The medical official vs. the developer

It was a dramatic moment, even for an agency that’s been center stage so often in the passionate public debate over how best to regulate local air pollution. A $12,000 fine levied by the WNC Air Quality Agency for improper asbestos removal wound up pitting an influential and outspoken Asheville businessman against a prominent member of the local medical community. Just moments before, the agency board had split 2-2 on whether to accept its hearing officer’s recommendation to impose the penalty, and Buncombe County Medical Society Director Alan McKenzie — less than two months into his tenure as chair of the AQA, which enforces local air-pollution regulations — stared silently at the boardroom floor, pausing for what seemed like minutes on the brink of casting his tie-breaking vote.

Awaiting McKenzie’s decision was Chris Peterson — the owner of a popular downtown nightclub and restaurant, and a former vice mayor of Asheville — who was on hand at the agency’s Sept. 11 board meeting to appeal the penalty, which he received last June for violating federal asbestos-removal regulations while renovating a dilapidated shopping center in Black Mountain.

Peterson (no relation to current City Council member Brian Peterson) was fined for having removed floor tiles containing asbestos without first obtaining an asbestos assessment, notifying the agency, having anyone certified in asbestos removal present during the operation, or keeping the removed materials wet. At the recommendation of Hearing Officer Arlis Queen, the board dropped an additional $5,000 fine for failure to keep the “friable” asbestos wet during removal. Because no one from the agency was present until after the job was completed, it could not be proved that Peterson had failed to wet the crumbling floor tiles as he pulled them up. (At the meeting, Queen — who felt the $12,000 fine was still excessive — supported an unsuccessful motion by Doug Clark to reduce it to $7,000.)

Peterson argued that he had thought the asbestos removal was covered by the building permit he had obtained from Black Mountain before starting his demolition work.

“If somebody’d told me [that] if you chip that floor up, it will cost $17,000, I’d be stupid to do it,” Peterson told the board. “There is no education process in place. Anybody working in their basement or attic, they need to call these guys. If you’re going to be fair, let’s get all these guys [who are renovating their own homes].”

Clark and Citizens for Safe Drinking Water and Air President Hazel Fobes defended Peterson, saying that the agency hadn’t done enough to educate businesses about asbestos regulations.

“I’ve heard this education thing for years,” said Clark. “I’ve known Chris for years. … I think he was acting in good faith.”

But Director Bob Camby replied, “Mr. Peterson has obtained permits in the city [of Asheville] for removing asbestos. I have a hard time understanding how he would not know, especially since he has just had a violation in Black Mountain.” Camby was referring to an April appeal by Peterson of a citation from the agency for demolishing a ramshackle ice-cream stand at the same site without obtaining a permit from the air agency. The board reduced that fine from $1,000 to $250, the cost of a permit. It turned out that no asbestos was present in that building, which Peterson said neighbors had asked him to tear down, saying it was an eyesore and a danger to neighborhood children.

“I asked Bob, ‘Why isn’t this [most recent incident] rated as a second violation?'” noted board member Nelda Holder,”because we dropped it before.”

But this time, asbestos was found in the debris removed by Peterson, according to Bob Welborn, a local asbestos-removal specialist who was called in to test the site.

“During [that] previous hearing,” testified agency inspectorMike Mathews, who cited Peterson both times, “I explained to Mr. Peterson the [federal] NESHAP rules: Number 1, you must have an assessment done; number 2, you must have notification [of the regulatory agency].”

At the present meeting, Peterson also revealed information that hadn’t come out in the most recent appeals hearing: Though he did most of the removal work himself, there was another employee who “was there a little while” without a protective mask.

This revelation disturbed the board’s most recent appointee, Dr. Lewis Patrie, who is also chair of the local chapter of Physicians for Social Responsibility. Patrie pointed out that exposure to the cancer-causing mineral may not have any manifest effects for many years. Patrie joined Holder in voting to impose the penalty without further reduction.

The employee’s potential exposure apparently tipped the scales for McKenzie.

“Most of my personal concern hovers around the employee,” said McKenzie, shortly before the vote was called. “The reason the penalties are as severe as they are is the health consequences [of asbestos exposure]. … And there was a history with this individual [Peterson] around permits for asbestos.”

When the board chairman finally looked up to cast his deciding vote, it was to uphold the $12,000 fine.

Asked by Xpress if he plans to appeal the board’s decision to the Buncombe County Superior Court, Peterson’s attorney, Robert Long, replied, “Of course.”

For the agency’s part, staffers say they are working with the city of Asheville to allow builders and developers to obtain asbestos-removal permits at the same time as other required city building permits.

Camby confirmed after the meeting that a homeowner anywhere in Buncombe County who wants to do renovation work on his or her house is, indeed, required first to obtain an asbestos assessment, as well as an agency permit. Only an asbestos-removal expert, Camby noted, can tell for certain if asbestos is contained in water- or heating-pipe insulation, attic insulation, roof shingles, floor tiles or the glue (“mashing”) beneath the tiles, sheetrock tape or mud, the black “tarpaper” used behind tubs and shower enclosures, or in numerous other construction materials that, until recently, were typically manufactured using the heat-resistant mineral fiber.

The Air Quality Agency’s phone number is 255-5655, and its Web site is www.wncair.org. Asbestos-removal experts are listed in the Yellow Pages.

Official support for 80-percent NOx reduction

McKenzie announced that both the local air agency and the Buncombe County Medical Society have sent letters to Gov. Jim Hunt urging him to support an 80-percent reduction in nitrogen-oxide-reduction emissions from power plants that was recommended by the U.S. Environmental Protection Agency. Recent public hearings held by the state’s Environmental Management Commission drew comments from hundreds of citizens in support of the 80-percent proposal, rather than 50-percent or 35-percent reductions proposed by the EMC and the state’s power companies, respectively.

The state may be listening. Hazel Fobes reported that the EMC’s own Air Quality Committee has now recommended that the EMC endorse the 80-percent reduction. Fobes announced at the AQA’s Sept. 11 meeting that Air Committee Chair Marian Deerhake had called Fobes two days earlier to inform her of the committee’s decision. Deerhake also told Fobes that the EMC will meet Oct. 13 to consider which of the various reduction standards to recommend to the governor. (Deerhake could not be reached to confirm this information.)

The local air agency has also sent letters to both the city of Asheville and Buncombe County, as well as to local school boards, asking them to start fueling their vehicles with low-sulfur gasoline, which generates much less NOx (one of the main contributors to ozone pollution). BP-Amoco recently introduced a low-sulfur version of its premium-grade fuel; other gasoline companies are expected to follow suit. Low-sulfur fuels may also be available soon in all grades of gasoline.

Sams to leave air agency

The agency board’s Sept. 11 meeting was the last day of work for Engineering Supervisor Chuck Sams, who is leaving for Milwaukee, Wis., to become an air quality manager for the U.S. Forest Service, Region 9 (covering much of the Northeast). During the air agency’s stormy transition to its current enforcement philosophy, Sams played a low-key but critical role, providing technical and scientific background support for agency decisions, and helping develop the agency’s Web site. It was Sams who first warned the board and the public several months ago that ozone levels in Asheville and Waynesville could put Buncombe and Haywood counties in EPA nonattainment status, jeopardizing local highway and large-industry development.

The local agency is ready to begin interviewing a half-dozen candidates who have applied for Sams’ position.