Runkle Letter

Headline:  OPEN LETTER TO TRANSYLVANIA COUNTY COMMISSIONERS

By John D. Runkle, Esq.

I am submitting this column on behalf of People for Clean Mountains and the Blue Ridge Environmental Defense League regarding the proposed biomass facility in Penrose.

WHAT IS THE BIOMASS PROPOSAL?

RENEWableDevelopers Penrose-1, LLC, is a limited liability corporation of developers  with an address in Bronxville, New York, that proposes to burn 100-200 tons per day of solid waste (garbage) and woody biomass (trees, limbs, and shrubs) to generate 4MW of electricity.

The 26-acre site is located in the Penrose community at the Transylvania Community airport. The developers say they want to burn solid waste from Transylvania County and other counties up to 50 miles away.

The developers have applied for a certificate from the NC Utilities Commission to be classified as a renewable energy facility.1   Even though the State has decided that wood waste and trash are renewable fuel sources, that does not mean it produces clean energy.

In addition, the developers will need an air pollution permit, a water discharge permit, and erosion and sedimentation control permit, and a solid waste permit from various divisions of the NC Department of Environment and Natural Resources.

The developers will need local building permits to begin construction.  To get Transylvania County’s solid waste, they likely will need a franchise agreement with the County.

Not much more is known about the facility.

The Public Staff of the NC Utilities Commission has responded to the developer’s application saying it is incomplete and leaves many unanswered questions.

The developers have said they are still working to finalize the design of the site.

WHY SHOULD TRANSYLVANIA COUNTY BE CONCERNED?

Trash burners are not good neighbors.

The proposed facility would have a significant and adverse impact on the health and well being of all Transylvania citizens.

The American Heart Association, American Lung Association, American Academy of Family Physicians and North Carolina Academy of Family Physicians, among others, have identified health risks associated with biomass burning, including premature death, cardiovascular harm, worsened asthma and COPD, and more.

Property values in the area will decline because of toxic emissions, foul odors, loud noise, increased trash trucks on county roads and constant dust. 3

Local real estate agents already have reported negative impacts on residential sales in the area as a result of the proposal.

Tax revenues and other non-polluting economic development are likely to decline.

WHAT CAN THE COUNTY COMMISSIONERS DO?

They can pass a moratorium on building permits for all polluting industries or just for biomass facilities, specifically, to provide the county much-needed time to consider a long-term policy on biomass and other polluting industries.

Counties have the statutory authority4 to pass a moratorium, and regularly do so when faced with new industries such as trash burners.

Dr. David Owens at the UNC School of Government states that a moratorium may be adopted “when unexpected threats to the public health and safety arise, necessitating quick action to prevent harm to public interests while a permanent ordinance is being prepared, debated, and adopted.”5

Dr. Owens’ survey of moratoria passed in North Carolina between September 2005 and early 2009 showed that, of the 72 counties responding, 17 had adopted or extended moratoria —nearly one-quarter of all counties responding.6

Most commonly, those counties reported passing a moratorium to have time to develop regulations for a particular land use, rather than to create a land use development plan or county-wide zoning.7

Dr. Owens further reported that few of the moratoria adopted in North Carolina are challenged in court.8

Other North Carolina counties have used moratoria under circumstances similar to what Transylvania County is facing.

Several years ago, Ashe County, which like Transylvania County has no zoning, passed a one-year moratorium when an asphalt plant was proposed in a residential area.

This moratorium was upheld in state and federal courts as a legitimate tool of local governments.9

Likewise in April, Anson County passed a five-year moratorium to give the county commissioners the opportunity to prepare for potential fracking operations.

In 2010, Swain County, also without zoning, passed a moratorium on the issuance of building and soil erosion control permits for the construction of telecommunications towers, and related structures.  These are only a few examples.

 HOW CAN THE COUNTY COMMISSIONERS DO IT?

The governing statute10 lays out precisely the information that must be included in the ordinance establishing a moratorium, namely:

(1) A clear statement of the problems or conditions necessitating the moratorium, other courses of action considered by the County and why they were not adequate.

(2) A clear statement of the development approvals subject to the moratorium and how a moratorium will address those problems or conditions.

(3)  An express termination date and statement as to why the duration is reasonably necessary to address the problems or conditions that led to the moratorium.

(4)  A clear statement of the actions and a schedule for the county to take such actions during the moratorium to address the identified problems.

The procedural requirements are fairly simple for a moratorium lasting longer than 60 days.

The commissioners must publish notice of a public hearing on the moratorium, once a week for two successive calendar weeks.  The first published notice must be at least 10 days but not more than 25 days before the date set for the hearing.11

The statutes12 further outline circumstances under which, absent an imminent threat to public health or safety, a moratorium cannot apply.

A project for which a valid building permit is outstanding or a conditional use permit application or special use permit application has been accepted, cannot be subject to a new moratorium.

A moratorium will not apply when the county has approved a site-specific development plan or a phased development plan following notice and a hearing, or where substantial expenditures have already been made in good faith reliance on a prior valid administrative or quasi-judicial permit or approval.

Finally, a moratorium cannot apply where preliminary or final subdivision plats for a project have been accepted for review by the county.

Based on all publicly disclosed information, none of these limitations apply to the biomass proposal at this time.

The developers of the biomass proposal do not have a valid building permit, conditional use permit, or special use permit.

The County has held no hearing on nor approved a site specific development plan or phased development plan related to the biomass proposal.

On May 15, 2013, in direct response to an inquiry from People for Clean Mountains, Artie Wilson, Transylvania County Manager, stated he is not aware of any assurances the County has made to the developers regarding approval of the project. Thus, there could be no good faith reliance by the developers on a prior permit or approval.

Moreover, there is no legal authority stating that merely applying for a state permit, such as the NC Utilities Commission application process, constitutes “substantial expenditures” creating vested property rights in a developer. Finally, this is not a project that would require final subdivision plats.

In summary, not only can the County Commissioners act, it is imperative they act quickly.

The moratorium would greatly inhibit the developers’ efforts to obtain State permits and approval and impede further progress on the project, while allowing the County time to debate and develop regulations for these types of polluting industries.

For more information, see the following websites:   www.peopleforcleanmountains.org and www.bredl.org

John D. Runkle is an environmental attorney based in Chapel Hill. Runkle has been retained by People for Clean Mountains in their opposition to the proposed Penrose Biomass Facility. Runkle has worked extensively with Blue Ridge Environmental Defense League to assist a number of other North Carolina counties to implement non-polluting industry ordinances and moratoriums.

REFERENCES

 

[1]  Available at (“docket information” “docket search” docket is SP-2537, Sub 0).

2 Circulation, Journal of the American Heart Association, “Particulate Matter Air Pollution and Cardiovascular Disease:  An Update to the Scientific Statement from the American Heart Association,” May 10, 2010, http://circ.ahajournals.org/content/121/21/2331.full.pdf;  American Lung Association, Public Policy Position, “Energy,” June 11, 2011, www.lung.org/get-involved/advocate/advocacy-documents/ala-energy-policy-position.pdf; American Academy of Family Physicians letter, April 23, 2010, http:www.stopfibrowatt.com/images/American_AFP_Letter_4-23-10.pdf; North Carolina Academy of Physicians letter, April 19, 2010,

2 Circulation, Journal of the American Heart Association, “Particulate Matter Air Pollution and Cardiovascular Disease:  An Update to the Scientific Statement from the American Heart Association,” May 10, 2010, http://circ.ahajournals.org/content/121/21/2331.full.pdf;  American Lung Association, Public Policy Position, “Energy,” June 11, 2011, www.lung.org/get-involved/advocate/advocacy-documents/ala-energy-policy-position.pdf; American Academy of Family Physicians letter, April 23, 2010, http:www.stopfibrowatt.com/images/American_AFP_Letter_4-23-10.pdf; North Carolina Academy of Physicians letter, April 19, 2010,

http://incineratorfreemecklenburg.files.wordpress.com/2011/03/ncafp-biomass-letter.pdf

3 Kiel, Katherine & McClain, Katherine, “The Effect of Incinerator Siting on Housing Appreciation Rates,” Journal of Urban Economics 37, 311-323 (1995).

4  N.C.G.S. §153A-340(h).

5  Owens, D.W., “Land Use Law in North Carolina,” UNC School of Government, 45-47, 2006.

6 Owens, D.W., “Development Moratoria:  The Law and Practice in North Carolina,” UNC School of Government, Special Series No. 26, p. 9, December 2009.

7 Owens, D.W., “Development Moratoria:  The Law and Practice in North Carolina,” supra, at 12.

8 Owens, D.W., “Development Moratoria:  The Law and Practice in North Carolina,” supra, at 13.

9 Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430 (2002)

10 N.C.G.S. §153A-340(h).

11 N.C.G.S. §153A-323(a).

12 N.C.G.S. §153A-340(h).

 

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