The Riverkeeper filed comments in February of 2009 with the Division of Water Quality outlining the defects in the draft 401 certification. The State granted the 401 Certification in May of 2009. The Yadkin Riverkeeper, represented by the Clinic, filed an appeal of that decision with the N.C. Office of Administrative Hearings.
Last year, Alcoa Power Generating, Inc. and the State filed motions to dismiss, in order to keep both Stanly County and the Riverkeeper’s appeal from going to hearing. Administrative Law Judge Joe Webster denied their motions and has denied DWQ’s request for a continuance of a hearing beginning on September 27. Judge Webster has ordered the parties to argue on whether they are entitled to summary judgment. This hearing will be held on September 10th at the Office of Administrative Hearings building in Raleigh, N.C.
In its summary judgment filings, the Riverkeeper has argued that the State violated the Clean Water Act and the North Carolina Environmental Policy Act by granting the certificate. To support summary judgment, the Riverkeeper has filed evidence to support its argument showing that the State violated the Clean Water Act and the DENR rules on water quality by granting a certification which will allow the dams to continue discharging water that violates state standards for dissolved oxygen for years to come.
To support summary judgment, the Riverkeeper has also argued that the State officials making the decision failed to read the Final Environmental Impact Statement for this project and failed to follow their own rules for implementing the North Carolina Environmental Policy Act. The summary judgment motions are based on testimony of witnesses at depositions and on documents.
If the Riverkeeper’s motion for summary judgment is successful, the 401 certification will be overturned. Stanly County, Alcoa Power Generating, Inc. and the State are also arguing summary judgment motions. If all of the motions for summary judgment are denied, then all parties will be required to participate in a hearing on September 27th.
“I think it is amazing that Duke Law Students will be arguing our case in court against the state and some of the best attorneys in the country representing Alcoa— an $18 billion dollar company,” said Dean Naujoks, Yadkin Riverkeeper. “Alcoa is using profits from the people’s river for their multimillion dollar legal case to argue why they are entitled to pollute the people’s river and use this public resource for their own exclusive purpose.”