Undoing past mistakes

[Editor’s note: As we went to press, news arrived that the Haywood County Commissioners had voted on Feb. 25 to withdraw from the two-county WNC Regional Air Pollution Control Agency, effective July 1, sending agency board members and staff into turmoil. A special meeting of the board has been called for Wednesday, March 1 at 5:15 p.m., to discuss the ramifications of Haywood’s decision, which will leave only Buncombe County and the city of Asheville as participants in the agency.]

Like discarded tires languishing in an old landfill, long-buried problems at the WNC Regional Air Pollution Control Agency keep surfacing — even as the agency strives to make a fresh start.

Airborne asbestos particles, brush-pile fires, industrial-smokestack emissions — common sense dictates that such hazards would come under the jurisdiction of an air-pollution-control agency. But at the APCA’s Feb. 14 board meeting, it was apparent that the administrative tangle left behind by three decades of ad-hoc management now poses significant obstacles to the agency’s current desire to have regulatory oversight.

For example, an agency staff member making an unannounced inspection last fall caught Carolina Power & Light’s coal-fired power plant in Skyland emitting sulfur dioxide at a rate in excess of the 2.3 pounds/million BTUs limit set by the U.S. Environmental Protection Agency and the state Division of Air Quality.

[For further details, see our Nov. 17, 1999 story in our Web-site archives, at www.mountainx.com/news/apca.html]

But CP&L has recently contended that it shouldn’t be cited for a violation, because the local air agency never told CP&L that the agency is now enforcing these federal and state standards. The company may have a point; according to a Jan. 23 letter from board attorney Jim Siemens to Chair Nelda Holder, “the Agency has in the past made up law and policy on an ad hoc basis,” and it never got around to formally adopting the pertinent state and federal rules concerning sulfur dioxide.

What’s more, CP&L is also arguing that the agency should not be allowed to use data from the company’s smokestack monitors to determine whether there is a violation. As staff Director Bob Camby later explained to Mountain Xpress, CP&L claims it is still required to prove its SO2 compliance only through an older procedure, which entails turning in a “composite coal sample” from the raw coal it burns. Camby’s reply to CP&L was that his agency’s regulations, as they now stand, allow inspectors to use any “credible evidence” in determining a violation. The issue is due to come before the board in March.

Siemens found another tangle in the agency’s unruly rules when he tried to determine the legal basis for the agency’s enforcement of its asbestos regulations. According to the rules, Siemens wrote to Holder, “all asbestos reports, applications, submittals and other communications are to be submitted to the ‘director, division of epidemiology.’ Frankly, I don’t know who the ‘director, division of epidemiology’ is,” wrote Siemens. “What I know for sure is that under this present regulation, we have no business dealing with asbestos issues,” he concluded.

At the board meeting, board member Doug Clark questioned Siemens about the letter.

“We’re taking care of that problem,” responded Siemens. “As the [regulation] reads right now, it’s really the [state Department of Health’s] Division of Epidemiology that enforces asbestos regs. This agency wants to be in the business of enforcing asbestos regs — [and] we have been — so we just need to make that correction.” On advice from the state, the agency will model its regulations on Forsythe County’s air agency, and, after EPA approval, put them out for public comment before adopting them.

Financial audit moves forward

Clark took advantage of another leftover muddle to reinstigate his efforts to stop the agency from hiring an outside accountant to audit the agency’s books.

A discussion of the proposed audit was the first item on the board’s agenda, but at the start of the meeting, Clark moved –without explanation — to have Siemens first present his interpretation of the recently debated 1995 Interlocal Agreement governing the agency.

Some members of the agency’s Citizens’ Advisory Committee have argued that the agency board may no longer be legally constituted, because the 1995 agreement fails to spell out a number of procedures covered in earlier agreements, including ground rules for board appointments.

The agreement redefining the agency — which Siemens later described, with a hint of lawyerly exasperation, as being “perhaps improvidently drafted” — was signed by officials of Buncombe County, Haywood County and the city of Asheville. And despite being short on details, he noted, it supersedes all prior agreements — including the 1970 document that established the agency.

Siemens offered to settle the conundrum, citing the North Carolina general statute that sets out the basic authority and responsibilities of local air agencies, such as the APCA.

At this point, Clark’s interest in the issue became apparent, as he pointed out that the 1995 document specifies that “Buncombe County will provide all bookkeeping, financial and payroll services” for the APCA. Therefore, reasoned Clark, only the county has the right to perform an audit.

Siemens disagreed. “If you’re asking me, does the county somehow control the decision whether or not to audit this agency, I would say no. … The board clearly has authority under [N.C. General Statute 143-]215 (c) (4) to make all the rules and decisions necessary to operate that [air-pollution-control] program [established by the interlocal agreement].”

Later, Clark questioned whether county officials would be willing to share financial information with a private auditor. Holder assured him that she had spoken with Buncombe County Manager Wanda Greene and learned that Greene has “no problem” with the proposed independent audit.

Clark also disputed the need for Camby’s quarterly budget report, on the grounds that the county already compiles one for the agency. Camby replied that the county’s report only summarizes expenditures by category. Additionally, Camby noted that, as directed by the board, he had recently expanded the budget process to include line items, to reduce the chance of improper expenditures slipping by unnoticed.

Asked by Xpress the reasons for his strong opposition to the audit, Clark explained that he considers it a waste of money, and considers the county’s routine audit of the agency’s budget totals to be adequate.

Despite Clark’s objections, the board agreed to invite

80 or 90 independent financial auditors in Charlotte, Spartanburg and Knoxville to bid for the job of auditing the last four years of the APCA’s books.

But several days after the meeting, state officials rendered the audit debate moot. The Budget Office of the N.C. Department of Environment and Natural Resources informed Holder that it will perform and pay for a financial audit of the agency.

Some questions remain unanswered, Holder told Xpress — such as whether the state plans a full, four-year audit, and when the Budget Office intends to complete it. Pending confirmation in writing from the state, Holder plans to hold off on soliciting bids and let the state take over the $40,000 project.

Either way, a full audit “will happen,” Holder said, “but cheaper is definitely better!”

Don’t burn your barn or trailer trash

Apparently, a few local fire departments still don’t know that the air-pollution agency, not firefighters, has the final say-so on allowing large open fires.

Because of this lingering confusion, the agency decided that Alan Ditmore wasn’t at fault when officials from the Leicester Fire Department gave him the go-ahead to burn a large pile of brush that he’d cleared while opening up pasture land on his newly inherited farm, even though he should have contacted the air agency.

The newly arrived Buncombe County resident — whom agency Hearing Officer/board member Arlis Queen described as “probably one of the most environmentally minded persons that I’ve run into in these hearings” — had hired a professional forester to oversee the tree cutting; but even the forester failed to advise Ditmore of the need to contact the APCA. Queen praised Ditmore for staying with the fire throughout the burn. When agency staffers arrived to serve him with a notice of violation, which carries a $2,000 fine, “He was sitting near the fire in a lawn chair, reading a book,” noted Queen.

Under these circumstances, the board agreed to reduce his fine to zero — and to ask Camby to notify all local fire chiefs that they must direct people planning an open burn to contact the air agency.

By contrast, when construction-company owner Dennis Mitchell called his local fire department to inquire about a permit for burning brush on his farm — and his barn, as well — the firefighters told him that barn-burning is definitely prohibited (except when the fire department torches an old barn, for training purposes). But Mitchell proceeded anyway. For that, the board upheld his $1,000 penalty, noting that the agency could have increased the fine for willful violation.

One excuse the air agency wasn’t buying was the one proffered by Carroll Elkins Mobile Home Moving Service, which was caught doing what is, reportedly, a common industry practice: burning the wood strips and plastic used to protect new mobile homes while in transit, along with any tree stumps remaining on recently graded home sites. On this occasion, the company claimed it had thrown away the plastic in a nearby dumpster, but the wind had picked it up and blown it into the fire. After the laughter in the boardroom subsided, Queen told the board that it was obvious from the photos taken by agency inspectors that workers had merely tried to pull the plastic out of the fire when the inspectors showed up. The board upheld the company’s $2,000 fine, hoping it would send a message to others in the industry to stop this illegal practice.

Gasoline vapor recovery

As many as 51 people per million will develop cancer as a result of lifetime exposure to benzene fumes while refueling their cars, according to a 1988 California study cited by agency engineer Chuck Sams and board member Rick Maas.

The problem came up during board discussion of a proposed “Stage II” vapor-recovery project that would reduce western North Carolinians’ statistical odds of developing such cancers to between 1 and 8 per million. The project would involve requiring local gas stations to install the necessary equipment at the gas pump to capture escaped gas fumes and pipe them back into the station’s underground tanks.

But even without the recovery project, Sams reported, those statistical odds will fall almost as low in the coming years, anyway, because all new gasoline-powered vehicles — as well as most cars manufactured since 1997 — come equipped with canisters that capture those fumes and turn them into usable fuel. Surveys of car dealers have calculated the turnover rate for the nation’s automobile fleet at 17 years — which means, said Sams, that by 2014, all but a few of the 20th century’s un-canistered cars will have left the roads.

For several million dollars, Stage II technology could be installed in every gas station in the APCA’s two-county jurisdiction — but the process would probably be stalled or blocked by industry lawsuits, according to both Sams and Maas. Sams told Mountain Xpress that the Sierra Club — with which he worked at the time, as a state adviser on this issue — had lobbied about 10 years ago for Stage II recovery, but, faced with strong political and oil-industry opposition, eventually settled for canisters.

Pending review by the air agency’s Citizens’ Advisory Committee, Sams and Maas stopped short of recommending that the board drop the project, but they made it clear that they question the merit of pushing for Stage II recovery.

Permits: Asphalt vs. masonry recyclers

Although it was ultimately approved at the meeting, APAC Tennessee’s application for a two-year extension on its permit to build a recycled-asphalt-product crusher in Waynesville revived a lingering concern: the continuing lack of state standards for volatile organic compounds (VOCs) that escape as fugitive emissions from asphalt-manufacturing operations.

As Maas reminded the board and staff, asphalt plants are “one of the issues that has really galvanized Buncombe County, and over the last few years has really increased the interest in air pollution.” (The intense public scrutiny of the local air agency, which eventually led to its reform, was sparked in the last three years by the agency’s repeated hesitancy to scrutinize applications for three proposed asphalt plants.)

“This is one area that we really want to keep an eye on,” emphasized Maas. “It’s ridiculous that the state has not yet included all the fugitive emissions from these asphalt plants in the VOC rules, because [they constitute] 80 or 90 percent of such operations’ VOC emissions, and the state officials know it.”

Camby told the board that the state has said it plans to consider revising its regulations in March. If the state makes any changes, the agency will likely follow suit, but in any case, he promised a quarterly update to the board on the subject.

“If the state does not move with this,” added Maas, “I think this might be one [issue] where we might want to look at moving ahead ourselves.”

Another kind of crusher, however, won praise from the board: the masonry crushing and recycling project that Material Salvage & Recycling Inc. is building to process materials recovered from the demolition of the old Gerber plant in Arden. Rather than being carted off and dumped in a landfill, the plant’s crushed remains will be incorporated into a future building project on the site. Aside from masonry dust, most of the emissions from the 90-day project will come from the diesel engines that run the crusher.

Both applications were approved, along with two quarry crushers and an operating-permit-renewal application submitted by Black Mountain defense contractor Kearfott Guidance & Navigation Corporation.

Advisory Council appointments

Maas nominated Lillian Fisher to a seat on the Citizens’ Advisory Council, characterizing her as a businessperson with a doctorate in financial management and a strong interest in the environment. Clark nominated Dr. Eric Wellisch, an expert in indoor-air pollution. The board approved both nominations.

Dr. Wendell Burton will replace the outgoing Grant Goodge as chair; Burton will be assisted by Hazel Fobes and Caroleena McCready as co-vice chairs, Holder announced.

Holder appealed to interested members of the public to join the agency’s Public Information Committee, which has lost a number of its members lately.

Correction

When appointed to the air-agency board last July, Rick Maas did not fill the unexpired portion of his detractor Ron Boone‘s term, as was mistakenly reported in our Jan. 19 story; he finished the term of Dr. Roy Roberts — the octogenarian who sat on the agency board for about two decades, and who, in his final years, gained a reputation for dozing off and muttering non sequiturs during meetings.

Last month, the Buncombe County Board of Commissioners reappointed Maas to a full term on the APCA board.

See and be seen. The board’s new U-shaped table allows all its members to face the public and be heard when they speak.

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