Carolina Public Press published a three-part series focusing on the Mountain Mist Mine and concerns from the community regarding the permit review process for the mine to operate. In this last part, reporter Jack Igelman explained the permitting process, the actions the community members have taken, and the upcoming hearing for the petition. To read part one and two in the series.
In North Carolina, mines greater than 1 acre require a state permit. In 2019, an investigation by Carolina Public Press following a tip from a neighbor triggered an inspection of the Mountain Mist Mine in McDowell County, leading to two violations for mining without a permit. Two years later, the N.C. Department of Environmental Quality, issued a permit to allow the mine to extract dimension stone from an open pit that is adjacent to the rural, residential community of Hicks Chapel.
After reviewing the Mountain Mist permit, regulators requested additional and revised information on Oct. 7, 2021. This included:
- Clearer labels of streams, rivers and lakes.
- The location of wells on adjoining properties.
- A review of endangered species by the U.S. Fish and Wildlife Service, which is among several state and federal agencies that review each permit application.
On Sept. 10, 2021, the N.C. Division of Energy, Mineral and Land Resources’ Land Quality Section received a letter from Marvin and Melissa Driggers regarding three springs that provide residential water to many of the homes in Hicks Chapel. The Driggerses declined to comment. The letter details their concerns and a history of the springs excavated by Tim Burnette’s grandfather and located on their property.
Public records show that state regulators addressed concerns about the location of waterways on and near the mine but did not address the location of the spring.
The agency requested changes to the permit application, which resulted in a revised application. Submitted in December 2021, the revised application decreased the footprint of the mine from 26.3 acres to 18.63 acres by removing portions of the original footprint of the permit that was submitted in August 2021.
The change in the size of the mine permitted was the result of removing a portion of its boundary in order to exclude a tributary of Toms Creek. The change demonstrates that the process to approve permits is influenced by state regulators charged with overseeing natural resources, such as waterways.
The revised permit application, according to Burnette, did not address many of Hicks Chapel residents’ primary concerns: the spring cleared by his grandfather on the Driggers’ property that provides their residential water.
Burnette does not understand why the regulators did not pay attention to the spring. While adjustments were made to protect a tributary of Toms Creek, the boundary of the permit and a proposed excavation area are near the natural springs, too close, in the opinion of Burnette and others who filed a petition. Letters from Hicks Chapel residents to regulators raising concerns about the spring were dated September 2021. This preceded the state’s request in October 2021 to provide clearer locations of streams and wells on adjoining properties.
“[DEMLR] was aware of the springs’ location and our concerns,” said Burnette. “We made DEQ aware of our concerns early in the process.”
The mining application process
In North Carolina, property owners can extract stone from their property as long as the size of their quarry does not exceed 1 acre. However, once a mining operator or property owner seeks a permit, the N.C. Mining Act rules set by the N.C. Mining Commission provide guidance for regulators to shape the activities and boundaries of the proposed mine.
As part of the review of the application, the N.C. Mining Act requires the state to notify a range of state and federal regulatory agencies, including the state Division of Air Quality, Division of Water Resources, and U.S. Fish and Wildlife Service.
A review by the FWS provides insight into how the application process identifies the impact of mining on various resources held in the public trust, such as wildlife. The concept of “public trust” refers to the government’s role in managing a common resource for the benefit of the resource and for citizens of the state.
In October 2021, DEMLR requested a review from FWS. According to Gary Peeples, an FWS public affairs specialist in Asheville, FWS specialists provide guidance and feedback to DEMLR to determine if there are federally protected plant and animal species in the area.
In a letter to DMLR, Peeples recommended surveying the area for suitable habitat affected directly or indirectly in the “action area.” A five-page summary provides recommendations for protecting species and habitat.
“In the event suitable habitat is present for any species, we recommend that species surveys be conducted during the appropriate time frame to ensure that no populations of rare species are inadvertently affected by the proposed project,” he wrote.
In all, the FWS identified 11 species with federal designations, including the northern long-eared bat. The bat’s habitat includes heavy forests, where it lives in vanities and crevices in live and dead trees. In November 2022, the bat was reclassified by the FWS as an endangered species under the federal Endangered Species Act.
The onus, said Peeples, is on the agency to see if protected wildlife is on the property. Since it’s a private land owner with no federal funding or permits, the endangered species act requires that they avoid any impacts to species.
While the habitat, plants, soil and rock are the property of the landowner, wildlife is a common resource held in trust, said Peeples.
In February 2022, Kevin Thomas an ecologist from Civil & Environmental Consultants, Inc., based in Charlotte conducted a site survey on 2.8 acres of the permitted site. Thomas is a professional wetland scientist and North Carolina-licensed soil scientist,
The report surveyed five species in McDowell County, none of which were identified, and among them, only the northern long-eared bat has “suitable habitat present” but is not likely to be adversely affected.
There may be little incentive for an extraction industry, such as mining, to protect habitat for wildlife. Identifying rare habitat or protected species may invite additional state or federal regulations, such as protecting habitat for the long-eared bat. The identification of the presence of endangered species or habitat may depend on the mining operator’s environmental standards.
The extent of environmental compliance by operators, said Peeples, can vary in situations related to protecting wildlife. Peeples told CPP that hiring a consulting firm is one strategy to address compliance with federal laws. Another strategy, said Peeples, is to assume the species is there and figure out a list of steps to minimize the impact or avoid the impact.
Peeples said that with a relatively small footprint, chances are slim that any of the species are present. “It’s not like this mine is going to make any of these extinct, but if no one is assuming that they are there, no one is looking for them,” he said. “Five individual acres may not mean a hill of beans, but 5 acres all over the landscape starts to add up.”
In June 2022, Mountain Mist was issued a permit after meeting the requirements of the state’s Mining Act of 1971. It was approved to extract rock on 5.94 acres on an 18.6-acre site. The permit was issued to Waycaster Stone Co. Inc. The amended permit did not adapt the number of acres mined or disturbed, which includes roads, waste piles and collection ponds.
Burnette was asked in November 2022 whether he believed the state should consider that the neighborhood was established before the mine in its decision to approve a permit. Other questions that also are important to consider in the permitting process could be:
- Should a neighborhood that existed prior to mining have the right to be protected from the impact of a quarry?
- Should operators have the right to use their property as they see fit? And if a neighborhood and mine coexist, should the mine be required to make adjustments or provide compensation for the costs imposed by the mining on the neighborhood?
- For instance, who should be required to clear the roadside of sediment?
“The state is in the process of approving permits,” he replied. “I have no argument with the mine if it is done by the regulations.”
Burnette and neighbors within 1,000 feet of the mine received a notice in June 2022 of the permit application and the right for citizens to file a contested case for the issuance of a new mining permit in the Office of Administrative Hearings within 60 days after the division provides notice.
The OAH is an independent, quasi-judicial agency presiding over contested administrative law cases and intended to provide impartial judgment when a citizen has a complaint with a state agency. Hearings are open to the public, except in limited circumstances.
Burnette and nine other households petitioned the state in July 2022, which was consolidated into a single complaint with 12 names listed in September 2022. Each petition identified a common theme: Mining could disrupt or contaminate their water supply.
An independent administrative law judge employed by the state’s OAH ruled on the petition and scheduled a hearing for April 4, 2023. Each party — the petitioners and the mining regulators — has the opportunity to present its case. The judge has 45 days from the end of the hearing to issue a decision; however, a party may appeal the decision.
The OAH website provides a guide explaining how to file a contested case and an explanation of the hearing process. It’s possible the decision could be appealed and will depend on the appeal process outlined in OAH Judge John Evans’ final decision, since not all cases follow an identical appeal process.
Burnette may have preferred a hearing before the permit’s issue, but he still has an opportunity to make his case for why the state has failed to ensure the residents’ water source is protected.
A timeline of the history of Mountain Mist Mine is included below:
July 2022: Hick Chapel residents petition the state regarding the mine’s impact on their water source. The petitions are consolidated into a single petition.
October 2022: N.C. Assistant Attorney General Carolyn McLain moves to resolve the challenge by removing 2.9 acres from its operation.
November 2022: A pre-hearing telephone conference is held to resolve the contested case. The scheduled December 2022 hearing is postponed.
December 2022: Mountain Mist Mine was issued a modified permit.
Jan. 17 2023: The state files a settlement agreement and withdrawal of petitions. Not all petitioners sign the settlement.
Jan. 20 2023: OAH Judge John Evans files a notice of hearing to be held April 4, 2023, in Haywood County.
On Oct. 18, 2022, N.C. Assistant Attorney General Carolyn McLain, filed a motion to resolve the neighborhood challenge to the mine.
According to the motion, the mine operator offered to remove 2.9 acres from its active operation to create a larger forested buffer above the springs’ source. The state’s opinion is that removing the 2.9 acres will adequately protect the springs from the impact of extracting rock.
Driggers and Waycaster, it said, agree that the proposed action will adequately protect the natural spring, which is located on the Driggerses’ property. The family declined to comment.
A settlement agreement and withdrawal of petition was filed Jan. 17, 2023. The agreement included signatures of five of 10 individual petitioners. Burnette was not among the signers. According to the agreement, not all neighbors are required to sign off. This may explain why the case remains open and is not settled. However, it’s possible that the contested case remains open since Burnette and others have not signed off.
Burnette told CPP on Feb. 26 that he felt that he was under pressure to sign the withdrawal of the petition and was unclear if his signature would prevent further legal action against the state.
“I can’t sign that in good faith when I don’t feel like it is a valid permit,” he said, because the state has failed to, in his opinion, adequately evaluate the impact of the mine on the water source.
On Jan. 20, 2023, the administrative law judge, Evans, filed a notice of hearing scheduled for April 4, to hear the case in Haywood County. Evans’ law clerk said OAH does not comment on open or ongoing contested cases.
Burnette said that the additional buffer of land in the modified permit may be sufficient, but he would have preferred an evaluation by a geologist on the potential impact of mining on the springs before that was determined.
“If the size of the previous activity was found to be under 3 acres and we are experiencing these issues now, what will the impact of another 3 acres of mining activity look like for the residents living in this area in the future?” Burnette said.
Burnette pointed out that stone harvesting has been a steady industry in McDowell County for many years. If the current price of stone products is a future indicator, the Mountain Mist could generate future profits for its owners.
For people who live nearby or drive down the U.S. 221 highway corridor, the prospects are murkier.
“Whenever I drive on the road, I think, ‘What in the hell?’” conservationist Jay Leutze told CPP in 2021. He often drives U.S. 221 from his home in Avery County to Asheville. “A whole landscape is becoming a sacrifice zone to the decorative stone industry. No other economic activity wants to locate close to it.”
Leutze wrote “Stand Up That Mountain,” a book about a rural community’s conflict with a mining operation near his home and within view of the Appalachian National Scenic Trail.
Leutze and his neighbors convinced regulators to shut the mine based on an argument that the operation had an impact on views from the Appalachian Trail.
Not far from the Mountain Mist Mine, within view of the four-lane roadway, are numerous open-pit mines waiting for stone to be excavated and stacked on crates and trucked to work sites throughout the region.
Burnette sees mining as necessary because of its valuable commodities and products.
Yet, as Burnette knows, mining comes with potential consequences: soil erosion, water pollution and dust. Mining can also alter the landscape by disrupting ecosystems that have consequences for neighboring communities, such as impact on water quality and availability. Beyond those tangible and noticeable effects are the social consequences. In this case, Burnette and other community members have dedicated hours of their personal time to ensure the well-being of their neighborhood. Speaking out may also have risks in this small rural community.
With hundreds of mines throughout the state, Burnette and neighbors are likely not alone in sorting out the laws and rules related to the permitting and enforcement of mining.
“I just wish the laws in place were more evenly and openly enforced,” he said. “Once a permit is issued, it is permanent” is how he interprets the Mining Act.
Their goal is not to shut the mine, but rather to ensure that the economic benefits of the mine are carefully balanced with the negative consequences on neighboring communities.
For additional information, here are a list of resources:
- Public comment on mining commission rules
- NC Mine Map
- Mining permits sorted by county
- Pennsylvania is revising its environmental justice policy. Here’s what’s changing
- Environmental Justice Public Participation Policy
- Percent of Population Below the Poverty Level (5-year estimate) in McDowell County, N.C.
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