CPP launched a three-part series in March focusing on the Mountain Mist Mine and concerns from the community regarding the permitting process for the mine to operate. CPP reached out to the Mountain Mist Mine owner, the representing firm and other mine owners for comment, but they chose not to comment.
In part one, reporter Jack Igelman provides the context and background for the mine and the community’s concerns.
Tim Burnette, 54, moved into his modest ranch home in McDowell County in 2010. He has lived his entire life in the picturesque valley where he and his wife raised two children. The neighborhood where they live is known as Hicks Chapel, and it’s located between McDowell’s county seat, Marion, and Woodlawn, a rural community of modest, well-kept single-level homes separated by relatively large lots, some of them bordered by forest.
The problem is that since he moved in, he’s watched muddy water flow down Hicks Chapel Loop, the single two-lane state road in this rural community, several times. He shared this as he sat on a rocking chair on his porch on a Sunday afternoon in November. He pointed to his grandmother’s modest house that sits nearby on land his great-grandfather farmed beginning in the 1930s.
“My sister lives there now with her husband. The trailer on the hill is a cousin who has been there 20 years. Below him is his mother’s original home, which they rent. Above her is my aunt’s place,” explained Burnette, a rooster crowing in the background. “What I’m trying to say is there are many folks that have been here for decades.”
Looking out from his porch with him, it was easier to understand his community and the impact a recently permitted mine has had on it. The mine had been shut down in 2021 for operating without a permit, but now it is back.
Burnette pointed to the cluster of small, aging but well-maintained houses with sizable yards that make up what he calls a working-class neighborhood.
“The reason we live here is because it’s community. It’s family,” said Burnette, a trim, soft-spoken man with graying hair. He is wearing blue jeans and a button-down checkered shirt with a yellow packet of rolling tobacco in his chest pocket. He is a state-employed electrician. His back porch overlooks his roughly 2-acre backyard along a tributary of Tom Creek that includes his wife’s garden and a badminton net.
“If I pick up the phone right now and need help, we’ll have neighbors here in less than five minutes. There’s a sense of community; a sense of working together,” he said.
The return of the mine, however, changes things.
The Mountain Mist Mine
The source of the muddy water flowing down Hicks Chapel Loop is the steep mountainside and site of the Mountain Mist Mine, a dimension stone quarry that extracts rock from an open pit, neighbors say. The mine has operated sporadically over the last two or three decades, said Burnette. A 2003 permit application submitted to the N.C. Department of Environmental Quality by the Appalachian Stone Co. Inc. was obtained by Carolina Public Press in November.
The permit shows that the mine had been in operation “for several years.” Despite its substantial mining history in a place where quarries are common, the neighborhood and many of its residents have an even longer history. Since the neighborhood came first, should the mine have a greater burden in seeking a permit? Not according to the mining law.
When the mine is active and during heavy rains, mud, silt and small rocks wash down an unpaved mining access road, Burnette said. All this can collect on the paved road and in ditches, creating pools of muck and gravel in neighboring yards.
Twice, Burnette has excavated the ditch along the roadside above his home to prevent it from overflowing with sediment and spilling into his front yard. Other times, the state cleared the ditches on the road’s edge, he said.
When it rains more, there is significant sedimentation, small rocks and ground-up dirt and sand that comes from the mining property, said Burnette. The runoff includes muddy water, leaving behind sediment in the roadway and in the roadside ditches and making it more likely to spill into yards the next time it rains.
CPP reached out to additional residents around the mine for interviews. The ones who agreed to be interviewed requested to be unnamed, but granted permission for the information they shared to be used on background to inform the story.
A neighbor who wished to be unnamed said silt, rocks and mud combine in a muddy flow along a mining access road onto Hicks Chapel Road during sudden bursts of rain or during prolonged rain events. The most recent flooding was in June 2021, according to the resident who said neighbors have become accustomed to the runoff.
The impact of the runoff may be manageable, but this community has struggled under current state mining rules to have their concerns heard about the impact of the quarry just yards from their homes. Burnette worries that his requests to enforce the mining act responsibly to minimize the negative impact around their homes and in the nearby environment will go unnoticed by state regulators.
Although the Mountain Mist is a relatively small operation, the combined scale of mining across the state is significant. The N.C. Mine Inventory on the NCDEQ website lists 133,000 acres in North Carolina, roughly half the area of McDowell County, that are active mines and permitted by the state. That figure does not include reclaimed mines, mines operating under a 1-acre permit threshold or mines that operated before the state’s mining act was passed in 1971. Reclamation refers to the reasonable rehabilitation of the land previously used for mining.
The Hicks Chapel community isn’t alone in its concerns about the impact of mining. For example, a controversial quarry in Yadkin County and another near Cary have put state mining regulators under scrutiny as they oversee and regulate mining legislation created over five decades ago.
The challenge is for Burnette and his neighbors to navigate a complicated set of laws and rules that are difficult to grasp. While they may have legitimate concerns about the nuisance of a quarry and its impact on their water source, state regulators must follow the due process of the law, placing a heavy burden on the community.
In North Carolina, quarries, or mines such as the Mountain Mist, are regulated and inspected by the state DEQ’s Division of Energy, Mineral and Land Resources, or DEMLR. The N.C. Mining Act of 1971 set out regulations, such as mines greater than 1 acre requiring a permit.
The Mining Act “reflected growing efforts to influence environmentally sound practices in the mineral industries in North Carolina,” according to a history of N.C. State University’s Department of Materials Science and Engineering .
In an April 1971 address to the N.C. General Assembly, then-Gov. Bob Scott said “a groundswell of public concern for the environment” led to the proposal of five major bills, including a mining act and an environmental policy act.
“A major purpose of the proposed mining law is to require that mined-over lands be reclaimed by some reasonable procedure,” Scott said. Prior to the mining act, there was no legal requirement to restore abandoned mines.
An inquiry by CPP in May 2021 triggered an inspection that the Mountain Mist reached and exceeded that threshold. An inspection in 2009 had indicated the mine was less than 1 acre.
In May 2021, the state’s mining agency cited Mountain Mist for operating two mines without a permit. Despite the violations and mounting opposition from neighbors, Mountain Mist will be able to operate again, this time with a permit that expands its size to over 5 acres.
The DEQ must apply the mining law to deny a permit. As a result, without an ongoing violation of the law, there isn’t a legal reason to deny a permit. In the case of operating without a permit, the corrective action is to apply for a permit. The mining act does not include operating in the past without a permit as grounds to dismiss a future applicant.
Burnette and other neighbors of the quarry recently took a major step in their concerns about the mining activities, filing a petition with the N.C. Office of Administrative Hearings.
The OAH, an independent, quasi-judicial agency presiding over administrative law, was created by the N.C. General Assembly in 1985 to hear appeals of decisions made by the state government. The OAH contested cases intend to provide impartial judgment when a citizen has a complaint with a state agency.
A hearing is set for April 4 at 9 a.m. in the Haywood County Justice Center. Burnette is among one of 12 individuals who filed a petition.
While Burnette’s primary concern is the threat to drinking water and groundwater, he is also troubled by the lack of transparency and indifference to the safety of the community from state regulators.
“Regardless of our protest letters, we didn’t get a public hearing. We were blown off by the [state regulators], and our concerns were trivialized. We only got updates when we specifically asked,” he said.
Burnette said the most pressing concern is water quality in addition to noise, dust and other inconveniences caused by a mine operating within view of their homes.
DEMLR did not comment since the case is pending.
The proposed mine, said Burnette, threatens a natural spring used by multiple families approximately 90 feet from the proposed mine property lines. The springs, he said, have been in use for more than 55 years in lieu of a public water supply, which is not available.
“That raises a significant concern for us,” Burnette said.
According to family lore, Burnette’s grandfather purchased the land because of the presence of a “good bold spring.” The spring that likely captured his grandfather’s attention is actually three separate flows clustered together, each spilling from the ground via a rock ledge exposed in the side of the mountain cloaked by a dense canopy of rhododendron. The springs’ ample flow fills three reservoirs that distribute to a dozen homes.
“We have a resource that has a significant value,” he said. “To replace these springs would be a significant cost. If they’re damaged, we’re going to have to bear some costs somewhere. I feel like there should have been some consideration for that.”
For additional information, here are a list of resources:
In part two, reporter Jack Igelman explains the permitting process, its timeline and the community’s specific concerns. CPP reached out again to the mine owner and representing firm and will include their perspective, if they choose to comment, in the last part of this series.
The Mountain Mist Mine is one of a handful of open pit mines clustered along U.S. 221 several miles north of Marion, the McDowell County seat. Commonly called quarries, an open pit mine extracts rocks and minerals from the ground’s surface.
Along the edges of the highway are several open pit quarries and rock sellers who pack rock in 1-ton wire baskets. Among the many varieties of stones, according to the once-active website of Carolina Graystone Quarries which operates nearby, is Mountain Mist, a grayish-blue rock with rusty streaks.
The corridor of mining activity is hemmed by Pisgah National Forest and dotted with a handful of rural residential communities, including the one where Tim Burnette, 54, lives.
At best, the quarries provide jobs, income and building stone for commercial and residential projects throughout the region. At worst, the open mines are a source of mud, dust, noise, sediment and, to some, an eyesore. On windy days, dust settles on furniture when windows are open.
Burnette said he can live with the dust and mud, but concerns about his family’s water supply is another story.
“Do I want a mine in my backyard? No. But I have quite a few friends who work in this business. They have a job. They are contributing to the community,” he said.
Burnette isn’t opposed to mining as long as the mine owners obey state mining laws and control sedimentation.
Burnette’s main complaint is the lack of transparency in the permitting process and a lack of regard for his neighbor’s concerns about the mine. Some of those concerns include protecting the community water sources, noise, blasting, dust, runoff and the fear that a larger mining operation could magnify some of the inconveniences of living next to a quarry.
“We feel as if the [N.C. Department of Environmental Quality] has said, ‘If you’re a small landowner, you have no political pull. You have no political connections. So we have no interest in you,” Burnette said. “Collectively, the folks who have spoken out feel that we have been stonewalled at each turn. [DEQ] has not been at all transparent.”
The state Mining Act requires the permit applicant, in this case Mountain Mist Mine mining permit No. 5646, to notify property owners within 1,000 feet of the mine during the permit application. In response to Mountain Mist’s permit application, several neighbors sent letters in protest to make regulators aware of their concerns, specifically asking for an opportunity to address the mining operator and state regulators.
Josh Kastrinsky, public information officer for the N.C. Division of Energy, Mineral and Land Resources,said the agency reviews all comments, emails and letters sent to the state in regard to a permit application. He declined to comment on specifics of the Mountain Mist Mine permit since the contested case remains active.
Burnette thinks DEMLR has not adequately addressed the potential risk to the area’s water source and the future costs of replacing it if mining does damage it. “Some of the previous operators of the mine had little regard for adjoining residential properties,” said Burnette. For example, runoff from the mine has been consistent during heavy rains for over a decade.
CPP reached out to the mine applicant, Kenneth Waycaster, in 2021 and he chose not to comment. More recently, CPP has left messages for Waycaster requesting comment on this story.
Public hearings are one method to survey citizen opinion about an application before a government body. Public meetings are useful for sharing information to raise awareness about a proposed project and serve as a starting point for further public involvement, states the U.S. Environmental Protection Agency in its public participation guide.
In lieu of a public meeting, Burnette and his neighbors have succeeded in gathering information using email or wading through the state’s permit file server. In some cases, Burnette’s emails with questions are answered by state mining experts. In other cases, his questions have been channeled through a state attorney since the case is in litigation. Those obstacles, perhaps, have made it more challenging for Burnette and neighbors to share experiences, such as the persistent flow of mud and silt during heavy rain events, with the mine’s operators and regulators.
“I feel like the state is strongly biased toward the premise of issuing a permit rather than freely providing information to citizens that may be affected,” Burnette told CPP on Feb. 26.
History of the Mountain Mist Mine
Twenty years have passed since the Mountain Mist, under a previous operator, initially applied for a permit. The following timeline highlights the regulatory oversight of the Mountain Mist leading up to the state permitting the mine in 2022.
2003: Ronnie Stevens and Kevin Washburn applied for a permit to mine 4 acres on the present site. That application was withdrawn.
2008: State mine inspection included in the report that the operator must obtain a permit.
2009: State inspects mine and determines it is less than 1 acre and did not require a permit.
April 2021: CPP contacts state regulators to request information about the Mountain Mist Mine, triggering an inspection.
May 2021: The state’s mining agency cited Mountain Mist for operating two mines without a permit.
August 2021: Waycaster Stone Inc. applies for a permit to operate the Mountain Mist Mine.
October 2021: Regulators request additional information.
December 2021: A revised permit application is submitted.
June 2022: Permit is granted.
July 2022: Petition filed against the state for violation of rights.
December 2022: A modified permit is granted.
Burnette recalls using the forested land now part of the Mountain Mist Mine as a place to ride bicycles, hunt and explore. “If kids wanted to play there, they were welcome to play,” said Burnette. He’s unsure of the exact year but said there was a small amount of mining on the property in the late 1980s or early 1990s.
Based on records from the NCDEQ, the neighborhood was established before mining activity began next to Burnette’s neighborhood.
In 2003, previous mining operators Ronnie Stevens and Kevin Washburn applied for a permit to mine 4 acres on the present site. That application was withdrawn. Records indicate the mine was inspected in 2008 and 2009. The 2008 inspection appeared to be triggered by a 2005 request to the operator by the state referred to in the inspection as an “Additional Information Letter,” wrote the inspector. The inspections were sent to CPP in response to a public records request. The state did not share the “additional information letter. They were either unable to find it or it was never delivered.
The 2008 inspection report identified the potential for off-site damage, identifying the need for sediment and erosion control measures; the report also stated that the operator “must obtain a mining permit.” In 2009, an inspection listed the size of the mine as 0.6 acres. Burnette said that several neighbors had spoken out by writing letters to state regulators expressing concerns about the mine, but he doesn’t fault neighbors who haven’t.
In April 2021, other people contacted by CPP in the neighborhood, as well as public comments during the permitting process, confirmed similar issues, such as runoff, with the Mountain Mist Mine. For example, one neighbor contacted several local and statewide environmental organizations to better understand the short- and long-term impacts, such as the effect on water and air quality, of mining near their home and on the environment. The neighbors were unable to find adequate information about the mine or its requirements to reclaim the land once the mining operation closes.
At the time, the neighbor contacted CPP with questions about requirements for mines to reclaim their land and questions about other mining regulations. The N.C. Department of Environmental Quality digital map of mining permits showed that the mine property had a pending permit.
After a CPP inquiry about why the permit was still pending, state officials inspected the mine on May 19, 2021, and discovered a second quarry adjoined by a common access road. Despite the 2008 inspection suggesting the mine needed a permit, the quarry was not inspected for more than a decade. The lack of oversight may demonstrate the challenge of regulating small mines that operate at the threshold of requiring a permit.
The May 2021 inspection showed that both quarries on the Mountain Mist site exceeded 1 acre and required a mining permit to continue their operations. The acreage of the active mine areas at the time of inspection in 2021 were 1.5 acres and 1.36 acres. The agency cited owners of the two rock quarries for failure to obtain proper permits, forcing the operations to cease.
Even small mines can have a measurable impact on the environment. Land management and reclamation practices often depend on the operator’s standards, UNC Asheville geologist Brittani McNamee told CPP in 2021. “There are plenty of good, environmentally conscious businesses in the state,” but not all, she said. “It really falls on the priorities of the company.” McNamee is referring to the level of stewardship practiced by industries that have an environmental impact and demonstrated through continuous improvement of environmental impact.
Leftover topsoil and subsurface removed to extract rock are prone to erosion and become a source of runoff and sedimentation, potentially flowing into the watershed and disrupting ecosystems. Additionally, small clearings disturbed by mining are ripe for infestation by nonnative invasive plants that can gain a foothold and spread into adjacent forests.
The permit specifies the conditions of restoration once a mine closes. The owner or operator of the mine must either restore the land or apply for a permit to continue mining. In this case, the operator chose to apply for a permit.
On Aug. 18, 2021, Freeman Environmental Consulting Inc. of Spruce Pine submitted a permit application on behalf of Waycaster Stone Co. Inc. to extract crushed stone. The application proposed impacting a total of 5.94 acres within a 26.3-acre area adjacent to the Hicks Chapel community.
According to the N.C. Mining Act of 1971, notices are delivered to all adjoining property owners within 1,000 feet of the boundary.
Several members of the community sent letters to the state expressing concerns with the Mountain Mist requesting a public hearing to address concerns about the mine’s impact, the quality and volume of the spring, the impact of blasting, runoff, dust and the potential loss of their property’s value.
CPP contacted residents who sent letters to NC DEQ for interviews. Those residents chose not to respond to requests, not to speak to CPP, or did not speak on the record.
“Regardless of our protest letters, we didn’t get a public hearing. We were blown off by the agency, and our concerns were trivialized,” said Burnette. “We only got updates when we specifically asked,”
There is no legal requirement that the agency hold a public hearing. It is at the discretion of the mining agency if “significant public interest exists,” according to the Mining Act, within 60 days of the end of the 30-day comment period. The mining act does not provide guidance on the threshold for public interest.
According to the state’s mining inventory, the state has convened 40 hearings since 1980. Over 2,300 mines are listed in the database. The N.C. Mine Inventory is a spreadsheet which provides a range of data, including the size of the mine, its location by county, the commodity mined and its inspection history.
Seldom has DEMLR denied a permit application. According to the agency’s mine inventory, 10 mining permits have been denied. Recently, a permit application from Wake Stone Co. was rejected because of its impact on the popular William B. Umstead State Park in Wake County.
According to a memo from Brian Wrenn, DEMLR division director, the “significantly adverse effects” of a quarry were “articulated” by “thousands of comments from the general public” regarding the impact on the park.
Other states, such as Pennsylvania, have policies whereby residents of “environmental justice areas” receive engagement opportunities during the permitting process for projects in their neighborhoods, such as landfills or mining operations. The Environmental Justice Public Participation Policy was created to ensure communities have the opportunity to participate in the permitting process of new or existing facilities that wish to expand.
Environmental justice areas are communities characterized by low incomes and a high number of minorities in which 20% of residents live below the federal poverty line or 30% are nonwhite; 13.8% of McDowell County’s population live below the federal poverty line. Environmental justice is the notion that communities should not be disproportionately exposed to adverse environmental impacts.
Currently, the N.C. Mining Commission, the authority for mining rules, is seeking public comment on its existing mining rules. Laws, such as the Mining Act, are made by the N.C. General Assembly and can only be amended by legislative action. The N.C. Administrative Code contains the administrative rules of state agencies. The rules are created to interpret the law and govern state agencies and commissions.
State law requires each agency, such as NCDEQ, to review each decade existing rules that are used to interpret and enforce laws, such as the N.C. Mining Act. For example, the rules stipulate what must be included in a permit application; the standards for denying an application; conditions for holding a public hearing, among others. Citizens may object to the rule by submitting a written comment to NCDENR by April 4. The N.C. Mining Commission will draft a new set of rules based on comments later this year.
After review and input by a range of federal and state agencies, such as U.S. Fish and Wildlife, DEQ issued a mining permit to the Mountain Mist in June 2022. A month later, residents, uneasy about the potential impact of the permitted mine on a natural spring, filed petitions objecting to the permit’s details. Instead of a public hearing, residents of Hicks Chapel will have an opportunity to defend their position in a North Carolina court room on April 4.
In this last part, reporter Jack Igelman explains the permitting process, actions the community members have taken and the upcoming hearing for the petition.
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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