Mining in your backyard, finale: The story of Mountain Mist Mine and the neighbors contesting it

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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.

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 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.”

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.

In July, a North Carolina administrative judge affirmed a permit issued to the Mountain Mist Mine in McDowell County. Water quality concerns raised by neighboring residents led to a petition seeking to alter the size of the mine. Although the N.C. Department of Environmental Quality assured residents that mining operations wouldn’t harm their natural water source, residents worry that they will be the ones solely responsible for bearing the future costs of repairing or replacing their source of drinking water.

During the April 4 hearing held in the Haywood County Justice Center, N.C. Assistant Attorney General Carolyn McLain emphasized during her closing argument that the division operates as a complaint-based system, actively welcoming public feedback.

“A lot of times the public knows more on the ground than we do, and we do our best to receive and identify any concerns,” she said.

Residents can contact one of the regional DEQ offices if they believe their natural water source is impacted by mining operations. 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, and guided by the N.C. Mining Act of 1971.

Establishing a causal relationship between what the mine is doing and the quality of the water may not be easy, according to Sara Sutherland, a Duke University environmental economist. Preventing problems before they become contentious may be less costly, she said.

Sutherland suggests a proactive approach to addressing pollution from mining could potentially lower costs for regulators, neighbors and businesses, such as an upfront agreement between the mining company and the community outlining agreed-upon standards for water quality.

Although agreements are rare, an example is a contract between Sibanye-Stillwater Mining Co. and local community organizations to protect natural landscapes while allowing mining in Billings, Mont.

Sutherland told CPP that the government’s role should be to minimize conflict resolution costs. DEQ could help facilitate and intervene between the operation and neighbors. While negotiations may have high organizing costs, they can prevent future expenses for taxpayers, mining operators and neighbors.

“If the neighbors have the right to a clean spring, there could be an agreement prior to operations beginning that said that if water quality is degraded, the mining firm provides compensation or agrees to clean the water,” she said. “That would be a proactive way for the state to help ensure mining operations have a social license to operate.”

Proving that mining has an impact on water quality may be difficult, but establishing a compensation remedy may be less costly and time-consuming than going to court.

“The key is to lower the costs of the mechanisms by which a community is compensated for the costs they bear,” Sutherland said.

Having a contracting mechanism in the law could also benefit low-income areas or places with weaker land use laws and protections in the state. According to the U.S. Environmental Protection Agency, lower-income neighborhoods may have less access to information about regulations and opportunities for public participation regarding the public oversight of mining.

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. Environmental justice is the notion that communities should not be disproportionately exposed to adverse environmental impacts.

Pennsylvania’s Environmental Justice Public Participation Policy was created to ensure communities have the opportunity to participate in the permitting process for 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.

According to the EPA, meaningful involvement in decisions involving environmental regulations means that:

It’s often more cost-effective for extractive or polluting industries to establish operations in regions with less stringent regulations or with higher proportions of marginalized racial and ethnic populations, said Sutherland. That may give a business a significant advantage since mounting a case to prove wrongdoing can be financially burdensome.

Industries that release pollution into the environment might choose to establish their operations in areas with lower income levels, where the cost of land is less expensive. They could also opt for neighborhoods where they believe the local residents have limited influence or power in political matters.

Hicks Chapel isn’t the only neighborhood in North Carolina affected by mining. The DEQ’s Mine Inventory shows that there are 133,000 acres of active mines permitted by the state. The DEQ also lists recent mine permitting updates throughout the state.

The mining permitting process is a technical process with limited opportunities for meaningful participation. Working-class or poor communities may have limited time, resources, understanding and funding to prepare a thoughtful response to a permit application.

The petition filed by Tim Burnette and his neighbors wasn’t intended to close the mine. The petition was to mitigate their concerns about the risk to their water source from mining adjacent to their community.

Using the courts to seek compensation can be costly and time-consuming. Instead, decision makers can facilitate interaction between the community and the industry to address concerns and avoid costly litigation.

While the DEQ accepts comments from neighboring homes during the mining permit process, the opportunities for the public to participate in the permitting process are limited. The state’s mining act includes information about North Carolina’s mining permit application review process.

In this case, the process of voicing concerns was largely driven by the community’s concerns rather than state regulators seeking out and facilitating community involvement.

The Hicks Chapel community had a say in the permission process. The last permit given in December 2022 changed a permit from June 2022 to remove an excavation area to protect the community’s spring and water source.

While Burnette remains uneasy about the judge’s decision to uphold the permit issued to the Mountain Mist and the potential harm to their natural spring, he accepts that the rock industry will continue to be a way of life near his home.

“I don’t have a problem with mining as a business if it’s done within the proper guidelines,” Burnette said, adding that he doesn’t regret filing the petition against state regulators. “It gave us an opportunity for our voices to be heard in a reasoned manner.”

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by Jack Igelman, Carolina Public Press September 26, 2023

Jack Igelman is a contributing reporter with Carolina Public Press. Contact him at [email protected].