourth quarter of 2015.”

The company on Monday announced it had been awarded a contract to supply vehicle pedals to a manufacturer in European and Asian markets. That contract is expected to generate about $23 million in revenues over five years. At the end of October, CTS said it had purchased a startup company that has technology to measure particulate levels in vehicle filters.

Zeller hinted during the meeting, held at Roberson High School, that cash flow of federal dollars to the Superfund site is a priority inside the agency, indicating officials might be gathering money to launch their own cleanup if CTS declines to do so.

“Part of the calculus we’re going through is that if I lawyer up and decide that I’m going to force feed somebody a two-acre thermal treatment remedy, I’d better have some money to back it up,” he said. “Or what I’m going to do is do this community a huge disservice and I just picked a fight with a bunch of lawyers and I don’t have any money to do it. So believe me, there’s a discussion in my building right now and with my state counterparts.”

Zeller, in the meeting, urged the public to weigh in a choice he faces: allow CTS to move forward with a $4 million proposal to clean a one-acre area of underground petroleum and TCE, or follow a course advocated by the EPA, which wants to push the company to add another 1.5 acres that it says would better capture the source of TCE.

Expanding the area would up the costs and nearly guarantees that lawyers with CTS and the EPA will square off, delaying any work, he explained.

The question of which course to take is open for public comment through Nov. 29, and to date the EPA has received about four dozen remarks, most in favor of expanding cleanup. Zeller has called public input a critical component in the process.

Public outcry was recently instrumental on another environmental front. It forced Duke Energy to abandon plans for high-voltage transmission lines and a substation in Campobello, South Carolina, intended to better tie Western North Carolina to the electric grid.

Outrage against the Duke plan came in online comments and letters thousands strong, and not only overwhelmed the energy company, but also public utilities commissions and politicians in both Carolinas.

While the transmission lines threatened to cross communities across the mountains, the impact of the Superfund site is far more modest, limited to the neighborhood surrounding the demolished plant at 235 Mills Gap Road.

Any comment on the Superfund site in supporting the cleanup expansion will almost certainly nudge the EPA to dip into its own wallet, allowing Zeller, as he has stated, to “have some money to back it up.”

A decision about how cleanup will proceed is expected in January.

An attorney for CTS, Dan Harper, declined to comment.

After contention, a concession

CTS pulled operations out of its Asheville plant nearly three decades ago and its nine acres officially became a Superfund site in 2012.

After sitting by in silence for decades as the site drew controversy, CTS officials in the last months have started making tepid community outreach moves, though ones that have been met with skepticism.

At the October meeting, a CTS executive publicly addressed a Buncombe County crowd in person for the first time. Mark Cassens, from the company’s Albuquerque, New Mexico office, said CTS was pleased the EPA has approved its cleanup proposal, one that uses underground electric probes to heat and evaporate contaminants.

Cassens read a statement and left before public comment began, drawing the ire of some residents who wanted to address him directly.

In March, the company launched www.millsgaprealfacts.com, a website that documents CTS activities at the Superfund site, but one that critics say offers a one-sided view of efforts.

Most recently, officials in a posting there indicated the company would examine the expanded clean up area sought by EPA, acknowledging that public opinion called for the larger area.

“CTS will evaluate two techniques for use at the Asheville site as part of a 30-day extension to the public comment period requested by the company,” the post reads. “During the extension, CTS will evaluate and submit to the agency a separate strategy for addressing contamination north of that area, recognizing that a majority of comments received to date have requested that the expanded area be addressed.”

The statement is a rare public concession for a company that, in a review of a decade of work plans and paperwork, has often been unyielding to EPA demands and courted ill will in other filings.

Powered by the influential Chicago-based law firm of Jones Day, which is typically included on filings CTS submits to the EPA, the company won a U.S. Supreme Court case that determined Asheville-area homeowners cannot sue on allegations CTS contaminated drinking water because a state deadline had passed.

Not long before that 2012 high court decision, CTS and EPA began a back and forth on a work plan to study the underground flow of contaminants in the geographically complex site. The subsurface is marked by fractured bedrock at varying depths, layered with soils and a rising and falling water table.

Samantha Urquhart-Foster, then the project manager for the EPA, asked CTS and its environmental contractor to expand an existing work plan that would better capture the flow of TCE. The company refused to complete much of that work.

Among other activities, the federal agency asked for seismic testing that would identify bedrock cracks where the pollutant would flow and an increased number of monitoring wells around two existing wells.

Those existing wells, known as numbers six and seven, lie about 50 feet off Mills Gap Road and readings from them show the highest concentrations of TCE in groundwater at the old plant site, according to the EPA. Levels of TCE there are about 10,000 times the drinking water standard of 5 parts per billion.

Zeller, who became the EPA project manager for the site in January, has said he believes TCE would continue to flow to those wells and off CTS land if the one-acre plan were implemented without expansion.

EPA asked CTS to produce a graphic illustration known as a conceptual site model, which provides an easy-to-read map depicting the area and depth of pollutants. After CTS failed to produce the document after it was requested in 2012, frustrated EPA officials created the rendering themselves, releasing it this past March.

Jones Day, the Chicago law firm, last year also had filed and failed in cease and desist orders against a pair of UNC Asheville professors, who regularly take students to a neighboring property owned by the Rice family to learn about environmental issues in a real-world setting.

One of them, Jeff Wilcox, who teaches hydrology, cultivated a friendship with Dot Rice. EPA officials believe that if the cleanup area is not expanded, TCE will continue to rise from natural springs that surface on her property and an existing PVC piping system on her land that is designed to capture toxic vapors cannot be removed.

Wilcox, in his public comment to the EPA, urged the agency to take control of cleanup now, and let lawyers hash out details later.

“You’ve suggested that you were hesitant to turn down CTS’s proposed one-acre treatment area because it is “better than nothing,” he wrote to Zeller. “The question I would ask is: What if CTS had proposed a ¼-acre treatment area? That would also be better than nothing, but it would also be insufficient. Starting with a one-acre “interim” project might have been fine in 1980, or 1999. But this is 2015, and the source has been allowed to spread for decades.”

Lawsuit delayed

Regardless if this stage of cleanup encompasses one or 2.5 acres of source material, the project is expected include a future phase to address TCE that has leached into bedrock, one that will also likely carry a price tag of millions of dollars.

Buncombe County officials also would like to recoup $2 million for taxpayer-supplied money spent to tear down the old plant building in 2011 and installation of water lines to home in a one-mile radius of the site.

In September of 2014, the seven Buncombe County commissioners voted unanimously to direct the county attorney to pursue legal action against the parties responsible for the contaminants to collect that $2 million.

At the time, Chairman David Gantt said the county would try its best to make CTS pay up and get back taxpayer funds.

A lawsuit, though, has not materialized.

As EPA and CTS wrangle over acreage, Gantt says the county’s top priority regarding the Superfund site is unchanged: foremost, officials want to see toxins addressed for the health of the neighborhood. Laying claim to county expenses is secondary.

A lawsuit would take years to resolve, he added, and while it has not been scrapped, the county is considering less confrontational options. The pullback on litigation has not come at the request of EPA or state officials, Gantt said.

“We are interested in getting our money back,” Gantt said. “We have had conversations and will continue to talk to EPA and the state of North Carolina, which are ultimately responsible for cleaning up and making sure this mess is resolved. So we are looking at all options. We have not filed a lawsuit at this point and we are hopeful that some of the remedies the federal and state governments will include some reimbursement for us.”

Speak up on Superfund

The EPA has approved an interim cleanup proposed by CTS that would address a one-acre area of pollutants, but the agency is also urging the company to take on another 1.5 acres to tackle the source of the pollutant. CTS officials have previously said they believe further testing is needed, but the company is considering the expanded option.

The EPA has extended a public comment period through Nov. 29. Comments may be emailed to the remedial project manager, Craig Zeller, at zeller.craig@epa.gov or mailed to Craig Zeller, U.S. EPA Region 4, Superfund Division – 11th Floor, 61 Forsyth St. SW, Atlanta, GA.