The WNC Regional Air Pollution Control Agency board went into closed executive session during its Feb. 8 meeting, drawing complaints from some citizens present at the meeting. APCA attorney William “Billy” Clarke advised the board that North Carolina law allows closed session under certain conditions.
“The board can go into closed session to consider the handling of a settlement, or to consult with an attorney,” said Clarke, noting that decisions made in closed session must be announced in open session.
Board Chair Doug Clark, a Buncombe County appointee, repeatedly asked the attorney for clarification on the legalities of a closed executive session. The law allows a closed session to “consider handling of a case,” Clarke assured him.
In closed session, the board considered three appeals of violations.
The tentative agenda — handed out at the door, and distributed to the media in advance — provided no detail about the nature of the violations, and gave only the names of the companies seeking opering permits and construction permits. One permit request considered at the meeting was not listed on the agenda.
Attorney Clarke proposed that the board consider “adopting formal rules for when people appeal violations,” which he said has been happening more frequently, with some people bringing their attorneys along. The board, Clarke suggested, could delegate the hearing of appeals to one member designated as the hearing officer, or could schedule appeals at a time other than during the regular business meeting. Board members agreed to ask Clarke to prepare some guidelines for the process; Chairman Clark said that any such policy would first be discussed in executive session.
During the public-comment period later in the meeting, citizen activist Jerry Rice of Buncombe County suggested scheduling a regular monthly meeting to hear appeals. “When you start going behind closed doors, it gets closed and closed, and then it gets a lock on the door,” he complained. Other citizens waiting for the board to return to open meeting questioned the legality of the closed executive session.
In a telephone conversation the next day, Mike Tadych, attorney to the North Carolina Press Association, said that board attorney Clarke had not misstated the open-meetings law. Tadych noted, however, that the attorney for such a board might be inclined to take a broad interpretation of such a law.
Fines and appeals
The board heard evidence on two of the appeals.
James Lowe and Joann Lyons, co-owners of a 7.5-acre tract in Haywood County, appealed a $3,500 fine assessed for a burning violation involving seven heaps of “machine-piled brush.”
“I was not aware of the WNC Air Pollution Control Board requirements,” said Lowe, explaining that four or five of the seven piles cited as violations had been burnt the day before and were “still smoldering” the next day, when the pollution-control agent arrived. Lowe disputed the “commercial” designation of the site. “How can one undivided tract used for residential be called commercial?” he asked.
Enforcement Supervisor David Brigman showed board members photos of the seven piles of burning brush, explaining that this was not the first complaint at that site. “I told them [that], if they would burn only hand-piled brush of not more than 6 inches in diameter, that a Forest Service permit would be enough,” Brigman said, noting that he did not issue a citation, but gave a “verbal warning.”
“I thought we agreed that a warning should be in writing,” noted board member Arlis Queen.
After neighbors lodged a second complaint two weeks later, however, Air Pollution Inspector Mike Matthews said that he arrived on the scene to find seven piles of burning brush. “The track-hoe operator said he had machine-piled the brush,” he reported, adding, “When I pulled up on the scene, he was actually pushing piles of brush and burning it.”
Lowe, visibly angry, told the board, “I’m not saying [the machine operator] did not violate your rules; I’m saying the [$3,500] fine is very excessive — it’s out of reason. ” Brigman responded, “I don’t write regulations; I simply enforce them.”
In the second case, Theo Atkins of Carolina Construction was appealing a $6,000 fine involving demolition work at the old Hyder Waste company site, now owned by GDS.
Air-pollution inspectors Steve Heiselman and Matthews were called to inspect the site. When the agents arrived, about half of the structure being removed had already been torn down, according to Heiselman; he asked workers to stop until an asbestos assessment could be completed. The site, he said, contained suspect material, such as floor tile. Even though the test results showed no asbestos on site, the construction firm was fined $5,000 for failure to notify The APCA about the planned demolition, and $1,000 for failing to obtain an asbestos assessment, as required by federal regulations.
“I’ve tried to play the game,” Atkins told the board. “I told them I was at GDS,” he continued, saying, “I called to find out what I needed to do, and I was told I didn’t need a permit.” But agent Matthews responded, “I don’t make it a habit of telling people [by telephone] that they don’t need a permit,” explaining that his office gets hundreds of calls and that callers are not always clear about the nature of the work to be done.
Carolina Construction was represented by Attorney Doug Wilson, who told the board, “We accept there may have been a misunderstanding. We will accept some responsibility, but a $6,000 fine is excessive. A $1,000 fine would be reasonable and appropriate,” he concluded.
The third appeal involved Perry Alexander Construction Company, cited for failure to control dust at the new Lowe’s home-improvement store site on Patton Avenue. Asheville resident Phyllis Pendleton had first contacted the APCA last July with complaints about red dust from the hauling roads on the construction site. The agency set up an air monitor as part of an ongoing investigation to determine the extent of the problem.
Attorney Bryant Webster, representing Alexander Construction, told the board that “the matter about to be considered is also under civil litigation in Buncombe County Superior Court” and asked that action be deferred until the civil litigation is concluded.
Board attorney Clarke offered two options: “The board can vote to hear evidence, or vote to defer action, pending civil outcome,” he advised, cautioning, “I advise you not to decide anything before hearing the evidence.” On a motion by Don Boone, seconded by Roy “Doc” Roberts, the board voted to go into closed session to discuss the first two appeals and to consider whether to hear evidence on the Perry Alexander appeal.
The room emptied, as agency staffers, lawyers and others involved in the appeals waited in the narrow hallway, along with citizen observers attending the meeting (including Ginny Liles of the League of Women Voters, Alyx Perry of the WNC Alliance, and Ginny Lindsey of the Clean Water Fund, who also serves on the APCA’s citizens advisory board).
After about half an hour, the board returned, and Chairman Clark reported that the board had decided to reduce the fines for Lowe and Carolina Construction to $1,000 each.
“We hate to fine, but we’re forced to, for the sake of consistency,” said Clark.
“$1,000 is still too much,” Lowe complained, adding, “I’ll have my attorney contact you.” Perry Alexander Construction Company’s appeal was continued until the APCA’s next regular meeting, scheduled for May 10.
Requests for operating permits
Next on the agenda was a list of 11 requests for operating permits. On a motion by Boone, seconded by Roberts, all the permits were unanimously approved, with no discussion or public comment. The board then heard staff recommendations, before voting unanimously to approve three requests for building permits and one permit request (not listed in the agenda) for a mobile asphalt crusher.
Carolina Power & Light Company requested a permit to construct an “amine enhanced flue lean gas reburn,” which CP&L engineer Gary Whisnant called “an emerging technology.” The $5.8 million project would reduce NOx emissions at the company’s Lake Julian facility by 50 to 60 percent, Wilson said. The project, partly funded by a grant from the Southern Appalachian Mountain Initiative, is expected to be operational by May 1, 2000.
Agency staffer Greg Davis presented staff recommendations for board approval of Harrison Construction Division of Tennessee Inc.’s request for permission to build an asphalt crusher to crush recycled asphalt products for injection into asphalt in the mixing process at APAC Carolina’s Waynesville quarry.
And Buncombe County’s Metropolitan Sewerage District requested a permit to build and operate a generator powered by methane gas extracted from the county’s former landfill, with natural gas as a backup fuel, in order to become self-sufficient in the event of a power outage. All three requests were unanimously approved. The board also approved, with no public input, the permit for the portable asphalt crusher. at APAC Carolina’s Weaverville facility.
The meeting heated up a bit during the public-comment period. Citizen-activist Rice complained that the operating permits had been voted on without discussion. He also complained about the way the appeals were handled. “You’re blistering the public, catching them out in a wrong act, then going into executive session to discuss fines,” charged Rice, adding, “You lean this way with one and that way with another.”
“The only reason I recommend closed session is that it might facilitate discussions,” attorney Clarke said, adding, “We decide this on [a] case-by-case [basis]; it is clearly authorized under the law.” Citizen-activist Perry told the board that voting on several items at once “pre-empts public comment.” “And I don’t think you should add items to the agenda,” she continued, asking, “Are you not interested in soliciting public involvement?”
Chairman Clark replied that certain permits are required to have public hearings, but that the items voted on were renewals. “The monkey is on our back to make these decisions,” he explained, adding, “We welcome public input.”
“I propose that you give people more opportunity to get in-depth information prior to the meeting,” Perry said.
“The Web site should go a long way toward that,” Clark replied.
“Will the Web site include detailed information on permits to operate and construct?” Perry persisted.
“We have to know enough to be able to ask questions,” said Rachel Queen of Taxpayers for Accountable Government. Director Cody responded that, with both the Web site and the civil-penalties policy, “We’re inventing it as we go.”
“Can’t we get copies in libraries?” Perry asked.
Vice Chair Nelda Holder instructed the office assistant to add the location of permit requests, and a line of additional information, to agenda items. “Because we have a duty to act on these permits, I depend, as a board member, on employee recommendations for approvals,” Holder explained, adding, “We may have acted in error” in regard to the added agenda item. She asked attorney Clarke if there was any notification policy about adding a permit to the agenda. Clarke said that legal ads are published in the newspaper, giving notice of intent to renew. “As long as we act on the permit in an open session, we can do so,” he concluded.
Cody reported that the agency’s long-promised civil-penalties policy, which he said is already in use, will be available for public review at the next board meeting. “The board has the right to change it, but we will have it ready to adopt at the next meeting,” he said. Cody also reported that the software for an APCA Web page is now in place, saying he hopes the site will be up and running in time for the “ozone season,” in early May.
Holder recommended two additional appointees to the APCA advisory board: Vera Guise, a native of area, and Glenda Wilkins, who recently retired from the EPA. “I want as much balance on the council as possible,” stated Holder, adding, “I’m giving you two highly qualified women, and I am nominating them now.”
“These ladies are well-qualified: I just don’t want it [the advisory board] to be too cumbersome,” responded Chairman Clark.