Courts & the Law, Environment

Court of Appeals approves plans for controversial asphalt plant near camp for seriously ill kids

Image: Google maps

In the fall of 2015, two land quality inspectors from the state Department of Environmental Quality drew the short straw. They had to visit the Glendale Springs quarry in rural Ashe County, an operation with a history of compliance problems and a disagreeable owner.

After the inspectors arrived, Danny Cecile, the father of quarry vice-president DJ Cecile, “produced a pistol from his pocket,” according to public DEQ records, and stated “that the pistol was in case any of the inspectors got ‘out of line.’”

The employees completed the inspection, but refused to go back without reinforcements. The lead inspector didn’t report the incident to law enforcement, the documents read, because “he felt like it would just aggravate the situation.”

Environmental and administrative law don’t require you to be pleasant. So when Cecile applied to DEQ to operate an asphalt plant next to the quarry, as long as the facility could comply with state and federal law, there was no legal reason to deny it.

Concerned citizens and the Ashe County planning director, though, fought the asphalt plant — and lost. A three-judge panel from the state Court of Appeals yesterday ruled unanimously in favor of Cecile and Appalachian Materials, allowing the controversial project to operate near the New River, as well as a quarter-mile from a camp for children with serious or terminal illnesses.

The court offered several reasons for the ruling, including that the county planning board was within its authority to overturn the director’s decision. The judges also ruled that the planning director’s cursory approval of plant’s application — submitted before the state’s air quality permit was finalized—was in part, binding.

And because of a state law, passed in 2015, Appalachian Materials can choose which of the county’s Polluting Industries Development Ordinances (PIDOs) it wants to be governed under: A previous one, valid when the company initially filed its permit and before the county enacted a moratorium on PIDOs, or the new, more stringent ordinance, approved after a moratorium was lifted. (See box for timeline.)

“The Court’s reasoning is a stunning piece of sophistry,” said Lou Zeller, executive director of the Blue Ridge Environmental Defense League (BREDL), among the opponents of the project. “The Court has made a serious error in this case. Its procedural legal reasoning may rest upon precedent, but its humanity is hobbled by a blinkered view of what is most vital in this world. Save the children.”

Chad Essick, an attorney with Poyner Spruill, which represented Appalachian Materials, said they are pleased about the decision, and that the facility “is entitled to its local permit.”

It’s uncertain whether Ashe County will ask the state Supreme Court to hear the case. No one from the county returned an email seeking comment.

*****

Since 2006, Camp New Hope has offered a free getaway, with a lodge and outdoor activities for families who have children with life-threatening medical conditions, such as cancer, seizure disorders or cerebral palsy. “Eighty-five percent of our children are in wheelchairs, have feeding tubes are on some type of ventilator and can’t talk,” said Camp Director Randy Brown, in a 2017 letter to DEQ. “A quarter are legally blind. “My children are very, very sick. They come to the camp to get out to nature in a safe and healthful environment.”

Brown’s comments were included in a 2017 letter from BREDL to DEQ. In that letter, Zeller also asked the agency to reopen the permit for further public input. He pointed out that the Division of Air Quality’s modeling had not considered the campers — “vulnerable populations” —in approving the permit.

But even healthy people can be harmed by emissions from asphalt plants. These facilities emit nearly 30 toxic air pollutants — in varying allowable amounts, according to state and federal law — including arsenic, mercury and benzene.

DEQ bases its permitting decisions on whether the plants can meet air quality regulations. But in North Carolina, local governments have the final say-so over the construction and siting of new plants.

Asphalt plants are often located near quarries, which makes transporting the raw material between the two facilities easier and cheaper. Radford Quarries, owned by DJ Cecile, will supply raw material to the nearby Appalachian Materials asphalt plant.

Given Radford Quarries’ history of non-compliance, plant opponents worry the new facility could be operated the same way.

For example, runoff and other sediment from the quarry and mining property could pollute the New River watershed. The quarry, according to DEQ documents from 2015, “has had ongoing compliance issues … for many years.”

Cecile had allegedly begun grading the land for the asphalt plant before receiving state approval to do so. Stormwater run-off, buffers and piping were also non-compliant,” the documents read, adding that, “even when properly installed and initiated, follow-up of state requirements has not happened and conditions have deteriorated.”

However, later inspections from 2017 showed no sediment had entered the waterways, and a Division of Water Resources study showed the quarry had not affected the stream. But DEQ did issue Radford a Notice of Deficiency for grading land outside its mining plan. Radford in response, submitted a change to the plan.

Radford Quarries was issued a Notice of Violation related to stormwater at its Bamboo Road facility in Watauga County. Those violations were subsequently corrected.

If Ashe County does not ask the state Supreme Court to take the case — and  since the lower court’s ruling was unanimous, it isn’t required to do so — then Appalachian Materials will begin scraping the land and building the plant, with its attendant environmental impacts.

And so has ended a convoluted two-year legal battle, which Cecile won without having to fire a shot.

Timeline:
• June 2015: Appalachian Materials applied for a Polluting Industries Development Ordinance (PIDO) permit in Ashe County to build and operate an asphalt plant on Glendale School Road in Glendale Springs. At its peak, the plant would be capable of producing 300 tons of asphalt per hour and 300,000 tons each year.
• September 2015: Ashe County Board of Commissioners adopted a temporary moratorium on the issuance of PIDO permits, which put the plant’s application on hold.
• September 2015: State legislature passes “Permit Choice” law. It provides that “if a [county’s] rule or ordinance changes between the time a permit application is submitted and a permit decision is made, the permit applicant may choose which version of the rule or ordinance will apply.”
• September 2015: Appalachian Materials used the hiatus to apply to the state for its required air quality permit. Over strenuous public objection, the Division of Air Quality issued the permit in February 2016.
• April 2016: Based in part on the moratorium, the county planning director denied Appalachian Materials its PIDO permit. The company appealed to the planning board.
• Summer/fall 2016: While the board was deliberating, the commissioners lifted the moratorium, but repealed the PIDO. It created a new, more restrictive ordinance that would make it more difficult for Appalachian Materials to build its plant.
• December 2017: The planning board overturned the director’s decision, allowing the construction of the plant. A Superior Court judge agreed with the board, and Ashe County appealed the decision.
• 2018: Court of Appeals hears the case.
• 2019: Court of Appeals rules in favor of the planning board and Appalachian Materials.

One Comment


  1. ken Lynn

    May 23, 2019 at 7:25 pm

    Well written, but here’s a more balanced view…and you said nothing about the watershed permit which is still being litigated: http://ashecountyline.com/a-treehuggers-view-of-the-proposed-glendale-springs-asphalt-plant-p409-172.htm

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