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For ‘egregious’ violations that damaged mountain streams, DEQ fines Bottomley Properties more than $268,000, one of the agency’s largest penalties

Southern Appalachian Brook Trout, also known as “brookies.” They are the official freshwater fish of North Carolina. (Photo: US Fish & Wildlife Service)

The NC Department of Environmental Quality has fined Bottomley Evergreens & Farms and Bottomley Properties more than $268,000 for water quality violations, one of the largest civil penalties ever assessed by the agency.

While clear-cutting 360 acres of forest for cattle pastures in Alleghany and Surry counties, the companies extensively damaged more than three linear miles of streams, as well as wetlands, according to court records.

Many portions of these waterways were filled with rock, mud and dirt, requiring the NC Wildlife Resources Commission to conduct an emergency fish rescue to save a unique species of mountain trout, known as a brookie, Policy Watch reported earlier this year.

In addition, cattle grazing operations polluted streams with high levels of fecal bacteria, more than six times the state freshwater standard.

In court documents, DEQ described “egregious violations” of the state’s water quality standards. “The violations observed constituted some of the most extensive sedimentation damage to waters the Division of Water Resources staff involved in this matter have ever seen,” the documents read.

DEQ required Bottomley to restore the damaged streams. However, a DEQ spokeswoman said the company has not completed the restoration by the deadlines established in a work plan issued by the agency.

Companies owned by the Bottomley family have a long history of environmental and labor violations. Glade Creek Dairy in Alleghany County, racked up dozens of state environmental citations and more than $15,000 in fines, according to NC Department of Environmental Quality records. In 2014, a Bottomley subsidiary based in Oregon settled two cases with the U.S. Department of Labor for nearly $1 million — without admitting any wrongdoing. That subsidiary has since closed.

In this case, Bottomley Evergreens & Farms and Bottomley Properties can pay the penalty or request a reduction, which would have to be approved by the Environmental Management Commission. The companies can also contest the penalty before an administrative law judge.

Joey Ponzi, attorney for Bottomley, is not in his office this week and could not be reached for comment. [Update: 11 a.m.: Ponzi responded via email and said the company plans to appeal the civil penalty.]

With the exception of DEQ’s $6.8 million fine levied on Duke Energy — later settled for $6 million — the agency has rarely assessed penalties this large. Last year, DEQ fined Chemours $300,000 for air quality violations, as well as another $200,000 for failing to meet the requirements of a consent order related to discharges of PFAS into the Cape Fear River.

The Week in Pollution: Chemours says toxic GenX helps fight climate change

GenX — a toxic compound scientifically linked to several cancers, high cholesterol, thyroid disorders, reproductive issues, fetal development problems and a depressed immune system — is … ahem, necessary to fight climate change?

That’s the claim by Chemours, in its March filing to the EPA rebutting the agency’s toxicity assessment of GenX. Sharon Lerner of the Intercept first reported on the document earlier this month.

Chemours, whose GenX discharges have contaminated drinking water for hundreds of thousands of people in the Lower Cape Fear River Basin, contends that GenX and other fluoropolymers are “essential in manufacturing lithium-ion batteries central to electrifying cars … .”

The company is also the major U.S. manufacturer of key components in hydrogen fuel cells, “which show great potential for harnessing green hydrogen as an alternative to fossil fuels.”

Chemours’s audacious climate change argument is new, signaling a last-ditch effort to thwart the EPA’s pending new health advisory goal for GenX. That goal, which the agency has said will be more stringent, is due out this spring.

Last fall, EPA Administrator Michael Regan announced that scientists had found GenX is more toxic than previously thought. The agency is expected to issue a new, more stringent drinking water advisory this spring. (File photo: Lisa Sorg)

There is no federal or state drinking water standard for GenX or any type of PFAS, also known as perfluorinated compounds. The NC Department of Health and Human Services has set a health advisory goal of 140 parts per trillion for GenX in drinking water. The EPA’s updated health goal could be as low as 5 parts per trillion.

Unless the EPA corrects its toxicity assessment of GenX, Chemours wrote in the filing, regulations could “cause significant harm to Chemours as well as to the broader U.S. economy.”

Meanwhile, peer-reviewed science and broad health studies have demonstrated that GenX causes significant harm to living beings.

Donald van der Vaart (File photo: DEQ)

Former DEQ Secretary-turned-judge to oversee Wake Stone case

Wake Stone is contesting the NC Department of Environmental Quality’s denial of its mining permit, which would have allowed the company to build a quarry on 105 acres next to Umstead State Park. Wake Stone and DEQ have been ordered to enter mediation, but if a settlement isn’t reached, the case will be heard by an administrative law judge, beginning July 11.

And the judge? None other than Donald van der Vaart, former DEQ secretary under Gov. Pat McCrory. Van der Vaart, who was a senior fellow at the conservative John Locke Foundation after his DEQ gig, is now the chief administrative law judge, appointed by Republican state Supreme Court Justice Paul Newby.

Another big mining case, that of Carolina Sunrock‘s proposed quarry in Prospect Hill, in southern Caswell County, remains unresolved. Opponents reached a settlement with DEQ over its approval of the mining permit, which should afford more drinking water protections.

However, there is still disgruntlement among mine opponents over DEQ’s opportunities for public participation — or lack thereof — when the mining permit was still in play. The agency held one public hearing, but days before DEQ approved the permit, there was a flurry of changes — all done without public notice or input. (Opponents of a proposed discharge permit for Chemours are also begging for a public hearing, so far to no avail. DEQ is accepting public comment through May 2.)

Before the first stone can be excavated, Carolina Sunrock must also navigate a convoluted vested rights disagreement at the county level.  “Vested rights” allow a company to continue a use or to complete a project as it was approved, despite subsequent changes to a county ordinance. As it pertains to Caswell County, commissioners passed a temporary moratorium on polluting industries in 2020.

If a Caswell County judge determines that Carolina Sunrock doesn’t have vested rights, then the mining permit is in jeopardy; the state’s approval is contingent upon the county’s go-ahead. A court date has not been set.

And because nothing is simple in Caswell County, the Watershed Review Board still has to rule on the project. The quarry property boundary would lie roughly 1,000 feet from South Hyco Creek, the headwaters for Roxboro Lake. The lake is the supplemental drinking water supply for the City of Roxboro.

The ginormous Yadkin County mine is still in a holding pattern. The county’s planning board will meet May 9 for a second public hearing on the rezoning proposal. The mine, owned by a subsidiary of Synergy Materials, an out-of-state company, would be constructed 800 feet from West Yadkin Elementary School and 500 feet from several nearby homes.