`How do we deal with this?' State doesn't seem to know.

Byline: The Register-Guard

The state's reaction to the discovery of cancer-causing substances in asphalt-shingle landscaping mulch may seem contradictory and confusing.

The Department of Environmental Quality, for instance, ordered a Portland firm to get rid of a pile of the mulch because officials were concerned that exposure to it is unhealthy for humans and fish.

The state Department of Transportation, meanwhile, obtained its own pile of the asphalt mulch and was spreading it along rights of way, embankments and landscaping in the Portland area.

State agencies have stumbled over the regulation of asphalt mulch almost from the day Eugene resident Darold Smith invented it six years ago.

"How do we deal with this? We never really dealt with it. We don't know how to do something about it," said DEQ analyst Bob Barrows.

The state's regulatory authority is nebulous. The DEQ doesn't believe that it has the authority to rule on the safety of a manufactured product.

However, once the mulch is on the ground and potentially harming people or leaching into waterways and threatening fish, the DEQ can act.

But by then, the damage may be done.

`Once people have purchased this and applied it, then to come back and say, boy, this was a terrible mistake on your part, it's not where (DEQ) wants to regulate,' said Henning Larsen, a DEQ hydrogeologist in Portland.

Tests on samples of the asphalt mulch found arsenic at 42 parts per million. The DEQ's standard for places where people live is 0.4 parts per million, he said.

"This is incompatible with any sort of residential use. It's actually incompatible with any use," Larsen said.

The cleanup on an industrial site with that level of contamination would involve digging up and disposing of the soil in a landfill, or putting a permanent cap over the area.

But regulators are inconsistent on Smith's mulch.

The DEQ in Portland has ordered Pacific Land Clearing to get rid of its mulch stockpile before June 30.

The regional Metro government has ordered it gone even sooner - by April 22.

"We're concerned about it presenting a health risk and we're concerned about it leaching," said Audrey O'Brien, a manager in DEQ's Northwest Regional Office.

But the DEQ in Eugene has not required Smith to get rid of the stockpile at his Springfield plant.

`We're still doing (regulation) step-wise,' Barrows said.

The Q Street Floodway, a salmon-bearing waterway, runs immediately behind Smith's Springfield mulch plant, and regulators are concerned about the material getting into the stream.

A test on similar asphalt mulch in Portland found zinc, copper and lead, which are toxic to fish.

"We're not just talking about fish. We're talking about insects, fresh-water clams, crawfish that occupy the channel sediments of a stream," Larsen said.

Larsen said the state does have the power to order a cleanup.

"It would be the burden of the property owner to clean it up, and not necessarily the producer," Larsen added. "It gets a little nebulous there."

Meanwhile, users are mulling what to do.

The DOT yard in Portland decided last week to stop using the mulch in its yard - after a Register-Guard reporter asked questions about its policies. But crews already had spread the material along Interstate 405 in Portland, on a site next to Clackamas Community College and along the Milwaukee Expressway.

"We're not going to continue to use it, if indeed these hazards are true, which it sounds like they are, obviously," DOT spokesman Shawn Uhlman said.

St. Vincent de Paul Society of Lane County spread an unknown quantity of the mulch 4 1/2 years ago around two of its housing developments, and perhaps at some of its stores as well.

"It has been used. Where? We're not totally sure," said Anne Williams, housing programs manager.

The agency since then has piled wood mulch on top of the asphalt mulch, but is seeking advice from the DEQ.

- By Diane Dietz