Alcoa opponents pin hopes on legal challenge

by Keith Barber


Dean Najouks, the Yadkin Riverkeeper, is confident that Stanly County will win its pending appeal of a water quality certification issued by the NC Department of Environment and Natural Resources to aluminum-maker Alcoa for the Yadkin Hydroelectric Project. He sees that as the first step in a process that would return the region’s most important resource — the Yadkin River —back to the people.

If the county wins in court, it could derail Alcoa’s relicensing efforts to seize another 50 years of control over the water rights along a 38-mile stretch of the river that passes through Davie, Davidson, Rowan, Montgomery and Stanly counties. However, if Stanly County loses in court, it could help pave the way for Alcoa — a multi-billion dollar international conglomerate and the world’s largest producer of aluminum — to receive water rights to a vast section of the Yadkin River that encompasses High Rock, Tuckertown, Narrows and Falls reservoirs for the next 50 years from the Federal Energy Regulatory Commission, or FERC.

After hearing the arguments of Stanly County attorneys, Administrative Law Judge Joe Webster granted an injunction May 26 barring the NC Department of Environment and Natural Resources, commonly known as DENR, from issuing a 401 Water Quality Certification to Alcoa until the full appeal is heard. Najouks said the case is headed for mediation next month but he fully expects it to be settled in front of a judge.

“We’re going to court and I’m very confident we’re going to win because the law is on our side,” Najouks said.

The county’s appeal of the water quality certification alleges that DENR neglected to follow federal Clean Water Act requirements when it issued its certification last May. At the heart of the issue is the extent of contamination of polychlorinated biphenyls, or PCBs, in the waters surrounding Alcoa’s Badin Works smelter plant on the Yadkin River.

Alcoa shuttered the plant in 2002.

“The state of North Carolina has not done an adequate job,” Najouks said. “We need the [US Environmental Protection Agency] to do more testing and find out what the public health situation is. NC DENR, for whatever reason has not done a thorough enough job to determine the real extent of contamination at that site — that’s PCBs and whatever else we may find.”

Najouks believes the PCB contamination reported by the state agency represents the tip of the iceberg.

“I will bet my entire reputation that once we get more funding to do testing, we will find much more contamination on that site,” he said.

PCBs can cause anemia, acne-like skin conditions, damage to the liver, stomach or thyroid gland, changes in the immune system or reproductive system and behavioral problems, according to the NC Department of Health and Human Services.

Gene Ellis, a spokesman for Alcoa, said the concentrations of the PCBs in the sediments in the vicinity of Alcoa’s aluminum smelter are below the concentrations the Environmental Protection Agency would require for any cleanup effort.

“A cleanup wouldn’t typically be warranted at levels that are that low,” Ellis said.

Ellisalso denied charges by Najouks and others that Alcoa’s hydroelectricplant on Badin Lake is churning up PCBs and jettisoning them fartherdownstream.

“Weknow from sampling that the county has done and the state has done, thesediments that contain those PCBs across from the Badin Works site arenot migrating toward the dam,” Ellis said. “The discharges from the damdo not reflect any PCBs at all. There are pretty good indications thatwe’re not moving anything downstream.”

DespiteAlcoa’s claims, the state issued a fish consumption advisory for BadinLake between Stanly and Montgomery counties last February due toelevated levels of PCBs found in large mouth bass and catfish. Alcoafiled a legal appeal of the state’s fish advisory two months later. Thecompany claimed that the state “changed its stated evaluation criteriaafter the study was complete and held Badin Lake to a differentstandard than other lakes and rivers in North Carolina,” according to acompany website. Alcoa stated that the state’s advisory was based onthe findings in a single largemouth bass.

Najoukssaid Alcoa fought the posting of signs alerting the public aboutdangers from eating “potentially cancer-causing fish” until StanlyCounty received the results of its own independent study of the sourceof the PCBs in Badin Lake.


StanlyCounty hired professor John Rodgers of Clemson University to perform astudy on fish tissue and sediment collected near the Badin Works sitelast year. Rodgers’ study made a clear connection between the PCBcontamination in fish and soil samples to Alcoa’s Badin Works operation.

Bruce Thompson, aregistered lob byist for Stanly County, summarized Rodgers’ findings inan Aug. 3 memo to the members of the NC House Water Resources Committee.

Thompson’smemo explains that PCBs include 209 possible forms, known as“congeners,” which serve as fingerprints that allow scientists to tracePCBs back to their source. Rodgers found that most of the PCB congenersfound in fish tissue and sediment samples taken from Badin Lake couldbe traced back to Alcoa’s Badin Works aluminum smelting operation,Thompson reported.

“Thisimportant information shows how poor of a steward Alcoa has been of theYadkin Hydroelectric Project,” Thompson stated. “Not only has Alcoaabandoned the Badin Works and the jobs that were there, it has left atoxic legacy that remains in the fish and sediments of Badin Lake. TheRodgers study is further proof of why the Yadkin Hydroelectric Projectshould be returned to the citizens.”

Thompsonconcluded his letter with a plea to committee members to support SenateBill 967, which would have created a Yadkin River Trust to take overthe operations of the Yadkin Project from Alcoa. Three days later,however, the bill failed on its second reading.


Gov.Beverly Perdue is siding with Najouks, the Stanly County Commission andthe Yadkin River Coalition in their fight against Alcoa.

The governor’s officefiled a “friend of the court” brief during the May hearing in JudgeWebster’s court stating Perdue’s vigorous opposition to Alcoa’sre-licensing of water rights to the Yadkin.

Perdue’soffice also filed papers in September with FERC “seeking return of theright to plan the use of the Yadkin River flows and the Yadkinhydroelectric project for the benefit of the people of North Carolina.”

“Fiftyyears ago, we endorsed Alcoa’s request for a federal license to operatehydroelectric dams because the project created jobs for up to 1,000North Carolinians,” Perdue said in a press release. “Today, those jobsare gone, and so is the reason for the license.”

RogerDick, a Stanly County banker, also highlights economic development inhis opposition to Alcoa. Years ago, Stanly County leaders began lookingat long-range strategic planning for their community, Dick said, and itbecame apparent that the people were being denied the benefit of theregion’s greatest natural resource. So when it came time for Alcoa toreapply for its water rights license, members of the community took astand.

“Why atthis point in history would anyone trade water, because water is life?”Dick asked rhetorically. “Some of the poorest counties in our state arethe richest in terms of this commodity called water. Why would you letit get away from you? No [corporation] can lay claim to the publicwaters.”

Dick saidhe experienced an epiphany when he began researching the history oforganizations like the Tennessee Valley Authority and the Santee CooperElectrical Authority in South Carolina. Dick said he saw a connectionbetween community’s ability to hold on to its hydroelectric power andits ability to retain its manufacturing base. Critics of Alcoa,including Dick, have charged that the company is using the water fromthe Yadkin to fuel its hydroelectric plant and selling that electricityoff the grid to other communities. “This is not something that shouldever be allowed to fall into private hands for private benefit; it’s amonopoly and monopolies are not good,” Dick said. “We have a watershortage; we have double digit unemployment. This is a resource thatprovides both water and employment and the law says it belongs to us.”

Dickand Najouks both point to what they call Alcoa’s record of poorenvironmental stewardship as yet another reason for the Yadkin’s waterrights to be reverted to the people of North Carolina.

“Lookat the facts, look at what they’ve done,” Dick said. “We gave them aclean river and now it’s going to cost the public hundreds of millionsof dollars to deal with the sediment issue, and getting the water backto the point we can drink it.”

With so much riding on the outcome of the upcoming court case, the stakes could not be any higher, Najouks said.

“If we don’t address this now, we are going to miss this opportunity for 50 years,” he said.

The NC Department of Health and Human Services issued a fishconsumption advisory last February on Badin Lake after high levels ofPCBs were found in fish tissue samples. Alcoa filed a legal challengeto the advisory last April. The advisory currently remains in effect.(courtesy photo)