NC0089109_Comments_20200611

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone]
48 PATTON AVENUE, SUITE 304
ASHEVILLE. NC 28801-3321
December 30, 2019
Via First Class U.S. Mail and Electronic Mail
Sergei Chernikov
NCDEQ/Division of Water Resources
Water Quality Permitting Section - NPDES
1617 Mail Service Center
Raleigh, NC 27699-1617
S ergei. Chernikovkncdetin gov
Facsimile 828-258-2024
Re: American Zinc Products, LLC, Major Modification Request, NPDES Permit
#NC0089109
Dear Mr. Chernikov,
On behalf of MountainTrue and the Broad Riverkeeper, we submit the following
comments on the draft major modification of American Zinc Products, LLC's, permit to
discharge polluted wastewater into the Broad River. MountainTrue is a nonprofit organization
dedicated to protecting streams, rivers, and groundwater from contamination. The Broad
Riverkeeper, a program of MountainTrue, focuses on the Broad River watershed. Both
MountainTrue and the Broad Riverkeeper advocate for cleaner water, awareness and education
of the Broad River, improved access, and broadened recreational opportunities within the Broad
River Basin. MountainTrue's members use the Broad River for recreation, business, or
educational purposes.
Since 2014 American Zinc Products (AZP)1 has operated a zinc recycling facility that
discharges polluted wastewater into the Broad River. The two prior pollution discharge permits
for the facility imposed limits on cadmium discharges based on the potential to violate the state's
water quality standard for cadmium. Since that time, the facility has repeatedly exceeded those
limits, resulting in excessively high discharges of cadmium into the Broad River and issuance of
Notices of Violations:
' The original NPDES discharge permit was issued to Horsehead Metal Products, Inc. Since bankruptcy proceedings
in 2016 of parent company Horsehead Holding Corp., private company American Zinc Recycling has owned the
facility and sought renewal permits under the name of a new entity, American Zinc Products, LLC. For ease of
reference these comments only refer to the current entity AZP, successor in interest.
2 It is unclear that there is a valid basis to treat AZP as a minor industrial discharger, as opposed to a major
discharger, based on the "a high potential for violation of water quality standards." See, e.g., NPDES Memorandum
of Agreement Between N.C. and EPA Region 4, at 13-14 (Oct. 15, 2007).
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC
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• Jun 03, 2014 — 37% cadmium exceedance (NOV-2014-LV-0544)
• Jan 31, 2015 — 42% cadmium exceedance (NOV-2015-LV-0255)
• Feb 28, 2015 — 96% cadmium exceedance (NOV-2015-LV-0312)
• Apr 25, 2015 — Pipe failure in Area 200, 18,624 gallons released, 4,105 gallons left
containment area, cadmium concentration in liquid 0.277 g/1(-7.8 lbs for escaped liquid)
• Aug 31, 2015 — 5% cadmium exceedance (NOV-2016-LV-0030)
• Sep 05, 2015 — Low pH solution containing cadmium, lead, chromium and zinc
discharged to SW basin, causing polluted water discharge from basin until Sept. 12, 2015
(NOV-2015-DV-0188, Docket #2016-006)
North Carolina's cadmium standard became more stringent in 2015.' AZP's operations
idled in 2016. Most recently, in April 2019, the Division of Water Resources (DWR) granted
AZP another discharge permit expiring in 2023. That permit allowed over seven years, or until
the end of 2026, to meet the cadmium standard. Despite that the facility has a history of
excessively high cadmium discharges, DWR apparently removed any interim cadmium limit —
allowing unlimited discharges and assuring exceedances of state water quality standards will
continue.
Now, DWR proposes to further relax the permit: like the April 2019 permit, the
extension would allow unlimited discharges of cadmium, but now for even longer — until the end
of 2027. DWR allowed the request based on information from AZP regarding a fire at the
facility. However, that alone is inadequate to justify extending a compliance schedule where, as
here, the current compliance schedule and permit limits already violate the minimums of federal
and state law.
To comply with anti -backsliding requirements of the Clean Water Act (CWA), DWR
must instead modify the permit to reinstate limits for cadmium from the previous permit, to
apply in the interim and during the course of the compliance schedule — which presently allows
unlimited cadmium discharges to a discharger that previously was subject to less stringent
cadmium limits and received multiple NOVs. DWR should further reopen the permit to assess
the technology -based limitations, based on existing technology, and to derive a standard no less
stringent than the last permit. Only then can DWR properly re-evaluate whether the current
compliance schedule, much less any extension of that schedule, achieves compliance with water
quality based effluent limitations as soon as possible.4
In the absence of these limits and additional analyses, DWR must deny the extension
request because it fails the basic task of assuring compliance with state water quality standards.
State and federal law prohibit issuance of National Pollutant Discharge Elimination System
(NPDES) permits that contribute to violations of water quality standards. "No permit may be
issued when the imposition of conditions cannot reasonably ensure compliance with applicable
3 North Carolina's revisions were effective in 2015 and approved by EPA in 2016.See
https://files.nc.gov/ncdeq/documents/files/ResponseLettgL.pdf
4 See, e.g., E.P.A., Hanlon Memorandum on Compliance Schedules for Water Quality -Based Effluent Limitations in
NPDES Permits (May 10, 2007).
2

water quality standards and regulations of all affected states." 15A N.C. Admin. Code 2H.0112
(c) (final action on NPDES permit applications); see 33 U.S.C. § 131l(b)(1)(C).
A. The lack of interim limits violates anti -backsliding, and the extension would repeat
this error.
The objective of the CWA is to "restore and maintain the chemical, physical, and
biological integrity of the nation's waters." 33 U.S.C. § 1251(a). The CWA generally prohibits
discharges to waterways; the NPDES program is an exception to that prohibition.5 DWR issues
NPDES permits under the federal Clean Water Act, 33 U.S.0 §§ 1251, et seq., pursuant to
delegated authority. Therefore, the state's authority to implement the NPDES program is
governed by the CWA, federal regulations, and state water quality statutes and rules.
The Clean Water Act's NPDES permitting program is structured around progressive
improvements in pollution control over time to meet Congress's "national goal" of eliminating
discharges of pollutants to waters of the United States. See 33 U.S.C. § 1251(a)(1). For this
reason, the Act includes requirements to ensure that polluters do not backslide. To ensure this,
the limits and conditions imposed new or modified NPDES permits for a facility are at least as
stringent as those in previous permits.6
The previous permit for this facility included limits for cadmium based on the reasonable
potential to violate then -relevant state water quality standards: Total Cadmium 0.27mg/L (MA)
1.66 mg/L (DM). See 2015 NPDES Permit A. (L). In renewing the facility's permit in April
2019, DWR determined the state's revised cadmium standard would require more stringent
limits. DWR allowed seven years to achieve this more stringent limit; however, DWR did not
stop there, it also removed any cadmium limit in the interim.
The CWA prohibits this backsliding of cadmium limits. Extending the compliance
schedule further exacerbates this error, by reducing the protections of the current permit, which
already run afoul of anti -backsliding requirements. At a minimum, the previous, less stringent
limits derived from a reasonable potential to violate water quality standards must be carried into
the existing permit (and now this modification). In the permit documents, DWR cites no
authority that would allow a different result. Extending the current timeframe for unlimited
cadmium discharges as proposed in the current modification only deepens the legal error
committed in the April 2019 permit and must be denied.
The record before DWR confirms that the same processes used in the previous permit
cycle for prior cadmium reductions will in fact continue to be used by AZP. The application for
5 33 U.S.C. § 1311(a); see also N.C. Gen. Stat. 143-215.1(a)(1); 33 U.S.C. § 1342.
6 33 U.S.C. § 1342(o)(3)("In no event may such a permit to discharge into waters be renewed, reissued, or modified
to contain a less stringent effluent limitation if the implementation of such limitation would result in a violation of a
water quality standard ...."); see also 40 C.F.R. § 122.44(1)(1) ("[W]hen a permit is renewed or reissued, interim
effluent limitations, standards or conditions must be at least as stringent as the final effluent limitations, standards,
or conditions in the previous permit ....") (emphasis added). None of the very narrow exceptions to the anti -
backsliding requirements apply here, where the prior, less stringent limits were based on water quality -based
effluent limitations and unlimited discharges can be expected to violate cadmium standards.

the existing permit was clear that the facility's planned operations will continue to capture
cadmium "in process," relying on prior experience with managing cadmium at this facility.
Upon realizing existing process would not achieve more stringent state standards, AZP
represented that "[d]esign, installation and operation of additional process technologies will
most likely be necessary to capture additional Cd and achieve the expected Cd limits." AZP
modification request (Dev. 18, 2018) (emphasis added). AZP represents that process changes
developed in the last permit cycle to achieve prior cadmium limits are part of current
productions: "Evaluation of these technologies during the initial operating phase and subsequent
design reviews, led to the development of the following permanent process changes, which are
included in the restart project scope." Id. Importantly, AZP does not commit that it will in fact
need additional technologies to achieve compliance with current state water quality law, rather
that it "is possible that further refinements of the water process system may be required to
ultimately achieve compliance with effluent discharge limits. Without actual operational data, it
will be impossible to determine what, if any, modifications to our process will be necessary."
Although AZP represents existing processes include cadmium removal consistent with
prior processing, AZP also asked that DWR completely remove the interim limit as "the most
appropriate approach" in its view. Id. DWR obliged the request, apparently without regard to
anti -backsliding prohibition, and removed interim limits from the permit. However, it was
unclear from the April 2019 NPDES permit fact sheet that cadmium limits would effectively be
weakened for a period exceeding seven years — and beyond the expiration of the current permit.
In response to the question: "Are any effluent limitations less stringent than previous permit,"
the April 2019 fact sheet checks the box "no." The permit that issued appears to allow unlimited
cadmium discharges until 2027 in a water quality limited stream segment? — despite the facility's
representation that processes developed in the last permit cycle will stay in place. This is a
mistaken interpretation of law, and the permit must be modified to correct the technical mistake
to reinstate the previous limit in the interim until the more stringent limitations become
effective.8 Certainly, DWR cannot extend the mistaken interpretation of law for another year as
proposed through this modification.
Finally, even if anti -backsliding under federal law hypothetically was not a backstop on
removing prior cadmium limits or imposing limits at least as stringent, North Carolina law
prohibits this result on a separate basis. AZP's permit application noted higher expected
wastewater discharges due to the increased volume of water used in "effective water balance."
Under state law, the state must prevent "any significant increase in pollution of the waters of the
State from any new or enlarged sources." N.C. Gen. Stat. Ann. § 143-215.1 (b). This permit
does the opposite, allowing an expanded discharge that, coupled with removal of prior limits for
7 The public notice for the April 2019 permit renewal correctly notes that "total cadmium is water quality
limited. This discharge may affect future allocations in this portion of the Broad River Basin."
hlWs://deq.nc.gov/news/events/american-zinc-products-llc-permit-nc00089109 . The public notice for the proposed
modification omits this necessary disclosure. Compare 15A NCAC 2B.0201 (c)(2) with
https: //deq.nc. gov/news/events/american-zinc-products-llc-permit-nc0089109-0 .
8 Causes for permit modification include, to "correct technical mistakes or mistaken interpretations of law made in
developing the permit conditions." NPDES Permit Writers Manual at 227.
hlt 2s://www.epa.aov/sites/Troduction/files/2015-09/documents/Twm 2010.pdf
El

the entire period of this permit, allows a significant increase in pollution for seven years. The
extension repeats this error for another year and must be denied on this independent basis.
B. DWR must add required technology -based effluent limitations before evaluating an
extension of WQBELs.
Before granting additional time to achieve compliance with a WQBEL, DWR must first
evaluate and require use of technologies presently available to reduce cadmium discharges — a
step it skipped for the April 2019 permit. At a minimum, this includes technologies in the
current process (described above), which must be reflected as an interim limit on this
independent basis.
NPDES permits control pollution by setting limits based on the technology available to
treat pollutants ("technology -based effluent limits") and any additional limits necessary to
protect water quality ("water quality -based effluent limits"). 33 U.S.C. §§ 1311(b), 1314(b); 40
C.F.R. § 122.44(a)(1), (d). Every NPDES permit "shall" contain technology -based effluent
limits ("TBELs"), which set the minimum level of control required in every NPDES permit. 40
C.F.R. § 125.3(a).
These technology -based limits are set without regard to, and separate from, water quality -
based effluent limitations (WQBELs). NPDES Permit Writers' Manual at 5-1. These limits "are
developed independently of the potential impact of a discharge on the receiving water, which is
addressed through water quality standards and water quality based effluent limitations." A
discharger must implement technology -based standards, even if doing so goes beyond the level
necessary to meet water quality standards. Id. And, conversely, if technology -based standards
are insufficient to meet water quality standards, then dischargers must do whatever is necessary
to satisfy the water quality standards. Id. DWR may issue an NPDES permit only if the permit
assures compliance with all technology -based and water quality -based effluent limits. 33 U.S.C.
§ 1342(a)(1)(A); 40 C.F.R. § 122.43(a).
Technology -based permit limits are derived from one of two sources: (1) national effluent
limitation guidelines (ELGs) issued by EPA for various industries, 33 U.S.C. § 1314(b), or —
relevant here — (2) case -by -case determinations using the "best professional judgment" (BPJ) of
permit writers, when EPA has not issued an ELG for an industry. See 33 U.S.C. §
1342(a)(1)(B); 40 C.F.R. § 125.3(c)(2). In addition to CWA regulations, North Carolina rules
also require technology -based limits, and in the absence of a promulgated ELG, direct staff to
calculate a limit using other available information. 15A N.C. Admin. Code 02B .0406 (e).
Here, DWR applied no TBELs in developing AZP's effluent limits. The April 2019 fact
sheet indicates that DWR simply assumed, mistakenly, that TBELs were not required because
"there are no effluent guidelines for Zinc recycling facilities". April 2019 Fact Sheet at 1.
Neither federal nor state law allows room for this option.
Instead, where EPA has not issued effluent limitation guidelines for an industry, TBEL
limits here derive from the "best professional judgment" of the permit writer. See 33 U.S.C. §
1342(a)(1)(B); 40 C.F.R. § 125.3(c)(2); 15A N.C. Admin. Code 02B .0406 (e). DWR therefore
R

must, at a minimum, go through proper steps to develop TBELs for cadmium before it evaluates
WQBELs, and much less an extension of WQBEL compliance. Furthermore, DWR should
correct its mistaken interpretation of law and develop TBELs using BPJ for the same pollutants
that underwent a reasonable potential analysis (RPA): arsenic, cadmium, chlorides, chromium,
copper, fluoride, lead, nickel, zinc, tin, and antimony. In so doing, the available technologies
used to achieve prior WQBELs for chromium, fluoride, and lead, must be carried into the
modified permit as TBELs, even if not compelled by reasonable potential analysis. See NPDES
Permit Writers' Manual at 5-1.
In the absence of application of TBELs, DWR cannot grant the requested modification to
extend compliance with WQBELs. Instead DWR should add limits implementing technology -
based effluent limits, and the existence and prior use of processes at this facility to reduce
discharges for several pollutants, demonstrates such reductions are available.
C. The schedule of compliance exceeds DWR's authority.
EPA approved North Carolina revised cadmium standard in April 2016.9 To the extent
DWR may allow schedules of compliance for private industrial dischargers to meet state water
quality standards through WQBELs, DWR's authority is not unlimited.
DWR's approval of a compliance schedule to meet state water quality standards, which
are in turn approved by EPA, must meet minimum requirements of the CWA and state law.
Regulations implementing the CWA require a compliance schedule, for example, to impose "an
enforceable sequence of interim requirements" leading to compliance. 40 C.F.R. § 122.2.
Compliance must be achieved "as soon as possible." 40 C.F.R. § 122.47(a), see also 40 C.F.R. §
123.25 (requiring permitting authorities to administer delegated state programs in conformance
with this and other specified regulatory provisions). EPA's guidance to permit writers reinforces
that schedules of compliance to meet state water quality standards must meet certain minimum
criteria. See NPDES writers manual 9.1.3.10 Echoing the regulatory requirements, permit
writers must "[j]ustify and demonstrate that compliance with the final WQBEL is required as
soon as possible." See id. Furthermore, EPA guidance to regulators provides eleven principles to
assess whether a compliance schedule for achieving a water quality -based effluent limitation is
consistent with the CWA and its implementing regulations." This too repeats the responsibility
of state regulators to make sure, and document, that the schedule is justified and requires
compliance "as soon as possible."
Neither the fact sheet for the permit renewal, nor for the modified permit, evaluate
compliance with these principles, much less contain the necessary determination that the
schedule achieves compliance "as soon as possible." The original determination merely notes
that the schedule was "discussed" and "negotiated" without elucidating the necessity of the 90-
month schedule, stating: the "Division discussed the schedule with the applicant and negotiated a
9 See https:Hfiles.nc.gov/ncdeq/documents/files/ResponseLettgL.pdf
io Available at https://www.ppa.gov/sites/production/files/2015-09/documents/pwm_2010.pdf
"See htt2s://www3.epa.goy/npdes/pubs/memo_ complianceschedules_may07.pdf
31

reduced compliance schedule of 7.5 years." April 2019 Fact Sheet at 2. The fact sheet for the
proposed modification likewise assumes that following the facility fire, "all the milestones in the
compliance scheduled must be updated," but again, DWR omits a necessary finding that the
underlying schedule is justified, based on the administrative record, or that it achieves
compliance as soon as possible. Before approving any compliance schedule, DWR must justify
and demonstrate that compliance with the final WQBEL is being attained as soon as possible.
D. Conclusion
The draft permit modification is inconsistent with the requirements of North Carolina and
federal law for the reasons described above. We ask for the draft modification to be withdrawn
and the extension denied, and for the permit to be rewritten and modified to correct the legal
deficiencies we identify, to protect water quality in the Broad River and the public interest.
Please keep us informed of any additional developments on this matter, including notice of any
agency action related to permit issuance.
Cc: via email only
Linda Culpepper, DEQ
Molly Davis, EPA
7
Sincerely,
�� TK;t�
Amelia Y. Burnette
Senior Attorney