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Hearing postponed; rock quarry opponents gain SELC’s support
By Lynn Hotaling
Tuckasegee residents battling a proposed rock quarry in their valley will have to wait a few more months for the first court skirmish.
An administrative hearing initially slated for next week has been postponed and will likely take place in June, though The Herald was unable to learn whether a specific date has been scheduled.
Meanwhile, United Neighbors of Tuckasegee, the grassroots group formed in 2006 to oppose Carolina Boulder and Stone’s application for a mining permit, has gained an ally.
According to attorney D.J. Gerken of the Southern Environmental Law Center, the SELC has agreed to work with UNOT in its fight against the quarry. SELC is the largest environmental organization headquartered in the South and, according to its Web site “uses the power of the law to conserve clean water, healthy air, wild lands and liveable communities throughout the Southeast.”
His agency agreed to assist UNOT for the same reasons the state denied the mining permit, Gerken said Monday.
“It’s a sensitive area,” he said. “Sensible things could be done there, but a mine, right there by the river, is not one.”
The potential quarry site is just east of the N.C. 107/N.C. 281 intersection and is some 700 yards from the Tuckaseigee River’s West Fork.
“The state did the right thing,” Gerken said. “(State officials) took a look, asked questions and concluded they couldn’t approve a quarry at that site. They considered ways to make (Carolina Boulder’s) application work, but sometimes that can’t be done. The state did a thorough job.”
Tuckasegee residents breathed a sigh of relief in November after the N.C. Department of Environment and Natural Resources denied Carolina Boulder’s application to remove “unconsolidated material and crushed stone” from a 56-acre site that was recently transferred to the company by Jim Vander Woude of Franklin. That relief was short-lived, however, as word came a month later that Franklin-based Carolina Boulder had filed a notice of appeal.
NCDENR’s Division of Land Resources Director and State Geologist Jim Simons outlined the appeals procedure during a November telephone interview with this newspaper. By law, such appeals are decided by the N.C. Mining Commission, Simons said. That nine-member body is appointed by the governor and includes three members from the mining industry; three from non-governmental environmental interests; two from North Carolina’s Environmental Management Commission; and one from the N.C. State University Mineral Research Laboratory in Asheville. Before the Mining Commission rules, however, the appeal will be heard by an administrative law judge (hearing officer), who will schedule a hearing.
According to Simons, that hearing is a sort of court, where both sides will present evidence. The hearing officer serves as the judge and makes a recommended decision to the mining commission, which may adopt that recommendation or overrule it. From there, either side could appeal to Superior Court, Simons said.
The Herald reported in December that the Carolina Boulder appeal had been assigned to Judge Shannon Joseph, the case number was 07EHR2159, and the hearing had been set for the week of March 31. However, the newspaper learned earlier this week that the case has been reassigned to Judge Selena Brooks but could not reach anyone in Brooks’ office by press time to determine if the hearing has been scheduled.
Vander Woude purchased the property, which is part of the old Junie Hooper place, for $450,000 in January 2006 and initially leased the tract to Carolina Boulder, a limited liability corporation headed at the time by L.C. Jones of Tuckasegee and Leland Ryske, Vander Woude’s son-in-law. When contacted by The Herald in November, Jones said he is now the sole officer of Carolina Boulder. Documents in the Register of Deeds office indicate that Vander Woude sold the property to Carolina Boulder for $800,000 and that Vander Woude and his wife hold a deed of trust that’s payable on demand.
Nola Brown, who sounded the alarm at a March 2006 commissioners’ meeting that industrial development was bearing down on rural Tuckasegee, and other Tuckasegee residents organized UNOT to fight the planned quarry. The group wrote letters, called state officials and packed the Justice Center during an August 2006 public hearing to voice their opposition to a mining operation in their community to NCDENR representatives.
UNOT was also helped by the efforts of county commissioners and county staff, including Planning Director Linda Cable, who communicated their opposition to the quarry based on the county’s industrial development ordinance.
The Nov. 6 letter sent to Jones by NCDENR’s Simons appears to leave little room for reversal.
That letter indicates that Carolina Boulder’s application was denied because the proposed site would have adverse effects on potable ground water supplies, wildlife and fisheries and that previous experience with similar operations indicates a “substantial possibility” that the mining operation would lead to sediment deposits in stream beds, landslides or acid water pollution.
Simons’ letter goes on to say that Carolina Boulder’s proposed site is environmentally sensitive because of its steepness, the evidence of previous slides and its proximity to the Tuckaseigee River. It points out that the Tuckaseigee is a federally designated critical habitat for the endangered Appalachian Elktoe mussel and is a quality hatchery supported trout stream.
The letter also states that the Carolina Boulder application did not adequately address slope stability to prevent rock falls or landslides and that its erosion control measures did not adequately address the prevention of sediment deposits into the river. Simons also writes that “the environmental sensitivity of the site may be greater than it currently appears, as the current drought conditions may be masking the location and amount of onsite surface drainage and springs that would normally have to be managed.”
According to the state Mining Act of 1971, when NCDENR officials deny a mining application, they must provide the applicant with information regarding what must be done to make the application successful; however, Simons’ letter doesn’t offer Carolina Boulder much hope.
“In this case, it is not apparent what modifications, if any, would make the proposed operation approvable without relocation of the operation, as evidenced by the unsuccessful efforts of the application revisions to adequately address environmental protection,” Simons writes. “Please note that any modification involving the disturbance of the areas previously delineated by the state archaeologists as having a high probability of significant archaeological interest must have the concurrence of the Office of Archives and History.”
SELC’s Gerken said Monday that his agency has not yet decided whether to formally intervene in the upcoming court procedure.
“We’re exploring that idea and weighing whether our presence is needed,” Gerken said.
Carolina Boulder requested a postponement from the original hearing date and is now represented by attorney Billy Clarke of the Asheville law firm Roberts and Stevens.
In a prehearing statement filed last month on behalf of Carolina Boulder, Clarke contends that the proposed rock quarrying operation would not have an “unduly” adverse affect on potable ground water supplies, wildlife or fresh water and that DENR’s decision to deny the permit is erroneous, arbitrary and capricious and not based on substantial competent evidence in the record. That statement also maintains that the mining operation – that would, according to the document “collect and sell large boulders” and “quarry and crush stone” – would not adversely affect water quality due to the buffers that would be maintained.
Carolina Boulder’s mining application was submitted to the N.C. Department of Environment and Natural Resources in July 2006.
A quarry operation on the site would have required both county and NCDENR permits, according to Jackson County’s Cable, but Carolina Boulder did not contact the county before filing its state application for a surface mining permit.
According to Cable, such “heavy” industrial uses are regulated under Jackson County’s 2002 Industrial Development Ordinance and prevent any such industry from locating within a quarter-mile (1,320 feet) of a commercial lot or residential structure. The ordinance is geared toward controlling polluting industries, including asphalt plants and mining operations, which include quarries.
Cable said in 2006 she had reviewed the site and that in her opinion a quarry on the Vander Woude property would not be permitted by the county because it fails to meet the setback requirements.
“It won’t meet the distance requirements for a mining operation based on the Jackson County Industrial Development Ordinance,” Cable said last year. “Regardless of state action, as far as I can tell right now, Jackson County’s ordinance would not allow (a quarry) on that site.”
However, the fact that Jackson County has such an ordinance would not have precluded state officials from issuing a mining permit, according to Assistant State Mining Specialist Judy Wehner. Any decision on the matter had to be governed solely on the provisions of the Mining Act of 1971; should a mining permit eventually be issued to Carolina Boulder, it would be up to Jackson County to enforce its ordinance, she said.
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