NC0082821_NOV-2020-PC-0052 Response_20200303

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DUNC1t.VI MENTAL GEOLOGISTS & ENGINEERS
KLEEi
4 511 KEISLER DRIVE - SUITE 102
CARY, NORTH CAROLINA 27518
l V I DUAM OFFICE: [phone]
W W W.DUNCKLEEDUNHAM, COM
March 3, 2020
Mr. Andrew Pitner
North Carolina Department of Environmental Quality
Division of Water Resources
Mooresville Regional Office
610 East Center Avenue, Suite 301
Mooresville, North Carolina 28115
Reference: Response to Notice of Violation (NOV 2020 PC 0052)
Southern States Fertilizer Plant
Statesville, North Carolina
NPDES Permit Number: NCO082821
Dear Mr. Pitner:
On behalf of Southern States Cooperative, Inc. (Southern States), Duncklee & Dunham, P.C. (Duncklee &
Dunham) submits this response to the referenced Notice of Violation (NOV) issued by your office to the
Southern States facility in Statesville, North Carolina. According to the NOV, Southern States failed to
report a shutdown of their groundwater treatment system as required by NPDES Permit Number
NCO082821 (the Permit) - Part II, Section E - Reporting Requirements on November 19, 2019, and
December 23, 2019. Part II.
Part II, E(9)(b) of the permit states:
The permittee shall report by telephone to either the central office or the appropriate regional
office of the Division as soon as possible, but in no case more than 24 hours or on the next working
day following the occurrence or first knowledge of the occurrence of any of the following.• (b) Any
process unit failure, due to known or unknown reasons, that render the facility incapable of
adequate wastewater treatment such as mechanical or electrical failures of pumps, aerators,
compressors, etc.
Duncklee & Dunham agrees we did not notify the North Carolina Department of Environmental Quality
(DEQ) of the November 2019 system shut down within the notice period stated above. However, Duncklee
& Dunham did notify DEQ within 24 hours of first knowledge of the December 2019 occurrence, when it
was discovered by the Duncklee & Dunham Operator in Responsible Charge (ORC) during a December
2019 site visit.
As documented in the following sections, we are working with Southern States to improve system operation
and maintenance procedures; however, Southern States and Duncklee & Dunham do not agree that a
violation of a permit condition or applicable regulation occurred.
MAILING ADDRESS — POST OFFICE BOX 639 — CARY, NORTH CAROLINA 27512
NORTH CAROLINA BOARD OF EXAMINERS FOR ENGINEERS AND SURVEYORS LICENSE C-3559
NORTH CAROLINA BOARD FOR LICENSING OF GEOLOGISTS LICENSE C-261
NC DEQ REGISTERED ENVIRONMENTAL CONSULTANT NUMBER 00061

Response to Notice of Violation (NOV 2020 PC 0052)
Southern States Fertilizer Plant
Statesville, North Carolina
March 3, 2020
Page 2 of 4
Improvements to System Operations and Maintenance Procedures
To reduce instances of interruption of groundwater transfer to the treatment system, Southern States and
Duncklee & Dunham have implemented the following improvements:
weekly telephone or email communications between Duncklee & Dunham and the facility
manager on the operational status of the treatment system,
weekly completion of a treatment system inspection checklist by facility personnel,
routine reviews and updates of the treatment system Standard Operating Procedures with
Duncklee & Dunham field staff, and training on field procedures related to treatment system
maintenance between Duncklee & Dunham and facility personnel.
Review of Permit Specifications
Upon review of the referenced Permit, the North Carolina Administrative Code, and the North Carolina
General Statutes (NCGS), Southern States and Duncklee & Dunham conclude that no permit or regulatory
violations occurred on November 19 or December 23, 2019.
Based on our review, Southern States did not violate Part II.E.9(b), or any other part of the Permit, as
alleged in the NOV, for the following reasons:
1. The permit authorizes the discharge of wastewater. The term wastewater is synonymous with the
term "effluent" as defined in Part ILA of the Permit:
"Wastewater discharged following all treatment processes from a water pollution control
facility or other point source whether treated or untreated. "
Neither of the two permit violations listed in the NOV involve discharge of effluent, therefore, no
permit violation occurred.
2. The Supplement to Permit Cover Sheet (the Cover Sheet) found in the Permit is a list of
groundwater remediation system components. There is no requirement on the Cover Sheet, or
elsewhere in the Permit, stating that operation of any or all the components is a condition of
compliance with the Permit. Therefore, any instance where any or all components of the
groundwater remediation system fail to operate in a manner that does not result in a violation of
the effluent limitations and monitoring requirements found at Section I.A.(L) is not a violation of
the Permit.
3. The NOV cites Part II.E.9(b) as the applicable violated condition of the Permit. Part II.E.9(b)
requires the permittee to report:
"Any process unit failure, due to known or unknown reasons, that render the facility
incapable of adequate wastewater treatment such as mechanical or electrical failures of
pumps, aerators, compressors, etc. (emphasis added) ".
This permit requirement is not citable as the basis for either of the two permit violations listed
in the NOV for the following reasons:
DUNCKLEE & DUNHAM, P.C.

Response to Notice of Violation (NOV 2020 PC 0052)
Southern States Fertilizer Plant
Statesville, North Carolina
March 3, 2020
Page 3 of 4
i) In the context of the Permit, the word "adequate" as used in Part II.E.9(b) means wastewater
treatment adequate to meet the effluent limitations and monitoring requirements of Part I.A.(1.)
of the Permit. Otherwise, the word "adequate" denigrates from its clear meaning given to it by
the Permit and would instead be given its common meaning as used in everyday language,
leaving it open to any number of interpretations. Once such meaning outside the context of the
Permit is: "adequate means operation of all groundwater remediation system components".
Duncklee & Dunham finds no regulatory or permit requirement to support the assignment of
such a meaning to "adequate".
ii) For Part II.E.9(b) to be citable as the basis for the two permit violations listed in the NOV, the
phrase "that render the facility incapable of adequate wastewater treatment" must be rendered
superfluous, and the permit condition instead read as:
"Any process unit failure, due to known or unknown reasons, such as mechanical or
electrical failures of pumps, aerators, compressors, etc. ".
It is a fundamental tenant of regulatory interpretation that words can neither be added to nor
taken away from a regulatory text, whether the text is a statute, regulation, or permit condition.
Part II.E.9.(b) does not have the meaning assigned to it in the NOV unless it is rewritten by
removing words, conflicting with this fundamental tenant.
4. If the DEQ intends to include periods when the facility is not discharging wastewater for purposes
of arriving at an NOV, then it must also assess these same periods for permit compliance. In such
case, the events cited by the DEQ in the NOV constitute an allowable bypass of the treatment
facilities, as allowed by Part II.C.4.a of the Permit. If the DEQ determines that a compliant bypass
cannot occur if the facility is not discharging wastewater, then no permit violation can occur if the
facility is not discharging wastewater.
5. The DEQ state that it is their policy that the failure of equipment listed in a wastewater permit is
subject to the reporting requirements of Part II.E.9(b), even when there is no violation of the
effluent limitations and monitoring requirements contained in the permit. However, policy cannot
have the force of law unless such policy is (i) contained in the permit, or (ii) issued as a final
administrate rule in accordance with the North Carolina Administrative Procedure Act [North
Carolina General Statutes (NCGS) Chapter 15013].
The issuance of the NOV has no basis in the stated policy of the DEQ because this policy is neither
contained in the permit, nor has it been adopted as an administrative rule in accordance with NCGS Chapter
150B. Additionally, as documented in items I through 4 above, Duncklee & Dunham finds no regulatory
basis to support the enforcement of such a policy.
While Southern States has implemented improvements to ensure that unplanned interruption of
groundwater transfer to the treatment system is minimized, these actions are neither direct nor tacit
agreement with the DEQ that a violation occurred, and Southern States may choose to engage the DEQ on
this issue in the future.
DUNCKLEE & DUNHAM, P.C.

Response to Notice of Violation (NOV 2020 PC 0052)
Southern States Fertilizer Plant
Statesville, North Carolina
March 3, 2020
Page 4 of 4
Based on the implementation of the improved maintenance procedures and our understanding of the Permit
specifications, we do not believe additional corrective actions are necessary and will continue normal
treatment system operations in accordance with the permit.
Please contact Jayson Kilcoyne at iayson dunckleedunham.com or [phone], ext. 108, if you have
any questions or require additional information.
Sincerely,
Duncklee & Dunham, P.C.
kKilcoyneanager II
PC-1 / 992461
Senior Peer Review:
6&asS. Dunham, P.G.
Senior Geologist / Vice President
Christopher J. ag J.E.
Senior Engineer
ec: Jennifer Bunting — Southern States Cooperative, Inc.
NCDEQ-Central Files
\\Dddc\Project Files\Southem States\Statesville Fertilizer - 50200\Forms-Corresp\NOV_NCDEQ Corres\2020\NOV Response-20164.docx
i DUNCKLEE & DUNHAM, P.C.