Friday, November 21, 2014

Judge's orders set stage for N.C. v. Alcoa trial

A federal judge has issued a couple of orders in North Carolina's legal wrangle with Alcoa over ownership of the bed of the Yadkin River, in a prelude to a trial early next year.

The aluminum giant and the state, you'll recall, have fought for years over renewal of Alcoa's hydroelectric license for 40 miles of the Yadkin east of Charlotte. The state has argued Alcoa doesn't deserve free access to the state's resources after shuttering its Badin smelting plant.

Things got more interesting when North Carolina asserted that the state, not Alcoa, owns the riverbed under the Yadkin. Alcoa, which dammed the river nearly a century ago, claims it has longstanding title.

U.S. District Judge Terrence Boyle issued an order Thursday on motions for summary judgment from both sides, granting some and denying others. He instructed both sides to be ready for trial on Jan. 15.

Ryke Longest, director of the Environmental Law and Policy Clinic at Duke University's law school, said Boyle made a couple of noteworthy decisions. Longest represents the Yadkin Riverkeeper, a former party to the case.

Most importantly, he said, the judge granted North Carolina's motion that it made a prima facie -- correct until proven otherwise -- case for ownership of the riverbed. That shifts the burden to Alcoa to prove at trial that it holds title.

Boyle denied Alcoa's claims that the company owns the riverbed by virtue of its long occupation there. He also ruled against Alcoa's argument that the river was not navigable at the time North Carolina became a state. States own the beds of navigable rivers, other courts have held.

In a second order, Boyle denied Alcoa's motion to strike the affidavits of four expert witnesses for the state, meaning they will likely be able to testify at trial.

"What it means is we're going to have a very interesting trial starting in January," Longest said.

Tuesday, November 18, 2014

State approves new metals limits in water

North Carolina's Environmental Management Commission has approved long-overdue water quality standards that stiffen limits on metals, which can be toxic to fish and other aquatic life.

Federal law requires the updates every three years to recognize research on pollutants' effects. North Carolina is four years late, a delay state officials blame on the complexity of the standards and policy changes that made it harder to enact new rules.

The changes won't take effect until the Environmental Protection Agency approves, and EPA has already signaled some concerns.

The standards include a provision called the "biological trump" that allows some concentrations of metals to exceed the limits if there's no evidence aquatic life has been harmed.

EPA says biological studies are of little use in preventing water pollution and don't replace the need to enforce pollutant limits. We'll update when EPA rules.

Friday, November 7, 2014

Environmental advocates launch coal ash site

The Southern Alliance for Clean Energy and its partners have added an interactive tool to their website about the 450 coal ash ponds spread across nine states.

The site can now generate power plant-specific reports with data on coal ash capacity, dam hazard ratings and known contamination.

The feature was added as the Environmental Protection Agency prepares to release the first federal rules on ash in December. The agency's key decision will be whether to regulate ash as hazardous waste. EPA rules to be released next September, on wastewater discharges from power plants, could also limit use of ash ponds.

The coal-intensive Southeast was the scene of the two spills that drew federal attention to coal ash regulation -- the first by the Tennessee Valley Authority in 2008, followed by Duke Energy's spill into North Carolina and Virginia's Dan River in February.

The alliance worked with Appalachian Voices, the North Carolina Conservation Network and the Southern Environmental Law Center on the site.