Caswell County asked a mining attorney about its environmental ordinance. Now the commission could repeal it tomorrow.

Caswell County asked a mining attorney about its environmental ordinance. Now the commission could repeal it tomorrow.

- in Environment, Top Story
A map of Carolina Sunrock’s proposed 630-acre mine in Prospect Hill More than 420 acres of the property will be “disturbed” by the mining. Hillsborough is 14 miles south; Roxboro lies 17 miles east. DEQ rejected the air quality permit, but the company can amend it or appeal. (Map: DEQ)

Ordinance provides public with information on potential environmental impacts of polluting industries

When Caswell County Commissioners were stumped on whether mining company Carolina Sunrock could legally sidestep a local moratorium on polluting industries, they decided to hire an attorney ostensibly to give them an independent, objective legal opinion. They chose Tom Terrell Jr., a powerful lawyer who routinely represents mining interests and petitions the legislature on their behalf.

Not surprisingly, Terrell told the commissioners that yes, in his legal opinion, Carolina Sunrock does have “vested rights” to submit permit applications for a proposed mine and asphalt plant in Prospect Hill and an asphalt plant in Anderson Township, before a county moratorium expires in January 2021. Yet according to a July 27 letter obtained by Policy Watch, Terrell also offered unsolicited advice: Caswell County should repeal its Environmental Impact Ordinance. His letter also included draft language for the repeal. (Terrell is not representing the company in its dealings with Caswell County.)

Tom Terrell Jr. (Photo: Fox Rothschild)

Tomorrow morning, Caswell County Commissioners are scheduled to vote on whether to repeal the ordinance, which although rarely used, has been in place since 2003. The county announced the agenda item on Thursday, shortly before the start of the Labor Day weekend. The meeting begins at 9 a.m. and can be viewed remotely.

Although the ordinance doesn’t allow commissioners to deny or approve a permit application based on environmental impacts, it is nonetheless vital for transparency. A company’s Environmental Assessment and Environmental Impact Statement provides the public and policymakers with information about the potential effects on air, water, land and public health. It allows the public to petition state and local officials for alternatives, including building nothing at all.

“My biggest concern is our commissioners do not care about the welfare of the citizens,” said the Rev. Bryon Shoffner, who lives in Anderson, a predominantly Black community with high rates of illness, including cancer. “When they repeal this, it will open the floodgates of all types of industry to come in. We understand we’re a poor county, but let’s not kill it off to make it rich.”

Both the timing of the ordinance vote and the private legal fisticuffs suggest Carolina Sunrock is trying to find any loophole to ram its projects through. Industries often target counties like Caswell. Because it’s primarily rural, the county has no zoning, and places fewer restrictions on an industry’s choice of locations. Nonetheless, Carolina Sunrock’s proposed mines have been stymied largely by local residents’ opposition — opposition emboldened by environmental information. In January, at the urging of their constituents, Caswell County Commissioners passed a one-year moratorium on “polluting industries,” including new quarry and mining operations. In the spring, State Rep. Graig Meyer, a Democrat representing Orange and Caswell counties, successfully shepherded legislation that put a zoning referendum on the ballot this fall.

The company also encountered headwinds with state regulators. Just two weeks ago, on Aug. 24, the NC Department of Environmental Quality’s air division rejected Carolina Sunrock’s permit applications for both proposed quarries in Caswell County. The division ruled that projected emissions from the operations would violate air quality standards. The company can submit an amended application or appeal the state’s decision.

“We were waiting for the 30-day appeal,” said Anita Foust, who lives in Anderson. “We were waiting for the other shoe to drop.”

The dispute over the ordinance began in 2019 when Caswell County officials failed to include an Environmental Assessment and an Environmental Impact Statement in a list of required forms for Carolina Sunrock to complete. After belatedly learning of the requirement, which also points to a lack of due diligence by the company, Carolina Sunrock’s attorney, Bill Brian Jr., was upset, according to his letter to the county. Brian and Carolina Sunrock wanted to substitute the required Environmental Assessment and Impact Statement with its state mining permit application; the latter, though does not comprehensively cover the issues that an assessment or impact statement would.

The ordinance doesn’t empower commissioners to take any regulatory action on the assessment’s or statement’s findings, other than holding a public hearing, prompting Brian to call the process “a mere formality that serves no substantive purpose. However, we appreciate the need for local governments to fill their files with papers that nobody will ever look at.”

Carolina Sunrock has proposed building an asphalt plant in Anderson Township, off Highway 62, near the Caswell-Alamance county line.

Beyond the dubious assertion that “nobody will ever look at” these documents, attorney James Conner, who is representing several Prospect Hill residents, responded that Brian’s letter to the county, “shows a remarkable combination of arrogance and ignorance of the Environmental Impact Statement process and purpose. The Sunrock attempt to submit a mining permit application as a substitute for an EIS … I have practiced environmental law for over 35 years and have seen some bad EISs, but never anything that ridiculous. That submission was consistent with the tone of Mr. Brian’s letter: that environmental protections and EIS requirements are silly and not worthy of careful attention.”

These impact statements and assessments do not duplicate federal and state permitting, Conner wrote. “It is about information and process, collecting information for the project managers, the public and elected officials to review so that better decisions can be made about the project,” Conner wrote. In a general sense, environmental information “has been used thousands of times to stop or modify projects,” he added.

The mining industry has found work-arounds to the environmental argument. It scored a coup in 2017, when the Republican-dominated legislature passed House Bill 56. (Gov. Cooper vetoed the bill, but lawmakers overrode it.) The omnibus bill contained a provision allowing mines to have a “life-of-site” permit. Previously, a mining company had to reapply for a permit, which triggered a public comment period. Now, unless the company proposes a major modification, the permit process is one and done.

With fewer chances to object, residents throughout North Carolina have worked to thwart new mining operations, with some success: Lawsuits have held up Wake Stone’s proposal to mine next to Umstead State Park. Two years ago, Guilford County Commissioners refused to rezone land for a proposed granite quarry in Pleasant Garden. In that case, the mining company was Hanson Aggregates. Their attorney was Tom Terrell.

It’s unclear why Caswell County hired Terrell for legal work, given his background. (County officials are off for Labor Day.) Terrell works for Fox Rothschild, based in Greensboro. He currently represents Alamance Aggregates, which is behind a controversial proposed mine in Snow Camp, in Alamance County. DEQ recently asked for more information from the company, the fourth such request in the past year. He also represented asphalt company Maymead Materials in a court case against Watauga County.

Earlier this year, Terrell also petitioned lawmakers to disempower local governments in permitting and development decisions. He offered draft bill language to the House Select Committee on Residential Planning Permitting that would have prevented local officials from disputing the opinions of licensed real estate appraisers or engineers; no such bill advanced, likely because lawmakers had to dealt with the COVID-19 pandemic and economic fallout.

During the last economic downturn, Terrell wrote on the Fox Rothschild website that the mining and quarrying industries, whose materials are used to pave roads and make concrete, were an apt barometer for recovery. “If we’re patient, things will get better. And when we all see more trucks leaving the local quarry, that will be a good thing.”