WQCSD0711_NOV-2020-DV-0341 Response_20200914

Ed KILPATRICK
TOWNSEND
ATTORNEYS AT LAW
NC Dept of Environmental Quality
SEP 14 2020
Raleigh Regional Offit
September 11, 2020
Via Federal Express and Electronic Mail
Mr. Scott Vinson, Regional Supervisor
NCDEQ, Division of Water Resources
Water Quality Regional Operations Section
Raleigh Regional Office
3800 Barrett Drive
Raleigh, NC 27609
Email: scott.vinson{tvncdenr.gov
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Suite 1400, 4208 Six forks Road
Raleigh, NC 27609
t 919 420 1700 f 919 420 1800
din:CL dt21919 420 1726
direct fax [phone]
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Re: United Therapeutics Corporation — Response to Notice of violation and
Intent to Issue Civil Penalty, NOV 2020-DV-0341
Dear Mr. Vinson:
I am writing in response to the Notice of Violation ("NOV") issued to United Therapeutics
Corporation ("UTC") on August 6, 2020, relating to a sanitary sewer overflow ("SSO") event
discovered at Manhole No. SSMH 16 ("Manhole # 16") on March 6, 2020. As discussed with Mitch
Hayes (Division of Water Resources ("DWR"), Environmental Specialist), UTC's internal mail
service has been operating at a reduced staff level as a result of the COVID-19 pandemic, and UTC
did not receive the NOV until September 2, 2020. As agreed to by Mr. Hayes, UTC is providing
this response by September 11, 2020.
As discussed below, the SSO event occurred within a public utility casement and as a result
of a pipe failure caused by a debris buildup in the sanitary sewer line between Manholes #15 and
#16 located on an adjacent property (not owned by UTC). UTC promptly reported the release to
DWR and took immediate steps to prevent further discharge, and investigate and address the
release. UTC took all reasonable steps in its control to prevent and address the release and incurred
substantial costs even though it was neither responsible for nor the proximate cause of the release.
Therefore, UTC respectfully requests that DWR retract the NOV and Permit No. WQCSD07I 1,
which was improperly deemed issued prior to all relevant facts being available. Further
enforcement action arising from the SSO event is inappropriate and not legally justified.
ANCHORAGE ATLANTA AUGUSTA BEUING CHARLOTTE DALLAS DENVER HOUSTON LOS ANGELES NEW YORK RALEIGH SAN DIEGO
SAN FRANCISCO SEATTLE SHANGHAI SILICON VALLEY STOCK14OLM TOKYO WALNUT CREEK WAS14INGTON WINSTON-SALEM

Mr. Scott Vinson
September 11, 2020
Page 2
On March 6, 2020, UTC discovered the SSO event at Manhole #16. This section of the
sewer line, including Manhole 916, is located in Durham County's public utility casement. At the
time the release was discovered, the cause of the release was unknown. UTC, therefore, took
immediate steps to prevent further discharge and address the release. UTC stopped the overflow
by bypassing the blockage in the downstream sewer line. In addition, in response to the request
of DWR, UTC installed silt barriers, removed the overflowed waste from the ground surface,
treated the impacted area with calcium hydroxide, and flushed the impacted and downstream area
with non -chlorinated water. In addition, UTC is exploring options to either enter into a
maintenance agreement with the adjacent property owner establishing responsibilities for
maintaining the line and casement in the future or dedicating the sewer line to Durham County.
To date, UTC has spent over 560,000 to address the release and estimates to repair or replace the
line range from 5150,000 to 5500,000.
UTC effectively maintained and operated its collection system at all times in compliance
with applicable laws and regulations. The release from Manhole #16, which is located in Durham
County's public utility casement, was caused by a damaged sewer line downstream of Manhole
#16 and located on the adjacent property (not owned by UTC). Shortly after the release, during
its reconnaissance, UTC's consultant observed a depression of three feet in diameter above the
sewer line on the adjacent property, which appeared to be the start of a sinkhole, possibly caused
by water jetting from the sewer line and suggesting the location of a possible break in the sewer
line between Manhole #15 and Manhole 916. Subsequently, at UTC's request, Durham County
cut roots and videotaped the line showing significant damage between Manhole #15 and Manhole
416, where the pipe has a severe crack, roots, and water entering from outside the pipe, which is
in need of repair. UTC is not aware of any prior issues caused by debris in this sewer line. UTC
staff also removed a manhole cover and ring from the bottom of Manhole # 15, which was impeding
flow of upstream material from UTC's property. UTC was unable to inspect and discover the
damaged sewer line, which was located on the adjacent property (not owned by UTC). Because
UTC took all reasonable steps in its control to prevent and address the release and was neither
responsible for nor the proximate cause of the release, UTC did not "make any outlet into the
waters of the State" in violation of N.C. Gen. Stat. § 143-215.1(a)(1).
In response to UTC reporting the release, on March 12, 2020, DWR issued deemed Permit
No. WQCSD0711. DWR provided no notice to UTC of issuing this deemed permit, and UTC was
not aware of the deemed permit prior to receiving the NOV. DWR improperly issued this permit
to UTC prior to obtaining all the relevant facts of this release. Subsequent to issuance of the
permit, Durham County (at UTC's request) performed an assessment of the sewer line and
determined that the release was caused by a damaged sewer line downstream of Manhole #I6 and
located on the adjacent property. Not only are the permit conditions set forth in 15A NCAC 2T
.0400 not applicable to UTC prior to issuance of the permit, UTC has effectively maintained and
operated its collection system and does not have the ability to inspect and maintain the sewer line
located on the adjacent property. Therefore, DWR should retract the issuance of Permit No.
WQCD071 I.

Mr. Scott Vinson
September 11, 2020
Page 3
In closing, UTC has consistently maintained its sewer collection system in accordance with
applicable laws and regulations throughout its operational history at its RTP property. UTC
responded rapidly to mitigate the immediate effects of the SSO event, minimize its duration and
gravity, and prevent further effects. Although Form CS-SSO submitted by UTC to DWR indicated
that entire volume of discharge reached Buck Branch, this is incorrect. It is unlikely that the entire
volume reached Buck Branch and the volume reaching surface water is unknown. There is no
reason to believe there were impacts to public health, fish kills, or recreational area closures as a
result of the release. UTC takes compliance with applicable laws and regulations very seriously,
and prior to receiving this NOV, UTC has not been alleged to have violated any applicable sewer
laws or regulations. UTC has incurred significant costs to rectify the SSO event, even before
determining that it was caused by conditions on a neighboring property not owned by UTC. Since
the SSO event, UTC has been actively engaged with the adjacent property owner and Durham
County regarding options for ongoing maintenance of the relevant sewer line, including the
possibility of private maintenance arrangements or dedication to Durham County.
For the reasons discussed above, UTC respectfully requests that DWR retract the NOV and
Permit No WQCD0711. Further enforcement action arising from the SSO event is inappropriate
and not legally justified. Please let me know if you have any questions or would like to discuss.
Sincerely,
Todd S. Roessler
TRoessler«Kil atrickTownsend.com
[phone] (cell)
cc: Mitch Hayes, DWR
Colin Dietch, UTC
Avi Halpert, UTC