NC0000272_Attachment A - Partial Settlement Agreement_20220401

Attachment A
Partial Settlement Agreement and
Joint Stipulation to Stay, NC OAH
10 EHR 4341, April 24, 2012

State of gs ortfi Carolina
Department of justice
ROY COOPER 42 North French Broad Avenue
Attomey General Asheville, NC 28801
Ms. Kim Hausen
Chief Hearings Clerk
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, North Carolina 27699-6714
24 April 2012
Western Office
Phone: [phone]
Fax: [phone]
By electronic transmission and first-class mail
[e-mail]
RE: Cocke County TN v. DENR, DWQ, and Blue Ridge Paper Products, Inc.
OAH File No 10 EHR 4341
Cocke County TN v. EMC, NPDES Committee and Blue Ridge Paper Products, Inc.
OAH File No. 10 EHR 4982
(Consolidated for hearing)
Dear Ms. Hausen:
I have enclosed the original and two copies of a document for filing in the above -referenced
contested case. Please return a file -stamped copy to me in the enclosed self-addressed envelope.
Thank you for your help in this matter.
Sincerely,
Sueanna P. Sumpter
Assistant Attorney General
/SPS
Enclosures
xc: The Honorable J. Randall May (via e-mail: betty.owens(cr�oah.nc.gov)
Following via e-mail and first-class mail:
Julia F. Youngman, Esq.
Amelia Y. Burnette, Esq.
Austin D. Gerken, Jr., Esq.
Becky Jaffe, Esq.
William Clarke, Esq.
Dick Krieg, Esq.

STATE OF NORTH CAROLINA IN THE OFFICE OF
COUNTY OF HAYWOOD ADMINISTRATIVE HEARINGS
Cocke County, Tennessee, et al., )
Petitioners, )
v. )
)
North Carolina Department of Environment )
and Natural Resources — Division of Water )
Quality, )
Respondent, )
)
and )
)
Blue Ridge Paper Products Inc. )
Respondent -Intervenor. )
)
STATE OF NORTH CAROLINA
COUNTY OF WAKE
Cocke County, Tennessee, et al., )
Petitioners, )
v. )
)
Environmental Management Commission )
acting by and through its NPDES Committee, )
and the NPDES Committee, )
Respondents, )
)
and )
)
Blue Ridge Paper Products Inc., )
Respondent -Intervenor. )
)
10 EHR 4341
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
10 EHI2 4982
Partial Settlement Agreement and Joint Stipulation to Stay
Respondents North Carolina Division of Water Quality (the "Division"), North Carolina
Environmental Management Commission acting by and through its NPDES Committee, and the
NPDES Committee (the "NPDES Committee"), and Petitioners Cocke County, Tennessee, Clean
Water Expected for East Tennessee, Clean Water for North Carolina, the Tennessee Chapter of
the Sierra Club, Tennessee Scenic Rivers Association, and the Western North Carolina Alliance
(collectively, the "Petitioners"), and Respondent -Intervenor Blue Ridge Paper Products, Inc.,
hereby enter into this Partial Settlement Agreement pursuant to N.C. Gen. Stat. § 150B-31(b).

This matter arose out of the Petitioners' filing of a Petition for Contested Case Hearing
(10 EHR 4341) on July 23, 2010, challenging the Division's issuance of NPDES Permit No.
NC0000272 (the "Permit") to Respondent -Intervenor. The issues raised by Petitioners in their
contested case against the Division relate to the Permit limits on Blue Ridge Paper's discharge
into the Pigeon River. Petitioners filed a second Petition for Contested Case Hearing (10 EHR
4982) against the NPDES Committee on August 13, 2010, challenging its decision to grant a
variance to Respondent -Intervenor from North Carolina's water quality standard for color.
Without any contested case hearing, and without any admissions of liability, the Division,
the NPDES Committee, Petitioners, and Respondent -Intervenor have reached the following
Partial Settlement Agreement:
A. Temperature:
1. Subject to Environmental Protection Agency ("EPA") approval, DWQ will modify
the Permit so that the first sentence of Condition A. (1.) footnote 11 of the Permit
reads as follows:
"11. The weekly average instream temperature measured at a point 0.4 miles
downstream of the discharge location shall not exceed 32°C during the months of
July, August, and September and shall not exceed 29°C during the months
October through June."
2. Respondent -Intervenor will prepare an updated Balanced Indigenous Population
study ("BIP study") of the Pigeon River in accordance with the requirements of
Section 316(a) of the Clean Water Act. The BIP Study will, among other study
requirements: (1) survey mussels/shellfish as targeted species in the mainstem of the
Pigeon River; (2) include detailed studies of macro -invertebrates and shellfish; (3)
conduct thermal sampling at 20 locations in the Pigeon River and 2 locations in a
reference river; and (4) intensively survey for fish, macroinvertebrates/shellfish, and
periphyton in accordance with standardized sampling protocols, and in some cases,
sampling protocols developed in coordination with EPA and DWQ. Surveying will be
done at 20 Pigeon River locations and 2 locations in a reference river.
3. Respondent -Intervenor will use its best efforts to submit a final BIP study report to
the Division and to the EPA for review before January 1, 2014, unless river
conditions in 2012 do not allow safe access for field sampling. Respondent -
Intervenor will serve the completed study report on counsel for Petitioners at the
same time it submits the final study to the Division and EPA for review. Respondent-
2

Intervenor will notify counsel for Petitioners if delays in data collection planned for
2012 and early 2013 render submission of the study by January 1, 2014 not feasible.
4. Respondent -Intervenor has submitted a proposed 316(a) study plan to the Division
and to EPA and provided a copy to counsel for Petitioners.
5. In reliance on these commitments, Petitioners agree to voluntarily dismiss (in
accordance with section D, below) their claims relating to the current temperature
limits in the Permit.
B. Color
1. Respondent -Intervenor will, in accordance with the requirements of the 2010 Color
Variance, fund a site -specific study of color in the Pigeon River in North Carolina.
The study protocol shall be approved by DWQ and will generally be as outlined in
EPA's letter of February 22, 2010 to DWQ. Respondent -Intervenor has submitted a
draft protocol for such a study to the Respondents and to the EPA for comment.
Respondent -Intervenor will exercise best efforts to complete the study and submit a
report to Respondents before January 1, 2013. Respondent -Intervenor will serve a
copy of the final study protocol and -completed report on counsel for Petitioners at
the same time it submits the report to Respondents.
2. Because the color perception study currently being developed by Respondent -
Intervenor may have bearing on the positions of the parties in these consolidated
contested cases, the parties jointly agree and stipulate to a stay of the hearing in these
consolidated contested cases until January 30, 2013. The parties jointly agree and
stipulate to submit a joint status report to OAH on or before January 30, 2013,
reporting on the status of the color perception study, whether a continued stay of this
matter is required to allow Respondents and the EPA to review the study, and the
appropriate scheduling of a hearing to resolve these contested cases, if necessary.
C. Within three days of execution of this Partial Settlement Agreement, Respondents shall
submit a draft revised NPDES permit reflecting the terms of this agreement to the EPA
for approval of its terms. The parties understand and stipulate that approval of the draft
revised permit does not bind EPA or any party to approval of any of the future studies, or
plans or protocols for future studies contemplated by this agreement. Furthermore, the
parties understand and stipulate that, by entering into this Agreement, no party is bound
3

to approve any of the future studies, or plans or protocols for future studies contemplated
by this agreement.
D. Within ten days of being notified that EPA has approved a draft revised NPDES permit
reflecting the terms of Partial Settlement Agreement, Petitioners shall file a Notice of
Settlement and Partial Dismissal with the Office of Administrative Hearings ("OAH") for
dismissal of only their temperature claims against the Permit in their Contested Case,
Cocke County, Tennessee et al. v. NC DENR, Division of Water Quality, 10 EHR 4341,
with prejudice, with each party to bear its own costs and attorney's fees.
E. If the draft revised NPDES permit is disapproved by EPA such that any provision of this
agreement cannot be implemented, the agreement shall be rendered void and the parties
agree to negotiate in good faith to revise this agreement.
F. The Parties agree to cooperate fully in executing any and all supplementary documents
and in taking all additional actions that may be necessary to give full force and effect to
the terms of this Partial Settlement Agreement.
G. It is understood and agreed that this Partial Settlement Agreement is not to be construed
as an admission by any party to this agreement and that this agreement is a compromise
of disputed claims.
H. This Partial Settlement Agreement may not be modified, altered or changed except in a
written document that is signed by all Parties and that makes specific reference to this
Partial Settlement Agreement.
The Parties represent that any necessary corporate and governmental formalities have
been complied with for purposes of signing and entering into this Partial Settlement
Agreement. The persons executing this agreement represent and warrant that they have
full authority to sign this agreement on behalf of the Parties for which they are acting.
J. This Partial Settlement Agreement shall be binding upon the Parties, their successors and
assigns.
4

This thay of , 2012.
Austin D. Gerken Jr., N.C. State Bar No. 32689
Amelia Y. Burnette, N.C. State Bar No. 33845
Rebecca Jaffe, N.C. State Bar No. 40726
Southern Environmental Law Center
22 S. Pack Square, Suite 700
Asheville, NC 28801
828-258-2023
Julia F. Youngman, N.C. State Bar No. 21320
Southern Environmental Law Center
601 W. Rosemary Street, Suite 220
Chapel Hill, NC 27516
919-967-1450
On behalf of Cocke County, Tennessee, Clean Water
Expected for East Tennessee, Clean Water for North
Carolina, the Tennessee Chapter of the Sierra Club,
Tennessee Scenic Rivers Association, and the Western
North Carolina Alliance
Sueanna Sumpter, Esq.
Assistant Attorney General
N.C. Department ofJustice
42 N. French Broad Ave.
Asheville, NC 28801
828-251-6083
On behalf of North Carolina Division of Water Quality
ar, casse, Esq.
Spe i eputy Attorney General
North Carolina Department ofJustice
P.O. Box 629
Raleigh, NC 27602
919-716-6962
On behalf of North Carolina Environmental Management
Commission acting by and through its NPDES Committee
5

L
William Clarke
Roberts & Stevens, P.A.
PO Box 7647
Asheville, NC 28802
828-252-6600
("2,,,
Richard W. Krieg, Esq.
Lewis, King, Krieg & Waldrop, PC
One Centre Square
620 Market Street, 5th Floor
Knoxville, Tennessee 37902
865-546-4646
On behalf of Blue Ridge Paper Products, Inc.
6