NCG02 Comments from SELC

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 48 PATTON AVENUE,SUITE 304 Facsimile 828-258-2024
ASHEVILLE,NC 28801-3321
June 16, 2021
Via Electronic Mail and U.S. Mail R C E NF-
Michael Meloy JUN 23 292-1
Stormwater Program
Division of Energy,Mineral, and Land Resources � � QUALITY
STORMWATE7ER PERMITTING
1612 Mail Service Center
Raleigh,North Carolina 27699-1612
[e-mail]
Re: General Permit No.NCG020000 for Mining Operations
Dear Mr. Meloy,
On behalf of the French Broad Riverkeeper,MountainTrue, Defenders of Wildlife, and
the Southern Environmental Law Center,we submit the following comments on proposed permit
NCG020000, authorizing the discharge of stormwater from mining sites and operations to rivers
and streams in North Carolina. This permit was renewed last summer, and we submitted
comments at that time. These comments are attached and incorporated by reference here.
Despite EPA's exhortation to cover at least some of these discharges with individual
NPDES permits, and DEQ's stated intention to do so back in 2015, no individual permits have
yet been proposed for facilities covered by this General Permit. In fact,the same General Permit
has been reissued with no changes. Thus,we reiterate the comments we provided last summer.
Again,we are focused on the feldspar ore mines and processing facilities along the North Toe
River, and our concerns about pollution in the North Toe remain unabated. 1 Of particular
concern are 1) acute turbidity,which we have noted in our previous comments supported by
sampling performed by the French Broad Riverkeeper; 2) ongoing fluoride discharges causing
exceedances of water quality standards; and 3)the lack of monitoring requirements or limits for
other pollutants known to result from feldspar mining practices.
Together with insufficient limitations in the individual NPDES permits for these
facilities,this General Permit for stormwater allows unacceptable impairments in waters that are
important for recreation and aquatic life. The changes we proposed in our previous comments
are necessary to comply with minimum requirements of federal and state law,to meaningfully
improve conditions in rivers and streams being impacted by stormwater runoff from mining, like
the North Toe River, and to meet the basic objective of the Clean Water Act(CWA)to restore
' These include Certificates of Coverage issued for the following feldspar mines and related operations to discharge
to the North Toe River and its tributaries: Pine Mountain Mine(NCG02027),Altapass(NCG020818),Sullins-
Wiseman(NCG020256),and Chalk Mountain Mine(NCG020257),operated by The Quartz Corps;and Unimin
Quartz(NCG020793),Buna(NCG020273),and Schoolhouse(NCG020795),operated by Sibelco N.A.
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and maintain the"chemical,physical, and biological integrity of the Nation's waters." 33 U.S.C.
§ 1251(a).
In particular, we urge the agency to perform the reasonable potential analysis for several
facilities to determine whether individual NPDES permits are warranted,which has been
encouraged by EPA and acknowledged by DEQ itself since at least 2015. EPA commented in
2015 that a reasonable potential analysis could already be conducted using existing data.2 "If
reasonable potential exists for these facility's discharges to cause or contribute to an exceedance
of any [water quality standard],the EPA would expect these facilities be covered under
individual NPDES permits."3 DEQ itself indicated the likely need to pursue individual
permitting for feldspar ore mining operations covered under NCG020000. According to agency
staff, "[i]t is likely these sites will transition into individual NPDES wastewater permits under
DWR after more data are collected and sooner than the GP expiration in five years."
In addition to imposing individual permits,the agency must reconsider its reliance on
"Best Management Practices" (BMPs) and impose numeric discharge limits on stormwater. As
we observed in our previous comments, stormwater runoff from the feldspar mines poses a
particular danger. Disposal practices by the mines, which appear to violate NPDES permit
conditions, have also likely changed the concentration and characteristics of stormwater from the
mines that have been subject to coverage under this General Permit, which historically has been
focused on a smaller and more conventional set of pollutants. The recent addition of monitoring
parameters for a limited number of facilities is insufficient to protect waters from the pollution
caused by stormwater from mining facilities,particularly where enough data already exists to
implement individual permits with numeric limits. At a minimum, any monitoring, limitations,
and benchmarks for feldspar ore mining must be expanded to include any other metals or other
pollutants that existing data indicate are discharging from the mines, like lead and copper.
Monitoring frequency must also be dramatically increased.
The existence of water-quality-limited segments, as well as the presence of the
endangered Appalachian elktoe and potentially other imperiled species, also require more
stringent monitoring requirements and discharge limitations in the North Toe River. DEQ
recognizes that the North Toe is water quality limited for total suspended solids and fluoride in
connection with individual permitting for industrial wastewater treatment systems, but fails to
account for these limitations in the context of NCG020000.5 As noted in our previous comments
and confirmed by more recent discharge monitoring reports, stormwater from mining facilities is
2 Letter from D.Diaz,EPA,to T.Vinson,DEMLR(Sept.3,2015),enclosing EPA Comments on 2015 Draft
NCG020000(discussing sampling in connection with Pine Mountain Mine(NCG20274),Altapass(NCG20818),
and Unimin Quartz(NCG20793)).
3 Id.
4 Email from B.Georgoulias,DWR Stormwater(Nov. 16,2015)(on file with DEQ).In individual NPDES permit
renewal drafts for processing facilities,for example NC0000353 and NC0000400,DWR likewise forecast the
potential for individual stormwater permits,
https://edoes.deq ne.Gov/WaterResources/DoeView.aspx?dbid=0&id=762448&page=1&searchid=639373f7-2db6-
495d-b89c-5991 cOa6eOdb&cr=1.
5 For example,https:Hdeq.nc.gov/news/events/feldspar-corporation-permit-nc0000353 ("Currently fluoride and total
suspended solids are water quality limited.").
2

a known contributor to total suspended solids and fluoride exceedances. Moreover,North
Carolina is required to follow certain procedures in administering the delegated NPDES program
where listed species and designated critical habitats are involved,6 and it must"develop site-
specific management strategies"for waters that"provide habitat for federally-listed aquatic
animal species that are listed as threatened or endangered." 15A N.C. Admin. Code 2B.0110.
By reissuing the same inadequate permit that was renewed last year,the agency has continued to
ignore its obligations to consider the special protections due to water-quality-limited segments,
as well as critical habitat for federally-listed species, in its delegated permit program.
Six years after acknowledging the problems with a General Permit for stormwater from
these mining operations, and with two opportunities to revise their strategy, DEQ has chosen to
simply perpetuate them. We urge the agency to reconsider the draft NCG020000 as outlined
here and in our attached previous comments.
We appreciate the opportunity to comment on the draft NCG020000. Please provide
direct notice via email or U.S. Mail of any issuance that is made or other action that is taken on
this permit.
Sincerely,
�Vw",Wk
Susannah R. Knox
Senior Attorney
Southern Environmental Law Center
cc: Via electronic mail only
Kip Tyler,EPA,[e-mail]
Craig Hesterlee, EPA,[e-mail]
6 NPDES Memorandum Of Agreement Between The State Of North Carolina And The United States Environmental
Protection Agency Region 4,at 12-13 (Oct. 15,2007), https://www.epa.gov/sites/production/files/2013-
09/do cuments/nc-mo a-npdes.pdf.
3

Attachment 1
Comment Letter from SELC to DEMLR, Permit Renewal for General
Permit No. NCG020000 for Mining Operations (Aug. 14, 2020)

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 48 PATTON AVENUE,SUITE 304 facsimile 828-258-2024
ASHEVILLE.NC 28801-3321
August 14, 2020
Via Electronic Mail and U.S. Mail
Annette Lucas
North Carolina Department of Environmental Quality
Division of Energy, Mineral, and Land Resources
1612 Mail Service Center
Raleigh,NC 27699-1612
[e-mail]
Re: Permit Renewal for General Permit No.NCG020000 for Mining Operations
Dear Ms. Lucas,
On behalf of the French Broad Riverkeeper, MountainTrue, Defenders of Wildlife, and
the Southern Environmental Law Center, we submit the following comments on the proposed
renewal of pollution discharge permit NCG020000, authorizing the discharge of stormwater
from mining sites and operations to rivers and streams in North Carolina.
The French Broad Riverkeeper works to monitor and protect the quality of our region's
waterways and advocates for safe and healthy waterways in the French Broad River watershed
by bringing together local residents and communities to identify pollution sources, enforce
environmental laws, and educate and empower the public. The French Broad Riverkeeper
program is part of MountainTrue. MountainTrue is a nonprofit organization whose mission
includes protecting streams and rivers from pollution in Western North Carolina. Defenders of
Wildlife is dedicated to the protection of all native animals and plants in their natural
communities. With more than a million members and activists, Defenders of Wildlife focuses on
wildlife and habitat conservation and the safeguarding of biodiversity.
General Permit NCG020000 provides permit coverage for stormwater discharges from
over 400 mining facilities across the state, with differing mining and processing practices.'
Feldspar ore mines and processing facilities along the North Toe River near Spruce Pine, in
Western North Carolina, are among the mining operations with polluted discharges covered by
NCG020000.2 We have observed and documented pollution from stormwater and wastewater
discharges from these mining operations for years and have advocated for stronger limits in
industrial discharge permits to address ongoing pollution of the North Toe River.
' In 2015 comments,EPA noted 424 mining facilities were covered by NCG020000.
2 These include Certificates of Coverage issued for the following feldspar mines and related operations to discharge
to the North Toe River and its tributaries: Pine Mountain Mine(NCG02027),Altapass(NCG020818), Sullins-
Wiseman(NCG020256),and Chalk Mountain Mine(NCG020257),operated by The Quartz Corps;and Unimin
Quartz(NCG020793),Buna(NCG020273),and Schoolhouse(NCG020795),operated by Sibelco N.A.
Charlottesville • Chapel Hill • Atlanta • Asheville - Birmingham • Charleston • Nashville • Richmond • Washington.DC
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The North Toe River provides recreation opportunities for paddlers, anglers, and
swimmers,boosts the local tourism economy, is home to trout, and provides critical habitat for
the federally protected Appalachian elktoe mussel. The recreation economy, trout, and other
aquatic species all depend on clear mountain rivers to thrive. As the state Wildlife Resources
Commission pointed out in recent comments on a mining permit,the North Toe River"is
recognized by the NC Natural Heritage Program as the North Toe River/Nolichucky River
Aquatic Habitat, a natural area rated Very High for the richness of rare species it contains."3
Multiple sensitive aquatic species of federal and state concern are in the vicinity of the mines,
including Sharphead Darter and Eastern Hellbender, as well as the endangered Appalachian
Ekktoe.
Several feldspar mines and mineral processing facilities operated by multinational
corporations are concentrated along the North Toe River.4 The polluted discharges from these
mining operations have negatively impacted the water quality of the North Toe River for
decades.5 In 2019, DEQ proposed to renew National Pollutant Discharge Elimination System
(NPDES)permits for the mineral processing facilities to discharge polluted wastewater from
treatment facilities into the river.6 In comments on those renewals,we noted that without more
stringent controls,mineral processing facilities would continue to operate under stale permit
limits insufficient to assure compliance with water quality standards. Our comments detailed
obligations of the agency to develop tighter effluent limitations through proper application of
technology-based and water quality-based limits.
We also provided the results of turbidity sampling data conducted by the French Broad
Riverkeeper over the last several years in the North Toe River. That sampling confirms the
turbidity problems are ongoing and acute. For reference, we include here those comments and
the sampling data, which is also relevant to effectively addressing stormwater discharges into
this same stretch of river. See North Toe River Map, Statement of H. Carson and Sampling
Summary, Att. A-C.
Turbidity is not the only problem in the North Toe River. EPA has recognized the
feldspar processing facilities are among top dischargers for fluoride and noted permit violations
3 Letter from WRC to DEMLR,Mining Permit Renewal for The Quartz Corp USA,Altapass Mine,Mitchell
County,MP 61-16(Feb. 17,2017),attached.
4 See note 2,supra. The Quartz Corps is headquartered in Paris,France. Sibelco is headquartered in Antwerp,
Belgium.Both companies supply global demand for high-purity quartz for application in high-tech industries.
5 For example,the North Toe River recently was listed as impaired for turbidity for over a decade. In 2019,we
submitted comments opposing DEQ's determination to remove a segment of the North Toe River from the state's
2018 303(d)list for turbidity impairment,because DEQ relied on a flawed methodology in finding data
"inconclusive"and did not consider other relevant data demonstrating that impairment is in fact ongoing.
6 Sibelco and Quartz Corps process ore using acid extraction and froth flotation at six processing facilities. From
upstream to downstream these facilities and related NPDES are: Sibelco's Schoolhouse facility(NC0000361),
Quartz Corps'Altapass facility(NC0000353),Sibelco's Crystal facility(NC0084620),Quartz Corps'K-T Feldspar
facility(NC0000400),Sibelco's North America facility(NC0000175),and Sibelco's Red Hill facility(NC0085839).
Based on information DEQ provided at the public hearing on the wastewater permits for processing facilities,those
permit limits have apparently remained somewhat static since 1995.
2

in its review of effluent data.8 Instream data from the last NPDES permit cycle show
exceedances of the fluoride standard are occurring in the North Toe River. The river is also
suffering impairment of recreation, aquatic life, and aesthetic narrative water quality standards.9
We urged DEQ to withdraw, substantially revised, and reissue for public comment those
individual NPDES permits. Those permits remain under review.
General Permit NCG020000 extends permit coverage for another major source of
historical pollution in the North Toe River: industrial stormwater from mining operations and
processing facilities. Also listed as covered under NCG020000 are certain categories of process
wastewater, including mine dewatering and slurry transport of raw mine material wastewater.
Rather than abate ongoing problems, the minor revisions proposed in NCG020000 will
perpetuate water quality problems in the North Toe and other waterbodies. Assuring the
discharges covered by this General Permit do not continue to contribute to water quality standard
violations will require significant revision. The changes discussed below are necessary to
comply with minimum requirements of federal and state law, to meaningfully improve
conditions in rivers and streams being impacted by stormwater runoff from mining, like the
North Toe River, and to meet the basic objective of the Clean Water Act(CWA)to restore and
maintain the "chemical,physical, and biological integrity of the Nation's waters." 33 U.S.C. §
1251(a). Although most of these comments focus on feldspar ore mining and processing, some
revisions are directed at the General Permit across all mining categories.
A. The Division Must Strengthen the General Permit to Protect Water Quality in
Compliance With the Clean Water Act
To meet the basic purpose of the Clean Water Act, the General Permit must impose
effluent limits and monitoring frequencies as stringent as necessary to ensure that the proposed
discharges will not cause or contribute to a violation of numeric or narrative water quality
standards (WQS), as required by Clean Water Act § 301(b)(1)(C), 40 C.F.R. § 122.4(a), (d), and
40 C.F.R. § 122.44(d)(1). State regulations impose a similar requirement: "No permit may be
issued when the imposition of conditions cannot reasonably ensure compliance with applicable
water quality standards and regulations of all affected states." 15A N.C. Admin. Code
21-1.0112(c) (final action on NPDES permit applications).
In NCG020000, the Division relies on "implementation of Best Management Practices
(BMPs) and traditional stormwater management practices" as a strategy to comply with the state
and federal water quality laws. 2020 Fact Sheet at 7. Instead of setting numeric limits, the fact
sheet asserts, "permit conditions are designed to be flexible requirements for developing and
implementing site specific plans to minimize and control pollutants in the stormwater discharges
associated with the industrial activity." 2020 Fact Sheet at 7. The Division's position is that this
8 See EPA,Technical Support Document for the 2010 Effluent Guidelines Program Plan,EPA 820-R-10-021 (Sept.
2011)at 9-14,9-19,https://www.epa.gov/sites/production/files/2018-05/documents/2010 eg-plan-tsd final sept-
2011.pdf.
9 See Statements of H.Carson and S.Evans and photographs at Att.B-E,attached to Feb.2019 comments.
3

complies with the Clean Water Act requirement to implement technology based controls. See
id.10
As we explain below, an effective strategy that ensures discharges from mining activities
will not contribute to violations of numeric or narrative water quality standards requires more
than is proposed in NCG020000.
1. Additional Monitoring Parameters for Mining Activities
DEMLR proposes to add several parameters and limitations across multiple types of
mines, including brick pits, lithium ore,phosphate, industrial sand, and feldspar ore mines. 2020
Fact Sheet at 3-4. We generally support the additional monitoring parameters for mining
categories listed. Collecting this expanded data will allow DEQ to better understand how
stormwater and wastewater discharges occurring under NCG020000 are impacting receiving
waters across the state and will provide data to inform development of appropriate limits moving
forward. This is particularly important where such data does not yet exist.
A lack of this data,however, is not the issue for several feldspar mines discharging to the
North Toe River. For feldspar ore mining,the draft permit proposes to add benchmarks and
limitations for aluminum, zinc, and fluoride, and a monitor-only requirement for chromium."
Draft Permit No.NCG020000 at F-3,H-3. As the fact sheet indicates, data exists already
indicating stormwater from feldspar mining is carrying a broader range of pollutants than has
been regulated historically under COCs. See 2020 Fact Sheet at 4. Merely adding standard
monitoring requirements and limitations for three additional pollutant parameters over the next
five years is not an effective strategy to ensure discharges from feldspar mining to the North Toe
River and its tributaries will comply with water quality standards.
In EPA's 2015 comments on the renewal of this same general permit, the agency
described water quality sampling available at that time that compelled additional evaluation and
an expectation of developing individual NPDES permits,based on investigation of discharges
from three feldspar mining sites covered by NCG020000. According to EPA:
The EPA collected effluent and in-stream data from three facilities(NCG020274,
NCG020818, and NCG020793)covered under this GP in June of 2015. The
water quality data revealed concentrations of copper, lead, and zinc that may
cause or contribute to exceedances of NC current WQS. The data also shows that
certain metals concentrations may cause or contribute to violations of NC's
proposed WQS (that are more stringent than the current WQS for certain
pollutants) or EPA's recommended criteria. The EPA believes that a reasonable
potential analysis should be conducted using this data and other relevant
10 The Division asserts that 40 C.F.R. § 122.44(k)authorizes the use of BMPs in lieu of numeric effluent
limitations in NPDES permitting when the agency finds numeric effluent limitations to be infeasible;however,
information provided in the fact sheet does not support a finding of infeasibility for all polluted discharges covered
by the General Permit.
11 Although chromium monitoring for feldspar ore mines is indicated in H-3 (b),it is not listed in Table 9's sampling
list and should be added.
4

information to properly assess the risk of exceeding NC WQS for metals at these
facility's outfalls. If reasonable potential exists for these facility's discharges to
cause or contribute to an exceedance of any WQS, the EPA would expect these
facilities be covered under individual NPDES permits.12
At a minimum, any monitoring, limitations, and benchmarks for feldspar ore mining
would need to be expanded to include any other metals or other pollutants that existing data
indicate are discharging from the mines, like lead and copper. Recent COCs issued for mines and
processing plants required monitoring an expanded list of parameters, which included five
metals. E.g., Pine Mountain Mine, COC NCG020274. The agency must at least explain the
basis for the limited subset of pollutants it selected,beyond just mentioning that monitoring for
those pollutants has occurred at feldspar mining operations. See 2020 Fact Sheet at 4.
As noted in agency correspondence, stormwater runoff from the feldspar mines is no
ordinary stormwater, due to disposal practices by the mines. Several NPDES permitting fact
sheets for the processing facilities indicate that the processing facilities have been treating
residuals, or sludge, from their wastewater treatment process as tailings, and"disposing" of them
in the mines.13 Agencies, according to the fact sheets, have already expressed concern over
potential pollutants in stormwater from the mines—which may carry additional pollutants like
metals—because of these practices. As described, these disposal practices appear foremost to
run afoul of NPDES permit conditions for sludge disposal applicable to discharges from
wastewater treatment facilities. In addition,this practice likely has changed the concentration
and characteristics of stormwater from the mines that have been subject to coverage under this
General Permit, which historically has been focused on a smaller and more conventional set of
pollutants.
Five years ago, DEQ itself indicated the likely need to pursue individual permitting for
feldspar ore mining operations covered under NCG020000. According to agency staff, "It is
likely these sites will transition into individual NPDES wastewater permits under DWR after
more data are collected and sooner than the GP expiration in five years."14 It is now five years
later,but the permitting strategy proposed in NCG020000 for feldspar ore mines risks
perpetuating these same existing problems. As further discussed in Section B below,DEQ
should move beyond applying general monitoring conditions and limitations for feldspar mines
discharging stormwater to the North Toe River, and instead pursue individual permits as a means
to develop appropriate limitations and conditions on a site-specific basis across an expanded list
of parameters.
12 Letter from D.Diaz,EPA,to T.Vinson,DEMLR(Sept.3,2015),enclosing EPA Comments on 2015 Draft
NCG020000(discussing sampling in connection with Pine Mountain Mine(NCG20274),Altapass(NCG20818),
and Unimin Quartz(NCG20793)).
13 For example,Quartz Corps submitted with its application for renewal ofNC000400 a"sludge management plan"
that describes this process for its facilities,
https://edocs.deq nc.gov/WaterResources/DocView.aspx?id=299333&dbid=0&repo=WaterResources.
14 Email from B.Georgoulias,DWR Stormwater(Nov. 16,2015)(on file with DEQ).In individual NPDES permit
renewal drafts for processing facilities,for example NC0000353 and NC0000400,DWR likewise forecast the
potential for individual stormwater permits,
https:Hedocs.deg ne.gov/WaterResources/DocView.aspx?dbid=0&id=762448&page=l&searchid=639373f7-2db6-
495d-b89c-5991 c0a6e0db&cr=1.
5

2. Increased Monitoring Frequency
Monitoring under the draft NCG020000 is too infrequent to allow DEMLR to identify the
scope and concentration of pollutants that are being discharged in connection with mining
activities throughout the state. Requiring sufficient sampling data is necessary to ensure water
quality compliance is achieved.
In 2015, DEMLR decided to relax then-existing monitoring frequencies in
NCG020000.15 As a result, monitoring frequency for all wastewater parameters is quarterly
initially for a year,then reduces to only twice a year. If there are exceedances, it goes back to
quarterly for a limited period of time. See H-1 (Analytical monitoring of wastewater discharges).
The monitoring frequency for all stormwater parameters is semi-annual,unless a Tier II
action is required. See F-1 (Stormwater baseline sampling). If two consecutive samples from
these semi-annual baseline events exceed benchmarks, Tier II requires monthly monitoring of
the exceeded parameter,until three consecutive events are below benchmark values. The EPA
raised concerns then that"this draft GP may not include monitoring frequencies necessary to
capture an accurate scope of pollutant concentrations in the effluent pursuant to 40 CFR§
122.48." 16 The 2020 renewal proposes to continue this underwholming approach.
A monthly sampling frequency would be more useful for evaluating discharges of
pollutants occurring on a continuing basis. Nothing in the fact sheet demonstrates or suggests
that monthly monitoring is impractical, and monthly monitoring appears necessary"to yield data
which are representative of the monitored activity." See 40 C.F.R. § 122.48(b).
Furthermore,North Carolina's own rules specify monthly monitoring of wastewater for
the mining industry, across multiple parameters. 15A N.C. Admin. Code 02B .0508(d). A
minimum monitoring frequency of monthly for turbidity, settleable matter, total suspended solids
(TSS),pH, toxics, and toxicity is required for mining facilities that are within standard industrial
classification 1400-1499; mining facilities covered by NCG020000 are in that standard industrial
classification.17 DEMLR has not provided a valid basis to dispose of the minimum monitoring
requirements of 15A N.C. Admin. Code 02B .0508(d). Even for parameters not listed in .0508,
NCG020000 should require more frequent monitoring where quarterly monitoring data reveals
exceedances.
For stormwater, a semi-annual monitoring frequency is not sufficient to characterize or
effectively monitor discharge over time. Monitoring only twice a year significantly reduces the
utility and effectiveness of benchmarks set as daily maximums and monthly averages,which will
be applied to a data set of two. Monitoring frequency should be increased to provide sufficient
data to meaningfully assess the scope and characteristics of stormwater discharges and to
15 See Fact Sheet for NCG020000 Renewal(June 5,2015)(describing reduction in frequency of wastewater
monitoring).
16 Letter from D.Diaz,EPA,to T.Vinson,DEMLR(Sept.3,2015),enclosing EPA Comments on 2015 Draft
NCG020000.
17 See, e.g.,https://deq nc.gov/about/divisions/energy-inineral-land-resources/npdes-stormwater-gps.
6

ascertain compliance with relevant benchmarks. Increased frequency is particularly important
where data does not exist, as for the new parameters DEMLR proposes to add for several types
of mining.
3. Consideration of the Presence of Threatened and Endangered Species in Receiving
Waters for All Permitted Discharges
Mining facilities along the North Toe River and its tributaries that have existing coverage
under NCG020000 are located a short distance upstream from designated critical habitat for the
State-and federally-listed endangered Appalachian elktoe mussel. Designation of Critical
Habitat for the Appalachian Elktoe, 67 Fed. Reg. 61,016, 61,027 (Sept. 27, 2002). Data of elktoe
occurrences in the North Toe River on file with Wildlife Resources Commission confirms they
are present within the portion of the North Toe River designated as critical habitat. Appalachian
elktoe are particularly susceptible to sedimentation, and siltation from the mining industry has
contributed to their decline. See Appalachian Elktoe Determined To Be an Endangered Species,
59 Fed. Reg. 60,324, 60,326(Nov. 23, 1994). Federally protected critical habitat is just
downstream from five mineral processing facility discharges and overlaps the Red Hill facility's
discharge location. Confirmation that elktoe occupy the critical habitat in the North Toe River
further underscores the necessity to develop a site-specific management plan as required by state
law. 15A N.C. Admin. Code 213.0110. hi the absence of measures to protect elktoe, allowing
mines and processing facilities to discharge excessive total suspended solids on an ongoing basis
may contribute to unlawful take in a population designated essential to the survival of the
species. See Designation of Critical Habitat for the Appalachian Elktoe, 67 Fed. Reg. 61,016,
61,027 (Sept. 27, 2002); 16 U.S.C. § 1538(a).
Potential impacts to Appalachian elktoe from feldspar mining discharges into the North
Toe River are just one known example of how discharges authorized under NCG020000 could
be negatively impacting imperiled aquatic species. State and federally sensitive aquatic species
may be facing similar impacts throughout the state as a result of stormwater discharges under the
General Permit. However, given the lack of publicly available information about discharge
locations in NOls and COCs, and the general failure to provide public access to monitoring data
correlated to discharge locations, it is impossible to know (but reasonable to assume) impacts to
these species are occurring in other waterbodies. See Section C,below.
Under the NPDES Memorandum of Agreement between North Carolina and the EPA,the
State is required to follow certain procedures in administering the delegated NPDES program.'8
In order"to address issues involving federally-listed species and designated critical habitats,
relative to issuance of NPDES permits,"the State has agreed to "provide notice and copies of
draft permits to the U.S. Fish and Wildlife Service and National Marine Fisheries Service." Id.
at 12. This mechanism exists so that the State "may receive information from the Services on
federally-listed species and designated critical habitats in State, with special emphasis on aquatic
or aquatically-dependent species." Id. at 12-13. The State must follow this procedure and elicit
18 NPDES Memorandum Of Agreement Between The State Of North Carolina And The United States
Environmental Protection Agency Region 4,at 12-13(Oct. 15,2007),
https://www.epa.gov/sites/production/files/2013-09/documents/nc-moa-npdes.pdf.
7

comment from FWS on draft NCG020000 to determine impacts to federally listed aquatic
species throughout the state.
Additionally,the State is required to "develop site-specific management strategies"for
waters that"provide habitat for federally-listed aquatic animal species that are listed as
threatened or endangered." 15A N.C. Admin. Code 213.0110. Such a management strategy can
be developed as part of designating the waters as Outstanding Resource Waters under 15A N.C.
Admin. Code 2B.0225, or as part of creating a basinwide water quality management plan under
15A N.C. Admin. Code 2B.0227. Rule .0110 requires that such a plan be developed within
"each watershed's first complete five year cycle following adoption of this Rule." Although Rule
.0110 went into effect in 2000, it is our understanding that the State has developed neither an
Outstanding Resource Water(ORW)designation nor a site-specific management strategy
through the basinwide management planning cycle for the critical habitat in the North Toe River.
Other waterbodies may similarly be lacking protective designations as required by law.
Continuing to permit discharge of mining stormwater and wastewater into the North Toe River
federally designated critical habitat, or any endangered species habitat, without first
implementing such required management planning for species and water quality protection is
both unwise and legal error.
Furthermore,the recognition in state law that a management strategy must be developed
for waters that provide habitat to federally listed aquatic animals, and that one such strategy is to
designate them as Outstanding Resources Waters, is an indication that a General Permit should
also take into consideration the presence of federally listed aquatic species as relevant to
development of permit limits for polluted stormwater and wastewater discharges that could harm
those very species. The General Permit recognizes discharges to receiving streams that are
ORWs should receive more stringent limitations for stormwater benchmarks and wastewater
monitoring, for example, as related to TSS, settleable solids, and flow. However, the presence of
federally listed aquatic species is nowhere mentioned as relevant to limiting or monitoring
polluted discharges. Likewise, the NOI posted online does not even ask permittees if they are
discharging into waters designated as critical habitat for aquatic species. At a minimum, the
state must elicit this information from permittees and provide for permit conditions to protect
endangered aquatic species, which depend on aquatic habitats that will be impacted by
discharges allowed under NCG020000.
4. Additional Limitations Should Apply in Water Quality Limited Segments
NCG020000 fails to anticipate the need for more stringent stormwater benchmarks and
controls in receiving streams that are already not meeting water quality standards. A"water
quality limited segment"under state law refers to a segment where"water quality does not meet
applicable water quality standards or is not expected to meet them even after the application of
minimum treatment requirements." 15A N.C. Admin. Code 2B.0403(13). Minimum treatment
requirements, in turn, refer to categories of technologies required to reduce pollution. 15A N.C.
Admin. Code 2B.0403(12), (13). In those segments, additional water quality based effluent
limitations are necessary to assure compliance with water quality standards.
8

For example, DEQ recognizes that the North Toe River is water quality limited for total
suspended solids and fluoride, not in the context of NCG020000, but in connection with
individual permitting for industrial wastewater treatment systems.19 Instream monitoring data
summarized in the NPDES permit fact sheets for those processing facilities show violations of
water quality standards for turbidity and fluoride continue to occur. That the North Toe River is
already water quality limited for TSS and fluoride underscores the need to develop benchmarks
to limit the concentration of pollutants in stormwater discharges from industrial operations to
ensure water quality standards are achieved based on conditions in the North Toe River. In the
NOI forms, DEMLR and NCG020000 should,but do not, ask: is this segment already water
quality limited and in need of more stringent limitations for stormwater control? Although the
permittees seeking new coverage must disclose in the NOI whether the discharge is into waters
listed as impaired waters under 303(d) or those covered by a TMDL, it does not similarly require
the permittee to disclose whether the segment is considered water quality limited in conjunction
with other wastewater permitting, for example by DWR's NPDES permitting program.
In the absence of this type of inquiry for waterbodies across the state, the result is that
COCs issued to mines and their processing facilities will not impose more stringent controls on
discharges of pollutants into water quality limited segments, despite known impacts to water
quality. DEMLR's stormwater program must work in coordination with the NPDES permitting
program for industrial discharges to develop permit limits that effectively assure their regulated
discharges do not contribute to violations of water quality standards. Incorporation of this
readily available information should help ensure DEMLR goes beyond the past practice of
issuing COCs with only standard benchmarks and limitations in water quality limited segments,
for example, on rivers like the North Toe.
19 For example,https://deq.ne.gov/news/events/feldspar-corporation-permit-nc0000353 ("Currently fluoride and
total suspended solids are water quality limited.").
9

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North Toe River,below Little Bear Creek, September 29,2015
10

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Stormwater discharge into North Toe River, September 29,2015
11

B. The Division Should Require Feldspar Mines and Processing Facilities to Operate
Under Individual Permits
Stormwater discharges from feldspar ore mines are a major source of pollution to the
North Toe River. Sampling conducted by the French Broad Riverkeeper has documented
significant exceedances of the turbidity standard in the North Toe River due to polluted
discharges from mines and processing facilities. A summary of turbidity sampling, submitted
with comments and attached here, includes multiple locations in the North Toe River,between
upstream of Grassy Creek and Penland Bridge from 2015-2018. Att. C. Instream exceedances
measured in the North Toe River ranged from 23.4 NTU to 955 NTU—including two samples
that were too high to register on a turbidimeter. Many exceedances recorded by the Riverkeeper
far exceed the State's own ambient monitoring data during the same timeframe.
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Mouth of Little Bear Creek,December 21,2018
12

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Little Bear Creek,December 21,2018
These exceedances occurred while feldspar ore mines and processing facilities were operating
under COCs issued under NCG020000. Monitoring data reported in DMRs by several facilities
likewise demonstrates a pattern of a high turbidity and TSS concentrations in reported sampling
data. For example, Pine Mountain Mine(NCG020274), Chalk Mountain Mine(NCG020257),
and Sullins-Wiseman(NCG020256) all have recorded multiple high turbidity samples, including
in some cases over 1,000 NTU, and correspondingly high TSS concentrations,under the existing
COCs.
In addition,water quality data collected at multiple mine facilities covered under
NCG020000 confirmed pollution is not limited to high turbidity. Sampling by EPA for Pine
Mountain Mine(NCG20274),Altapass (NCG20818), and Unimin Quartz Mine(NCG20793)
indicated copper, lead, and zinc that may cause or contribute to exceedances of water quality
13

standards.20 EPA instructed DEMLR then to conduct a reasonable potential analysis of
concentration of metals as part of evaluating an individual permitting strategy.
The 2020 Fact Sheet for NCG020000 does not indicate whether DEMLR has evaluated
the need for more stringent limitations through individual permits in light of any of this existing
data relating to feldspar ore mining operations discharging into the North Toe River. Rather than
doing that analysis, DEMLR proposes only marginally improved COCs,with additional
monitoring, limitations and benchmarks for aluminum, zinc, and fluoride, for the feldspar mining
sector. This is too little, too late. A stormwater permitting strategy that adds only a few
additional pollutant parameters for monitoring, at infrequent intervals, and continues to depend
on corrective action developed at the election of the permittee, is inadequate to ensure
stormwater and wastewater discharges covered by NCG020000 do not continue to contribute to
exceedances of water quality standards in the North Toe River.
State and federal law prohibits issuance of NPDES permits that contribute to violations of
water quality standards. Under the Clean Water Act,North Carolina cannot issue a NPDES
permit that will contribute to violations of water quality standards. See 33 U.S.C. §
1311(b)(1)(C). Nor may it under state law. "No permit may be issued when the imposition of
conditions cannot reasonably ensure compliance with applicable water quality standards and
regulations of all affected states." 15A N.C. Admin. Code 2H.0112(c). Even the fact sheet for
NCG020000 notes the necessity of individual permits where water quality violations have
occurred. "Where the Director determines that a water quality violation has occurred and water-
quality based controls or effluent limitations are required to protect the receiving waters,
coverage under the general permit shall be terminated and individual permit will be required."
Fact Sheet at 7 (emphasis added). DEQ must develop an individual permitting strategy for
feldspar mines discharging stormwater and wastewater that are contributing to violations of
water quality standards and have been previously covered under NCG020000. Until these
individual permits are implemented,monitoring for the additional pollutants and at the increased
frequencies described in Section A are necessary to better protect water quality.
C. Lack of Transparency and Public Disclosure Impedes Effective Public Participation
Meaningful public participation is crucial to advancing the goals of the Clean Water
Act. See, e.g., 33 U.S.C. § 1251(e). Although we appreciate the opportunity to comment on
NCG020000, the lack of public information concerning the location and characteristics of
covered discharges limits effective public participation in this comment process. DEMLR
should revise the General Permit to ensure that permittees share all of the information collected
under the permit with DEMLR and that this information is made available to the public.
DEMLR must also make available Notices of Intent for General Permit coverage and eDMRs, in
real-time,to comport with its obligations under EPA's 2015 reporting rule.
20 See EPA 2015 comments on NCG020000.
14

For example, the General Permit requires the permittee to develop the following
information:
1. The Stormwater Pollution and Prevention Plan(SWPPP). The Division elects
through its General Permit to allow applicants to rely on the use of Best Management
Practices (BMPs)for control of stormwater. See NCG020000 Fact Sheet at 7. The
SWPPP includes information about the location of stormwater discharge outfalls,
whether receiving water are impaired, an annual survey for non-stormwater
discharge,the results of BMP inspections, corrective actions that result from self-
inspections and benchmark exceedances.E.g., F-8 and F-9.21 That SWPPP is kept
on file with the applicant and apparently not submitted to DEQ unless requested.
Although the General Permit makes clear the SWPPP is a public record,public access
to this information.through public records laws is significantly hampered by DEQ's
failure to obtain it as a matter of course. In addition, DEQ would be better able to
arrest problems before they happen, if they were to review SWPPPs in advance to
assure the BMPs being deployed are appropriate for site-specific stormwater control.
2. Notice of Intent to Seek Coverage Under NCG020000. The current Notice of Intent
form an applicant submits to DWR for a COC must include all proposed stormwater
and wastewater discharges,the latitude and longitude of each discharge, the volume
of each discharge, and a site plan showing the stormwater discharge locations.
Accurate and available information about the location, extent, and characteristics of
discharges that will be covered under a COC for this General Permit is essential to
understanding the environmental effect of DEQ's choice to issue the COCs.
Furthermore, accurate information about sampling locations is necessary to
understand where exceedances of benchmarks are occurring, as reported in DMRs.
The Notice of Intent for each covered facility,which is effectively the application,
does not readily appear available along with COCs issued and provided on DEQ's
website or in laserfiche.22 In comparison, EPA provides a searchable database of
NOIs for categories of general permits issued by it.23 Further complicating public
access to updated discharge information,NCG020000 expressly states there is no
duty to reapply for the General Permit,unless expressly directed to do so by the
Division. L-12. As a consequence, even the NOls that can be located in historical
records in DEQ's files are often severely out of date and lack necessary detail to
inform what wastewater and stormwater discharges are being covered through
renewed COCs.
21 Tier I and Tier H level benchmark exceedances are handled through self-reporting and corrective action;only after
four benchmark exceedances within 5 years does the GP require reporting of an"Action Plan"that is submitted to
DEQ for approval. The Action Plans do not appear to be available on laserfiche,at least for feldspar ore mines.
22 We have located some NOIs for certain quartz mining facilities in public records we have obtained within
hundred-page blocks of scanned historical files. Those out-of-date NOIs often lack the necessary location
information or do not reflect current information as reported in the DMRs.
23 https://ofi-npub.epa.gov/Uex/qps/f.?p=LANDING:HOME:13377159324199:::::
15

3. Discharge Monitoring Reports: For feldspar mining facilities, we were able to locate
scanned DMRs for some facilities in public records. It is unclear if those DMRs are
available for all facilities.24 Furthermore, in the absence of an updated NOI and due
to the lack of a publicly accessible site map or SWPPP reflecting the locations and
names of sampled locations covered by the COC, it is not possible to reliably
correlate the sampling data to discharge locations. For example, the Pine Mountain
Mine COC (NCG0202074) authorizes two kinds of discharges, represented in one
table with stormwater benchmarks and another table with wastewater monitoring
conditions. The sample locations reference generically outfalls—SDO is "stormwater
discharge outfall" and E is "Effluent." No map is provided in the Pine Mountain
Mine COC to identify the discharges that are in fact authorized. The most recent NOI
for the facility obtained through public records requests is more than 25 years old,
from 1994, and does not disclose the location of discharges reported in the DMRs.
Pine Mountain Mine's DMRs list among sampling locations six that repeatedly report
high concentrations of turbidity and TSS in the last five years. Those sampling sites
in DMRs however are not correlated to a publicly available site plan or NOI
providing current information about discharges. Furthermore, correspondence
obtained in public records indicates additional sites should be sampled and are not
being reported. For example, "PM- 10 and PM- 12"are referred to in agency
correspondence as"newer outfalls near the tailings Dump"that should be sampled—
yet neither DMRs nor other information indicates whether these are outfalls are
considered covered by Pine Mountain's COC,nor the location or results of sampling
from those discharges.25
The lack of readily available, current public information relating to this General Permit,
regarding the location and volume of stormwater discharges and types of BMPs being used for
stormwater management, significantly limits the ability of the public to comment on the impact
of renewing these discharges under NCG020000. In fact,neither State agencies nor the public
can evaluate the cumulative effect of this General Permit on water quality in receiving streams,
whether the technologies in the SWPPPs are being used with success or not,nor which industries
or water bodies might need stringent limitations to assure water quality standards are achieved.
Wildlife Resources Commission also noted information regarding stormwater
management was lacking in the previous COC issued for stormwater discharge at Quartz Corps'
Altapass mine. "Although a new stormwater permit(NCG020000)was granted in 2015, no
information on stormwater management at the site is provided in the permit application." Letter
from WRC to DEMLR(Feb. 17, 2017).26 That, coupled with the lack of information on the
mining permit renewal, left the agency unable to review the impacts of the related mining permit
on aquatic resources. See id. WRC stressed the need for"excellent sediment and erosion control
and stormwater management"to protect sensitive aquatic species in the North Toe River. Id.
24 For example,no DMRs are posted for the Altapass Mine&Plant permit COC NCG020818.
25 See, e.g.,Email from L.Wiggs,DEQ,to T.Mickelborough,The Quartz Corps(April 12,2017)(on file with
agency).
26 A copy of this letter is attached.
16

In preparing these comments, we were unable to locate on DEQ's public laserfiche
repository the SWPPPs for feldspar ore mining facilities, with BMPs being used for feldspar
mining and processing sites,nor updated Notices of Intent that indicate locations of covered
stormwater and wastewater discharges. The physical condition of the North Toe River and other
agency documents reveal a problem with stormwater that clearly is negatively impacting water
quality,but the lack of transparency perpetuated by this permitting approach hampers
meaningfully addressing that problem, much less commenting on it. This undermines public
participation required under the Clean Water Act.
Congress identified public participation as an important means of advancing the goals of
the Clean Water Act in its primary statement of the Act's approach and philosophy. See 33
U.S.C. § 1251(e); see also Costle v. Pacific Legal Found., 445 U.S. 198, 216 (1980) (noting the
"general policy of encouraging public participation is applicable to the administration of the
NPDES permit program"). "The Clean Water Act requires that `[a] copy of each permit
application and each permit issued under [the NPDES permitting program] shall be available to
the public,' 33 U.S.C. § 13420), and that the public shall have an opportunity for a hearing
before an permit application is approved, 33 U.S.C. § 1342(a)(1)." Envtl. Def. Ctr., Inc. v. U.S.
E.P.A., 344 F.3d 832, 856 (9th Cir. 2003). In reviewing the sufficiency of a general permitting
rule by the EPA relating to municipal stormwater, a court expressly found failure to make
Notices of Intent available to the public "contravene[s] the express requirements of the Clean
Water Act." Id. at 857-58.27
Here, the combined lack of availability for public review of NOIs, SWPPPs, and up-to-
date eDMRs limits effective public participation in this comment process. In its response to
comments in 2015, DEMLR noted it valued public comments, but"especially from the particular
regulated industry sector. ,28 Notably, the regulated industry sector, the permittee, has this very
information about the nature, extent, and location of discharges, and the rest of the public does
not. Putting the public at an information disadvantage is not a permissible implementation of the
State's delegated authority under the Clean Water Act.
Consistent with its overarching obligations to allow meaningful public participation in
NPDES permits, DEQ is required under the 2015 EPA electronic reporting rule to collect, and
make available, reports like NOIs for general permits as well as eDMRs. See 40 C.F.R. § 127.16
(listing categories of information and start dates for electronic reporting). According to that rule,
"[t]he goals of the Plan include improving transparency of the information on compliance and
enforcement activities in each state, connecting this information to local water quality, and
providing the public with real-time, easy access to this information." National Pollutant
Discharge Elimination System(NPDES) Electronic Reporting Rule, 80 Fed. Reg. 64,064 (Oct.
22, 2015) (emphasis added). The rule specifically names as an objective allowing"regulated
entities, governmental agencies,and the public to more quickly identify violations, and then
27 In response,EPA issued guidance on April 16,2004,for how new general permits should address the remanded
issues of public availability of notices of intent,opportunity for public hearings,and permitting authority reviews of
NOIs,Implementing the Partial Remand of the Stormwater Phase II Regulations Regarding Chapter 2:Regulatory
Framework and Program Areas of the NPDES Program 2-9 September 2010 NPDES Permit Writers'Manual
Notices of Intent&NPDES General Permitting for Phase II MS4s.
28 2015 DEMLR Response to Comments on NCG020000 at 1.
17

more quickly address them." 80 Fed. Reg. at 64,069 (emphasis added). DEQ also recognizes
the importance of this rule for providing"meaningful data to the public"and notes EPA's rule
requires it to provide NOIs electronically by December 2020.29
Presumably, on the eve of the final implementation date of EPA's electronic reporting
rule, DEMLR has in its possession NOIs and DMRs in electronic form that could be shared
publicly to allow meaningful comments. In addition to providing that information to allow
informed public participation on this permit, the draft General Permit must be revised to indicate
where that information will be made available to the public in electronic form and "in real time"
for the duration of NCG020000.3O
We appreciate the opportunity to comment on the draft NCG020000. Please provide
direct notice via email or U.S. Mail of any issuance that is made or other action that is taken on
this permit.
Sincerely,
Amelia Y. Burnette
Senior Attorney
cc: Via electronic mail only
Kip Tyler, EPA
Craig Hesterlee,EPA
z9 https://deg.ne.aov/about/divisions/water-resources/edmr/npdes-electronic-repgiiing.
so Information about public access is not provided in the permit conditions addressing where dischargers are directed
to submit eDMRs.See Draft General Permit,I-8,I-9.
18

Attachment 1
Letter from WRC to DEMLR, Mining Permit Renewal for The Quartz
Corp USA, Altapass Mine, Mitchell Count, MP 61-16 (Feb. 17, 2017)

t
f.
,
® North Carolina Wildlife Resources Commission
Gordon Myers,Executive Director
MEMORANDUM
TO: Brenda M. Harris, Mining Program Secretary
NCDENR,Division of Energy, Mineral, and Land Resources, Land Quality
Section
FROM: Andrea Leslie, Mountain Region Coordinator
Habitat Conservation Program
DATE: February 17, 2017
SUBJECT: Mining Permit Renewal for The Quartz Corp USA
Altapass Mine, Mitchell County
MP 61-16
Biologists with the North Carolina Wildlife Resources Commission(NCWRC)reviewed the
application to renew the permit for the Altapass Mine in Mitchell County. Our comments on this
permit action are offered for your consideration under provisions of the Mining Act of 1971 (as
amended, 1982; G.S. 74-46 through 74-68; 15 NCAC 5) and the North Carolina General Statutes
(G.S. 113-131 et. seq.).
The presently permitted area is 109 acres,but presently, only 13 acres are active, which are used
for a processing facility, including 10 acres of processing area and haul roads, 2 acres of
stockpiles, and 1 acre of mine excavation. The remaining area is mapped as a future excavation
area,but according to the application,this area has not been mined since 1951 and if it were to
be activated, "Land Quality would be notified with details and plans before mine began."
The processing facility is on the North Toe River, which is recognized by the NC Natural
Heritage Program as the North Toe River/Nolichucky River Aquatic Habitat, a natural area rated
Very High for the richness of rare species it contains. In the vicinity of the project, Sharphead
Darter [Etheostoma acuticeps, US Federal Species of Concern(FSC),NC Threatened] and
Eastern Hellbender[Cryptobranchus alleganiensis,US FSC,NC Special Concern(SC)] are
found. Further downstream,Appalachian Elktoe [Alasmidonta raveneliana, US Endangered(E),
NC E] is present. In addition,the North Toe River is a Public Mountain Trout Water, and a
substantial number of anglers use this resource in the spring and summer. In order to protect
Mailing Address: Habitat Conservation • 1721 Mail Service Center • Raleigh,NC 27699-1721
Telephone: [phone] • Fax: [phone]

MP 61-16 Altapass Mine Page 2 February 17,2017
North Toe River,Mitchell County
these resources, it is essential to employ excellent sediment and erosion control and stormwater
management at the site.
Due to the lack of information provided in the permit renewal application,we cannot
complete a review of this project. The map included in the packet is dated 2007 and does not
map sediment and erosion control and stormwater management measures. In addition, it does
not include the following elements required by the permit renewal application: width of all buffer
zones, outline and acreage of all settling and/or processing wastewater ponds, location and
acreage of all planned and existing roads and on-site haul roads, location and dimensions of all
proposed sediment and erosion control measures, and location of 100-year floodplain and
wetland boundaries.
The North Toe River is on the 303(d) list of impaired waters for excess turbidity. Due to the
proximity of the facility to the North Toe River(20-80 ft from the river), we concerned about the
potential for loss of sediment and mined material to the river. Although a new stormwater
permit(NCG020000)was granted in 2015, no information on stormwater management at the site
is provided in the permit application. We urge the applicant to incorporate stormwater
management recommendations made by NC Division of Water Resources staff during recent site
visits.
Thank you for the opportunity to review this permit action. Please contact me at(828) 558-6011 if
you have any questions about these comments.
ec: Andrew Moore,NC Division of Water Resources
Allen Ratzlaff, US Fish and Wildlife Service
Shawna Riddle,NC Division of Energy, Mineral, and Land Resources
Steve Fraley,NCWRC

MP 61-16 Altapass Mine Page 3 February 17,2017
North Toe River,Mitchell County
Seed Mixes for Revegetating Disturbed Sites
Basic Mix
Oats (Mar-Jun), Wheat(Jul-Nov), or Rye Grain Dec-Feb 1-2 ba s/ac $ 5-10 ba
Red Clover Tri olium pratense l0 lbs/acre $ 3 /lb
Creeping Red Fescue Festuca rubra 20 lbs/acre $ 2-3 /lb
-The Basic Mix can be sown on disturbed sites in the mountains and upper piedmont year round
but spring or fall seeding will result in a better stand. It is important to use all of the components
of the Basic Mix. The cover crop grain&legume provide rapid green-up while the creeping red
fescue is developing. These components can be obtained locally.
- Grains like oats, wheat, and rye may be sold by weight(pounds) or by volume(bushels).
To simplify things,this mix recommends 1 —2 BAGS of grain rather than pounds or bushels.
With this mix, 1 bag or about 50—60 lbs per acre should be adequate for most sites,but where
slope or soil conditions warrant, increase grain amounts to 100— 120 lbs(use 2 bags).
-The perennial grass will establish within the first year and is the key to good site stabilization.
Creeping red fescue has a wide range of adaptation when used for erosion control along roads
and highways; cuts, fills, and other disturbed areas; and for stream and channel bank
stabilization. It thrives in sun or shade, and is drought-resistant after establishment.
For permanent seeding of harsh dry sites, Hard Fescue Festuca 10 lbs/acre $ 3 /lb
brevi ila (syn. track h lla can be added to the Basic Mix
Application Notes —
- Disturbed sites with loose soils can usually be sown without extensive seedbed preparation if
seeded as soon as the other work is completed.
-Where necessary,prepare seedbed with conventional farm equipment(tractor and disk), or the
soil surface can be bladed and then tracked with a bulldozer. Hydro-seeding can be used with the
Basic Mix for slopes where equipment access is difficult.
-Red fescue is adapted to sandy and acid soils so extensive soil amendments are usually not
needed. On poor and subsoil sites, a low nitrogen fertilizer such as 5-10-10 may be required.
-If required, apply any necessary soil amendments, then drill or broadcast the seed mix.
-The larger cover crop grains can be sown separately first and covered lightly to prevent loss of
seed from wildlife such as turkeys and doves.
-The rest of the seed mix should then be sown,but not covered with soil. It is better to firm the
small seed into the soil than to try to cover it.
- Culti-pack conventional seedbeds to ensure good seed-to-soil contact. Tracked sites will fill in
on their own from rainfall.
-Apply straw mulch at a minimum of 15 bales per acre to help enhance soil moisture as well as
hold the soil in place until the seed germinates. Use higher rates as site conditions warrant.
- If the site calls for it,biodegradable natural fiber matting is recommended over plastic matting
or matting that contains strands of plastic that can entrap small animals.

MP 61-16 Altapass Mine Page 4 February 17,2017
North Toe River,Mitchell County
- Monitor the site until the perennial grass component is fully established. Mature stands of the
Basic Mix are short-statured and will not require mowing. The seeded mix should persist for
many years,but will eventually yield to developing successional species in the seed bank.
Adding Native Species
- Some projects specify a preference for native plant species or actually require their use.Native
wildflowers and grasses can be added to the Basic Mix to beautify and diversify the site, and
provide food and cover for wildlife such as wild turkey,bobwhite quail, and songbirds.
-The following table contains native species that are easy,proven performers that have been
used successfully on stream restoration areas as well as dryer upland sites. The first four
wildflowers will come on well the first year; the three grasses may take two to three years to
develop good sized clumps.
- These seeds are reasonably priced as natives go and can be ordered from a reputable seed
dealer. Using all seven will provide maximum diversity as well as added site stabilization but
any additions will be beneficial. For sources,refer to Wildlife Seed List at
http://www.ncwildlife.org/Wildlife Species Con/WSC WPM.htm .
-Mixes with native seed can be culti-packed or tracked in with a bulldozer; hydro-seeding is
apparently not recommended. Mixes with mainly wildflowers can be sown in early fall.
Note-when adding native Panicum grass seed, sow the mix in late fall, winter, or early spring to
subject the seed to cool,moist soil conditions necessary to break seed dormancy. Sowing during
the warmer months may delay Panicum germination until the following year, and some seed may
be lost in the interim.
-For information on each native species listed here, visit htlp://plants.usda.gov/; type in the
scientific name in the search box.Note- adding natives will increase the height of the resulting
stands,providing good wildlife habitat. Frequent mowing destroys food&cover and is not
recommended. Mow once every few years, in late winter, only if absolutely necessary to remove
encroaching woody vegetation.
Nativespecies—add to Basic Mix at 1-2 lbs/acre
Black Eyed Susan Rudbeckia hirta $ 16/lb
Showy Partridge Pea Chamaecrista Cassia asiculata $ 14/lb
Showy Bidens Bidens aristosa $ 16/lb
Lanced-leaved Coreo sis Coreo sis lanceolata $ 14/lb
Deerton ue Dicanthelium Panicum clandestinum `Tio a' $ 12/lb
Switch grass Panicum vir atum `Blackwell', `Cave-in-Rock', `Kanlow' $ 8/lb
Big Bluestein Andro 0 on gerardii $ 10/lb

Attachment 2
Comments of the French Broad Riverkeeper, MountainTrue, Defenders
of Wildlife and the Southern Environmental Law Center on Permit
Renewals for Pollution Discharges to the North Toe River Sibelco
NPDES Permits: NC0000175, NC0000361, NCO084620 and
NCO085839 Quartz Corps NPDES Permits: NC0000400, NC0000353
(Feb. 19, 2019)

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 48 PATTON AVENUE,SUITE 304 Facsimile 828-258-2024
ASHEVILLE,NC 28801-3321
February 19, 2019
David Hill
NCDEQ-DWR
Water Quality Permitting Section
1617 Mail Service Center
Raleigh,NC 27699-1617
[e-mail]
Re: Permit Renewals for Pollution Discharges to the North Toe River
Sibelco NPDES Permits:NC0000175,NC0000361,NC0084620 and NC0085839
Quartz Corps NPDES Permits: NC0000400,NC0000353
On behalf of the French Broad Riverkeeper, MountainTrue,Defenders of Wildlife, and
the Southern Environmental Law Center, we submit the following comments on DEQ's
proposed renewal of pollution discharge permits for six facilities that process mineral ore and
discharge wastewater into the North Toe River near Spruce Pine,North Carolina. With these
comments we supplement our February 7, 2019,request for public hearing.
The French Broad Riverkeeper works to monitor and protect the quality of our region's
waterways, including the North Toe River, and fights for safe and healthy waterways for all
citizens in the French Broad River watershed by bringing together local residents and
communities to identify pollution sources, enforce environmental laws, and educate and
empower the public. The French Broad Riverkeeper program is part of MountainTrue.
MountainTrue is a nonprofit organization whose mission includes protecting streams and rivers
from pollution in Western North Carolina. MountainTrue's members use the North Toe River
for recreation.
Defenders of Wildlife is dedicated to the protection of all native animals and plants in
their natural communities. With more than 1.2 million members and activists, Defenders of
Wildlife focuses on wildlife and habitat conservation and the safeguarding of biodiversity.
The North Toe River provides recreation opportunities for paddlers, anglers, and
swimmers,boosts the local tourism economy, is home to trout, and provides critical habitat for
the federally protected Appalachian elktoe. The recreation economy, trout, and other aquatic
species all depend on clear mountain rivers to thrive. Because of wastewater discharges from the
feldspar mines and processing facilities concentrated along the North Toe River,the river
continues to suffer from the effects of pollution. Multiple processing facilities that seek permit
renewals have been issued notices of violation in recent years. The ongoing pollution of the
North Toe is not without consequence. The river has been listed as impaired for turbidity for
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington,DC
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over a decade. Water quality sampling conducted by the French Broad Riverkeeper over the last
several years confirms the turbidity problems are ongoing and acute. See North Toe River Map,
Statement of H. Carson and Sampling Summary, Att. A-C. Turbidity is not the only problem.
EPA has recognized the feldspar processing facilities are among top dischargers for fluoride and
noted permit violations in its review of effluent data.1 Instream data from the last permit cycle
show exceedances of the fluoride standard are occurring in the North Toe River. The river is
also suffering impairment of recreation, aquatic life, and aesthetic narrative water quality
standards. See Statements of H. Carson and S. Evans and photographs-at Att. B-E. Confirming
this,just last summer, the North Toe closed to the public and swimmers had to exit the water
after a hydrofluoric acid spill from the Altapass facility caused a fish kill.3
Rather than abate these problems, the proposed draft permits will perpetuate water
quality problems in the river. Although there are minor improvements, the Clean Water Act
("CWA")and state laws implementing delegated CWA authority require far more. Because
these draft permits do not ensure compliance with applicable water quality standards and will
contribute to violations, they cannot issue in compliance with the CWA,relevant federal
regulations, or state law.
The draft permits must be withdrawn, substantially revised, and reissued for public
coninient. Specifically,the following changes, as well as curing other deficiencies discussed
below, are required:
• Total suspended solids and flouride numeric limits must be tightened through a
proper application of technology-based and water quality-based limits.
• Sibelco's Red Hill and Crystal facilities report discharging chloride at IOx to 25x
the water quality standard, and the permits provide no limit. Numeric limits must
be added,particularly since Sibelco indicates compliance with pH standards may
require additional use of chemicals.
• Limits must protect narrative standards for recreation, aquatic life, and aesthetic
uses of the river.
• The processing facilities' handling of wastewater treatment sludge must comply
with permit terms and state law.
• DWR must consider impacts to endangered Appalachian elktoe.
See EPA,Technical Support Document for the 2010 Effluent Guidelines Program Plan,EPA 820-R-10-
021 (Sept.2011)at 9-14,9-19,https://www.epa.gov/sites/production/files/2018-05/documents/2010 eg_plan-
tsd final sgt-2011.pdf.
2 Hydrogen fluoride dissolves in water to form hydrofluoric acid. ATSDR Toxic Substances Portal-
Fluorides,Hydrogen Fluoride,and Fluorine,https://www.atsdr.cdc.goy/toxfags/tf.asp?id=211&tid=38.
3 See https://wlos.com/iiews/local/dozens-of-fish-in-north-toe-river-killed-after-quarry-leak-state-officials-
say;https://www.citizen-times.coin/story/news/local/2018/07/19/spruce-pines-north-toe-river-suffers-acid-leak-
sewagespill/800103002/;Assessment of Civil Penalty for Violations of the Reporting Requirements(Case No.:LM-
2018-0051),NPDES Permit No.0000353(Feb.4,2019),on file with DEQ.
2

A. DEQ Must Impose Tighter Effluent Limits
DEQ proposes to renew the following six National Pollutant Discharge Elimination
System ("NPDES")permits for mineral processing facilities to discharge polluted wastewater
into the North Toe River. From upstream to downstream these facilities are: Sibelco's
Schoolhouse facility(NC0000361), Quartz Corps' Altapass facility(NC0000353), Sibelco's
Crystal facility (NC0084620), Quartz Corps' K-T Feldspar facility(NC0000400), Sibelco's
North America facility(NC0000175), and Sibelco's Red Hill facility(NC0085839). Submitted
with these comments is a map of all of the facilities concentrated along the North Toe. Att. A.
On any given day, the draft permits together would allow a discharge of over 10,000
pounds of total suspended solids("TSS")—or over five tons—into the North Toe River. The
North Toe River has been listed as impaired for turbidity for over a decade. Water quality data
collected by the French Broad Riverkeeper confirms the impairment is ongoing. The attached
summary of turbidity sampling results includes multiple locations in the North Toe River,
between upstream of Grassy Creek and Penland Bridge from 2015-2018. Att. C. Instream
exceedances measured in the North Toe River ranged from 23.4 NTU to 955 NTU—including
two samples that were too high to register on a turbidimeter. Many exceedances recorded by the
French Broad Riverkeeper far exceed the State's own ambient monitoring data. The draft
permits propose to allow dumping up to five tons daily of TSS, or the equivalent weight of
several dump truck loads monthly,4 into a river already impaired for turbidity. Not surprisingly,
this will not reasonably ensure compliance with water quality standards.
In similar fashion, fluoride discharges are allowed up to a combined maximum of nearly
2,000 pounds, effectively maxing out the river's assimilative capacity and causing localized
exceedances. See DWR, Appendix A: Fluoride Wasteload,North Toe River Mining
Dischargers. The EPA in 2010 found the Altapass facility alone was one of the leading
dischargers of fluoride in the mineral processing industry nationwide.
Chloride discharges are unlimited in the permits. Two facilities, Sibelco's Crystal and
Red Hill facilities, discharged effluent concentrations of up to 1 Ox to 25x the water quality
standards action level of 230 mg/L. Yet, there are no limits.
In all three instances DWR neglects its mandate to impose both technology-based limits
and limits sufficiently stringent to protect water quality. The result is lax or non-existent limits.
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). 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 limits set the minimum level of control required in every
4 Monthly average limits(the mean of all daily discharges)combined across six facilities(5,128 pounds)
could allow for discharges totaling 153,840 pounds cumulated over the course of a 30-day month,or over 76 tons.
Assuming a dump truck with a 10-ton capacity by weight,this would be over seven dump truck loads.
3

NPDES permit. ,40 C.F.R. § 125.3(a). A discharger must implement technology-based
standards, even if doing so goes beyond the level necessary to meet water quality standards.
NPDES Permit Writers' Manual at 5-1 (2010).5 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.
1. Technology-Based Effluent Limitations
Every NPDES permit"shall"contain technology-based effluent limits ("TBELs"), which
set"the minimum level of control that must be imposed in a permit"under the NPDES program.
40 C.F.R. § 125.3(a) (emphasis added). These technology-based limits are set without regard to
and separate from water quality-based effluent limitations ("WQBELs"), discussed below.
NPDES Permit Writers' Manual at 5-1.
Technology-based permit limits are derived from one of two sources: (1)national effluent
limitation guidelines ("BLGs") issued by EPA for various industries, 33 U.S.C. § 1314(b), or(2)
case-by-case determinations using the"best professional judgment" 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 EPA development
documents and other available information. See 15A N.C. Admin. Code 02B .0406(e).
The latter applies here: although EPA developed proposed ELGs for the feldspar mineral
processing subcategory decades ago—for TSS and fluoride—those limits were not promulgated.
See, e.g., EPA Final Development Document for Effluent Guidelines and Standards for the
Mineral Mining and Processing Industry, Point Source Category(July 1979); 40 Fed. Reg.
48,652,Notice of Interim Final Rulemaking(reserving subpart Al for the feldspar industry) (Oct.
16, 1975); 40 C.F.R. § 436, subpart Al Feldspar Subcategory [reserved]. As a result, TBEL
limits here derive from the"best professional judgment"of the permit writer.
Here, DWR for the most part applied no TBELs. Neither federal nor state law allows
room for this option. Altapass is the clearest example. The TBEL analysis consists only of this
statement: "This facility is not subject to any Effluent Limitation Guidelines." NPDES Permit
0000353 Fact Sheet at 6. Even if an ELG has not been promulgated, all of the mining processing
facilities are subject to TBELs. For the remaining facilities,the fact sheets refer to a 1975 era
proposed ELG for TSS only, and that is apparently the end of technology-based consideration.
DWR must, at a minimum, go through proper steps to develop TBELs for fluoride,
chloride, and TSS. With non-conventional pollutants, like fluoride and chloride,TBELs are
based on"application of the best available technology economically achievable." 33 U.S.C. §
1311(b)(2)(C), (F). For a conventional pollutant like TSS, limits are based upon best practicable
control technology and best conventional pollutant control technology. 40 C.F.R. § 125.3 (a)(2)
5 Available at http://water.epa.gov/scitech/swguidance/standards/handbook/index.cfm.
4

(assigning categories) and(d) (describing relevant factors for each category); 15A N.C. Admin.
Code 213.0403 (4), (5), (7), (12).
• Flooride: DWR discusses fluoride limits only in relation to water quality-based
limits. However, before determining more stringent limitations to achieve water
quality standards, DWR must first impose TBELs. To start with, DWR can look
at the same `70s era documents it cites for TSS. From 1975-1979, EPA prepared
draft TBELs to address fluoride discharges in the feldspar processing industry.
Even though the limits were not promulgated, that does not end the inquiry. In
2010, EPA reviewed the mineral processing fluoride discharges. It noted: "The
1976 data showed that single-stage chemical precipitation could achieve effluent
fluoride concentrations of less than 10 mg/L through segregation and separate
treatment of fluoride-containing streams (U.S. EPA, 1976)." EPA 2010, 9.5.1
Wastewater Sources of Fluoride.6 Furthermore, "EPA determined that the top
fluoride discharging facilities have two-stage chemical precipitation with lime
treatment systems. This process is similar to that at phosphatic fertilizer
manufacturing facilities,which achieve fluoride concentrations of 15 mg/L or less
(U.S. EPA, 1974). Current technologies are achieving fluoride concentrations at
least as effective, sometimes achieving 2 mg/L effluent fluoride. The chemical
precipitation has improved by using calcium chloride(CaC12)rather than lime,
while solids separation has improved by using polymers and membrane filters
(WC&E, 2006; Ionics, Unknown; GCIP, 2002)." EPA 2010, 9.5.3 Fluoride
Wastewater Treatment. DWR must determine whether each processing facility
on the North Toe is employing best available technology to achieve fluoride
reductions. Effluent data provided by Quartz Corps with its applications suggests
no; its wastewater discharge fluoride concentration from NC0000400 is 54.1
mg/L—far higher than what EPA's technical documentation showed was
achievable. (Sibelco withheld this information from the applications DWR posted
to laserfiche, and we have requested it from DWR.) DWR must assess current
technologies available and impose TBELs for fluoride in all of the permits.
EPA's recent review suggests these can be expressed as mg/L limits in addition to
mass,particularly since the relevant water quality standard is expressed as a
concentration. See 40 C.F.R. § 122.45 (f)(1)(ii) and(f)(2).
• Chloride: EPA recognized in 2010 that chemical precipitation at feldspar
processing facilities has improved using calcium chloride. Chloride is among the
pollutants discharged by the mineral processing facilities. The two newest
facilities discharging into the North Toe River indeed appear to discharge high
concentrations of chlorides. North Carolina's action level for chloride is 230
mg/L. 15A N.C. Admin. Code 2B .0211(22)(d). Sibelco's Red Hill and Crystal
6 Technical Support Document for the 2010 Effluent Guidelines Program Plan,EPA 820-R-10-021 (Sept.
2011)at 9-14,available at https://www.epa.gov/sites/production/files/2018-05/documents/2010 eg- Ip an-
tsd_final sot-2011.pd
5

facilities, according to the fact sheets, have discharged daily maximums 10-to 25-
times over the water quality standard, reaching 2,450 and 5,198 mg/L. The draft
permits only require monitoring for chlorides. Chloride discharges are unlimited.
Again,this is error.
• TSS: Unlike fluoride and chloride, DWR does cite a limit for TSS derived from a
draft ELG limit from 1975, expressed in lb/1000 lbs. But that's the end of the
inquiry. As with fluoride, DWR must conduct an evaluation of technology
improvements in the last forty years,to assure TSS limits reflect best practicable
control technology. Even the slightly more current 1979 version of the
development document(DWR relies on an earlier draft), indicates technologies
available then were achieving TSS discharge concentrations lower than those
being discharged presently into the North Toe. For example, one Quartz Corps
processing facility reports long-term average concentrations of TSS at 150 mg/L
(Form 2C,NPDES Permit 0000400). Sibelco's Form 2C did not publicly disclose
pollutant concentrations for TSS,but the effluent data in the fact sheet notes
turbidity as high as 89 NTU(Fact Sheet NCO086420 at 3). EPA's 1979 review
determined TSS concentrations in wet feldspar processing were being then
achieved as low as 21-45 mg/L. DWR must assess current practicable control
technologies, now available, and develop relevant TSS limits.
More perplexing still, the proposed permit limits also appear to be much higher
than the actual performance of the facilities. With historical performance data in-
hand for TSS, DWR must reduce the limits to reflect actual technology being
implemented,before turning to assessing best conventional and practicable
control technologies.
2. DEQ Must Impose WQBELS That Meet Water Quality Standards
In addition to applying technology-based effluent limits, every NPDES permit must also
include"any more stringent limitation, including those necessary to meet water quality
standards" established under state or federal law. 33 U.S.C. § 131 l(b)(1)(C). This includes
controlling"all pollutants"that"have the reasonable potential to . . . contribute to an excursion
above any State water quality standard," and standard includes"State narrative criteria for water
quality." 40 CFR § 122.44(d)(1)(i) (emphasis added).
North Carolina water quality rules also require water quality-based effluent limitations
and, like the federal requirement, assume applicable technology-based reductions are in place
first. Under the North Carolina framework, in places where minimum treatment technologies are
not stringent enough to meet water quality standards, called"water quality limited segments,"
DWR develops additional limitations to meet those standards. See 15A N.C. Admin. Code
02B.0404. The definition of"water quality limited segment"refers to a segment where"water
quality does not meet applicable water quality standards or is not expected to meet them even
after the application of minimum treatment requirements." 15A N.C. Admin. Code 2B.0403
(13). Minimum treatment requirements, in turn,refer to categories of technologies required to
reduce pollution. 15A N.C. Admin. Code 2B.0403 (12), (13). In other words, water quality-
6

based limits are imposed after minimum treatment requirements derived from technology fail to
achieve water quality standards.
DWR's public notices here characterize the North Toe as "water quality limited" for
fluoride and TSS. While it is true that water quality does not meet those applicable standards,
the assumption that minimum treatment requirements have been imposed for TSS and fluoride is
not correct because, as discussed above, DWR skipped over evaluating minimum treatments
required to reduce these pollutants. Only when DWR corrects that analysis can it then determine
the degree of more stringent effluent limitations that will be necessary to reduce TSS and
fluoride. When it does so, it should correct the deficiencies below.
• TSS: The fact sheets acknowledge the North Toe River is"impaired for
turbidity." Both listed segments of the North Toe River are downstream of
industrial discharges of TSS from quartz mining. In the context of permit
renewals for these facilities, the next relevant step would be to develop more
stringent limitations for TSS—a known cause of turbidity that has the"reasonable
potential to . . . contribute to an excursion"of the turbidity standard. 40 C.F.R. §
122.44(d)(1)(i). Rather than engage in a WQBEL exercise,DWR merely notes
"TSS is frozen at current loading" on account of the impairment. See, e.g., Fact
SheeINPDES Pennil 0000353 (carrying folwaid a daily inaximutn of 3,137
pounds of TSS into the North Toe River, while reporting instream data showing
turbidity excursions). For water quality limited segments,DWR's task is to
develop more stringent limitations necessary to meet those standards, not to freeze
existing permit limits, which in effect perpetuates the impairment.
• Fluoride: For fluoride, in lieu of performing a reasonable potential analysis, the
draft permits carry forward a waste load allocation("WLA")—apparently
developed over thirty years ago. See App. A to fact sheets: Fluoride Wasteload
Allocation,North Toe River Mining Discharges(discussing 1986 group
allocation). By design,the allocation uses what it describes as a"bubble permit"
concept that allows "localized impacts" and"flexibility for the dischargers to
maintain compliance." Id. Instream fluoride data reported confirms such
"localized"exceedances are occurring from upstream of the Crystal facility to
downstream of the Sibelco North America facility—a span of over five river
miles. The fluoride WLA approach is flawed for several reasons.
First, any attempt at assessing river-wide impacts from multiple dischargers must
actually account for all inputs of fluoride. The WLA acknowledges additional
fluoride loading is occurring through stormwater from the mines, yet the decades-
7 See, e.g.,NPDES Permit No.NC0000353,NPDES Permit No. 0000400,NPDES Permit No.0000175,
NPDES Permit No.0000361,NPDES Permit No.0084620;each of the industrial discharge permits recognize total
suspended solids as sources of pollution.
7

old permitted WLA has not been revised to account for additional fluoride
loading.
Next, the bubble permit approach itself is problematic; it essentially converts a
miles-long stretch of river into a mixing zone where water quality exceedances of
fluoride are occurring. This cannot be squared with federal or state law, or
current NPDES permitting guidance, which requires limits sufficiently stringent
to assure water quality standards are met, and not(as here) exceeded. Even if a
mixing zone is appropriate for each fluoride discharge,NPDES guidance is clear
that any mixing zone must be far more constrained. EPA's own NPDES Permit
Writers' Manual cautions that"the use and size of the mixing zone must be
limited such that the waterbody as a whole will not be impaired and such that all
designated uses are maintained." 6.2.5.2 Mixing Zone Size(emphasis added).
Examples given are for defined geometric shapes that occupy portions of the
water column within rivers around outfalls, not mixing of multiple discharges for
miles of river—which risks creating a long, degraded stretch. The limits proposed
here,based on a stale WLA, are not sufficiently stringent to maintain water
quality standards, which is the basic objective of a WQBEL exercise.
• Chloride(Red Hill and Crystal facilities): The draft permits contain no TBELs
for chloride, and a monitor-only requirement derived from a reasonable potential
analysis ("RPA"). This leaves the chloride discharges unlimited,which assures
no protection for water quality. In addition, it appears the RPA builds in
assumptions that ignore multiple dischargers of chloride on the stretch of river.
The fact sheet for Red Hill (NPDES Permit No. 000085839), for example,
indicates an assumption of"zero background," when there are five upstream
dischargers of chloride. EPA's NPDES guidance instructs permit writers to use a
"critical background in-stream pollutant concentration in mg/L" in conducting
RPA—presumably to get a better understanding of real-world impacts of
additional discharges. NPDES Permit Writers' Manual at 6.3 (determining the
need for WQBELs).8 In re-evaluating the need for WQBELs, DWR should apply
NDDES guidance.
• Narrative criteria for deleterious substances, colored or other waste: The
draft permits are silent on compliance with North Carolina's narrative water
quality criteria prohibiting visible and other discharges that are injurious to
recreation and aquatic life. Clean Water Act regulations are clear that permit
limits must be developed to assure compliance with narrative water quality
criteria. See 40 C.F.R. § 122.44(d)(1)(i); see also NPDES Permit Writers'
Manual(2010) at 6-23 (describing this obligation for narrative criteria). North
Carolina's narrative water quality standard for deleterious substances and other
wastes allows their presence in"only such amounts as shall not render the waters
8 Available at https://www.epa.gov/sites/production/files/2015-09/documents/pwm chapt 06.pdf.
8

injurious to public health, secondary recreation or to aquatic life and wildlife
aesthetic quality, or impair the waters for any designated uses." 15A N.C. Admin.
Code 2B.0211(12) (standards for Class C waters).
Attached are photos of the North Toe River during sampling and a statement
describing conditions in September 2015, during the prior permit cycle. See
Photographs and Statement of S. Evans &H. Carson(Att. B-E). The river was
not just turbid,but was an unnatural chalky white color—almost certainly
attributable to mining-related waste in the river. Deposits have piled up in places
at the river's edge, and the river had a caustic, chemical odor to paddlers. See id.
As these photos, statements from individuals in the river, and recent river closure
in summer 2018 indicate,9 recreation use is impaired by conditions in the North
Toe. The excessive discharges of pollution from these facilities,which create
visible changes to the water and produce a chemical smell,must be abated. The
draft permits make no effort to ascertain non-compliance with North Carolina's
narrative water quality standard—a gap that must be remedied.
• pH: We support DWR's revision of all permit limits to reflect the applicable
water quality standard, 6-9 standard units. Although Sibelco contended in
comments it would have to add treatment to achieve this limit, the fact that such
treatment options are available is further confirmation that pH limits should be
tightened. To the extent Sibelco asserts "that adding additional chemicals to our
streams is not a preferred measure for maintaining water quality,"'0 we agree.
The addition of chemicals to Sibelco's wastewater treatment system to achieve
tighter effluent limits should not result in more chemicals in the North Toe River;
Sibelco's wastewater effluent system ought to be designed to remove chemicals
from wastewater effluent discharge,not add them. If Sibelco's effluent discharge
profile would change based on complying with North Carolina's water quality
standard for pH, this would need to be disclosed through an amended application.
Any additional effluent discharge concentrations would have to be evaluated by
DWR.
B. Monitoring and Reporting
In addition to tightening permit limits themselves, a monthly average should be added to
Red Hill's fluoride discharges. EPA regulations mandate that all permit limits shall,unless
impracticable,be stated as both daily maximum and average monthly discharge limitations. 40
C.F.R. § 122.45(d). This is the only one of the six facilities that lacks a monthly average limit
for fluoride, indicating use of such a limit is not impracticable.
9 Assessment of Civil Penalty for Violations of the Reporting Requirements(Case No.:LM-2018-0051),
NPDES Permit No.0000353 (Feb.4,2019),on file with DEQ.
10 Sibelco Response to Draft NPDES Permit Renewals(Nov.27,2018).
9

We support the addition of monitoring requirements for aluminum, copper, lead, nickel
and zinc to the draft permits,particularly based on the presence of metals in reported effluent
data and prior investigation of stormwater from mines that receive wastewater sludge, indicating
these are pollutants of concern. See, e.g., NPDES Permits 0000400 and 0000353, Short Form
2C. However, a monthly sampling frequency would be more useful than quarterly for purposes
of evaluating discharges of metals occurring on a continuing basis. Nothing in the fact sheet
demonstrates or suggests that monthly monitoring for metals is impractical, and monthly
monitoring appears necessary"to yield data which are representative of the monitored activity."
See 40 C.F.R. § 122.48(b).
C. Waste Disposal/Removed Substances
The permit renewal fact sheets reveal that the processing facilities have been treating
residuals, or sludge, from their wastewater treatment process as tailings, and disposing of them in
the mines. EPA, according to the fact sheets, has already expressed concern over"potential
pollutants" in stormwater from the mines because of these practices. Quartz Corps submitted
with its application a"sludge management plan"that describes this process for its facilities. As
described, these disposal practices appear to run afoul of NPDES permit conditions for sludge
disposal. The"removed substances"provision requires any sludge removed in the course of
treatment to comply with N.C. Gen. Stat. § 143-215.1 and to"prevent any pollutant from
entering waters of the State." NPDES Permit Standard Conditions, Sec. C (6). The facilities
must, under a separate condition, minimize or prevent any"sludge use or disposal in violation of
[the] permit with a reasonable likelihood of adversely affecting human health or the
environment." NPDES Permit Standard Conditions, Sec. B (2). Bypassing relevant permits for
sludge disposal,by treating wastewater sludge as mine tailings, appears to violate these
conditions.
D. Groundwater Monitoring
The permit renewal fact sheets indicate settling ponds are incorporated into some or all of
the wastewater treatment systems at all of the facilities. See, e.g., Fact Sheet, Quartz Corps
(NC0000400) (describing inorganic solids settling pond); Sibelco N.A. (NC0000175)
(stabilization ponds); Red Hill(NC0085839) (settling pond). The draft permits renewals do not
indicate whether those settling basins are lined, and the fact sheets do not indicate whether
groundwater contamination is a risk. Standard conditions for NPDES permits require
groundwater monitoring to "determine compliance . . . with the current groundwater standards."
NPDES Permit Standard Conditions, Part Il, Sec. B; see also N.C. Gen. Stat. § 143-215.1(i), (k)
(addressing monitoring and corrective action for protection of groundwater). Groundwater
sampling should be required in the permit renewals around any unlined wastewater treatment
basins to assess compliance with groundwater standards.
E. DEQ Must Take Steps to Protect Federally Listed Appalachian Elktoe
All six of the discharges permitted under this renewal are located a short distance
upstream from designated critical habitat for the State- and federally-listed endangered
Appalachian elktoe mussel in the North and South Toe Rivers. Designation of Critical Habitat
10

for the Appalachian Elktoe, 67 Fed. Reg. 61,016, 61,027 (Sept. 27, 2002). In its most recent 5-
year review,which took place in 2017, the Fish and Wildlife Service assigned the elktoe a
recovery priority number of"5c," indicating"a high degree of threat and a low recovery
potential" and"reflect[ing] a species that may be in conflict with development activities or other
forms of economic activity." Appalachian Elktoe (Alasmidonta raveneliana) 5-Year Review:
Summary and Evaluation, at 3-4(Aug. 28, 2017).11 The North Toe and South Toe Appalachian
elktoe populations,part of the Nolichucky River basin population, are highly important in
preventing further declines in this species. According to the Fish and Wildlife Service,
"[b]ecause of the small size of the surviving populations of the Appalachian elktoe,the species'
restricted range, and the limited amount of suitable habitat available to the species. . . . actions
that are likely to destroy or adversely modify the Appalachian elktoe's critical habitat are also
likely to jeopardize this species." 67 Fed. Reg. at 61,029.
The Appalachian elktoe recovery plan points specifically to the protection of existing
elktoe "populations and remaining areas of suitable habitat"as "vital"to species recovery.
Recovery Plan For The Appalachian Elktoe, at 10 (Aug. 26, 1996).12 At the time the recovery
plan was developed,the elktoe population in the Nolichucky basin was one of only two known
populations. Recovery Plan at 2. The other, a population in the Little Tennessee River once
considered the healthiest and most robust population remaining, experienced a dramatic and
currently unexplained die off from 2005 —2015. 5-Year Review at 5. The Nolichucky basin
population is now one of just seven known populations, and is significant as one of the two
largest and"most likely to maintain long-term viability." Id. This population is also important
because it"occup[ies] multiple independent watersheds,"which provides "protection from an
event that might affect only one of the watersheds,"while other populations are"vulnerable to
extirpation from a single event." Id. at 5-6.
Appalachian elktoe, like all mussels, is particularly susceptible to sedimentation, among
other causes noted for its decline. A primary factor causing the elimination of the species from
most of its historic range is"the runoff of silt and other pollutants from poorly implemented
mining, construction/development, agricultural, and past logging activities." Appalachian Elktoe
Determined To Be an Endangered Species, 59 Fed. Reg. 60,324, 60,326 (Nov. 23, 1994).13 The
Appalachian elktoe in the South Toe River are already under threat from sedimentation related to
road construction, id. at 8; issuing these permits without attempting to address TSS exceedances
and turbidity impairment poses further risk to an already-struggling population that is vital to
species recovery.
Under the NPDES Memorandum of Agreement between North Carolina and the EPA,the
State is required to follow certain procedures in administering the delegated NPDES program.
NPDES Memorandum Of Agreement Between The State Of North Carolina And The United
"Available at https:Hecos.fws.gov/ecpO/profile/speciesProfile?spcode--FOI
12 Available at https:Hecos.fws. og v/ecpO/profile/speciesProfile?spcode=F01 J.
13 Available athttps:Hecos.fws.gov/ecpO/profile/speciesProfile?speode=FO1
11

States Environmental Protection Agency Region 4, at 12-13 (Oct. 15, 2007).14 In order"to
address issues involving federally-listed species and designated critical habitats, relative to
issuance of NPDES permits,"the State has agreed to "provide notice and copies of draft permits
to the U.S. Fish and Wildlife Service and National Marine Fisheries Service." Id. at 12. This
mechanism exists so that the State"may receive information from the Services on federally-
listed species and designated critical habitats in State, with special emphasis on aquatic or
aquatically-dependent species." Id. at 12-13. As far as commenters are aware, the State has not
followed this procedure and elicited comment on critical habitat from FWS.
Additionally, the State is required to "develop site-specific management strategies" for
waters that"provide habitat for federally-listed aquatic animal species that are listed as
threatened or endangered." 15A N.C. Admin. Code 213.0110. Such a management strategy can
be developed as part of designating the waters as Outstanding Resource Waters under 15A N.C.
Admin. Code 213.0225, or as part of creating a basinwide water quality management plan under
15A N.C. Admin. Code 213.0227. Rule .0110 requires that such a plan be developed within
"each watershed's first complete five year cycle following adoption of this Rule." Although Rule
.0110 went into effect in 2000, the State has developed neither an ORW designation nor a site-
specific management strategy through the basinwide management planning cycle for this critical
habitat. Permitting discharge of mining wastewater into this critical habitat without first
implementing such required management planning for species and water quality protection is
error.
F. Draft Permits Will Not Achieve Compliance with Water Quality Standards
State and federal law prohibit issuance of NPDES permits that contribute to violations of
water quality standards. Under the Clean Water Act,North Carolina cannot issue a NPDES
permit that will contribute to violations of water quality standards. See 33 U.S.C. §
1311(b)(1)(C). State regulations impose a similar requirement: "No permit maybe issued when
the imposition of conditions cannot reasonably ensure compliance with applicable water quality
standards and regulations of all affected states." 15A N.C. Admin. Code 2H.0112 (c) (final
action on NPDES permit applications).
These permit renewals would contribute to violations of water quality standards for
turbidity, fluoride, and recreation and aesthetic standards, for the reasons described above. In
addition to these shortcomings in the permit terms themselves, several of the facilities have a
recent history of non-compliance with these very permit terms. This is a separate reason to re-
evaluate whether the permit terms are sufficiently stringent to assure compliance with water
quality standards. The Altapass facility(NC0000353), for example,recently received NOVs and
penalties for overflows, a pH violation, and an acid spill,resulting in a fish kill. The Quartz
Corps (NC0000400)reports exceeding fluoride limits, and Red Hill (NC0085839)has received
recent NOVs for frequency and monitoring violations.
14 Available at https://www.epa.gov/sites/production/fiiles/2013-09/documents/ne-moa-npdes pdf.
12

Because the current conditions have been insufficient to ensure compliance for several
facilities, DWR should consider whether the same conditions would in fact achieve compliance
with water quality standards. In the absence of being able to reasonably ensure compliance with
water quality standards, a permit renewal cannot issue.
G. DEQ Should Hold a Public Hearing
The reauthorization of these multiple,polluted discharges for years to come, into the
same stretch of river that is a designated a trout stream and important to the local outdoor
recreation economy in Western North Carolina, is of significant public interest. We reiterate our
February 7, 2019, request to DEQ to hold a public hearing, pursuant to 15A N.C. Admin. Code
2H.0111 and .0109 (b), so that the community and interested stakeholders have a voice in the
health and future of the North Toe River. As DWR moves forward, it is critical that DWR set
sufficiently stringent permit limits that will meaningfully address and abate pollution in the
North Toe River.
Sincerely,
Amelia Y. Burnette
Senior Attorney
Julie Reynolds-Engel
Associate Attorney
Cc: via email only
Linda Culpepper, DEQ
'Jeff Poupart, DEQ
Janet Mizzi, FWS
Molly Davis, EPA
13

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Attachment B

DECLARATION OF HARTWELL CARSON
I, Hartwell Carson,being of legal age, declare as follows:
1. I am over the age of 18 and suffer from no legal incapacity. I have personal knowledge
of the matters stated herein.
2. I currently serve as the French Broad Riverkeeper and have worked in that role for over a
decade. Founded in 2001,the Riverkeeper program educates and advocates for the
protection and enjoyment of the entirety of the French Broad River watershed—including
the North Toe River—from a variety of threats, including pollution from surface water
discharges.
3. The French Broad Riverkeeper program is part of MountainTrue. MountainTrue is a
nonprofit organization dedicated to protecting streams and rivers from pollution in
Western North Carolina. MountainTrue's members include those who live near the
North Toe River and use and enjoy the river for recreation, like paddling and fishing.
4. My role as Riverkeeper includes serving as a watchdog for waterways within the French
Broad river system. This includes documenting sources of pollution within the watershed.
As part of that work, I have become familiar with impacts to water quality from mining
operations discharging to and degrading conditions in the North Toe River.
5. On multiple occasions in recent years, I have conducted turbidity sampling in the North
Toe River using an EPA compliant Hach 2100 turbidimeter. I recorded the results on a
spreadsheet with the date, site name, and site description. On each of these trips I have
had an opportunity to observe conditions in the North Toe River. Sampling results
obtained during four sampling events between September 2015 and December 2018 are
reflected in the table being submitted with these comments. Sampling included the stretch
of the North Toe River between the Altapass Highway Bridge, upstream of Grassy Creek,
and Penland Bridge.
6. In addition to sampling, I took the photos attached, showing conditions of the river.
7. On September 29, 2015, was the first such trip where I obtained samples. The weather
conditions were a light rain. The river appeared cloudy and turbid and at times obscured
my own paddle in the water. Chalky discharge appeared to be entering the North Toe
River from multiple locations, including from what I believe to be are outfalls. This is
consistent with conditions I have observed on subsequent trips. Around the Altapass
facility, the river had an acidic chemical odor.
8. I obtained samples for turbidity at multiple locations along this stretch. I recall a sample
maxing out the turbidity meter,meaning the sample was too turbid to register on the
meter, which measures to a maximum of 999 ntu. This happened again in 2016, as
indicated on the attached sampling.
1

9. Many times that I have sampled the North Toe, I have documented turbidity in the river
far in excess of North Carolina's water quality standard of 10 ntu for trout waters.
10. The amount of mining waste escaping facilities and reaching the river visibly impacts the
condition of the river and detracts from its aesthetic character. I have observed these
conditions recurring on a repeated basis. But for the polluted discharge from mines and
their processing facilities degrading the North Toe River, I would be inclined to recreate
more on the North Toe River and believe others would as well.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
This the 19t'day of February, 2019.
vU�
Hartwell Carson
2

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North Toe River - Representative Photos During Sampling
December 21, 2018
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North Toe River - Representative Photos During Sampling
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North Toe Diver - Representative Photos During Sampling
September 29, 2015
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5

Attachment E

DECLARATION OF SAM EVANS
I, Sam Evans, being of legal age, declare as follows:
l. I am an attorney with the Southern Environmental Law Center. I lead our
National Forests and National Parks Program.
2. On September 29, 2015, I accompanied Hartwell Carson, French Broad
Riverkeeper, to obtain turbidity samples and observe conditions in the North
Toe River.
3. We floated the stretch of the North Toe River between the Altapass
Highway Bridge, upstream of Grassy Creek, and Penland Bridge.
4. The weather conditions were intermittent and light rain, following a heavy
rain, and the river's appearance was discolored and cloudy. At various
locations, I observed extremely chalky discharge entering the North Toe
River, from apparent NPDES outfall locations and possibly stormwater
outfalis, contributing to the opacity of the water. In some locations, I could
not see the end of my own paddle in the water,just below the surface.
5. I observed Carson taking samples for turbidity at multiple locations along
this stretch. The sampling results recorded by Carson are reflected in the
table being submitted with these comments. I recall a sample "maxing out"
the turbidity meter, or being too high for the device to measure.
6. As we passed by the Altapass facility, the river had a caustic, chemical odor,
and my eyes burned. The photo labeled "North Toe River - Altapass Facility
Discharge" captures this.
7. I was disappointed by the condition of the river and the amount of mining
waste escaping facilities and discharging into the river, which visibly and
aesthetically impacted the condition of the river. As a paddler, I would
recreate more in the North Toe River, especially in high water, but for the
polluted discharge from mines and their processing facilities degrading the
North Toe River.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing
is true and correct.

This the 18th day of January, 2019.
Sam Evans
2