NC0047384_NOV-2019-PC-0728 Response_20191219

LIP
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H.Glenn Dunn
Partner
D•919 783.2842
December 19, 2019 F•919 783.1075
[e-mail]
VIA EMAIL
John Hennessy
Compliance and Expedited Permitting Supervisor �� ��®
N.C. Department of Environmental Quality
1650 Mail Service Center
Raleigh NC 27699-1650 JAN v 3 2020
RE: Notice of Violation (NOV-2019-PC-0728) & Intent to Assess Civil Penalties
NCDEQIDWRINPD �
T.Z Osborne WWTP
NPDES Permit NC0047384
Guilford County
Dear Mr. Hennessy:
I am writing this letter as legal counsel for the City of Greensboro to respond to the Notice of
Violation sent to the City by the Division of Water Resources(the"Division")dated November 14,2019(the
"NOV), a copy of which is attached to this response. The City is of the opinion that the three incidents
described in the NOV do not constitute a violation of a water quality standard or of the City's NPDES permit
(the"Permit"). Nevertheless, the City wants to state at the outset of this response that it does not want to
take an adversarial approach in this matter, but rather wishes to work together on a mutually acceptable
approach to continuing the City's ongoing efforts to reduce the 1,4 dioxane discharged to,and subsequently
from, the T.Z. Osborne WWTP (the"WWTP").
The NOV alleges there was a violation of North Carolina regulation 15A NCAC 02B .0211(12),
which states:
"Oils, deleterious substances, colored, or other wastes. only such amounts as shall not render the
waters injurious to public health, secondary recreation, or to aquatic life and wildlife, or adversely
affect the palatability of fish, aesthetic quality, or impair the waters for any designated uses."
The City believes it cannot be liable for violation of the cited narrative water quality standard
("WQS")because the standard is not a Permit condition or requirement. The Division clearly contemplated
whether to limit 1,4 dioxane when the Permit was issued in 2014, but chose not to include a limit, and
instead included a "reopener" in case it wanted to add such a limit in the future. Importantly, the Division
also did not include in the Permit the narrative standard that the NOV alleges the City has violated. Because
neither a specific 1,4 dioxane limit or the narrative standard are included in the Permit,the City is"shielded"
from a violation of the Permit and/or the standard.
This "permit shield" is not merely a legal technicality that the City is invoking, but is based on
fundamental fairness and principles of due process. A numerical limit could have been included in the
Permit, but there was not adequate information at the time the Permit was issued on which to base a
reasonable scientifically based limit. Likewise, the narrative standard could have been included but was
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301 Fayetteville Street,Suite 1900, Raleigh,NC 27601 P0.Box 1801,Raleigh,NC 27602-1801 G,919 783.6400

'Rowel,Spruill'
John Hennessy
December 19, 2019
Page 2
not, presumably for the same reason. Consequently, the Permit provides the City no notice of what is
required for compliance regarding 1,4 dioxane, and application of the narrative standard on which the
violations are based, has in effect has been applied"after the fact".
The City believes neither of the additional two alleged violations of the Permit regarding reporting
are valid because,as explained above,there is no numerical limit in the Permit, nor is the narrative standard
that the City allegedly violated stated in the Permit. Consequently, 1,4 dioxane is unregulated by the Permit
and there is no basis for requiring compliance with the Permit conditions which involve reporting and/or
investigating unusual discharges of 1,4 dioxane from or to the WVVfP. Since there is no limit or standard
in the Permit, the City would not be on notice as to what incidents would trigger such reports and
investigations.
Although the City disagrees with the alleged violations, it shares the Division's concerns regarding
the effects of discharges of 1,4 dioxane into surface waters of the State. The City has for several years
worked proactively to identify industries that discharge 1,4 dioxane to its WVVTP and has worked with them
to achieve significant reductions. The City has already indicated that it wants to work with the Division to
develop a mutually acceptable settlement order establishing measures to be taken to further identify
sources and reduce the 1,4 dioxane discharged to and from the WVVfP and a schedule for implementing
those measures. Such a settlement order should not only continue to reduce the T.Z. Osborne WWTP's
1,4 dioxane discharge, but may assist the Division in developing technically based, reasonable and
achievable goals for 1,4 dioxane discharges.
Greensboro representatives look forward to meeting with you and other Division representatives to
discuss this response and the possibility of resolving the alleged violations by means of a Special Order by
Consent.
Very truly yours,
H. Glenn Dunn