NCG060387_NOV-2021-FK-0001 Response_20210924 (3)

MCDEQ/DWR
SEP 2 4 2021
WQROS
MOORESVILLE REGIONAL OFFICE
Orbit Energy Charlotte, LLC
PO Box 470157
Charlotte, NC 28247
September 21, 2021
North Carolina Department of Environmental Quality
Division of Water Resources
Attention: W. Corey Basinger
610 East Center Avenue, Suite 301
Mooresville, NC 28115
Re: That certain Notice of Violation/Notice of Recommendation for Enforcement dated
September 9, 2021 (the "Notice of Violation"), from the North Carolina Department of
Environmental Quality, Division of Water Resources ("NCDEQ") to Orbit Energy
Charlotte, LLC ("OEC").
Dear Mr. Basinger,
Pursuant to your request set forth in the Notice of Violation, a copy of which is attached hereto as Annex
A, OEC is required to submit a written response addressing the cause(s) and subsequent remediation efforts
of OEC and its on -site operator, Montrose Environmental ("Montrose"), in connection with the discharge
of wastewater to the tributary of Derita Branch at OEC's anaerobic digestion facility located at 600 Johnson
Road, Charlotte, NC 28206 (the "Facility"). OEC first responded to the Notice of Violation in a letter dated
September 17, 2021, a copy of which is attached hereto as Annex B (the "Initial Response"). Based on
additional feedback received from Montrose, OEC wishes to supplement its Initial Response with the
information contained herein.
As set forth in the Notice of Violation, NCDEQ states the following:
"As a result of the unpermitted discharge of wastewater into the Derita Branch, EIM was
in violation of North Carolina General Statute (G.S.) 143-215.1 (a)/Control of Sources of
Pollution - Permits Required and 15A North Carolina Administrative Code (NCAC) 02B
.0211(6)/Fresh Surface Water Dissolved Oxygen Standard for Class C Waters. Please be
advised that G.S. 143-215.6A provides for a civil penalty of not more than twenty-five
thousand dollars ($25,000.00) or twenty-five thousand dollars ($25,000.00) per day when
the violation is of a continuing nature, against any person who is required but fails to apply
for or to secure a permit required by G.S. 143-215.1 (a) and/or against any person who
violates any classification, standard, limitation, or management practice established
pursuant to G.S. 143-214.1, 143-214.2, or 143-215. Penalties may also be assessed for any
damage to surface waters of the State that may result from the violation."
In response to the above allegations, we note that Montrose took steps to immediately shut off the pump
and ceased the discharge shortly after 5:00 a.m. on August 30, 2021. Further, the sampling data shows that
the downstream areas returned to normal very quickly. For example, on August 31, 2021, testing near the
site showed levels of dissolved oxygen ("DO") at 2,433 parts per million ("ppm") which dropped to 154
ppm the next day; ammonia was 1,003 ppm on August 31, 2021, and dropped to 12.6 ppm the next day.
Thus, OEC believes that NCDEQ could only allege, at most, a day or two of violation pursuant to the

statutory provisions referenced above and that there was no "damage to surface waters of the State"
resulting from the spill.
Note also that the Notice of Violation states the following:
"This letter is also to advise you that this Office is considering the initiation of an enforcement
action for the discharge of wastewater into the Derita Branch. The facility must immediately cease
the discharge and prevent the recurrence of any future discharges. In addition, the facility must
properly remediate all affected areas impacted by the wastewater discharge."
As noted above, the discharge has ceased. With respect to taking actions to "properly remediate all affected
areas impacted by the wastewater discharge," our Initial Response set forth the actions taken by both
contractors retained to conduct the cleanup Carolina Emergency Response Team ("CERT") and US
Waste —that demonstrate that requirement was met as well.
We welcome the opportunity to address any questions and/or concerns that you may have.
Sincerely,
Orbit Energy Charlotte, LLC
Name: Kevin Keai
Title: Chief Executive 0
ficer

Annex A
Notice of Violation
[See attached]

ROY COOPER
Governor
ELIZABETH S. BISER
Secretary
S. DANIEL SMITH
Director
CERTIFIED MAIL #: 7018 0360 0002 2099 8832
RETURN RECEIPT REQUESTED:
Kevin Kearney, CEO
Entropy Investment Management, LLC
Post Office Box 470157
Charlotte, NC 28247
Dear Mr. Kearney:
NORTH CAROLINA
Environmental Quality
September 9, 2021
Subject: Notice of Violation/Notice of Recommendation for
Enforcement
Unpermitted Discharge of Wastewater
Violations of G.S. 143-215.1 (a) and
15A NCAC 02B .0211(6)
Orbit Energy Charlotte, LLC
Mecklenburg County
Tracking No. NOV-2021-FK-0001
Chapter 143, Article 21 of the North Carolina General Statutes (G.S.) authorizes and directs the Environmental
Management Commission of the Department of Environmental Quality to protect and preserve the water resources of the
State. The Division of Water Resources (DWR) has the delegated authority to enforce adopted water pollution control
rules and regulations.
On August 30, 2021, Charlotte -Mecklenburg Stormwater Services (CMSS) was notified by you that approximately
230,000 gallons of wastewater had overflowed the aeration tank and 30,000 gallons had entered unnamed tributary (ut) to
Derita Branch (via stormwater conveyance system) at the Orbit Energy Charlotte facility located at 600 Johnson Road,
Charlotte/Mecklenburg County. You and/or your contracted operations company (Montrose Environmental) had later
confirmed with the Division of Water Resources (via email dated September 1, 2021) that approximately 195,000 gallons
had overflowed the aeration tank and 35,000 gallons had discharged into the ut to Derita Branch (Class C Waters). CMSS
and Division of Water Resources staff both had measured dissolved oxygen levels in the ut to Derita Branch below the
minimum Fresh Surface Water Dissolved Oxygen Standard for Class C Waters. In addition, CMSS had counted
approximately 1,000 dead fish in the ut to Derita Branch and the main stems of Derita Branch and Little Sugar Creek.
Entropy Investment Management, LLC (EIM) never applied for and/or secured a permit to discharge wastewater into the
ut to Derita Branch.
North Carolina Department of Environmental Quality I Division of Water Resources
Mooresville Regional Office 1610 East Center Avenue, Suite 301 1 Mooresville, North Carolina 28115
704.663.1699

Kevin Kearney
Page Two
September 9, 2021
As a result of the unpermitted discharge of wastewater into the ut to Derita Branch, EIM was in violation of North
Carolina General Statute (G.S.) 143-215.1(a)/Control of Sources of Pollution — Permits Required and 15A North Carolina
Administrative Code (NCAC) 02B .0211(6)/Fresh Surface Water Dissolved Oxygen Standard for Class C Waters. Please
be advised that G.S. 143-215.6A provides for a civil penalty of not more than twenty-five thousand dollars ($25,000.00)
or twenty-five thousand dollars ($25,000.00) per day when the violation is of a continuing nature, against any person who
is required but fails to apply for or to secure a permit required by G.S. I43-215.1(a) and/or against any person who
violates any classification, standard, limitation, or management practice established pursuant to G.S. 143-214.1,
143-214.2, or 143-215. Penalties may also be assessed for any damage to surface waters of the State that may result
from the violation.
This letter is also to advise you that this Office is considering the initiation of an enforcement action for the discharge of
wastewater into the ut to Derita Branch. The facility must immediately cease the discharge and prevent the recurrence of
any future discharges. In addition, the facility must properly remediate all affected areas impacted by the wastewater
discharge.
It is requested that a written response be submitted to this Office within ten (10) days of receipt of this letter. The
response shall include the actions taken to cease the wastewater discharge and all measures taken to prevent the recurrence
of any future discharges. In addition, all cleanup activities associated with this wastewater discharge must also be included
in the response.
Should you have any questions concerning this report, please do not hesitate to contact Mr. Bell at [phone], or
via email at wes.bellWncdenr.gov.
Cc: Rusty Rozzelle, CMSS (eCopy)
Sincerely,
e---DocuSigned by:
A414041HA:44
.-- F 161 F889A2084A3...
for
W. Corey Basinger, Regional Supervisor
Water Quality Regional Operations Section
Division of Water Resources, NCDEQ
North Carolina Department of Environmental Quality I Division of Water Resources
Mooresville Regional Office I 610 East Center Avenue, Suite 301 I Mooresville, North Carolina 28115
704.663.1699

Annex B
Initial Response
[See attached]

Orbit Energy Charlotte, LLC
PO Box 470157
Charlotte, NC 28247
September 17, 2021
North Carolina Department of Environmental Quality
Division of Water Resources
Attention: W. Corey Basinger
610 East Center Avenue, Suite 301
Mooresville, NC 28115
Re: That certain Notice of Violation/Notice of Recommendation for Enforcement dated
September 9, 2021 (the "Notice of Violation"), from the North Carolina Department of
Environmental Quality, Division of Water Resources ("NCDEQ") to Orbit Energy
Charlotte, LLC ("OEC").
Dear Mr. Basinger,
Pursuant to your request set forth in the Notice of Violation, a copy of which is attached hereto as Annex
A, OEC is required to submit a written response addressing the cause(s) and subsequent remediation efforts
of OEC and its on -site operator, Montrose Environmental ("Montrose"), in connection with the discharge
of wastewater to the tributary of Derita Branch at OEC's anaerobic digestion facility located at 600 Johnson
Road, Charlotte, NC 28206 (the "Facility").
On the morning of August 30, 2021, Montrose employees returned to the Facility at approximately 5:00
a.m. for the start of the work week and discovered that a tank had overflowed at some point between Sunday
and Monday morning and had caused a release of wastewater from a tank at the Facility. Montrose's
employees immediately shut off the pump and began taking actions to address the spill, including initiating
a transfer from the Nitrification Tank which had overflown to the Post -Nitrification Tank to lower levels
as soon as possible. Facility staff member Tommy Lewis immediately contacted Zack Morgan of OEC
regarding the spill. In addition, Montrose called Carolina Emergency Response Team ("CERT"), an
independent third -party response contractor, to come to the Facility and conduct a clean-up. CERT arrived
that day and began taking response actions and conducting the cleanup of the liquid contained in the
stormwater ponds that had captured the vast majority of the spilled material. Following CERT's completion
of removing the liquids from the stormwater ponds, US Waste was contacted immediately and scheduled
to commence removal of the sludge remaining in the pond beginning on September 7, 2021. Due to the
electrical storms occurring in the area on September 7th, commencement of the sludge removal was delayed
to September 8, 2021, when US Waste began the sludge removal. The final portion of the work included
digging out, solidifying and removing the remaining waste was completed on September 15, 2021. During
the interim period, the stormwater pond was closely monitored to ensure that no contamination left the site
and Montrose staff have confirmed the same to OEC.
In the days following the spill, Montrose conducted a thorough investigation of the incident and learned
that there were two Montrose employees that were at the Facility on Sunday morning and it appears that
one of those two employees inadvertently left the above -referenced pump running. Since this incident
occurred, Montrose's lead operator has been terminated at OEC's request and the Facility is now staffed
twenty-four hours a day, seven days a week.

In terms of immediately ceasing any discharge, Montrose informed OEC that the pump was shut off at
approximately 5:00 a.m. on Monday morning stopping the overflow. CERT was able to recover most of
the material that spilled —recovering an estimated 160,000 gallons of the overflow of the estimated 194,000
gallons that was estimated to have spilled. As a result, Montrose estimates that as much as 34,000 gallons
may have been discharged into the tributary of Derita Branch. While there was no way to recover the
material that co -mingled in tributary of Derita Branch after the spill was discovered, Montrose did conduct
an extensive investigation, including water quality sampling, that showed that any effects from the spill
dissipated quickly.
Lastly, neither OEC nor Montrose were aware of any purported fish kill until September 1, 2021, when
reports of the same appeared in the media and were tied to the discharge at the Facility.' Montrose sent a
team the next day that walked more than three miles downstream and found no evidence of a fish kill
associated with the release from the Facility —there were a total of two fish that were recovered a significant
distance downstream from the Site (far shy of the 1,000 fish that the media reported).
We welcome the opportunity to address any questions and/or concerns that you may have.
Sincerely,
Orbit Energy Charlotte, LLC
Name: Kevin Ke rn y
Title: Chief Executive Officer
' See https://www.charlotteobserver.com/news/local/article253928558.html We note that the original article in the
Charlotte Observer was very misleading. It included a video of a kayaker complaining of a foul odor and a large fish
kill, claiming that he saw fish jumping out of the water onto the banks of the river he was kayaking in. However, he
states in the video that this was on Saturday, August 28, 2021, a day before the discharge even occurred. Montrose's
review leads them to believe the kayaker was in a creek 11 miles away and the spill related to that event was an
850,000-gallon sewage spill from a City -owned pump station. The current version of the article now states that
"Catfish, minnows and other fish were killed" and attributes the comment to "Rusty Rozzelle, manager of the
Charlotte -Mecklenburg Storm Water Services' Water Quality Program.

Annex A
Notice of Violation
[See attached]

ROY COOPER
Governor
ELIZABETH S. BISER
Secretary NORTH CAROLINA
S. DANIEL SMITH Environmental Quality
Director
September 9, 2021
CERTIFIED MAIL #: 7018 0360 0002 2099 8832
RETURN RECEIPT REQUESTED:
Kevin Kearney, CEO
Entropy Investment Management, LLC
Post Office Box 470157
Charlotte, NC 28247
Subject: Notice of Violation/Notice of Recommendation for
Enforcement
Unpermitted Discharge of Wastewater
Violations of G.S. 143-215.1 (a) and
15A NCAC 02B .0211(6)
Orbit Energy Charlotte, LLC
Mecklenburg County
Tracking No. NOV-2021-FK-0001
Dear Mr. Kearney:
Chapter 143, Article 21 of the North Carolina General Statutes
(G..) authrizes and directs the ualis to prootect and preserve the waterresources
Management Commission of the Department of Environmental s of the
hasthe delegated authority to enforce adopted water pollution control
State. The Division of Water Resources (DWR)g
rules and regulations.
MSS) was notified by you that
On August 30, 2021, Charlotte -Mecklenburg Stormwater Services roximately
n tank and 30,000C gallons had entered unnamed pributary (ut) to
230,000 gallons of wastewater had overflowed the aeratlo Road
Derita Branch (via stormwater conveyance system) at the Orbit Energy
Charlotte company (Montrose located at 600 Johnson
later,
Charlotte/Mecklenburg County. You and/or your contracted op
195,000 gallons
confirmed with the Division of Water Resources (via le d a; dated September
the ut to ODeritathat
Branch (Classic Waters). CMSS
had overflowed the aeration tank and 35,000gallonsDerita
and Division of Water Resources staff both had measured dissolvedolass C Waterslevels
in the ut to
CMSS Bd nch below
the
minimum Fresh Surface Water Dissolved Oxygen Standardanch and approximately 1,000 dead fish in the ut to Derita Branch and the main stems of for and/or secured Da permerita itBrto d schargettwastewaterrint the
Entropy Investment Management, LLC (EIM) never applied
ut to Derita Branch.
North Carolina Department of Environmental Quality i Division of Water Resources
Mooresville Regional Office 1 610 East Center Avenue, Suite 301 I Mooresville, North Carolina 28115
704.663,1696

Kevin Kearney
Page Two
September 9, 2021
As a result of the unpermitted discharge of wastewater into the ut to Derita Branch, EIM was in violation of North
Carolina General Statute (G.S.) 143-215.1(a)/Control of Sources of Pollution — Permits Required and 15A North Carolina
Administrative Code (NCAC) 02B .0211(6)/Fresh Surface Water Dissolved Oxygen Standard for Class C Waters. Please
be advised that G.S. 143-215.6A provides for a civil penalty of not more than twenty-five thousand dollars ($25,000.00)
or twenty-five thousand dollars ($25,000.00) per day when the violation is of a continuing nature, against any person who
is required but fails to apply for or to secure a permit required by G.S. I43-215.1(a) and/or against any person who
violates any classification, standard, limitation, or management practice established pursuant to G.S. 143-214.1,
143-214.2, or 143-215. Penalties may also be assessed for any damage to surface waters of the State that may result
from the violation.
This letter is also to advise you that this Office is considering the initiation of an enforcement action for the discharge of
wastewater into the ut to Derita Branch. The facility must immediately cease the discharge and prevent the recurrence of
any future discharges. In addition, the facility must properly remediate all affected areas impacted by the wastewater
discharge.
It is requested that a written response be submitted to this Office within ten (10) days of receipt of this letter. The
response shall include the actions taken to cease the wastewater discharge and all measures taken to prevent the recurrence
of any future discharges. In addition, all cleanup activities associated with this wastewater discharge must also be included
in the response.
Should you have any questions concerning this report, please do not hesitate to contact Mr. Bell at [phone], or
via email at wes,bellncdenr,gov.
Cc: Rusty Rozzelle, CMSS (eCopy)
Sincerely,
r--DocuSianed by:
AM.tuw H P4 4.4
`—F161FB69A2D84A3...
for
W. Corey Basinger, Regional Supervisor
Water Quality Regional Operations Section
Division of Water Resources, NCDEQ
North Carolina Department of Environmental Quallty I Division of Water Resources
Mooresville Regional Office I blO East Center Avenue, Suite 301 i Mooresville, North Carolina 28115
704.6b3.Ib99