NC0000272_SELC Comment Letter 316(a) Study_20120413

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SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 22 SOUTH PACK SQUARE,SUITE 700 - -Feosimde 828-253-,2Q24
ASHEVILLE,NC 28801-3494 V (
April 13, 2012
L ; APR 17 2012
Via First Class US Mail
C T!—N
Chuck Cranford - ----- - - ,F
Supervisor, Surface Water Protection
Division for Water Quality
North Carolina Department of Environment and Natural Resources
2090 US Highway 70
Swannanoa,NC 28778
Re:_316(a) Proposed Study Plan Submitted by Blue Ridge Paper Products Inc.
Dear Mr. Cranford,
Please accept these comments on behalf of the Western North Carolina Alliance
("WNCA") and Clean Water for North Carolina("CWFNC") regarding the proposed 316(a)
study plan submitted by Blue Ridge Paper Products (`Blue Ridge Paper") on February 20, 2012.
WNCA is a regional environmental advocacy group that marshals grassroots support to
keep forests healthy, air and water clean, and communities vibrant using a combination of policy
advocacy, scientific research, and community collaboration. CWFNC is a statewide
environmental justice organization that provides technical and strategic support to local
community efforts on water-quality-related, drinking water, and other environmental health
issues. Both of these organizations have members who live near and recreate upon the Pigeon
River and who value healthy aquatic life.
Section 316(a) of the Clean Water Act provides narrow authority for a variance from
water quality standards for temperature only when an applicant demonstrates that water quality
standards are "more stringent than necessary to assure the protection and propagation of a
balanced, indigenous population of shellfish, fish, and wildlife." 33 U.S.C. § 1326(a). As the
Environmental Protection Agency ("EPA")recognized,Blue Ridge Paper's 2006 316(a)
demonstration was insufficient.
Nonetheless, the proposed study plan asserts that Blue Ridge Paper"will use the May
2006 successful 316(a) Demonstration as a template. . . ." February 2012 316(a) Study Plan on
page 14. The May 2006 Demonstration was not successful—EPA concluded that it failed to
demonstrate that the alternative effluent limitation sought by BRPP protected a balanced
indigenous population of aquatic life. BRPP's study protocol must address the gaps in its 2006
316(a) demonstration. We are pleased that the proposed study plan addresses several of these
gaps. For example, we commend Blue Ridge Paper for studying other causes of pollution and
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for using an investigation team that will become certified in North Carolina Department of Water
Quality("DWQ")testing protocols. But we remain concerned about other gaps.
I. Previous Thermal Limits Are Unacceptable Because Previous Thermal Limits
Did Not Protect a Balanced Indigenous Population.
The proposed study plan indicates that the thermal limits imposed by the Blue Ridge
Paper's current 2010 NPDES permit"may be adjusted as a result of this Demonstration."
February 2012 316(a) Study Plan on page 9. The 2010 NPDES permit imposed a more
protective limitation on Blue Ridge Paper's alteration of Pigeon River temperatures than
previous permits required. Between 1984 and 2010, Blue Ridge Paper could not exceed, as a
monthly average, a difference of 13.9°C between monitoring locations upstream and downstream
of the mill's discharge point. The 2010 permit reduced the monthly average difference between
upstream and downstream locations to 8.5°C. In 2006, there was no balanced indigenous
population downstream of the mill's discharge point because the fish species composition had
shifted to warmwater species, indigenous shellfish were depauperate, and pollution-tolerant
shellfish species were predominant. Given that the delta limit of 13.9°C was insufficient to
protect a balanced, indigenous population, the upcoming 316(a) demonstration is limited to
demonstrating, at most,that the more protective limit of 8.5°C imposed by the current 2010
NPDES permit protects a balanced, indigenous population of fish, shellfish, and wildlife.
As Blue Ridge Paper's study protocol recognizes, a successful 316(a) renewal application
must establish that"the requirements of the current NPDES Permit have assured the protection
and propagation of a balanced indigenous population." February 2012 316(a) Study Plan on
page 9. Similarly, EPA directed that Blue Ridge Paper must in this proposed study plan describe
how it will "clearly demonstrate that affected communities have not shifted to primarily heat
tolerant assemblages." February 2012 316(a) Study Plan on page 3.
The 2006 316(a) demonstration clearly demonstrated that a shift to heat tolerant
assemblages occurred under the 316(a) alternative limits applicable under Blue Ridge Paper's
2001 NPDES Permit. The Pigeon River is naturally a cool-water mountain stream, yet it has
characteristics of a warm-water stream below the mill. Blue Ridge Paper's 2006 316(a)report
states, "The fish community in the NC reach downstream of the Mill has more characteristics of
a warm-water fish community than does the river upstream of the Mill."2006 Canton Mill
316(a) B&I Study, on page 32. Blue Ridge Paper also noted that there are seven"predominantly
cool water" species which are "restricted to or much more abundant upstream of the Canton
mill." Lary Wilson, 2005 Biological Assessment Study, May 2006, on page 50-51. DWQ
biologists acknowledged that, in the absence of Blue Ridge Paper's discharge,the Pigeon River
would be a cool water stream and that species composition varies above and below the mill's
discharge.
In the face of that imbalance, Blue Ridge Paper asserted in its prior § 316(a)
demonstration that"Section 316(a)requires `a' balanced community be present as opposed to
`the' balanced community." In other words,Blue Ridge Paper claimed that"there is no
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requirement that the downstream community approximate that present during pre-discharge
times or that it be identical to the community upstream of the discharge."2006 Canton Mill
316(a) B&I Study, on page 4.
To the contrary, federal regulations state that a balanced, indigenous community"may
not include species whose presence or abundance is attributable to alternative effluent limitations
imposed pursuant to section 316(a)." 40 C.F.R. § 125.71(c). Applying this authority, EPA's
Environmental Appeals Board ("EAB"), in Public Service Company of Indiana, 1 E.A.D. 590
(1979), wrote:
Section 316(a) must . . . be read in a manner which is consistent with the [Clean
Water] Act's general purposes. Consequently, § 316(a) cannot be read to mean'
that a balanced indigenous population is maintained where the species
composition, for example, shifts . . . from thermally sensitive to thermally
tolerant species. Such shifts are at war with the notion of "restoring" and
"maintaining"the biological integrity of the Nation's waters.
Pub. Serv. Co. of Ind., 1 E.A.D. 590, 28 (1979) (emphasis added). More recently,the EAB again
emphasized that a 316(a) demonstration may not"ignore the fact that the abundance of certain
species . . . has been altered over the past several decades"because such an interpretation would
be "inconsistent with the regulations,the legislative history of section 316(a),the purpose of the
[Clean Water Act], and prior case law." In Re Dominion Energy Brayton Point, 12 E.A.D. on
page 558.
This rule applies even when factors other than alternative 316(a) thermal limits contribute
to the imbalance. The Clean Water Act directs that impacts of the thermal discharge must be
considered while"taking into account the interaction of such thermal component with other
pollutants." 33 U.S.C. § 1326(a). The regulations further clarify that the applicant's 316(a)
demonstration must show that the thermal variance will support a balanced, indigenous
population of fish, shellfish, and wildlife after"considering the cumulative impact of its thermal
discharge together with all other significant impacts on the species affected." 40 C.F.R. §
125.73(a). Thus, a 316(a) applicant must demonstrate"that the incremental effects of the
thermal discharge will not cause the,aggregate of all relevant stresses . . . to exceed the Section
316(a)threshold." Pub. Serv. Co. of N.H. EPA App. LEXIS 16, 19 (EPA App. 1977). In short,
signs of biological impairment are not disregarded merely because thermal discharge is not the
exclusive cause.
In its proposal,Blue Ridge Paper states, "The Brayton Point decision [from EPA's
Environmental Appeals Board] made a strong point that the trend in community composition
mattered in establishing alternative thermal limitations on the discharge." The Brayton Point
decision certainly discussed the degrading conditions in the thermal discharge site. But Brayton
Point does not state that the trend should determine the thermal limits. The only factor that
determines the thermal limits is protection of a balanced,indigenous population.
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In the Brayton Point case, the discharger claimed that the EPA should only consider the
population of organisms "currently occupying the Bay." Branton Point on page 555. The EAB
refuted this claim:
Under [the discharger's] interpretation of the BIP, a discharger who obtains a
section 316(a) variance that substantially (by itself or with other pollutants and
stressors) alters the "initial" populations of shellfish, fish, and wildlife in a water
body can, five years later in a subsequent permit renewal, rely on information
demonstrating that its second variance will maintain the new, but significantly
degraded populations of shellfish, fish, and wildlife. . . . It is clear . . . that such a
scenario is the very situation in which a section 316(a) variance was not intended
to be applicable. Such an interpretation and the resultant scenario would
undermine the purpose of the Act. Brayton Point on page 557-558.
The Brayton Point decision makes clear that maintaining degraded populations of fish, shellfish,
and wildlife would contravene the Clean Water Act. Improvement from degraded conditions,
while a positive sign, does not satisfy the test for a 316(a) variance. Blue Ridge Paper has
acknowledged that,before Pigeon River conditions began improving, "much of the Pigeon River
was biologically depauperate except for pollution-tolerant microbes and some invertebrates."
2006 Canton Mill 316(a)B&I Study, on page 11. The recent improvements in the Pigeon River
are laudable,but a trend of improvement from biological devastation does not establish that a
balanced, indigenous community currently exists.
Because Blue Ridge Paper's 2006 316(a) demonstration failed to demonstrate that the
alternative thermal limits under its 2001 NPDES permit were protective of a balanced indigenous
population of aquatic life, EPA required that the current 2010 NPDES permit impose tighter
restrictions on thermal discharge. Even if updated studies under the current permit cycle find that
a balanced indigenous community has been achieved in the Pigeon River since the
implementation of that new limit,that finding would establish only that the 8.5°C Delta
temperature limit imposed under the current permit supports a balanced indigenous population of
aquatic life.
II. Blue Ridge Paper's Examination of Mollusks Must Be Thorough.
We are pleased that.the proposed study plan specifically includes mussel/shellfish
populations. But the proposed study plan provides no information about which species Blue
Ridge Paper will target, which sampling methods it will use,where it will sample, and whether it
will sample in locations upstream and downstream of the mill. Without additional information, it
is impossible to assess from this proposed study plan whether the survey protocol for mussels '
will meet legal requirements for a 316(a) variance.
In addition, Blue Ridge Paper has proposed the same list of Representative Important
Species it used in 2006, which did not include mollusks. Blue Ridge Paper should add mollusk
species to its list.
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III. Blue Ridge Paper Should Sample at Regular Intervals Upstream.
Blue Ridge Paper should sample at regular intervals upstream of the mill. According to
the current plan,Blue Ridge Paper is planning to sample at approximately 2-mile intervals
downstream of the mill. But,upstream of the mill,Blue Ridge Paper will only,sample
immediately upstream, at river miles 64.5/64.9, and then another five miles upstream, at river
mile 69.5, at the confluence of the East and West Forks of the Pigeon River. February 2012
316(a) Study Plan on page 13. The Pigeon River is ecologically different at the confluence of
the East and West Forks. Blue Ridge Paper should sample twice in this five-mile gap between
river miles 64.5/64.9 and 69.5 to present a clear picture of the aquatic communities in the Pigeon
River above the mill.
IV. Blue Ridge Paper Should Emphasize Low Flow Days in Its Thermal Modeling.
In addition to biological sampling, Blue Ridge Paper plans to conduct thermal modeling.
The thermal modeling is currently planned for a 4-6 week period in July and August of 2012 and
another 4-6 week period in January and February of 2013. February 2012 316(a) Study Plan on
page 12. In addition,Blue Ridge Paper plans to set up cross-section models on a"relatively low
river flow day and a moderate river flow day." Id. on page 12. Blue Ridge Paper should also
conduct thermal modeling in September. On September 7, 2007,there was a fish kill
downstream of the mill in which over 8,434 fish died. The flow that day was below 7Q10. Blue
Ridge Paper should endeavor to collect the thermal cross-section data during an extremely low
flow day of the year, not simply a"relatively" low flow day,because aquatic life are most
vulnerable during extreme low flows.
V. Blue Ridge Paper Should Justify Its Reference Stream Choice.
We commend Blue Ridge Paper for adding a reference river to its study plan. Data from
a reference river will be helpful in assessing the state of the Pigeon River. But we do not
understand why Blue Ridge Paper chose the Swannanoa River. The drainage basin of the
Swannanoa River is 1/3 the size of that for the Pigeon River, and the Swannanoa is much smaller
than the Pigeon. Some sections of the Swannanoa, including a section near Warren Wilson
college where Blue Ridge Paper plans to sample, are listed as impaired on the North Carolina
303(d) list. In addition,the proposed Swannanoa sampling locations are at a lower altitude than
the Pigeon River sampling locations.' The Upper French Broad River, downstream of Rosman,
or a suitable altitude reach of the Nolichucky may be more appropriate for comparing aquatic
life. At minimum, Blue Ridge Paper must justify its selection of the Swannanoa River as a
reference stream.
Page 14 of the Proposed Study Plan references a testing location at exit 40 off I40. The map on page 17
references exit 50,as does page 6 of the Study Plan. We presume the reference to exit 40 on page 14 is a typo.
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VI. Blue Ridge Paver Should Sample Once More Time Durin¢the Year.
We are pleased that Blue Ridge Paper plans to"intensively survey fish, macro-
invertebrates/shellfish, and perphyton." February 2012 316(a) Study Plan on page 13. The
previous 316(a) study in 2006 only sampled one time at each specific sampling location. We
recommend that Blue Ridge Paper sample at each location at least twice to present a more
complete picture of biological conditions at each site and to capture any seasonal dynamics. For
example, during colder months, the warm temperatures downstream of the mill's discharge may
provide a refuge for invasive species.
Thank you very much for your consideration of these comments.
Sincerely,
Austin DJ Gerken
Amelia Burnette
Southern Environmental Law Center
22 South Pack Square, Suite 700
Asheville, NC 28801-3494
Julia F. Youngman
Southern Environmental Law Center
601 W. Rosemary Street, Suite 220
Chapel Hill,NC 27516
On behalf of:
Hartwell Carson
French Broad Riverkeeper
Western North Carolina Alliance
29 N. Market St., Suite 610
Asheville,NC 28801
Hope Taylor
Executive Director
Clean Water for North Carolina
29 %z Page Ave.
Asheville,NC 28801
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cc:
Marshall Hyatt
US EPA, Region 04
Atlanta Federal Center
61 Forsyth St SW
Atlanta, GA 30303-3104
hyatt,[e-mail]
William Clarke
Roberts & Stevens, P.A..
PO Box 7647
Asheville,NC 28802
[e-mail]
Richard W. Krieg, Esq.
Lewis, King, Krieg&Waldrop, PC
One Centre Square
620 Market Street, 5th Floor
Knoxville, TN 37902
[e-mail]
Sueanna Sumpter, Esq.
Assistant Attorney General
N.C. Department of Justice
42 N. French Broad Ave.
Asheville,NC 28801
[e-mail]