The bell has just rung on the next round in the fight between Duke Energy and the Swain County residents living under its newest transmission lines and gargantuan metal towers.
Last week, the North Carolina Public Utilities Commission held a public hearing in Swain County to hear arguments from both sides on whether the power company was unreasonable when they erected 141-foot steel towers where once there were only 60-foot wooden poles.
“I’m sitting outside now, drinking my coffee, looking at the first tower that is about 100 feet from my front deck,” said Jennifer Simon, who is surrounded by the towers that dwarf her mobile home. “Four or five more towers are in my viewshed and the base of the closest tower is actually wider than my home.”
Simon is part of a grassroots group called Citizens to Protect Kituwah Valley and Swain County, and they’ve been protesting the line and it’s companion substation since work started on them more than a year ago.
The group started out charging that Duke needed a permit from the utilities commission, along with public hearings, before proceeding with the new lines.
Duke claimed a permit wasn’t necessary, deeming the project a mere upgrade to existing lines, but residents called it a brand new project, since it put up 92 new towers, miles of new cable and upped the voltage running through them from 66 kv to 161 kv.
The citizens lost on that count. The Public Utilities Commission ruled in April that Duke was within its rights to change the line, moving within land they already had.
But now the issue is back, and the citizens — having conceded one loss — alleged that even if the power giant could put up the lines, they way they did it was out of line.
“I think generally their behavior in the process of doing this has been unreasonable,” said Paul Wolf. Wolf lives under a nest of towers. He can see 10, he says, from his front porch.
Wolf takes issue with where the towers were built, how the Duke’s contractors behaved and how the towers showed up in the first place.
His central complaint is against Duke’s contractors, who he said used his land as a bathroom.
“I’m personally outraged that these guys came and have been openly defecating on my land because they didn’t even bother to bring port-a-potties with them,” said Wolf.
That, plus the location of one tower next to his children’s play area and the fact that he said he was never notified — he came home to his neighborhood one afternoon to find towers going up before hearing the news from Duke — said Wolf, add up to the textbook definition of unreasonable.
The energy company, however, counters that it’s followed strict procedures for the project to make sure everything was above board.
“We had folks that actually made phone calls and personal visits and actually reached out to make contact to everyone who was along that route,” said Jason Walls, a spokesperson from Duke’s Charlotte office. As far as any contractor misdeeds, Walls said Duke dealt with them as they arose.
The dispute over the line and its components has been ongoing for nearly 16 months, starting with a protest from both the citizens group and the Eastern Band of Cherokee Indians over the location of a substation. Duke was planning to put it at a site overlooking the Kituwah mound, a location that’s central to Cherokee history and spirituality.
After some negotiating — and after the Swain County commissioners stepped in to block the move — the substation was moved elsewhere.
An official decision in Tuesday’s hearing probably won’t come down until the end of the year, said Sam Watson, general counsel for the Public Utilities Commission.
When the commission does, eventually, find for one side or the other, it’s not cut-and-dry what the result will be.
“The commission has a broad range of alternatives available to it, ranging from the relief requested by the complainants to nothing, as Duke has suggested is appropriate,” said Watson.
That means that Duke could, on one extreme, be forced to take down the entire line or move or modify towers or other equipment. Conversely, no action would force the citizens to live with the decisions Duke has made.
Either side can appeal the decision to the N.C. Court of Appeals.
Jennifer Simon said she’s concerned that the three-hour hearing was nothing but a formality.
“I don’t know that there’s any options on the table,” said Simon. “I think that this hearing was truly just an exercise of formality. I don’t know that we’re really being presented with any options.”
One option, however, that affected homeowners do have before them is civil court.
Throughout these proceedings, Duke has maintained that that would be the right venue for a large chunk of the complaints against them. The Public Utilities Commission can’t make decisions on financial losses. So for those, like Wolf and Simon, who claim their property has been irreparably devalued by the 13-story towers, the civil court is where they need to go.
And several in the citizens group aren’t ruling it out, though they still hold out hope that the commission will get the towers off their land before they have to take it that far.
But beyond the questions of financial damage and reasonableness, some are also questioning the necessity of such massive quantities of power in a sparsely populated rural area. Duke’s service area stops at the state line, for now, so the power pulsing through the new line will serve Swain County, Cherokee and parts of Franklin.
Walls said that this upgrade is necessary to keep steady power flowing to the region, particularly to Cherokee, where a sizeable casino expansion is sure to draw a much larger electrical load.
“We truly believe that upgrading this line and doing so in the way that we are will serve this region with reliable electricity for years and decades to come,” said Walls.
Paul Wolf and his neighbors, though, still contend that, though the lines might be necessary, Duke’s behavior wasn’t. And vital or not, they’d like it moved somewhere else.
“The first day they installed the tower above my house I stopped and broke out laughing because I didn’t want to cry. It was just so hideous,” said Wolf. “Even if they have the right to do all this, did they treat me rightly and fairly as a landowner? No.”
Imagine buying an idyllic piece of land in the mountains only to learn you’ll be living under a giant, humming transmission line the size of a 12-story building. That’s what happened to Swain County residents Paul Wolf and Jennifer Simon.
“This is unsellable now,” Simon said, looking at her manufactured home on Davis Branch. “Nobody is going to buy this property.”
The controversy over a Duke Energy power substation located in close proximity to Kituwah, one of the Cherokee’s most revered sites, has thrown the company’s larger line upgrade project into the spotlight. Now a group of Swain County residents who live along the power line right of way are saying the company ignored rules governing the construction of transmission lines that would have given them the chance to object to it.
“I believe there’s been a devaluation of my land, and I believe it’s quantifiable,” Wolf said. “What we’re asking for is a do-over, because Duke didn’t get a permit.”
Duke has initiated a massive upgrade of its West Mill transmission line, which serves parts of Jackson, Swain and Macon counties. The upgrade entails replacing the existing unobtrusive 66kv line mounted on wooden poles with a 161kv line mounted on 120-foot steel towers.
Wolf and Simon have joined residents who object to the substation near Kituwah in filing a complaint with the North Carolina Utilities Commission under the complainant name Citizens to Protect Kituwah Valley and Swain County.
A hearing on the complaint was canceled last week because the utility commission determined the complaint’s primary purpose — namely a request for an injunction on the work — was moot.
Duke has, according to the NCUC response to the complaint, voluntarily stopped work on the substation due to the dispute over its location. The substation would not only mar views for the spiritual and historical Cherokee mound site, but create a visual blight on the rural farming valley of Ela.
While the hearing was canceled, the utility commission has required the power company to respond to the citizens’ complaint in detail by May 10.
The ruling means that a new argument has emerged in the controversy. What began as Cherokee outrage over the new substation’s proximity to Kituwah has expanded to include questions about the process of upgrading a large stretch of transmission line. The complaint to the utility commission cites both issues.
“Although [Kituwah] is a vitally important issue to the Citizens, there are also serious matters addressed in the Complaint over the siting and construction of the transmission lines,” the complaint reads.
The Swain citizens group has banded together to fight Duke on both fronts.
“We have a better chance as a group than as a few disaffected landowners,” Wolfe said.
Don’t tread on me
Wolf and Simon know they are fighting a David versus Goliath battle. Both of them signed easements that permit Duke to use their land to develop their lines.
“When you buy land out here and you need power, which we all do, you basically have to sign a blanket easement,” Wolf said.
But the way Duke has gone about its business has shown such disrespect, according to Wolf, that he has no choice but to fight.
State law requires a utility constructing new transmission lines of 161kv to go through a process that includes an environmental assessment and public hearings. While Duke’s new lines feeding the substation through Swain and Jackson counties are indeed 161kv, Duke has argued the work is exempt since it is an upgrade and not new construction.
“This is an upgrade of an existing transmission right of way that has been there for decades,” said Jason Walls, Duke spokesperson.
For Simon and Wolf, that argument is absurd. They bought property along the right of way and didn’t mind the wood poles and power lines, which were mostly obscured by trees. In fact, the right of way served as a kind of greenway for the neighbors in the vicinity.
Now, though, they have to deal with a huge naked swathe of land marked by massive steel towers that hum through the night. Simon lives with Dorothy Proctor, who is 100 percent dependent on a pacemaker that could be affected by the electric and magnetic fields produced by the new high voltage line.
To add insult to injury, Simon claims the subcontractors and employees she has encountered have been dismissive. Work on the line upgrade began at the end of 2008. Simon recalled her first encounter with one of the engineers.
“We were sitting by the fire pit and a truck passed us and then turned around and came back,” Simon said. “I have a dog that’s protective and the man stopped the truck and said, ‘That dog is going to be a problem.’ And I said, ‘Yes he is. And who are you?’”
Wolf has his own horror stories. With sons ages 11, 7, and 4 accustomed to having the run of the land, he now has to contend with the human waste of the subcontractors.
“These guys have literally [defecated] all over my land and not covered it up,” Wolf said. “It’s disrespectful, it’s unsanitary, and it’s got to be illegal.”
Walls said Duke has not received any formal complaints about the behavior of contractors, but the company would take them seriously.
“This is not behavior that we tolerate from subcontractors, so if there are allegations about their behavior, we encourage our customers to let us know about them,” Walls said.
A battle on many fronts
In March, Swain County commissioners passed a moratorium on telecommunications and utility projects that effectively halted Duke’s construction of the power substation near Kituwah. The moratorium gave the county time to create an ordinance regulating the construction of those kinds of facilities.
The moratorium expires on June 9. Swain County Manager Kevin King said the county commissioners would likely begin reviewing draft regulations in the next week.
County Chairman Glenn Jones said he was not sure if the new ordinance would be an obstacle to the substation. Swain County and Duke are in negotiations over alternative sites for the substation, but Walls said it might stay where it is.
“At the end of the day, this may be the best site, but we are working very hard with the tribe and the county to determine if there are alternative locations or if we can do anything further to mitigate the impact of the tie station,” Walls said.
Neither Swain County or the Eastern Band of Cherokee Indians has filed complaints with N.C. Utility Commission. According to public staff there, if Duke satisfactorily responds to the complaints of the Swain County citizens’ group, the project will be cleared to move forward.
Walls said the timetable for the transmission line upgrade has not changed, and Duke would move forward as soon as it has resolved the issue of the substation’s location. According to Walls, the company’s capacity studies have shown that the power supply from the existing 66kv line could be inadequate for consumers as early as next summer.
Jones said Swain County is still looking for an amicable solution to the issue and has not considered joining the complaint.
“We’ve got to look at both sides and try to come to a happy medium,” Jones said. “If we need ever enter in... if that’s best for the citizens of the county, I guess it’s possible we could enter in.”
Meanwhile landowners like Simon and Wolf are challenging the idea that a signed easement is a license for Duke to do whatever they want on private land.
“Do we have to live in fear that by right of condemnation they’ll come back in and take more of our land?” Wolf said.
Wolf said he hopes the fight against Duke over the line upgrade will at the very least prompt the county to look into the way the company operates.
“We realize we may be screwed here, but maybe this can be a lesson for Swain County,” Wolf said.
• To learn more about the citizens’ group complaint, visit www.savekituwahvalley.com.
• To learn more about Duke Energy, visit www.duke-energy.com.