JUSTIN COOK The Roanoke Times

A dump truck unloads coal ash at Cumberland Park, a project a group of Giles County residents is continuing to fight.

PEARISBURG -- Cumberland Park keeps swallowing the 200 tons of coal ash Appalachian Power's Glen Lyn power plant produces every day. But more than dump trucks are moving around this controversial Giles County development project.

The General Assembly has passed, though the governor has not yet signed, two pieces of legislation that would require that coal ash used in similar projects be treated as solid waste. Giles County is working on an ordinance that would require public comment before similar projects begin. Jim McGrath, chairman of the Concerned Citizens of Giles County, is calling for Supervisor Howard Spencer's resignation. And the Concerned Citizens are making it clear they plan to continue fighting Cumberland Park and questioning the process that put it in the New River's 100-year flood plain.

"We feel very strongly that there should be some reckoning and responsibility taken on this," McGrath told supervisors at their Feb. 19 meeting. If Spencer won't step down, McGrath said, the rest of the board should force him to quit.

Spencer has been a driving force behind Cumberland Park, which he says will bring jobs to Giles County and money to the county's vocational education program. The Concerned Citizens say that using coal as a construction fill -- particularly in an unlined pit in a flood plain -- is an accident waiting to happen. Coal ash contains a number of toxins, including lead, arsenic and mercury. When coal ash gets wet, the water spreads those things into the environment.

"We know that the heavy metals are going to migrate out of the site," said John Robertson, the Concerned Citizens' attorney.

Spencer kept his face down during McGrath's speech. Nearly all of the board did.

In an e-mail later, Spencer said, "I regret that Mr. McGrath from Eggleston feels that I should resign from the Giles County Board of Supervisors. However, I have tried to be a servant to the Western District folk and to all of Giles County -- and by the grace of God will continue to serve. I take my responsibility seriously and each project we have undertaken has been an attempt to provide opportunities for Giles County youth, adults and the economic vitality of the county."

Spencer said concerns about Cumberland Park are unfounded. Two engineering firms conducted an 18-month study to make sure it complies with regulations, he said.

"We have and will continue to take every precaution to ensure an environmentally safe project. As citizens, we realize the importance of engineering principles in our automobiles, homes, education and medicine including surgery. Why not accept the fact that the Cumberland Park Project is based also on sound engineering principles as well?"

A special grand jury appointed last year in Giles County Circuit Court to investigate the site found it is not a public nuisance. The Concerned Citizens point out that none of the people who filed the complaint testified.

McGrath's contends that Spencer's multiple roles -- town manger of Glen Lyn, where the power plant is the largest employer; executive director of the Giles County Partnership for Excellence, the nonprofit that owns the land where Cumberland Park is taking shape; chairman of the board of supervisors when all this was being arranged -- means he has a conflict of interest. McGrath also said Spencer hid information and that the county's zoning and flood plain ordinances were bypassed to accommodate the project.

In applications to government agencies, Spencer has described Cumberland Park as a commercial project, though it is zoned for industrial use. McGrath argues the land should have been rezoned and that rezoning should have included public hearings.

In a recent letter to McGrath, County Attorney Richard Chidester said the county's industrial zoning allows some commercial uses -- he cited "wholesale businesses and storage warehouses ... building materials sales yards and plumbing supply sales and storage."

"Because a number of commercial uses are permitted ... and because the filling or excavation of land does not constitute a land use," rezoning wasn't required, Chidester wrote. So it was OK for County Administrator Chris McKlarney to certify, as he did in August 2007, that Cumberland Park is consistent with local ordinances -- something the Department of Environmental Quality required before approving the project.

If Cumberland Park were called a landfill, it would have a liner to prevent leeching. It would be required to have monitoring wells to make sure the liner is working. And the county would have been required to hold public hearings about the project.

But using coal ash as construction fill is a beneficial use, according to state and federal regulations. And beneficial uses are free of all those requirements.

Supervisors asked Appalachian Power to include a liner and test wells. The company said a liner would be too costly. But it did sink two monitoring wells. The first report from those wells, released earlier this month, shows that no toxins have migrated into groundwater.

Part of the project does have a liner. Water was accumulating among some of the ash, so Headwaters, the company operating the site for Appalachian, moved that ash, put down a liner, then put the ash back.

The Concerned Citizens have had some success, McGrath pointed to the new state legislation.

"I want you all to realize that you are the most powerful individual in the history of mankind. You are an American voter," McGrath told more than 40 people who gathered at the campground next to Cumberland Park last weekend. "I think we'll bring common sense to the storing of this toxic waste."

The Environmental Protection Agency doesn't call coal ash toxic waste -- though the agency is reconsidering that.

"Don't let anybody tell you that this fly ash place up here, it's perfectly safe, that you're never going to worry about anything leeching out into the ground," Charles Nelson told the group. "Because we've seen first hand what it's like for this stuff to get in the ground and what it does to people when it gets in their bodies."

Nelson is a former coal miner who works with the Ohio Valley Environmental Coalition. The toxins in coal ash affect nervous systems, gastrointestinal systems, liver kidneys, skin, muscles, development and behavior of children and short-term memory in adults. Some can cause cancer. Among the dozens of coal ash projects responsible for contaminating ground water is a golf course in Chesapeake that Appalachian pointed to as a model of how to use coal ash as construction fill.

George Santucci, executive director of the National Committee for the New River, commended the Concerned Citizens for their work and their stamina and urged them to keep up the fight.

"You're not a disposable community and they just can't throw their junk in you neighborhood and use you that way," Santucci said.

John Robertson, the Concerned Citizens' lawyer, told the group, "I know that eventually this project it going to get fixed. It's going to get cleaned up. I hope it is not because we are wait-listed on a Superfund site."