Air-agency hires new attorney and defers a permit approval

“We’ve got to figure out how to push the envelope of our authority,” stressed new board member Richard Maas, as he quizzed the four candidates hoping to replace Billy Clarke as legal counsel to the board of the Western North Carolina Regional Air Pollution Control Agency. “We need a dynamic attorney … not to tell us why we can’t do it, but to tell us how we can.”

The four lawyers were interviewed by the agency board at its Aug. 9 meeting.

“We’ve got to do something about air quality and get this agency more active, more proactive,” Maas told Asheville attorney Jim Siemens during his interview. “What we need is an attorney who can figure out how this can be done.”

“I would love to do that,” Siemens responded.

The other applicants were Asheville lawyers Betty Lawrence, Robert Deutsch and John Tutterow.

In a close vote, the board selected Siemens, who agreed to bill the agency $100 per hour, $25 less per hour than his predecessor.

“It’s been five years since I’ve had my nose in the Clean Air Act,” Siemens allowed, “but I am prepared to get up to speed on my own time.”

Siemens is a 1993 graduate of Tulane University, where he studied pollution control. He has been practicing criminal and domestic law in Asheville since October 1994. He also has worked with the Buncombe County Guardian Ad Litem program, he told the board.

The potential for legal counsel to impact agency deliberations was highlighted at one point in the meeting, when Haywood County board appointee Tom Rhodarmer commented on the amount of pollution emanating from “tourists who come with automobiles.” Rhodarmer lamented, “Our hands are tied … we can’t make regulations.”

“Actually, you can,” countered board attorney Clarke. “This board has rule-making authority, subject to a public hearing. … The statute is fairly clear on what that authority is, and ways to use it that haven’t been used before.”

“[They've] never admitted that before,” whispered one veteran board watcher in the audience.

Permit-request deferred

Maas balked at approving a five-year Title V permit application for Lea Industries, a wood-furniture manufacturer in Waynesville. Staff engineer Greg Davis presented the application to the board, with his recommendation that it be issued, noting it had already been approved by the U.S. Environmental Protection Agency, and had gone through the 30-day public-comment period, with no comments received.

According to both Davis and Lea Industries representatives at the meeting, about 80-85 percent of the furniture produced at Lea is bedroom furniture, which gets painted white. About 500-600 tons of volatile organic compounds (VOCs) are released into the air each year, in the process, Davis said.

APCA Engineering Supervisor and Acting Assistant Director Bob Camby advised the board that the furniture-industry lobby has petitioned the N.C. Division of Air Quality for a streamlined permitting process, “so that every furniture plant won’t have to go through [computer] modeling” to estimate its emissions. If the document is signed by the governor, then furniture plants that sign a Special Order of Consent declaring that they are in compliance with N.C. air-toxics regulations would be exempt from the modeling requirements, outgoing Director Jim Cody explained in a telephone interview.

But this didn’t satisfy Maas. “We haven’t done any modeling of the health risk [at the Lea plant] to see how people in Waynesville and others downwind will be affected,” Maas said. “There is no control on these [emissions].”

“There is control. The averaging is the control,” argued Davis, explaining that emissions are determined using a calculation called “material averaging,” which he noted is one of three EPA-approved methods for meeting emissions standards.

“The only control,” Maas replied, “is to have a maximum [limit on the] VOCs in the paint. There is no control on emissions.”

Davis went on to describe the Maximum Achievable Control Technology regulations as the “most stringent controls a facility can fall under, regulating the content of the paint, the type of spray gun [and procedures] used … to reduce over-spray.”

“Facility averaging is a control,” Rhodarmer said. “It is used throughout the U.S. It is acceptable. It is a control.”

“We have a large emitter of VOCs — 500-600 tons a year — who [is] bringing us a permit [to approve] with zero monitoring,” insisted Maas. “I want to request that [computer] modeling be done.” The board, he continued, should not issue a “rubber-stamp permit because [of the actions of] a furniture lobby in Raleigh.”

This area is “ringed in by mountains,” Maas argued, “with much less dispersion [than other areas in the state]. The more I hear, the less I am willing to approve this,” he said. “There are other very large VOC emitters in Haywood. I suggest we refrain [from making a] decision on this permit until we have more time for discussion and review [of the state's proposed Special Order of Consent].”

“The permit requires Lea to be in compliance with all existing state and federal requirements,” Camby assured the board, “We can’t ask this plant to do any more, without rule-making by this board.”

Board Chairman Doug Clark, a Buncombe County appointee whose term expired Aug. 1, remarked, “They are compliant with everything on the books.”

“That’s because there is nothing on the books,” retorted Maas.

On a motion by Maas, seconded by Nelda Holder, the board voted 3-1 to defer action on the permit request until next month’s meeting. Rhodarmer cast the single dissenting vote. Two board members — former APCA Director Ron Boone and retired Champion International manager Don Randolph were not present.

In a later interview, Maas explained his concerns. “What this furniture lobby is asserting, and what is proposed in the [Special Order of Consent] … is that minimizing the amount of paint you use, and making sure all the paint hits the furniture, is the definition of the Maximum Achievable Control Technology. They say once you minimize the amount of paint, you can allow all solvents to evaporate. They are defining that as the [best they can do]. I object to that principle, because I know that we have achievable technology to capture those vapors.”

“My concern,” Maas continued, “is that the furniture lobby is close to getting the state to agree to giving permits to all furniture plants for emitting large quantities of VOCs, without requiring any control or capture of the emissions. Supposedly, this is based on [computer] modeling at one large plant and determining that there was not a high health risk. However, the dispersion situation in the mountains is much different, and even a smaller plant could represent a significant health hazard.”

Civil-penalties policy approved

“When we started this, we wanted it to be a live document — a working document,” former Director Cody explained to the board, referring to the agency’s current civil-penalties policy. “Every day, something new comes up,” he said. “There may be additions and changes from time to time [to bring before the board],” he added.

“It seems to be working. We’ve fine-tuned it several times,” said Arlis Queen, who then made a motion, seconded by Maas, that the board adopt the policy. The motion passed unanimously.

While Cody had the floor, he took the opportunity to deliver his farewell.

“This is my last meeting. It’s been a pleasure to work with this group. I have a staff I am proud of. It’s time for you to look to a new director.”

According to agency engineer Mike Matthews, who videotapes all board meetings, staff are “ready to move on with our work to protect the health and safety of the public.”

As the meeting continued, other board members and citizen observers wished Cody well. “It has been a pleasure to work with Mr. Cody,” said Rhodarmer. “He’s done an excellent job.”

“I look on you as a friend,” Doug Clark said.

Queen, however, had one last question for the departing director: “Jim, what was the fine for International Aggregates?”

Cody responded that the fine had not yet been determined for the company, which was found operating a portable asphalt crusher in two Buncombe locations without a permit. Last month, Cody raised the ire of board members when he revealed that he had usurped the board’s authority and given International Aggregates the go-ahead to operate, without board authorization.

“We’re going to sit down and discuss [the fine] at a show-cause hearing,” Cody told Queen.

“You’re not going to let them set the fine?” asked Queen.

“No.” Cody replied tersely.

Board policy statement debated

“I’m not sure how much longer I will be on the board,” Rhodarmer declared, as board members began discussing a proposed amendment to the board policy statement. “I have to travel a lot in my work.”

Under consideration was a policy requiring the board to revoke the voting privileges of members who miss more than a given number of meetings. “I wouldn’t have a problem with [attending] 60 percent, or [missing] three out of 12 meetings,” Rhodarmer said. Maas suggested revoking voting rights “if a board member fails to attend four or more regular meetings.”

“It is appropriate for the board to adopt a policy [regarding the voting rights of members],” attorney Clarke said, but then added: “Though the appointing agency may object [to limiting the voting rights of its appointees].”

After discussion, the board voted to defer any action on the proposed amendments until the next meeting.

The search continues

Queen, the only member of the Personnel Committee in attendance, reported to the board that the committee had selected 11 out of 26 applicants to interview for the position of agency director.

Board Vice Chair Nelda Holder asked, “What happened to the fact that we were going to re-advertise [for the position]?”

“It was re-advertised for a two-week period,” Queen replied. “I talked with [County Manager] Wanda Green. She said to go ahead and review what we have.”

“I really believe we should wait to review [applicants] until the closing day [Aug. 11, the last day applications will be accepted],” said Holder.

Permits to construct

On staff’s recommendation, the board unanimously agreed to approve a permit application from the Metropolitan Sewerage District for an internal-combustion generator at the agency’s wastewater-treatment plant on Riverside Drive in Asheville. The generator would allow MSD to continue operating despite loss of power from CP&L. The generator would not be permitted to run more than 500 hours per year, to keep its emissions below the Title V threshold for NOx, according to agency staff.

“I’m very familiar with what is going on at MSD,” said Maas, making a motion to approve the permit. “This is an emergency back-up. We would certainly want them to [be able to continue operating the sewage plant."

Agency engineer Chuck Sams presented an application from Forever Faithful Memorial Gardens and Cremation Center for a pet-cremation unit, to be located on Lyman Street in Asheville.

"It is down near the French Broad [River] … near an artists’ community,” Sams said. “The after-burn should take care of any problems residents might have,” he added. And in reply to Maas’ concern that dispersion of emissions would be difficult at that site, Sams said, “The air toxics would be minuscule.”

On a motion by Rhodarmer, which was seconded by Holder, the board unanimously approved the permit.

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