Alarm raised over mulch.

Byline: Diane Dietz The Register-Guard

Darold Smith's plan to get rich and retire early has gone very awry, creating headaches - and potentially much worse - for hundreds or even thousands of his fellow Oregonians.

Working at his recycling yard in Springfield, Smith invented a new kind of landscaping mulch. He made it out of a cheap and abundant material: discarded asphalt roofing shingles.

For a while, he seemed a recycling hero. He patented the manufacturing process, franchised the method to a Portland firm and began producing tons of the stuff at his Springfield yard.

Freeway landscapers at the state Department of Transportation loved it. So did the St. Vincent de Paul Society of Lane County, which spread a donated pile around a couple of its affordable-housing projects. Homeowners bought the stuff by the pickup load right out of Smith's 28th Street yard.

Smith's mulch is a loamlike substance about the color of hemlock bark - with this difference: He retailed it for $7.50 a cubic yard, a third of the price of regular bark mulch.

But here's the rub: The shingles are made of a petroleum product that contains cancer-causing substances such as arsenic and benzo(a)pyrene in concentrations usually found only in toxic hot spots at industrial cleanup sites, according to an analysis by the Department of Environmental Quality. The agency has ordered him to stop selling the material to homeowners and businesses.

Smith, 46, says he'll sue the DEQ and resume his sales. But for now, his business is at a standstill. The DEQ has started formal enforcement action against him and levied a hefty fine - though reluctantly.

"He really wanted to do a good job," said DEQ analyst Bob Barrows. "He wanted to do a good thing for the environment and make money. I feel for him. I wish we could make it work out."

Paved with gold

Smith, a third-generation Lane County resident, is a small-businessman with his own firm: Smith's Exterminating Service. But he believes in having many irons in the fire "just to make a living."

It took years for him to hit on the asphalt mulch concept, and when he did, he figured he'd struck gold.

In 1997, Smith started a business, RoofGone, to collect old asphalt roofing shingles that contractors had torn off in the course of their reroofing work. He eventually got a solid waste permit from the DEQ to pile the shingles at his site. He crushed them into small pieces and sold them as a dust suppressant for gravel roads.

He laid this material on roads in Jefferson and Lane counties. But the DEQ in both counties soon heard complaints. Shingle manufacturers put clear plastic strips between shingles so they won't stick together in transit. Smith's grinder loosened the strips. When the crushed material was spread, the strips blew away in the wind.

So what? Smith said - the plastic will degrade. But the DEQ stood its ground: "It doesn't decompose for at least a couple-three years or so. It's a nuisance. People don't want that blowing around," Barrows said.

Smith then toyed with another plan: burning the shingles in a furnace to generate electricity to sell to utilities. But that idea went nowhere.

Then, in spring 2000, Smith stumbled onto what he thought was his winning number. He ground a batch of asphalt shingles without separating them from their old wood roofing subsurface. The material looked just about like landscaping bark.

Smith named it No Spark Bark, got a patent based on the product's ability to resist fire and - with the help of a partner with car sales experience - began laying plans for a national mulch-making empire.

Smith ramped up production at his Springfield plant and sold a franchise to a company called Pacific Land Clearing in Portland, which marketed the product under the name Budget Bark.

Smith and his operating officer, Bill Whitlock, decided they needed a gold-chip testimonial, so they marketed the material to the Department of Transportation. "It's a great feather in your cap as a selling tool," Smith said.

They asked a low price: $1 a cubic yard, compared with the $15 the agency usually had to spend on wood bark. They sold DOT 10,000 cubic yards.

DOT liked it. "It's a great weed barrier," said Dan Goodrich, the agency's Portland-area landscape coordinator. "It's just a nice product."

Smith prepared to launch a line of bagged asphalt mulch to retail at home improvement stores. A University of Oregon business college class agreed to design a national marketing campaign.

"We thought, God, we're going to really be doing the deal here," Smith said.

In Portland, meanwhile, events were afoot to undo Smith's plans.

Henning Larsen, a DEQ hydrogeologist, visited DOT's maintenance yard in Portland to investigate an unrelated concern about ground water contamination.

Coincidentally, DEQ officials say, Larsen is knowledgeable about petroleum contamination. He co-authored the guidelines that staff use on petroleum cleanups statewide. He is a key figure in the ongoing Portland Harbor cleanup.

Gardening was on Larsen's mind the day he first saw Smith's ground cover in a towering mound in the DOT yard. "It looked like some wonderful compost," Larsen said. "It's real dark. You've got that black asphaltic shingle."

But Larsen knew that asphalt is the substance remaining after gasoline and diesel are extracted out of petroleum and it was likely to contain carcinogens. He took a couple of pounds of the mulch. An analysis found that it contained arsenic, zinc, lead and polynuclear aromatic hydrocarbons.

"Many are highly toxic to both humans and aquatic organisms," Larsen wrote in a subsequent report to his agency.

"Wherever you put that material constitutes a cleanup hot spot," he later explained. "In our realm, it would require immediate cleanup. You're going to have to take some action."

Aftermath

The finding was the death knell of the No Spark Bark business, Smith said. Soon, his whole operation began unraveling.

"Once you mention it can possibly give you cancer, it's `game over,' '' he said.

Soon, DOT stopped ordering the mulch. Soon, the DEQ wrote a condition into Smith's solid waste permit that prohibited its sale for home or commercial use. Soon, the agency pressed Smith for a bond or some other financial guarantee to show he could clean up a worst-case environmental mess.

Smith said he began giving the mulch away. To the DEQ's consternation, a sign mounted on the fence in front of the Springfield yard - to this day - reads "Landscape Ground Covers $5 and up per cubic yard," and "Site is Open."

Smith said he doesn't know what people who take the mulch do with it. "I don't really want to know where it goes," he said.

The UO business students dropped out of the project, citing liability issues.

Over the past year, Smith has worked - a lone figure on a front loader - moving about 3,600 tons of No Spark Bark off some adjacent property that he has been renting for $500 a month. He's spreading mounds of it along the railroad tracks behind his property.

He said he owes "an awful lot of money." The business is gone, but the bills keep rolling in.

"I had a good record with everybody until DEQ put the hammer on us. They didn't do much for our credit, I'll tell you that," he said.

In January, the DEQ assessed a $12,855 fine against Smith for a series of violations, including his failure to secure financial assurance to cover a worst-case cleanup.

Smith steadfastly denies the asphalt mulch is harmful, and says he'll prevail against the DEQ.

"You can't come in and just destroy somebody the way they do," he said.

The DEQ is worried about children ingesting dust from the asphalt mulch that has been spread at housing or other sites. But Smith says children aren't likely to eat much. "It's not that palatable. You could put a tablespoon in your mouth but you're not going to get it down."

Some of the carcinogenic substances are the same as those found in barbecued steak, he asserted. "Any of them that you ingest, your body breaks them down," he said.

In the meantime, Smith has a new idea: He wants to grow mushrooms in the mulch and market them as edibles. He got the concept from an article on using mushrooms to clean petroleum-contaminated soil.

MULCH DILEMMA

What should you do if you spread asphalt mulch on your property? Here's the advice of state Department of Environmental Quality officials:

Concerns: Avoid skin contact. Avoid ingesting dust through putting unwashed hands in your mouth. Avoid breathing the mulch dust. The DEQ found high levels of cancer-causing metals and petroleum compounds in samples of the mulch.

Restrictions: The agency has restricted use of the mulch to industrial lands on the theory that exposure there would be shorter in duration - eight hours a day - and remote, such as in a warehouse parking lot. The DEQ has banned the sale of the mulch for residential or commercial purposes. Officials recommend removing the mulch from anywhere children play.

Identification: The mulch looks much like regular bark mulch, but close inspection reveals asphalt pieces.

But isn't it just like shingles on my roof?: No. When the shingles are ground up, the fine material can be washed into water and carried by the wind. People can inhale the dust.

Advice: Homeowners can dispose of the mulch at a landfill, or have it tested to determine the contaminant level.