In 2009, Stanly County and Yadkin Riverkeeper Inc. legally contested Alcoa’s 401 Water Quality Certification. In December 2010, the North Carolina Department of Environment and Natural Resources (NC DENR) revoked Alcoa’s 401 Water Quality Certificate to operate the hydroelectric dams on the Yadkin River when it was revealed at trial that the company intentionally withheld material information related to the Yadkin Hydroelectric Project’s ability to meet the State’s water quality standards for dissolved oxygen, critical to the health of the river.

A letter dated December 1, 2010 from NCDENR to Alcoa specifically stated that the draft tubes were not working properly; the aeration technology was insufficient to meet standards; there was noncompliant use of aeration equipment; and there was a willful attempt to “hide” the fact that the aeration valves were not used.

On September 4, 2012, the Attorney General of North Carolina on behalf of the Department of Water Quality (DWQ) requested that the North Carolina Courts deny Alcoa’s request filed on August 28th for a motion to dismiss its appeal “without prejudice” concerning the 2009 401 water quality certificate for the Yadkin Hydroelectric Project.

Alcoa appealed its revocation of the Water Quality Certificate in 2011, suggesting internal company emails unearthed at trial that led to the revocation were misinterpreted. Alcoa’s reluctance to go to trial (scheduled for December 2012) and the company’s recent request to dismiss its appeal “without prejudice” is now under attack by the NC DENR’s Department of Water Quality (DWQ) because Alcoa has been unable to show substantial prejudice as required by Section150B-32(c) of the APA; and therefore Alcoa’s argument, based on this provision, does not support the relief it is requesting according to state’s motion.

“Under the law, someone who files a lawsuit can dismiss that lawsuit,” said Ryke Longest, Jr., JD, an attorney who runs the Duke Environmental Law and Policy Clinic and represents Yadkin Riverkeeper. “Most of the time, if someone dismisses a lawsuit, it is dismissed ‘with prejudice.’ This means that the entity that brought the lawsuit cannot file the same lawsuit again later.  This is generally fair because it allows the entity who defended the lawsuit to get back to their business and move on.  Under special circumstances, someone can file a dismissal ‘without prejudice.’  This would allow them to file the lawsuit again, a year later.  A dismissal without prejudice can allow someone to bring a lawsuit after the normal statute of limitations has expired.”

In the August 28 filing, NC DENR claims that Alcoa’s proposed dismissal “without prejudice” results in “confusion and ambiguity” and sets up an untenable situation where DWQ could be in the position of defending its decisions on two separate 401 Certifications for the same FERC project at the same time.  In the filing, DWQ takes the position that if Alcoa wants to submit another application, it must abandon the 2009 401 Certification.

“We applaud the State’s attempt to deny Alcoa’s request for dismissal.” said Dean Naujoks, the Yadkin Riverkeeper. “The fact that the state is challenging Alcoa’s request for dismissal, and would be willing to go to trial over this issue, clearly demonstrates they have definitive proof Alcoa intentionally falsified information in their 401 Water Quality Certification. Alcoa intentionally misled relicensing stakeholders and State officials about their ability to comply with dissolved oxygen standards and should not be rewarded with another 50 year license.”

For over three years, Yadkin Riverkeeper has been vigilant in its demands to have Alcoa comply with dissolved oxygen and clean up the PCB contamination in Badin Lake and the Yadkin River to secure their water quality certification and retain the license to operate the dams. Yadkin Riverkeeper believes Alcoa’s current clean-up plans do not satisfactorily address the dissolved oxygen levels, or the public health issues, linked to Alcoa’s PCB’s and the migration of Alcoa’s PCB’s downstream through the Yadkin River dams. 

“Alcoa still is not complying with dissolved oxygen in 2 out of its 4 dams (Tuckertown and High Rock) and has left behind a legacy of PCB, arsenic and cyanide contamination. We believe that, until Alcoa cleans up all of its toxic waste, and fully complies with dissolved oxygen standards a certificate should not be granted to this habitual polluter.” Said Naujoks.