Carolina Public Press’ multipart series focusing on the Mountain Mist Mine continues. In parts four and five, residents of Hicks Chapel, a rural community in McDowell County, have their day in North Carolina administrative court. To read earlier parts of the story go to Mining in your backyard: The story of Mountain Mist Mine and the neighbors contesting it – Carolina Public Press.
Residents of Hicks Chapel, a rural community in McDowell County, had their day in North Carolina administrative court in April to make a case against the expansion of the Mountain Mist Mine, a quarry that operates on a tract of land next to their homes.
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.
Following concerns raised by neighbors, in May 2021, the state’s mining agency cited Mountain Mist for operating two mines without a permit. In August 2021, the operators of the mine applied for a permit. Despite the violations and mounting opposition from neighbors, Mountain Mist was granted a permit in June 2022 to expand the mine.
In July 2022, Hicks Chapel residents filed a petition against the state of North Carolina, raising concerns about the threat to the community’s natural water source. The petition led the regulators to modify the permit in December 2022. The modification, however, did not satisfy all of the petitioners.
The neighbors’ central concern was that blasting and drilling to extract rock from the quarry could impact the community’s natural water source.
In a courtroom within the Haywood County Justice Center, McDowell County resident Tim Burnette presented his case before an administrative law judge in April. Clad in blue jeans and a matching coat, Burnette and other residents of the Hicks Chapel community, filed a petition with the N.C. Office of Administrative Hearings, or OAH, asserting that the N.C. Department of Environmental Quality, or NCDEQ, infringed on their rights by granting approval in December 2022 for the expansion of the Mountain Mist Mine, an open pit quarry near their homes. The OAH is an independent, quasi-judicial agency intended to provide impartial judgment when citizens have a complaint with a state agency
Next to Burnette sat his sister, Katrina Burnette Smith, two state attorneys, and NCDEQ assistant state mining engineer Adam Parr. Several members of their community occupied the dark-stained wood benches in the gallery, including Kenneth Waycaster, the mine operator.
The Burnettes, who didn’t have a lawyer, had to show that the agency made a mistake as they spoke for the people who filed the request. They argued that the Mountain Mist Mine poses risks to a natural spring that supplies water to several households in their rural community. The Burnettes relied on their understanding of the area’s geology to build their case without bringing any witnesses or offering expert testimony to support their argument. Their primary argument was that blasting or drilling could impact the sandstone rock and thereby degrade the quality and availability of their underground water source.
“Our concern is with the porous sandstone,” Burnette testified. He said that water moves through sandstone, and “drilling or blasting is a concern for us.”
Burnette and the petitioners did not persuade Administrative Law Judge John Evans.
In a ruling on June 19, Evans aligned with the state’s position and upheld the scope of the mining permit. The judge’s verdict not only confirmed the legality of the permit but also underscored the state’s adherence to established environmental regulations and permitting procedures. It also validated the DEQ’s assessment that the proposed mining activities would not pose detrimental effects on the community’s natural water source.
“The Mining Program believes that the issues raised by the petitioner have been resolved,” wrote DEQ public information officer Josh Kastrinsky in an email to CPP on July 11, 2023. Kastrinky did not provide additional comments on Judge Evans’ ruling.
The permit for mining operations is issued for the “life-of-site” of the operation, according to the state’s mining act. When the mining operation ceases, the operator of the mine is required to restore the site to standards included in the permit’s reclamation plan.
Background on Mountain Mist Mine and mining without a permit
The Mountain Mist Mine, a dimension stone quarry that extracts rock from an open pit, has operated sporadically over the last two or three decades. It is one of hundreds of small mining operations throughout the state.
Along the edges of U.S. Highway 221 in McDowell County 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 area where mining is happening is surrounded by Pisgah National Forest and has a few small rural neighborhoods, like Hicks Chapel.
Dimension stone is used for landscaping and construction. According to the U.S. Bureau of Labor Statistics, since June 2020, the price of dimension stone has increased 28%, reflecting strong demand from the building industry. Rising prices are the result of strong demand from the construction industry and suggest a strong future market for the Mountain Mist Mine’s harvest.
Chuck Abernathy, executive director of the McDowell Economic Development Association, said mining operations are an important source of income and jobs in McDowell County.
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.
Open pit mines potentially impact the environment and nearby communities by generating noise, runoff, and dust. The state notifies mine neighbors when a permit is requested, and if there’s enough concern, a public hearing will be held, based on the DEQ’s discretion as per the mining act.
An inquiry by CPP in 2021 triggered an inspection that determined the Mountain Mist exceeded one acre.
In May 2021, the state’s mining agency cited Mountain Mist for operating two mines without a permit, halting their operation.
For the Mountain Mist Mine, the corrective action was either to apply for a permit or reclaim the mine. “Reclamation” refers to the reasonable rehabilitation of affected land for useful purposes and protecting surrounding natural resources, but the cost can be high and varies based on several factors. Although the Mountain Mist operated without a permit, there wasn’t a legal reason to deny a permit in the absence of an ongoing violation of the law.
In June 2022, a permit was issued to the Mountain Mist Mine. Based on concerns raised by members of the Hicks Chapel neighborhood regarding their water supply, a modified permit was issued in December 2022 that removed 2.9 acres near the spring.
Despite the modifications to the proposed mine, Burnette argued that blasting to extract rock would damage the source of the spring, which is underground. He argued that the sandstone rock below the surface is vulnerable to blasting and drilling.
The administrative law hearing
The hearing ended a two-year effort by Hicks Chapel residents to navigate mining laws. It was a rare opportunity for North Carolina citizens to express their concerns about mining impacts in a public forum.
In the courtroom, Judge Evans, perched on an elevated bench, presided over the hearing. In front of him, Burnette and his sister presented their arguments. Across an aisle were two state attorneys, representing the respondent to the petition, in this case, the DEQ.
Burnette said that he felt the hearing “was a formality and the conclusion foregone.” Burnette told CPP that he believed it would be difficult to persuade the judge that the state did not thoroughly examine the potential environmental consequences of the mine on the community’s water source. But he doesn’t regret his involvement in filing the petition. “The hearing gave us an opportunity for our voices to be heard,” he said.
The state responded to the petitioner’s argument by stating that the permit’s approval included thorough inspection processes to address potential environmental impacts.
In its response to the petition, the state countered by asserting that the permit’s approval involved thorough inspection processes to account for the potential environmental harm. They stressed the importance of including sufficient mitigation measures as part of the permit’s conditions. The state argued that it followed each step of the permitting process that is outlined in the mining act. They also considered comments submitted by members of the community who shared their concern.
The state also monitors the operation of a permitted mine to ensure it follows mining regulations. Kastrinsky said the DEQ typically inspects each permitted site annually for a compliance inspection and responds to complaints about mining activities outside the bounds of permit conditions to investigate if further action is warranted.
In his argument to the judge, Burnette conceded that the modified permit issued in December 2022 would protect the spring from surface water runoff, but he criticized the state, stating that it did not fully consider the area’s geology and failed to address groundwater issues adequately.
During the hearing, Brunette directly addressed mine operator Kenneth Waycaster and stated that Burnette was not against mining.
“My concern today is not with the mine per se, but with the permit process,” he said.
“Regardless of our attempts to communicate with the department, we have been stonewalled. We have been refused information unless we knew exactly what to request,” Burnette stated. “This is a state agency [DEQ] that works for the people of the state, not just for the businesses of the state.”
The judge’s verdict
State inspectors from the Groundwater Management Branch and the Division of Water Resources responded that the mine wouldn’t harm groundwater or surface water.
State mining engineer Adam Parr testified that the modified permit would protect the natural spring.
“The department has determined that there would be no adverse impact to the spring caused by mining activity,” he said. “Otherwise, a permit would not have been issued.”
Evans agreed with Parr.
Evans upheld the permit, stating that the petitioners didn’t provide enough evidence of significant harm to the natural spring.
CPP could not reach Kenneth Waycaster for comment. However, his cousin Jeff Waycaster, who also works in the stone industry in McDowell County, said they aim to be good neighbors. CPP also reached out to Thomas Freeman of Freeman Environmental Consulting, who prepared the mining permit application on behalf of Waycaster, but he refused to comment on the case’s resolution.
Burnette told CPP that he doesn’t intend to appeal the decision. “It feels like the state is doing whatever it can to issue permits,” he said.
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Do current mining regulations require operators to make land owners whole who can demonstrate through before and after testing that water quality from wells is degraded as a consequence of mining? If regulators are confident of their no adverse effect determination perhaps the permit can be amended to reflect the owner’s future liability for unanticipated impacts to residential water supplies.
Good question. Every permitted mine is inspected. If inspectors discovered a water quality issue as a result of mining, the state can require the operator correct the cause. I presume that a neighbor could demonstrate to regulators that mining is impacting water quality, however, it may be costly and difficult for a neighbor to prove and convince regulators that there is a direct correlation between mining and water quality. The miners culpability may also depend on whether they’ve violated the provisions of their permit. If there is a permit violation, since permit holders are bonded, there are funds available to address environmental consequences.