NC0000272_US EPA Decision Document_20220401

Decision Document of the United States Environmental Protection Agency
Determination Under Section 303(c) of the Clean Water Act Review of North Carolina's
2021 Removal of the Color Variance Associated with NPDES Permit # NC0000272 for Blue Ridge
Paper Products, LLC
North Carolina transmitted the revision to its water quality standards (WQS) to the Environmental
Protection Agency by letter dated December 30, 2021 and received by the Regional Administrator on
January 12, 2022. As described more fully below, the EPA has reviewed and is approving the revision
pursuant to section 303(c) of the Clean Water Act (CWA or Act). Regarding consultation activities for
section 7 of the Endangered Species Act (ESA), the EPA Region 4 concluded the EPA has no discretion
to consult on EPA's approval of the revision addressed by today's action. Therefore, no further
consultation obligation is required for the subject revisions.
Part I - Overview of State and Federal Information
Background
In the late 1980s, the North Carolina Environmental Management Commission (EMC) granted a WQS
variance provision to the state's narrative water quality criterion for color. Since its initial granting, the
WQS variance has continued over time under the regulations contained in 15 NCAC 02B .0226,
Exemptions From Surface Water Quality Standards' and was most recently approved by EPA on
December 21, 2010.2 The color variance is identified on the state's website list of WQS variances and is
associated with National Pollutant Discharge Elimination System (NPDES) Permit # NC0000272 for
Blue Ridge Paper Products, LLC.
On September 9, 2020, the WQS variance and the associated permit were discussed during an EMC
NPDES committee meeting. At that meeting, the North Carolina Department of Environmental Quality
("NCDEQ" or "Department") requested approval to publish notice of a public hearing and comment
period for the proposed removal of the variance for color related to the Blue Ridge Paper Products, LLC
NPDES Permit. That request was approved, and a public hearing was scheduled for January 20, 2021, by
notice published in the December 1, 2020, North Carolina Register. The hearing was subsequently
rescheduled to April 14, 2021 due to a request from Tennessee legislators and with a notice published in
the February 16, 2021 North Carolina Register.
The EMC NPDES Committee met again on November 17, 2021 to respond to the Department's requested
action that the "color variance from the narrative standard issued to Blue Ridge Paper Products, LLC
(d/b/a Evergreen Packaging) on July 14, 2010 be terminated upon issuance of the NPDES permit
renewal." That request was approved, and the Department proceeded through the remaining
administrative steps before submitting to the EPA for review.
1 Variances from applicable standards, revisions to water quality standards or site -specific water quality standards may be
granted by the Commission on a case -by -case basis pursuant to G.S. 143-215.3(e), 143-214.3 or 143-214.1. A listing of
existing variances shall be maintained and made available to the public by the Division. Exemptions established pursuant to
this Rule shall be reviewed as part of the Triennial Review of Water Quality Standards conducted pursuant to 40 CFR
131.10(g).
2 EPA's December 21, 2010, approval was for the variance, as reissued and effective under state law, on July 14, 2010.

Clean Water Act Requirements
Under section 303(c) of the CWA and federal implementing regulations at 40 C.F.R. Part 131, states and
authorized tribes have the primary responsibility for reviewing, establishing, and revising WQS, which
consist of the designated uses of a waterbody or waterbody segment, the water quality criteria necessary
to protect those designated uses, and an antidegradation policy. The regulations at 40 C.F.R. §§ 131.10,
131.11, and 131.12 provide the minimum expectations for designated uses, water quality criteria, and
antidegradation, respectively. Additionally, following the 2015 updates to the Part 131 regulations, 40
C.F.R. § 131.14 provides the minimum expectations for the adoption of new and revised WQS variances.
Each state or tribe must follow its own legal procedures for adopting WQS. 40 C.F.R. § 131.6(e). The
state or tribe must submit certification by the appropriate legal authority within the state or tribe that the
WQS were duly adopted pursuant to state or tribal law. Id.
Section 303(c) of the CWA also requires states and tribes to submit new or revised WQS to the EPA for
review. The EPA is required to review these changes to ensure revisions to WQS are consistent with the
CWA. When the EPA approves a state or tribal WQS, it becomes the applicable WQS for purposes of the
CWA. 40 C.F.R. § 131.21(c)(2).
Endangered Species Act Requirements
Section 7(a)(2) of the ESA requires federal agencies, in consultation with the U.S. Fish and Wildlife
Service (USFWS), to ensure that their actions are not likely to jeopardize the continued existence of
federally listed species or result in the destruction or adverse modification of designated critical habitat of
such species. The EPA last initiated informal consultation with the USFWS on November 29, 2010 during
the Agency's prior review of the color WQS variance. On December 12, 2010, the USFWS notified the
EPA that current surveys had not found any listed species downstream of the discharge, which resulted in
the EPA's determination that the 2010 approval of the WQS variance will have no effect on listed species.
As the current action intends to remove the WQS variance, and states have full discretion to decide
whether to adopt a WQS variance, a provision at 40 C.F.R. § 131.14, the EPA has determined that there is
no discretion to consult on the current action. Therefore, no further consultation effort is required for the
subject revision.
Government to Government Consultation
The EPA recognizes its unique legal relationship with Tribal Governments as set forth in the United
States Constitution, treaties, statutes, executive orders, and court decisions. Government -wide and the
EPA -specific policies call for regular and meaningful consultation with Indian Tribal Governments when
developing policies and regulatory decisions on matters affecting their communities and resources. Due to
the nature of the revisions, the EPA determined that tribal resources would not be impacted by this action
and therefore concluded that tribal consultation was not necessary.
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Summary of EPA Action
The current action before EPA is whether to approve or disapprove the removal of the WQS variance for
color. The state's current numeric interpretation of the narrative provision, specific to color, is not subject
to CWA section 303(c) review because it is not itself a new or revised WQS therefore, EPA is not
required to review it in EPA's review of the color variance removal request. EPA's analysis is provided in
detail in Part II.
Part II - EPA's Analysis
The revision addressed in this document was discussed in a virtual public hearing held on April 14, 2021.
Of the 10 speakers who specifically mentioned the topic of the color WQS variance during the public
hearing, four speakers (representatives of Evergreen Packaging) stated that they supported the removal of
the proposed color WQS variance, one speaker (a river guide) stated she was against increasing the color
WQS variance, and the remaining five speakers (Rapid Expeditions Rafting, Rip Roaring Whitewater
Adventures, Clean Water for North Carolina, Clean Water Expected in East Tennessee, and Cooke
County TN resident/river guide) stated that they opposed removal of the color WQS variance.
Written comments were accepted for the 2020 draft NPDES permit and proposed removal of the color
variance from December 1, 2020, through April 30, 2021. The state received 64 comments that
specifically mentioned the topic of the color WQS variance. Three of the 64 written comments stated a
supportive stance regarding the proposed removal of the color WQS variance, six of the 64 written
comments did not state explicit support or objection for the proposed removal of the color WQS variance,
and the remaining 55 of the 64 written comments opposed the removal of the color WQS variance.
Following the Department's preparation of its Report of Proceedings document, the Department presented
the recommendation of the Hearing Officer to the NPDES Committee on November 17, 2021. The EMC
approved that the 2010 color WQS variance to the narrative standard for color [15A NCAC 02B
.0211(12)] issued to Blue Ridge Paper Products on July 14, 2010, should not be extended for another
permit term, and therefore terminated upon issuance of the NPDES permit renewal.
In a letter written to Regional Administrator Daniel Blackman, S Daniel Smith, Director for the Division
of Water Resources for the NCDEQ, submitted new and revised WQS for review by the EPA pursuant to
section 303(c) of the CWA. The letter and supporting documentation were received electronically on
December 30, 2021. The hard copy of the letter was received in the Regional Administrator's office on
January 12, 2022. In a December 21, 2021 letter, North Carolina's Senior Deputy Attorney General
certified that the WQS revision was duly adopted pursuant to North Carolina law.
The state's color WQS variance, adopted before the updated federal regulations provided additional
details on the minimum expectations on WQS variance adoptions, did not include a specific term for the
length of the WQS variance. Based on the state's conclusion that continuing the WQS variance in its 2010
form or some other revised version was no longer necessary, the state has formally noticed, taken
comment on, and adopted the removal of the color WQS variance to make clear that the WQS variance is
no longer in effect. As a result, the color WQS variance can no longer be used, and the applicable water
quality criterion is the narrative provision at 15A NCAC 02B .0211(12) which states:
Oils, deleterious substances, or colored or other wastes: only such amounts as shall not render the
waters injurious to public health, secondary recreation, or to aquatic life and wildlife, or
adversely affect the palatability of fish, aesthetic quality, or impair the waters for any designated
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uses. For the purpose of implementing this Rule, oils, deleterious substances, or colored or other
wastes shall include substances that cause a film or sheen upon or discoloration of the surface of
the water or adjoining shorelines, as described in 40 CFR 110.3(a)-(b), incorporated by reference
including subsequent amendments and editions. This material is available, free of charge, at:
http://www.ecfr.gov/.
The Department's decision to remove an exception from their WQS means that the underlying criterion at
15A NCAC 02B .0211(12) now applies for all CWA purposes. Submitting this change to the EPA for
action ensures that the removal of the WQS variance, once approved by EPA, results in the same
expectation at both the state and federal level with regard to the applicable water quality standards for
CWA purposes. Furthermore, the removal of the WQS variance language is a revision to North Carolina's
WQS that meets EPA's "4-part test"3 and therefore, the EPA has the authority and duty to review and act
on the WQS variance removal. Pursuant to 40 C.F.R. § 131.14, states have discretion to adopt WQS
variances, and therefore, can also use their discretion to not adopt (or not retain) WQS variances. The
EPA does not have a basis to require the Department to retain the WQS variance. Furthermore, in the
EPA's response to comments made on its 2015 Water Quality Standards Regulatory Revisions, the
Agency noted "EPA's action in reviewing and approving a WQS variance is EPA carrying out its CWA
oversight authority as it does with all new and revised WQS. It is not transferring any power to EPA that
is currently held by the states. States have full discretion to decide whether to adopt a WQS variance."4
Therefore, the removal of the WQS variance is consistent with 40 C.F.R. § 131.14, the expressed
clarification in the EPA's response to comment documents, as well as the administrative and noticing
requirements for state WQS rulemakings.
Part III - EPA's Conclusions
Based on the reasons outlined above, it is our conclusion that the requirements of the CWA and 40 C.F.R.
Part 131 have been met for the removal of the color variance and the revision is therefore approved.
March 10, 2022
Digitally signed by JEANEANNE
JEANEANNE GETTLE GETTLE
Date: 2022.03.10 09:43:10 -05'00'
Date Jeaneanne M. Gettle, Director
Water Division
3 https://www.epa.gov/sites/production/files/2014-11/documents/cwa303faq.pdf
4 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances. Docket
# EPA-HQ-OW-2010-0606. August 2015. Pg. 3-3380.
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