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AlcoaSaga Part 2: Stanly County vs. Alcoa

by Keith Barber

Alcoa’s Old Brick Landfill rises above the waters of Badin Lake. According to a 2008 NC Department of Water Quality report, Alcoa discovered contaminated groundwater seepage at two of its landfill sites, including Old Brick Landfill. Pollutants of concern include aluminum, fluoride, cyanide, chlorine and arsenic. (photos by Keith T. Barber)

What once appeared to be a mutually beneficial relationship between an industrial employer and local residents has devolved into an all-out war over water rights and the future of the county.

Badin Lake on a crisp, fall morning is nothing short of inspirational. The dappled sunlight on the lake’s surface gives the massive expanse of water a velvety, navy-blue sheen. It feels like a pristine paradise as soft puffs of breeze create small waves at the water’s edge.

But as one looks toward the horizon, the stark contrast of Alcoa’s Badin Works aluminum smelting facility rising along the lake’s western shore is jarring to the eye. It doesn’t fit the natural wonderland; it just sits there like a hulking metal behemoth, and whispers the thought that maybe everything is not as pristine as it might seem.

A short ride on a pontoon boat to the southern tip of the lake offers a view of the Narrows Dam, which helped generate power for Alcoa’s aluminum smelting facility for 90 years before the plant closed in 2007. Heading north, a reporter is shown the Tuckertown Dam, which was constructed in the 1950s shortly after Alcoa received a 50-year license to the water rights to a 38-mile stretch of the Yadkin River that encompasses four hydroelectric dams and the lake.

Fishermen can be seen in peaceful alcoves reeling in the day’s catch as torrents of water come streaming through the Tuckertown hydroelectric dam. Jimmy Dick, a native of Stanly County and a former Alcoa employee, serves as captain and tour guide. Dick points out the Old Brick Landfill, a deforested swath of earth rising above the lake. The Old Brick Landfill is one of a number of dumpsites for Alcoa’s operations at Badin Lake.

Dick sums up the political, legal and envi ronmental battle currently raging between Alcoa and the people of Stanly County. What was once appeared to be a mutually beneficial relationship between an industrial employer and local residents has devolved into an allout war over water rights and the future of the county.

“No private corporation, no private interest group should have a monopoly over a resource that is critical to the economic health and welfare of the people of the Yadkin River Basin,” Dick says. “The major benefactor of this 90-year marriage has been Alcoa. What would’ve happened if Alcoa had never come to this river basin? This whole area would’ve been far better if that company had never showed up here…. We’ve actually suffered because of them being here. We’re continuing to suffer because they’re here, and we’re going to suffer whether they get this [re-licensing] permit or not.”

The North Carolina Division of Water Quality (DWQ) issued Alcoa a National Pollutant Discharge Elimination System (NPDES) permit in February 2008. The state agency then issued a 401 Water Quality Certification to Alcoa in May 2009. A closer look at the NPDES permit reveals that much of the responsibility of monitoring environmental toxins such as arsenic, cyanide, fluoride, aluminum, PCB’s and PAH’s has been left up to Alcoa.

The NPDES permit reveals that Alcoa stores its spent pot liners, a byproduct of the aluminum smelting process, on site and “is investigating the nature and extent of contami nation that may have resulted from its years of operation.”

The permit also states that Alcoa has discovered contaminated seepage at its Alcoa-Badin Landfill and the Old Brick Landfill. It identified the pollutants of concern as aluminum, fluoride, cyanide, total residual chlorine, total suspended solids and COD that affect temperature and pH. With respect to remediation of toxins being emitted into the air, the report noted that there are no major wastewater treatment units at the Badin Works facility.

“Alcoa recently installed a dechlorination unit after chlorine levels in the town’s water supply resulted in excessive toxicity in one cooling-water discharge,” the report states. “[Alcoa] proposed two pilot studies in 2005 to evaluate the feasibility of alternative treatment processes for removal of chlorine and cyanide.”

YES! Weekly inquired about the status of Alcoa’s proposed pilot studies to remediate chlorine and cyanide discharged into Badin’s water supply but did not receive a reply by press time.

The fact that the NC Department of Environment and Natural Resources (NC DENR) allows manufacturers like Alcoa to perform their own environmental testing is one of the main arguments in a lawsuit brought by Stanly County and the Yadkin Riverkeeper against the state environmental agency. Stanly County is challenging the state’s issuance of a 401 Water Quality Certification to the aluminum maker last year as part of Alcoa’s application for another 50-year license to use the flow of the Yadkin to operate its four hydroelectric dams.

Administrative Law Judge Joe L. Webster has heard two weeks of testimony in the case, which is far from over. NC Sen. Fletcher Hartsell (R-Cabarrus) said he listened to testimony given by DENR officials last week, and it’s clear that the agency’s practices are being carefully scrutinized in the hearing.

Hartsell said DENR’s practices should be placed under the microscope, because the people of North Carolina need a strong, proactive environmental regulatory agency.

“I introduced a bill in the [2010 legislative] short session and didn’t pursue it a lot just to get some more money to DENR for more testing purposes,” Hartsell said. “I think we’re going to have to do more of that. I’m not sure that we have the capacity currently to do the testing that needs to be done, and it’s related to — it’s not the same issue as the [NC Department of Justice’s investigation of the] SBI, but DENR has been charged with overseeing certain things. I question whether they did a proper oversight in this project.”

Stanly County vs. NC DENR

The thrust of Stanly County and the Riverkeeper’s case is that the NC DENR did not exercise the full scope of its authority under the Clean Water Act when issuing a 401 Water Quality Certification permit to Alcoa last year. On Sept. 10, Stanly County’s lawyer, Thomas N. Griffin II, and the Yadkin Riverkeeper’s lawyer, James P. Longest, Jr. made a motion for summary judgment and laid out their cases before Judge Webster. However, Webster denied the motion, and set the trial date for Sept. 27.

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Jimmy Dick, a Stanly County resident and former Alcoa employee, said the people of Stanly County would’ve been much better off if Alcoa had never come to the area 90 years ago.

On the opening day of the hearing, Webster denied a motion by Alcoa’s lawyers to disqualify John Rodgers, a Clemson University professor who authored a 2009 environmental study of Badin Lake, as an expert witness. In his study, Rodgers found a close match between polychlorinated biphenyls or PCB congeners used at Alcoa’s Badin Works facility and the PCBs found in fish and soil samples taken from Badin Lake. The Environmental Protection Agency has determined that PCBs are probable carcinogens. On Oct. 4, David R. Poe, a lawyer for Alcoa, made an argument to keep the Rodgers’ report from coming into evidence. However, Griffin countered, stating that all the documents related to the case should be allowed to come into evidence and Webster can weigh and balance each document on its merits. “What is wrong with me seeing all the documents?” Webster asked Poe. “I’m dealing with the rules of evidence,” Poe responded. “We’re saying that as a matter of evidence, the basis of the evidence shouldn’t be in an expert report.” In the end, Webster allowed the Rodgers report into evidence. And so it continues to go, as lawyers on both sides fight for the slightest of advantages. Testimony could drag on for weeks, and even after Judge Webster rules, it doesn’t mean the battle for the Yadkin River is over. “I think there will be another round,” Hartsell said. “There may be another round in the next legislative session — what form it will take, I don’t know. We’re really in a state of limbo at the moment.” Battle in the General Assembly The issue of Alcoa’s re-licensing of a 38-mile stretch of the Yadkin River was thrust into the political spotlight last year when the office of Gov. Beverly Perdue filed a “friend of the court” brief during a hearing in Judge Webster’s court, which stated the governor’s opposition to Alcoa’s re-licensing efforts. Perdue’s office also filed papers with the FERC last year “seeking return of the right to plan the use of the Yadkin River flows and the Yadkin hydroelectric project for the benefit of the people of North Carolina.” Perdue’s decision to join with Stanly County and an alliance of citizens, environmentalists and politicians against Alcoa gave momentum to Hartsell’s introduction of the Yadkin River Trust Bill during last year’s legislative session. Hartsell and co-sponsor Sen. Stan Bingham (R-Davidson) had little difficulty gaining passage of the bill in the Senate, but gaining the approval of the NC House proved much more challenging. “That was an extremely frustrating experience,” Hartsell said. Once the Yadkin River Trust Bill passed the NC Senate, Alcoa’s lobbyists quickly mobilized and characterized the bill as a state takeover of private property. “When the Senate was lost, [Alcoa] picked up immediately and worked a lot of individual members, and leadership, largely on this ‘takings’ issue,” Hartsell explained. “They had a substantial number of representatives talking with many of the members and justifying the ‘takings’ argument.” Roger Dick, a Stanly County banker and community activist, debunked the notion that Alcoa’s opponents simply want to seize the aluminum maker’s private property. “They’ve done a good job of making the issue a private-property issue, which plays to the Southern mindset and sensitivities around property rights,” Dick said. “The fact is [Alcoa] gave an option in exchange for the right to use a monopoly on the water to make a guaranteed profit. They had no guarantee they could keep this resource and for that reason, they had to be issued a 50-year license.” Alcoa’s lobbying efforts proved successful in killing the Yadkin River Trust bill. Undaunted, Hartsell planned on reintroducing the bill during the 2010 session. As the session wound to a close, Hartsell took dramatic action and subpoenaed the work tapes of former UNC-TV senior legislative correspondent Eszter Vajda — who had been working on a documentary about Alcoa’s operations in Stanly County. UNC-TV turned over Vajda’s work tapes to the Senate committee, and the 56-minute documentary was screened for committee members on July 6. After the screening, committee members grilled Alcoa representatives about the company’s record of environmental stewardship. Bill O’Rourke, Alcoa’s head of environmental health and safety, denied that Alcoa had ever conducted any epidemiological studies showing a high incidences of kidney and bladder cancers in the employees at the Badin Works facility as compared to the population as a whole. But Faison Hicks, the special deputy attorney general for the NC Department of Justice, subsequently wrote a letter to Hartsell, pointing out that O’Rourke’s testimony was “not factual.” Hicks referred to an internal Alcoa document dated July 11, 1996 that was e-mailed to nine Alcoa officials, including O’Rourke. Hicks claims the internal Alcoa document states that an epidemiological study by Alcoa reveals that “people who have worked at Alcoa for one year or less and whose jobs exposed them to high levels of ‘Aliphatic Hydrocarbon[s]’ [coal tar pitch volatiles], the risk (what Alcoa referred to as the “Odds Ratios”) of developing kidney cancer are 3.70 times the normal rate of incidence of kidney cancer in the population as a whole.” Hartsell withdrew the Yadkin River Trust Bill and replaced it with the Uwhwarrie Resources Commission. This time, the bill passed. If the FERC listens to the state’s petition and returns the river to the people, the commission would serve as the “receptacle” for the Yadkin Hydroelectric Project. NC Secretary of Commerce Keith Crisco will serve as committee chair while the other members will be appointed. The commission could intervene in the 401 Water Quality Certification hearing or in the state’s petition of the FERC, but ultimately the body will remain true to its purpose of protecting the state’s most valuable resource: clean drinking water. “It is about the water,” Hartsell said. “Energy can be developed in any number of different ways and hydropower is an inexpensive source, but there’s a relatively finite quantity of clean drinking water that’s available for public consumption.” Hard feelings Alcoa has also engaged in local politics in its quest to win another 50-year license. Stanly County Commissioner Tony Dennis claims that when the county refused to sign on to the Relicensing Settlement Agreement in 2007, Alcoa launched a public relations campaign to discredit local officials. “[Alcoa] put up billboards and ran newspaper ads telling how much the county commissioners had spent fighting them, and how the commissioners were trying to take private property,” Dennis said. “They were encouraging the voters to cut our money off and revolt. They did it in 2008, they’re did it last year and they’re doing it again this year. They thought they were going to get a groundswell, but it never happened.” Like many folks in Stanly County, Dennis has a strong connection to Alcoa. Dennis and several members of his family worked for Alcoa. Dennis’ uncle, Chad, labored for Alcoa for more than 40 years. Dennis said his uncle warned him that Alcoa would never be able to clean up all their toxic waste because they don’t know where it all is. “He said, ‘Son, it would take them a billion dollars to clean it all up,’” Dennis recalled. So when Alcoa spokesman Gene Ellis presented the re-licensing agreement to the county commissioners for their approval, it wasn’t easy for Dennis to stand up and say, “No.” But when he did, his colleagues followed his lead. “My dad always taught me to do what’s right and be honest,” Dennis said. “It never felt right to me. It’s time for the people to stand up and take back what is rightfully theirs. [Alcoa] left us a toxic legacy that is killing people — arsenic and cyanide has no shelf life. It’s there forever and if we don’t do something about it, it’s going to get worse.” Despite the myriad connections between Alcoa and the Badin community, Roger Dick said the company has been “mean-spirited” in the way it has pursued a new 50-year license. “They’ve treated us as though we were illiterate,” Dick said. “They were depending on us in this worker colony to basically be illiterate and sit there while they bullied us, looked us in the eye and say, ‘This is ours.’” And we say, ‘Okay, boss man,’ but we didn’t. We said, ‘That’s not yours. We can read.’” Alcoa was playing on the ignorance of our public and purposely sending a false message that the opposition was trying to take their private property, Dick said. “It’s asking you to honor a contract you agreed to and that you’ve benefited from by making your money back in the last 50 years,” he added. Dick said Alcoa offered Stanly County a monetary settlement but neither the county commissioners nor the citizens want Alcoa’s money or anything else from the aluminum maker. “Here’s what people said that signed the RSA: ‘I’m going to take what I can get because [Alcoa] is too big too fight,’” Dick said. “But a few of us — Stanly [County], Davidson [County] and some of the other stakeholders — said, ‘On the principle of this, we’re going to stand and we’re going to fight the fight and maybe people will learn the process, the truth about the reason we’re fighting.’ This is not their resource — this is a common-trust right that belongs to all of us and it is our children’s future, it is the future prosperity of a lot of this state.” Despite Alcoa’s claims of how the RSA will benefit the citizens of the Yadkin River Basin, Dick said there will be absolutely no benefit to the people of North Carolina, and Alcoa will leave behind a toxic legacy that will impact future generations. Since curtailing operations at Badin Works in 2002, Dick said Alcoa has been selling electricity on the grid, and using that guaranteed revenue as a buffer against future business risks. “It’s a quiet, silent transference of wealth out of North Carolina’s economy to foreign lands,” Dick said. “All the county, the riverkeeper and the people from the governor right on through to the Democrat and Republican lawmakers that have sided on this thing with us are asking for is [Alcoa] to honor a contract that they agreed to and acknowledged in writing — they truthfully know how this works.” And so the battle for the Yadkin rages on in the courtroom, on the floor of the General Assembly and in the hearts and minds of the people of the Yadkin River Basin. To win the war, it will require an increased awareness among citizens about just how high the stakes are, and a willingness to take action to protect their future. “Then I think political leaders will then have the courage to do the historic things that were done 100 years ago — when it was a Teddy Roosevelt, and it was a Franklin Roosevelt, and it was all the anti-trust people, Republicans and Democrats, that stood up in the public interest, so I think that’s how we win,” Dick said. “But it’s a literacy issue to win,” he continued. “[Alcoa] has more money — they’ve got an army of attorneys. We’ve just got to have a handful of dedicated people who are willing that are willing to stand and say, ‘Here’s the truth.’” 

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