WQ0001740_Appx-C EMC Meeting Minutes_20091119

MEETING OF THE NORTH CAROLINA
ENVIRONMENTAL MANAGEMENT COMMISSION
Raleigh, North Carolina
November 19, 2009
Minutes
The North Carolina Environmental Management Commission met in the Ground Floor Hearing
Room of the Archdale Building, 512 North Salisbury Street, Raleigh, North Carolina. Chairman,
Stephen T. Smith presided. The following persons attended for all or part of the meeting:
COMMISSION MEMBERS:
Yvonne C. Bailey
Donnie Brewer
Thomas F. Cecich
Stan L. Crowe
John S. Curry
Marion E. Deerhake
Tom Ellis
William L. Hall
Freddie Harrill
Dr. Ernest W. Larkin
DIVISION OF WATER QUALITY:
Bradley Bennett
Ted Bush
Kevin Bowden
Frances Candelaria
Alan Clark
Nora Deamer
Matthew Faerber
Mike Templeton
Bethany Georgoulias
Connie Brower
Gary Kreiser
Jay Sauber
Matt Matthews
Sandra Moore
Kevin Martin
Dr. David H. Moreau
Jeffrey V. Morse
Mayor Darryl D. Moss
Dr. David B. Peden
Jeff Poupart
Rob Krebs
Tom Reeder
Jerry Rimmer
Jason Robinson
Gary Saunders
Bob Sledge
Dr. Charles H. Peterson
J. Dickson Phillips III
Stephen Smith
Forrest R. Westall, Sr.
Coleen Sullins
Lois Thomas
Julie Ventaloro
Adriene Weaver
Chuck Wakild
Elizabeth Kountis
Jon Risgaard
DEPARTMENT OF THE SECRETARY OF STATE: Deputy Secretary Haley Haynes
SECRETARY'S OFFICE:
DIVISION OF AIR QUALITY:
UNDERGROUND STORAGE TANK:
ATTORNEY GENERAL'S OFFICE:
Gen. Counsel Mary Penney Thompson
Asst. Secretary Robin Smith
Steve Wall
Keith Overcash
Michael Abraczinskas
Paul Grable
Ruth Strauss
Frank Crawley
Jane Oliver
Don Evans
1

Chairman Smith: called the November 19, 2009 meeting to order at 9:05 a.m. He then read the
Ethics General Statute § 138A-15, which mandates that the Chairman inquire as to whether any
member knows of any known conflict of interest or appearance of conflict with respect to
matters before the Commission. Commission members were asked if they knew of any conflict
of interest or appearance of a conflict to please so state at this time.
I. Preliminary Matters
Chairman Smith: Chairman Smith:
Our first order of business is to recognize Deputy Secretary of State Haley Haynes who is going
to swear in our two new members. They are William Les Hall and Jeff Morse. Once they are
sworn in I will introduce them to you. Welcome Deputy Secretary of State Haynes.
We welcome Les Hall and Jeff Morse. By way of introduction Les is a professional civil
engineer with McKim and Creed here in the Triangle. He holds masters and bachelors degrees
from NC State University. Jeff is the Town Manager for the Town of Valdese. Before that he
had an interesting position, he was the circuit riding town manager for six towns and one county
in Western Virginia. He holds a masters degree and a bachelor's degree from East Tennessee
State so we welcome Les and Jeff. Glad that you are here.
Are there any additions or deletions or modifications of the agenda?
Chairman Smith: I have one that I'd like to deal with first and that is I have previously
circulated to each of you a draft of a resolution thanking and commending Kenny Waldroup and
Leo Green for their years of service on the Environmental Management Commission. You have
had various editorial comments about those drafts and I've incorporated those and have those
before me now. Rather than reading the entirety of both those documents, I will say that as far as
Leo Green we thank and commend him for his twelve years of service on the Environmental
Management Commission in a number of areas, but in particular issues relating to groundwater,
surface water, wastewater treatment, and interbasin transfers. As to Kenny Waldroup we thank
him and commend him for his seven years of service on the Environmental Management
Commission in many areas, particularly in issues relating to water treatment facilities,
groundwater and surface water quality. I ask for a motion on these two resolutions.
Donnie Brewer: motion by Mr. Brewer and seconded by Tom Ellis.
Chairman Smith: Any discussion? Hearing none the motion passed.
The next item on our agenda relates to the minutes from the September 10, 2009 EMC meeting.
Are there any modifications or additions to those minutes?
Forrest Westall: I'd given Lois a note about some modifications to be made and subject to
those modifications I would move to approve the minutes. The minutes were seconded.
Chairman Smith: asked for a vote. The motion passed.
2

Let me also say that the State Ethics Statute requires that each of you consider whether or not
you have a conflict of interest or potential conflict of interest as to any matter before us. If you
do, I ask you to state so now or if it occurs to you as our business unfolds today, state so at that
time.
Les Hall: I have a potential conflict of interest with agenda item 09-57. Our firm provides
consulting services for the City of Raleigh. I am recusing myself.
Secretary Freeman is going to join us in a little while and speak on the Department's new
strategic plan. I'll keep an eye out for him but if anyone sees him come in and I don't see him
we will put him on at that point of the agenda and work him in as soon as we can.
09-49 Hearing Officers' Report on Amendments to Underground Storage Tank Secondary
Containment Requirements
Summary (Ruth Strauss):
This agenda item is to present the Hearing Officers' report on proposed amendments to
underground storage tank secondary containment rules.
The proposed amendments are the result of a petition brought to the Commission last year by
Highland Tank & Mfg. Co. and others. The Commission acted to allow the petition with some
modifications to proceed to public hearing.
The proposed amendments were published in the NC Register on May 1, 2009. A public hearing
was held in Raleigh on May 28 and DENR accepted written comments from May 1 through June
30. Commissioners Donnie Brewer and Leo Green served as hearing officers for this hearing
report.
One public hearing was held in Raleigh on May 28, 2009 on proposed amendments to
underground storage tank (UST) secondary containment rules. The proposed amendments were
published in the North Carolina Register on May 1, 2009 in Volume 23, Issue 21.
Commissioners Donnie Brewer and Leo Green served as the hearing officers for this hearing
report.
Rule 15A NCAC 02N .0901 is proposed for amendment to add electronic liquid detecting sensor
monitoring as an allowable method of monitoring the interstitial space of a double -walled UST.
Three methods are allowed under the existing rule: vacuum, pressure and hydrostatic interstitial
monitoring. Adoption of the proposed amendment will allow the use of a fourth interstitial
monitoring method for a tank. The proposed amendment also sets out requirements for
operating and maintaining electronic liquid detecting sensors including: sensor location,
verification of sensor location, alarm activation when a liquid is detected and removal of any
liquid detected in the interstitial space within 48 hours of discovery.
Rule 15A NCAC 02N .0903 is proposed for amendment to require owners and operators using
electronic liquid detecting sensors to conduct interstitial tightness testing before UST system
3

start-up, between six months and the first anniversary of system start-up and every three years
thereafter. The proposed amendment also requires that owners and operators use an interstitial
tightness test method that has been certified by an independent laboratory, environmental
consulting firm, not-for-profit research organization or educational institution ("third party") as
being capable of meeting the required state and federal standards. This is a one-time certification
that the manufacturer or developer of a test method must obtain prior to putting forth claims that
their method is capable of meeting the required standards. The proposed amendment also sets
out requirements for reporting failed interstitial tightness tests and maintaining test records.
These proposed requirements mirror those in the existing rules for UST piping, spill containment
and under dispenser containment sumps.
Seventy-three written comments were received from representatives of the steel tank industry
and employees of Highland Tank & Mfg. Co. supporting the addition of electronic liquid
detecting sensor monitoring as an interstitial monitoring method. Seven of these commenters
stated their opposition to the interstitial tightness testing requirement and the requirement that the
interstitial tightness test have a one-time third party certification. Three written comments were
received from representatives of the fiberglass tank industry opposing any modifications to the
existing rules on the grounds that the proposed changes are less environmentally protective.
The Department of Environment and Natural Resource's position remains that because electronic
liquid detecting sensor monitoring is not a continuous wall integrity monitoring system, it is not
as protective of the environment as the methods currently allowed, and the rules should not be
changed.
It should be noted that the proposed amendments contained in Chapter II of Attachment A
contain rule clarification and format changes recommended by Rules Review Commission staff
in addition to the change made to Rule .0901(i)(9)3) as a result of public comment.
Donnie Brewer: I would like to give the Hearing Officer's recommendation at this time. The
hearing officers have reviewed the proposed amendments including all comments and the
department's responses. The hearing officers also met with the department staff and have
considered the department's positions which have not changed on the issues, especially with
respect to continuous monitoring capabilities. However, the hearing officers believe the
proposed amendments including the periodic integrity testing and third party testing methods
certification requirements sufficiently address any practical concerns of adding electronic liquid
detection monitoring as an allowable method of monitoring. Therefore the hearing officers
recommend that the proposed amendments that are contained in Chapter 2 of the hearing report
be adopted by the Environmental Management Commission. I make that a motion. Freddie
Harrill seconded.
Chairman Smith: asked for discussion. I have received a letter and you may have received as
well from the lawyer representing the petitioners and states that they support the Hearing
Officer's Report and urge the EMC to adopt that report. I add that to this conversation.
John Curry: I suppose that I'd like to hear a bit more. I do remember when we heard testimony
on this previously and it seems to me that it would be helpful to hear a bit more from the staff
0

and the hearing officers given that they're proposing that we vote against the position of the staff
in this matter. Would it be possible to hear a bit more before we vote?
Donnie Brewer: We did take into consideration the fact that the Commission had approved the
petition earlier with the direction to go back and modify language to maybe strengthen the
tightness integrity for which that's the direction we headed. We were presented with some
studies that validated that with integrity testing allowing this particular method and presuming a
more competitive advantage for the steel or at least lessening the non-competitive advantage for
the steel industry for valid studies. If you remember from Ms. Strauss' report that there was
opposition to the integrity testing and the certification requirements but we felt this needed to be
in place if we were going to use this method which did not provide continuous monitoring of that
integrity. But with all the facts in, it seemed reasonable to allow it with those certifications and
integrity testing. There were some other issues also that we did have some discussion with staff.
I think the staff and the hearing officers were in agreement with all of those. I'll let Ruth expand
on those if she would like too.
Ruth Strauss: We did have specific comments from petitioners and we have addressed most of
those or have addressed some of the three comments in a manner that was satisfactory to
petitioners. The first comment was that the tank must have a method to verify electronic liquid
detecting sensors locating the lowest point of the interstitial space and verification of the sensor
location must be readily available for inspection. The petitioners voiced their recommendation
that it would be helpful to change the language of the verification requirements to say that, "a
tank must readily permit the user and others to verify an electronic detecting sensor is located at
the lowest point by measuring the distance between the top of the tank and the sensor and by
deleting the requirement that the verification of the senor location must be readily available for
inspection. We considered that and gave it a great bit of consideration, the hearing officers and
DENR came to the conclusion that it's a good concept and that would work for meeting this
requirement. It could possibly be one of several methods that could work to meet this
requirement, but we did feel that in order to make it accurate to put into the rules there would
need to be a lot more explanation to go along with that. It would be better to be done in guidance
as part of a back and forth approval process rather than put that lengthy explanation in the rule. I
think that was satisfactory to the petitioner. The second comment was that electronic liquid
detecting sensors must detect the presence of any liquid in the interstitial space and shall not
discriminate. The petitioner indicated that there are good reasons for discriminating between the
types of liquids detected in that interstitial space from a breach of the inner or outer wall. One
being that they would know how to deal with it. If it was gasoline, then they would deal with it
in a different way than if it was water. We agreed with some of the language that they suggested
replacing "shall not discriminate between liquid types" with "must activate an alarm when any
type of liquid is detected." We struck the original language in Rule 15A NCAC 02N .0901
(i)(9)(3) and added their language verbatim. That was satisfactory. The sticking point was as
Mr. Brewer pointed out the three year integrity testing requirement and the requirement that this
particular type of test had to have a one time evaluation by a third party as per EPA's standards
and protocols. They felt that this was unnecessary cost. We indicated that we believed that it
(the testing) was necessary to make this method comparable to the current methods allowed for
tanks at least once every three years.. The current methods are continuously looking for
breeches in the walls of the inner and outer walls of tanks 365 degrees 24 hours per day 7 days
5

per week. The method that has been proposed to be added to this rule looks for liquid inside that
space. Once it finds liquid that would tell you there is a leak somewhere in the inner or outer
wall of the tank. The proposed method is not a continuous integrity type method as is the
currently allowed methods. So the requirement for an interstitial tightness test method once
every three years makes it (the proposed method) somewhat more comparable to the current
method which is performing tightness testing all the time. The third party evaluation that is a
requirement by EPA for all leak detection methods and tank tightness testing methods to ensure
that the tank owner is able to rely on a piece of equipment or service provided to know that it's
going to meet the EPA requirements - their leak rate thresholds. It is a one time requirement by
a third party. It is not supposed to be done every time a tank tightness test method is run on the
tank. The manufacturer would have that evaluated one time prior to its use.
Donnie Brewer: In addition to that we did discuss, the end user can have his personnel trained
to do that three year testing which would be at a cheaper cost. I do want to remind you that back
on March 13, 2008 we had this discussion and the Commission approved the petition but
directed the staff to prepare additional rule language requiring periodic integrity testing of the
interstitial space of the tanks, if the electronic liquid detecting systems were used in lieu of the
wall integrity monitoring. We already felt that there was some action that had been taken on
granting that petition to allow that method. We just wanted to tighten it up if it was going to be
done so we worked really hard to come up with a method that at least required it have the same
requirements that the piping system was having which was the three year testing.
Chairman Smith: Mr. Curry do you have any follow up questions on that?
John Curry: I suppose that the bottom line is given the hearing officer's recommendation I
would assume that they feel that the environment is as protected with this option as it is with the
other three options. In other words, the basic purpose is to ensure to the maximum extent
possible that we don't have a leak that goes undetected and thus I assume that your conclusion is
the general public and the environment is as protected with this technique as it is with the others.
Donnie Brewer: I don't want to imply that it has the same exact protection because obviously
one of them has continuous protection. I think that we studied and looked at it very hard. It is
the down side risk of doing every three years rather than continuous. There was information
from many studies that said that risk was a risk that shouldn't be taken and we decided that that
risk was so small that this was a viable method with the three year integrity testing.
Dr. Peterson: I just wanted to remind everybody that this is probably not unique but somewhat
unusual where we're taking action in opposition to the department's position. I say that not to
tilt the vote but to make sure that we all realize it and I also say an expression of independence
by this body on occasion is well justified.
Donnie Brewer: The cooperative spirit between the hearing officers and staff was that we
understood their position. I don't want to debate their position. I pretty much felt like in March
of 2008 we did that when we decided to allow the petition. I don't think we were hung up on
that issue with staff at any of the meetings. We recognized their position taking that as the base
0

as we move forward trying to find out what we could do to get as close to meeting their
opposition as possible and still allow that method.
Dr. Peterson: I do have a question. I recall that in the past that we have had trouble with the
RRC in establishing certification programs. In this case it is not a certification program but it's a
third party certification that we rely on. I have a couple of concerns. One is did the RRC staff
look at that part of this? I understand that it is part of what EPA has as its guidelines and so
perhaps that overcomes any concern that this may be, to go beyond our authority to require that
sort of third party certification.
Ruth Strauss: Yes they did, Dr. Peterson. You will see if you look in attachment A, Chapter 2
the changes made to 15A NCAC 02N .0903 (f). There was a whole paragraph because the
original text read as published, "the test method must have a written third party performance
claim that describes the procedure used to demonstrate that the test method can meet........", and
they recommended that we define that better. So we did and that is shown here that met with
their approval.
Dr. Peterson: Good.
Chairman Smith: asked for further discussion. Jeff Morse, John Curry, Marion Deerhake and
Dr. Larkin voted no. The motion passed.
Thanks to Mr. Brewer and Mr. Green in his absence. As all of you know one of our duties is to
serve as hearing officers. That is often a time consuming and occasionally a demanding task. I
know Mr. Brewer and Mr. Green put a lot of time, effort and concern into this issue and we
thank you.
Good Morning Secretary Freeman it's nice to have you and it's the perfect time since we just
finished one issue and before we take we will hear from you. We thought that it would be a
good idea to have an update on the department's new strategic plan and Secretary Freeman
volunteered to give us that. We welcome you and look forward to hearing your comments
Secretary Freeman: Thank you for the invitation to come and share time with you and with
members of the audience; and for your service to the state of North Carolina as members of the
Environmental Management Commission. Commission members, I'd like for you to know that
on occasion I've had an opportunity to talk about issues with your chairman, and he's been very
responsive.
In the short time that I have served as DENR Secretary, we've had some issues come up that
have been challenging and contentious, but we have worked through those through collaboration
and cooperation, and I think with the best interest of the state of North Carolina at heart. So that
speaks well of this body and for your chairman; and I'd also like to welcome Jeff Morse. In full
disclosure, Jeff and I have been colleagues for many years in the world of municipal
government. So it is good to see his face here and I know he will do a good job on the
Commission.
7

Strategic Thinking
When I came to this office in January, we weren't fully aware of the severity of the economic
circumstances that we were about to face. The state of the economy has demanded a lot of our
time, energy and effort; and in this department we have worked on that issue and we continue to
work on it today.
Though we've had to dedicate a lot of energy to the economic issue, we have not been deterred
from turning our attention to issues that the governor is interested in and things that I am
interested in as far as mapping out a new strategic thinking for this department. The document
that I have just shared with you (attached) is the result of good work on the part of a really good
staff and employees of this department. The document has been vetted through our senior
management and division leaders, and we are now in the process of moving this document and
its principles out into the organization.
Today I'll discuss the plan's general emphasis, as well as ways it connects to recent
developments in Washington, D.C., with respect to the EPA, to national policy and to where I
think as a nation we probably are headed in the next four to eight years. In developing our road
map for the future, we've taken a long hard, professional look at what we are doing and what is
important to the state of North Carolina, taking into account the interest and needs of our people,
and the network and the fabric of the nation.
The main mission of the department is to protect the environment and to conserve our resources
and to preserve some of the things that we'll call our state's heritage. You see the statement at
the very beginning of the document to conserve and protect, and that proposition of conserving
and protecting a high quality of environment for North Carolina speaks to the quality of life. We
also bring into our mission the notion that we want to provide good quality valuable services as a
department. We want this department to be one of the best departments in the country and
certainly one of the best in state government, and one that consistently supports and benefits the
health and economic well-being of our citizens. Our mission is protecting the environment while
remembering we're here to serve the people, to ensure that they have a good quality of life and
there is a good economy in which to work and thrive in a location that we can be proud of.
You also see in those statements a promotion of a cleaner environment, sustained natural
resources and healthier lives; if you listen to EPA Administrator Lisa Jackson you will often hear
her discuss the connections with good health, particularly of children.
You'll also see "values" listed in our plan. You've heard about a lot of these already:
accountability, commitment and respect. I've also added professionalism, as it is my intent that
our department be as professional as possible. Most of these other values will exist, if we have
staff working in a professional manner for the benefit of the people of North Carolina.
Teamwork is a major aspect of what we are about. Whether a staff works in Land Resources, Air
Quality or Water Resources, within the department they are expected to work as a team, talk to
each other and share information, that we'll do our best to integrate so that the public can
understand what we're doing. My goal is that when staff is dealing with the public, with
business, industry or other state agencies, we can be consistent and relied upon in what we're

saying, so that no matter what part of the state a customer is in, when applying for a permit
consistent review is given.
We've tried to put forth a plan that doesn't speak necessarily to the politics but to the reality of
the needs of North Carolina. So I hope you will find in this document valid information that
speaks to the long term and addresses issues that are sustainable over a long period of time,
particularly when we get into such things as climate policy. We're not going to resolve climate
policy in a year or two, three, 10 or 20. These are issues that are going to be around a long time
and this document if used wisely will support this agency and this department for many years to
come, regardless of who is standing here speaking to you from my vantage point.
The plan contains eight major focus areas of strategic thinking. The first two are basic and very
much at the heart of what we do: water and air. Whatever we do, we must have clean water and
clean air and those are at the heart of any type of environmental regiment or regimental
environmental system. A green economy and climate policy are the next two focus areas. I've
learned in the short time that I've been here that you can't talk about climate policy or climate
change without also talking about the green economy, principally energy. The other four are
sustaining our natural areas or protecting our natural areas and our working lands. In addition to
that taking the natural resources of this state along with our visitor attractions and growing those,
the last two are more effective environmental regulation and customer services or organizational
improvement.
Let me talk a little bit about four and five. Our natural areas and working lands of this state are
really important. When you look at the eastern part of the state and its estuaries, all the sensitive
areas along our coast, and the Outer Banks, those areas have to be protected. The working lands
of our state are our farms, our agricultural interest. The way we manage those lands, the way we
use them to integrate into our economy has great implications for our environment. It is
important that those working lands be functional and be environmentally sound and it's a critical
part of the department's strategic thinking.
We talk about growing our attractions — the museum, the zoo and the aquariums — and nurturing
our natural resources — our forests our parks. North Carolina has a rich tradition and set of
resources for us to work with and to grow.
On the natural resources side folks in our Land Resources section have identified an area in the
southeast part of our state where there are natural deposits of natural gas that portend great
opportunities for the state of North Carolina. These, too, are resources to be nurtured, protected
and grown. This is a particular area where we can actually have a resource that can produce some
income for North Carolina.
With respect to improving our environmental regulation, thats an area where we want to see a
cultural change in our department. We're looking into how we can best attend to our regulatory
responsibilities to protect the environment but do it in a way that people sense that they're being
treated fairly. So often I hear from folks saying that, "Well DENR really is just standing in the
way. They're just too slow. They don't act fast enough," or if you read the papers you'll find
people being critical that you may have responded to someone who wants to speed up a process.
0

The department has made some good strides in that area over the years, such as our express
permitting process where people can apply for an expedited process of regulatory review, while
projects are still approved within the rules and guidlines of environmental protection.
The strategic plan includes action statements on how we propose to work on improving our
environmental regulatory process. I see it as complementary to enhancing our organizational
effectiveness. We're also looking at improving how we reach and interact with our customers, be
they internal department customers, internal to state government, or our external relationships
with individuals, businesses and industry.
I can share with you that we held our annual leadership meeting and we have turned our attention
to implementing the plan, which is a work in progress. This is a great road map for you to see
what it is that we're thinking and where we hope to go with it. Now I would like to give you a
couple of the examples of things that are occurring that I think are important, and that you
probably need to know about.
Climate policy is a major issue, especially on the federal level. I served on a panel discussing this
issue during a meeting I attended last week, and was happy to discover that EPA's thinking
somewhat in the same terms that I am with regard to the broader picture, working collaboratively
to try to coordinate what the federal government is doing, what state governments are doing, and
striving for consistency and reliability. They're looking at regional approaches, such as the
southeast and the western United States. And in order for climate policy to be successful you
have to bring in the notion of integration. If you're going to lower your carbon footprint, seek
renewable sources of energy, address through mitigation or the adaptation the effects of the sea
rise, you must integrate those principles into not just a climate policy but also into all of our
policies, whether it's transportation, agriculture, energy or emergency management.
One of the things that is rising to the surface about climate policy is how can we ensure that our
states are resilient to disasters. We must lead the way in North Carolina because of the state's
propensity for hurricanes, tornadoes and floods; we must become better prepared at dealing with
those events, especially if climate change portends a greater frequency or intensity.
It is good to be connected to the people in Washington and know what they're thinking, because
this Environmental Protection Agency is going to be more aggressive in its posture toward
environmental regulations and in the area of climate policy. The debate now is will this be led at
the national level by the Congress through legislation, or will it fall to EPA to lead by way of
regulation. I can tell you that EPA is poised to move ahead with the regulation if the Congress is
not able to move forward with legislation.
The other thing that is coming out of our strategic thinking is collaboration and cooperation,
working in tandem with others. You may have noticed in the news lately the Governor's
announcement about the South Atlantic Alliance, an alliance of the governors of North Carolina,
South Carolina, Georgia and Florida. The emphasis of that alliance is to protect our coastal
resources and waters — the ecosystems that run along the southeastern part of the U.S. coast — to
build upon and improve our ports, and to make sure that the states in our region are disaster
resilient. We're working together under that voluntary arrangement to cooperate to identify
10

issues together, to talk to each other instead of at each other and to listen. When I look at the
Southern Atlantic Alliance we have the chance to have an ongoing dialogue with our partner
states and my hope is through those relationships and discussions that we can possibly avoid
some of the unpleasantness that sometimes can arise.
Yesterday I was at a meeting with my counterpart from South Carolina, and we have been able to
develop a good relationship, though our states are in court with each other over the issue of inter -
basin transfers. Maybe through these relationships and this collaboration we might be able to
head some of these things off and avoid that kind of situation, or at least limit it to the point that
it may not be as pervasive or as broad. My hat is off to the four governors, particularly Governor
Perdue in having the foresight to enter into these relationships. These four states are voluntarily
partnering with each other; the federal government partners include the EPA and the military.
I hope that you can see that the department is engaged and moving forward, and that we stand
ready to work with you on the regulatory issues.
Mayor Moss: Building on your theme of collaboration it appears to me that local government
both county and municipal governments are going to play a vital role in your plan. How can we
help?
Secretary Freeman: You'll see in the plan that I talk about reestablishing the local state
partnership. As the discourse has become more politicized and more shrill the state local
partnership is not what it should be and I propose specifically to reestablish that, working
through the League of Municipalities and Association of County Commissioners. My hope is
that we can improve the discourse, so that though we might not agree with each other, we can
talk to each other and have a better discussion about the issues and topics that are important to
the state.
The other thing that I am doing to reach out to constituencies is establishing three environmental
roundtables. Those roundtables are intended to be a mechanism of communication and a way to
listen to stakeholders, a way for us to get information out to these various people and interests.
The three environmental roundtables are (1) business and industry; (2) conservation and
environment; and (3) local and regional government. I will be meeting with those groups
periodically and we will have our first joint meeting in January.
Dr. Moreau: I think this is a very good document and very useful for restating and giving a
broad perspective. You raised a subject that I am very much interested in and wondering where
there's any discussion that's going to initiate a possibility of North Carolina, South Carolina
interstate compact that would avoid having people determine our fate that have very little
knowledge of priorities in this region. We would do well to try to move forward trying to get
some agreement without having the courts make a determination.
Secretary Freeman: There is discussion going on regarding this issue, though it has not been
fully formulated, such as a compact or memorandum of understanding. As late as yesterday my
colleague in South Carolina and I talked, and plan to continue that discussion, bringing in staff
members to focus in on the broader policy issues and focus areas. We're going to try to come
11

forward with some mutually beneficial arrangements, that could manifest in the form of a
compact or some sort of agreement that would be a subset of the South Atlantic Alliance. We
need to have some understanding of what our needs are, what South Carolina's needs are and
have some thoughts and protocols in place so that when we get to a point of disagreement that
we will have established a framework that would help us work through the issue, rather than rely
solely on the courts.
Tom Cecich: Very good report. During your presentation I skimmed through to see what the
role that the EMC might have with respect to the strategic plan. I was a bit surprised even in the
regulatory area not to see any reference to the EMC which I would have thought would have
been synergistic with the regulatory goal. Could you explain your perspective or the
department's perspective?
Secretary Freeman: I don't think you'll find other commissions and boards mentioned as well.
When it comes to environmental regulatory issues the EMC will have a very important role,
obviously because it is the rulemaking authority. When it comes to improving the department's
environmental regulations, obviously the EMC will be a part of that.
Chairman Smith: asked for other comments or questions. I want to say what I've said to you
before and take this opportunity to tell you how much we appreciate the work, support and
responsiveness of the department staff. I won't name individuals or divisions but can say across
the board it has been my experience as well as the experience of everybody on the Commission
that the work of the staff in relation to our work is exceptional. We depend on it so thank you for
that.
Secretary Freeman: In the short time that I have been here I have the utmost respect for the
staff and employees of the department. They do an excellent job sometimes in the most difficult
of circumstances. We had one instance where a gentleman had just flagrantly violated some
coastal rules. He was objecting to having to pay a fine and at the same time he was saying,
"Why can't you do this and this. It would make more sense." The response to him finally was
Sir, pay your fine. You'll be back before the agency again in the near future. This man was in
the development business. He didn't just inadvertently violate, but intentionally violated. But to
the credit of the division head, Coleen Sullins, the Division of Water Quality was able to take in
the midst of that moment a couple of the things the gentleman had said, and have made some
changes based on his suggestions. He is probably not even aware of that.
Thank you very much for allowing me to come and share some time with you. Take a look at
the plan and I will leave you with a challenge. That challenge is to become familiar with what
we're thinking, what we're doing and join us in trying to improve the department and to make
North Carolina a better place to live.
09-50 Request to Proceed to Public Hearing to Adopt and Amend Municipal Waste
Combustor Rules
Summary (Paul Grable): This is a request to carry the two rules concerning Municipal Waste
Combustors to public hearing. These rules have been approved by the EMC in recent rule
12

actions. These rules were taken through the rulemaking process to the RRC. The only North
Carolina facility objected to the rules during the RRC meeting. DAQ negotiated with the facility
concerning their testing of chromium VI which is a toxic and under state -only rules. The
Division of Air Quality amended the rules and ensured that public safety was complete while
reducing testing costs. The EMC approved the testing changes and the rules were presented to
the RRC again. There was however, a change in the text that required a minor revision back to
its original wording. The Division of Air Quality considered the wording change to be a
technical correction, however the RRC ruled that the change required EMC approval. Since the
public hearing, there have been many minor corrections inserted included the negotiated testing
change. DAQ elected to withdraw the two rules from the RRC and to present the rules, with all
the changes, at a public hearing for comment. The original authors of the rules are no longer
with the Division, so the rules have been freshly reviewed relevant to the federal regulations.
Since the EMC approved the rules, some language change concerning operator training and
certification has been made to more closely reflect that found in the federal guidelines. These
rules are categorized under Section I I I(d) of the Clean Air Act and are subject to the USEPA
review and approval process. The point is that the rules have not been substantially changed
since the EMC approved them, but there have been enough changes that the Division
recommends that the two rules be presented at a public hearing for public comment. The
Division therefore requests that the EMC consider action to authorize the two rules for municipal
waste combustors to be taken to public hearing.
Motion (Ms. Deerhake): The Air Quality Committee approved the package in September and
yesterday we heard three minor revisions and some of the testing language. We had no concerns
with that. So on behalf of the Air Quality Committee I move that we precede to public hearing.
John Curry seconded.
Chairman Smith: asked for discussion. Hearing no further discussion the motion passed.
09-51 Request to Proceed to Public Hearing to Amend Volatile - Removed
Organic Compound Rules
This item was removed from the agenda.
09-52 Request to Proceed to Public Hearing to Revise Prevention - Removed
of Significant Deterioration and Sources in Nonattainment Areas Rules
This item was removed from the agenda.
09-53 Hearing Officer's Report on Revisions to NOx Rules Applicability, Acrylonitrile
AALs, Definition of Fugitive Dust, and Lead Ambient Standards
Stan Crowe: I'll follow up on a comment that you made earlier about public hearings. On
September 23, 2009 I held my first public hearing as being a member of this body. It reminded
me of when I had lunch with my house member shortly after appointed to this board and told her
that the Senate had appointed me to the EMC. She said, "did they talk with you about public
13

hearings." I said, "yes they went over that and she said I just want you to know I would have
never done that to you."
Chairman Smith: There is a certain amount of truth in that. But we thank you for your service
and we appreciate you serving as the hearing officer on this matter. I hope it was a good one to
start with.
Stan Crowe: It was a great one to start with. The proposed amendments are to clarify and
correct the nitrogen oxides (NOx) applicability rules, update the Acceptable Ambient Levels for
Acrylonitrile, clarify the definition of fugitive dust. Mike is here to summarize the rule
amendments for us.
Summary (Mike Abraczinksas): Rule 15A NCAC 02D .0408, Ambient Air Quality Standard
for Lead, is proposed for amendment to match the federal air quality standard which changed last
year. The revision changes the lead standard, a health -based standard, to a level of 0.15
micrograms per cubic meter and that's both the primary and secondary standard that is set to that
level. We received one comment on that rule change and it was a comment in support of the
change during the comment period.
The second Rule 15A NCAC 02D .0540 which are Particulates From Fugitive Dust Emission
Sources. We are removing a short phrase from the definition of fugitive dust. The phrase "from
process operations" is being removed and the intent of the change is to clarify the definition to
include both non -process and process operations. That accidently got added to the definition
during a previous rulemaking. We received one comment on that change and it was in support of
the change.
The third rule is 15A NCAC 02D .1104, Toxic Air Pollutant Guidelines. It is being proposed for
amendment to remove the annual Acceptable Ambient Level (AAL) and add daily and hourly
AALs for Acrylonitrile. The purpose of this rule change is to codify recommendations from the
Science Advisory Board regarding AALs for Acrylonitrile. One commenter had a concern over
eliminating the annual AAL as a carcinogen, however the SAB found during their research that
Acrylonitrile only exhibits a risk at a very high exposure level that has not been observed in the
occupational environment in over 40 years.
The fourth rule is 15 NCAC 02Q .0711, Emission Rates Requiring a Permit. We're proposing to
remove the annual emission rate requiring a permit and add daily and hourly rates for
Acrylonitrile. Again that change is tied to the aforementioned SAB recommendations.
The final rule is the 15A NCAC 02D .1402, Applicability rule for our NOx rules section. In that
rule we're amending one of the paragraphs to specify which parts of this section apply to sources
covered under Clean Air Interstate Rules and we are also clarifying the Reasonably Available
Control Technology requirements in nonatttainment areas. We received one comment in support
of those amendments and we received a second comment from USEPA that the NOx
Applicability Rule should be amended in paragraph (g) to align itself with the language of the
Clean Air Act. We agreed with that comment and we made changes to that effect in paragraph
(g) of .1402 and they are included in Chapter 2 of the hearing record.
14

Motion (Stan Crowe): With that I make a motion that we adopt the rules amended presented in
Chapter 2 of this hearing record. Ms. Deerhake seconded.
Chairman Smith: asked for discussion. Hearing no further discussion the motion passed.
09-54 Hearing Officer's Report on Amendments to the Annual Emissions Reporting Rule
to add Greenhouse Gases
Summary (Marion Deerhake): As you may remember on October 28, 2008, Mr. Steven
Weber, former member of this Commission, and I held hearings on amendments to the Annual
Emissions Reporting Rule for major stationary sources and this included a proposed amendment
to add greenhouse gases. The hearing officers report on this amendment was originally
presented to this Commission at our May 14, 2009 meeting. At that time the EMC voted to
postpone action on the rule until after the 2009 session of the General Assembly. We had
concluded there was a potential legislative action regarding greenhouse gases. On September 22,
2009, the USEPA issued a final Greenhouse Gas Reporting Rule. The rule requires suppliers of
fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities
that emit greater than 25,000 metric tons or more per year of GHG emissions to submit annual
reports to the USEPA. Livestock facilities with manure management systems as we just heard
on yesterday were originally on this list for reporting if exceeding 25,000 but that has now been
exempted.
I would like to take a few minutes to tell you about the process that the hearing officers had
gone through a little bit more, and now that Mr. Weber is no longer on the Commission I served
as the only hearing officer. Let me give you a few remarks about the decision and the
recommendation that I am making for you today. I will also add that we discussed all of these
yesterday at our Air Quality Committee meeting and Assistant Secretary Smith presented
various climate change strategic actions that are going on at the executive branch level. Today
you also heard how it is a key component of the strategic plan for the entire department focusing
on understanding climate change, the emissions and promoting adaptation. So today my
recommendation as a hearing officer is that there be no action at this time on the proposed rule
due to the timeliness of EPA's final greenhouse gas reporting rule and its 2010 inventory results,
the anticipated sufficiency of EPA's final reporting rule and inventory results, and the absence of
North Carolina climate action plan at this time to guide DAQ in this information collection.
However, I am recommending that the Division of Air Quality report to the EMC no later than
November 2010 on the progress of EPA's implementation of the greenhouse gas reporting rules,
the sufficiency of the data that EPA will provide to states for planning purposes, and the
potential impact of any congressional or North Carolina General Assembly legislation that
occurs during that time. As we know it appears to be next on the list in Congress after the
healthcare reform legislation is addressed. Also report to us on whether North Carolina's
Division of Air Quality believes regulatory action by the EMC would be appropriate to address
any gas and information needs in response to legislation. The division believes that they can
prepare such a report without a significant consumption of resources during the state's budget
crisis. I would like to elaborate a little bit more on the rationale for this recommendation and
15

also make it clear that with this recommendation of no action it is my understanding that it does
not require a vote by the Commission.
The first point about the federal greenhouse gas reporting rule was that we heard a detailed
presentation yesterday from the division staff on the content of that rule. The North Carolina
concept was presented and introduced to the committee in March 2008 and the rule went through
the public hearing processes in the fall of 2008. When no federal rule had been proposed
between the public notice of the North Carolina rule and, the time EPA proposed and finalized
its greenhouse gas reporting rule indicating that the new administration is moving at a pace
comparable to North Carolina's proposed program. Although North Carolina planned to collect
data for 2009 through its rulemaking the likelihood of that occurring is slim due to the
Administrative Procedures Act process. If North Carolina were approved by the Legislature
during its 2010 session, 2010 emissions data would be the earliest North Carolina could collect
data. This is approximately the same reporting year as EPA's program year one.
The second rationale is that the 2010 greenhouse gas emissions data collected under the
federal rule would be acceptable to North Carolina in a timely fashion. It's our Division's
understanding that the emissions data being reported to EPA will be in a fashion that will be
similar to EPA's acid rain reporting system. This automated system which has been in place for
a number of years successfully provides reporting data to the public online and typically about
three months after submittal of the regulated community's data. The Division of Air Quality
considers this three month turnaround to be sufficient for their purposes.
Third, the 2010 greenhouse gas emissions data collected under the federal rule is considered
to be sufficient in content for North Carolina's climate change planning. The Division of Air
Quality does not know the full scope of the data that EPA will release at this time to the public
and states but at a minimum it would be a cumulative facility numbering year one for 2010
emissions followed by units specific or source specific emission data in subsequent years for key
source categories. The Division of Air Quality will be seeking to play an active stakeholder role
in working with EPA to determine the most suitable form of data to be released. North
Carolina's division will strive to encourage EPA to release the level of data necessary to address
our needs as a state to meet future climate change planning goals.
My fourth point is that North Carolina does not have a climate action plan. We've heard
today of a number of activities that are moving along through the executive branch. There is a
Study Commission at the Legislative level. The Climate Planning Action Group Climate
Advisory Action Group was formed and produced a very concrete document of
recommendations which I see is noted in the strategic plan as part of their implementation. I'm
glad to see that, however I do encourage the Legislative branch to continue to pursue and
determine what the most suitable planning is for this state because having an adaptation plan, at
least appears to be putting states in favorable positions in terms of congressional legislation that
is currently going through the House of Representatives and the Senate.
I close by telling you that there were other options that were explored to this "no action"
position. The obvious one was to adopt the proposed rule but this option is considered too great
of a duplication of the promulgated Federal Program. When the Division of Air Quality
introduced the draft concept to the EMC the division did not anticipate that the federal rule
would be promulgated in 2009. After reviewing the information requirements of September
2009 package from EPA, the Division believes that the information collected and reported by
EPA will be sufficient for planning purposes.
16

A second option that we explored was requiring that the facilities who are submitting annual
emissions reports to EPA also submit the same information to the Division of Air Quality.
Although this would be optimal it's not technically feasible. This option was considered
infeasible because North Carolina's electronic reporting software will not be formatted like the
federal electronic reporting software. Substantial state resources would have to be invested to
modify the system to readily accept the online submittals of data from the regulated community.
A third option of the four that we explored was requiring greenhouse gases reporting to
North Carolina for at least one to two years until the federal reporting rules were fully
implemented and reporting occurred for the year 2010 receiving it in North Carolina by 2011.
This option would provide North Carolina short term information to facilitate state level
planning. The option was considered economically infeasible for state government to develop
and implement a reporting system from a two year period given the state's budget issues.
The fourth and final option that was considered was requiring the Division of Air Quality to
develop a greenhouse gas inventory for the years 2008 and 2009 using only the information
resources that they have available currently. The Division of Air Quality receives data from
voluntary reporting sources as we heard yesterday and they're making strong efforts to
encourage more voluntary reporting. I think this Commission should support and permit that.
These voluntary reporters are excluding the major utilities for 2009 but their data can be
compiled from other data sources. EPA's Clean Air Markets Division already sends the electric
generating unit data to the Division of Air Quality. Also, the Division of Air Quality could
generate estimates for other sectors given activity data from other information sources such as
permits. But the North Carolina Division of Air Quality considered this option and determined it
to be economically challenging given the current budget crisis impacts on the division's
resources. Also a quality assurance review of the data means that the results would not be
available until early 2010.
So given that we explored a number of options and the rationales associated with the EPA
Federal Program that has been promulgated and will be implemented soon, the recommendation
is for this Commission not to act at this time but to request updates no later than November 2010,
earlier if any significant action occurs that could impact the Commission and the states planning.
Chairman Smith: Thank you Ms. Deerhake. Let me also say that at yesterday's Air Quality
Committee meeting we heard a presentation by Ms. Sushma Masemore on the work that EPA is
doing on greenhouse gas right now. I commend it to each of you as an extensive and detailed
presentation. You should be able to find it on the EMC web page under the Air Quality
Committee agenda item from yesterday's Air Quality Committee meeting. It's a very good
presentation on what EPA is doing right now which substantially informed this recommendation
by Ms. Deerhake. Are there questions or comments?
This does not require any action on our part. I do want to commend Ms. Deerhake and Mr.
Weber. Both of them worked very hard on this and put a lot of time in as did the Division of Air
Quality, and Ms. Deerhake particularly in the time since Mr. Weber has no longer been with us.
So thank you.
17

09-55 Request to Proceed to Public Hearing with Consolidated Buffer Mitigation and Flexible
Mitigation Options Rules (+30 day waiver)
Chairman Smith: This item was taken off the agenda. We discovered yesterday in the Water
Quality Committee meeting that it needs substantial additional work so we will be hearing about
it in the future.
09-56 Request to Proceed to Public Hearing on Revisions of Wastewater Pretreatment
Rules
The Commissioners had previously reviewed this item and made a determination.
Dr. Moreau: moved that the Commission approve the recommendation of the staff to grant a
request to take the pretreatment rules to public hearing. Kevin Martin seconded.
Chairman Smith: asked if anyone had a need to hear additional information on the item.
Hearing no discussion the motion passed.
09-57 Request for Approval of Hearing Officer Recommendations on the City of Raleigh
Public Utilities Department Groundwater Variance Request
Chairman Smith: This item comes to us in sort of a combined form and slightly unusual. It is a
combination of contested case and a hearing officer report. On appeals coming out of the Office
of Administrative Hearing which I will classify as pure contested cases, we don't appoint
hearing officers and have a hearing officer's report. On rulemaking for instance we have a
hearing officer and a hearing officer report but we don't have a contested case nature. So here
we have this combined structure. The order in which we are going to proceed is first we will
decide the Motion to Intervene which I will speak to in a moment. Once that has been decided
the order of appearance will first be the City of Raleigh (Petitioner), secondly the department, the
Division of Water Quality which is comparable to a respondent although they are not purely a
respondent. Thirdly if the intervention is allowed we will hear from the Interveners and fourth
the hearing officer's report and recommendation. This order of presentation came out of
discussion between Mr. Crawley, Ms. Sullins and me. It was my feeling that since this came in
the form of a semi contested case the Petitioner should start first and explain to us what the
Petitioner wants and why, rather than us hearing from the hearing officer at the beginning before
all of the issues have been framed. We've also allowed 15 minutes for the Petitioner and for the
department. If the Intervener is allowed to intervene then we will allow 15 minutes for the
Intervener and then we didn't put a time limit on the hearing officers.
Kevin Martin: recused himself from the matter. Les Hall also recused himself.
Chairman Smith: The first issue before us is the Motion to Intervene by Auburn Associates,
LLC. We do not need to hear oral presentations on the Motion to Intervene. If you feel
otherwise we can discuss that but let's take up the Motion to Intervene. Is there any discussion
on that?

Donnie Brewer: recused himself at this time.
Dr. Moreau: I did read the arguments on the Intervener and I don't think it's going to help this
Commission very much in resolving the issue to get into the additional concerns that are stated
there and my inclination without making a motion is that we should go ahead and get to the heart
of the matter dealing with the City of Raleigh.
Yvonne Bailey: I would like to add to that. I've reviewed the argument and the Motion to
Intervene and the response. I noted that the Interveners also had an opportunity to participate
and provide comments during the public hearing process. I think that was the appropriate time.
To intervene at this point doesn't contribute anything for decision making and add any new
information that we need. I also believe that it's not something that's authorized under the
statute and rules of various procedures of declaratory ruling and that we will be the final agency
decision makers in which they can participate at that date and time. But I feel that since they had
an opportunity to be heard they had notice they did participate that we have the information we
need and that would be the most important thing.
Chairman Smith: Since you raised the point about whether or not we have the authority to
allow intervention in a variance I would like to have Mr. Crawley speak to that point.
Frank Crawley: As the chairman indicated this is kind of a hybrid situation where this matter is
coming to the Commission for the initial agency action. It hasn't gone through any type of
judicatory process to date. There has been a public hearing. The interveners and any interested
parties had an opportunity to present information that's included in the record before you. With
respect to the authority of this Commission you have quasi-judicial authority granted by the
Legislature and you exercise that in your contested cases. You're exercising it in variances and
declaratory rulings. With respect to your authority, I will just read from North Carolina Supreme
Court case, "If the agency has those powers that are explicitly granted in the statute plus those
powers that are ascertainable as inherent in the underlined policies of the statute." So whether or
not to allow somebody to intervene and address the Commission is a procedural matter within
the context of the Commission exercising its quasi-judicial authority. So you have the inherent
and implied authority to allow an intervention as you deem it will benefit you or to deny it if you
don't think you'll get any benefit.
John Curry: I move that we not allow the intervention by the Auburn entities. Mayor Moss
and Dr. Moreau seconded.
Chairman Smith: asked for discussion.
Dr. Peterson: I just want a little bit more in specifics and clarification. It seems to me that the
proposed Intervener has a potential interest in the matter in the context of having property within
distance that may become contaminated if movement of the materials off site occurs. Even if
that doesn't happen they suffer by having some disclosure required as they develop that property
and market it. On the other hand they would appear to be one of a class of people that our rules
in granting a variance serve to protect and is the motion and its support around the table based
upon the notion that we have the right and the duty to protect everyone and everyone's use of
19

groundwater in that vicinity the way our rules are written, and that this group doesn't have
special status relative to that class of potentially affected peoples.
Chairman Smith: I would ask Mr. Curry if he would expand on the motion and state what he
intends as the basis for the motion.
John Curry: I think the answer would be yes to Dr. Peterson's comment. He made the point
that this particular Intervener's interests are the same as many other potentially affected parties
and it is our custom and probably our obligation to take into account those general public
interests as we work through this process and other similar processes. So it seems to me that it is
inappropriate to allow this particular intervention.
Chairman Smith: Let me note what I should have noted in the beginning. I see that the Auburn
entities are represented by Mr. Tom Worth and Mr. George Currin who are present.
Dickson Phillips: I think this is somewhat of a difficult issue. Clearly the parties seeking
intervention have made a legally cognizable argument that they may have some practical effect
on them which is one of the bases for intervention in legal matters. But it seems to me that Mr.
Curry's motion is right in that they have not made any kind of prima facie showing that they
really have some actual risk of contamination and the situation is subject to factual
demonstration. Perhaps they're not. Therefore that was a critical issue as the City pointed out. I
agree with Mr. Curry.
Yvonne Bailey: I would just like to thank Mr. Crawley for the clarification about initial agency
decisions. I would also like to point out that regardless of our decision on the variance; I believe
we all have to provide notice of the possible groundwater contamination so our decision on this
doesn't change their obligation.
Chairman Smith: Thank you. Good point. Are there other comments?
Dr. Moreau: I was just raising the issue but I make no judgment about the substance of
potential impact of this on the neighboring properties. This is just a matter of going ahead and
addressing the basic issues and doing that in an expeditious matter. We're going to have to
address the whole question of who's being harmed, not just the neighboring properties but all the
way down the Neuse River to the estuary which is part of this consideration. It's a very broad
issue. I make no judgment about whether there is or is not an immediate impact.
Chairman Smith: Other comments? Before we vote I want to say two things and I'll ask Mr.
Crawley to echo one of them if I state it correctly. The first one is to note that at least in my
experience on the EMC our inclination has been to allow intervention to give as much
opportunity by as many people to be heard as often as we can. When I say intervention I mean it
in a much broader sense than just a purely legal sense. We do that with the public hearing
process, with preceding comments, but also in contested cases. In the few times that we have
had intervention come up in contested cases or motions for interpretive rulings or motions for
declaratory rulings we have allowed intervention. The second thing is that it is my
understanding that a decision here, if this motion were to pass, would not constitute precedent
20

that would bar the Auburn entities from seeking to intervene if this matter gets appealed through
the appropriate appellate process. Is that correct Mr. Crawley?
Frank Crawley: That's correct. The decision of the Commission would be subject to any
aggrieved parties filing a petition for a contested case at the Office of Administrative Hearings
and they're an aggrieved third party allowed to intervene if they need to, a standing standard of
being aggrieved.
Chairman Smith: My understanding from Mr. Curry's motion is that it is not based on the
lack of or the moving potential intervener not being a potential aggrieved party. There's no
determination of that on this motion. Is that correct?
John Curry: That is correct.
Chairman Smith: Any further discussion? Hearing none the chairman asked for a vote on the
motion to deny the request to intervene. The motion passed.
Mr. Worth and Mr. Currin I regret that you had to prepare for a presentation in coming and not
being able to make it. It's one of the flaws that we have discovered in our rules and our by-laws.
For what it's worth to you we are in the process of seeking to correct that so that motions to
intervene can be decided before the day of the hearing so that people are not put into
circumstances in which your client paid you to prepare to come here today and make a
presentation. Thank you.
Steve Levitas: I had understood that we had some graphic displays that the Division of Water
Quality has in their possession if you want to take the time to display those. If not I think we can
cover most of it in some slides if that is preferable to you.
The City of Raleigh's variance request concerns groundwater remediation and its Neuse River
wastewater treatment plant in Wake County. The site consists of approximately a thousand acres
surrounding the plant site that the city began using for the land application of biosolids and
wastewater residuals in the early 1980s. Over the years that land application has resulted in
exceedances of the state groundwater standard for nitrate at a number of locations. Some of
these exceedances are beyond the compliance boundary. It's essentially around the perimeter of
the property. That's the imaginary line where your rules require compliance with the
groundwater standards. This figure (attached) shows you areas cross -hatched in grey the nitrate
concentrations at the site that actually exceed the 2L standard of 10 mg per liter or are predicted
to exceed beyond the compliance boundary. When I say predicted to exceed what I mean by that
is that's referring to the results of the detailed hydrogeological evaluation and modeling that's
been done by the city's consultants, Eagle Resources, and that modeling was intentionally
conservative. It was designed to be conservative to ensure that public health and the
environment was protected based on the work we did here. It, in fact over predicts the nitrate
concentrations relative those observed so the model predicts things being worse than what we are
actually seeing in the real world.
I want to talk to you about a series of actions that the City of Raleigh has taken in response to
this problem. As an initial matter the City suspended biosolids application at the entire site in
21

September 2002. That was seven years ago and it may not resume application at the site without
a permit modification from the Division of Water Quality and a determination that is
appropriately protective. Since that time based on the results of that decision the City has spent
over seven million dollars in alternative forms of biosolids management.
Also in 2002 working with DWQ and EPA the City undertook a comprehensive evaluation of
water supply wells, residential wells and community wells in the area. The City sampled 45
wells as identified by DWQ in the surrounding area. Only 16 of those 45 wells had nitrate
concentrations in excess of 10 mg per liter and our consultants evaluated the likely cause of
those exceedances and concluded that there were a number of potential sources. This was
formerly an agricultural area and there were residential septic systems out there. They certainly
identified some potential for contribution from the biosolids application sites. Nevertheless, the
City agreed as required by DWQ to offer city water service to all of the sites, all the properties in
its sampling program at no cost for a period of 20 years. As a result of this offer 39 of the 45
wells were connected to city water service and their wells were properly abandoned. There were
two wells out of the 45 that were on property that the City acquired and those were taken out of
service. There were four wells in the area that elected not to accept the offer of service but those
are wells that have never had concentrations approaching 10 mg per liter on any sampling events
and are not at risk as receptors of nitrate moving from the site. The City has spent more than
$600,000 on this potable water supply program.
Under DWQ's direction the City also conducted a very extensive evaluation environmental
assessment of this site. They consisted of monitoring all across this site and the groundwater that
I mentioned previously. We have giant notebooks that contain the reports of this extensive
evaluation which were prepared in accordance with your rules. The City also conducted a very
thorough review of the plant, of its facilities and operations to look for a way to improve overall
operations particularly related to biosolids. It invested over $40,000,000 over the last period of
years in these planning improvements and has another $30,000,000 in improvements underway.
I particularly note Dr. Moreau mentioned the Neuse River. The nitrogen concentrations as a
result of this effort and the City's effluent are at 2 mg per liter or less. That makes it among the
lowest levels in the entire country with respect to nitrogen loading and at the same time the City
is building the largest reclaimed water distribution system in the state. That's going to take more
nitrogen out of the Neuse River. We have $17,000,000 alone committed this year to that
program and substantially additional expenditures thereafter. Of particular note, since this
situation originates with historical management of biosolids, I want to mention that the City is
now implementing an environmental management system, which I think all of you are familiar
with that term for biosolids. It was the first in the country to be certified by the EPA's sponsored
National Biosolids Partnership Program. It's one of only 14 in the nation and it includes a very
rigorous set of procedures to be followed for all aspects of biosolids management including
ensuring that proper loading rates are observed in the future and the public is involved in the
City's program. With respect to remediation to the site the City is currently implementing a
corrective action plan that includes active remediation in the southeast portion of the property.
There are some wells in green here (figure attached) around this southeast corner and again I'm
not sure how well I showed it previously. But these grey areas around the property are the places
22

where exeedances beyond the compliance boundary are predicted. This is a series of extraction
wells that were included as part of an active remediation component of the CAP. The rest of the
CAP consists of monitored natural attenuation across the site. The cost of this CAP including
this active remediation exceeds $6,000,000. DWQ requested active remediation in this one
portion of the property because it is adjacent to a concentrated cluster of residences and there
were a few wells in that area that had average concentrations above 10 mg per liter, I want to
reiterate all of those wells have been taken out of service and those properties are all now served
by city water.
In addition the City has agreed to permit conditions that are already incorporated into its non
discharge permit that provide for onsite and offsite mitigation of nitrogen loading to surface
water and for a debit to account for the nitrogen reaching surface water from groundwater that's
been proposed for inclusion in the City's NPDES permit. DWQ approved the City's CAP
subject to approval by this Commission of the variance request. A variance is needed because
the Commission's rules generally require that responsible parties at a permitted land application
site required to implement a CAP that uses "Best Available Technology" to remediate
groundwater contamination. But at the same time your rules expressly allow as do the General
Statutes for a variance from this and other 2L rules where the requested variance doesn't present
a public health risk or risk to the environment, and where strict application of the rules would
result in serious financial hardship without commensurate public benefit. In other words, state
law and your rules recognized that there are some circumstances where strict compliance with
the rules simply may not make sense. In these cases, the Commission may grant a variance
which allows the responsible party to implement a corrective action plan using the "Best
Available Technology" that is economically reasonable.
Your hearing officers have carefully considered the City's variance submittal and received oral
and written comments that you've heard from the public. They have concluded that the City
meets the criteria for a variance and have recommended that you grant the variance subject to a
number of conditions which the City considers acceptable. Let me explain why the hearing
officers' findings are correct. In this case and partly because of the other actions that I described
to you the City has taken, the nitrate exceedances do not pose any risk to public health and are
safe to the environment. Elevated concentrations of nitrate present two types of risk, one to
public health and one to the environment. First high nitrate levels in drinking water supplies can
produce a human health risk and second as you all know with all the attention that you've paid to
the Neuse, nitrates are a form of nitrogen if you have increased loading to surface water via
groundwater in this case. You have the potential to exacerbate problems in the Neuse River
estuary. Neither of these problems is present in this case.
First, the vast majority of the variance areas are ones where nitrate violations occur either on the
wastewater treatment plant at its site itself so this whole area around the perimeter of the plant
between the fields and the Neuse River are obviously a place where there will never be drinking
water supplies. This is another piece of city property (diagram attached) here and this is a
construction and demolition landfill that is subject to zone regulations and restrictions on
groundwater use. There's a cemetery on this side of the property and this is Clemmons State
Forest the northern regions of the state forest where there are no drinking water uses. So the vast
23

majority of this site is simply not areas that ever have potentials for use for drinking water
supply.
Second, even though most of the surrounding properties did not show signs of elevated nitrates
the City agreed to connect these properties to public water service and so the vast majority of
people living in this area are on public water supply.
Third the City agreed to install a pump and treat system so you do have full compliance and
active remediation going on in the area of the site that was considered most problematic. If you
take all of these things together we think it's very clearly established the conditions of the site do
not produce any risk to public health.
With respect to nitrogen loading to the estuary under your rules the Raleigh Wastewater
Treatment Plant has been given the defined allocation of nitrogen that is allowed to put in the
river in order to ensure that the overall Neuse River system achieve its water quality goals. That
amount is 682,483 lbs per year. The amount that the City of Raleigh is currently discharging
from the plant as a result of all the investments and improvements that I just described have for
several years now been less than 300,000 lbs per year, less than one half of its total allocation.
Based on an extremely conservative estimate the amount of nitrogen that is reaching the river as
a result of the 2L violations that occurred out here is about 50,000 lbs per year and it's going
down over time. So if you look at the facility as a whole the City is operating well within its
permitted limit and it has agreed to accept a permit condition that requires the estimates of the
groundwater load to be counted toward that permit limit. We are actually counting a much
higher number, not just a number that represents violations of the standard but a number that
tends to represent all exceedances of 2L standards. So the debit that I'm describing actually
provides more protection to the Neuse River than a full compliant corrective action plan. That's
because in corrective action your rules require corrective action to meet 2L standards at the
compliance boundary but not within the interior of the property. So the lion's share of the
nitrogen loading to surface water from groundwater of the site is occurring in the interior of the
property where no 2L corrective action is required. Granting the variance with the debit
condition is actually much more protective of the Neuse River than denying the variance and
simply dealing with the perimeter of the property.
In addition, and I want to really emphasize this,
we have worked for the last two years with the Neuse River Foundation to ensure that it was
satisfied that the program here, the variance and associated conditions would indeed protect
water quality in the Neuse River. We reached an agreement with the Neuse River Foundation,
the Upper Neuse Riverkeeper and have agreed to in addition to the debit which fully offsets the
load. We've agreed to a sort of belt and suspenders approach. We have agreed to offset the
increased nitrogen load in much more cost effective ways than pumping and treating.
Specifically we've agreed to construct three constructive wetlands on the site, water treatment
wetlands to divert flow from streams and treat the nitrogen in those streams as well as
constructing a substantial offsite mitigation project in the lower Neuse Basin. The combined
cost of the two mitigations together is expected to exceed $2.5 million. To fully comply with the
Commission's rules in this case the City would have to install almost 400 groundwater extraction
wells around the perimeter of the property. Everywhere that you see the green dots around the
24

whole perimeter of the property would be the strict compliance alternatives and the estimating
cost of doing so would be $81,000,000. This alternative would create serious financial hardships
on the City. To put these costs in perspective the estimated capital cost of full compliance in the
first year would consume 65% of the City's total utilities capital budget and that is a budget that
is dedicated to very important projects that I previously described. It would divert funds away
from things like the Reuse Program which provides a real tangible meaningful benefit to water
quality. Indeed I would submit that the effect of denying the variance would be to misdirect
resources in a way that would be detrimental to public health and the environment.
The full compliance alternative as you can see also includes wells along the creeks shown on the
diagram at the bottom of the property such as Beddingfield Creek. There's a real potential for
dewatering those creeks and adversely affecting their ecology.
To conclude the measures taken and planned by the City fully protect public health and the
environment. There's no groundwater with elevated nitrate being used for water supplies and no
potential for that to occur in the future. The City is implementing active remediation and full
compliance with your rules. Along the only portion of the compliance boundary with the
average nitrate concentration to exceeding 10 mg per liter in the Neuse River itself the measured
nitrate levels are in 0.6 mg per liter well below any applicable standard. The nitrogen loading to
surface water, as I mentioned is going to be offset against the City's NPDES permit and we're
going to implement onsite and offsite mitigation projects. The concentrations will naturally
decrease over time and those that have been modeled. The full compliance alternative requires
the expenditure of an extra $70,000,000 in a situation where there's no risk to public health and
the environment and there's limited if any resulting public benefit from incurring these
expenditures. We respectfully submit that the City has met the conditions criteria for a variance
and request that the variance is granted subject to the conditions that have been recommended by
your hearing officers.
Jay Zimmerman: I am going to present a brief overview of some of the background and how
we got to this point and some of the regulatory requirements that might help put this in the
proper framework. The Neuse River Wastewater Treatment Plant is located in southeastern
Wake County. It's bounded by the Neuse River. The Neuse River wraps around and discharges
off to the east. The fields that are the subject of the variance application are north and south of
the river. The City of Raleigh began applying residuals, as Mr. Levitas indicated, in the early
1980s and over application occurred as a result of a miscalculation of the plants available
nitrogen that resulted in impacts to the groundwater below the facility. The Division of Water
Quality's review of monitoring data identified violations of groundwater standards for nitrate as
nitrogen beyond the compliance boundary. The standard for nitrate as nitrogen is 10 mg/L. At
our request the City of Raleigh discontinued application of residuals across the entire site.
The regulatory requirements that are applicable are located within North Carolina Administrative
Code Title 15A NCAC, Subchapter 2L .0107. That rule requires establishment of Compliance
Boundaries around any and all waste application activities or spray irrigation and any type of
waste application at non discharge facilities. There is a review boundary located between a
compliance boundary and the waste boundary and that's typically where monitoring wells are
located. The rules require that any impacts to the groundwater that are associated with the waste
25

application activity must be attenuated prior to reaching the compliance boundary so they can't
go beyond that point. Sometimes that compliance boundary happens to be the property line. In
other cases it's inside the property line. As Mr. Levitas indicated, there's a faint red line that
follows around parallel to the river and in some cases parallels the roadways and around
properties that are private properties. Current regulations also require assessment of groundwater
conditions if contaminants migrate or are predicted to migrate beyond a compliance boundary.
Permitted facilities must undertake corrective action using "Best Available Technology" to
restore groundwater to the level of the standards. A permitted facility without a variance cannot
pursue corrective action using a natural remediation. A natural remediation in essence is letting
the contaminants of concern attenuate under the natural processes of dilution absorption or many
other mechanisms.
The current status is that the site assessment activities have been completed. Our office granted
conditional approval of a corrective action plan which has been implemented to actively
remediate groundwater in the southeast portion of the site. Mr. Levitas had pointed to an area
where there are a number of extraction wells that are intended to clean up groundwater in an area
where residents still live. They have all been provided with alternate water but they did express
an interest in using that groundwater as a future source for drinking. Residents who were
impacted or had the potential to be impacted have been connected to municipal water. The City
of Raleigh has applied for a variance from the rules that prohibits a permitted facility from using
natural attenuation to address groundwater contamination and require the remediation of
groundwater contamination using "Best Available Technology." If granted the City of Raleigh
will monitor the movement of that portion of the nitrate plume that has impacted groundwater
and has or may migrate beyond the compliance boundary.
There are a number of streams that run onto the property where there is some nitrogen
discharging into some of these streams. The City has prepared a baseline human health risk
assessment as part of the variance rule requirement that indicates there is not a significant threat
to human health that exists by allowing nitrates in the groundwater to naturally attenuate. The
North Carolina Division of Public Health has been consulted on the health impact of the variance
and finds it acceptable with the condition that there's some additional monitoring conducted.
The amount of nitrogen migrating into the Neuse River from contaminated groundwater via the
small streams is currently accounted for in their NPDES permit and has been debited from that
permitted total. There was also a groundwater model that was used to estimate future nitrogen
loading into the Neuse River. Conservative worst case values were used for the purpose of
running the model. That predicted a decrease in concentrations over time from an original that
was close to 125,000 lbs of nitrogen that was being discharged. The Best Available
Technologies that were explored by the City of Raleigh included groundwater extraction. It was
estimated fairly conservatively that as many as 380 extraction wells might be needed to ring the
perimeter of the site in order to attempt to address groundwater contamination. Those wells
wouldn't necessarily have any impact on the nitrogen that is migrating into some of the small
streams. Those small streams may allow nitrogen to skirt the extraction system. Estimated costs
ranged from $50,000,000 on up to as much as $80,000,000. The cost associated with an
extraction could result in a loss of aquatic habitat. If it does what it is supposed to do, it will
remove a significant amount of groundwater that currently is recharging the streams on site.
26

Another technology that was explored was enhanced de -nitrification which would result in the
injection of material that would reduce the nitrogen in the groundwater through the injection of
approximately 5800 injection wells across the site. Again that would cost approximately
$30,000,000 if not more. The City has submitted that the full compliance alternative is not
economically reasonable for a public agency and would provide little, if any public benefit. The
estimated cost of the full compliance alternative during the first two years would be
approximately 65% of the total capital budget for 2009-2010.
In response to some of the concerns expressed by the Neuse River Foundation, in particular their
concerns of the discharge of nitrogen from groundwater into the surface water the City
implemented some additional measures or proposed some additional measures. The first
consisted of installing subsurface treatment wetlands along 3 streams where the concentration of
nitrate nitrogen in surface water exceeds 20 mg/L and they proposed to reduce the nitrogen
concentration prior to the groundwater getting into the river. They've also proposed to conduct
some offsite repairing buffer restoration work along a segment of Butler's Branch which is
located in Craven County. We as a Division have conditionally approved these nitrogen
mitigation measures provided they obtain the proper permits and an appropriate monitoring plan
is established. In summary the variance request from the City of Raleigh meets the requirements
for consideration with our rules that are located in Title 15A of the North Carolina
Administrative Code Subchapter 2L rule .0113. The nitrate as nitrogen entering the Neuse River
from groundwater as well as surface water is currently accounted for in the plant's NPDES
outfall limits. They have initiated active remediation in the southeast portion of the site for the
past year if not longer. They have committed to installing subsurface flow wetlands onsite and
conducting riparian buffer repairs to a stream segment in Craven County.
Andrew Pitner: (some other minor stuff may be missing here as I skipped over the first nine
slides of my presentation as it was largely covered by the previous two speakers and essentially
started with the public hearing process). The public hearing was noticed as per the rules and it
was held in the Ground Floor Hearing Room in the Archdale Building in Raleigh on September
9, 2009. We had 41 members of the public attend and 10 chose to make oral comments. We
accepted written comments through October 9, 2009 and received a total of 24 comments. There
were four that supported, 1 supported with conditions and there were 18 in opposition. The
largest chunk of those was form letters we received and one commenter who was not quite clear
about whether he supported or opposed.
The broad oppositions fell within these areas: The Edge of Auburn - they were concerned about
potential impacts to their proposed development and proposed community water supply wells
which they intended to put in that development. There was a comment that "Raleigh should
clean this mess up regardless of the cost" and natural attenuation would not be sufficient to do
that. A citizen also expressed a concern about potential impacts to private water supply wells.
There were a number of citizens who signed off on a form letter. Their comments were not
directly relevant to the variance application at hand. They expressed a lot of concerns about
quality of life kinds of issues such as living near a wastewater treatment plant. Comments we
also received were that they believe that constructed wetlands are effective treatment systems.
You have already heard that the Neuse Foundation Riverkeeper agreed with Raleigh in believing
that they had developed a comprehensive plan to mitigate the impacts on the Neuse, particularly
27

in regards to some of the groundwater discharge to the surface water on the site. There were
comments that there was greater impact on the Neuse River from those onsite streams than was
observed from deep groundwater discharge. There was discussion that there is indeed complex
geology at the site that prevents a effective active remediation system from working in the basin
and they supported natural attenuation. The Department of Human Health and Services Division
of Public Health sent a letter of support of the application with some provisions for additional
monitoring to protect private well users.
The recommendations are the last few pages of the handout and they are out of the hearing
officer's report. These are conditions which the EMC needs to approve variances: that the
discharge of waste is not going to endanger human health and safety; and that compliance with
the rules, standards and limitations from which the variance is being sought cannot be achieved
by the application of "Best Available Technology" found to be economically reasonable at the
time, and they would produce serious hardship without greater benefit to the public. So our
recommendations were that the variance be incorporated into the permits that the City of Raleigh
holds currently. This actually has already occurred for the NPDES permit and we would like to
see that the total nitrogen debit concept be continued to be applied to the NPDES permit.
Additionally, the nondischarge permit at the site covers continued operation of the pump and
treatment system. I need to point out a small correction to the hearing officer's report. Field 60
is being mentioned as being part of the pump and treat system and that should be eliminated
from the report. Those extraction wells were proposed at one point but were not installed and
Field 60 is on the north side of the Neuse River. Also we would like to see, as proposed, the
complete installation of the subsurface flow wetlands, and implementation of the riparian buffer
restoration in Craven County. We've outlined a very detailed surface and groundwater
monitoring plan to evaluate the effectiveness of this overall correction action strategy and we've
added some additional monitoring wells along the edge of the property, particularly in regards
toward some of the concerns expressed by the Edge of Auburn. We want to see some deep
monitoring wells over in that direction. We felt that the division would probably have authority
to act should the plume be shown to be moving in that direction.
We are recommending that the City of Raleigh work with the Raleigh Regional Office to identify
some of those private well owners for additional sampling. Every five years prior to renewal of
this permit the City of Raleigh will evaluate the effectiveness of the overall remediation strategy.
So we will look at how the pump and treatment system is working, how the subsurface flow
wetlands is working, and natural continuation is working as planned, and to report the evaluation
to division and to the EMC. This is an additional recommendation based on those citizens who
live near the site that Raleigh continues to be involved with their environmental management
system and that they also develop a Citizens Advisory Panel as part of that to allow greater
communication about the progress of cleanup at the site, and overall operations of the facility.
What the hearing officers are asking you to do is grant the variance upon the conditions
described in our report.
Dr. Moreau: I have a concern about the length of time that this variance is going to be effective
and you have raised this question of renewal of a nondischarge permit. What is the scope of the
review under the nondischarge permit?
W.

Andrew Pitner: If those conditions are incorporated in the permit they would be reviewed
every 5 years to see the effectiveness of it.
Dr. Moreau: How would that review affect this variance?
Andrew Pitner: Based on that review additional conditions may be applied to the permit so if
contamination is headed in a direction that's not predicted additional monitoring may be
suggested or additional extraction wells.
Dr. Moreau: I interpret your answer is that the entire procedure could be or will have to be
reviewed every five years? So the variance in effect is good for only five years.
Andrew Pitner: What we are recommending, as I understand it, the variance would be in effect
as long as nitrate is outside the compliance boundary. But we would have the opportunity to
review the progress of the cleanup every five years.
Dr. Moreau: I'm not sure that's an adequate response. I'm trying to nail down the fact that if
they are in violation at the end of five years of the permit is this whole thing subject to review or
are we granting them a variance in perpetuity?
Andrew Pitner: I believe in effect you are granting them a variance in perpetuity as long as
nitrate is outside the compliance boundary but that conditionally their remediation strategy will
be reviewed and analyzed subject to change every five years until such time occurs there is no
nitrate outside.
Dr. Moreau: They would have a variance subject to conditions that are here unless we put a
time limit on the variance.
Forrest Westall: It is true that your recommendation is that they do monitoring three times per
year. So in essence there's an ongoing monitoring by the Regional Office of this data. The
permit would have some provisions to reopen that permit even if it had not have been the five
years, but any time during that permit there was sufficient justification for that.
Andrew Pitner: Correct. But there would be a more comprehensive review every five years.
Dickson Phillips: On their follow-up there's specific reference to requirement to develop a new
corrective action plan if there was some unexpected migration?
Andrew Pitner: We believe that's what would occur every five years. If there were some
changes, if technology changed and there was some mechanism that made available a better
technology come into place, then at that time the corrective action could be modified.
Dickson Phillips: Since you say you believe that is what would happen, is that clear?
Andrew Pitner: Yes.
29

Yvonne Bailey: If the $81,000,000 best available technology, how long is it predicted that this
would take to clean up. I didn't see it in the record.
Jay Zimmerman: The difficulty with a corrective action plan of this nature in the location
which is in fractured rock and is the complicated geology. We are not sure that it would really
work so it is very hard for us to predict and I don't think we would required Raleigh to try and
predict how long it would take to clean up because a lot of that would really depend on how well
the extraction wells work, how effective they were, the number and location of those wells.
Keep in mind that this original plan was proposing to just ring the site with monitor wells and
keep it from going beyond the compliance boundary. That's the initial purpose of the extraction
wells. You have about 1,000 acres of groundwater that have been impacted to varying degrees
within the interior that is going to be migrating out from the site into the streams into the Neuse
River at varying rates controlled by some very complex and difficult geology that would make
any prediction hard. Any number that I threw out would be objected to by somebody else who
would have a better or worse numbers. We didn't try or require Raleigh to pin that down.
Yvonne Bailey: Would it be as quick as a year?
Jay Zimmerman: No. I suppose it might take us as long as a natural attenuation mechanism.
It might accelerate a little bit but there would be some detriment to the environment with the
drying up surface waters that are on site and killing aquatic life that are making their homes in
those streams.
Yvonne Bailey: Then what about any new wells that are drilled or are in the area where it's
predicted it might exceed to groundwater. Are they prohibited in drilling in those areas?
Jay Zimmerman: Wake County is aware of this. Actually they partnered with our Division to
sample the wells because there are a large number of wells, and we went well beyond those areas
that were anticipated that there might be some effects. So they are very sensitive to that and they
have flagged their permitting system so that when people have inquired if they're within a
quarter mile or half a mile we tend to get a call. They want to know what the latest is so there is
a mechanism between the county and our agency to help prevent the unintended well from being
installed and subsequently being impacted.
Marion Deerhake: The monitoring was recommended by State Toxicologist Rudo, and I
understand that you are agreeing with that and putting that as a condition, I wanted to make sure
that the 15 years of monitoring that he recommended is part of the permit conditions with
variance conditions?
Andrew Pitner: That would be worked out with the City of Raleigh and the Raleigh Regional
Office but they are still trying to identify which wells would be the most appropriate ones. But
time -wise, correct.
Marion Deerhake: One thing that is not evident to me is will the land treatment resume at that
site eventually?
30

Andrew Pitner: That would only occur under permit modification so if the division agreed and
Raleigh proposed that it may be acceptable to resume residuals application.
Marion Deerhake: Do the neighbors who are now receiving city water have to pay for that
water?
Andrew Pitner: As I understand it twenty years from when they receive it they have free water.
After that point they have to pay for it.
Marion Deerhake: Approximately how long were the residents exposed to these high levels?
Andrew Pitner: I'm not sure I have a direct answer for that. Application started in the mid 80s
or so.
Marion Deerhake: Is their health being tracked?
Andrew Pitner: If it started in the mid 80s then essentially extraction wells were put in and
supply wells were taken offline in the early 2000s. So potential exposure is roughly 15 years.
Tom Ellis: Several people have noted that if pumping is required that it would dry up streams
within the site. Is that a violation of water quality standards?
Mr. Ellis was asked to repeat the question. If the city is required as part of their remediation to
pump water out of the groundwater and treat it, it has been mentioned several times here that this
would likely cause streams on the site to dry up with the loss of aquatic life. Would that be a
violation of water quality standards?
Coleen Sullins: I can answer that question. It would be a removal of use and we are not
allowed to remove a use so that's an issue that we would specifically ask to be addressed and
wouldn't allow that to occur.
John Curry: Which other neighbors who may be impacted in the future are eligible for the
same deal from the City of Raleigh that they have already given to those property owners who
have proven that they are already impacted?
Andrew Pitner: I would think that with property owners who are well owners that may be
shown to be impacted, the division would require that alternate water be provided to them.
Whether or not they get the specific deal would be something that would probably be worked out
with the City of Raleigh, but at this point we are not aware of anyone else.
John Curry: Is that included in what we are voting on today?
Andrew Pitner: Yes.
31

Tom Cecich: When this contamination was originally discovered was the City of Raleigh in
violation of the 2L standards at that time and was there a penalty assessed with the initial
contamination itself?
Jay Zimmerman: Yes. There had been ongoing monitoring for a number of years. Typically
for groundwater sometimes you will see a violation and then it would disappear and it was all
after a sufficient amount of time that we had enough data that we could start to make some
projections that we figured out something was going on as a result of our investigation and
cooperation with the City of Raleigh. Once we had determined that there had been an over
application there was a civil penalty assessment by the division for the over application of waste.
I think it was in the order of $70,000 plus. There were a number of permit violations that once
we discovered what they were and the extent of those violations there had been some penalty
assessment.
Tom Cecich: From pump and treat systems where is the discharge going? Where would the
discharge go if the proposed system was actually going to be in?
Andrew Pitner: The City of Raleigh has established basically a collection system and that gets
routed back to the treatment plant. The same would apply for any other systems that are installed
for any other well.
Tom Cecich: The dispatch of this issue of the five year review which I see is probably going to
be written in the agreement, but if there are findings that the contamination spreads prior to that
is there a mechanism for addressing change prior to the five year review period?
Andrew Pitner: If there were significant changes I think the division would take action prior to
that time.
Tom Cecich: I guess the question becomes is there a mechanism built into the language that
allows that to occur.
Andrew Pitner: The language of the permit would allow the division to take enforcement
actions against the City of Raleigh if permit conditions are violated.
Chairman Smith: Mr. Pitner don't go away. Mr. Levitas wanted to speak to Dr. Moreau's
earlier question.
Steve Levitas: Just on this last point which I think a number of the Commissioners have spoken
to and maybe does go to Dr. Moreau's point. We would certainly expect it to be the case as with
any Division of Water Quality's correction action plan that if the division determines in the
future that there's a risk to public health or the environment that has not been addressed by the
plan that is in place the division would be free to reopen that plan and impose additional
requirements. So I think that it is an effective mechanism. It was asked what would happen if it
were to be determined that some additional private water supply well might be at risk? We would
certainly expect the division to do as they've done in the past to direct us through the permit or,
otherwise to provide water service to that property. So I think there is an ongoing process and
32

that long term public health and the environment are protected should there be any new
developments. So I hope that maybe that speaks to a number of the questions.
Dr. Peterson: Despite seeing all these maps it is unclear to me where private in -holdings within
this larger property and what the exact number four or so wells are where people did not accept
the offer of getting the City of Raleigh water and wanted to continue to use those wells.
Andrew Pitner: Essentially the City of Raleigh owns everything within the bend of the Neuse
River north of Old Baucom Road where those wells specifically are.
Jay Zimmerman: We're not aware of any well owners that have been impacted that had not
been connected to city water. There were a number of people who didn't want to abandon their
well and instead use it for irrigation purposes. So in certain situations we allowed that and in
others we did not because operation of those wells even for irrigation could pull the
contaminants deeper down into the groundwater formation. So there were a couple of
homeowners on the outskirts of the site that were likely not even impacted but nevertheless were
connected to city water that had requested it and we had agreed not to require necessarily
abandonment of their wells.
Dr. Peterson: So they received city water but also they were able to keep their well going or
they did not need city water?
Jay Zimmerman: Everybody who was either impacted or remotely believed to be impacted the
city connected. As a matter of fact, they had connected a number of residents that we as
hydrogeologists didn't believe for a number of scientific reasons were being impacted as a result
of the city's activities. It was likely the result of a neighboring septic tank and the city elected
just to connect those people anyway.
Dr. Peterson: You mentioned that several people who have city water would like to be able to
reuse their wells in time when it becomes appropriate. What sort of cost do they incur once that
is possible because of the remediation of the nitrogen?
Jay Zimmerman: If they elected to move forward with the well installation the typical costs
nowadays are somewhere from $4,000 to $5,000.00. There weren't a lot of people who made
that request. The best way to say it is they want to preserve their right to use that resource
without necessarily saying that they would or would not install a well.
Dr. Moreau: I want to inquire about any other downstream location where in particular the City
of Raleigh has been a participant and a key player in the Compliance Association. What is the
magnitude of the debit against the allowance for the City of Raleigh?
Andrew Pitner: It's approximately 50,000 lbs per year. The present estimated load is
$123,000.
Dr. Moreau: So the full present estimated load of 120 some thousand. Ok. The question then
is if that is affecting the Compliance Association? Because Raleigh has been a key part of, and
33

their allowance and performance has been key to the Compliance Association being able to meet
the CAP, is there a downstream impact? I'm curious as to whether this debit that is being
allowed has any spillover effect on the Compliance Association?
Steve Levitas: That debit was noticed in the City's NPDES permit at least three years ago so it
has been a matter of public record for some time. I have not heard any suggestion that it presents
any problem with respect to other members of the association. They are the beneficiaries of this
tremendous investment that Raleigh has made in driving down its own loading limit. I
appreciate your concern that we wouldn't want a situation where the Compliance Association
was in jeopardy of achieving compliance itself. But frankly I think that is Raleigh's prerogative
to control its allocation and even with the debit which will go down over time. We're still at
something like 60% of our total allocation under the program.
Dr. Moreau: I applaud Raleigh for being aggressive on reduction. I was simply inquiring
whether this action would in any way impose a hardship on downstream areas that is not
addressed in the record.
Chairman Smith: It is certainly Raleigh's prerogative but one of the things that Raleigh should
be proud of is that it has served as a statewide leader in its efforts as to wastewater treatment
plant improvements. I'm confident that Raleigh did not undertake to do that so that it would
have a credit that it could spend by these substantial violations.
Forrest Westall: Based on the recommendation my question is your basic recommendation to
allow the variance to take place in comparison to full compliance alternative is really based on
the fact that you don't believe there's any risk to the public other than to the cost of the full
compliance?
Andrew Pitner: Correct.
Forrest Westall: I didn't really look at any intermediate compliance measures. There is one
area where there is pumping and treating but overall when Jay described the plan for pumping
and treating he described as a conservative plan. In other words it may not be necessary to have
that many wells. I think the bottom line from the staff is that you've looked at it from the
standpoint of public health impact and impact to the resource and the people using that resource
as opposed to the cost of having to do. I know cost is a factor.
Andrew Pitner: Yes that's correct but primarily the concern is the impact to the environment
and human health.
John Curry: How do we know the amount of discharge since we're not only talking about the
point discharge at the sewage treatment plant but we're talking about what comes in the creeks
indirectly from groundwater. How do we know the actual amount?
Andrew Pitner: That's where the recommended monitoring plan will help determine what that
ultimate value is. There's surface water and groundwater monitoring to help assess the loading.
There's monitoring of the subsurface flow wetland treatment systems as well as the extraction
34

system to determine where the nitrogen is, which direction is it going and how much is being
taken out.
Tom Ellis: It has been noted several times that this is the result of an over application. What
was grown on this property and what were the application rates?
Jay Zimmerman: It was primarily corn and maybe some small grain but primarily corn and the
application rates were approximately 200-250 lbs of plant available nitrogen per acre to be
applied. The overall applications were two to three times that at times. Obviously some of the
fields had been in use for a longer period of time. Those are the fields that are closer to the
interior of the property and as you radiate out from the site they have added fields over time as
their plant expanded.
Tom Ellis: What would the agronomic rate for corn be?
Jay Zimmerman: 120 to 150 lbs. The permit allows 200.
Tom Ellis: Do you have any idea how much nitrogen has reached the river from this over
application prior to the draft that you gave us with the 2,005 and the 2,050?
Jay Zimmerman: As far as total pounds of nitrogen I don't believe we do. We ran into some
problems trying to determine the amount based upon certain fields that have been in production
for a longer period of time but any nitrate associated with those fields given the rate of
groundwater movement may not have yet even reached surface water where the perimeter did.
We did not try to figure that out because it would be more than difficult. Basically you would
have to look at the graph and add those up. It's incrementally decreasing but the monitoring plan
that the hearing officers spoke of would also entail remodeling and us looking at the model
output comparing it to what's actually happening in the field. As is our typical method of
operation we would require adjustments based upon that information and that initial projection to
be in compliance by 2050 may occur before that time or much later depending upon how quickly
that attenuates. But that's our best guess based upon the model.
Tom Ellis: Was that two to two and half million pounds.
Andrew Pitner: I don't know and I would have to actually look at it.
Chairman Smith: Mr. Levitas is going to answer Mr. Ellis' question about how much
nitrogen has reached the river?
Steve Levitas: There are two things that are subject to being corrected by Mr. Lalapala. His
model looked at the load to surface water over the entire life of the application period and found
that it peaked in that 2006 timeframe. It went up and it went down so I think those numbers
could be derived. I do want to ask that you think about those numbers. We talked about them
being conservatively calculated so the number that was on that chart at 123,000 lbs maximum
that we refer to, in addition to the conservatism of the model uses a methodology that
significantly overstates what it is that we are responsible for as a result of this violation. So if we
are completely in compliance with all of our permit conditions and caused no exceedances of 2L
35

standards, you would still have nitrogen loading to surface water via groundwater. In the interest
of being extra conservative we said let's not take the low number that is the actual violation
number if you will. Let's take the whole number that is actually close to the whole number and
let's make that the debit. Let's be extra sure by factor of about two in addition to the mitigation
work that we're doing that the load to the river is not going to disrupt the efforts to bring the
Neuse River into compliance at the estuary.
Yvonne Bailey: I was interested in if you could explain a little more one of these points in your
recommendation about what you would add to the nondischarge permit in view with installation
of additional monitoring wells to address concerns expressed by Angie Barber and the North
Carolina Department of Public Health. You were also going to be identifying additional private
wells in the area south of Beddinghill Place for additional sampling. Just describe a little bit
more why the additional wells are needed and how they are going to address concerns, and are
you concerned that these well owners in the area itself south of Beddinghill is possibly
impacted?
Andrew Pitner: There are several aspects to that. In terms of the supply wells that was in
response to comments from the Division of Public Health and from some of those who live
further south to try and identify some locations where private wells to see if there are impacts.
At this point we do not have any concerns that there are impacts but to be proactive, we will
check to see. In terms of wells toward the edge of Auburn and really monitoring those
surrounding sites there were a number of wells that were dry. There were a lot of the wells at the
site which monitored a lot of shallow groundwater and we felt that we needed additional
monitoring wells, particularly toward the west towards the Edge of Auburn that were monitoring
potential contamination.
Yvonne Bailey: So those will be installed to assess groundwater impacts at the Auburn site?
Andrew Pitner: Correct towards the Edge of Auburn site.
Dr. Larkin: There's an awful lot of monitoring talked about. What happens if there are adverse
findings as part of this monitoring? What's your confidence level that we will be able to deal
with those things as they come up?
Andrew Pitner: At various points as we see things going on with some of the monitoring data
sometimes you look for a trend to see if this is a sporadic hit, but if it continues over time then
you determine there's a need to take action. Those things would happen during that five year
period if they were necessary. That is where the division would exercise their authority to direct
Raleigh to do additional work as needed. But it would be at that five year period which there
would be a comprehensive evaluation of the system to see if there are places it could be tweaked
to be more effective or not.
Forrest Westall: This is a follow up to Dr. Larkin's comments. Again we have talked about
this issue of response. From my standpoint that's one of the concerns. It is implicit in
everything that has been done, the monitoring and an annual report requirement that you're
recommending, all of those things are the five year review. One of the comments made about
36

the Edge of Auburn was that all the evaluation which is the hearing officer's response indicates
that there will be no impact to that area and you concluded that this is probably very likely but
you also said that it cannot be predicted with absolute certainty. That's a good safe answer with
groundwater monitoring. Would it be appropriate in this case to include some language in the
permit if we proceed forward with this that would have some immediate response things where
the data comes up, because obviously the city is going to know more about what's happening
with the data than staff is. They're going to be collecting it, compiling it and putting it together.
Staff has many sources to deal with and the city certainly qualifies has an excellent staff putting
some onus back on them to respond. I know on the NPDES side where it is an immediate thing
you have a release or something like that. But if you have elevated levels in some of these new
monitoring wells at the interface where these other properties are wouldn't it be helpful to have
that specifically in the permit that says, "You must immediately notify and develop some kind of
remediation plan or provide additional water or additional evaluation." Rather than this process
of normal review this is a special situation where the response needs to be quicker.
Andrew Pitner: There is some language in each permit which does say that they need to notify
the division when there are problems. It is implicit in our request for the annual report and the
five year plan that anything that they recognize that needs to be highlighted it will be highlighted
in the reports so that the division can direct any actions as necessary.
Chairman Smith: asked for any other comments or questions before the EMC considered the
recommendation.
John Curry: I just wanted to go back again to my previous question about "the deal" that the
City of Raleigh gave those property owners whose wells were closed. I would feel more
comfortable if I had some assurance from the city that if the plume moves and test wells begin to
be impacted that the city would in essence give the free water for twenty years and the necessary
connections to give service to those people who can demonstrate that they're being impacted by
this same situation.
Andrew Pitner: It would certainly be the requirement of the division that some source of
alternative water be provided were an impact to be identified.
John Curry: I understand your assurance of the source. Cost is very important to those
recipients as well. I suppose you have the authority to require that.
Andrew Pitner: Certainly, as long as there is any impact that's evident the division has the
authority to require that.
Chairman Smith: Mr. Curry we can also incorporate that into some sort of review process if
we choose too.
Tom Ellis: With this site being closed down to application where are all these materials being
disposed of now?
37

Jay Zimmerman: Some of the residuals are being taken to other permanent facilities. Some
Land Application permittees in some other counties remote from this area and Granville Farms is
one of the permittees or at least had been. The McGill Composting and a number of other
compost facilities, so they're doing that. They also have a Class A residual that they make and I
think they still distribute that so right now they have alternatives to dispose of residuals that had
been applied to this property.
Tom Ellis: Is it disposal or giving it to other land owner's free as fertilizer?
Jay Zimmerman: Some of it is land application just like it had been done on this site but
they're paying attention to those rates and we have made sure everything was correct. The Class
A residuals are done under a permit but it's treated at a much higher level and as a result has less
regulatory requirements. So you could go and get a truck full if you wanted and have it applied
on your own property as a beneficial product.
Tom Ellis: Is it a registered fertilizer?
Jay Zimmerman: I don't know that.
Motion (Dr. Moreau): I would like to make a motion so that we could move forward toward a
decision on this. I am impressed with the actions that have been taken by the City of Raleigh to
correct a problem that they created but I think they have taken a very aggressive approach to try
and address this. I am concerned about granting a variance in perpetuity and I don't see a great
deal of harm in putting a time limit on this variance, something in the order of ten years. It may
be covered by permit renewal but I don't see a great deal of harm in putting a ten year time limit
on the variance so that it would have to be reviewed within ten years. With that having been said
I would like to make a motion that we adopt the hearing officer's recommendation with the
provision that the variance have a time life of ten years. Dr. Peterson seconded.
Chairman Smith: Mr. Crawley reminds me that I ask Dr. Moreau who made the motion and
Dr. Peterson who seconded it if it would include the two provisions of our variance bylaws
which is (1) the discharge of waste with the emission of air contaminants occurring or proposed
to occur do not endanger human health or safety and (2) compliance with the rules, standards, etc
from which variance is sought cannot be achieved by application of Best Available Technology
found to be economically reasonable at the time of application for such variances.
Dr. Moreau: Yes. Based on the hearing officer's review and report I think those issues have
been addressed. Dr. Peterson also agreed.
Marion Deerhake: Just to clarify "do not endanger" refers to the methodologies that will be
used as part of the variance not in previous exposure I presume.
Chairman Smith: That's my reading of that. Mr. Crawley concurs.
Tom Ellis: It's been stated in here that this would take up approximately 65% of the city's
wastewater treatment plant capital funds for construction for 2009-2010. Would it be
W.

implemented? This is only part of the City of Raleigh's budget. When we issue fines and
require people to do other things we look at their entire ability to pay. In this we're only looking
at one checking account. I've asked, "What is the budget for the City of Raleigh"? When you
look at that, it isn't economically infeasible.
Chairman Smith: I don't know the budget for the City of Raleigh. I know Mr. McLawhorn is
here and I know Mr. Levitas is here but they may not be prepared to speak to that or want too.
Steve Levitas: I don't have the number Mr. Ellis but I would tell you that I think regardless of
the number that we presented I think we meet your test for economic hardship regardless of the
total city budget. It is a very large number and you've granted variances in the past for a cost
and a range of a million dollars. If you look at the benefit relative to the cost which is part of the
test, we have not been able to identify any benefit and some harm from requiring an expenditure
of that amount. It's just one of those situations that is technically required. It's really not
providing any benefit. I've said that the debit approach which would not come with the full
compliance alternative provides a greater benefit. We've spent a lot of money on other things.
I'm sorry that I don't have that number but I don't think that's the dispositive test on whether
your standards are met.
Tom Ellis: I think your answer is better that the distraction with the 65%.
Steve Levitas: Ok. Fair enough. I accept that. While I'm here may I say one word about the
motion? I appreciate the concern but I just would like to say that we spent seven years working
on this variance and the process of coming through your variance procedures are very infrequent.
It is a very long and protracted process and I would hope that there's a way that we can address
Dr. Moreau's concern which we are prepared to do. We are very open to any one of a number of
ways to address that concern without requiring we come through the full variance process again.
We have talked about some of those today. The best way to deal with that is to full authorize the
Division of Water Quality and the director to take the actions that you are requiring including
requiring additional actions of us. We don't have a problem with the director being authorized to
impose additional corrective action requirements if she or some future he should determine that
it's necessary. I really hope that we can find a way to address that concern about how to address
future problems without having to come all the way back through this variance process. Of
course we would be happy to include reports to this Commission.
Chairman Smith: We appreciate that statement Mr. Levitas and thank you. We have concerns
about the impact on the City of Raleigh, impact on the groundwater and impact on the Neuse
River, and we're trying to balance all of those concerns as we work through this process.
Dickson Phillips: I was going to ask before Mr. Levitas' last comment what the real practical
significance from our standpoint would be imposing a ten year subset versus the five year review
that I understand is proposed. Mr. Ellis has observed a potential impact on the City of Raleigh
during resubmittal for a variance. I think I am comfortable with the thought that we would have
the five year review process. One thing that might avoid any confusion about what the
difference is between the review and determination as long as the language of the permit is
absolutely clear the department could impose a new action plan requirement if indicated. That
39

wouldn't be precluded by the variance and it wouldn't be perpetual in the sense the variance is
granted once and for all, and that any implication that the department would have to come in and
carry some burden of proof. I was a little concerned about whether there was any lack of clarity
on that point, that there is a power to impose new conditions. But if there is I would be
comfortable with just the five year review.
Chairman Smith: I think that Dr. Moreau's motion is based on not so much the department's
power to impose new conditions but preserving that power for us as well.
Dr. Moreau: There's another way to do it. We could just put a reopener clause in here but I am
concerned that you grant a variance in perpetuity and then that's not repealable under a permit
decision and grants the city authority in perpetuity the right to violate groundwater standards. If
the ten year is a problem I'd be willing to go with a reopener clause to say if there was
substantial reason which we do on interbasin transfer certificate. If the information that we're
given at the time of making the decision is a lot of projections and uncertainties, if the reality is
substantially different than what is presented then the Commission has the authority to reopen
the variance. That would be another mechanism. It wouldn't automatically make them come
back in ten years but would give us the right to open it up. I would be happy to accept that
alternative.
Forrest Westall: I think that would be the reasonable approach. My concern would be the
mechanism. I would say that I would defer that to the Division of Water Quality staff to come
back to the Commission as they see information and recognize things that would indicate that the
variance granted by the Commission that conditions have changed and there was some material
change to the situation they would come back to the Commission and ask for a review of that
variance. That would not necessarily require a proceeding to do another package and another
evaluation equivalent to this but would give this body the opportunity to direct the City to do
whatever was appropriate based on that reopening clause.
Jeffrey Morse: I support Dr. Moreau's position or a reopener. That is much more workable and
meets the comment the chairman said about protecting the Commission's right to intercede
should we feel necessary outside the possibility of whatever direction the staff goes because the
NPDES five year permitting process is very exhaustive and they could catch all the activities and
concerns that we have expressed here this evening. But it doesn't necessarily bring to the
attention opportunities. So I would support the reopener clause on that.
Yvonne Bailey: I was just looking at the hearing officer's report. When you look at the
conditions that they're proposing for the nondischarge permit where the groundwater monitoring
was being added in it says every five years the effectiveness of the overall remediation strategy
shall be evaluated to determine if new or additional treatment technologies exist that could be
implemented cost-effectively. So that's in there and then it has a five year evaluation where they
would report back to us on March 31, 2014. What I didn't see in here is a real specific sentence
saying that if there is something incorrect that action be taken. But I think that the staff did a
good job capturing most of our thoughts in there so it shouldn't be difficult.
M

John Curry: It is my understanding that the optimistic thinking is that at Othe end of ten years
the City won't need a variance.
Steve Levitas: It's anticipated that it will take approximately thirty years to achieve full
compliance. That is true whether we do the corrective action plan that's proposed under the
variance or if we do a fully compliant plan we would still be out there for a long time.
Forrest Westall: If the Commission were to approve a variance on this particular situation, on
another case we've issued a specific variance document. My indication is that this variance
would be incorporated in the nondischarge permit. In other words, the Commission would grant
a way that this has been laid out and it would be incorporated in the nondischarge permit, and the
nondischarge permit would be the force of the implementation of the variance. You haven't
presented us with a variance document to approve. We are just approving the conditions, as the
motion was made, recommended by the hearing officers and the nondischarge permit would
implement that. Is that correct?
Chairman Smith: Yes.
Frank Crawley: I envision that there will be an actual document and in the provisions in the
document relate to the nondischarge permit and etc. Those will be modified by the agreement
between the division and the city.
Forrest Westall: So it would be up to you to take all of this and write it up in a document.
Dr. Moreau: With Dr. Peterson's concurrence I would like to modify the motion to put a
reopener clause in there instead of the ten year time limit.
Chairman Smith: Are you taking out the ten year sunset and incorporating a reopener clause
that is triggered by department action or by EMC action?
Dr. Moreau: Either. Dr. Peterson seconded the new motion and retracted his old second.
Chairman Smith: Any discussion on this motion which is to accept the hearing officer
proposal, add in a reopener provision that will be drafted with the ability of the department or of
the Commission to trigger that reopener provision and the two provisions that are contained in
our by-laws as to variances. The Commission voted unanimously and the motion passed.
09-58 Request to Consider Delegating Approval of Local Reclaimed Water Permitting
Programs to the Division of Water Quality Director
Dr. Larkin: We heard a presentation on this yesterday at the Water Quality Committee and
listened to the permitting application process and recommended in view of that discussion which
41

was quite brief that we do delegate the reclaimed water permits to the Director of the Division of
Water Quality.
Motion: So I would move that we also do that. It has been with the EMC but we are prepared to
do a presentation if necessary. Kevin Martin seconded.
Chairman Smith: asked for discussion. There was no discussion and the motion passed.
09-59 Request Approval of the Falls Lake Calibrated Nutrient Response Model
Chairman Smith: Pam Behm will explain to you that we are working our way toward the set of
Falls Lake rules with the legislative deadline of January 2011.
Summary (Pam Behm): I have with me Dr. Jing Lin. Both of us are with the Modeling and TMDL
unit. I will first clarify there were two models developed to help support the Nutrient Management
Strategy. The Calibrated Nutrient Response Model which was required and the watershed model
which was not required and was developed as a supplemental tool. The watershed model provides
information on the sources of nutrient loading in the watershed. The watershed model is not
connected to the calibrated nutrient response model. In other words the watershed model output was
not used to drive the calibrated nutrient response model. I'll touch on this a little later on in the
presentation but our main focus here today will be the calibrated nutrient response model. These are
the relevant statutes and you've received a full text of these sections in your attachments. These were
the drivers which led to development of the calibrated nutrient response model and required approval
by the Commission. Senate Bill 981 also established a timeline for model development and
rulemaking.
I will start with what is a calibrated nutrient response model. It starts with a water quality model
which is a mathematical representation of pollutant transport and degradation. The nutrient response
model is a water quality model that can predict the response of receiving waters to pollutant loading.
In this case the receiving water is Falls Lake and the pollutants are nitrogen and phosphorous. Finally
we have the calibrated nutrient response model which is a nutrient response model that has undergone
the adjustment of parameter values to reproduce the response seen in reality. So, in other words, you
are comparing site specific data to the model predictions.
The purpose of developing a calibrated nutrient response model, in this case, was to determine the
necessary reductions of nitrogen and phosphorous that would allow the lake to meet water quality
standards for chlorophyll -a. As you can see, in the general diagram in your package the purple area
represents the total existing loading of nutrients from all sources including loading from tributaries,
benthic loading, and atmospheric deposition. The result of existing loading is a lake that is violating
the water quality standard for chlorophyll -a. Once the model is developed, you can run model
scenarios and systematically reduce loading coming into the lake and see how the lake responds. The
goals are to find the combinations of nitrogen and phosphorous reductions that will result in the lake
meeting standards.
In June 2005 the Division of Water Quality convened a Technical Advisory Committee (TAC) to
assist with development of the tools to support the nutrient management strategy. Participation in the
42

TAC was open to stakeholders on a voluntary basis because it was a huge time commitment. The
TAC provided input on the monitoring, model selection criteria, they provided data, and they helped
set the model performance criteria, which are a set of statistical criteria by which the model
calibration is judged. They reviewed and commented on both models as well as the documentation.
The TAC was comprised of several state and local agencies and they represent some of the major
stakeholders in the Falls Lake watershed.
There were several modeling frameworks evaluated for the Falls Lake project. We selected the
Environmental Fluid Dynamic Code, otherwise known as EFDC. EFDC has three main components:
the physical model where the lake hydrodynamics are simulated, the sediment model to capture total
suspended solids, and the eutrophication model where the water quality components are simulated. It
is a pretty complex model.
Model Development
As with any model, the first thing you need is data. In March 2005, DWQ initiated a special study to
gather additional data to support the models. Data was collected from March 2005 through
September 2007 within the lake as well as the tributaries. The tributary data was used to develop
estimates of nutrient loadings which were used to drive the lake model. We used actual data where it
was available to estimate these loads. For the tributaries that were not monitored, we used standard
methods to estimate the loading. Other data used in the calibrated nutrient response model
development included flow information from USGS, weather data from the State Climate Office, and,
in addition to the tributary load, we included those from atmospheric deposition of nitrogen and
benthic nutrient fluxes. These are very small in comparison to tributary loading.
Model Calibration
The models were calibrated to the 2005 and 2006 data and validated using the 2007 data. Model
validation basically provides a check on the calibration. The models were calibrated where we had
water quality data available. The model prediction was compared to observed data for each of the
parameters. In the end, the model calibration met the statistical performance criteria which were set
by the TAC. Overall we were quite satisfied with the results. All of the calibration results are
detailed in the report. The link to the report is
http://h2o.enr.state.ne.us/tmdl/documents/FallsLakeDraftReport8 full.pdf.
At this stage we are at a point where the model is predicting the lake response to existing loading. We
are comfortable with the model results as a result of the model review process which I will touch on at
the end. At this point, Jing ran many model scenarios adjusting the loading coming into the lake to
determine the nitrogen and phosphorous reductions needed in order for the lake to meet the
chlorophyll -a standard, so that we end up with a blue lake. It's basically a systematic process of
reducing the loading coming into the lake and seeing how the lake responds. The result is actually a
series of various nitrogen and phosphorous combinations of reductions and is represented as a curve.
This was a tool that was developed for the stakeholders to make recommendations. The big star at the
top right of the graph represents existing conditions which is where we are now at 0% reduction in
nitrogen and phosphorous and as you move away from the star the reductions increasingly get larger.
The way to interpret this is basically anything to the left or on the curve will allow the lake to meet
standards. For example, a 30% reduction in nitrogen and a 70% reduction in phosphorous will result
in the lake meeting standards.
43

Forrest Westall: Looking at that as we looked at it yesterday, typically and historically what most
lakes have are problems with nitrogen. Based on this chart it is obvious when you get to a certain
point of phosphorus reduction the reduction in nitrogen basically stays the same.
Pam Behm: The model and initial documentation were open to the TAC for a review from March 23
through May 31, 2009. The Department of Transportation contracted Tetra Tech to also review the
model. We were thrilled to have Tetra Tech review the model because members of their staff actually
developed the EFDC framework so they're experts with the system. They provided a few suggestions
to improve calibration which were incorporated into the final model used to develop the curve on the
diagram. Changes made to the model are described in Appendix D of the report.
Forrest Westall: The TAC was basically sort of a group to review what you were doing. There was
no endorsement or anything. They commented on the model and provided input as to issues that they
wanted addressed.
Pam Behm: That's correct.
Forrest Westall: This wouldn't necessarily mean the City of Durham approved the model. They just
looked at it.
Pam Behm: Correct.
Marion Deerhake: I think that we are very fortunate to have Dr. Lin working with all of you. I
don't know what kind of challenges that you might face down the road with this, but the Technical
Advisory Committee is made up entirely government entities that are local and municipal
governments. A more diverse body would have probably been better. I don't think that contracted
Tetra Tech could truly be considered a peer review. Peer reviews are more like three or more
independent researchers that do a review. So you may want to be cautious about calling them peer
reviewers.
Les Hall: You showed us a comparison between predicted and observed dissolved oxygen. Do you
have those same comparisons for phosphorous and nitrogen?
Pam Behm: Yes. They are all included in the report.
Forrest Westall: We had several discussions yesterday and again the watershed model at this time is
not completely and full developed. It was developed but it wasn't used as an input. You used actual
data for the input.
Pam Behm: It is fully developed. We have no intention of incorporating it with the lake model at
this time.
Forrest Westall: Would the watershed model be a tool to determine reductions on particular sources
or categories?

Pam Behm: It provides information on the sources of loading from within the watershed. I want to
make it clear that we are not using those relative loading percentages to drive the allocations for the
strategy. It merely provides information on whether or not a source is contributing.
Forrest Westall: So the reductions that were made were made on the tributaries coming in. They
were made percentage wise, consistently, not looking at the particular sources from which they came.
Kevin Martin: Just restating on yesterday I had some questions on the watershed model and I know
that's not the purpose of this today which I have no problem with what you presented today. I just did
want to reiterate before we get too far down the road with rule language and an apportioning sources
and proposed reductions, I would definitely like to see a little more information about the watershed
model, although I realize it's not required. It's going to be used to derive where we think we can get
reductions and how we will do it so we need to be pretty comfortable in those inputs.
Dr. Larkin: The Water Quality Committee yesterday did approve this model and recommend it to
the EMC so I would move its approval. Mr. Westall seconded.
Chairman Smith: asked for discussion.
Dickson Phillips: I was just trying to understand whether that graph told us what percentage
reductions were likely going to be required.
Pam Behm: John is going to touch on that in his information item.
Chairman Smith: asked for further discussion. Hearing none the motion passed.
Administrative Hearings — Contested Cases
09-60 Presentation of Administrative Law Judge's Decision, David Coston, Coston Farm
LLC v. DENR, Division of Air Quality, 08 EHR 0898, DAQ 08-025, Henderson
County
Assistant Attorney General Elizabeth J. Weese presented oral argument for the Department and
requested the Commission to adopt the ALJ's recommendation as the final decision finding
David Coston and Coston Farm LLC directly or indirectly allowed the open burning of the brush
pile and the prohibited materials in the pile on or about January 24, 2008.
Mr. David Coston presented oral argument and requested the Commission to reject the ALJ's
decision and not assess a civil penalty.
A motion was made by Mr. Martin to adopt the ALJ's decision finding a violation of the open
burning regulations but to reduce the amount of the penalty to $750.00 plus investigation costs as
the final decision because petitioner had no prior violations and thought the burning of orchard
trimmings fell under the agricultural exemption for open burning. There was a second to the
motion.
45

Chairman Smith called for discussion or questions from Commission members. After further
discussion, the Chairman called for a vote by show of hands on the motion. The motion carried
by majority vote.
The Commission made a final agency decision which adopted the findings of fact by the ALJ
and the conclusions of law, except number 8 as to the amount of the civil penalty, as the final
agency decision. The Final Agency Decision finds and concludes that the Department did not
act erroneously or upon unlawful procedure; did not fail to act as required by law or rule; did not
act arbitrarily, capriciously or abuse its discretion; and based upon substantial evidence, properly
assessed David Coston and Coston Farms LLC a civil penalty in the amount of $750.00 and
investigation costs of $246.00 for directly or indirectly allowing or permitting the open burning
of synthetic materials, including paint cans, scrap metal, furniture, mattress springs and a grill on
January 24, 2008, on leased property near Hendersonville, N.C. Therefore, the civil penalty and
costs of investigation are UPHELD.
09-61 Presentation of Administrative Law Judge's Decision, Laney Oil Company, Inc. v.
DENR, Division of Waste Management, 08 EHR 1033, UST 06-088C, Union County.
There was no presentation by the petitioner, Laney Oil Company, Inc.
There was a presentation by Assistant Attorney General Jay Osborne for the Department.
A motion was made to adopt the ALJ's decision as the final agency decision. It received a
second. Chairman Smith called for discussion or questions from Commission members. There
being no discussion, he called for a vote on the motion. The motion carried.
The Final Agency Decision by the Commission concluded that the Respondent Department acted
appropriately and in accordance with the General Statutes and rules in assessing the $11,300.06
civil penalty and costs for failure, from September 12, 2006 through March 18, 2007, to
complete and submit a Site Assessment in accordance with the requirements of 15A NCAC 2N
.0405 and .0803. Accordingly, the Decision by the Administrative Law Judge was adopted in
full in the Final Agency Decision and incorporated therein by reference. The Commission
affirmed the civil penalty assessment and Ordered payment of the $11,000.00 penalty and
$300.06 costs of investigation.
III. Information Items
09-05 Annual Progress Reports on the Neuse and Tar -Pamlico Agriculture Rules
Chairman Smith: We did not reach that report in the Water Quality Committee yesterday and as a
result that is not going to be heard today. But they will bring it back to us after it has come to the
Water Quality Committee in January.
09-06 Falls Lake Nutrient Management Strategy Development Update
This is to keep us up to date on what's working and what's in progress as to the Falls Lake rules.
That is the development of Falls Lake rules. These rules are going to come to us if we stick to

our schedule in March as we try to make the deadline of having this entirely through the process
in time for the January 2011 General Assembly deadline.
Summary (John Huisman) : A similar update was provided at the September Water Quality
Committee and I will be returning to you in January to provide a further update. I am going to
provide you some background information on the Falls Lake. The Falls Lake watershed is
located at the upper portion of the Neuse Basin. It is a 770 square mile watershed that spans the
portion of six counties including parts of Durham, Orange, Person, Franklin, Granville and Wake
County. It also includes portions of Durham, Hillsboro, Roxboro, Creedmoor, Butner, Stan and
a tiny sliver of Raleigh. The lake was constructed in 1981 and the gates to the dams were closed
in 1983. The lake serves as a water supply to approximately over 450,000 residents in Wake
County. The land cover for the watershed based on 2001 land cover data is predominantly
forest, roughly about 58% forest followed by agriculture and developed lands.
In 2004 there was a weighted focus on the condition of Falls Lake. At the time there wasn't
sufficient water quality data to do a full use support determination of the lake. However, this
weighted focus prompted two things. The first being the passing of legislation such as SL 2005-
190 known as Senate Bill 981 which directed the Environmental Management Commission to
adopt a nutrient strategy for Falls Lake, and for that strategy to be based on a cali0brated nutrient
response model which is what you approved here earlier today. Along with that DWQ also
began a more intense sampling of the lake to perform a use support assessment and have the
water quality data for the model development. This lake sampling special study started in March
2005 and concluded in September 2007. As you heard earlier the Falls Lake Technical Advisory
Committee was also formed in June 2005 to assist DWQ with the review and modification of the
monitoring strategy and to provide input on setting the performance criteria associated with the
different modeling activities. The TAC also served a role of reviewing and commenting on the
models as well as the documentation associated with the models.
Based on the water quality data that was collected between 2002 and 2006, Falls Lake was listed
as impaired for chlorophyll -a on the draft NC 2008 303(d) list of impaired waters. The portion
of the lake above I-85 was also listed as impaired for turbidity. The map listed on the EMC
website in this agenda item shows the sample locations for the 2005-2007 field study conducted
to collect the water quality samples to develop the nutrient response model. To help orient you
this is 1-85 that runs through the upper portion of the lake and Creedmoor Road, NC -50 bisect
through the middle of the lake, and there's the Falls Dam at the base of the lake.
Again, there is the chlorophyll -a impairment throughout the lake based on the 2008 impairment
list and the turbidity impairment is for the portion above I-85. Some DWQ historical data for
Falls Lake is chlorophyll -a water quality data from 1983 through 2007. This data is broken
down into two categories, average concentration for sites above I-85 and average concentrations
for stations below I-85. The chlorophyll -a standard is 40 ug/L. Just looking at this I would like
to point out the significant number of points above the 40 ug/L standard throughout the data
period. You will also note that many of these points are from concentrations up above I-85.
Also, the higher chlorophyll -a exceedances in the early years is a classic response to the
damming of a flowing river. Given the small number of historical data it is difficult at this point
to infer the specific trend. Also the results in the final cluster between 2005 and 2007 are the
47

results of the special study that DWQ conducted. But again the main point is the historical data
and pointing out that a large number of the data points above the chlorophyll -a standard aren't
located in the upper portion of the lake.
This map shows a colored coded spatial representation of the impairment severity. This map is
not a model output but shows actual monitoring data results that were collected between 2005
and 2007. Looking at this map the warmer colors represent high or exceedance of the
chlorophyll -a standard. For example the red color of the upper portion represents exceedances
between 70 — 85% of the time. The cooler colors that are greens and blues represent lesser
extensive violations. The upper portion of the lake exhibits a higher percentage of chlorophyll -a
exceedances with the frequency of exceedances decreasing as you move further down the lake
towards the dam. 13B on the map is a compliance area that DWQ presented to the TAC and the
stakeholders because that is a point that defined upper sub -watersheds drain to and by attaining
the water quality standards in 13B we effectively achieved the water quality standards
throughout the lake.
Some background in terms of legislative history the 2009 regular session produced Senate Bill
1020 which is a bill devoted to water quality improvements in Falls Lake. There are several key
components of this bill. The most important ones were that it revised the adoption deadline for
the EMC to adopt rules for Falls Lake. The new adoption deadline is January 15, 2011. It also
provides provisions that when these rules are adopted by the EMC as it goes through the RRC
process that those final rules will be adopted as temporary while the rules continue through that
process.
Several other requirements that were included in this Senate Bill and improving water in this
watershed included a provision for early reduction credit. The baseline that we're talking about
in Falls Lake is 2006 and the base of this bill provides provisions to recognize credit for early
reductions that were achieved by implementing practices after January 1, 2007.
This bill also provides provisions that buffer mitigation and nutrient offset projects for impacts
that are located in the watershed these offsets and mitigation projects need to be located in the
watershed as well. The bill also tightens Erosion and Sediment Control design standards in the
watershed and the most notable being that ground cover of seven days once grading has been
completed. There's also a seven to fourteen day grading ground cover requirement for sites that
are being created but have not been finished with a slope -dependent variable. These standards
for the sediment control go into effect January 1, 2010. The Sedimentation Control Commission
directed adoption of these rules for erosion sediment control for the watershed by December 31,
2011.
There are also provisions in the Senate Bill 1020 that direct DENR and the EMC to identify
improvements needed for the design, operation and siting of septic systems within the watershed
and to report these recommendations to the Commission of Public Health and the Environmental
Review Commission in March 2010.
Outside of this SB 1020 as a part of the process DWQ is committed to evaluating the permitting
programs located in the watershed. Raleigh Regional Office staff is conducting focus
W.

compliance assessments within the watershed of different permitting programs. This is a twofold
purpose hoped to identify immediate opportunities for water quality improvement and also help
serve to reform the rulemaking process. In terms of the strategy development process a
watershed model and a lake model were completed by DWQ staff and presented to the TAC for
their review. The watershed model estimates to relative loading contributions from the
watershed sources and the lake model allows the determination of N &P load reductions needed
to achieve the water quality standards in the lake. After the TAC review of these models they
were presented to stakeholders in May and June 2009. We had a stakeholder process going on
along with a joint effort with the Triangle J Council of Governments that started in August 2008
and will continue through January 2010. At this point we've had eight meetings over the past
year to work with the stakeholders to develop a common of understanding of the lake issues,
modeling basics and results, and grappling with a strategy design and options. The presentations
and notes from these stakeholder meetings are hosted on the TJCOG website and we have also
developed to the COG an online forum, "wiki", forum where stakeholders and DWQ can
communicate between meetings and share ideas and information.
Along with that stakeholder process we recently broke into small subcommittee groups in
September to work on specific rule language with the source types. We have met nine times
since the September update to the Water Quality Committee and we will have three more
meetings before the subcommittee groups wrap up, and we bring draft rules to the full
stakeholder group in January.
Concurrently DWQ is working on drafting a fiscal note for these rules and we are scheduled to
bring draft rules to the Water Quality Committee and the EMC in March 2010. Again the overall
goal is to bring rules to the EMC no later than January 15, 2011. This is a list of the small
subcommittee groups that have been meeting since September. Since updating the Water
Quality Committee in September DWQ has held nine subcommittee meetings with the smaller
group. We have a group for new development talking with the point sources, existing
development onsite wastewater, agriculture and this local jurisdictional approach is a marriage
between the point source and the existing development subcommittee where the groups combine
together and talk about options and possibility of trading for allocations. We have three more
meetings before bringing the draft rules to the full stakeholder group in January.
It is my understanding at this point that the watershed model will be coming back to the Water
Quality Committee for information item but I wanted to present this to you in terms of what we
have been showing the stakeholders. This graph shows the watershed model output that was
presented to the stakeholders and this touches on the more substantive issues of the strategy that
have been discussed with the stakeholders. This shows the watershed model bar graph for the
estimated nitrogen load delivered from the five upper sub watersheds to the lake for the baseline
year 2006. The watershed model output serves as an estimate of the relative loading from the
contributions of the five upper sub -watersheds by source. These numbers helped inform the
rulemaking process by identifying different source types and their relative loading contributions.
However, we aren't using this information to set the strategy reduction requirements. The
reduction requirements set forth by the strategy are not determined by the watershed model but
determined by the lake model. The lake reduction needs are based on the calibrated nutrient
response which you approved earlier which is based on actual water quality from the lake in the

watershed. While individual source contributions may vary, ultimately the reduction needs for
the lake are so great that we're looking for reductions from all controllable sources anywhere we
can find them. That has been a point that we have been trying to stress with the stakeholders. I
know that looking at these bar graphs has caused some concern for the stakeholder and I was
trying to explain to them how this is being used and how it's not being used in development of
the strategy.
The watershed model output shows agriculture and point sources which represents major
contributors followed by the forest, septic and developed plans. Some challenges are that forest
represents a 21% contribution and in a long discussion of our stakeholder process. Obviously
there's an export rate from forest but as we pointed out earlier there's a high proportion of forest
from the watershed. So the contribution to that still comes out to 20%. Since it's essentially not
a controllable source we need to redistribute the proportion reduction from the forest to the
controllable sources. This bar graph illustrates the output from the watershed model showing the
estimated phosphorus reductions delivered to the lake from the five upper sub -watersheds for the
baseline year 2006. Again, we're looking at agriculture and point sources being some of the
major contributors followed by septic and developed land. Also looking at agriculture there's a
challenge with a phosphorus accounting that the stakeholder group and the sub -committee group
has been grappling with and something we are going to have to develop with moving forward
with the strategy.
Now we move on to the Lake Model output which is similar to the one you were shown during
the Lake Model presentation earlier this afternoon. This curve graph is pointed out as a tool that
was developed and presented to the stakeholders to help them make recommendations on
preferred reduction combinations. Using the lake model, staff were able to generate these series
of various nitrogen and phosphorus reduction combinations which represent the curve shown on
the graph. Again we're talking about reductions relative to a 2006 baseline using a baseline area
of 13b pointed out earlier. The curve on the graph represents the reduction combinations that
were achieved water quality so any combination that would land you onto this graph to the left
would achieve the water quality standard of 13b. The star represents existing conditions. As you
move across the X and Y axis the reduction combinations for nitrogen and phosphorus increase.
An example is a 30% reduction in nitrogen and 70% reduction in phosphorus will result in water
quality standards being achieved.
The Falls Lake strategy requires a dual reduction in nitrogen and phosphorus reduction. We have
discussed these different phosphorus and nitrogen reductions with the stakeholder groups using
this slide. The stakeholders have expressed interest in a larger phosphorus reduction and a
nitrogen reduction, and in particular in our discussion the stakeholders favored the 30/70
combination shown here. One of the main reasons for expressing interest in the higher
phosphorus vs. nitrogen was the point sources in agriculture have already achieved significant
reductions under the existing Neuse nutrient management strategy. Other stakeholder input
concerned the need to address the background sources of loading from forest and recognizing the
predicted atmosphere depositions over time so the goals for the strategy as shown here were
adjusted for redistributions of forest contribution which slightly increased the reduction need and
the predicted reductions from atmospheric deposition which then decreased the reduction need
resulting in overall reduction goal for the lake at 40% reduction in nitrogen and 77% reduction in
phosphorus. To adjust the goals to reflect the decreases in loading from atmospheric from the
50

anticipated decrease in atmospheric deposition DWQ worked with the DAQ on what the
anticipated deposition reductions from atmospheric reductions would be over time and DAQ
model predictions came up with a 31 % decrease in atmospheric deposition by 2018 which results
in a 2-3% decrease in loading from direct/indirect sources to the lake.
Overall we are also looking at large reduction need for Falls Lake. We have been discussing
these reduction combinations with the stakeholders moving forward and drafting rules. The
reason there's such a large reduction is we have been introducing and recognizing the need for
some sort of adaptive staged approach to the strategy. We have been discussing with the group
the strategy approach the geographic application of the reduction combination. Earlier on in the
process we were discussing with the stakeholders the idea of getting reductions from the upper
watershed and having to hold the line strategy in the lower watershed, but we received fairly
strong feedback from the group, and a desire for the stakeholders to have a watershed wide
application for the strategy. The main reasons were equity and other reasons included
recognizing that there's increased loading from development in the lower watershed since 2006
which is the baseline for the strategy.
Other concerns were that by having restrictions on the upper watershed that would be depriving
development in the lower watershed potentially causing a problem down the road. Also there
were concerns over protecting the water quality intake that is located in the lower portion of the
lake. We did take an informal straw poll at our August stakeholder meeting and about three
quarters of the stakeholders favored a watershed wide approach. After working with these small
subcommittee groups we've been developing draft rule concepts using a staged approach that
would include ongoing water quality monitoring with Stage I that would start with some sort of
uniform control watershed wide. This Stage I along with work that was the overall reduction
goals would have the added goal addressing the water quality attaining the water quality standard
at the intake. With Stage II coming in at a later date which we have been talking about ten years
down the road would require additional reductions in the upper watersheds over time that would
achieve the overall reduction for the strategy.
The next steps in the process are that DWQ is currently working on drafting rule language and
bringing it to these smaller subcommittee groups to take to the full stakeholder group in January.
We're also working on the fiscal note. There's the ongoing programmatic assessment that the
Raleigh Regional Office is doing with the permitting programs in the watershed. These smaller
subgroups are currently meeting to talk about the rule specifics (a list of subcommittee groups
attached). We're also meeting with other agencies such as Division of Environmental Health,
Department of Transportation, Division of Air Quality and Forest Resources to explore issues
and gain insights and options. Particularly we had a lot of conversations with DEH about
helping us understand the different contributions from septic and moving forth with that strategy.
I will be coming back to you in January to provide you with an additional update on the process.
We're operating on a fairly short fuse bringing these draft rules to the stakeholders in January,
ultimately coming back to you in March with a set of draft rules and concurrently developing a
fiscal note that we will need to be submitting to the Office of State Budget Management in
December. That concludes my update on the Falls Lake process today and I will answer any
questions you may have at this time.
51

John Curry: Having driven across the I-85 Bridge and seeing the lake levels from almost
nothing to full, how do you take into account the lake levels in determining these various
concentrations you spoke of? I assume that you will have different temperature levels from the
lake's load when it is high. How do you take all those factors into consideration when you come
up with these numbers?
John Huisman: There's a lot of discussion with the TAC in talking about the model and that's
what has led DWQ to select 2006 as the baseline year to measure reductions from because 2006
represents the most normal year during our sampling period where normal being relative to the
lake levels and precipitation, that drove the conversation toward using 2006 because that seemed
to be the most appropriate frame of reference to measure reductions.
John Curry: Obviously some other period of time the lake's going to be different so you have a
way of calculating in that difference.
John Huisman: That's where with this staged approach or talking about this adaptive
management because we're talking about a Stage I the people implementing things and continue
to do water quality monitoring. That's been a big discussion with the stakeholders of having
additional monitoring going on. There's been stakeholders looking to do additional modeling in
the future to help inform the process and we could potentially adapt the strategy moving forth.
Dr. Jing Lin may have some additional comments on that.
Jing Lin: We have taking that into account as the hydrodynamic model so the hydrodynamic
model will simulate the lake levels as they change. Also it will simulate the water temperature as
they change so that has been taken into account.
Jeff Morse: We're hearing that the chlorophyll -a limits are going to be dropped. Have you
taken any of that into consideration or will you be looking at potential impact of your study when
the chlorophyll -a limits are lowered or being proposed to be lowered? I noticed that you used 40
for your chlorophyll -a? There's proposals that limits are going to be dropped to 19 or even
lower. Have you taken that into consideration in planning?
John Huisman: Right.
Coleen Sullins: We actually aren't proposing to lower the chlorophyll -a standard. We're
proposing to modify the chlorophyll -a standard to take into consideration that 10% exceedance.
What we are proposing is to set a threshold value, not a standard. This is a conversation that we
had yesterday. We are proposing to set a threshold value at which we would implement a
standard suite of nutrient management practices that would be lower than that 40, but it would
apply in areas where we don't have TMDLs or other management strategies in place. So it
wouldn't necessarily affect the Falls Lake, management strategy that we're working on.
Chairman Smith: asked for further questions and comments.
Donnie Brewer: I have one comment and it doesn't have anything to do with the presentation
other than the fact that the Sedimentation Control Commission has appointed a Technical
52

Advisory Committee also to address the sediment restrictions that are being imposed in this
Senate Bill 1020 also. They will be meeting over the next few months. Kevin is going to serve
on that TAC committee.
Chairman Smith: Good. Those of you who don't know Mr. Brewer chairs the North Carolina
Sedimentation Commission.
Donnie Brewer: That's correct, as liaison from the EMC.
Chairman Smith: That brings us to the conclusion of our agenda as to action items and
information items. Before we go into committee reports I'm informed we need to go into
executive session to be briefed by our lawyers on the status of various litigation.
Dickson Phillips: I make a motion that we go into closed session pursuant to General Statute §
138A-15.11-3 to consult with counsel regarding contested case involving inter -basin transfer
certificate issuance to the City of Concord and Kannapolis.
Jeff Morse: I recuse myself from the executive session.
Chairman Smith: Thank you.
Forrest Westall: indicated that we needed a second to the motion which he seconded at this
time. The motion passed.
Chairman Smith: We have gone out of executive session and back into the main session for the
committee reports.
IV. Status Reports by EMC Committee Chairmen
A. Water Allocation Committee Mayor Darryl Moss, Chairman
The Water Allocation Committee did meet. We had one action item yesterday. That was
consideration of the IBT settlement process guidance document. The purpose of the document is
to provide additional guidance to the applicant, the public and the EMC on the settlement
process. We know that we will have two IBT requests that will come before the EMC next year.
The document has four major sections: initiation of settlement discussion, appointment of
mediation officers, conduction of negotiations and termination of the settlement discussion. The
Water Allocation Committee was generally supportive of the document but made several
suggestions revolving primarily around four areas as I captured them, establishing a time limit
for the mediation that's intended to keep the process from dragging on forever. The second area
was defining interested parties; thirdly confidentiality ensuring the process meets public meeting
law. There's going to be a review of the document to make sure that we do that. Last, there was
a lot of discussion around the appointment of the mediators. The Water Allocation Committee
will have a recommendation for the EMC to consider in January. We really didn't take any
action other than the discussion.
The second item was an information item. We received IBT updates on the Greenville
Utilities Commission, IBT requests, the Kerr Lake Regional Water System request and the
53

Brunswick County request. That was the gist of our meeting yesterday and I will close my report
by saying I would like to thank the chair for giving me the opportunity to chair the Water
Allocation Committee and I hope that I will serve this committee proud.
B. Water Ouality Committee Dr. Ernest Larkin, Acting Chairman
We considered several items yesterday. The first item was a proposal for consolidation of buffer
rules into one rule primarily from different watersheds to bring them together, to add to that an
alternative mitigation rule. We had a lot of discussion about this issue of primarily four issues.
The first one was how close to the impact should the mitigation be. Should we have a
prioritization scheme for buffer mitigation and nutrient mitigation and if so what should it be?
The third one dealt with how we count overlapping mitigation of streams, wetlands or buffer
mitigation. How do we count preservation as mitigation, if at all, particularly if the area
preserved is already protected? There were a few other issues as well, and a lot left to do on this
consolidated buffer rules but staff is diligently tracking it and we will see this again in the Water
Quality Committee and the full EMC. Another issue had to do with proposed nutrient offset
actual cost rate rule for the North Carolina Ecosystems Enhancement Program. We are under
Session Law from 2007 and we need to establish the program based on the actual cost of the
nutrient reductions. We did pass the rule that was presented and you'll see that rule in detail in
January. We did approve a major variance from the Randleman Lake water supply watershed
rules to allow the City of High Point to redirect a stream to avoid its ongoing contamination by a
superfund groundwater contamination site. We also required payment into the EEP for the
buffer mitigation associated with moving that stream. Finally, we discussed proposed rules to
establish chlorophyll -a new standards and thresholds for nutrient enriched water body
management. This was a pretty innovative proactive set of rules that would ideally prevent
impairment. It would affect a lot of different bodies of water with one set of rules. We ended up
tabling this request until March so that staff can review some of the issues with stakeholders and
check on the legal authority for rules. There were also several Commissioners who volunteered
to talk to the staff as well and if anyone else on this Commission would be welcome to discuss
this issue with the staff.
Chairman Smith: The Groundwater Committee did not meet.
C. Air Ouality Committee Marion Deerhake, Chairperson
We had two action items. We had two draft rules that will eventually come before the EMC.
These were issues that were originally on the EMC agenda but were brought back to the
committee to bring some additional clarification to the rules. One was a volatile organic
compound rule for numerous industrial sectors to bring it in line with the Clean Air Act because
of relatively recently released controlled technology guidance that EPA issued on those. The
second was prevention of significant deterioration and sources in nonattainment area rules. The
purpose of the revisions was to clarify the rules of the Clean Smokestack Act units to make sure
that they are properly covered. We discussed the three agenda items that were before you today
and then we had reports. One was on the additional greenhouse gas proposed tailoring rule. We
had a nice presentation on that along with the greenhouse gas reporting rules that the EPA
adopted in September. EPA is poised to proceed with emissions control standards or regulations
to reduce carbon dioxide emissions for particular sectors. Those rules are there to help EPA be
ready in case climate change legislation doesn't preempt it. It could be as early as March that we
54

would see proposed rules coming in on light duty vehicles. Then the second report was an
update on ozone. First of all the ozone attainment state implementation plan has gone through a
couple of rounds of revisions with EPA. It's currently in EPA's hands right now as I understand
it. EPA is currently reviewing the Charlotte SIP. While at the same time EPA is considering
revising the ozone standard overall nationwide which has maybe two paths going on with two
different standards. It's going to be quite complex in the long run but those were our main points
of discussion.
D. Steering Committee Stephen Smith, Chairman
The Steering Committee met and has recommendations that will be coming before the full
Commission for modification of the by-laws relating to delegating to the chair the authority to
decide Motions to Intervene and Motions to Submit Amicus Briefs in contested cases, variances,
Requests for Interpretive Rulings and Requests for Declaratory Rulings, so we don't have a
situation like we did today which folks came prepared to speak and present and are not allowed
to intervene. We also met to update the by-laws to refer to the State Ethics Statute and to
properly name the department. We will be getting those to you.
The NPDES Committee did not meet.
E. Renewable Energy Committee Dickson Phillips III, Chairman
The Renewable Energy Committee did meet. We had not met in September. Since August we
have convened three meetings of a Technical Advisory Group by the Solar Center at our request
to look at the questions that we're charged with under Senate Bill 3 in particular in relation to
woody biomass. We are charged with determining whether the development of renewal energy
resources in this state may have impacts environmental, social and cultural are also mentioned
that are not adequately addressed in our existing laws. Therefore the implementation of the rules
or laws to ensure against it are adversely impacted. For the benefit of the new members of the
Commission, with the assistance of staff we recommended registration last year concerning wind
energy facilities. We now turn to the woody biomass which basically refers to woody material,
trees and waste from logging activities. We are still engaged in that process but we heard a
report yesterday that summarized some of what we have been talking about in the Technical
Advisory Groups. I will not try to summarize that for you here but I will be happy to talk about
it if any of you would like. I am envisioning we may have some recommendations to have you
vote on in March on this issue.
John Curry: On your report on the Steering Committee would you consider addition to the list
that you mentioned the question of including videos in the material such as we saw today from
the City of Raleigh. I know that several members have mentioned that. So many of us watched
it and there's the question of fairness as to whether or not that's a way of getting a half hour
instead of fifteen minutes in a sense, and I don't know the answer but I think that it is worth
addressing.
Chairman Smith: That's a good suggestion and we will put that on the agenda for the next
Steering Committee meeting. Mr. Curry is referring to the DVD that was sent out to us from the
City of Raleigh.
55

John Curry: It does give an advantage to those parties of participants who may have greater
resources to produce a video.
Chairman Smith: Are there any concluding remarks from Commission members, directors or
counsel?
IV. Concluding Remarks
Chairman Smith: All of Group I remission cases are to be decided on the 14th floor in
Conference Room 3 at the north end of the building. Group II cases will be held in the Ground
Floor Hearing Room.
Hearing no further comments the meeting adjourned at 4:40 p.m.
NOTE: Attachments are on file in the Division of Water Quality with the Official Minutes.
Lois C. Thomas, Recording Clerk
By Commission Members
By Directors
By Counsel
By Chairman
Adj ournment AGO 11-19-09
56