Asphalt Plants

January 15, 2001

This report gives an update on BREDL's campaign to reduce toxic pollution from asphalt plants in western North Carolina. It includes information about six communities which oppose existing or proposed asphalt plants.

After defeating an attempt by industry to eliminate North Carolina's regulations for toxic air pollution control in 1997, BREDL continued to organize communities with actual or proposed toxic air pollution industries and to oppose the deregulation of air pollution. Major accomplishments include:

1-North Carolina signed an agreement with Tennessee to protect air quality in the Great Smoky Mountain National Park, Linville Gorge and other Class I wilderness areas.

2-North Carolina developed a new and better analysis of fugitive toxic air emissions

3-We forced North Carolina to expand the Toxic Air Pollutant program to all operating and proposed asphalt plants

The path to clean air is includes program and policy changes at the state and national levels. But without an actual reduction of pollution in communities where industrial plants are located, we cannot claim success. BREDL community organizers spend 90% of their time working with groups of citizens, most of them new to the environmental movement.

In 1997 BREDL organized local opposition to an asphalt plant proposal in an unzoned community in Watauga County. The permit was denied on the basis of public health protection, a first in North Carolina, and resulted in an eight month statewide moratorium on all new asphalt plant permits.

An asphalt plant proposed for Flat Creek in an unzoned area of Buncombe County was also defeated in 1997. North Buncombe Association of Concerned Citizens and BREDL joined forces to uncover and publicize the track record of the asphalt company. The campaign raised serious doubts about the company's ability to operate a plant within state regulations and the proposal was dropped.

In 1998 we organized four new groups in Polk, Rutherford, Macon, and Ashe counties in western North Carolina. These rural groups which have become BREDL chapters include Foothills Action Committee for the Environment (FACE), Rutherford Environmentalists Against Pollution (REAP), Neighbors Against the Cullasaja Asphalt Plant (NACAP), and Ashe Citizens Against Pollution (ACAP). BREDL staff services included campaign strategy sessions, technical assistance with permits, media training, assistance with fiscal management, and limitation of liability through joint incorporation.

In 1998 our accomplishments included getting North Carolina to develop a new and better analysis of fugitive toxic air emissions and to expand the Toxic Air Pollutant program to all operating and proposed asphalt plants. In July 1998 BREDL challenged the state with a request for a ruling on toxic emissions from asphalt plants. In September BREDL staffer Lou Zeller presented new information about asphalt plant emissions to the state Environmental Management Commission. In 1999 the Blue Ridge Environmental Defense League received the Governor's Conservation Achievement Award for Air Conservationist of the Year.

In 1998 we began to do our own SCREEN3 computer modeling of stationary air pollution sources. This is the principle method used by the NC Division of Air Quality's permitting experts to estimate toxic air pollution emissions. We are expanding this capability to include ISCST3 and more advanced methods. We are compiling background data and computer models which will enable BREDL and our community groups to assess the effects of mobile and stationary air pollution sources on ground level ozone, acid rain, and toxic air pollution. With these tools at the disposal of community activists our campaigns will acquire a new technical sophistication and be better able to combat air pollution of all types.

In 1999 we mounted three simultaneous asphalt plant permit challenges, all in the mountain region. Also, working with a national network of activists to oversee asphalt plant testing by the EPA, we monitored asphalt plant emissions tests in California and Massachusetts. These tests form the basis for EPA guidance for estimation of fugitive, or ground-level, emissions of volatile organic compounds and other asphalt plant toxins.

In 2000 we experienced victories and setbacks. A third asphalt plant proposal was defeated in Watauga County. Citizens remain vigilant in Ashe County since the defeat of an asphalt plant proposal near Jefferson. Residents along the Cullasaja River won a stunning reversal of a judge's decision which upheld an asphalt plant permit, but the company has re-applied for a new permit.

In 2001 we continue our drive for reduction of asphalt plant pollution. Recently, three asphalt plant operators have submitted requests for new pollution permits in western NC, and three new grassroots community organizations have been formed. We have active asphalt plant campaigns in five communities.

Pineola

In Avery County, Christmas Tree Capital of NC, citizens of Pineola tolerated asphalt plant pollution for years. Residents called us complaining of nausea and asthma associated with plant operation. After joining BREDL in early 1997, Pineola Concerned Citizens waged a campaign to stop the poisoning of their village. Our efforts were rewarded on July 6, 1998 when the Avery County Commission voted unanimously for the asphalt plant's immediate closure. But the NC Division of Air Quality has not responded to the county's requests.

However, Pineola Concerned Citizens made significant progress in the campaign to build public opposition to Maymead Materials' asphalt plant pollution in Pineola. In 1998 the plant operated at less than 10% of permitted annual capacity, a reduction of one-third from the previous year. Residents attribute this drop to negative publicity about the plant and heightened environmental concerns at the county level.

In 1999 Maymead's permit expired, requiring the company to submit a permit application for continued operations. BREDL and Pineola Concerned Citizens presented a report on the new draft permit to the Avery County Commission on April 5th. The report contained an independent SCREEN3 computer model run by BREDL. Our results indicated the plant would not be in compliance with state regulations if permitted at the present location on Highway 181. At issue were benzene and formaldehyde emissions, pollution loopholes, and public health impacts. In response to Pineola Concerned Citizens' request, the Avery County Commission passed a resolution citing our findings and opposing the new permit.

At the April 12th public hearing in Newland everyone but Maymead's attorney testified against the permit. We informed officials of our findings and proved that the map used by the state indicated a false location for the plant. Pineola citizens told the state officials of odor problems and asthma which coincide with plant operations and the negative impact on water quality in the Pineola Bog and the nearby Linville River. Dale Thompson lives next to the Maymead plant and is a member of PCC. He testified about the effects of the asphalt plant on the nearby church cemetery saying, "Dead people can't be bothered by pollution, but it even turns the gravestones black." Donna Autrey said, "Little people are not listened to, but big industry and DOT are."

On June 10, 1999 the Division of Air Quality approved the permit but recommended that Maymead Materials work with Avery County officials to find a more suitable location for the Pineola plant. Our plans are to work with the Pineola Concerned Citizens and to use the Pineola example in an appeal to EPA regarding the misuse of the synthetic minor rule under Title V of the Clean Air Act.

In 2000 residents of Pineola continued the campaign by assisting other communities to learn about asphalt plant pollution impacts. Pineola Concerned Citizens are compiling data which document the loss of property values near the plant. Completion of this study in 2001 will complement statements at public hearings which revealed a $400,000 loss in assessed valuation by the Avery County Board of Adjustment. Property value losses were greater at sites closer to the operating asphalt plant in Pineola.

UPDATE: March 8, 2002: The Blue Ridge Environmental Defense released a study showing the adverse impacts on property values and quality of life around an asphalt plant in Pineola, North Carolina.

Boone

In 1997 our successful campaign against an asphalt plant on Roby Green Road, an unzoned residential area outside of Boone, NC resulted in a de facto statewide moratorium on new asphalt plant permits. But the asphalt and highway industries used their considerable clout in Raleigh and in March 1998 the moratorium was lifted. Soon after, the asphalt company re-applied for an identical permit on the same site.

Citizens Against Pollution (CAP), which led the victorious 1997 campaign against Maymead Materials, again rallied people and other resources. Monthly events kept the issue in the public eye and meetings with state officials pressed them to justify the lifting of the moratorium. For example, CAP held a Clean Air Walk in downtown Boone in May 1998. In June, public hearings in Boone were packed with citizens demanding extra-territorial zoning of the proposed plant site which lies outside the city limits.

In July 1998 BREDL challenged the state with a request for a ruling on toxic emissions from asphalt plants. Citizens pushed for New River to be named the premier American Heritage River, and President Clinton made the designation in person in July. On August 8 Dr. Ravindra Nadkarni, author of two parts of the national Clean Air Act, testified against the air permit at the NC DAQ public hearing in Boone. In September BREDL staffer Lou Zeller presented new information about asphalt plant emissions to the state Environmental Management Commission.

Ultimately, the state issued a permit which required a year of meteorological studies before the plant could open. CAP prompted the Town of Boone to invoke its extra territorial jurisdiction and the site is now zoned to prohibit heavy industry. Two years of grassroots organizing by Citizens Against Pollution (CAP) and BREDL prevented an asphalt plant in an unzoned community in Watauga County, on the banks of the New River.

The detailed study of weather conditions at the proposed plant site may be the final battle for CAP, or it may spark the beginning of new smokestacks across western NC. Our concerns are that the study, if done poorly, would form the basis for DAQ's approval of new and larger air pollution sources in the mountains.

In April 1999 our staff and volunteers prompted DAQ to produce a written protocol for the meteorological study. In May of that year the Director of DAQ, responding to our questions, said the study would not address the duration of air inversions. This was a change from DAQ's previous statements. These data are essential for a comprehensive study of unique mountain air pollution characteristics.

The shortcomings of the study are that the methodology and equipment will detail only temperature, wind direction and velocity, and relative humidity. And the study does not address air inversions, fogs and other observable events, and pollution trapping. In fact, the study does nothing to address the issues of concern in the state's record of decision about the plant. We suspect that the study is designed to provide data for a new air toxins model which will allow far more pollution without taking into account the special conditions of mountain valleys. Meteorological data collection was completed in 2000.

Jefferson

In October we began working with citizens in Ashe County who were concerned about a proposal for a new asphalt plant near Jefferson, NC. Organizing proceeded quickly and on November 18, 1998 Ashe County Board of Commissioners approved an Ordinance to Place a Moratorium on the Construction and Erection of Asphalt Plants in Ashe County. Ashe Citizens Against Pollution (ACAP), with assistance from BREDL staff, sponsored radio ads, mailed out newsletters, posted yard signs, published newspaper display ads, and generated many news stories in local newspapers, all in a campaign to prevent Tri-County Paving, Inc. from building an asphalt plant at the foot of Mount Jefferson State Park and 6/10 mile from the county high school.

In January 1999 NC DAQ issued a draft air pollution permit for the proposed plant with a production total of 450,000 tons of asphalt per year. But no plant was ever constructed. During the intervening months BREDL and ACAP members documented the blasting and earth-moving done by the owners at the proposed site. This activity altered the topography and invalidated the computer modeling data submitted to DAQ by Tri-County Paving. We brought this to the attention of state officials who delayed the public hearing and required Tri-County Paving to submit corrected information. We also documented illegal dumping by Tri-County which prompted a notice of violation from the Solid Waste Section of DENR.

Hundreds of people attended the public hearing at the Ashe County courthouse on March 22, 1999. Thirty-eight people spoke in opposition to the plant. Only one spoke in favor: the attorney for Tri-County Paving. Dr. Bill Horn, a pediatrician, noted the asphalt plant's proximity to the high school and said, "There is no justification for putting polluting industries near places where children are playing." Eileen Hartzog presented a petition with 100 student signatures opposing the plant. Kim Faw, whose home is across the road from the proposed plant, addressed the loophole in the state law for toxic pollution saying, "Count all the pollution!"

On May 10 DAQ issued a final permit for a reduced output of 204,000 tons per year. On June 2, 1999 ACAP and BREDL filed a legal challenge against the permit. It stated that DAQ failed to consider on-site meteorological conditions at a mountain site, used erroneous data about the plant, and failed to adequately consider impacts on the high school and the state park.

In July 1999 Tri-County Paving sued Ashe County over the imposition of the moratorium. ACAP and BREDL attempted to intervene on the side of the county, but the judge refused our request. We maintained close contact with county attorney and filed an amicus curiae, friend of the court, brief.

A few months later, the state air pollution permit was rendered useless. On November 4, 1999, near the end of the one year moratorium, the county passed a Polluting Industries Development Ordinance which applied to "all areas of unincorporated Ashe County." The ordinance established county permit requirements and fees for "any polluting industry determined to be so" in unzoned, unincorporated areas outside of town limits. The ordinance names specific industries: mines, quarries, and asphalt plants. It prohibits asphalt plants within a thousand feet of residential and commercial buildings, and within a quarter-mile of schools, day care centers, churches, hospitals, or nursing homes.

In 2001 ACAP continues to watchdog the situation and remains a chapter of the Blue Ridge Environmental Defense League. Members attend county meetings and spread their anti-pollution message whenever possible. Beginning in 2000 they sponsored a superhero cartoon series in the local newspaper which pits Captain Acap against his nemesis, Joe Polluta. Tune in next week for the continuing adventures....

Cullasaja

On October 14, 1998 the NC Division of Air Quality issued an air pollution permit to Rhodes Brothers Paving in Macon County, NC. The permit allowed production of 180 tons/hour and 100,000 tons/year. Three weeks later BREDL community organizers attended the first community meeting called by residents of the Bethel community in a small church on the Cullasaja River. The state misjudged the level of interest in this rural mountain community and neither notified the people nor held a public hearing. Citizens formed Neighbors Against the Cullasaja Asphalt Plant (NACAP), a chapter of the Blue Ridge Environmental Defense League.

NACAP and BREDL filed suit on December 14, 1998 against the permit issued by the DAQ. Rhodes Brothers Paving, Inc. installed asphalt equipment on property next to the pristine Cullasaja River near Franklin. We challenged the permit on the basis of public health protection in a mountain valley and the failures of public notice and opportunity for public hearing. We later learned that the permit was issued over objections of regional DAQ staff in Asheville.

On May 4, 1999 the asphalt plant commenced operations. Residents were immediately driven from their homes by the smoke and stench. One 90 year old woman confronted the asphalt plant operator on his property and said she would not leave unless the plant shut down. The Secretary of DENR ordered the plant to close and called for an investigation. On May 26th the NC Division of Epidemiology sent Dr. Luanne Williams to meet with the residents and visit the plant site. Residents who attended the meeting were appalled when she said that, based on the data provided to the state by the asphalt company, the emissions were within safe limits.

On September 21, 1999 at the contested case hearing, Administrative Law Judge Beecher Gray ruled that the state acted properly in issuing an air pollution permit to Rhodes Brothers Paving.

Dr. Ravindra Nadkarni, a national expert on asphalt plant pollution, testified on behalf of the citizens' group. He raised many technical issues which showed that North Carolina's asphalt plant permits cannot ensure public health protection as required by law. For example, the state uses the same computer model to predict air pollution levels from both the smokestack and truck loading operations. Dr. Nadkarni said, "The state's model is a quick and dirty approach to pollution prediction, but it is inappropriate for ground-level conditions."

Macon county resident Jerry Starr, testified about the effects of the Rhodes Brothers Paving plant near his home. He said, "Nothing could have prepared us for the horrors of that plant; we cannot be outside when it operates, we are prisoners."

Despite the loss, NACAP and BREDL continued the campaign. Lou Zeller, who testified on behalf of BREDL, said after the hearing, "Someone must listen to the people who are being poisoned by toxic pollution. We appeal to the EMC and Governor Hunt to rein in a state agency which is out of control." The next step was a hearing of the issue before the NC Environmental Management Commission.

On March 9, 2000 the NC EMC voted unanimously to overturn Judge Gray's decision and revoked the Rhodes Brothers permit. The EMC based the decision on the state's failure to hold a public hearing and the failure to notify the Macon County Board of Commissioners. The EMC's final decision was issued May 29 but on May 30 Rhodes Brothers filed for a temporary restraining order against the EMC, allowing the company to continue operations.

In April 2000 Rhodes Brothers Paving, assisted by Kilpatrick Stockton LLP, its Raleigh law firm, submitted a new application for the plant it had operated since May 1999. On May 30, 2000 the DAQ held a public hearing in Franklin which was attended by 300 people; the majority of speakers and 57 of 68 written comments opposed the new permit. Also, the US EPA sent a letter to the Director of NC DAQ which outlined five problems with the Rhodes Brothers permit, signaling a new level of federal scrutiny of North Carolina's permitting process. During this time there were numerous complaints of noise and odor from residents near the plant and a considerable
number of recurring and uncorrected violations of permit conditions.

On August 8, 2000 the DAQ issued an air pollution permit which was virtually identical to the first. NACAP and BREDL have filed a petition for a contested case against this permit, too. The conditions which made the plant intolerable to the people of the Cullasaja are unchanged by legal maneuvering and bureaucratic manipulation. In 2001 BREDL and NACAP will continue this campaign because, as Martin Luther King Jr. said, "the arc of the moral universe is long, but it bends towards justice."

UPDATE: March 8, 2002: The Blue Ridge Environmental Defense League Bethel-Cullasaja community health survey report. The Bethel-Cullasaja community is the site of an asphalt plant permitted to produce 180 tons/hour and 100,000 tons/year of paving asphalt.

White Oak Creek

In December 1997 Polk County adopted an ordinance regulating asphalt plants and five other polluting industries. In 1998 D&S Asphalt Materials submitted an application to build an asphalt plant on White Oak Creek near Tryon. D&S planned to bring in a plant manufactured in 1965 which could emit double the visible pollution of modern plants. On July 6, 1998 BREDL organizers attended the first meeting of local residents opposed to the company's plans. Together we outlined a plan of action which included public meetings, letters and ads in local newspapers, and requests for protection by the county government. At the request of Foothills Action Committee for the Environment, Polk County strengthened the polluting industries ordinance in August.

On November 16, 1998 North Carolina DAQ held a public hearing in Polk County High School attended by hundreds of citizens, the majority opposing the pollution permit. This region of Polk County is in the heart of the Isothermal Belt and standard computer models do not account for air pollution impacts in this mountain region. We submitted these data to the state. But in January the DAQ approved the permit.

Foothills Action Committee for the Environment and BREDL opposed the permit granted and filed against it on February 12, 1999. Our challenge was based on the state's failure to protect public health. Also, FACE is challenging the county's lack of enforcement of its moratorium on new asphalt plants and other polluting industries and the issuance of a building permit to D&S in the flood plain of White Oak Creek.

On September 21, 1999 the Administrative Law Judge heard the combined cases for White Oak Creek and Cullasaja. This was an example of being right on the issues and losing the decision. Those who attended agreed that our attorney, John Runkle, and our witnesses, technical expert Dr. Nadkarni and the citizens from NACAP and FACE, did an excellent job of presenting our case. But the judge did not even take a day to review the information presented. He made a decision from the bench within ten minutes of the last witness' testimony.

BREDL and Foothills Action Committee for the Environment continue to oppose this permit. On September 20, 2000 D&S Asphalt plant stack tests were reported in the Tryon Daily Bulletin. The tests were performed by a consultant hired by the asphalt company and measure how many pounds of particles are emitted from the smokestack per hour. D&S Operations Manager, Matt Davis, reportedly expressed relief at the result of these tests and said neighbors of the plant used "scare tactics." But the state requires asphalt plants to obtain permits to do tests because they emit thousands of pounds of toxic pollution.

The legal limits for D&S Asphalt allow the plant to emit a total of 14,600 pounds of arsenic, benzene, formaldehyde, and other toxins every year. But D&S Asphalt has never been tested for emissions of toxic air pollutants. In fact, no asphalt plant in NC is tested for toxic emissions. These pollutants are estimated by computers and mathematical formulas rather than by actual stack testing, formulas which experts agree do not accurately predict the effect of toxic fugitive emissions.

The question for is: do pollution limits protect public health and community values? To protect local community values, the state allows counties to determine where new industrial facilities shall be located. The county can determine whether an asphalt plant may operate within, say, a mile or a quarter-mile of an existing elementary school or residential neighborhood. But the state has been derelict in its obligation to protect public health from air pollution. The DAQ and other agencies issue new permits as if no other pollution exists, as if an asphalt plant was located on the Moon. But here on Earth, pollution from thousands of legally permitted smokestacks adds up to a general threat to human and environmental health. The toll in human misery is intolerable and it is up to all of us to put an end to business as usual. We are committed to a continuing campaign of clean air for children's health!