In a sardine-like packed courtroom, Cumberland County commissioners approved a proposed project that could bring fly ash into the county to reclaim a mine on Smith Mountain as well as at least $5 million in revenue into the county's general fund and highway department budget over the next three years.

It's the first step in a permitting process that could take several months or longer. Many people representing both sides of the issue attended the meeting but did not speak.

The proposal was passed in an 11-5 vote. One commissioner abstained from the vote and one commissioner did not attend Monday night's meeting.

Smith Mountain Solutions, LLC has submitted a proposal for a subtitle D landfill "beneficial re-use" project to the Cumberland County Commission.

The proposed project is designed to place coal combustion products (fly ash) as fill for the purpose of reclamation of approximately 300 acres of a surface coal mining operation at 6728 Smith Mountain Rd., Crab Orchard.

"This vote means that SMS (Smith Mountain Solutions) will now have the task of obtaining a permit from TDEC (Tennessee Department of Environment and Conservation) to build a single use landfill for the disposal of coal combustion products from the (TVA) Kingston Plant. SMS will also have to be granted a contract by TVA and EPA (Environmental Protection Agency) to haul the waste,” Cumberland County Mayor Brock Hill said after the meeting.

Of the controversial project, 3rd District Commissioner Lynn Tollett, who sponsored the resolution proposing the project, compared the decision to a jury trial.

"There are no absolutes in this agreement. It's like a jury trial to either convict fly ash or let it go ... You don't convict without any absolutes," Tollett said. 

The proposal also includes a host agreement with Smith Mountain Solutions (SMS).

The Host Agreement

"The County will require SMS to pay the county a total minimum impact fee of five million dollars ($5,000,000) over a three year period beginning at the date of operation or as otherwise agreed to by the County and SMS. The date of operation shall be when SMS unloads the first truck of CCP (combustion coal product) in the monofill. SMS will pay the county a minimum amount monthly of $139,000 per month over a three year period, or until the total minimum impact fee is satisfied whichever date comes first. The fee will be paid monthly at the rate of $1.50 per cubic yard for the CCP actually received at the site in an amount reflecting at the minimum payment plus any additional revenue. All payment must be remitted within 30 days from the close of the preceding month. Only coal combustion products will be accepted. Any fees over and above the monthly minimum may be credited against the next month’s minimum payment through the end of each 12-month period. The payment of the $1.50 impact fee shall continue for three (3) years with no cap on the total that is paid to the county. Each year shall constitute a new year for applying monthly minimum and there will be no carryover to successive years regardless of payments actually made," according to the host agreement.

"At the end of each year after the beginning of the date of operation, the parties will evaluate the total volume of CCP received and make any adjustments necessary to account for the total amount of CCP received.

"At the beginning of the fourth year, if additional CCP is accepted,  the Fee shall be $3 per cubic yard payable monthly with no required minimum payment as long as the total minimum payment has been paid.

"In the event TVA does not award SMS a contract for the volume of CCP reasonably anticipated to generate at least $5,000,000 over a three year period, the term of the host agreement may be extended and the time period to pay the total minimum payment only by express consent of the County Commission for up to two additional years. In which case, the monthly minimum payment will be changed to reflect the additional time.

"SMS will fund and/or perform necessary road improvements, repair and maintenance of the Smith Mountain and Golliher Roads within the limits it uses as haul routes. This road work will be under specifications provided by TDOT and oversight of the County Road Superintendent and the Environmental Committee.

"SMS will provide financial assurance acceptable to the County, such as a surety bond, letter of credit or combination thereof to assure that funds will be available for road preparation, continued maintenance, and final reparations at project completion to Smith Mountain and Golliher Roads in the event SMS is not able to do so.

"SMS will equip at its sole expense for all vehicles hauling CCP automated vehicle locators that reflect at a minimum speed and location.

"SMS will provide the County with access to the Web-based real time and stored database for the locators. The hauling trucks used by SMS will not exceed 35 miles per hour. Unless otherwise approved by the County, trucks hauling the CCP will be restricted to Monday through and including Saturday during the daylight hours. No hauling will be permitted at any time on Sunday.

Hauling will be coordinated with County School bus schedules for Smith Mountain Road so that no hauling will be permitted during times when children will be picked up or dropped off."

Mayor Hill discussed the agreement after the county commission meeting.

County Mayor Brock Hill said he has negotiated the agreement with SMS over the past few weeks and continuously notified commissioners via e-mail of the progress of the agreement.

"Much of what's in here has come from you (the commissioners) and some of your concerns," Hill said.

“ ... I will work with the commission and SMS to include additional assurances from SMS regarding the road improvements and highway safety. The residents of Smith Mountain are taking one for the team on this issue,” Hill wrote in a statement to the Chronicle.

 “My efforts throughout this process have been intended to keep us legal, well informed of the facts, and negotiate the best possible cautionary elements into the Host Contract. That effort does not end now. We will continue to listen and respond to citizens' concerns,” he added.

Prior to the vote, 1st District Commissioner Harry Sabine told commissioners he intended to vote no on the resolution because he did not feel comfortable with the agreement and was "scared to death" over the thought of 280 trucks a day traveling over Smith Mountain Rd. twice daily.

"First they were talking about three years, but now Mr. Wright indicates they hope it to go on forever ... It may include road improvements in the agreement, but that could require condemnation by the county and at no choice," Sabine said. "I just cannot see sentencing those poor people to put up with that kind of traffic probably for a minimum of three years. Who knows."

Mike Harvel, 7th District commissioner, asked if the agreement included $1 per cubic yard going to the general fund and 50 cents going to the county highway department.

"Yes, it does," Hill responded.

Harvel, who is an employee of the county highway department, then made the motion to accept the SMS proposal.

Ninth District Commissioner Clyde Cramer supported the motion.

Voting in favor of the proposal were commissioners Tollett; David Gibson, 4th District; Jack Davis and Trey Kerley, 5th District; Wendell Wilson and Terry Carter, 6th District; Harvel and Kenneth Carey, 7th District; Jeff Brown and Greg Maxwell, 8th District; and Cramer.

Voting against the proposal were commissioners Sabine; Nancy Hyder and Robert Safdie, 2nd District; Charles Seiber, 4th District; and Carmin Lynch, 9th District.

Johnny Pressley, 3rd District commissioner, abstained from the vote. Jim Inman, 1st District Commissioner did not attend the meeting.