Meeting on proposed Marshall septage detention/treatment facility continued to August

MARSHALL - Deliberations will carry over into August in Matthew Ponder's appeal of the county's decision to deny him a permit for a proposed septage detention/treatment facility at his Zenina Farms Drive property in Marshall.

The Madison County Board of Adjustment will meet Aug. 28 at 4:30 p.m. for a special meeting to continue the hearing.

According to the Oxford Dictionary, "septage" is defined as "excrement and other waste material contained in or removed from a septic tank."

At the outset of the July 22 Madison County Board of Adjustment meeting at the N.C. Cooperative Extension Center in Marshall, a meeting that lasted more than eight hours, Ponder's attorney, Bo Carpenter, filed a motion attempting to disqualify John Noor as the attorney representing Madison County in its December 2023 ruling to deny a permit for Ponder's proposed septage detention facility.

Noor is a land use attorney who typically represents the board but in this case is representing Madison County in its determination that the proposed septage detention and treatment facility was not permitted for Ponder's property, 98 Zenina Farms Drive in Marshall.

"Clearly this board has a trust and confidence in Mr. Noor in his role as a trusted attorney in his past," Carpenter said. "Generally speaking, it puts Zenina Farms at an inherent disadvantage."

"You can't wear two hats. You can't be the trusted adviser and the applicant, no matter how hard you try," Carpenter said.

The board unanimously denied Carpenter's request for disqualification.

According to Development Services Director Brad Guth, in the December decision the county administration ruled that the proposed septage detention facility was not permitted in the Residential-Agricultural district and was not subject to an agricultural exemption.

But according to Bo Carpenter of Allen Stahl + Kilbourne, the attorney representing Ponder, the issue is even more simple than that, and comes down to whether composting is an agriculture use.

Carpenter argued that it is a composting operation and should be a permitted land use on the property.

"This is truly a composting operation, which is our case," Carpenter said.

Witness testimony

According to Ponder's testimony, Chester Cobb — who works with the Department of Environmental Quality's solid waste section of the Division of Waste Management — communicated to Ponder his proposed use is an agricultural one.

But board members, including Ernest Ramsey, said they wished to hear more from expert witnesses at the Department of Environmental Quality about Ponder's current application with the state office. Ramsey and other board members expressed interest in hearing testimony from Cobb.

According to Ponder, before the state reviews these applications, Ponder needs to obtain approval from the county, which is why he hasn't sent off the applications to the state, which would potentially include documentation on water application, a small-type composting facility and the septage treatment facility.

Additional documentation on the treatment facility, including the septage land application site and a nutrient management plan would also be required.

In his report issued to the board, Ponder estimated he would produce roughly 15 cubic yards of brown grease per week. The brown grease would make a "cake" to be added to the compost as an ingredient.

As outlined in the July 15 meeting which was continued to July 22, Ponder said he plans to collect waste such as grease and vegetable oils from restaurants that would then go to MSD or be processed on the site.

Ponder said his plan, if approved, is to separate the waste.

"I'm trying to take grease trap waste and separate the grease and the water," Ponder said. "That's what I'm generally trying to do. You bring in the trap waste and put it in a tank, then the tank holds the grease waste."

Ponder said he also planned to neutralize the pH of the grease waste, by using a meter pump and using a polymer that forms the grease into small clumps.

Ponder currently raises beef cattle on the Zenina Farms property. Zenina Farms owns and operates Ponder's septage company, Mountain Well and Septic, a septic pumping company that works with individuals and nonprofit organizations to install septic systems.

Ponder said he planned to build a 30-by-30 pole barn for the de-watering process. The applicant said he plans to use the finished product to feed his livestock.

In the board's June 24 meeting, five neighbors of the project were granted standing in the quasi-judicial hearing, including Alan Basist, Martha Knight Oakley, Jack Martin and Richard Ochsener. The neighbors said they worried about the chemicals used in restaurants potentially winding up in the brown grease as well.

Noor and the neighbors with standing contended that the use is not a permitted agricultural use, pointing to 160D‑903 of the North Carolina General Statutes, relating to agricultural uses.

Expert witness testimony

The neighbors contracted two expert witnesses for the hearing: Laura Lengnick and Gerald Green.

Lengnick is an agronomist and soil scientist who owns a consultant company working with clients to help them develop climate risk management and resilience plans.

Lengnick said she felt the proposed processing would not be considered an agriculture use.

"I do not consider it to be agriculture because in all of my work and education, there are different kinds of processes involved in agriculture, and the processing of organic waste brought off the farm is a different kind of activity from the application of finished organic materials that are brought on to the farm," said Lengnick, using the example of composting.

"It's a very different thing to make compost from materials brought onto the farm from other places, than it is to use materials grown from on the farm in the process of producing crops. When you import waste to a farm and then process it in some way, that's a manufacturing process that is separate from the farming, that agricultural process."

Lengnick pointed to North Carolina General Statutes 106-581.1, which defines "agriculture," and said she felt the brown grease production would more closely resemble a manufacturing use than an agriculture one.

Lengnick was asked by Chair Robert Briggs whether she would classify brown grease as an organic or inorganic waste material, and she said she felt it was an organic waste material.

"But it's not water and grease, it's a mixture of all the things or many of the things that go down in a restaurant," Lengnick said.

Lengnick said the brown grease compost product is a very new method of organic waste processing, which made her considerations challenging in that there is not as much literature on the practice.

"I didn't see a lot of process that this was a type of organic waste processing strategy that has a long history," Lengnick said.

More: What is 'septage?' What is 'septage'? Deliberations continue in proposed Marshall project

Green has more than 40 years experience in zoning issues, and previously served as planning director with Jackson County and the city of Brevard for five years each, and founded a planning design firm.

Green was sworn in as an expert in land use planning and land development regulations.

Like Lengnick, he said he felt the proposed use was not an agricultural use.

"There's the process — what they do with the grease or the material — and then how they use that product or that production," Green said.

Green provided a report to the board detailing zoning for septage detention facilities throughout North Carolina.

Board Vice Chair Taylor Barnhill said he was concerned with "how other bigger counties with more dense populations have dealt with this, because there are restaurants everywhere you go."

Basist is a longtime climatologist, hydrologist and meteorologist, and was featured in 2020 in The New York Times after co-writing a report on water sources in China.

Basist will be in Asia on Aug. 28, and said he plans to offer a written statement with his closing remarks

"I'm concerned about how water is going to move or not move through the soil," Basist said in a preview of his closing remarks.

Next steps

Chester Cobb, a soil scientist with the state Department of Environmental Quality, will be subpoenaed by the county to appear at the Aug. 28 meeting, Noor said.

Additionally, Ponder, Carpenter and Zenina Farms will be offered the chance for rebuttal at the continued meeting, in which the neighbors with standing also plan to introduce another expert witness, who will speak to the impact on the neighborhood's real estate valuations.

The Madison County Board of Adjustment will hold its special meeting Aug. 28 at 4:30 p.m. at 258 Carolina Lane in Marshall.

Johnny Casey has covered Madison County for The Citizen Times and The News-Record & Sentinel for nearly three years, including earning a first-place award in beat reporting in the 2023 North Carolina Press Association awards. He can be reached at 828-210-6071 or jcasey@citizentimes.com.

This article originally appeared on Asheville Citizen Times: Meeting on proposed Marshall septage detention/treatment facility continued to August