File Photo
                                ICON Materials begins to remove the stockpiled asphalt millings from the Mileta Pit in November.

File Photo ICON Materials begins to remove the stockpiled asphalt millings from the Mileta Pit in November.

Resolution to millings use involves lawyers, delays

Plans to remove millings from private properties have stalled.

Nearly one year after asphalt millings from the Vashon Highway paving project were stockpiled and spread around the island, the county, project contractor and subcontractor are involving lawyers to reach a resolution, and plans to remove millings from private properties have stalled.

Millings — sometimes called recycled asphalt pavement or RAP — are widely used and have been used on the island in previous years. In the wake of last summer’s paving project, however, county officials said care must be taken with them on Vashon because it is a critical aquifer recharge area. Stockpiling the material is subject to grading and stormwater codes, as well as zoning restrictions. Similarly, private use of millings requires a permit, which King County likely would not approve, and mitigation steps could be extremely expensive, according to Jim Chan, director of the Permitting Division for King County Local Services.

Currently, the county has about a dozen open code enforcement cases against property owners who purchased the millings from paving subcontractor D&R Excavating last summer, and county officials are aware of approximately 20 property owners who have the millings, Chan said last week. On repeated occasions since last fall, Chan has said he expected that Icon Materials, the paving project contractor, would soon submit a plan and obtain a permit to remove the millings on private properties, including at the Wesleyan community, the Eagles and Vashon Island Books, among other places. Recently, however, that plan changed.

In May, the county sent a “notice and order” to both Icon Materials and Doug Hoffmann, owner of D&R Excavating, regarding a stockpile of millings Hoffmann has on his property. Hoffmann and Icon Materials are appealing that order, Chan said. The hearing for that process will likely take place within a couple of months, with the decision appealable in King County Superior Court.

Additionally, Chan said he recently received a letter from Icon Materials stating the company will not take further action on removing millings from private properties unless it loses that appeal. The letter, dated May 30 and written by an attorney for Icon Materials, John Ahlers, also states the company would require compensation for its work in order to move ahead with additional removals. That compensation would include more than $550,000 it spent removing millings from King County’s Mileta Pit near the golf course, Misty Isle Farms and the Williams property south of town. It would also include an estimated $200,000 to remove the millings from Hoffmann’s property and more than $150 to $200 per ton for the remaining properties. The letter also states that Icon Materials does not have the right to enter the Hoffmann property or any other private property, and it would require written confirmation from the county indicating that it has the authority to do so before proceeding.

Previously, Icon Materials had been working with the county to address the millings situation, Chan said, noting that the recent letter marked a shift. The county is now weighing its response.

“We are going to reassess with our legal team as well as the executive [Dow Constantine] and lay out the options moving forward,” he said.

For property owners with open enforcement cases — as well as the 20 property owners who the county has not yet contacted — this means resolving the matter has been placed on hold, at least for the short term.

“At this time, we have decided not to take any further enforcement actions on the cited properties, and we have not cited the ones we have known about,” Chan said. “Until we get further feedback from the executive and our legal team, that status remains the same.”

Last October, the King County prosecutor’s office sent Hoffmann of D&R Excavating a letter, warning of impending action if he did not stop the selling and disposal of millings.

“If you do not clean up all the RAP that you have illegally deposited, you will be financially responsible for the full cost of County abatement activity,” the letter said.

For his part, Hoffmann declined to speak at length, but said he appealed the notice and order because he wants to take the matter outside the Department of Local Services. Additionally, he said he and his attorney hope to meet with the prosecuting attorney’s office soon.

While some people welcomed the opportunity to use the millings on Vashon, others were concerned about issues of water quality. Last summer when this issue first arose, Jim Simmonds, a water quality expert who works for King County, addressed those concerns, saying that from the limited research on the subject and the miles of cracked asphalt roadways across the country, he would not expect that leachate from the millings “would move readily to the aquifers.”

Reached again last week, he said that like creosote pilings, millings continue to leach over time, and that the science is “fuzzy” around how much millings might leach and if that leaching is a problem.

“My gut instinct is that most uses for this kind of stuff is not likely to cause a big environmental problem, which is not the same as I can guarantee that,” he said. “And it isn’t the same as it won’t cause a small environmental problem.”

Studying this issue on Vashon would be costly and require a good study plan, he said, adding that there are reasons beyond water quality to manage millings.

“It is a product that is produced all over the world, and road material management is a big deal,” he said. “What do you do with this material after you are grinding up roads? It is a big waste management issue going on all over the world.”

Meanwhile, property owners who have been cited for unpermitted millings use continue to wait for word from the county on how to proceed. Paul Peretti is the president of the Shawnee Hills Condo Association, located on Wesleyan Way. That community first ordered millings about two years ago from a different millings provider and again bought 30 truckloads last summer from Hoffmann. In the fall, community members received a code violation letter from the county, indicating they would need to respond by the end of November or pay a $700 fee to move forward in the process.

Last week, Peretti said the millings are performing well on the roadway and that the most recent word from a county staff person is that Icon Materials would be in touch with them about future steps.

“We are continuing to wait to hear from someone in a position of authority to tell us what we should be doing,” he said.

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