20070812 Ver 2_Amicus Curiae_20090521

STATE OF NORTH CAROLINA
COUNTY OF STANLY
STANLY COUNTY, NORTH CAROLINA,
Petitioner,
- against -
THE NORTH CAROLINA DEPARTMENT
OF ENVIRONMENT AND NATURAL
RESOURCES, DIVISION OF WATER
QUALITY, ET AL.,
Respondent.
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
09-HER-3078
AMICUS CURIAE STATEMENT OF THE
GOVERNOR OF THE STATE OF NORTH
CAROLINA CONCERNING THE MOTION
OF STANLY COUNTY FOR A TEMPORARY
STAY OF THE EFFECTIVENESS OF DENR'S
SECTION 401 CERTIFICATION PENDING THE
OUTCOME ON THE MERITS OF THE PROCEEDINGS
NOW PENDING BEFORE THIS COURT
Introduction
At the conclusion of the Court's May 20, 2009 hearing on Stanly County's
Motion for a Stay of DENR's Section 401 Clean Water Certification pending this Court's
resolution of the merits of Stanly County's legal and factual objections to that
Certification, counsel for the Governor of the State of North Carolina asked the Court for
leave, as amicus curiae, to summarize for the Court the Governor's view on Stanly
County's Motion - and, more importantly, the Governor's view of the significant public
interests that are at stake here. The Court directed counsel to place the Governor's views
in written form and to file them with the Court on the morning of May 21, 2009. Set
forth below, in summary form, are the Governor's views on this matter.
The Related FERC Re-Licensing Proceedine
As a preliminary matter, the Governor notes that, in her capacity as the elected
representative of the people of this State, she recently intervened in the re-licensing
proceeding now pending before the Federal Energy Regulatory Commission ("FERC") in
which Alcoa Power Generating, Inc. ("Alcoa") seeks a 50-year license to continue to
operate the hydroelectric power generating facilities in the area of Badin, North Carolina,
in Stanly County. These hydroelectric facilities are part of a series of dams that span the
Yadkin River. It is these dams, their hydroelectric power generating facilities and the
Yadkin River that are the subject of Stanly County's contested case and its Stay Motion.
In the re-licensing proceeding now pending before FERC, the Governor intends to
vigorously oppose Alcoa's re-licensing application. To that end, she recently moved
FERC for 120 days within which to assemble and file with FERC the necessary
documents and evidence supporting the State's position that: (i) Alcoa's re-licensing
application should be denied; and (ii) FERC should turn the Yadkin River hydroelectric
power generating facilities over to the people of this State to operate in the public
interest.
The Governor's View of Stanly County's Stay Motion
The Governor, of course, relies upon her experts at DENR where it comes to
making judgments about environmental permits and certifications; however, the
Governor believes that an important development has occurred which makes it
appropriate for her to offer this Court her views on the matters now pending before this
Court. Specifically, a local government of this State that represents literally thousands of
North Carolinians has raised questions going directly to the welfare of our environment,
the life of the Yadkin River and, ultimately, the health and safety of the people of this
State, especially those who live near the River and the hydroelectric facilities.
As the elected representative of all the people of this State and as the official
charged with the ultimate responsibility for the welfare and safety of our people, the
Governor is concerned about the gravity of these questions raised by Stanly County and
believes that they should be examined and answered fully by this Court following a
presentation of all the relevant scientific and other evidence on the merits.
For example, Stanly County's contested case proceeding raises health and safety
questions about known cancer-causing toxins that even Alcoa agrees reside in sediments
at the bottom of Badin Lake as a result of Alcoa's past activities at this site. These toxins
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include PCBs and PAHs.t In granting the 401 Certification, DENR took the position that
these toxins are stable and unmoving, such that they are not a threat to public health and
safety. Stanly County's contested case proceeding disputes this, claiming that there are
insufficient scientific data to justify this important conclusion.
If these toxins are, as Stanly County fears, moving, they could conceivably end up
in local fish and other aquatic life - both in Badin Lake and downstream. Indeed, the
Governor notes that Stanly County points to a recent fish study showing that PCBs were
found in the tissues of a significant percentage of the Badin Lake fish that were part of
the study. Where did these fish pick up these PCBs? Stanly County insists that the
available studies do not resolve this important question. Does this mean that people who
swim and fish in Badin Lake are at serious health risk or that people downstream may be
subject to PCB exposure?
The Governor's view of Stanly County's Stay Motion is not limited to a
consideration of procedural rules and legal technicalities. Rather, it is based on what the
Governor sees as common sense decision-making and ordinary prudence. Bearing in
mind that this Court's decision on Stanly County's Stay Motion is, in the last analysis, "a
matter of discretion to be exercised by the hearing judge after a careful balancing of the
equities," e.g., A.E.P. Industries v. McClure, 308 N.C. 393, 400, 302 S.E.2d 754, 759
(1983); Pruitt v. Williams, 288 N.C. 368, 372, 218 S.E.2d 348, 351 (1975), the Governor
believes that this is one of those preliminary injunction proceedings wherein the single
most important factor for the Court to consider is the public interest. E.g., Orange
County v. North Carolina Dept of Transp., 46 N.C. App. 350, 383-384, 265 S.E.2d 890
(1980). See Shute v. Shute, 176 N.C. 462, 464, 97 S.E. 392 (1918); Rogers v. Powell, 174
N.C. 388, 389-390, 93 S.E. 917 (1917).
In the Governor's view, the public interest that should drive the determination of
Stanly County's Stay Motion is the State's - and this Court's - strong interest in ensuring
that the welfare of the State's environment, the life of the Yadkin River and, ultimately,
the health and safety of our people are safeguarded. Indeed, the Governor believes that
this strong public interest should reign supreme at this preliminary stage. The Governor
welcomes this Court's involvement in the resolution of this dispute and is confident that,
1 That is, polychlorinated biphenyl's and polyaromatic hydrocarbons.
upon a full hearing of all the relevant evidence and expert testimony, this Court can and
will appropriately resolve the complex scientific and technical questions that are
presented by Stanly County's contested case.
Against the backdrop of these vital public interests, the Governor notes that, of
course, Stanly County is in favor of the requested stay and that DENR is not opposed to
the stay request. Indeed, DENR has even acknowledged to the Court that it is probably in
the best interests of the public that the stay be entered at this time.
It is only Alcoa that opposes the stay request. But Alcoa's only interest in North
Carolina, its natural resources and its people is purely a narrow commercial interest. And
Alcoa's commercial interest will not be prejudiced in any way by the entry of the
requested stay. Alcoa has been operating and continues to operate the Yadkin River
hydroelectric facilities under a temporary FERC license. This will remain the case until
FERC has finally resolved Alcoa's re-licensing application. Therefore, no matter what
this Court decides regarding Stanly County's Stay Motion, Alcoa will continue to operate
the Yadkin River hydroelectric facilities and will continue to generate and sell electricity
for its own substantial private profit.
On these facts, given the serious questions raised by Stanly County going to the
welfare, health and safety of the State's environment, the Yadkin River and, ultimately,
the people of this State, the Governor believes that the only responsible and prudent
course of action at this time is to grant Stanly County's Stay Motion and then to address
these health and safety questions as expeditiously as possible following a full public
hearing on the merits of the parties' positions in this matter.
Respectfully submitted this 215 day of May 2009.
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FOR THE GOVERNOR OF THE STATE
OF NORTH CAROLINA AND THE
STATE OF NORTH CAROLINA, AMICUS
CURIAE
I. Faison Hicks
North Carolina State Bar Number 10672
Special Deputy Attorney General
North Carolina Department of Justice
114 West Edenton Street
Office Number 227C
Raleigh, North Carolina 27603
Post Office Box 629
Raleigh, North Carolina 27602-0629
Telephone Number: 919/716-6629
Facsimile Number: 919/716-6757
fliicks(@ncdgj.gov
CERTIFICATE OF SERVICE
This is to certify that, on the 21" day of May 2009, I caused a copy of the
foregoing to be served by electronic means (i. e., e-mail transmission) and by First-Class
United States Mail, postage prepaid, on:
Thomas N. Griffin, III, Esquire
Parker Poe Adams & Bernstein LLP
401 South Tryon Street
Suite 3000
Charlotte, North Carolina 28202
tomgriffin(@.parkerpoe.com
David R. Poe, Esquire
Dewey & LeBoeuf LLP
1101 New York Avenue, N.W.
Washington, D.C. 20005
DPoe(d)deweyleboeuf.com
Donald Laton, Esquire
Assistant Attorney General
North Carolina Department of Justice
Raleigh, North Carolina 27603
Post Office Box 629
Raleigh, North Carolina 27602-0629
dlaton(a), acdoj-gov
1. Faison Hicks
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, r
Dorney, John
From: Thompson, Mary [[e-mail]]
Sent: Thursday, May 21, 2009 2:24 PM
To: Smith, Robin; Kees, Diana; Sullins, Coleen; John Dorney
Subject: FW: Stanly County v. N.C. DENR, et al. -- Governor's Comments Concerning Stanly County's
Stay Motion
Attachments: AlcoaStanlyCo--Gov'sCommentsReStayMot.pdf
FYI
Mary Penny Thompson
General Counsel and
Assistant Secretary for Information/Chief Information Officer
1601 Mail Service Center
Raleigh, NC 27699-1601
Phone: [phone]
Fax: [phone]
mary.p.thompson(ncdenr.gov
E-mail correspondence to and from this address may be subject to the North Carolina"Public
Records Law and may be disclosed to third parties.
-----Original Message-----
From: Laton, Don [mailto:[e-mail]]
Sent: Thursday, May 21, 2009 11:03 AM
To: Gulick, James; Cooper, Kathy; [e-mail]
Subject: FW: Stanly County v. N.C. DENR, et al. -- Governor's Comments Concerning Stanly
County's Stay Motion
<<A1coaStanlyCo--Gov'sCommentsReStayMot.pdf >> FYI
-----Original Message-----
From: Hicks, Faison
Sent: Thursday, May 21, 2009 11:00 AM
To: Laton, Don; Griffin, III, Thomas N.; Poe, David R.; [e-mail]; [e-mail]
Cc: Oliver, Jane
Subject: Stanly County v. N.C. DENR, et al. -- Governor's Comments Concerning Stanly County's
Stay Motion
Gentlemen:
Attached hereto as a PDF document is a file-stamped copy of Governor Perdue's written
comments concerning Stanly County's Stay Motion now pending before Judge Webster at the North
Carolina Office of Administrative Hearings. I filed this document with the clerk at the OAH
this morning and hand delivered a courtesy copy of it to Judge Webster's chambers.
I will be sending a hard copy of this document to each of you by First-Class United
States Mail later today.
Although my Certificate of Service shows that I served Alcoa by serving Mr. Poe, I am
also sending a copy of the attached document to Mr. Case via this email and will likewise
mail a hard copy of this document to him later today.
Faison Hicks
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I. Faison Hicks
Special Deputy Attorney General
North Carolina Department of Justice
114 West Edenton Street
Office Number 227C
Raleigh, North Carolina 27603
Post Office Box 629
Raleigh, North Carolina 27602-0629
Telephone Number: 919/716-6629
Facsimile Number: 919/716-6757
Cellular Telephone Number: 704/277-8635
E-Mail Address: fhicks(@ncdoi.gov
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