Jackson County residents request stronger monitoring of developers


julie_vested_rights(Story & photo from Becky Johnson of Smoky Mountain News — December 2, 2009.)

As developers grapple with financial woes forcing them to sell off holdings or succumb to foreclosure, environmental groups in Jackson County want to rein in vested rights previously doled out for those tracts.

A whopping 238 subdivisions were exempt from Jackson County’s new development regulations two years ago. The so-called vested rights were intended to protect developers caught mid-stream by the new regulations, but were ultimately granted to developers merely in the planning stages. The question now is what happens to the vested rights held by developers who sell out to someone else.

“We do not know what these new owners will do — whether they will continue to pursue the original development plans and, thus, make use of the vested rights; or whether they will decide to do something else entirely with the land,” Julie Mayfield, director of WNC Alliance, told Jackson County commissioners last month.



The county was too liberal in granting developers a free pass, according to several community groups that have repeatedly protested the methodology. A coalition of citizens appeared before the county commissioners last month to air their lingering concerns. The citizens claim the county acted too hastily and failed to figure out which developers indeed qualified.


The county now has a golden opportunity to take back some of those vested rights as the original developers go under, Mayfield said. Mayfield recognized Jackson County as “a regional leader in managing growth.” She praised rules that limit the number of trees that can be cut down on a mountainside lot, curb housing density on steep slopes and mandate open space within subdivisions — naming just a few of the more salient measures that sets Jackson County’s ordinance apart. “We now ask you to sustain that courage, be firm in the face of the changes in land ownership occurring in our county, look for every occasion to ensure future development occurs in compliance with the county’s 2007 ordinances and does not needlessly destroy our important natural resources,” Mayfield said.


Mayfield read aloud from a letter signed by several community groups: the Watershed Association of the Tuckaseigee River, United Neighbors of Tuckasegee, Jackson-Macon Conservation Alliance, Canary Coalition and Tuckasegee Community Alliance, a local chapter of WNC Alliance. Commissioner Tom Massie told those in attendance that he understood the concern and had himself sought advice on the issue from the county’s special attorney on development matters.


County Manager Ken Westmoreland suggested bringing in an expert on the issue to give a talk for the public, possibly from the Institute of Government at UNC-Chapel Hill. “It is a pretty complex subject,” Westmoreland said. “It may well be for clarity and impartiality we should bring in an outside consultant to provide a complete discussion on that subject.”


State statute requires local governments to make allowances for vested rights. Vested rights eventually expire if not utilized, but the exact time frame Jackson County must honor is not clear.

Taking the next steps in Mountain Landscapes Initiative

mtn_land_mtg_img0040Mountain Landscapes Initiative – Next Steps

MountainTrue continues its support of the Mountain Landscapes Initiative, which was a major initiative in the far western seven counties (Region A) of North Carolina to kick start a conversation about planning. Initiated by the Community Foundation of Western North Carolina and the Southwestern Commission, the effort resulted in a “toolbox” of planning information for local governments.

We are carrying on the MLI work through a Next Steps grant from the Community Foundation of Western North Carolina. With that grant, we contracted with Stacy Guffey, a Macon County native and the former Macon County Planning Director, to create educational tools around land use issues, assess the readiness of each Region A county to engage in comprehensive land use planning, and make recommendations regarding where WNCA should put its resources to best support Region A planning efforts. We hope to continue working with Stacy in 2010 as we seek to support Clay County’s comprehensive planning effort.

EPA’s options to regulate coal ash may help NC waters

Article from the Asheville Citizen-Times featuring commentary from the French Broad Riverkeeper.

RALEIGH — The U.S. Environmental Protection Agency unveiled two options to regulate coal ash waste from coal-fired power plants, amid concerns by environmental groups that one of the options would not be strong enough to protect North Carolina’s waterways.

The competing alternatives would provide varying levels of protection to the state’s water resources, and could take years to implement.

“Coal ash impoundments have been minimally regulated in the past. These proposed new rules are a long overdue, positive first step towards helping to protect our water and our communities,” said Hartwell Carson, French Broad Riverkeeper.

The announcement comes eight months after an independent analysis confirmed that all thirteen of the North Carolina’s coal ash ponds adjacent to coal-fired power plants were leaking toxic pollutants into groundwater. Data research conducted by the Upper Watauga Riverkeeper revealed 681 instances where levels of heavy metals and other pollutants ranged from 1.1 to 380 times higher than North Carolina’s groundwater standard. Violations including groundwater excendances from the Progress Energy Steam Plant in Buncombe County.

“The time has come for common-sense national protections to ensure the safe disposal of coal ash,” said EPA Administrator Lisa Jackson. “We’re proposing strong steps to address the serious risk of groundwater contamination and threats to drinking water and we’re also putting in place stronger safeguards against structural failures of coal ash impoundments. The health and the environment of all communities must be protected.”

The Subtitle C proposal would designate coal ash as a hazardous waste, while Subtitle D would regulate coal ash under a non-hazardous waste designation.

With a hazardous-waste designation, wet coal ash ponds—also known as surface impoundments—would be phased out, a process that would be monitored by the states and by the EPA. Dry ash storage units would require the installation of composite liners, with retrofits of all units due within five years after the rule is finalized.

Subtitle C would also enable the EPA to enforce federal regulations to ensure these requirements are carried out.

Under Subtitle D, or non-hazardous regulation, the EPA would require wet coal ash impoundments to be retrofitted with a composite liner, rather than being phased out. If the disposal site chooses not to comply, the regulation would prohibit receiving additional coal ash, and require the closure of the unit within five years. The closure process and post-closure groundwater monitoring would be self-implemented, with no federal or state oversight.

Both designations would leave in place the rule allowing coal ash to be recycled and used as construction fill, drywall, concrete and other construction materials. “Recycling coal has to be done carefully and appropriately, because without safeguards we are spreading toxic chemicals into streams, backyards, and wells,” said Carson

Both options would also prohibit coal ash disposal in unlined landfills, although disposal in old mining sites would still be allowed.

The announcement comes after the EPA failed to meet self-imposed deadlines in the past concerning the designation of coal ash as a hazardous substance.

“Regulating coal ash as a hazardous waste under Subtitle C is clearly justified by the science and will better protect water resources from toxic coal ash impacts,” Carson said. “The industry-backed option of regulating coal ash as household waste under Subtitle D is not sufficient to keep arsenic, lead, chromium, cadmium, and other toxic heavy metals from contaminating our water.”

The proposals will be turned over to the public for a 90-day comment period and one or more public and stakeholder hearings, after which the EPA will announce a decision.

“I would want communities to know that I believe, that EPA believes, it is very important to get on with this regulatory process,” said Jackson. “There has been lots of discussion already. We’ve heard from elected officials, from members of congress, from state governments, from private industries. I’d like to hear from public citizens about what they think is the most effective rule.”

In December of 2008, one billion gallons of toxic coal ash burst through a dam near a Tennessee Valley Authority power plant in Kingston, Tenn., polluting the Clinch and Emory Rivers and launching the safety of coal ash into the national environmental debate.

EPA will accept comments on its proposals for 90 days after they are published in The Federal Register. To learn more, visit www.epa.gov/coalashrule.


Mountain Xpress Green Scene: Getting Off the Banks

 Paddle trip probes French Broad River’s health

by Susan Andrew in Vol. 17 / Iss. 01 on 07/27/2010

“You cannot know the river by simply sitting on the level banks,” historian and author Wilma Dykeman wrote in her influential 1955 book, The French Broad.

In late June, Mountain Xpress joined the Western North Carolina Alliance for day six of its 11-day paddle down the French Broad. Organized by WNCA staffer and French Broad Riverkeeper Hartwell Carson, the trip offered the public a chance to get more intimate with the river while learning about the threats it faces

Something’s fishy: Riverkeepers Donna Lisenby (Upper Watauga) and Hartwell Carson (French Broad)
 collect fish tissue samples for lab analysis. photos by Michael Muller



Trial by water: WNC Alliance staffer Ryan Griffith and former board member John Baker during
 the nonprofit’s 11-day canoe trip on the French Broad River.
On this day, the flotilla included numerous fishing enthusiasts as well as Upper Watauga Riverkeeper Donna Lisenby. She’d obtained a grant to analyze fish tissue, water and sediment samples collected from the French Broad to gauge water quality near Progress Energy’s Skyland plant, which discharges into the river.

“We asked the state [Wildlife Resources Commission] to help us with this testing,” Lisenby explained. “But they refused, saying that they do not design a study to investigate a specific source of pollution. So we’re doing this grass-roots style, with citizens participating and learning. If the environmental regulatory agencies don’t do adequate oversight, it becomes incumbent on the people to get involved.”

“We’re like the first responders now,” she continued. “We’re doing what the state should be doing in monitoring the health of the river.”

State records show high levels of mercury in game fish collected from the French Broad in recent years. In at least one case, the mercury level exceeded the Department of Health and Human Services’ limit for fish consumption. (At press time, an analysis of fish-tissue samples collected on this trip was not available because the lab, Pace Analytical in Green Bay, Wis., has been overwhelmed with tissue samples related to the Gulf oil disaster.)

Two coal-ash ponds contained by earthen dams hold the waste products generated by the coal-fired Progress Energy plant — a situation the riverkeepers say is alarmingly similar to the scene of the disastrous 2008 coal-ash spill in Kingston, Tenn. A Tennessee Valley Authority power plant there released 5.4 million cubic yards of coal-ash slurry before flowing into the adjacent Emory River (see “Coal Slurry for a Tennessee Christmas,” Dec. 23, 2008 Xpress). Most coal-ash ponds are situated near rivers, because these power plants typically use surface waters for cooling.

Issued by the U.S. Environmental Protection Agency, Progress Energy’s wastewater-discharge permit is overseen by the state Division of Water Quality. Scrubbers inside the stacks capture most of the coal ash and other pollutants — including toxic metals such as mercury, lead and arsenic — which eventually end up in the storage ponds. Water, used both for emissions control and for cooling operations, is treated in an artificial wetland where plants and micro-organisms provide a kind of biological cleaning service that helps trap heavy metals and other toxins. The treated wastewater goes over a spillway, through a 36-inch pipe that runs under Interstate 26, and into a small stream that feeds the French Broad.

Progress Energy’s Scott Sutton notes that, since the scrubbers were installed in 2005 and 2006, the plant has achieved “dramatic improvement in its [air] emissions, including an 80 to 90 percent reduction in mercury.” But those toxic materials have to go somewhere, and that somewhere is the open coal-ash ponds above the French Broad.

The EPA recently proposed regulating coal ash as hazardous waste; an alternate proposal would continue the current less stringent requirements, which consider the ash comparable to household trash. Meanwhile, Progress Energy’s discharge permit is up for renewal in December, and even if new rules are approved, they probably won’t be in force by then. Sutton simply says the plant’s storage dam “will meet the standard of the day,” whatever it may be.

Key points: Aerial view of plant site and environs showing where samples were taken.

Lisenby, however, maintained that the very agencies charged with protecting the public aren’t doing their job. In the wake of the Kingston spill, she says she asked the state’s Aquifer Protection Section if the “coal signature” pollutants from North Carolina’s 13 coal-ash ponds — including one as big as Panther Stadium — were showing up in ground water at the so-called “compliance boundary” surrounding each ash pond. She was shocked to discover that “Aquifer Protection didn’t even know where the compliance boundaries were” for a number of the plants it was supposed to be regulating.

But it doesn’t stop there: Many compliance boundaries, notes Lisenby, are actually in the river or even on the opposite bank. In other words, rather than being protected, the river effectively dilutes the evidence of its own contamination, she contends.

In view of the state-documented problems facing aquatic life in the French Broad, the WNC Alliance wanted to know more about the chemical profile of the wastewater. Accordingly, a small team collected water and sediment samples from two areas: the plant property line just east of I-26, and where the discharge stream meets the river.

Lab analysis of these samples yielded mixed results. Mercury, one of the most persistent toxins emitted by coal-fired plants, was not detected in either of the two water samples. But it was present at appreciable levels in sediment samples.

Similarly, lead wasn’t detected in the water samples but was present in the sediment from both areas, with concentrations as high as 42 ppm at the point nearest the plant. North Carolina has no standard for lead levels in sediment, but the Canadian province of Ontario considers lead levels above 31 ppm in river sediments sufficient to trigger potential legal action.

And though Progress Energy’s current permit doesn’t regulate arsenic (a known toxin), levels in both water and sediment samples sharply exceeded the state limit for maintaining freshwater aquatic life, Carson reports. In the water leaving the plant property, arsenic was found at 181 parts per billion: 18 times our state’s standard for drinking water.

“As things currently stand,” he notes, “Progress can discharge as much arsenic into the river as they like.”

Bathers beware: These waters drain directly into the French Broad River.

Granted, treated effluent isn’t drinking water. And, as Sutton notes, the state can require the utility to monitor additional pollutants at any time. Plus, “It’s hard to draw conclusions from one or two samples on one day,” he argues. “That’s why we do our sampling weekly, monthly, quarterly. We have specialists on staff at the plants to ensure that we’re in compliance.”

Still, the Alliance’s sampling data does highlight the potential negative consequences for aquatic life in the river.

“The French Broad is primarily a catch-and-release sport fishery,” says Chris Manderson, who provides fishing reports for the French Broad in the online WNC Outdoor Activities Guide (http://ashevillenow.com). “I probably eat fish I catch in the French Broad once or twice a year,” he reports, adding, “It’s not something I worry about.”

In chronicling the French Broad, Dykeman quoted a Cherokee saying: “We have set our names upon your waters and you cannot wash them out.” The same could be said about the heavy metals persisting in the French Broad, river advocates point out.

Susan Andrew can be reached at 251-1333 ext., 153, or atsandrew@mountainx.com .

EPA considers coal ash regulations, which would affect Progress Energy’s Skyland plant

ARDEN — A fine layer of coal ash covers Tom Nye’s house at Lake Julian Trails, coating the outside of his home and settling on windowsills.

Nye knew he was living behind a power plant when he moved to the townhouse near Progress Energy’s coal-fired plant two years ago.

But he didn’t know about the coal ash pond about 100 yards beyond a fence separating Lake Julian Trails from the plant.

“They were there before we were, but if I had known it would be like this, I would definitely have not bought a place here,” Nye said. “It concerns me. I keep my windows closed now.”

Similar concerns by environmentalists and the government helped prompt proposals for tightening control over the potentially hazardous waste product from burning coal.


The U.S. Environmental Protection Agency will outline the proposals in a Sept. 14 public hearing in Charlotte — one of seven being held nationwide.

More than 5 million cubic yards of coal ash breached a dike at a Tennessee Valley Authority plant in 2008, spilling the waste into and around the Emory River.

That accident helped lead to what would be the first national regulations over coal ash, which contains such substances as arsenic, cadmium and mercury.

After it is captured by pollution controls, coal ash can be mixed with water and stored in coal ash ponds.

The agency is now trying to decide between two options for implementing the rules.

One phases out ash ponds and moves all coal ash to dry landfills, where it would be under federal enforcement rules for hazardous waste.

The other allows disposal of coal ash in ponds, but with stricter safety criteria.

This option would regulate ash ponds under rules for nonhazardous waste, relying on lawsuits by states and citizens for enforcement.

Neither would end coal ash’s use in concrete, roofing and other applications, including as a structural fill for a 15-acre expansion at Asheville Regional Airport.

Regulating coal ash

The state now regulates coal ash ponds. Progress Energy has two at its Skyland site, one that was used from 1962-82 and an active pond with a capacity of 450 million gallons.

The utility supports allowing coal ash disposal in ponds under rules for nonhazardous waste, spokesman Scott Sutton said.

That option allows for greater flexibility by utilities, while the other would handcuff power companies by regulating what methods they can use for storing coal ash and would raise costs for consumers.

Environmental groups support classifying coal ash as hazardous waste, phasing out use of the ponds and allowing for direct federal enforcement. They said this option would be more protective of human health.

“If it is classified as hazardous, the feds will regulate it from the cradle to the grave, wherever coal ash is,” said Judy Mattox, vice chairwoman of the Western North Carolina branch of the Sierra Club. “We’re asking the EPA to just acknowledge that it’s hazardous and regulate it from point A to point B.”

Local concerns

Environmental groups are concerned about coal ash and contaminants blowing into neighboring homes, seeping into groundwater and getting into the nearby French Broad River, where water from the coal ash ponds is discharged after the coal ash settles to the bottom.

They said tests by the Environmental Quality Institute have found high levels of arsenic in the water.

“Whether you can prove people have cancer from coal ash — it is hard to prove, said French Broad Riverkeeper Hartwell Carson. “But we know it’s bad for you.”

The Skyland plant has more development encroaching on it than other power plants. In January 2009, cenospheres, another product of coal combustion floating on the top of the coal ash pond, blew into Lake Julian Trails.

The EPA ranks the Skyland plant’s dams as “highly hazardous” because of their proximity to Interstate 26.

Progress Energy said the cenospheres are not hazardous. It has worked to reduce the amount of cenospheres on top of the pond and put in vegetation to keep the cenospheres from blowing into Lake Julian Trails.

The utility also is monitoring groundwater around the coal ash pond. High levels of boron, iron and manganese have been found, and the utility is installing additional wells to find out why.

But Sutton said the elements pose no threat to health and safety.

Progress Energy has worked with Lake Julian Trails over the years to reduce noise and pollution coming from the plant, he said.

“We have not had large numbers of complaints (about coal ash blowing into the development) and if it is happening, they definitely should get in touch with us,” Sutton said.

“If we need to do a better job wetting down the site or getting our contractors down there on a more timely basis, we can do that,” he said.

Sept 24: WNCA’s 2011 Annual Meeting

What do you want to see WNCA work on in your community? Tell us September 24 at our Annual Meeting! Join WNCA members, staff, and steering committee for informative workshops, presentations, food, fun, and annual WNCA business meeting. Also, help our Buncombe County Chapter kickoff Asheville 350!

The meeting will be held at First Presbyterian Church, 40 Church Street, Asheville, NC 28801.

Annual Meeting Agenda

9:00am Registration; Social/Networking

9:30am-11:30am: Business Meeting

11:30am: Lunch

12:30pm-3:00pm: Transportation Workshop

3:00pm-4:00pm: 350 Kickoff/Party

5:00pm: Party at the French Broad River Festival Riverkeeper Booth!

To RSVP, contact Erica at (828) 258-8737 or erica@wnca.org!