What if somebody sneaked onto your property early one morning, built a smoky, smelly bonfire out of leftover scraps of insulated wire, and then disappeared before the authorities showed up — leaving you stuck with a hefty fine for illegal open burning? Are you liable for the air pollution, just because the property and the wire scraps were yours?
No, says the WNC Air Quality Agency board — but you are partly to blame if you don’t at least try to put the fire out.
At the board’s Oct. 9 meeting, well-drilling contractor Dick Bowman appealed the $2,000 fine he received after agency inspectors, responding to an anonymous complaint, found the wire fire still burning at the property on New Leicester Highway that Bowman rents for storing his equipment, just a stone’s throw from the air agency’s headquarters.
“First off, I didn’t burn the wire,” stated Bowman. “We’ve gotten broke into numerous times, and had thefts and vandalism” and other unexplained bonfires at the open, unfenced lot behind a gas station. Denying the citation’s charge that “It appears that burning was used to avoid the cost of proper disposal,” Bowman pointed out that, at $1 a foot, intact electrical wire is worth much more to him than the 60 or 70 cents a pound he might get for its salvaged copper.
But inspectors Mike Mathews and David Brigman, who found the fire, questioned whether vandals would have picked up the wire from where it was stored and carried it all the way to the back of the lot. The two also said they had seen evidence that PVC scraps and other construction waste had been burned.
Deciding whether the contractor was telling the truth was not the only bump in the road the board had to traverse to reach a verdict. Buncombe County board appointee Doug Clark raised a series of objections, insisting that Bowman and the two inspectors be sworn in before testifying, questioning agency Director Bob Camby‘s right to testify in the case (after lengthy discussion, Chairman Alan McKenzie ruled that Camby could speak to agency staff and board members, but not to Bowman), and unsuccessfully attempting to restrict the discussion to the written findings in Hearing Officer Arlis Queen’s report.
Eventually, guided by board attorney Jim Siemens‘ legal advice, a majority of the board agreed that the evidence was insufficient to incriminate Bowman beyond a reasonable doubt, and that it wasn’t right to hold him to a standard of “strict liability” for the violation simply because it occurred on his property.
But Bowman still holds a “degree of culpability,” as Nelda Holder described it, “because the fire was on his property, and somebody should have put it out.” Bowman testified that he had not been at the lot that morning, but his work crew had — they left about 8 or 8:15 a.m., an hour before the fire was reported to the agency.
“Nobody saw it — we’re used to seeing smoke” from fires set on the lot, Bowman told the board.
The board voted to keep the citation but reduce the penalty to $500.
After the vote, Bowman informed the board that he is putting a $7,000 security fence, which “looks like a prison fence,” around his new facility on Lees Creek Road.
Clark, who had seen the new construction, observed, “I can assure you, nobody can get over that fence.”
Keeping the heat on asbestos violations
The recent publicity surrounding asbestos-removal violations by Thoms Rehabilitation Hospital and local businessman Chris Peterson may be helping get the word out about the air agency’s strict permit and inspection requirements for removing construction materials containing the carcinogen from residences and businesses. Inspector Mathews announced at the meeting that the agency had received 32 more asbestos-removal permit applications during the third quarter of 2000 than it had in the same period last year.
But apparently, even hiring a professional to remove asbestos-containing materials doesn’t guarantee that the job will be done strictly by the book. The board upheld a $5,000 penalty against Professional Abatement Services, a South Carolina company hired by Warren Wilson College last February to remove asbestos floor tile from a science building under renovation. The college was not cited.
“This is a large asbestos-abatement contractor,” noted Clark. “To me, they should be held to a higher standard than somebody like Chris Peterson. … What did they do differently from Peterson?” The board fined Peterson $12,000 last month for failing to obtain a permit to remove asbestos from a Black Mountain shopping center he is renovating, and for handling the removal improperly.
“Actually, they are doing things better than Chris Peterson did, by far,” answered agency inspector Brigman. “All of their workers are accredited. They were suited out, they were wearing respiratory protection. The material was wet, they had critical barriers up and negative air pressure. … They had a permit to remove it nonfriable, which means it should be taken up in full pieces.”
But instead of applying heat to the tiles to take them up whole, as the company had told the agency it would do — a method that requires only four workers, according to Brigman — an inattentive supervisor allowed 10 employees to chip up the tile, which makes it more likely to release asbestos fibers into the air. The workers did keep the material wet, minimizing the release of fibers. But by failing to obtain a new permit and suspend the tile-removal work for a 10-day waiting period, the company broke the law — and avoided paying an extra $850 in permit fees.
Auditor raises trust-fund questions
The draft version of a long-awaited financial audit of the WNC Regional Air Pollution Control Agency (the predecessor of the current Air Quality Agency) covering fiscal years 1995-99 contains no major surprises, though there are still some significant unanswered questions. The board authorized the public release of state auditor George E. Dennis‘ draft late last month. The 11-page document recommends that the agency improve its procedures for logging vehicle miles, inventorying physical assets and donating surplus equipment.
But Dennis also requested that the county, city and air agency answer a dozen remaining questions, such as whether it was proper to use federal and Title V monies to fund construction of the agency’s office building; what portion of the fines and penalties the agency collects are donated to local school districts; and whether Buncombe County and Asheville have the legal authority to create the Clean Air Community Trust Fund (to which they agreed to contribute much of the money left after the dissolution of the former air agency, following Haywood County’s withdrawal).
The agency is a defendant (together with Buncombe County and the city of Asheville) in a lawsuit filed by Council of Independent Business Owners member Betty Donoho and Asheville attorney Albert Sneed that asks the courts to decide whether state law requires the agency to hand over penalties collected for pollution violations to the schools, rather than to the trust fund.
The lawsuit appears to be hampering the establishment of the fund, which agency, county and city officials have said would be used to educate the public about regional air pollution and to support projects aimed at reducing it. Although McKenzie reported having gotten “some good applicants” to serve on the trust fund’s board, Lewis Patrie relayed trust-fund-board Chairman Rick Maas‘ discouragement at the “slowdown” on city and county efforts to proceed with the fund. Patrie also reported that Maas is now “trying to persuade them to move on it.”
New emissions rules dismay environmentalists
The state Environmental Management Commission settled Oct. 12 on a plan to reduce ozone-creating NOx (nitrogen-oxide) emissions from North Carolina’s 14 coal-fired power plants, along with some 30 other NOx-generating stationary sources. Last July, more than 1,000 state residents attended a series of public hearings held by the EMC to consider which of three plans the state should adopt to comply with new Environmental Protection Agency requirements for ozone reduction. Almost all of those who spoke at the hearings supported the “80-percent” reduction proposed by environmentalists over lesser reductions proposed by the state and by utility companies.
By a 9-5 vote, the EMC adopted a version that Gov. Jim Hunt says “goes beyond proposals made by my administration in our Clean Air Plan,” but that environmental activists say falls short of what’s needed to reduce NC’s ozone levels. All five dissenting commissioners voted for the environmentalists’ proposal.
“The plan I submit for your adoption … meets the long-term standards mandated by the federal government,” says the letter detailing his proposal that Gov. Hunt sent to the commissioners shortly before their vote.
“These rules are a major step forward in … substantially improving air quality, protecting public health and sustaining our economy,” said Bill Holman, secretary of the state department of Environment and Natural Resources.
“It was very clear in discussions by EMC members,” countered Janet Zeller of the Blue Ridge Environmental Defense League, “that Gov. Hunt made a backroom deal with CP&L and Duke Power that was far less than what was needed.”
“Comments from the public overwhelmingly supported strict clean-air standards,” said Michael Shore of Environmental Defense (a national organization with an office in North Carolina), citing “more than 12,000 letters” sent to the EMC, “but the EMC failed to listen to citizens. This plan sides with the power plants, rather than the people.”
“We really got shafted on [this],” summed up the WNC Alliance’s Alyx Perry.
The new state plan limits total NOx emissions from stationary sources to 39,377 tons beginning in 2004, and 28,100 tons by 2006, achieved by capping all 44 sources’ emissions at an ozone-season (May through October) average of .21 lbs. per million BTUs. Originally, the state had proposed capping only the five worst power plants at a seasonal average of .15 lbs., and the remaining nine plants at .25 lbs.; the 30 lesser sources were disregarded.
But Zeller says that, according to EPA-backed scientific studies, the only way to achieve any net reduction in North Carolina’s NOx emissions is through a daily cap of .15 lbs. per million BTUs on all the sources, which would result in a limit of 23,000 tons by 2007.
According to the Division of Air Quality, about half the state’s locally generated ozone comes from stationary-source emissions, principally coal-fired power plants. The other half comes from mobile sources, mostly cars and trucks.)
Environmentalists are also unhappy about another facet of the new rules. Although Gov. Hunt reiterated his decision not to join other states and coal-burning industries in challenging the EPA requirements before the U.S. Supreme Court, state officials say they fear that, if the EPA plan is struck down — either by the court or by the new EPA administrators George W. Bush would probably appoint if elected — its strict ozone limits would make it difficult for North Carolina to compete economically with neighboring states that hadn’t complied with the EPA mandate. In that case, North Carolina’s 39,377-ton limit would remain in effect, with no further reductions.
Clouding the issue is both sides’ insistence on expressing their proposed reductions as simple, headline-grabbing percentages. Depending on who’s talking and over what period of time they’re measuring, the state’s proposal represents a 56- or a 65- or an 81-percent reduction in ozone levels, and the environmentalists’ proposal represents a 50- or a 67- or an 80-percent reduction.
A public-comment period will precede the final adoption of the new rules. For more information, visit the state Division of Air Quality Web site at http://daq.state.nc.us, or BREDL’s Web site at http://www.bredl.org.