Duke Energy, which sued Jackson County two weeks ago for failing to issue county permits to tear down the Dillsboro dam, says it may not even need the contested permits.

But Jackson County Manager Ken Westmoreland and County Planner Linda Cable are adamant that Duke indeed needs the county permits.

Even though Duke doesn’t believe it needs the county permits it has applied for them anyway and doesn’t plan to go forward without them.

Duke is seeking permits to dredge the sediment out of the Tuckasegee River that has backlogged behind the Dillsboro dam. The state is requiring Duke to remove 70,000 cubic yards of sediment before tearing down the dam to prevent the sediment from rushing downstream and causing environmental problems.

Cable said Duke needs a Land Development Compliance Permit and the Floodplain Development Permit, but the county thus far has refused to grant them until the county’s legal appeals over tearing down the dam are resolved.

Duke believes the county is simply attempting to delay the demolition of the dam because the county wants to save it. Duke has obtained a state permit to dredge the river, raising the question of whether a county permit is also required.

“While the state permit and the local permits are not identical, we question whether such local permits are needed and have not received any explanation for the basis of the county’s withholding them,” said Duke Business Relations Manager Fred Alexander.

County Manger Ken Westmoreland admitted that it is “questionable” whether Duke needs the county Floodplain Permit but said the Land Development Compliance Permit is definitely required.

An effort to end a six-year-long dispute between Jackson County and Duke Energy failed in a 3-2 vote Tuesday night (Jan. 20), as the county commissioners decided to move forward with the case to save the Dillsboro dam.

County Commissioner Tom Massie made the motion to end the legal fight against Duke and allow the utility to dredge the river and move forward with tearing down the dam.

Massie has been the lone commissioner in favor of ending the fight against Duke, saying it is a waste of time and money for the county to continue, but he was joined in that sentiment Tuesday by Commissioner William Shelton.

By continuing to fight the matter, Jackson County is “squandering” taxpayer money on an “un-winnable case,” Massie said, adding that some $200,000 has been spent by the county so far on legal fees and technical assistance in the case.

County Commission Chairman Brian McMahan voted against dropping the case because he still thinks it is “winnable.”

Commissioner Mark Jones said the county might as well continue to fight the case because it has already invested so much money and it doesn’t look like much more will have to be spent to see it through.

“I am for the preservation of the Dillsboro dam,” said Jones.

Commissioner Joe Cowan also voted against stopping the fight.

Shelton, even though he voted to end the case, also favors preserving the dam, but the thinks it is a lost cause because Duke has so much more money and resources to fight the case.

“I agree with the fight in principle,” Shelton said.

Three issues

There are basically three different tracks the county is pursuing to stop demolition fo the Dillsboro Dam and to exact higher compensation out of Duke for its host of dams straddling Jackson County rivers.

One track is refusing to issue certain permits that the county says are necessary to tear down the dam. The county says it can’t issue the permits until the other matters are resolved, but Duke thinks the county is simply trying to delay the razing of the dam.

Another track involves an appeal of the state water quality permit needed to tear down the dam. According to the county, the permit is flawed for a host of reasons, from improper public notice to the lack of a proper environmental review.

The county’s challenge of that permit is now awaiting a decision from an administrative law judge.

The final track deals with a federal permit issued by the Federal Energy Regulatory Commission. The county says that permit is invalid because it was granted based on the invalid state water quality permit. The county also claims that FERC has not required Duke to provide adequate compensation to the region and overlooked environmental issues related to Duke’s dams.

That case is now pending before the U.S. Court of Appeals in Washington.

Through the years, Jackson County has been ruled against in several decisions, and Massie doesn’t think things will change.

“I am against a federal court challenge,” he stated.

Massie added that the county’s arguments against Duke are merely technicalities.

For example, another reason the county says Duke’s state water quality permit is invalid is that the permit states that no public money will be used to pay for the demolition of the dam. In fact, $400,000 of state money has been earmarked for the demolition of the dam.

The permits the county refuses to give Duke deal with dredging sediment behind the dam. The county says the silt must be dredged to prevent it from rushing downstream and causing environmental problems when the dam is removed.

Duke says it may not even need the county permits because it already has a state permit. But Duke has said it will not move forward without the county permits.

Massie sees no reason why the county should withhold the permits for Duke to dredge, saying dredging the river “benefits all.”

There are several reasons why some want to save the Dillsboro dam. The dam is seen by some as a water feature that draws tourists, while others think it has historical significance. The dam could also be used to generate hydroelectricity.

Re-licensing

When a utility such as Duke re-licenses it must give back to the area it has profited from.

Duke has profited from using the Tuckaseegee River to generate electricity, and therefore should make some payment to Jackson County when it comes time to re-license its dams.

Duke has proposed that it can pay back Jackson County by tearing down the dam, which will open up the river. Whitewater enthusiasts, such as the American Whitewater organization, have favored this.

Shelton said rather than Duke giving something back that benefits the entire county, it is simply pleasing special interests.

Instead of tearing down the dam (which Duke is no longer using to generate power), Duke could give back to the county by providing slope stability and conservation easements, Shelton said.

What Duke is proposing doing for Jackson County “pales in comparison” to what it and other utilities have done in other areas in re-licensing agreements, Shelton said.

Duke may be refusing to give into the county because it doesn’t want to set a precedent of giving more than it wants to, Shelton said.

Also Duke has proposed to give Jackson County $350,000 over the term of the re-licensing — 40 years. Massie and Shelton agree that $350,000 over 40 years does not come close to compensating Jackson County for what Duke has made off the Dillsboro dam’s hydroelectricity.

Shelton said Duke has not acted in good faith and said it is giving “very little back.”

“Our area deserves to be compensated for our resource,” he said.

Shelton said another option is taking over ownership of the dam through condemnation.

By giving into Duke, Shelton said he is waving his white flag of surrender but at the same time the flag says, “Shame on Duke.”

Duke Energy filed a lawsuit against Jackson County and county Planning Director Linda Cable on Monday (Jan. 5) for failing to issue permits necessary for the removal of the Dillsboro dam.

Duke warned the county about a month ago that if the Land Development Compliance Permit and the Floodplain Development Permit were not issued within a month that further legal action would follow. Yet the county has continued to hold up the permits.

The state is requiring Duke to remove approximately 70,000 cubic yards of sediment backlogged behind the dam before tearing it down.

Duke already has state permits in hand for the dredging, but seems to need permits from the county as well. But the county refuses to grant them until an administrative appeal over tearing down the dam is resolved. It is unclear when the appeal may be resolved.

Duke believes the county is purposely delaying tearing down the dam. The county wants to save the dam and has been involved in a lengthy battle against Duke over the issue. (see article on page 8)

The lawsuit seeks damages in “excess of $10,000 for defendants’ illegal actions.”

The removal of the dam is required by the Federal Energy Regulatory Commission, Duke notes in the lawsuit.

“Jackson County’s actions are utterly without legal foundation and taken for an improper purpose in violation of plaintiff’s constitutional rights and have and will continue to cause the plaintiff damage,” the lawsuit states.

Duke has met all requirements for the permits, and the county’s withholding of them is arbitrary and capricious, according to the lawsuit.

And the county’s refusal to grant the permits violates the due process clause of the U.S. Constitution and the equal protection and law of the land clauses of the N.C. Constitution, the lawsuit states.

Duke Business Relations Manager Fred Alexander of Franklin said Duke does not believe it needs the permits but in an effort to be non-confrontational applied for them. Duke applied for the Land Development Compliance Permit in July and the Floodplain Permit in November.

The normal practice of the county is to issue the permits within one week, the lawsuit states.

Duke received a state permit from the N.C. Department of Environment and Natural Resources in June for the sediment dredging.

County Commission Chairman Brian McMahan had no comment on the lawsuit Monday, saying he had not read it.

A member of the Jackson County Smart Roads group told county commissioners on Monday (Jan. 5) that there needs to be more planning when it comes to the proposed N.C. 107 connector, a.k.a. Southern Loop.

The proposed road would connect N.C. 107 with U.S. 23/74 to relieve congestion on N.C. 107.

The Smart Roads representative, Jeanette Evans, said it is up to the county to develop a vision for future growth and development, particularly along the county’s primary commercial artery. She suggested that now is a good time for the county to launch a plan for N.C. 107 since the N.C. Department of Transportation is footing the bill to come up with solutions to congestion, whether it’s building a by-pass or improving the existing roadway.

It may be a good idea to develop an individual plan for N.C. 107 similar to what has been done on the 441 corridor, Evans said.

Evans, who is the Smart Roads representative on the Jackson County Transportation Task Force, said whatever is done to N.C. 107 will have a permanent affect on the county. The transportation task force is just in the “modeling stage” of determining how growth will affect N.C 107.

The fear is that the Southern Loop would destroy mountain landscapes.

County Commissioner Joe Cowan said N.C. 107 has been discussed for 10 years and has been “talked to death.” Cowan said Smart Roads has not developed one plan that addresses traffic concerns on N.C. 107. He said Smart Roads is “stagnant.”

But Susan Leveille, who is also a member of Smart Roads, said it is not her organization’s fault that progress has been slow. She laid the blame on DOT.

Cowan said DOT is not going to “decimate” a scenic area but said a bypass needs to be built to provide motorists with some relief.

Evans said Smart Roads is in place to advocate the community’s input on the road.

County Commissioner Tom Massie said there is already a county land use plan in place that addresses protecting scenic and cultural resources. Massie noted that the land use plan should be used in planning for N.C. 107 since the plan was developed with input form the public.

Massie suggested that the county planner and DOT planner communicate more about the county’s land use plan.

Jackson County residents weighed in on proposed road improvements for N.C. 107 at a citizens informational workshop Feb. 25 at Western Carolina University’s Ramsey Center.

By Timm Muth

My thanks to the editor for giving me the opportunity to respond to the recent allegations about safety at the Green Energy Park. The article in last week’s paper (“Issues flare up at Green Energy Park,” Feb. 27 SMN) contained a number of inaccuracies about our gas piping system in particular. I’ll try here to set the record straight.

The Driscoplex 4100 HDPE (high density polyethylene) piping that we use is the industry standard for use in landfill gas systems. According to Kim Witterman with Lee Supply Company (the East Coast distributor for such piping), “most major landfills on the East Coast use this pipe for gas distribution.” Our pipe was specified and installed by one of the most experienced landfill gas installers in the country, McGee Environmental, which has installed the same pipe at landfills throughout North Carolina, South Carolina, Tennessee, and Florida.

There are two types of pipe that we could have used for gas distribution: HDPE or stainless steel. Since HDPE pipe connections are thermo-welded together, they all but eliminate the chance of an accidental gas leak. Stainless steel piping, in our application, would have required dozens of fittings and connectors, each connection a potential leak site. The HDPE pipe is rated to withstand a pressure of 150 psi, and our piping arrangement was pressure-tested after installation to 100 psi to check for leaks, even though our gas system actually operates at only 1/2 psi.

Our piping and gas collection system is inspected and monitored monthly by McGee Environmental, while our gas and water sample wells are monitored quarterly by Altamont Environmental. Our blacksmith forges (where we currently burn the landfill gas) are equipped with two separate safety systems to shut off gas flow in case of an emergency. We’ve also installed protective ballard posts (large, concrete-filled pipes) around each pipe or condensate trap that rises above ground to prevent any accidental damage by vehicles or equipment.

I recognize that to laymen, with little or no industry experience, some aspects of our construction may seem odd. Pipe supports must be designed and installed in a way that allow for expansion and contraction of the pipe as the outside temperature changes. Gas pipe is black in color due to the addition of carbon black to its makeup, which protects against damage from the sun’s UV rays. And the thermo-welded joints on our pipes are actually stronger than the original pipe walls and twice as thick. Based on our research, and on the products used at other landfill gas projects across the country, we stand behind our statement that the piping system we’ve used is safe and in compliance with industry standards. Above all else, the safety of our tenants, employees, and members of the public is, and will always be, our chief concern.

To be honest, the insinuation that the gas pipe that runs beneath the access road to the staffed recycling center presents a danger to the public is, quite simply, ridiculous. This is no “time bomb,” as stated in last week’s article. The pipe was installed under a plan approved by the DOT, which meets all applicable DOT and DENR regulations. The pipe is buried roughly five feet underground and placed inside an engineered culvert pipe where it travels beneath the roadway. This situation is no different than the thousands of feet of natural gas pipe buried beneath the streets of Sylva and Dillsboro. No one worries about those pipes on a daily basis, nor should they worry about our pipes.

Landfill reduces toxin releases

I also need to address the comment concerning “the amount of toxic pollution it (the Green Energy Park) produces.” The GEP does not produce toxic pollution; in fact, we prevent 222 tons of methane gas from entering the atmosphere each year. This reduction in pollution provides roughly the same amount of environmental benefits as removing 916 cars off the road or planting 1,300 acres of forests each year. As I mentioned in a previous article, landfills are dirty places, no argument; but our sample testing shows no contamination to groundwater sources, and even samples taken from the body of the landfill fall well below DENR regulatory limits.

In case anyone is wondering, my career in the energy industry began in 1980, working in nuclear power plant construction. Since then, I’ve earned an engineering degree from Virginia Tech and have worked with nuclear plant operations, coal-fired plants, large and small-scale hydroelectric dams, wind turbines, fuel cells, and solar installations. I’ve spent countless hours as an engineer, project manager, and technical writer in paper mills, battery factories, textile mills, printed circuit board plants, tobacco and food-processing facilities. I have also worked for both the N.C State Energy Office and the N.C. Solar Center, overseeing a variety of landfill gas projects and other renewable energy initiatives around the state. And yes, for a few years I enjoyed being a professional, dirt-encrusted mountain biker, leading bike tours through these beautiful mountains of ours, and writing books and magazine articles on the subject.

The Green Energy Park is a county-funded effort, and as such the taxpayers have a vested interest in the outcome of the project. I reluctantly mentioned my background above so that the folks in my community will know a little more about my qualifications and experience level. I took this job because I was honored that County Manager Ken Westmoreland and the county commissioners would entrust me with such an exciting and important project as the Jackson County Green Energy Park. I felt that this project offered me a chance to make something really happen in Jackson County, and to give something valuable and enduring back to my newly-adopted home. I believe in this project because it’s the right thing to do for our community, for our children, and for our environment: to turn trash into treasure, and change a sow’s ear into a silk purse.

So please stay tuned, as we’ve got some exciting things in store. We’ll build a community project that everyone in Jackson County can be proud of, where the public can enjoy watching and learning from artists as they practice their crafts. We’ll help teach kids why a clean environment is so important to all of us. We’ll continue to build bridges between the students and faculty at WCU, and our local community. And we’ll give artists and other entrepreneurs the opportunity to work hard and make their own dreams a reality. Please come and visit us, see what we’re doing, ask all the questions you want, and give us your suggestions. Because this project belongs to you, the people of Jackson County, and we want all of you to come be a part of it.

(Timm Muth can be reached This email address is being protected from spambots. You need JavaScript enabled to view it..)

By Jennifer Garlesky • Staff Writer

Jackson County officials say its high-profile tenant at the Green Energy Park is in violation of its lease, and now the county is requiring the biodiesel producer to comply or move elsewhere.

The public is two-and-a-half years late learning that a popular area for swimming, rafting and fishing in Jackson County isn’t safe for extended human contact with the water due to high levels of fecal coliform.

Voters in Jackson County could have a rematch in the May primary between two candidates who ran against each other for county commissioner two years ago — Joe Cowan and Darrell Fox for the district that includes Webster and Cullowhee.

When Jackson County commissioners passed strict mountainside development regulations last year, opponents pledged to get even come election time.