Appeal filed in Blounts Creek mining case

Published 4:47 pm Friday, January 6, 2017

Sound Rivers is appealing the December ruling saying the environmental organization has no standing in challenging the state and a mining company.

The appeal was filed on Dec. 28 in Carteret County Superior Court. Now Sound Rivers and the North Carolina Coastal Federation, along with counsel from the Southern Environmental Law Center will wait to find out when the case will once again make it to court.

“We’re where we kind of expected we’d have to go,” said Heather Jacobs Deck, Pamlico-Tar riverkeeper. “We’re working toward a long-term solution. … Hopefully, it will be this year, but last time, I think it was a year or more.”

The court saga started in September 2013, when Sound Rivers, NCCF and attorneys with SELC challenged the state’s National Pollutant Discharge Elimination System permit to Martin Marietta Materials Inc. With the NPDES permit, the mining company obtained permission from the state to discharge in the limestone mining process up to 12 million gallons of fresh water per day into the headwaters of the brackish Blounts Creek. Opponents have argued that the influx of fresh water would change the ecosystem of a creek designated by the state decades ago as a nursery for saltwater species, and have requested other methods of discharge be pursued. Proponents have said the change in the water’s pH would promote other species.

It took several years for the challenge to make it to court, and a hearing before state Office of Administrative Hearings Judge Phil Berger Jr. ruled the groups had no standing to challenge the permit. An appeal of Berger’s decision landed the case in front of Judge Douglas Parsons in Beaufort County Superior Court in September 2015, where Parsons ruled that the groups did, indeed, have standing and deserved another OAH hearing, this one including evidence and testimony from expert witnesses. Parsons also ordered that he retain jurisdiction should the case show back up in Superior Court.

That hearing took place June 2016, and after several requests for extension, Berger ruled again in favor of the state and Martin Marietta in December. Martin Marietta’s challenge of Parsons retaining jurisdiction was denied in the N.C. Court of Appeals in January 2016. In February, they appealed to the N.C. Supreme Court, and on Dec. 12, the Supreme Court struck Parsons order for retaining jurisdiction.

The decision to file the current appeal to Berger’s second “no standing” decision was based on availability of judges in Carteret County Superior Court, Deck said.

“There are more judges available in Carteret County,” Deck said. “It was mainly done in hopes of getting a hearing at an earlier date.”

As yet, there is no indication of when the case will make it back to court, but attorneys on both sides are working on potential dates, according to Deck.