"Keep an open mind; be fair; realize that you stand at the intersection of the public and our industry ... [and] keep politics as far away from this place as you can."
Those were Nelda Holder's parting words of wisdom to the two new appointees replacing her and Lew Patrie on the Western North Carolina Air Quality Agency's board. Asheville appointee Loyd Kirk owns the Forest Manor Inn and is past president of the Asheville Area Tourism Association. Buncombe County appointee Vonna Cloninger, who owns Biltmore Iron & Metal Co., recently served on the Regional Water Authority board.
But somehow, politics always seem to be howling at the door of this independent agency, which regulates air pollution in Asheville and Buncombe County. And before the July 12 board meeting ended, the two newcomers and their colleagues found themselves plunged into what could become a state-level struggle with road-paving giant APAC-Atlantic Inc. over odor control at its asphalt plants. In her last official act, Holder described the battle's opening skirmishes, which she had overseen as the board's hearing officer.
After nearly 40 neighbors had complained about the tarry stench emitted by APAC's Swannanoa facility during the second and third quarters of 2002, the agency required the company to submit what state law calls a "maximum feasible odor technology" plan -- listing the available technologies for controlling odors, ranking their effectiveness, and showing how the company would implement the best one. The company responded that it was already doing all that could be done: putting tarps on its asphalt trucks and using low-odor asphalt ingredients and odor-masking agents in its hot-asphalt mix. And when the air agency once again insisted that the company provide a complete plan, APAC submitted a list that did not include odor-control technologies widely used in the asphalt industry outside North Carolina. The company also repeated its claim that it was already using the maximum feasible technology.
"For some reason, they seem to be resistant to listing odor controls," Holder observed.
The agency fined the company twice -- first for failing to submit a complete plan, and again after inspectors following up on further complaints twice verified that the plant was emitting an objectionable odor. The fines totaled $3,549.50. In September 2003, the company closed its 30-year-old Swannanoa plant and announced its intention to build a new hot-mix-asphalt facility in nearby Black Mountain.
Chickens pecking at smoke
But instead of paying the minor penalty and moving on, APAC chose to appeal the violations. At the hearing, Deborah Murphey, an attorney from the company's Atlanta headquarters, fired off a salvo of counterarguments -- summing them up in a "proposed findings of fact and conclusions of law."
To begin with, noted Murphey, the complaining neighbors live in a new housing development that Swannanoa's "lack of zoning" allowed to be built next to the plant. The plant is now closed, so the violations, she said, are moot. Furthermore, the standard for judging "objectionable" odor is entirely subjective, and APAC can't identify what substances in the asphalt might be causing odors. And in any case, the company maintained, the state anti-odor law the agency is using applies only to animal odors (such as hog waste).
According to Holder, the attorney also cited a "chicken pecking at smoke" as one of the possible technologies APAC could have listed to satisfy the agency's demand.
Air-agency attorney Jim Siemens dismissed these arguments as clever but invalid. The 3-year-old state law clearly indicates that it applies to industrial odors, he told the board, and the company is still operating other plants within the agency's jurisdiction. Holder, meanwhile, observed that the assistant superintendent of the Swannanoa plant at the time of the violations -- former air-agency inspector Greg Davis -- had noted (in response to a 1997 complaint) that the plant's odor smelled like "hydrogen sulfide."
"Are they fighting about $3,500?" Kirk asked in surprise. "They must have spent three times that much on putting together this appeal. There must be more at issue than $3,500."
"I think that's correct. They don't want to put control equipment in," said air-agency Director Bob Camby. Upholding the violation, said Camby, "could set a precedent not only here, but across the state," forcing APAC to spend large sums installing up-to-date anti-odor technology in its many North Carolina asphalt facilities.
Camby and Holder also pointed out that in a similar situation involving APAC's Hendersonville plant, the company had submitted an identical nothing-more-to-do response to the state Department of the Environment and Natural Resources (which regulates air pollution in most North Carolina counties). In February 2003, DENR advised APAC that its submission was incomplete -- but state regulators never backed up their warning by issuing a citation.
"So it's not the $3,500, not the violation -- but what it means downstream," the new Asheville appointee concluded.
The board voted to uphold the violations and fines against APAC. And Siemens predicted that the company will appeal the board's decision in Superior Court.
APAC under attack
APAC-Atlantic Inc. has been taking its lumps in North Carolina lately. The nation's largest asphalt-and-concrete paving contractor, with more than $2 billion in revenue in 2002, APAC has been in the news:
• Do not pass "Go": In March, the state Board of Transportation urged the U.S. Department of Justice to investigate whether APAC has created a monopoly in North Carolina. Last year, nearly 40 percent of the state's repaving contracts -- worth about $70 million -- went to APAC and its affiliates, according to the Raleigh-based News & Observer. And in February, the Transportation Board rejected a dozen bids on various projects as too high. APAC was the sole bidder on eight of those projects, and its bids were 18 percent to 41 percent higher than the Department of Transportation's own cost estimates.
• He ain't heavy, he's my brother: APAC also figured prominently in two recent lawsuits by former Asheville-area Division of Motor Vehicles officers that helped ignite a statewide scandal. In an ongoing suit, Pete Bradley alleges that his supervisor, Capt. Gary Ramsey, instructed him not to ticket overloaded trucks belonging to APAC and other firms that had made sizable contributions to the political campaigns of candidates for high-level state office.