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Home My WebLink AboutNC0000272_Settlement Agreement_20140605 STATE OF NORTH CAROLINA IN THE OFFICE OF COUNTY OF HAYWOOD ADMINISTRATIVE HEARINGS Cooke County,Tennessee, et al., ) Petitioners, ) ) V. ) North Carolina Department of Environment and ) Natural Resources—Division of Water Quality, } Respondent, } 10 EHR 4341 and } } Blue Ridge Paper Products Inc. } Respondent-Intervenor. } } STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE Cooke County,Tennessee,et al., } Petitioners, } V. ) North Carolina Environmental Management ) Commission acting by and through its NPDES ) Committee,and the NPDES Committee, ) 10 EHR 4982 Respondent, ) and ) Blue Ridge Paper Products Inc., ) Respondent-Intervenor. ) SETTLEMENT AGREEMENT Respondents North Carolina Division of Water Resources (formerly Division of Water Quality) (the"Division"),the North Carolina Environmental Management Commission acting by and through its NPDES Committee, and the NPDES Committee(the "NPDES Committee"), and Petitioners Cooke County, Tennessee, CIean Water Expected for East Tennessee, Clean Water for North Carolina, the Tennessee Chapter of the Sierra Club, Tennessee Scenic Rivers Association, and the Western North Carolina Alliance ("Petitioners"), and Respondent- Intervenor Blue Ridge Paper Products Inc. ("Respondent-Intervenor"), hereby enter into this Settlement Agreement pursuant to N.C. Gen. Stat. § 15OB-31(b). The Division, the NPDES Committee, the Petitioners and Respondent-Intervenor shall be referred to herein as "Party" or "Parties." Whereas, this matter arose when Petitioners filed two Petitions for Contested Case Hearing in the Office of Administrative Hearings: (1) 10 EHR 4341 was filed on July 23, 2010, challenging. the Division's issuance of NPDES Permit No. NC0000272 (the "Permit") to Respondent-Intervenor and (2) 10 EHR 4982 was filed against the NPDES Committee on August 13, 2010, challenging its decision to reissue, with revisions, a variance to Respondent- Intervenor from North Carolina's water quality standard for color; Whereas, Petitioners, the Division, the NPDES Committee and Respondent-Intervenor reached a Partial Settlement Agreement in April 2012 with respect to Petitioners' claims regarding temperature which were set forth in 10 EHR 4341; Whereas, as part of the Partial Settlement Agreement, the Parties agreed to a stay of the remaining issues in the Contested Cases while Respondent-Intervenor conducted a color perception study on color in the Pigeon River in North Carolina and expedited a Balanced and Indigenous Species study under Section 316(a)of the Federal Clean Water Act; Whereas, Respondent-Intervenor has completed the Color Perception Study and the updated 316(a) study and submitted the reports to the Division and the NPDES Committee with a copy to counsel for Petitioners; Whereas, the remaining issues in the Contested Cases are now scheduled for hearing in November 2014; 2 Whereas, the Parties now desire to settle all remaining issues in 10 EHR 4341 and 10 EHR 4982; It is Now Therefore Agreed as follows: Without any Contested Case hearing, and without any admissions of liability the Petitioners, the Division, the NPDES Committee and the Respondent-Intervenor agree to settle these Contested Cases on the following terms and conditions: 1. This Settlement Agreement shall include all six original Petitioners, Clean Water Expected East Tennessee, Cockc County, Tennessee, and Clean Water for North Carolina, Western North Carolina Alliance, Tennessee Scenic Rivers Association, and the Tennessee Chapter of the Sierra Club. 2. This Settlement Agreement disposes of all pending matters in 10 EHR 4341 and 10 EHR 4982 and all prior recommended interlocutory decisions of the Office of Administrative Hearings in these cases. 3. By entering into this Settlement Agreement, the Parties do not concede the merits of any issue. 4. Respondent-Intervenor commits to submitting a timely application for renewal of NPDES Permit NC 0000272. 5. Should Respondent-Intervenor request renewal or reissuance of the variance from the North Carolina water quality standard for color in connection with its application for renewal of NPDES Permit NC 0000272, Respondent-Intervenor agrees that such request will be made in accordance with N.C. Gen. Stat. § 143-215.3(e) and 40 CFR 131 and such other law and regulation as may be applicable. If Respondent- Intervenor requests renewal or reissuance of the variance in connection with its application for renewal of NPDES Permit NC 0000272, Respondent-Intervenor agrees it will submit evidence in support of the request in accordance with 40 C.F.R. 131. 6. The NPDES Committee agrees that, if Respondent-intervenor requests renewal or reissuance of the variance from the North Carolina water quality standard in connection with its application for renewal of NPDES Pen-nit NC 0000272, the 3 NPDES Committee, in considering the request for renewal or reissuance of the color variance, shall make its determination according to applicable law and regulation. Prior to granting a variance, the NPDES Committee shall find that compliance with the North Carolina water quality standard for color cannot be achieved by application of best available technology found to be economically reasonable at the time of Respondent-Intervenor's request for renewal or reissuance of such variance, and would produce serious hardship without equal or greater benefits to the public, provided that such variance shall be consistent with the provisions of the Federal Water Pollution Control Act as amended and its implementing regulations. 7. The Parties agree that any request for renewal or reissuance of the variance from the North Carolina water quality standard in connection with the application for renewal of NPDES Permit NC 0000272, will be reviewed by the United States Environmental Protection Agency, Region IV (EPA) for compliance with federal requirements under the terms of the NPDES Memorandum of Agreement between the State of North Carolina and the EPA dated October 15, 2007 and related documents setting forth State and federal responsibilities for the NPDES program. 8. The Division and the NPDES Committee agree to take all reasonable steps to issue an NPDES Permit within 24 months of receipt of a complete permit renewal application. Likewise, the Division and the NPDES Committee agree to take all reasonable steps to make a determination on any requested color variance within 24 months of receipt of a complete request for a variance. 9. Within ten days of execution of this Settlement Agreement by representatives of all Parties, Petitioners shall file a Notice of Withdrawal of Contested Case Petition with prejudice in 10 EHR 4341 and 10 EHR 4982. Each Party shall bear its own costs and attorney's fees. 10.The Parties agree to cooperate fully in executing any and all supplementary documents and in taking all additional actions that may be necessary to give full force and effect to the terms of this Settlement Agreement. 11.This Settlement Agreement is a compromise of disputed claims and is not to be construed as an admission by any Party to this agreement. 4 12.This Settlement Agreement may not be modified, altered or changed except in a written document that is signed by all Parties. Such document shall make specific reference to this Settlement Agreement. 13.The Parties represent that any necessary corporate and governmental approvals necessary for the binding execution of this Settlement Agreement have been obtained. The persons executing this Settlement Agreement warrant and represent that they have full authority to sign this Settlement Agreement on behalf of the Party or Parties for whom they are acting. 14.This Settlement Agreement shall be binding upon the Parties, their successors and assigns. THIS the 41 day of September,2014. )AA A t Lv'� LAA4—L-) -Ustin D.J.Gerken,Jr. Amelia Burnette Southern Environmental Law Center 22 South Pack Square, Suite 700 Asheville,NC 28801 Julia F.Youngman Southern Environmental Law Center 601 West Rosemary Street, Suite 220 Chapel Hill, NC 27516-1450 Attorneys for Petitioners L--0 Wk'- Jane L. Oliver Assistant Attorney General NC Department of Justice P.O. Box 629 Raleigh,NC 27602 Attorney for NC Division of Water Quality 5 l cassel puty Attorney General epartment of Justice PO Box 629 Raleigh,NC 27602 Attorney for NC Environmental Management Commission acting by and through its NPDES Committee William Clarke Roberts& Stevens, PA PO Box 7647 Asheville,NC 28802 828/258-6919 Richard Krieg Lewis, Thomason, King, Krieg& Waldrop One Centre Square 620 Market Street, 5th Floor Knoxville, Tennessee 37902 Attorneys for Respondent-Intervenor 6