Living with nonattainment

In Western North Carolina, the words “nonattainment area” could soon evoke the same sense of dread as “Superfund site.” This drab bureaucratic designation, signifying regions that fail to meet state and federal ozone standards, imposes severe restrictions on the growth of local highways and air-polluting industries. At the June 12 meeting of the Regional Air Pollution Control Agency, staff and an environmental expert told the board that, early next year, N.C. Gov. Jim Hunt — following federal and state regulators’ guidelines — is expected to declare the ridge tops of several nearby mountain ranges to be nonattainment areas.

Lowland development probably won’t be affected by the 4,000-foot-elevation boundaries the governor will probably set around these areas, which include major parts of the the Great Smoky Mountains and the Balsam, Plott Balsam, Craggy and Black mountain ranges. But three successive years of unsafe ozone levels measured at the air agency’s Asheville monitor (at Bent Creek), and increasing levels at its Waynesville monitor, have already made it likely that Buncombe and Haywood counties will soon follow the ridge tops into nonattainment status, warned engineer Chuck Sams.

Since the ozone season began in May, the EPA standard for ozone (.085 parts per million) has already been exceeded a record number of times at the two lowland sites, Director Bob Camby told the board.

“This is already starting out to be a lot worse ozone season than last year,” Camby said. He blamed the weather: Along with the rest of the East Coast, we’ve been experiencing more than our normal share of hot, stagnant conditions, which simmer a nasty blend of locally produced smog and pollution blown in from elsewhere, producing eye-burning, lung-choking ozone.

Nonattainment status for Buncombe County could directly affect the planned extension of I-26 through Asheville, Sams told the Mountain Xpress. The project would not be permitted to make local ozone concentrations worse. The state Department of Transportation would be required to perform computer modeling of the project’s effects on air pollution — with the Division of Air Quality, the EPA and the federal DOT looking closely over its shoulder. The model might support the DOT’s proposed eight-lane road, or the narrower one that citizens’ groups want, or perhaps no expansion at all. But it must also take into account “induced impact” — the air pollution that would result from the new Burger Kings and shopping malls likely to spring up in the vicinity of a widened highway.

Environmental consultant Gary McCutchen of Raleigh described for the board the severe restrictions imposed on large industrial polluters when the area around them falls into nonattainment. (The Charlotte and Raleigh metropolitan areas — whose air is among the worst in the state — are also slated to be designated nonattainment areas in January.)

New pollution sources, or major modifications to existing sources, “must apply the Lowest Achievable Emission Rate (LAER), which does not allow the source or the agency regulating it to take into account the economics of control — they must use the most stringent control that has been demonstrated in practice,” McCutchen explained. “Nor can they take into account energy impacts or other kinds of pollution like water or solid waste from smokestack scrubbers — you just have to put that level of control off.”

These sources “would also be required to offset at a ratio all of the remaining emissions after LAER has been established” — 1.1 to 1.5 tons of actual emissions reduction (depending on the severity of nonattainment) for every ton of potential increase. In other words, big polluters would be compelled to find ways to remove from the air more pollution — specifically, volatile organic compounds (VOCs) — than they contribute.

If local or state regulators in a nonattainment area fail to create and implement a timely plan to achieve attainment, the federal government will withhold funds for highway development, and may even step in and impose its own attainment plan. Fortunately, the APCA already has most of its plan in place, according to Sams.

Gov. Hunt must decide on the boundaries for the state’s nonattainment areas, choosing among proposals he has received (which range from specifying just a few square blocks around one city’s pollution monitor to declaring the entire state a nonattainment area). The catch: The EPA must sign off on whatever map he approves.

Clean-air trust fund envisioned

The new agreement between Asheville and Buncombe County that will transform the APCA into the Western North Carolina Regional Air Quality Agency this July will also establish the Clean Air Community Trust Fund — a separate entity with its own seven-member board of trustees (chaired, initially, by UNCA Professor Rick Maas). APCA board member Alan McKenzie described his vision of the trust fund at the meeting (and, later, to Mountain Xpress).

McKenzie sees the innovative fund as providing a complementary but opposite approach to WNC’s air-pollution crisis from the APCA’s regulatory, punitive role.

“The idea for the fund was born out of the sudden realization that we [the agency] could not be two things,” he explained.

“The fund would use an incentives approach, encouraging businesses to take the next step in reducing air pollution.” The trust would also use its assets to leverage grants for research and for projects that would enhance public and alternative transportation, and even help businesses buy new pollution controls that go beyond what the law now requires. The community trust would support projects that “encourage dialogue in the community, and public processes for education and increasing awareness” about air pollution, as well as “encourage and support public policies” to mitigate pollution. One of the first projects will probably be developing a library and education center, perhaps at the agency’s headquarters, which school and community groups could use.

“I try to avoid re-inventing the wheel,” remarked McKenzie, an experienced administrator of nonprofit organizations. “But after searching everywhere for a model to base this on, I couldn’t find one. This has not been done anywhere else.”

The nonprofit fund, whose initial assets (about $500,000) will come from the fat surplus built up over the years by the APCA, will receive the lion’s share of the fines collected from polluters by the new AQA — thus helping the self-funded agency avoid accusations of conflict of interest when it imposes fines. (Contrary to reports published in the Asheville Citizen-Times, the trust fund will not provide funding to the agency, McKenzie confirmed.)

McKenzie said the fines will be divided between the agency and the fund through an “open process,” at board and budget-committee meetings. He does not expect the trust fund to start receiving this income until next year, however, when the reorganized air agency is firmly on its financial feet again.

CP&L’s secret settlement offer

But Buncombe County’s largest polluter, Carolina Power & Light, has already tried to use the new trust fund to cut a behind-the-scenes deal with the agency over a potentially embarrassing sulfur-dioxide violation. Unbeknownst to anyone on the board except Chair Nelda Holder and Hearing Officer Arlis Queen, the company’s attorneys have been trying to negotiate a deal with board attorney Jim Siemens.

“With regard to our settlement discussion on the alleged SO2 violation, we remain willing to contribute to the Clean Air Act [sic] Trust Fund $5,000,” states a letter to Siemens from CP&L attorney Lisa Cooper, titled “For Settlement Purposes Only.” The letter does not explicitly say whether the company would expect the pollution charge to be dropped in return for its contribution — which is double the amount of the fine CP&L would pay if found guilty of the violation.

The company’s coal-fired power plant in Skyland was allegedly caught exceeding the legal limit on sulfur-dioxide emissions last November — during the APCA’s first-ever unannounced inspection of the facility. Before the agency reformed its enforcement procedures in the wake of a state audit, inspectors had always notified the plant well in advance of planned visits.

The settlement proposal was revealed at the June 12 meeting, when Holder announced to the board that Siemens had received the letter. But she refused to release it or discuss its details publicly, on the grounds that it was an “attorney/client matter,” and that CP&L attorney Doug Wilson — who attended the meeting, but did not speak — had told her it was only a draft.

When Siemens did release the letter, several days later, Holder told the Mountain Xpress that she did not know whether Siemens and CP&L’s attorneys had discussed dropping the charge in exchange for the contribution.

“It’s my personal opinion,” Holder said, “that dropping an NOV [Notice of Violation] is probably not something this board wants to entertain,” even though “in the larger arena, we know this is standard in a lot of places,” and it could offer an opportunity for “public good.” But since “the history of violations and their consequences — or lack thereof — has been a questionable one in the agency’s past,” the issue of settlements “is a policy question which should be debated by the full board,” states a memo Holder circulated to the board after finally authorizing the release of the letter.

Queen spoke much more decisively about the company’s effort to resolve the matter quietly before it could be heard by the board’s hearing officer — and, thus, exposed to public scrutiny.

“I would not go along with anybody making a settlement before we hold a hearing. We have an appeals procedure set up by our lawyer that the board unanimously approved, and we need to follow it,” he told Xpress. “Negotiating settlements prior to the hearing would be corrupting the process.”

Both Queen and Holder say they first learned about the settlement discussion when CP&L’s attorneys sent a letter requesting postponement of the scheduled May 23 hearing. The letter’s stated reason for the request: “We have had fruitful settlement discussions and believe preceding [sic] at this time may inhibit successful resolution.” The hearing — which is open to the public — is now scheduled for June 28 or 29.

“The board is not doing anything under the table; I’m not doing anything under the table,” Siemens told Xpress. “No board members told me to make a deal. … Sure, they [CP&L] are going to end-run litigation — that’s what litigators do.” The attorney views the settlement proposal as nothing out of the ordinary, and says he had no authority to negotiate with CP&L’s attorneys, but merely transmitted their proposal to his own client, the APCA. CP&L has not openly asked that the charges be dropped in exchange for the trust-fund donation, but the implication is understood — “Sure, that’s their angle,” said Siemens.

Romania arrives, Haywood County retreats

As air pollution reaches crisis proportions around the globe, the APCA’s uniquely regional nature is drawing the interest of an increasing number of governments — with one glaring local exception.

The N.C. General Assembly is likely to pass Senate Bill 1245, authorizing the Department of Environment and Natural Resources and other environmental agencies to delegate responsibility for environmental permitting and enforcement programs to a unit of local government. The bill specifies that the unit must have developed a local program that establishes and adequately enforces standards that equal or exceed the minimum statewide standards.

“We’ve gone global now,” exclaimed McKenzie, on hearing from Camby that a group of air-quality officials from Romania wants to visit the APCA, to learn how to set up their own local air-pollution control agency.

“They’re especially interested in how to issue violations,” noted staffer Greg Davis.

But Haywood County appointee Don Randolph — normally the most soft-spoken board member — angrily described his frustrated efforts (and those of numerous other county residents) to obtain an explanation from the Haywood County Commissioners of their sudden decision last February to withdraw from the APCA. The pullout precipitated the crisis that led to the agency’s pending reorganization. Randolph and local citizen groups are pressuring the commissioners to change their minds and remain in the agency — but County Manager Jack Horton, charged Randolph, refuses even to allow them onto the agenda for commissioners’ meetings.

Randolph ended with a vivid description of the scene he’d witnessed at the commissioners’ meeting the previous week.

“There were about 15 people sitting and 10 standing. … The question was asked by Mr. Roscoe Wells directly to the chairman, Jim Stevens — he said: ‘Why did you withdraw? We’ve never been able to find out.’ Mr. Stevens started talking about clearcutting, building your three-story houses on the ridges, and didn’t even touch the answer to the question. I was in the hall, talking to a lady from the TV [station], and I heard all this commotion in the room. People were saying: ‘That’s no answer! That’s no answer! Boo!’ He [Stevens] banged the gavel and said, ‘Public session’s closed.'”