NCG210485_WinyahRivers v AERP_NC_20200824

NOI For Winyah Rivers v AERP August 24, 2020 11:35 AM US EPA Region 4, Regional Hearing Clerk
J��SED STq TFS UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
am70 REGION 4
SAM NUNN ATLANTA FEDERAL CENTER
2 �(L 61 FORSYTH STREET
3SZT'9< PROT�C�`O ATLANTA, GEORGIA 30303-8960
August 24, 2020
MEMORANDUM
SUBJECT: Notice of Citizen Suit Against Violating Facility — Winyah Rivers Foundation,
Inc. ("Winyah Rivers") v Active Energy Renewable Power ("AERP") Regarding
noncompliance to NPDES Wastewater permit located in Lumberton, NC
FROM: Patricia Bullock, Regional Hearing Clerk PATRICIA BULLOCKezozooaza;;,
Office of General Law, Criminal and Cross Office Support
TO: Larry Lambert, Deputy Director
Enforcement and Compliance Assurance Division
Attached is an Intent to Sue dated August 11, 2020, from Southern Environmental Law Center
on behalf of listed individuals. Notice is given pursuant to the violation the Clean Water Act
(CWA), 505(a)(1), 33 U.S.C. §1365(a)(1). The Sixty-day notice period expires on October 12,
2020.
The letter gives notice of intent to file suit against above defendant for noncompliance of
NPDES number NCG210000 located in Lumberton, NC. Allegedly, defendant violations are
located at 1885 Alamac Road, Lumberton, NC.
Please review the attachments and any information you may have regarding the alleged
violations. After your review, please provide a copy of your recommendation to the attention of
Patricia Bullock, Office of General Law, Criminal and Cross Office Support, by September 28,
2020. If you need to further discuss this notice; please contact Kavita Nagrani, Office of Water
Legal Support at [phone].
Attachments (2)
Cc: Mita Ghosh/Kavita Nagrani
Suzanne Rubini/Lucia Mendez
Alicia Daniels-Lewis/Bill Bush
Bryan Myers/Keriema Newman

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SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356
August 11, 2020
Via Email and U.S. Certified Mail - Return Receipt Requested
Antonio Esposito
Chief Operating Officer/Registered Manager
Active Energy Renewable Power, LLC
Lumberton Energy Holdings, LLC
1885 Alamac Road
Lumberton, NC 28358*
anton i o. espo s itoQaegplc. c om
Thomas Michael Rowan
Chief Executive Officer
Active Energy Group, PLC
Registered Manager
Active Energy Renewable Power, LLC
Lumberton Energy Holdings, LLC
1885 Alamac Road
Lumberton, NC 28358*
m ichael.rowan&egplc.com
Jennifer D. Scott
Registered Agent
Active Energy Renewable Power, LLC
Lumberton Energy Holdings, LLC
575 Military Cutoff Road, Suite 106
Wilmington, NC 28405
scotta.sh i pman law. c o m
Ronald.Gaskins
Director of Operations
Lumberton Energy Holdings, LLC
P.O. Box 3459
Lumberton, NC 28358
[e-mail]
Re: Notice of Violations and Intent to Sue Under the Clean Water Act
Dear Mr. Esposito, Ms. Scott, Mr. Rowan, and Mr. Gaskins:
This letter provides notice that the Winyah Rivers Foundation, Inc., dlbla Winyah Rivers
Alliance ("Winyah Rivers") intends to file suit against Active Energy Renewable Power
("AERP"), pursuant to section 505(a) of the federal Clean Water Act (or "the Act"),' for
violations of the Act.
Unless the violations described below are fully addressed, Winyah Rivers intends to file
a lawsuit, on behalf of itself and its adversely affected members, in the United States District
Court for the Eastern District of North Carolina no earlier than 60 days from the postmark date
of this letter.2 Winyah Rivers will seek appropriate equitable relief, civil penalties, fees and
* In addition to the official mailing and corporate office address, copies of this letter have also been sent via certified
mail to Mr. Esposito and Mr. Rowan at the address included on 2019 corporate flings with the North Carolina
Secretary of state: P.O. Box 751, Wrightsville Beach, NC 28280.
1 33 U.S.C. § 1365(a). Parallel citations to the United States Code are provided in footnotes for statutory provisions
of the Clean Water Act discussed in text.
2 See 40 C.F.R. § 135.2(c) (notice of intent to file suit is deemed to have been served on the postmark date).
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham ■ Charleston • Nashville • Richmond • Washington, DC

Notice of Violations and Intent to Sue
August 11, 2020
Page 2 of 19
costs of litigation, and such other relief as the court deems appropriate to address and correct the
ongoing violations described below.
SUMMARY OF VIOLATIONS
AERP is in violation of sections 301(a) and 402 of the Clean Water Act because it is
discharging polluted stormwater from sawmill and timber operations at its faciliti located at
1885 Alamac Road, Lumberton, North Carolina (the "Facility") to Jacob Branch and the
Lumber River without a permit. AERP has not applied for coverage under an individual
National Pollutant Discharge Elimination System ("NPDES") permit or General Permit No.
NCG210000 to Discharge Stormwater Under the National Pollutant Discharge Elimination
System for Establishments Primarily Engaged in Lumber and food Products ("Lumber and
Wood Products General Permit" or "General Permit" )5 issued by the North Carolina Department
of Environmental Quality, Division of Energy, Mineral, and land Resources ("DEMLR").
AERP's failure to apply for an NPDES permit and its ongoing stormwater discharges without a
permit violate sections 301(a) and 402 ofthe Act,6 and 40 C.F.R. §§ 122.26(c)(1) and (e)(1).
PERSONS RESPONSIBLE FOR VIOLATIONS
Active Energy Renewable Power is the party responsible for the violations alleged in this
Notice,7 as defined by section 502(5) of the Clean Water Act.8 AERP is a wholly -owned
subsidiary of Active Energy Group, PLC, incorporated in North Carolina in October 2018.
3 33 U.S.C. §§ I311(a), 1342.
4 Jacob Branch is also sometimes referred to as "Jacob Swamp," "Jacob's Swamp," or "Jacob's Branch."
5 N.C. Division of Energy, Mineral, and Land Resources ("DEMLR"), General Permit No. NCG210000 to
Discharge Stormwater Under the National Pollutant Discharge Elimination System for Establishments Primarily
Engaged in Lumber and Wood Products (Aug. 1, 2018) [hereinafter Lumber and Wood Products General Permit]
(Attachment 1). The Lumber and Wood Products General Permit became effective on August 1, 2018, and will
expire on July 31, 2023.
6 33 U.S.C. §§ 131 l (a), 1342; see 33 U.S.C. § 1342(p) (requiring the establishment of industrial stormwater NPDES
permits and of a permit application process).
7 Some permitting documents cited in this Notice Letter are issued to Lumberton Energy Holdings, LLC, which is a
real estate holding corporation incorporated in North Carolina in February 2019 that is also wholly owned by Active
Energy Group, PLC. Mr. Antonio Esposito, a recipient of this Notice Letter, holds the role of Chief
Operating/Operations Officer in both Active Energy Group, PLC and AERP, and is a designated manager of
Lumberton Energy Holdings, LLC. As used in this Notice Letter, "AERP" refers to the same corporate entity for
which Lumberton Energy Holdings has entered into these transactions and permitting agreements, signed by Mr.
Esposito. Renewable Logistics Systems, LLC is a company incorporated in North Carolina in 2015 and owned in
part (30%) by Antonio Esposito's wife, Lisa Esposito, Active Energy Group has described Renewable Logistics
Systems as its joint venture partner in saw log operations in Lumberton until it was acquired by Active Energy
Group to be consolidated into AERP in March 2020. Therefore, all saw log and sawmill activities are attributed to
AERP in this document but should be considered inclusive of joint operations with Renewable Logistics Systems,
LLC, as appropriate.
s 33 U.S.C. § 1362(5).

Notice of Violations and Intent to Sue
August 11, 2020
Page 3 of 19
AERP has owned the Facility since March 2019 and has been operating a sawmill on site
since at least December 2019.9 AERP has operational control over the day-to-day industrial
activities at the Facility and is responsible for managing stormwater in compliance with the
Clean Water Act. If Winyah Rivers subsequently identifies additional persons as also being
responsible for the violations set forth above, Winyah Rivers intends to include those persons in
this action.
II. BACKGROUND
A. AERP's Facility and Surrounding Community
AERP's violations alleged in this Notice have occurred and continue to occur at its
Facility located at 1885 Alamac Road, Lumberton, North Carolina. AERP purchased the Facility
from Alamac American Knits in March 2019, with the intent to construct and operate a wood
pellet manufacturing facility as well as other lumber operations. The industrial site on which the
Facility is located includes 415,000 square feet of covered factory space and approximately 145
acres of surrounding land.10 The site, which is located within a 100-year flood zone, I1 sustained
significant damage as a result of Hurricane Matthew in October 2016 and Hurricane Florence in
September 2018,12 and has otherwise been observed to flood during rainfall events. In fact,
Alamac American Knits, which permanently closed operations on July 15, 20I7," cited
hurricane damage as one of the reasons for closing.14 Additionally, the property is a designated
brownlields site where_ the groundwater and soil have been contaminated by toxic industrial
solvents and is subject to special land use restrictions to contain these pollutants. 15
The potential impact of this flooding and unpermitted pollution is particularly concerning
in light of the location of the Facility. Robeson County, where the Facility is located, is one of
'Active Energy: Update on. V Lumber Aclivities at Lumberton, MARKETSCREL•Nr'R (Dcc. 11, 2019) [hereinafter
Active Energy: Update], htt s://www.marketscreencr.com/ACTIVE-ENERGY-GROUP-PLC-
4007117/news/Active-Ene -U date-on-JV-Lumber-Activities-at-Lumberton-297110891• Active Energy Group -
Acguisition of 100% Interest of Lumber Activities, RNS (Mar. 31, 2020) [hereinafter AEG Acquisition],
htt s:/Iwww. roactiveinvestors.com/LON:AEO/Active-Ener -Grow -PLC/ms/801328.
10 Active Energy Group, AEG Lumberton Manufacturing Ilub, httRs://www.aegple.oam/operationsAumberton:
manufacturinz-hub/ [hereinafter Lumberton Manufacturing Hub] (last accessed Aug. 5, 2020).
" See N.C. Floodplain Mapping Program, flood.nc.gov/ncflood/ (interactive mapping toot).
1
2 See Lauren Ohnesorge, N.C. Manufacturers Disclose 200.Layoffs in a Week, TRIANGLE BusiNr-ss JOURNAL (May
22, 2017), h s://www.biz ournals.comltrian lelnews120171051221n-c-manufacturers-disclose-200-1a offs-in-a-
week.html: N.C. Division of Water Resources ("DWR" ), Minor Modification of NPDES Permit No. NC0004618,
at 1 (Apr. 10, 2019) [hereinafter Modification of NPDES Permit No. NCO004618] (Attachment 2).
j3 N.C. DWR, NPDES Permit Renewal Application No. NC0004618 (Jan. 15, 2019) (Attachment 3).
14 See Ohnesorge, supra note 12.
15 N.C. Division of Waste Management ("DWM"), Notice ofBrownfields Property 06001 (Mar. 1, 2006)
(Attachment 4). This site is a brownfield with historic groundwater contamination of benzene, dichloroethene,
trichlorethene, tetrachloroethene, and vinyl chloride and soil contamination of tetracliloroethene and benzopyrene.
Id.; see also N.C. DWM, Land Use Restrictions ("LUR') Update for Project 06001-02-079 (Dec. 17, 2019)
(acknowledgment of Land Use Restriction signed by Antonio Esposito for Lumberton Energy Holdings, LLC)
(Attachment 5).

Notice of Violations and Intent to Sue
August 11, 2020
Page 4 of 19
the most racially diverse areas in the state,16 and also ranked the worst in the state for overall
health outcome and health factors.17 Within a two-mile radius of the Facility, the population is
56% Black or African American and 13% American Indian, and Robeson County is home to the
Lumbee Tribe --the largest tribe east of the Mississippi River.ls In addition to the AERP
Facility, other sources of pollution within a two-mile radius of the Facility include 33 stormwater
permits, 6 wastewater treatment facility permits, 2 coal ash structural fills, and 2 hazardous waste
sites, among many others. 19 AERP's Clean Water Act violations trust be remedied to protect
this at -risk area and prevent the people who live there from suffering the deleterious effects on
water quality of AERP's unpermitted industrial discharges.
B. Lumber River and Jacob Branch
The Facility is situated between the Lumber River and Jacob Branch, a tributary that
enters the Lumber River southeast of the Facility. As detailed more below, stormwater flows
from the Facility into a conveyance that discharges into Jacob Branch and subsequently into the
Lumber River. 6 Upon information and belief, the industrial stormwater is being discharged to
Jacob Branch and the Lumber River through at least one discrete outfa[1, located approximately
at the following GPS coordinates: 34.589170,-79.005280 21
16 See Report from Robeson Cnty. Cmty. Org. & Outreach Comm., to N.C. DEQ, Sec'y Envtl. Just. & Equity Bd. re:
Cumulative Impacts in Robeson County (Aug. 21, 2019) ("Robeson County is the most racially diverse rural county
in the United States[.]") (Attachment 6); Chris Kolmar, Most Diverse Cities in Norlh Carolina for 2020,
HDMESNACKs (Dec. 27, 2019), hops:llwww.homesnacks.net/most-diverse-cities-in-north-carolina-I28933/ (ranking
Lumberton at second most diverse city in North Carolina).
'-'N.C. Division of Air Quality ("DAQ"), Active Energy Renewable Power Environmental Justice Snapshot at 15
[hereinafter Environmental Justice Snapshot], https:/IfiIcs.nc.gov/ncdcg/EJ/Active-ERP-EJ-Snapshot-.pdf; see also
N.C. Dep't of Commerce, County Distress Rankings (Tiers), hqps://www.nccommerce.com/g_rants-
incentives/county-distress-rankinss-tiers (last visited Mar. 24, 2020); ROBERT Wool) JOHNSON FOUND., NORTH
CAROLINA COUN-ry HEALTH RANKINGS & RoADmAPS: ROBESON COl7NTY (2020),
htt s:llwww.count healibrankin s.or a Inarth-carolina120201rankin slrobesonlcoun Ifactorsloveralllsna shot.
'$ Environmental Justice Snapshot at 6, S. The Lumber River (or "Lumbee River"), from which the Lumbee take
their name, and the area around the river "are vital to the sustainability of the Lumbee people." Lumbee Tribe of
North Carolina, Tribal Ordinance CLLO-2020-0227002 Establishing the Agriculture[Nlatural Resources
Subcommittee (Feb. 27, 2020), hqps://www.lumbectribe.cora/tribal-ordinanQes.
19 Environmental Justice Snapshot at 18.
211 See, e.g., N.C. DEMLR, General Permit No. NCG 170133 Certificate of Coverage (Nov. 29, 2016) [hereinafter
Alamac Certificate of Coverage No: NCG1701331(Attachment 7). The certificate of coverage issued to the site's
prior tenant, Alamac American Knits (also, Alamac Investors), under the Textile General Permit (NCG170000)
specifically identified that stormwater from the industrial site drains to Jacob Branch. Although this certificate of
coverage was transferred from Alamac American Knits to Lumberton Energy I•Ioldings (for AERP), coverage under
the North Carolina NPDES stormwater general permit for textile manufacturing facilities does not cover or
otherwise authorize discharges from AERP's sawmill and other timber operations. Such operations must be
separately authorized by North Carolina's Lumber and Wood Products General Permit, as discussed in more detail
below.
" See N.C. DEMLR, NPDES Slornrivaler Permit Summary far Permit No. NCG170133 (last accessed Aug. 2, 2020)
[hereinaterN`PDES NCG170133 Permit Summary] (providing this GPS location for the Facility's stormwater
discharges under the Textile General Permit) (Attachment 8). The Facility also has two wastewater outfalls
identified in a NPDES wastewater discharge permit for Alamac American Knits: one outfall that discharges directly

Notice of Violations and Intent to Sue
August 11, 2020
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The North Carolina Department of Environmental Quality, Division of Water Resources
("DWR") classifies the Lumber River and Jacob Branch in the area near the Facility as Class C
surface waters and Swamp Waters. Class C surface waters are protected by state water quality
standards and must remain in a condition suitable for aquatic life propagation and maintenance
of biological integrity, wildlife, fishing, and secondary recreation, which includes wading,
boating, and other uses not involving frequent human body contact with water. 15A N.C.
Admin. Code 02B .0211(1); 15A N.C. Admin. Code 02B .0202. To the extent AERP's
unpermitted industrial discharges preclude any of these uses of Jacob Branch or the Lumber
River on either a short-term or long-term basis, AERP is also causing a violation of the water
quality standards. 15A N.C. Admin. Code 02B .0211(2).
Moreover, in 1998, the Lumber River was federally designated as a Wild and Scenic
River, and the portion of the river into which AERP's discharges flow is designated as
recreational. See 63 Fed. Reg. 53,695. (Oct. 6, 1998) (Wild and Scenic Rivers Approval for
Lumber River). The Lumber River is also included in the North Carolina Natural and Scenic
River System, meaning that the North Carolina General Assembly has deemed it to "possess
outstanding natural, scenic, educational, geological, recreational, historic, fish and wildlife,
scientific and cultural values of great present and future benefit to the people." N.C. Gen. Stat.
§ 14313-135.142. The section of the river that flows by the Facility, upstream of the junction of
the Lumber River and Jacob Branch is classified as recreational; while the portion downstream
of the junction of the Lumber River and Jacob Branch (i.e., the area immediately downstream of
AERP's stormwater discharges) is classified as natural. N.C. Gen. Stat. § 143B-135.154.
Natural river areas "are free of man-made impoundments and generally inaccessible except by
trail, with the lands within the boundaries essentially primitive and the waters essentially
unpolluted." N.C. Gen. Stat. § 143B-135.148. It is the policy of the State that the Lumber
River's natural condition be maintained. N.C. Gen. Stat. § 143B-135.142.
C. Sawmill Operations
AERP is currently operating a sawmill at the Facility to produce lumber and railroad ties
for sale and to compile feedstock materials, such as wood chips, bark, and sawdust, for its future
pellet manufacturing.22 As illustrated in Figure 1 below, the lumber and other raw feedstock
into the Lumber River, and a second outfall that discharges into Jacob Branch. See Modification of NPDES Permit
No. NC0004618 at PDF 13 (map). Beyond the GPS coordinates provided in the NPDESStormwater Permit
Summary, the exact locations of any additional existing stormwater discharges from the Facility are known only to
AERP. This letter provides notice of industrial stormwater being discharged through the identified outfall, as well
as any other Facility outfalls not currently known to Winyah Rivers.
zx Lumberton Manufacturing Hub, supra note 10 (stating that "saw logging and saw mill Operations creating future
feedstock for CoaISwitchTM" are already underway at the Facility); see also Email from Heather Carter, Regional
Supervisor, N.C. DAQ, to Heather Hillaker, Attorney, Southern Environmental Law Center (Mar. 24, 2020)
(confirming that AERP has commenced operations of sawmill, wood chipping, and board manufacturing at the
Facility, and that AERP plans to store up to 1,000 tons of wood chips in piles outside the Facility) (Attachment 9);
SP Angel, Spec Sits Research: fictive Energy Group Plc Lumber Operations Potential (June 17, 2020),
https //www.ae-plc.com/wp-content/upfoads/2020/06/SP-Angel-180620,pdf. The presence of whole logs and large

Notice of Violations and Intent to Sue
August 11, 2020
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materials, including reduced -sized woodymaterials, are stored in open piles on site, exposing
them to rain fail and other precipitation.'3
Figure 1: Storage of Woody Materials at the Facility24
Saw log preparation. May 2020
,r_
s.
aste •;. _ Dd materials. January 2020
Sawmill operations at the Facility reportedly commenced by at least December 11,
2019,25 and the sawmill retrains fully operational today. As of June 22, 2020, production at the
Facility was at 70% to 80% of sawmill capacity over the prior 60 days.26 AERP has indicated
that the sawmill is meeting weekly production targets —which range at between 850 and 950 rail
feedstock piles on site has also been visually confirmed by Winyah Rivers and, on May 9, 2020, by Elizabeth
Rasheed (Attorney at the Southern Environmental Law Center).
23 See Lumberton Manufacturing Hub, supra note 10.
24 Id 5creenshots of photographs of AERP's sawmill operations and storage of feedstock materials provided on
Active Energy Group's webpage are attached to this letter as Attachment 10.
25 .fictive Energy: Update, supra note 9 (stating that sawmill operations have commenced as of the date of the article,
December 11, 2019); see AEG.4cguisition, supra note 9 (stating that sawmill operations "commenced in late
2019").
26 Anna Farley, .fictive Energy Daises GBP800,000 to Dove top Lumberton Smvmill, ALLIANCE NEWS (June 22,
2020), btips://www.momingstar.co.uk/uk/news/AN 15928201977609469001active-ener -raises- b 800000-to-
develop-lumberton-sawmi ll.astrx.

Notice of Violations and Intent to Sue
August I I, 2020
Page 7 of 19
ties, as well as between 25,000 and 30,000 board feet of lumber, plus more than 200 metric tons
of sawmill chips and residuals.27
D. Future Wood Pellet Mill
As noted above, AERP purchased the Facility with the intent to construct a wood pellet
rnill to manufacture CoalSwitch7M, a "black pellet" that will be produced using a "steam
explosion" manufacturing process that has not yet been proven to be commercially viable. On
August 3, 2020, AERP received a permit from the North Carolina Department of Environmental
Quality, Division of Air Quality ("DAQ") authorizing the construction of this wood pellet mill.28
According to AERP's description of the steam explosion process, AERP plans to use well
water in a water-cooled tube and shell condenser to condense and capture the water vapor and
volatile organic compounds that result from the wood pellet manufacturing process.29 The non -
contact well water will be discharged to the Facility's on -site wastewater treatment plant and
subsequently discharged into the Lumber River and/or Jacob Branch.30 I.n addition to non -
contact well water discharges, AERP also indicated that wastewater separated from the volatile
organic compound condensate may also be discharged via the facility's wastewater treatment
plant. 31
While AERP has represented to DAQ that the pellet mill will be relatively small, with a
maximum throughput capacity of 43,800 tons per year, it will not stay that way for long. AERP
has indicated to its investors, that it intends to scale up production tenfold soon after the facility
is operational, targeting a production of 400,000 metric tons of pellets per year; indeed, the
company has already secured future feedstock contracts to make that high level of production
possible.32 As the wood pellet mill expands production, the wastewater streams from the
27 Id
28 N.C. DAQ, Air Permit No. 10636ROO (Aug. 3, 2020), https://files.nc.govincdcg/Air%2OQuaiitylpermitslactive-
e nergy178 9024 2-Final -Permit-ROO.pd.pd f.
29 See N.C. DAQ, Draft Application Review for Draft Permit No. 10636ROO for Active Energy Renewable Power at
2 [hereinafter AERP Draft Air Permit Review],
https:llfiles.ne.ggv/ncdeg/Air'/o200ua]iMpermits/2020 public_ notice_ documents/draft reviews/Active-Enerev-
Permit-Review-7800242--20200I 15.pd_f; AERP, Air Permit Request for all the Proposed Air Emission Sources at
Section 2.0 (Oct. 31, 2019),
https:llfiles.nc.aovincdeq/A_i_r%/`Mualiiy/permits/2020 Rublic_notice documentss/ ublic notices/Active-Energy_
Permit-Application-2 0191104pd f.
3v AERP Draft Air Permit Review at 2. The AERP Draft Air Permit Review erroneously identifies the wastewater
as discharging into the Cape Fear River when the industrial outfalIs for the Facility actually discharge into the
Lumber River and Jacob Branch. See Modification of NPDES Permit No. NCO004618 at PDF 13 (map).
31 See AERP Dra$ Air Permit Review at 2 (stating that "the condensed organic liquids [can be] separated and sold,
with the separated water processed through the facility's wastewater treatment plant, then discharged").
32 See Lumberton Manufacturing Hub, supra note 10; see also Active Energy Group, Transforming Low -Cost
Biomass into High -Value Efficient Fuel at Slide 10 (Apr. 2019), https:/lwww.aegplc.com/investgmLeorporate-
documen#sl (download available: Corporate Presentation April 2019) (setting 2021 target date for achieving 400,000
metric tons per year production); Active Energy Group PLC, Interim Report and Unaudited Condensed Financial
Statements for the Six Months Ended 30 Junc 2019, at 3 (Sept. 2S, 20I9) [hereinafter AEG Interim Report],

Notice of Violations and Intent to Sue
August 11, 2020
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manufacturing process will also increase, discharging even more pollutants into Jacob Branch
and the Lumber River.
111. CLEAN WATER ACT VIOLATIONS: DISCHARGES OF INDUSTRIAL STORMWATER
WITHOUT A-NL NPDES PERMIT
The Clean Water Act prohibits the discharge of pollutants to the "waters of the United
States" except in accordance with a valid NPDES permit issued by the U.S. Environmental
Protection Agency ("EPA") or an authorized state.31 Section 502 of the Act defines "dischar e
of a pollutant" as "any addition of any pollutant to navigable waters from any point source,"3
and defines "point source" as "any discernable, confined and discrete conveyance ... from
which pollutants are or may be discharged.i35 The Act defines "pollutant" to include "dredged
spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock,
sand, cellar dirt and industrial ... waste discharged into water."36
Section 301(a) of the Clean Water Act, in combination with section 402(p), prohibits
"stonmwater discharges" "associated with industrial activity" that are not authorized by an
NPDES permit.37 EPA defines "storm water associated with industrial activity" to include
stormwater discharges associated with industries categorized within Standard Industrial
Classification ("SIC") Code prefix 24. 40 C.F.R. § 122.26 (b)(14)(ii). SIC Code prefix 24
covers sawmills and other facilities like AERP's Facility that handle, store, process, or otherwise
manufacture timber products.39 Stormwater discharges associated with sawmills and other
facilities like AERP's Facility must therefore be covered by either an individual NPDES permit
or an appropriate NPDES general permit covering the specific industrial discharges. In North
https://www.aMle.conVinvestors/coEporate-documents) (download available: Half -Yearly Report 2019). AERP
already has contracts in place to obtain 800,000 metric tons of feedstock per year for the next five years once pellet
production commences. AEG Interim Report at 2.
s3 See 33 U.S.C. §§ 1311(a), 1342.
34 33 U.S.C. § 1362(12). -
ss 33 U.S.C. § 1362(14).
3fi 33 U.S.C. § 1362(6).
37 33 U.S.C. §§ 1311(a), 1342(p).
38 The applicable SIC code for sawmills and planing mills is 2421. Wood pellet :manufacturing facilities are also
covered under the Lumber and Wood Products Genera[ Permit, with SIC Code 2499. See, e.g., N.C. DEMLR,
Notice of Permit Coverage Renewal Letter for NCG 210000 for Enviva Pellets Sampson (No. 210450) (Mar. 23,
2017); N.C. DE-MLP, Notice of Permit Coverage Renewal Letter for NCG 210000 for Enviva Pellets Ahoskie, LLC
(No. 210420) (June 1, 2018); N.C. DEMLR, Notice of Permit Coverage Renewal Letter for NCG 210000 for Enviva
Pellets Northampton (No. 210428) (June 1, 2018). These documents may be accessed at:
https-//edocs.deg.nc.gov/WaterResourcesBrowse.aspx?id=265693&repo=WaterResources. Accordingly, both
AERP's current operations and proposed future operations fall within the scope of industrial activities for which
associated stormwater is regulated under the Clean Water Act and an NPDES permit is required. See 33 U.S.C. §§
1311, 1342(p); 40 C.F.R. § 122.26(b)(14)(ii).

Notice of Violations and Intent to Sue
August 11, 2020
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Carolina, the Lumber and Wood Products General Permit (NCG210000) applies to owners and
operators of stormwater discharges with operations under SIC Code prefix 24 like AERP."
AERP has violated and is violating sections 301(a) and 402 of the Clean Water Act and
their implementing regulations by: (1) discharging pollutants and stormwater associated with
industrial activity from point sources at the Facility without authorization of an NPDES permit;
and (2) failing to apply for coverage under an individual or general NPDES permit for such
discharges.
A. AERP Is Violating the CIean Water Act by Discharging Industrial
Stormwater to Waters of the United States without a Permit.
Since at least December 11, 2019, AERP has operated and continues to operate a sawmill
at the Facility. These operations fall under SIC Code prefix 24, meaning that AERP's operations
constitute industrial activities that require coverage under an NPDES individual or general
permit for stormwater discharges.40 AERP does not have an individual permit or coverage under
North Carolina's Lumber and Wood Products General Permit for the Facility's industrial
stormwater discharges associated with its sawmill and timber operations.
As part of its sawmill and timber operations, AERP stores raw wood and other feedstock
materials in open piles outside. The Facility is therefore generating and exposing industrial
pollutants to stormwater by, at a minimum: receiving, storing, processing, and transporting logs,
wood, mulch, woodchips, sawdust, bark, and other woody materials outside or otherwise
exposing them to the elements. 41 The Facility is also exposing industrial pollutants to
stormwater through equipment Ieft outdoors and from vehicles driving on and off the Facility.
During precipitation events, these pollutants are conveyed to at least one discrete outfall that
discharges to Jacob Branch, then into the Lumber River.42 AERP is therefore discharging
industrial stormwater into "waters of the United States" without a permit required under section
402 of the Clean Water Act.43
AERP's sawmill activities caused and continue to cause the discharge of pollutants,
within the meaning of section 502(12),44 and its stormwater discharges are "associated with
industrial activity," within the meaning of40 C.F.R. § I22.25(b)(14). Because these discharges
39 See Lumber and Wood Products General Permit at 1, The only exceptions to coverage under the General Permit
for SIC Code 24 are facilities primarily engaged in Logging - SIC 2411, manufacturing Wood Kitchen Cabinets -
SIC 2434, and Wood Preserving - SIC 2491. Id.
44 See 33 U.S.C. §§ 1311, 1342(p); 40 C.P.R. § 122,26(b)(I4)(ii).
$' This constitutes "raw materials, intermediate products, final products, by-products, or waste products" within the
meaning of the Lumber and Wood Products Genera[ Permit. Lumber and Wood Products General Permit at 1.
42 The stormwater outfall for the Facility has previously been documented by former owners, A[amac American
Knits. See, e.g., Alamac Certificate of Coverage No. NCG 170133; NPDES NCG 107133 Permit Summary.
43 33 U.S.C. § 1342.
44 33 U.S.C. § 1342(12).

Notice of Violations and Intent to Sue
August 11, 2020
Page 10 of 19
have and continue to occur without a permit under section 402,45 AERP is violating section
301(a) of the Clean Water Act 46
B. AERP Is Violating the Clean Water Act by Failing to Apply for NPDES
Permit Coverage.
As discussed in more detail above, AERP is engaged in sawmill and other timber
operations at the Facility that fall within SIC Code prefix 24. Several ongoing activities at the
AERP Facility contribute to stormwater pollution, including the storage of whole logs,
woodchips, and sawdust piles outside. AERP is therefore engaged in industrial activity requiring
coverage by either an NPDES individual permit or relevant general permit for its industrial
stormwater discharges, pursuant to section 402 of the Clean Water Act.a7
In North Carolina, if a sawmill, wood chipping, or wood pellet mill facility does not have
an individual NPDES permit, then it must be covered under the Stormwater General Permit for
Lumber and Wood Products before discharging industrial stormwater. 8 The Lumber and Wood
Products General Permit limits the levels of pollutants in stormwater that can be discharged from
facilities that have wood chipping operations and large sawdust piles, including oxygen -
consuming pollutants, suspended solids, toxic metals, and dissolved solids.49
To be eligible to discharge its Facility's stormwater, AERP must submit a "notice of
intent", for coverage under the Lumber and Wood Products General Permit to discharge pursuant
to the general pen -nit to DEMLR. 40 C.F.R. § 122.28(b)(2); 15A N.C. Admin. Code
02H.0127(h). The notice of intent must provide, among other things, a "description of the type
of discharge and its characteristics," outfall locations, identification and classification of the
receiving waters, and `other information ... necessary to determine the impacts of the discharge
and its eligibility for the general permit." 15A N.C. Admin. Code 02H .0127(i). In North
Carolina, discharging can only commence after DEMLR has reviewed the notice of intent and
issued a certificate of coverage to the permittee. See 15A N.C. Admin. Code 02H .0127(k).50
AERP has failed to file a notice of intent and therefore is not covered by the Lumber and Woad
Products General Permit, nor has AERP applied for an individual NPDES permit for its
industrial stormwater discharges.51
45 33 U.S.C. § 1342.
45 33 U.S.C. § 1311(a).
47 33 U.S.C. § 1342.
4s See Lumber and Wood Products General Permit at 1.
49 N.C. DEMLR, Fact Sheet: General Permit NCG210000, at l (Apr. 13, 2018) (Attachment 11).
so- DEMLR can require a discharger seeking a certificate of coverage to instead apply for an individual permit for a
variety of reasons, and any interested person can petition DEMLR to take action to rcquire an individual NPDES.
permit. 40 C.F.R. § 122.28(b)(3); 15A N.C. Admin. Code 02H .0127(o), (p).
53 A thorough search of DEMLR's online permitting database revealed no evidence that AERP has submitted a
notice of intent or an application for an individual permit. Conversations with DEMLR staff also confirmed that
AERP has not submitted a notice of intent or application. See Email from Robert Johnson, Public Records Officer,
DEMLR to Elizabeth Rasheed, Attorney, Southern Environmental Law Center (June 10, 2020) (Attachment 12);

Notice of Violations and Intent to Sue
August 11, 2020
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AEI-P has therefore violated and continues to violate sections 301(a) and 402,52 and 40
C.F.R. §§ 122.26(c)(1) and (e)(1), by failing to apply for and obtain coverage under an individual
NPDES permit or the Lumber and Wood Products General Permit for its industrial stormwater
discharges from its sawmill and related activities.
C. Even If AERP Were Covered by the Lumber and Wood Products General
Permit, It Would Be Violating the Permit Terms.
As a discharger of stormwater associated with industrial activity, AERP was required to
obtain coverage under an NPDES permit prior to discharging its stormwater. It did not, which is
a violation of the Clean Water Act. However, even if the Facility were covered under the North
Carolina Lumber and Wood Products General Permit, AERP is violating several of its terms.53
AERP has not produced or implemented a Stormwater Pollution Prevention
Plan for the Facility.
As a prerequisite to obtaining coverage under the Lumber and Wood Products General
Permit, AERP's sawmill must prepare, make available, and implement a Stormwater Pollution
Prevention Plan ("SPPP").54 The SPPP must contain, among other things, a general site
description, including a general location map identifying the location of the Facility and all
receiving waters; a site map depicting the stormwater outfalIs; a narrative description of potential
pollution sources; a stormwater management strategy describing control measures and best
management practices; and schedules and procedures for implementation of control measures,
monitoring, preventative maintenance, and inspections.S5 The SPPP must identify potential
sources of pollution that may be expected to contribute to contamination of stormwater
discharges, and must describe and ensure implementation of a stormwater management strategy
using best practices to minimize the discharge of pollutants in industrial stormwater associated
with the Facility and that assure compliance with the other terms and conditions of the General
Permit.'
In addition to obtaining coverage under an NPDES permit, and assuming it does so by
seeking coverage under the Lumber and Wood Products General Permit, AERP must develop
see also Email from Sarah Bilski, Public Records Officer, DWR, to Heather Hillaker, Attorney, Southern
Environmental Law Center (Mar. 6, 2020) (stating that "address, 1885 Alamac Road, has one active permit
associated with it:.NCG170133") (Attachment 13).
52 33 U.S.C. §§ 1311, 1342.
" As an industrial stormwater discharger, AERP must either comply with an individual NPDES permit or a general
permit. This section discusses the compliance requirements of the Lumber and Wood Products General Permit. If
AERP elects to seek coverage under an individual NPDES permit instead, the conditions of that individual permit
would be at least as strict as those of the General Permit, thus AERP would still be required to comply with all of the
following.
54 See Lumber and Wood Products General Permit at Part ILA. The SPPP is public information, Id.
ss See id_
se See id.

Notice of Violations and Intent to Sue
August 11, 2020
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and implement an SPPP in accordance with the Clean Water Act, its regulations, and the General
Permit requirements.57
H. AERP is not complying with the General Permit's qualitative and analvtical
monitoring and reporting regriirements.
The Lumber and Wood Products General pennit requires industrial discharges to comply
with a number of monitoring, recordkeeping, and reporting requirements to ensure that the
facility's industrial stormwater discharges do not cause or contribute to violations of North
Carolina Water Quality Standards, and that the discharges authorized by the General Permit meet
applicable water quality certification requirements as outlined in 15A N.C. Admin. Code 02H
.0500.S8 Specifically, the General Permit requires the industrial discharger to conduct semi-
annual qualitative and analytical monitoring, retain monitoring data, and, for analytical
monitoring, submit a Discharge Monitoring Report to DWR.5? Upon information and belief,
AERP has not completed this monitoring.
Under the General Permit, industrial dischargers must perform qualitative monitoring
semi-annually.60 Such monitoring includes a visual inspection of the stormwater outfalls in order
to evaluate the effectiveness of the SPPP and evaluate any new sources of stormwater
pollution. 61 The relevant qualitative monitoring parameters include: color, odor, clarity, floating
and suspended solids, foam, oil sheen, erosion or deposition at the outfall, and other obvious
indicators of stormwater pollution.62
Tile General Permit also requires semi-annual analytical monitoring for facilities with
accumulations of reduced -size woody materials, such as sawdust, wood chips, bark, or mulch,
that remain exposed for more than seven days.63 Analytical monitoring is conducted to
determine compliance with specific benchmark values for chemical oxygen demand, total
suspended solids, and total rainfal1.6`1 Under the analytical monitoring requirement, the industrial
discharger must: perform analytical monitoring on stormwater discharges; respond to
exceedances of numerical benchmark values; keep records of the monitoring results and its
response actions; and report the monitoring results.65 The results of this monitoring must be
timely reported to both DEMLR and DWR using the Discharge Monitoring Report forms
available on the DEMLR website.66
"See 33 U.S.C. §§ 1331(a), 1342(p); Lumber and Wood Products General Permit at Part II.A.
58 See Lumber and Wood Products General Permit at Part I.B.
59 See id at Parts II.B (analytical monitoring), II.0 (qualitative monitoring), TII.D (monitoring and recordkeeping),
III E (reporting requirements).
6o Id. at H.C.
61 Id
62 Id
63 Id at U.B.
`4 Id.
65 Id
66 Id.at Part TILE.

Notice of Violations and Intent to Sue
August 11, 2020
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Though AERP stores accumulations of reduced -size woody materials in open piles for
more than seven days, it has conducted no analytical monitoring as required under the Lumber
and Wood Products General Permit. Moreover, upon information and belief, AERP has also
failed to conduct the required semi-annua[ qualitative monitoring, and has otherwise failed to
submit monitoring reports to DEMLR and DWR as required by Parts II and III of the General
Permit. Accordingly; even if AERP were covered by the General Pennit, it would not be in
compliance with the permit terms. AERP must promptly obtain coverage under an NPDES
permit and comply with its terms to avoid further Clean Water -Act violations.
D. These Stormwater Violations Have Occurred at Least Since December 11,
2019, and Are Ongoing.
Each day on which AERP operates its sawmill without NPDES permit coverage and
discharges stormwater without an NPDES permit is a separate and distinct violation of sections
301(a) and 402 of the Clean Water Act and their implementing regulations.67
Since AERP commenced sawmill operations at the facility, AERP has illegally
discharged stormwater without a permit at least on each and every day there has been a
measurable precipitation event over 0.1 inches.69 The Rainfall Tables provided in Appendix A
list the dates on which there was measurable precipitation of over 0.1 inches since AERP
commenced its sawmill operations at the Facility. Because AERP has been operating its sawmill
since at least December 11, 2019, it has been discharging stormwater without permit coverage
for a total of at least 81 days69 in violation of sections 301(a) and 402.71
If AERP obtains permit coverage after receiving this letter but flails to fully comply with
the requirements of the Lumber and Wood Products General Permit (or an individual permit) —
including failing to produce or implement an SPPP and failing to meet the permit's qualitative
and analytical monitoring and reporting requirements —each day that the Facility fails to comply
with its permit will constitute a separate day of violation with respect to each unmet condition of
that permit.
AERP is liable for the above -described violations occurring prior to the date of this letter
and' for every day that these violations continue after the date of this letter. In addition, to the
extent Winyah Rivers obtains evidence after the date of this letter of additional violations based
on the same or similar pattern as the violations set forth above, this letter provides notice. These
67 33 U.S.C. §§ 1311(a), 1342; see 33 U.S.C. § 1319 (civil penalties assessed per day per violation).
as EPA has determined that precipitation greater than 0.1 inches in a 24-hour period constitutes a measurable
precipitation event for the purposes of evaluating stormwater runoff associated with industrial activity. See, e.g:, 40
C.F.R. § 122.26(c)(1)(i)(E)(6) (using 0.1 inches as the distinguishing threshold of a storm event).
69 The rain dates in the table are all the days when over 0.1 inch rain was observed at the nearest weather stations to
1885 Alamac Road. Rain data was accessed from the National Oceanic and Atmospheric Administration. Climale
Data Online Search, Nat'l Oceanic & Atmospheric Admin., https://w%vw.ncdc.noaa.gov/cdo-web/search (last visited
Aug. 10, 2020) (Appendix A). The rain gauges used are located in Lumberton, North Carolina.
"33 U.S.C. §§ 1311(a), 1341

Notice of Violations and Intent to Sue
August 11, 2020
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violations are ongoing and continuous, and unless AERP obtains coverage under and complies
with an NPDES permit, these violations will continue.
IV. To AVOID DISTINCT CLEAN WATER ACT VIOLATIONS RELATED TO ITS WASTEWATER,
AERP MUST OBTAIN AN NPDES PERMIT FOR ITS WASTEWATER DISCHARGES.
An additional issue of concern relates to AERP's intended operations of a wood pellet
manufacturing facility and its compliance with the Clean Water Act. Although AERP appears to
intend to begin wood pellet manufacturing,71 it has not applied for or obtained coverage under an
NPDES permit for the wastewater discharges that will result from the wood pellet mill. AERP
must obtain an NPDES permit for its wastewater discharges prior to commencing manufacturing
operations. Winyah Rivers urges AERP to immediately apply for an NPDES wastewater
discharge permit in order to avoid additional Clean Water Act violations once the wood pellet
mill commences operations.
As noted, the Clean Water Act prohibits the discharge of a pollutant into the waters of the
United States without an NPDES permit.72 Based on AERP's descriptions of its steam explosion
manufacturing process, the wood pellet mill is expected to at least discharge non -contact cooling
water into the nearby Jacob Branch and Lumber River through two discrete wastewater
outfalls.73 Additional wastewater discharge is also possible in the form of the volatile organic
compound condensate or water extracted from such Condensate, which is produced during the
steam explosion process. Each of these constitutes the discharge of a "pollutant" within the
meaning of section 502 of the Act.74 AERP must therefore apply for an NPDES permit prior to
discharging its wastewater and will be in further violation of the Clean Water Act if it fails to do
so.
The well water at the Facility, which according to AERP will be the source of the non -
contact cooling water, is heavily contaminated by chemical pollutants. As stated in the 2006
Notice of Brownfields Property, the groundwater at the Facility is contaminated with chlorinated
solvents and volatile organic compounds from former dry cleaning operations at the site,
including benzene, dichloroethene, trichloroethene, tetrachloroethene, and vinyl chloride.
7$
71 See Air Permit No. 10636R00.
72 33 U.S.C. § § 1311(a), 1342.
73 Two wastewater outfalls for the Facility have been identified in a NPDES permit for Alamac American Knits, the
prior owner of the industrial site. Those permitting documents identify the wastewater outfalls at the following GP
coordinates: 0utfal1 001 to the Lumber River, located at approximately 34' 36' 32.6", -79' 0' 32.2"; 0utfal1 002 to
Jacob Swamp, located at approximately 34' 35' 13.7", -79' 0' 12.4". See Modification for NPDES Permit No.
NC0004618 at PDF 13 (map).
74 33 U.S.C. § 1362(6) (defining "pollutant'' to include "dredged spoil, solid waste, incinerator residue, sewage,
garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar, dirt and industrial ... waste discharged into water").
75 Notice of Brownfields Property 06001, at 2-3. Because AERP has failed to apply for an NPDES permit for its
wastewater discharges, it is unclear exactly where the well water will come from on the site. Regardless, because
the site has been designated as a Brownfield, AERP must comply with the additional land -use restrictions imposed
on the property under N.C. Gen. Stat. § 130A-310.35. These Srownfields restrictions specifically require that "no

Notice of Violations and Intent to Sue
August 11, 2020
Page 15 of 19
- Statements made by AERP to its investors indicate that AERP intends to commence
operation of the wood pellet mill shortly after receiving a final air quality permit from DAQ.76
The final air permit was issued on August 3, 2020. Despite the fact that AERP intends to
discharge polluted wastewater into Jacob Branch and the Lumber River in the apparent near
future, AERP has not applied for nor is covered by an NPDES permit as required by the Clean
Water Act for its wood pellet manufacturing wastewater discharges.77 Before AERP can obtain
an NPDES permit for its wastewater, the Division of Water Resources must complete the
permitting process including at least a 45-day notice period and the opportunity for the public to
request a public hearing. See N.C. Gen. Stat. § 143-215.1. AERP must not begin its wood pellet
operations prior to obtaining an NPDES permit. Winyah Rivers urges AERP to immediately
take steps to obtain a valid NPDES permit and prevent these future Clean Water Act violations.
V. PERSONs GIVING NOTICE
Winyah Rivers Alliance is a not -for -profit environmental organization headquartered in
Conway, South Carolina. The mission of Winyah Rivers Alliance is to protect, preserve,
monitor and revitalize the health of the lands and waters of the greater Winyah Bay Watershed
(encompassing the watersheds of the Lumber, Pee Dee, Lynches, Black, and Waccamaw Rivers).
Winyah Rivers encompasses the Lumber Riverkeeper® Program, and it works to protect the
Lumber River basin, as well as the entire Winyah Bay Watershed, so that swimmers, fishers,
activities that encounter, expose, remove or use groundwater" on the developed half of the property may occur
"without such prior sampling and analysis of groundwater -as DENR [now, Department of Environmental Quality
("DEQ")] may require and submittal of the analytical results to DENR." Notice of Brownficlds Property 06001, at
4-5. If the results reveal "contamination in excess of North Carolina's groundwater quality standards," then the
proposed activities cannot occur without DEQ's approval, subject to conditions that DEQ may impose. Id at 5.
Currently, the only approved use for any groundwater at the developed half of the property is only for process
wastewater in the manufacture of textiles. Id. at 4.
�6 See, e.g., SP Angel, Spec Sits Research: Active Energy Group Plc, NC DAQ Air Permit 10636ROO Issued (Aug, 4,
2020), htti2s://ww%v.acgplc.com/wp-content/uploads/2020/08/AEG 04082020 Note. df("The target is to produce
CoalSwitch'm biomass black pellets by year-end 2020."); Michael Rowan, active Energy Group — Full Year• Resulls
at 04:23 (June 1, 2020), https:/Iw%vw.brrmedia.eo.uklbroadcasts-
embed15e61 ] a7a9672d83b987776d]/eventl?livelink=true&poaun=true (stating that Active Energy Group expects to
have the CoalSwitch plant "up and running this year"); Allenby Capital, Company Nole: Active Energy Group plc
at 10 (June 1, 2020), https.f/www.aegplc.comlinvestorslresearchl (download available: A][enby Capital Research)
(stating that construction of the pellet plant "is expected to take around three to four months to complete").
77 Alamac American Knits, the prior owner of the Facility, held an NPDES permit (NC4004618) for its wastewater
discharges. Aithough this NPDES permit was transferred to Lumberton Energy Holdings (i.e., AERP) in April
2019, the transfer document explicitly states that the permit does not cover wastewater discharges that will result
from AERP's wood pellet manufacturing operations. See Modification of NPDES Permit No. NC0004618 at Permit
Cover Sheet. At the time the permit was transferred to AERP, a new condition was added to specifically require
that: "Prior to any resumption of discharge, the permittee must provide the Division with an updated renewal
application to document the change in wastewater characteristics, as well as an updated analysis of alternatives to
wastewater discharge." Id. at Part I, p. 10. A thorough review of DWR's electronic database indicates that AERP
has not submitted an updated application or relevant documentation to DWR. This was also confirmed by DEQ
staff on August 5, 2020. See Email from Elizabeth Rasheed, Attorney, Southern Environmental Law Center, to
Sergei Chernikov, Acting Supervisor, NPDES Industrial Permitting, DWR (Aug. 5, 2020) (memorializing phone
conversation) (Attachment 14).

Notice of Violations and Intent to Sue
August 11, 2020
Page 16 of 19
boaters, and other people can enjoy and use the watershed and its rivers and streams. Winyah
Rivers achieves its mission by educating the public, advocating for sound public policies, and
participating, where necessary, in legal and administrative proceedings.
Winyah Rivers has approximately 400 members throughout the Winyah Bay Watershed,
including members who reside near or otherwise use and enjoy the Lumber River downstream of
the Facility. The quality of the Lumber River and its tributary Jacob Branch affect the
recreational, aesthetic, cultural, and environmental interests of Winyah Rivers' members, and the
violations identified alcove have negatively impacted these interests_
As required by 40 C.F.R. § 135.3(a), the name, address, and telephone number of the
person giving notice of intent to sue are:
Christine Ellis, Executive Director
Winyah Rivers Alliance
P.D. Box 554 (301 Allied Drive)
Conway, SC 29528
843-349-4007
VI. IDENTIFICATION ON LEGAL COUNSEL
Winyah Rivers is represented by legal counsel in this matter. Pursuant to 40 C.F.R.
§ 135.3(c), the contact information for those providing legal counsel at the Southern
Environmental Law Center are as follows:
Heather Hillaker
Elizabeth Rasheed
Kelly Moser
Southern Environmental Law Center
601 West Rosemary Street, Suite 220
Chapel Hill, NC 27516-2356
919-967-1450
hh i l lakere,selene.org
erasheed selcnc.or
kmaser(a-,se1ene.org
VII. NOTICE OF INTENT TO SUE
As described above, AERP has been, and continues to be, responsible for recurrent
violations of the Clean Water Act by discharging stormwater into surface waters without an
NPDES permit. Under section 505 of the Clean Water Act, Winyah Rivers will initiate a citizen
suit against AERP once the 60-day notice period has expired or soon thereafter, unless the
violations described above are fully redressed.

Notice of Violations and Intent to Sue
August 11, 2020
Page 17 of 19
If litigation is necessary, Winyah Rivers will seek redress for the violations described in
this letter, including injunctive relief, costs, and attorneys' fees pursuant to 33 U.S.C. § 1365(a)
and civil penalties pursuant to 33 U.S.C. § 1319(d). Pursuant to section 309(d) of the Clean
Water Act,78 and the Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4,
each separate violation of the CIean Water Act subjects the violator to a penalty of up to
$55,800.00 per day per violation for all violations that occurred after Nlovember 2, 2015 where
penalties are assessed after January 13, 2020. Winyah Rivers will scek the full penalties allowed
by law.
In addition to civil penalties, Winyah Rivers will seek declaratory and injunctive relief
preventing further violations of the Clean Water Act pursuant to sections 505(a) and (d),79 and
other such relief as is permitted by law. Winyah Rivers will seek an order from the Court
requiring AERP to obtain NPDES permit coverage and to correct all other identified violations
through direct implementation of control measures and demonstration of full regulatory
compliance.
Winyah Rivers reserves the right to add additional claims to the specific Clean Water Act
violations set forth above based on the same or a similar pattern of violations. Winyah Rivers
also reserves the right to seek additional remedies under state and federal law and does not
intend, by giving this notice, to waive any other rights or remedies.
During the relevant notice period, Winyah Rivers is willing to discuss effective remedies
for the violations noted in this letter. If you wish to pursue negotiations in the absence of
litigation, you should initiate such negotiations within the next twenty (20) days so that they may
be completed prior to completion of the notice period. Winyah Rivers has retained the assistance
of the counsel listed below, and all responses to this letter should be directed to the undersigned
counsel.
Thank you for your prompt attention to this matter.
Sincerely,
A44�O4� $a�x�
Heather Hillaker
Staff Attorney
7E 33 U.S.C. § 1319(d).
79 33 U.S.C. §§ 1365(a), (d).

Notice of Violations and Intent to Sue
August 11, 2020
Page 18 of 19
&q�� 4'Ll
Elizabeth Rasheed
Associate Attorney
Kelly -Moser
Senior Attorney
Southern Environmental Law Center
601 West Rosemary Street, Suite 220
Chapel Hill, NC 27516-2356
[phone]
hhi llaker(@se Icnc.org
e ras h eed a,se 1 cn c.org
kmoser selcnc.or
Enclosures: Appendix, Attachments 1-14
cc (via certified mail, with enclosures):
Andrew Wheeler, Administrator
U.S. Environmental Protection Agency
Office of the Administrator
Mail Code 1101A
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
Mary S. Walker, Acting Administrator
U.S. Environmental Protection Agency, Region IV
Sam Nunn Atlanta Federal Center
Mail Code 9T25
61 Forsyth Street, S.W.
Atlanta, GA 30303-8960

Notice of Violations and Intent to Sue
August 11, 2020
Page 19 of 19
Michael S. Regan, Secretary
North Carolina Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
Brian Wrenn, Director
Division of Energy, Mineral, and Land Resources
North Carolina Department of Environmental Quality
1612 Mail Service Center
Raleigh, NC 27699-1612
Danny Smith, Director
Division of Water Resources
North Carolina Department of Environmental Quality
1611 Mail Service Center
Raleigh, NC 27699-161 1
cc (via email and certified mail, without enclosures):
Harvey -Godwin, Jr., Tribal Chair
Lumbee Tribe of North Carolina
6984 N.C. Highway 711 West
P.G. Box 2709
Pembroke, NC 28372
h odwin lumbeetribe.com
Wendy Moore, Chair Agriculture/NaturaI Resources Subcommittee
Lumbee Tribe of North Carolina
6984 N.C. Highway 711 West
P.Q. Sox 2709
Pembroke, NC 28372
wend .moore lumbeetribe.com