NC0000272_Approval Correction_20180131

Memo
Date: January 31, 2018
Re: EPA's Numeric Interpretation (50) of North Carolina's Narrative
Water Quality Standard for Color
Introduction
Since 1988, the Canton pulp and paper mill ("Canton Mill") has operated with a variance from
North Carolina's narrative water quality standard for color. The United States Environmental
Protection Agency ("EPA"), in the early 1980's, "interpreted" North Carolina's narrative standard to
require an in stream limit of 50 platinum cobalt units ("pcu") of true color per liter of water for the
Pigeon River in North Carolina) Since the effluent discharge from the Canton Mill could not comply
with a 50 pcu standard, the Canton Mill applied for and received from the NPDES Committee of the
North Carolina Environmental Management Commission ("EMC"), a variance from North Carolina's
water quality standard for color in 1988. The color variance has remained in effect since 1988, with
revisions in 1997, 2001 and 2010.
Due to substantial reductions in effluent color2 and continued improvement in aquatic life,
Evergreen Packaging believes that color, at current levels in the Pigeon River, complies with North
Carolina's narrative water quality standard, and the 50 color unit interpretation is no longer valid or
necessary.
This memorandum discusses the history and basis of the 50 unit color standard. The
memorandum also presents an argument that:
1) North Carolina has and has had a narrative water quality standard for color;
2) The 50 pcu interpretation of the standard was never adopted or approved as a standard by
EPA, North Carolina or Tennessee;
3) The fmal decision in the litigation arising out of EPA's assumption of permitting authority for
the Canton Mill NPDES Permit in the 1980's did not approve the 50 pcu standard; and
1 The Fact Sheet for the Canton Mill NPDES Permit, dated Nov. 30, 1987, beginning on page 5, discusses and
recaps EPA's interpretation of NC's narrative standard. The discussion in the Fact Sheet indicates that EPA also
interpreted Tennessee's narrative standard to be 50 for the Pigeon River in Tennessee. Tennessee does not agree that
its narrative color standard has been "interpreted" to be 50.
2 Since 1988, the Canton Mill has reduced effluent color from approximately 380,000 lbs per day to approximately
36,000 lbs per day — a reduction of more than 90%.

4) Even if 50 were an appropriate "interpretation" of the standard in the 1980's, the interpretation
is no longer appropriate or scientifically defensible.
Background and History
The NPDES Permit for the Canton Mill in Haywood County, North Carolina (then owned by
Champion International Corporation) expired on June 30, 1981. The permit, under which the Canton
Mill had been operating, included no effluent limit for color. North Carolina took no action to renew
the permit although the Canton Mill continued to operate. The state of Tennessee and third parties in
Tennessee lobbied North Carolina to take action and provided information to North Carolina and EPA
tending to show that effluent from the Canton Mill was causing water quality violations in Tennessee.
North Carolina and Tennessee met in the first part of 1983 to discuss terms for a renewed NPDES
permit. When Tennessee and NC could not agree, EPA convened a meeting at Region IV in Atlanta
in July, 1983.
Based on information available at the time, EPA determined that a 50 platinum cobalt unit
standard for color was necessary to protect fish and aquatic life and aesthetic water quality in the
Pigeon River.3 EPA relied on the 1968 and 1976 Water Quality Criteria books, a 1968 report on the
Pigeon River by the Federal Water Pollution Control Administration, a 1951 report on the Pigeon
River and a 1983 study by the National Council for Air and Stream Improvement ("NCASI") on color
perception. The NCASI study found that 90% of the observers in the study were able to detect color
increases of 40 units or more. EPA added 40 color units to 10 (what it believed to be approximate
background true color) and came up with the interpretation of 50.4
EPA did not go through any formal rule making process regarding the 50 unit true color
standard. No public hearing was held.
North Carolina's narrative water quality standard is set forth at Title 15A North Carolina
Administrative Code, 2B.0211 (fi (12).
Color is limited to "... 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 offish, aesthetic
quality or impair the waters for any designated uses. `
In October, 1984, North Carolina issued a draft NPDES Permit for the Canton Mill. The
permit did not include a requirement that the Mill's discharge comply with any color standard,
narrative or numeric. The permit required Champion to evaluate an ultrafiltration technology and
utilize it to remove 75% of the effluent color if the technology were technically feasible. A public
hearing on the draft NPDES Permit was held in January, 1985. EPA and Tennessee filed formal
objections to the Draft NPDES Permit.
s See Champion International Corporation v. United States Environmental Protection Agency, 648 F. Supp. 1390
(W.D.N.C.) 1986.
a This information was provided by Mike McGhee, former Water Quality Section Chief at EPA Region IV.
5 The narrative standard, as adopted initially, did not include an aesthetic component. The standard was amended to
include such a component.
2

After the public hearing, North Carolina amended its narrative water quality standard to
include an aesthetic criterion for the first time. EPA asked North Carolina to include a provision in the
NPDES permit requiring the Canton Mill to meet the amended standard.
Approximately one month after the public hearing, North Carolina issued the final NPDES
Permit. The final permit was the same as the draft except it included language authorizing the
Environmental Management Commission to require additional measures if the ultrafiltration
technology did not remove 75% of the effluent color.6 North Carolina did not notify Tennessee that
North Carolina was rejecting Tennessee's recommendations about the permit as required by Section
402(b) (5) of the Clean Water Act. North Carolina also failed to give EPA an opportunity to comment
on the final permit as required by 40 CFR 1243.44.'
In July, 1985, EPA notified North Carolina that the final NPDES Permit was not a valid
permit due to the procedural flaws. In August of 1985, EPA sent North Carolina a formal written
objection. The written objections were:
1) Failure to assure compliance with the NC narrative standard because the permit provided no
basis for how NC "... interprets, applies or enforces its narrative color standards (aesthetic
quality)' ;
2) Failed to require the Canton Mill to comply with either NC or Tennessee standard; and
3) Failed to assure compliance with the Tennessee standard because it did not require that a 50
color unit standard would be met at the state line when effluent color was in excess of 800
pcu.g
The Litigation
In November, 1985, EPA notified Champion and North Carolina that EPA had assumed
permitting authority for the Champion Mill. Champion sued EPA, alleging that EPA's actions in
taking over the permitting process and requiring Champion to meet a 50 color unit standard were
arbitrary and capricious.' The United States Di�t,;�t Cn„r�fnr the western District of North Carolina
granted summary judgment in favor of EPA, finding that EPA had not acted arbitrarily and
capriciously in assuming permitting authority and by including the requirement in the Permit that the
Canton Mill meet a 50 pcu color limit in the Pigeon River.
In the litigation, Champion and North Carolina argued that the requirement to meet a 50 pcu
standard was arbitrary and capricious because Tennessee had never adopted a water quality standard
of 50, or any "interpretation of its narrative standard to be 50." North Carolina's specific legal
objection was that the interpretation of 50 had not been through the formal approval process described
in Section 303 of the Clean Water Act.
6 Effluent color concentration in 1985 was approximately 700-800 pcu and ranged as high as 1200 pcu. Today it is
approximately 156 pcu.
'See Champion International, supra.
a Ibid.
9 North Carolina and Tennessee intervened in the litigation.
3

The District Court held that EPA did not act arbitrad I V and GapriGio coming up with the
50 pcu standard. The Court's opinion referenced a number of repQ11s in the record supporting the 50
pcu limit. Those reports were: y
1) Water Quality Criteria, National Technical Advisory Committee to the Secretary of the
Interior (1968).
2) "Report on the Pollution of the Interstate Waters of the Pigeon River" (Tennessee -North
Carolina), Federal Water Pollution Control Administration (Feb. 1968).
3) Water Quality Criteria, U.S. EPA (1976).
4) Churchill, M., Natural Reduction of Papermill Color in Streams, "Sewage & Industrial
Wastes", 661 (Vol. 23, No. 5, May 1951).
5) The 1983 NCASI Technical Bulletin on color perception.
In fact, there is no specific mention in the reports of a 50 pcu standard. There is no finding or
conclusion in the various reports that a 50 pcu standard is necessary to protect aquatic life or
aesthetics.
The 1976 Water Quality Criteria Book says the following with respect to the aesthetic
component of color; "Because of the extreme variations in the natural background amounts of
color it is meaningless to attempt numerical limits The aesthetic attributes of water depend on
one's appreciation of the setting. " Water Quality Criteria Book 1976, p. 102. The 1976 Book says
the following with respect to aquatic life: "The effects of color in water on aquatic life principally
are to reduce light penetration and thereby generally reduce photosynthesis by phytoplankton and
to restrict the zone for vascular plant growth." The only numeric standard referenced in the 1976
Water Quality Criteria Book is 75 platinum cobalt units, recommended as the maximum for drinking
water.
There are two references to color in the 1968 Water Quality Criteria Book. The first, on page
34, reads: "For effective photosynthetic production of oxygen, it is required that that 10% of the
incident light reach the bottom of any desired photosynthetic zone in which adequate dissolved
oxygen concentrations are to be maintained " And the second, on page 48: "Color in excess of 50
platinum cobalt units may limit photosynthesis and may have a deleterious effect upon aquatic life,
particularly phytoplankton and benthos "
The Report on the Pollution of the Interstate Waters on the Pigeon River by the Federal Water
Pollution Control Administration, February 1968, includes information about levels of color in the
Pigeon River at various locations, but does not include any recommendation for an instream standard
of 50 platinum cobalt units. M. Churchill's, "Natural Reduction of Papermill Color in Streams," an
article in Sewage & Industrial Wastes, 661 (Vol. 23, No. 5, May 1951) was a study designed to see if
high colors discharged into streams by paper mills were reduced downstream by dilution from other
sources or if there were some reduction in color due to bleaching or other processes. i o
"Churchill, supra, p.661
:d

The Court also referred to the NCASI study in which a color change of 40 color units was
noted by 90% of the observers) t Finally, the Court also noted that EPA had decided in the 1970's to
regulate color on a case -by -case basis.12
Champion appealed the decision of the District Court to the 4t` Circuit Court of Appeals. The
0 Circuit determined that the District Court had jurisdiction to hear the case to decide whether or not
EPA had acted arbitrarily and capriciously in assuming permitting authority from North Carolina.
The 4 h Circuit further held that once the District Court determined EPA had not acted arbitrarily and
capriciously in assuming permitting authority, the District Court should have dismissed the case. So
the 4t' Circuit remanded the case to the District Court with instructions that the judgment of the
District Court be vacated and the case be dismissed for lack of subject matter jurisdiction.13
The 1989 NPDES Permit for the Canton Mill
Following the decision of the District Court in 1986, EPA continued with the development of
the NPDES Permit for the Canton Mill. The draft permit developed by EPA included a requirement
to meet a 50 true color unit standard. The Fact Sheet for the permit, dated November 30, 1987, says
the following with respect to color
The limitation for color is based upon meeting the North
Carolina Water Quality Standard for color. The requirement to meet
an instream concentration for apparent color of 50 Mg/7 Platinum
Cobalt units is based on EPA's interpretation of the North Carolina
narrative standard for color. EPA requested that North Carolina
provide an interpretation of this standard on May 13, 1986 North
Carolina failed to provide an adequate interpretation to assure
compliance with the standards. In the December 1, 1986
Memorandum of Decision of the Federal District Court for the
Western District of North Carolina (Champion vs. EPA), the Court
upheld EPA's authority to object to the North Carolina permit on the
grounds that it failed to comply with the requirements of the Clean
Water Act. At this point, it became necessary for EPA to interpret the
standard in order to develop federal permit limits for color that would
meet North Carolina and Tennessee law.
The basis for EPA's selection of a value of 50 color units for
apparent color as a numerical interpretation of the North Carolina
color standard is similar to EPA's rationale for selecting 50 color
units for the Pigeon River in Tennessee based on interpretation of the
State of Tennessee Water Quality Standards. The narrative criterion
u The NCASI study does not say whether or not the observers found an increase of 40 true color units to be
acceptable, just that a color increase of that magnitude was observable to 90% of those in the study.
12 Champion International, supra.
13 Champion International Corporation v. United States Environmental Protection Agency, 850 F. 2d. 182 (411 Cir.
1988).
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for the color in the water quality standards for North Carolina and
Tennessee provide the same level of protection for aesthetic quality.
Selection of the SO color unit value was based on information
contained in "Water Quality Criteria" (1968, Federal Water Pollution
Control Administration), Quality Criteria for Water (July 1976, U.S.
EPA) and "Report on the Pollution of the Interstate Waters of the
Pigeon River (February 1968, Federal Water Pollution Control
Administration).14
The Fact Sheet and NPDES Permit were developed after the District Court opinion but before
the Court of Appeals decision vacating and remanding the decision of the District Court. The Fact
Sheet makes no reference to the NCASI study.
The Color Variance
Because Champion could not meet a 50 color unit instream standard in the Pigeon River,
Champion applied for and received a variance from the 50 pcu standard from the NPDES Committee
of the North Carolina Environmental Management Commission ("EMC"). The variance required the
Canton Mill to meet a 50 pcu standard at the North Carolina Tennessee State line." The color
variance was incorporated into the 1989 NPDES Permit which was not finalized until 1992 due to
administrative challenges by the State of Tennessee and third parties in Tennessee.
In 1990, Champion undertook a major modernization of the Canton Mill. The mill
modernization re -configured the Canton Mill as an oxygen delignification, chlorine dioxide
substitution (OD-100) bleach mill. Water usage was reduced from approximately 45 million gallons
per day to approximately 29 million gallons per day. The modernization resulted in substantial
reductions in effluent color.
The color variance was revised in 1997, and the NPDES Permit was reissued to Champion,
pursuant to a Settlement Agreement between Tennessee, North Carolina, EPA and Champion. The
revised variance (the "1997 Variance") required the Canton Mill to reduce effluent color to 60,000 lbs
per day by December 1, 1998 and to a range between 48,000 and 52,000 Ibs per day by 2000. The
same requirements were in the 1997 NPDES Permit. The Canton Mill achieved the targeted
reductions in color. The 1997 Variance required the Canton Mill to meet 50 color units at the state
line and 50 Color units at Hepco when flows in the Pigeon River exceeded 330 feet per second at the
Hepco gauging station.
The 1997 Settlement Agreement also established a Technology Review Workgroup (the
"TRW"), headed by EPA and composed of representatives from EPA, Tennessee and North Carolina.
The role of the TRW was to review technologies and processes to prevent and reduce color and to
receive and review reports on color reduction.
is EPA Fact Sheet for NPDES Permit NC0000272 / Champion International Corporation, Nov. 30, 1987. The Fact
Sheet does not mention the NCASI study.
is Compliance with 50 at the State line was determined by a model using effluent concentration and river flow. The
1988 Color Variance and subsequent revisions in 1997, 2001 and 2010 include a provision that any modification or
termination of the variance is subject to the public hearing process in G.S. 143-215.3(e).
E.

In May, 1999, Champion International sold the Canton Mill to Blue Ridge Paper Products Inc.
('Blue Ridge Paper"). The NPDES Permit and variance were transferred to Blue Ridge Paper.
The color variance was revised again in 2001. The TRW, utilizing the recommendations in a
report on the bleaching process at the Canton Mill, commissioned by Blue Ridge Paper and a
consortium of environmental groups, recommended further reductions in effluent color from
approximately 48,000 lbs. per day to 39,000 lbs per day. These limits were included in the 2001
Variance and NPDES Permit. The 2001 Variance required the Canton Mill to comply with 50 color
units at certain flows at Hepco and with 50 color units at the Fibreville Bridge under certain flow
conditions.
The 2001 NPDES Permit required Blue Ridge Paper to submit, with its NPDES Permit
renewal application, an evaluation of the feasibility of complying with North Carolina's narrative
water quality standard for color.16 Blue Ridge Paper submitted this evaluation in May, 2006 as part of
its permit renewal application. The evaluation concluded that the company was complying with the
narrative water quality standard for color. Blue Ridge Paper also submitted an updated report on the
bleaching process at the Canton Mill and a biological assessment of the Pigeon River in North
Carolina and Tennessee.
The TRW did not meet until 2007. In 2008, the TRW recommended that the Canton Mill
evaluate and implement, if technically and economically feasible, certain technologies and that the
Canton Mill reduce color to a range between 32,000 and 37,000 lbs per day (annual average) over the
term of the permit.
In 2009, North Carolina issued a draft NPDES Permit to the Canton Mill which included the
TRW recommendation but without a color variance. EPA objected to the issuance of the draft permit
without a color variance. In its objection letter, EPA noted, inter alia, that North Carolina had not
followed the administrative process for removal of the variance and made specific reference to the
public hearing process in G.S. 143-215.3(e).17 The EPA letter also included as a basis for objection
that there was not"... a defensible scientific rationale for [the] determination..." that North Carolina's
narrative water quality standard would be met."
The EPA objection letter included a recommendation that the Canton Mill be required to fund
and do an independent study of color levels in the Pigeon River.19
The color variance was revised again in July, 2010. The 2010 variance includes language
stating that because the Canton Mill cannot demonstrate compliance with 50 color units at the
Fibreville Bridge, the company has to have a variance from the water quality standard for color.20
North Carolina has a Narrative Water Quality Standard for Color
16 NPDES Permit NC 000272, 2001, Section (A)(5)
17 Letter from Jim Giattina, EPA Region IV, to Colleen Sullins NCDENR, February 22, 2010, page 2-3
'$ Ibid., p.3
19 Ibid, p . 5
2° 2010 Color Variance, paragraph 27, p 10.
7

North Carolina has a narrative water quality standard for color. EPA's numeric interpretation
of that standard was never formally adopted or approved as a water quality standard by EPA or by
North Carolina as required under Section 303 of the Clean Water Act. EPA's assertion that it did a
similar interpretation for Tennessee is refuted by Tennessee's own contentions. None of the reports
upon which EPA relied recommends a 50 unit color standard for the protection of aquatic life or
aesthetics. The assertion by EPA that the 50 pcu standard was approved by the litigation between
Champion International and EPA in the 1980's is contradicted by the clear language of the Court of
Appeals decision which vacated and remanded the District Court decision.
A 50 PCU Standard is no Longer Necessary or Appropriate to Protect Water Quality
EPA's derivation of 50 as the numeric interpretation of the color standard was not arbitrary
and capricious based on what was known about color in the Pigeon River in the 1980's. Much more is
known about the water quality in the Pigeon River in 2018. Since the 1986 Court decision, the
Canton Mill has reduced effluent color by 90%. Four balanced and indigenous population reports
have been conducted on the Pigeon River in North Carolina and Tennessee. The aquatic community
has shown marked improvement since the 1980's, and continues to improve. The most recent report,
concluded in 2013, found a balanced and indigenous aquatic community in the Pigeon River, both
above and below the Canton Mill. Since 2006, Tennessee and North Carolina, with the assistance of
Blue Ridge Paper and Evergreen Packaging, have restored extirpated fish species in the Tennessee
and North Carolina reaches of the river. Color at current levels in the Pigeon River is having no
adverse effect on the biology of the river. There are no public health issues with the river. There are
no fish consumption advisories. Color is not interfering with secondary recreation or any other use of
the river. A 50 unit standard is not necessary or appropriate for the protection of aquatic life, public
health, secondary recreation or aesthetics.
The Comprehensive Assessment and Analysis of Color (AquAeTer 2013), relying on more
than 22,000 data points for color, demonstrated that color, at current levels, is within the range of what
would be expected to occur naturally in the river. Color in the Pigeon River is similar to and in some
cases, less than, color found in similar rivers in Tennessee including the French Broad River.
Color, at current levels in the Pigeon River, clearly complies with North Carolina's narrative
water quality standard for color. There is no scientific or regulatory basis for continuing to rely on
EPA's "interpretation," developed more than thirty years ago. The studies on which EPA based its
interpretation are now more than forty years old.
9