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I would rather have No field than a Brownfield
By Mike Crump
9-15-2008
Just when you think things could not get any worse for the residents of HuttoParke. A recent discovery of VCP (voluntary clean up project 1398) sites for HuttoParke and Hutto Square have been discovered by the residents of Lennar-built homes in Hutto Parke. Documents cataloging arsenic levels in the soil exceeding the safe residential limits in HuttoParke and Hutto Square have been obtained by residents and many in the community are questioning why this information was not disclosed prior to purchasing their homes.


The National Association of Home Builders has lobbied in Washington D.C. to change the law so that it's easier to build houses on polluted land (Brownfield sites). The theory is that builders will act responsibly and thoroughly clean the contamination first. The legislation is known as Brownfield Legislation and it essentially releases builders from liability or duty to disclose. Do we really trust the building industry to oversee clean up of polluted land and be honest with homebuyers when the law isn't going to hold them accountable if they don't? The honor system often fails with "honorable" people, let alone with an industry that has a huge history of problems with construction defects, worthless warranties, arbitration, etc.

How it all Began

In July of 2001, an ESA (Environmental Site Assessment) was prepared for First American Bank (SSB project number 96017324) where an identified arsenic-based defoliant used for cotton harvesting on the 460 acre site (GPS for center of site) was discovered in the soil. The findings, conclusions, and recommendations can be read Here.

According to VCP 1398, an arsenic-based defoliant was used on the cotton for the purpose of defoliation from the early 1920’s to the early 1990’s.

For decades, local farmers have used the land under the homes of HuttoParke / Hutto Square and the surrounding acreage for agricultural purposes. Arsenic defoliant was used on the crops for the purpose of harvest. Typically, the defoliants were applied using an open sprayer system hitched to the back of a tractor.

Hutto Development LTD contracted Russell Ford from Terracon Engineering, a division of HBC Engineering, to conduct a limited subsurface investigation in September 2001. Mr. Ford found levels of arsenic that exceeded residential limits in the soil. As required to protect the environment and to develop the land for residential purposes, Hutto Development LTD entered into a VCP (voluntary cleanup procedure) in October of 2001. Russell Ford later confirmed the high levels at a June 5, 2008 Hutto City council meeting. You can listen to Mr. Ford's statement to the city here:

Player not working? Not hearing the entire clip? Right click and "save target as" Download the audio.

The Value of 10

The initial Soil Assessment was based on a 10-acre grid according to the site analysis.

As a part of the VCP program, certain criteria must be met to continue with the program. Details about the discoveries in the survey are required under TNRCC rules and regulations. A letter dated November 8, 2002 from Stuart Goldsmith (project manager remediation division TCEQ) states that “It is not clear that a sample collected to represent a 10 acre grid will provide sufficient predictive information regarding concentration of arsenic over any 1/8 acre exposure area." You will also see in the last paragraph, the TCEQ states that Hutto Development LTD "must" respond to the questions asked by December 21, 2002.

It is noted that as of March 25, 2003, Hutto Development LTD has yet to fulfill the TCEQ's request to answer the key questions asked in the March 25, 2003 document. To date, we cannot find any documentation recorded by the TCEQ that these specific questions were ever answered.

Texas Administrative Code 350.51 (l) (3) states, "The soil exposure area for existing residential yards or platted residential properties shall not exceed 1/8th acre or the size of the front or back yard of the affected residential lot, unless it is demonstrated that a larger area, not to exceed 1/2 acre, is appropriate based upon the activity patterns of residents at a specific affected property".

Why is grid size information so vital? Let's look at this statistically.

Statistics

Using a 10-acre grid would give you 46 samples for 460 acres. 3 of the 46 samples tested hot for contamination of arsenic, (which reflects 6.5% of the total samples) how many contaminated acres of the 10 acre grid where missed? In total, remediation was performed on 10 acres contaminated with high levels of arsenic based on the Certificate of Completions. 10 acres reflects 2% of the total 460 acre area. Note: these figures have been rounded up in favor of the developer and for ease of argument. Statistically you can debate two thirds of the total 6.5% contaminated land was missed because only 2% of the total area of land was remediated. What does this mean? It means possibly more than 66% of the contaminated land may have been missed by using a 10 acre grid for locating contaminated soils.

More math fun

If using a 4” bore for taking soil samples, mathematically it is possible to have 3,841,990 clean samples before hitting your first dirty sample based on a 2% contaminated area within 10 acres.
Hutto Development LTD's initial tests resulted in 3 dirty samples based on a 10 acre grid mathematically totaling 46 samples in a 460 acre range. Getting worried?

It's all about the Location, Location, Location

In a letter dated December 8, 2001 from Hutto Development LTD to Chuck Epperson (section manager at the Texas Natural Resource Conservation Commission), John Lloyd states, “Hutto Development has contracted to sell 610 lots to Hammond Homes and Clark Wilson Homes. The first phase of 192 lots is final platted and streets and utilities are under construction. While none of the work in progress actually encroaches on the contaminated areas, some parts of the lots themselves do touch them.” Hammond Homes was bought by Meritage and Clark Wilson Homes is now owned by Capital Pacific Homes. Hutto Towne Square currently has homes featured by Capital Pacific Homes Meritage / Legacy homes and D.R. Horton.

An email from Stuart Goldsmith, a Geologist that works within the TCEQ Remediation Division, describes the HuttoParke area that has been identified in VCP 1398 as the Western end of Almquist.

"There were three locations within the original 460 acre site where excavations took place in May-June 2002 to remove soils that exceeded the residential cleanup standards. These locations were surveyed and the surveys are attached to the Certificates of Completion (see attached VCP1398COCpackage.pdf). It is probably a little difficult to visualize the location of Area A, since the roads are not marked on the survey. It is at the western end of Almquist Street. It may help to look at the satellite photos on Yahoo maps, which appears to show the area before Almquist extended that far. You can see the outline of the excavated area. Google Earth has a later photo, where the outline is not quite as clear."

Area "A" HuttoParke
 

In an effort to verify Goldsmith's references and accuracy we took it a little bit further than just relying on his memory and satellite photos. We referenced the surveys and parcel maps with professionals to verify the affected area within HuttoParke. We then used a little bit of animation to make the picture a little clearer. Click here to view the Animation.

Area "B,C" Hutto Square
 
Here we can see an Animation we created in an effort to define the presumed Hutto Square affected area.
Disclaimer: Location shown may not be the exact location of the remediation site.

The trail of FACTS

A voluntary cleanup procedure (VCP) for site remediation was implemented for the area but the extent and final levels are in question. While the goal of remedial planning is to expedite remediation without ignoring the risk to public health and the environment, the elements of cost and time to implement remediation represent two major barriers to site remediation planning.

Developers receive tax credits and liability exemptions for participating in Brownfield projects (VCP's) and the Texas Commission for Environmental Quality allows this to be performed on an honor system, as per an email from Stuart Goldsmith (TCEQ geologist) on July 25, 2008. Goldsmith confirms, "The program relies on the contractors/consultants for the VCP applicant to accurately report on the property and response actions."

According to this document 2008042043 the VCP area described was released for residential purposes via the TRRP guidelines.

In the previous sound clip, Russell Ford from Terracon Engineering, a division of HBC Engineering, acknowledges the maximum safe residential human exposure limit of 24 parts per million for arsenic and shortly after recites HuttoParke’s history of arsenic levels of 100-115 parts per million. (Close to five times the residential exposure limits!)

Note: Not one sample result listed in the lab results breached the mid 90's ppm measurement.

Lab Results

DHL Analytical 8-1-03

Collection date (June 30, 2003) areas A, B, C

DHL Analytical 8-22-03 Well Tests
Page 3 (Custody Seals not present on bottles or shipping container)
Page 18 (Case Narrative)

Pace Analytical: We could not reproduce the Pace Analytical lab results without the permission of Pace Analytical, which we do not have at this time.

Xenco 4-2002

Xenco 7-2002

Facts:

• As of September 10, 2008, the TCEQ database lists the VCP 1398 site as 460 acres and not 3 small parcels of land. vcpdb.zip Excel spreadsheet line 1300.
• The Certificate of Completion for a portion of HuttoParke was executed November 1, 2004.
• The deed notice was originally issued with NO property description in October 20, 2004 in document number 2004081998. Then in November 8, 2005 in document number 2005089359 incorrect exhibits were attached. Then, on May 12, 2008, in document number 2008042043 the deed notice was re-filed.
• Anyone doing due diligence before purchasing property in HuttoParke would never have found the original deed notice in the public records since the property description was not attached.
• There are no footprints or disturbances noticeable in satellite imagery of the soil disposal area defined as behind Regions Bank.
• The TCEQ relies on the contractors/consultants for the VCP applicant to accurately report on the property and response actions.
• Initial Soil Survey finding arsenic contamination consisted of one sample for every ten acres.
• The TCEQ stated that a sample collected to represent a ten (10) acre grid will not provide sufficient predictive information regarding concentrations of arsenic over any one 1/8 acre exposure area. November 8, 2002.
• The date TCEQ requests a letter to dismiss or pursue the VCP program and responses concerning the questions asked in the November 8, 2002 document is the exact same day Lennar was deeded lots out of HuttoParke Section 1. Deed to Lennar March 28, 2003 2003027850.
• Soil samples were still being collected in June of 2003.
• The voluntary cleanup Certificate of Completion was issued on November 1, 2004, well after Lennar started building in HuttoParke.

The Disposal Area

The VCP site COC states the HuttoParke area alone consisted of 5.01 acres. Minimal tier one excavation at just 1 foot would remove over 217,800 cubic feet of soil. It should be noted that tier two soil scraping took place due to lab results still being over residential safe limits of arsenic. This is just one of 3 sites remediated. If the excavations took place in May-June 2002 to remove soils that exceeded the residential cleanup standards (as stated in Goldsmith's email), logic would predict the activity would have left a visible foot print on the earth. Where is the visible location of this soil when relocated behind Regions Bank as stated in this map?

Disposal area 1 "Regions Bank"

Here is satellite imagery of the Regions Bank location as described in the above map for reference of the bank and the surrounding property.

Here is a view from the year 2000 before any relocation of soil was moved to this location.

Here is another image from 2001 before any soil had been moved.

Now please reference back to Mr. Goldsmith's email where he asserts "There were three locations within the original 460 acre site where excavations took place in May-June 2002 to remove soils that exceeded the residential cleanup standards. Also look at this DOC of chronological events pulled from the TCEQ file. Notice the initial remediation began in March and the additional remediation was performed in May-June. Now look at the following images.

Here is a photo from 2003 of the land around Regions Bank after the disposal took place. You can see there is no visible evidence of any activity foot print from satellite imagery.
 

12-17-2003 photo of the HuttoParke VCP site. (notice there is no visible foot print)

3-1-2004 photo of the HuttoParke VCP site. (notice the activity foot print)

3-1-2004 photo of Regions Bank. (notice there is no visible foot print after activity "is" visible in HuttoParke)

Disposal area 2 "W. Live Oak St."
An email from Stuart Goldsmith (July 25, 2008) states some of the excavated soil was removed from the disposal site and placed at the end of Live Oak St. "My understanding is that some soil had been excavated from the location where the excavated soils were placed. Again, the excavated soils were to be relocated to a 2 acre portion of the property at the end of W. Live Oak St."

If you look at the first photo we have identified Live Oak St on November 1, 2000, before any soil was moved to the secondary disposal area. The second photo in the line up is from December 1, 2001, and the third photo is from December 17, 2003. The fourth photo is from March 1, 2004, and the fifth photo is from November 27, 2004. If the disposal site was moved during this time frame then logically you would see some kind of activity, whether it be tracks or new soil foot prints. From these photos we cannot see either.

    

In Closure

To date, many residents are still experiencing problems with their Lennar-built homes in HuttoParke, alleging expansive soils and shoddy workmanship. Numerous residents are appalled to learn that Lennar can allude to "clerical error" when it comes to checking the "NO" boxes on the HUD Form 92541 used to secure FHA loans without any recourse. HUD Form 92541 specifically asks:

F. Foreseeable Hazards or Adverse Conditions
(2)"Does the site have unstable soils (expansive, collapsible, or erodible)?"

Now after the recent discoveries many more are wondering the same about the following question detailed on the same 92541 form.

E. Toxic Waste Hazards.
"Is the Property within 3000 feet of a dump or landfill, or a site on an EPA Superfund (NPL) list or equivalent State list?

Attachments:
HuttoParke plats
Huttoparke Sec 1 Plat – Document Number 2002095650

Huttoparke Sec 1 Replat - 2003102771

Huttoparke Sec 2 Plat - 2003042784

Huttoparke Sec 3 Plat - 2004005647

Huttoparke Sec 4 Plat - 2004087636

Huttoparke Sec 5 Plat - 2005047026

Huttoparke Sec 6 Plat - 2006019981

Hutto Square plats

Hutto Square Section 1 Plat

Hutto Square Section 2 Plat

Hutto Square Section 3 Plat

lab results

DHL 8-1-03

DHL 8-22-03

We could not reproduce the Pace Analytical lab results without their permission.

Xenco 4-2002

Xenco 7-2002

How can I order copies?
Information requests may be submitted in person, phone, fax, e-mail or regular mail.

* (512) 239-2900

* (512) 239-1850 (fax)

* cfrreq@tceq.state.tx.us

* CFR mailing address is:

Texas Commission on Environmental Quality
ATTN: Central File Room, Mail Code 213
PO Box 13087
Austin, TX 78711-3087

Tell them the Crumps sent you. :)