After more than an hour of closed-door discussion, the Western North Carolina Regional Air Quality Agency board voted Aug. 14 to issue an emissions violation against Carolina Power & Light.
The board voted 3-1 to uphold its hearing officer’s recommendation that CP&L be fined $2,500 for emitting too much sulfur dioxide last November from the power company’s Arden plant. Board member Doug Clark cast the dissenting vote.
The action was one of the newly reconstituted board’s first major decisions since it morphed from the old WNC Regional Air Pollution Control Agency into its current form. The state Environmental Management Commission authorized the new agency last month, when it approved an interlocal agreement between the city of Asheville and Buncombe County to reestablish the agency.
The meeting was also the first conducted under the chairmanship of Alan McKenzie. Former board chair Nelda Holder was unexpectedly ousted last month during a reorganization meeting, though she still serves as a board member. When opening the meeting, McKenzie announced that he wanted to start meetings as much on time as possible, and welcomed new county appointee Dr. Lewis Patrie.
The basis for the board’s action against CP&L arose when agency inspectors — during an unannounced inspection on Nov. 1, 1999 — found evidence that the company’s two coal-fired boilers were emitting more sulfur dioxide than allowed by CP&L’s permit. The maximum limit is determined by the amount of thermal energy being produced by the coal fuel in the boilers. The allowable level for each of the two smokestacks is 2.3 pounds of sulfur dioxide per million British Thermal Units.
CP&L violated its permit for three hours on its Unit 1 boiler and for four hours on its Unit 2 boiler, Hearing Officer (and air-agency board member) Arlis Queen wrote in his recommended decision.
At the meeting, CP&L lawyer Doug Wilson didn’t dispute the findings of the air-agency employees, but he vigorously disagreed with Queen’s recommendation.
Wilson maintained that CP&L hadn’t been notified that the agency was changing its way of measuring emissions. For 20 years, he said, emissions had been tested indirectly by analyzing the sulfur content of fuel samples. Those results are reported monthly.
But during this inspection, agency regulators used a method called “CEM” — continuous emission monitoring. In this method, smokestack monitors continuously track actual emissions; averages are sent to the U.S. Environmental Protection Agency, explained Wilson.
“The yardstick has changed,” he complained. “No notice, no legal authority — just, ‘We’re going to now use CEMs and nail you for a violation.'”
Agency Director Bob Camby said after the meeting that he disagreed with Wilson’s characterization of the agency’s actions. At the time, Camby said, CP&L’s permit simply said that the power company should not emit more than 2.3 pounds of sulfur dioxide per million Btu — meaning that even a minute’s worth of excess emissions could be considered a violation.
“If you can prove it happened, it’s a violation,” Camby said later.
Wilson also maintained that the agency was using a portion of its regulations to justify using the new procedure, while ignoring the other regulations that dictate using the fuel-analysis method.
However, at the June 29 appeals hearing, agency regulators asserted that EPA rules allow them to use any “credible evidence” they observe during an inspection to determine whether a plant is in compliance.
“CP&L believes that it can work well with this agency,” Wilson declared. “It will follow the rules, and it will comply with the rules, if it knows them.”
But the emissions problem wasn’t CP&L’s fault, Wilson added. CP&L’s coal vendor erroneously shipped them four or five train-car loads of “hot coal” as part of a 50-car shipment, Wilson explained. The hot coal was meant for a South Carolina facility, where pollution limits are “considerably higher,” he said.
In an effort to correct that problem, CP&L purchased $32,000 worth of fuel oil (which emits less sodium dioxide than coal). The company also lost about $100,000 when it had to lower the power output of its generating units in order to deal with the problem, CP&L officials said.
“You can’t just reach in and pull out the bad coal,” Wilson argued.
It’s not the amount of the fine that bothers CP&L — it’s the basis of the fine, said Wilson. “The issue here is extremely important to CP&L,” he told the board.
Under CP&L’s current emissions permit (which took effect in June), the company’s compliance is now measured by continuous emissions monitoring, using 24-hour emissions averages, noted Charles R. Walkid, CP&L’s environmental program supervisor for air. The agency adopted that method in order to remain in step with the state’s new emissions-monitoring protocols, explained agency engineer Greg Davis in an interview outside the meeting.
After listening to Wilson’s presentation — which included black-binder transcripts of the air-agency’s June 29 hearing — the board went into closed session, citing ongoing litigation (since the appeal qualifies as a quasi-judicial proceeding).
Agency-board procedures don’t include provisions to allow agency staff to present their case before the board during its consideration of the hearing officer’s decision, but Camby said after the meeting that the agency had been able to make its case during the closed session.
After a 70-minute closed-door session, the board returned to open session and voted on the matter with little discussion. Although Clark couldn’t be reached for comment after the meeting, Camby said Clark had voted against upholding the violation because he wanted more information.
Buncombe County resident Jerry Rice applauded the board’s decision: “That sends a message that the big ‘uns don’t get away.”
After the meeting, CP&L Community Relations Manager Nancy Thompson declined to comment on the company’s next steps. If CP&L appeals the board’s ruling, the matter would land in Superior Court.
Changes to open-burning regulations
Camby told board members that the agency is interested in receiving public comments on proposed changes in agency open-burning regulations.
The changes include clarifications to regulations concerning commercial and residential burning, Camby said. Another change would loosen restrictions on the maximum size of logs that can be burned by commercial developers — raising the limit from 6 inches in diameter to 12 inches, Camby said after the meeting.
Camby explained that legal notices will be posted, and the proposed changes will be listed on the agency’s Web site (www.wncair.org).
Thoms’ asbestos problems
Camby briefed the board on an asbestos violation and fine that the state has levied against Thoms Rehabilitation Hospital and contractor Weigle and Associates. The state Division of Occupational Safety and Health fined Thoms $280,000 and Weigle and Associates $112,225 over what the state asserts was improper removal of asbestos floor tiles between September 1999 and this past January.
Camby said Weigle and Associates applied for a permit from the air agency to remove 1,800 square feet of floor tile, with the declaration that they’d notify the agency when they planned to begin the removal. The contractor contacted the agency Feb. 8 to report that he would not be removing the tile, but had hired a subcontractor to do the work. Consequently, the agency canceled Weigle’s permit, Camby told the board.
The subcontractor, NEO Corp., applied for and received a permit to remove 1,800 square feet of tile, Camby said after the meeting. On an inspection of NEO’s work — in which no problems were found — air-agency personnel were told that tile in a different area had been taken up and moved across the hall, he said.
“Sure enough, new tile had been put down,” Camby said.
After further investigation, agency personnel determined that 1,800 square feet of tile in the other area had been removed, allegedly without the proper asbestos regulations being followed, Camby said.
Because the agency had such a hard time unraveling what had actually occurred, Camby said they called EPA’s criminal investigations division, which is now conducting its own investigation. The state also was notified. Although OSHA has already levied a fine, the EPA and local air agency have not so far.
Although Camby said some people have questioned whether the local agency had been out of the loop, he emphasized that his employees were the ones who had called in the outside officials to investigate.
Responding to a question from Clark, Camby explained that the air agency tends to ask the EPA for help if the agency doesn’t have the time or personnel to investigate a problem.
Status of the audits
Camby updated the board on the agency’s progress toward complying with recommendations of a performance audit conducted by the state Division of Air Quality. Staff has either met or is in the process of meeting seven of the eight recommendations (such as getting additional training). However, Camby said the agency has not yet completed the eighth recommendation — that the agency develop a strategic plan — since the committee working on that was disrupted by Haywood County’s departure from the agency.
Although Clark advocated letting the Land-of-Sky Regional Council develop the plan, McKenzie argued that it should be up to the agency to adopt its own plan.
“It is incumbent upon us … to have a clearly defined, objective strategic plan, with goals and objectives that are measurable,” said McKenzie.
Holder said the new agency’s advisory council, with the help of board and staff members, should be involved in developing a strategic plan.
Camby also revealed that George Dennis, auditor for the state Department of Environment and Natural Resources, is still working on a four-year financial audit of the agency — which, Camby explained after the meeting, spans the tenure of the agency’s former director of the agency, James Cody
Three weeks ago, Dennis asked to meet with Camby, board attorney Jim Siemens and a lawyer from the state attorney general’s office to clarify issues related to the financial audit, Camby told the board. A date hasn’t been set for that meeting.
The board spent several minutes discussing exactly how the financial audit should be released to the public and the media.
“Last time, the press got it before the board did,” Holder complained.
The board decided to ask the state to present the findings of its financial audit and release them to the board and the public at the same meeting.
Camby also told the board that the state will evaluate bids received for a follow-up performance audit of the agency. The state will pay for that audit.
“It seems like that’s all we do,” Camby sighed, after updating the board on the status of the three audits.
“The state must have more money than they know what to do with,” Clark observed.
Camby noted that Gov. Jim Hunt had announced at an Aug. 3 press conference in Asheville that BP Amoco has voluntarily agreed to offer low-sulfur gasoline for sale at its 51 stations in the Asheville area and its 365 stations in Charlotte, Greensboro and Raleigh/Durham.
“That’s something we’ve been wanting for a long time,” Camby said.
Camby also mentioned a July 27 state public hearing on three proposals for reducing nitrogen-oxide emissions from Duke Power’s and CP&L’s coal-fired power plants.
After a long discussion, the board unanimously agreed to direct Camby to write a letter to the governor indicating that — due to the ozone situation facing WNC’s mountains — the board supports a goal of reducing nitrogen-oxide emissions by 80 percent.
The board also directed Camby to write letters to the Asheville city manager, the Buncombe County manager, and the county and city superintendents of schools to ask them to look into the feasibility of using low-sulfur gas to power their vehicles — and strongly urge them to take that step if feasible.