Administrative Law Judge Joe L. Webster granted Alcoa’s request to dismiss Alcoa’s revocation appeal “without prejudice” concerning the 401 Water Quality Certificate for the Yadkin Hydroelectric Project that was issued in 2009 by the NC Division of Water Quality.
The certificate was later revoked when internal Alcoa documents revealed the company had intentionally misled state officials. The NC Department of Environment and Natural Resources (NC DENR) intervened in the motion, asking the courts to deny Alcoa’s request by dismissing the case “with prejudice.” By dismissing their appeal, Alcoa has lost its opportunity to prove the company was falsely accused of misleading state officials about the company’s ability to comply with dissolved oxygen levels. Alcoa will now have to file for a new 401 Water Quality Certification to obtain a 50-year license for the Yadkin Hydroelectric Project.
In 2009, Stanly County and Yadkin Riverkeeper Inc. legally challenged 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 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 December 1st 2010 letter 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.
Alcoa appealed its revocation of the Water Quality Certificate in 2011, suggesting internal company emails unearthed during trial were misinterpreted. Alcoa’s request to dismiss its appeal “without prejudice” was challenged by NC DENR’s Department of Water Quality (DWQ) because the state felt 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, did not support the relief it was requesting according to state’s motion. However, Judge Webster granted Alcoa’s motion to dismiss its appeal instead of going to trial scheduled for December 2012.
“Alcoa had every opportunity to prove they did not mislead state officials in their attempt to secure the water quality certificate, but they have opted not to prove their innocence in court,” said Dean Naujoks, the Yadkin Riverkeeper. “The bottom line is Alcoa is still not meeting water quality standards 100 percent of the time over the entire length of the forty-mile section of the Yadkin River. In fact, more than 35 miles of the project are still failing to meet state standards for dissolved oxygen which is critical for all aquatic life and for good water quality for the entire river. Alcoa has not been a good steward of the people’s river and should not be rewarded with another 50-year license.”
For over three years, Yadkin Riverkeeper has been vigilant in its demands that Alcoa must comply with dissolved oxygen standards over the entire length of the river, 100 percent of the time, and that the company must address widespread contamination linked to its defunct aluminum smelter. Alcoa feels it only needs to meet water quality standards for dissolved oxygen when the turbines are running on very limited sections of the Yadkin River that include four major hydropower dams, spanning forty miles of the Yadkin River.
“Alcoa continues to mislead the public by suggesting the company is meeting water quality standards but that is only for a very small portion of the project,” said Naujoks. “Alcoa has attempted to mislead, bully and pressure NC DENR into granting a Water Quality Certification that does not require the company to meet water quality standards 100% of the time over the entire length of the project. They are breaking the law every day these dams continue to operate out of compliance, compromising the health of the Yadkin River. The most polluted sections of the entire Yadkin River are located in the 40-mile stretch of river that Alcoa manages.”
In February 2009, the North Carolina Department of Health and Human Services (NC DHHS) issued a fish consumption advisory for Large Mouth Bass and Catfish in the lake based on the presence of PCBs in tissue samples of fish. In February 2010 EPA Review Comments for Badin Lake stated that “samples near Alcoa's outfalls indicate that Alcoa released PCBs into the Southwest arm of Badin Lake at concentrations greater than industrial Standards (0.057 mg/kg).” Badin Lake, located in the lower portion of the Yadkin Project, was recently added to the EPA’s 303(d) list of impaired waters for fish consumption due to PCB contamination in fish.
High Rock Lake, first described as eutrophic in 1973, has suffered from decades of pollution issues and continues to suffer from the chronic effects of over nutrient enrichment and eutrophication. High Rock Lake, the upper portion of the Yadkin Project, was added to EPA’s 303(d) list for impaired waters in 2005. A recent report presented to the NC Environmental Management Commission described High Rock Lake as “one of the most eutrophic lakes in NC...with mild to severe algae blooms, with blue-greens dominant in summer” which can pose serious risks to humans, pets, livestock, wildlife and cause fish kills. Most of the 40-mile stretch of Yadkin Project, which also includes Tuckertown and Falls Reservoirs, has failed to meet water quality standards for dissolved oxygen for over 15 years.