Leaders of the Council of Independent Business Owners have filed a lawsuit seeking to block the formation of the WNC Regional Air Quality Agency's proposed Clean Air Community Trust Fund, calling the body illegal and objecting to its funding source. CIBO leaders have also sent letters asking state officials to delay their approval of the newly reorganized Asheville/Buncombe County air agency, saying it was hastily drawn up and ineffectually conceived.
The suit attacks the agency's plans to give its excess revenues to the nonprofit fund, citing a provision in the North Carolina Constitution requiring that "the clear proceeds of all penalties ... and of all fines collected in the several counties for any breach of penal laws of the state shall belong to and remain in the several counties and shall be faithfully appropriated and used exclusively for maintaining free public schools."
The trust fund would use the money for various projects aimed at decreasing local air pollution, such as educating the public, leveraging project grants and helping businesses acquire more-effective clean-air technologies that surpass the minimum standards required by law.
If successful, the suit -- which was filed by CIBO activist Betty Donoho and attorney Albert Sneed, a prominent foe of zoning and the chairman of the board of Asheville-Buncombe Vision -- could affect the way penalties and fees are disbursed by agencies across the state.
Asheville City Attorney Bob Oast would not comment about the litigation, except to say: "We've received the complaint. We're investigating it and will respond to it." No date has yet been set in Superior Court for hearing the complaint. CIBO Executive Director Mike Plemmons will present CIBO's objections in person to the Environmental Management Commission, the state's top environmental overseer, when it meets in Raleigh on July 12 and 13 to pass judgment on the proposed agreement establishing the new air agency.
CIBO President Mac Swicegood sent letters to state regulators attacking the new interlocal agreement between Buncombe County and the city of Asheville, which re-establishes the agency; the letters say the agreement was "hastily entered into." Swicegood's letter to Bill Holman, secretary of the state Department of Environment and Natural Resources, complains about "a series of recent developments, taken without notice to the business community," which led to the city/county agreement.
"This agreement was rushed through," Swicegood told Xpress. "Everything came at the last minute." No one from CIBO spoke up at the city's public hearing, he says, because "we've had dialogue with the county more than the city. The last time the city put any funding into the agency was 1985."
However, Bradley Hix, vice president for Public Policy at the Asheville Area Chamber of Commerce, says he didn't feel caught by surprise: "I have monitored the issue. I go to as many meetings as I can, [including] all the county commissioners' and city meetings. The press does an excellent job covering [the subject]. I could tell the direction the city and county were going."
Swicegood's letter to Holman asserts that "there was very little input from the business community heard by the County or City and such input as was obtained appears to have been tainted and procured [sic] by duress." An attachment to the letter, outlining CIBO's concerns, claims that "the business community in Buncombe County has serious reservations about this proposal."
"We believe that regulated industries would prefer state regulation," the attachment says, "even though state permits are more expensive because the state provides consistent interpretations."
CIBO sends a reporter to observe all City Council, county Board of Commissioners and air-agency board meetings; their coverage is carried weekly in CIBO's member newsletter, which has followed the air-agency controversy.
Earlier this year, Swicegood and other CIBO members were the most vocal public supporters of Buncombe County Manager Wanda Greene's proposal to place the agency under the county Board of Commissioners' and her administration. That proposal failed after scores of concerned residents, including both community activists and businesspeople, attended an April public hearing called by the Asheville City Council. At the hearing, every speaker supported keeping the agency independent and autonomous, and agency supporters handed city officials a sheaf of letters from local businesses supporting the air agency.
Although the letters were obtained by air-agency staff, agency Director Bob Camby denies that the letters were collected under duress. Many, if not most, arrived spontaneously, he recalls. One staffer "did call some companies . He didn't ask for a letter, just told them the situation. When they asked what they could do -- could they send a letter? -- he said OK."
In addition to the April 18 public hearing, the city and county held public meetings to decide the fate of local air-pollution control on March 30, May 4 and May 22.
How local is our pollution?
Swicegood's letter says CIBO opposes a local agency to control air-pollution because "over 80 percent of the most severe air pollution coming into North Carolina comes into this State at high altitudes from out of state," a situation that the local agency could not have any effect on. Swicegood told the Mountain Xpress that he believes the money the agency is putting into the trust fund for local pollution-abatement programs should, instead, be spent on a lawsuit against these external sources of pollution.
Agency Director Bob Camby agrees with the 80 percent figure, noting that high-altitude winds from coal-fired power plants in Tennessee and the Ohio Valley, as well as from auto and diesel emissions in Atlanta and Charlotte, are having deadly impacts on WNC's ridge tops.
However, that percentage actually applies only to the upper elevations, not to the valleys where most area residents live, says Camby. While it's hard to tell exactly how much valley ozone is locally produced, says Camby, lower-elevation ozone monitors, placed by the agency in Waynesville and at Bent Creek in Asheville, appear to indicate that local industrial and mobile sources are contributing a large proportion of the ozone in the air breathed by most local inhabitants.
On the days of this record-breaking spring season, when these monitors exceeded the EPA's .085 parts-per-million standard for ozone concentrations, their readings were actually higher than the readings recorded, on the same days, by the agency's ridge-top monitors, according to agency engineer Chuck Sams. On hot days, the topography of the French Broad River Valley frequently causes the formation of stagnant-air masses that trap locally produced emissions from factories, autos and trucks, says Camby. The fact that readings at valley monitors tend to peak in the daytime and fall off at night -- in contrast to the relatively constant ozone levels registered by the ridge-top monitors -- suggests that much of the valley ozone is locally generated, he adds. He believes the traffic exhaust from nearby I-26 is contributing significantly to the high readings at Bent Creek.
Are businesses against the local approach?
Is there, as CIBO suggests, a groundswell of opposition to the agency in the Buncombe County business community?
CIBO did not poll its 200 members for their opinions before releasing its statements, so there's no way to know how many of its members oppose the interlocal agreement that re-establishes the independent, autonomous air-pollution agency.
Asheville Mayor Leni Sitnick says: "We heard a lot from the business community, but we didn't hear from CIBO. ... I can tell you I've received no calls from anybody complaining about what we're doing. All the faxes, e-mails, letters and calls say, "Just make sure we have clean air."
Tom Sobol, chair of the county Board of Commissioners, was taken by surprise by CIBO's lawsuit. "I thought this was all behind us," he said, referring to the interlocal agreement. He characterized it as a good compromise, jokingly noting that nobody is completely happy with it.
The fate of the air agency apparently isn't a concern among members of the Asheville Area Chamber of Commerce. According to Hix, "The topic hasn't even surfaced [at Chamber meetings]. ... I can't think of any member that has said anything about it."
One well-known Chamber board member -- who has applied to the county commissioners to serve on the board of the new air agency -- is very concerned about the potential effects of WNC's increasingly hazy days on the region's booming tourism industry.
"Golly, people don't come up here to [breathe] Raleigh's air," said William Cecil Jr., heir to Biltmore Estate. "Growing up here, I don't recall having so many hazy days with funny-smelling and -tasting air. ... It's not part of 'cool, green Asheville.'" Cecil said he's also disturbed by medical reports documenting a steep rise in asthma rates in the Asheville area.
To be (local), or not to be...
Why, ultimately, is CIBO fighting to stop the air agency?
"It boils down to this: Everybody is in favor of clean air -- just how do we get there?" says Swicegood. "If we approach the out-of-state polluters on a [scattered] local level, none of us will get along; if one state approaches another, we can get along."
Asheville Mayor Leni Sitnick, however, says: "I think they are concerned primarily with the local agency having discretionary power to make local regulations more stringent than the state. But [a local agency] also can have a big impact on uniting the local public to bring pressure on Tennessee and Ohio," the main sources of transported ozone.
Who would gain from state oversight?
What industries might benefit from air-pollution oversight by the state, rather than the local agency?
If the state were to take over responsibility for regulating Buncombe County's air, most industries would probably notice little difference. Since the local agency adopts most of its rules in reference to state regulations, only a handful of its regulations are more stringent than the state's. (State law allows local regulatory agencies to pass rules that are stricter -- but not less strict -- than the state's.)
There are three areas of emissions control in which the agency is significantly stricter than the state. These regulations date back to the former incarnation of the agency, but they were not enforced consistently until now. As it happens, all three are often applied against one particular local industry, real-estate developers, who would likely find it easier to operate if air-pollution control reverted to the state.
• Open-air brush fires: The local agency requires a prior permit and inspection for all "machine-piled" brush fires; the state does not, and it only inspects such fires if it receives a complaint. Developers of mobile-home parks, for example, usually bulldoze trees and brush into piles for burning when they clear new lots and developments. Some agency observers believe that the Haywood County commissioners' abrupt withdrawal from the former two-county agency was precipitated by an influential Haywood County mobile-home developer's complaint to them about an open-burning citation he received last year from the agency.
• Asbestos: The agency requires permits to remove asbestos from both residential and commercial buildings; the state requires permits only for commercial removals.
• Fugitive dust: The agency can cite a developer on the spot for kicking up excessive dust at a construction site; so could the state, until recently. However, new state rules now make the citation process so lengthy and paperwork-ridden that most construction projects would be completed by the time a state regulator could issue a citation.
CIBO leaders are correct in describing the state's regulations as "consistent." Regardless of local variations in weather or topography, the state Division of Air Quality applies the same regulations in Wilmington as it does in Waynesville. That disregard for the uniqueness of our area's physical environment appeared to be a significant factor in local officials' decision in March not to turn over pollution control to the state.
-- S. R.