NC0036196_Correspondence_19901008

NPDES DOCUHENT SCANNING: COVER SHEET
NPDES Permit:
NC0036196
Clark Creek WWTP
Document Type:
Permit Issuance
Wasteload Allocation
Authorization to Construct (AtC)
Permit Modification
Complete File - Historical
Engineering Alternatives (EAA)
'correspondence°-.
Owner Name Change
Instream Assessment (67b)
Speculative Limits
Environmental Assessment (EA)
Document Date:
October 8, 1990
This document is printed an reuse paper - signore any -
content, on the reirerse side

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The submittal states that the removal of the word "potential" from
the permit language has the effect that"once again toxicity will be
absolutely determined by the extent to which some few Ceriodaphnia
find a 56% solution of my client's effluent conducive to their
mating". The response seems to have fun with comments regarding
mating of these organisms. Other statements include "slackened
ardor of the water flea" and "some laboratory's determination of the
amorous inclinations of water fleas placed in municipal effluents".
It is unfortunate that a substantive portion of the submittal
minimizes the importance of this important biological function.
Further you should be aware that propagation of aquatic life is a use
that we are required to protect under 15 NCAC 2B .0211. These
comments also indicate that your complaints are not well
considered. In fact, there is no ("mating" taking place during these
tests. If you have reviewed the test procedure you would have seen
that only one organism is placed in each test vessel. In fact, there
is no "mating" taking place prior to the tests. These organisms are
capable of reproducing themselves asexually.
With regard to the deletion of the word "potential" .wer'cite 15 NCAC
2B .0202(9) which defines chronic toxicity. By legal definjticcri; a
harmful effect sustained by an indicator species used as a`test
organism in a controlled toxicity test is chronic toxicity. The legal
framework under which we administer this program does not allow
the test results to be termed "potential". We cite the same regulation with regard to use of the phrase "caused by the presence
of prohibited toxic substances". At issue here is the term
"prohibited". This is a term which has no specific meaning within
the context of our regulations and in this issue. If it is your intent
that toxicity be associated only with chemical specific limits
within the NPDES permit, then this precludes the function of the
whole effluent toxicity test to monitor an array of toxic substances.
The use of the term "prohibited" merely dilutes and confuses the
legal definition of toxic substances and chronic toxicity.
Also mentioned in your correspondence is a statement that "the
revised language completely omits the two failed test standard".
This is not correct. It is included.
Finally, you have requested the inclusion of language that states
"during the period of the special order by consent and provided the
permittee is in compliance with the terms of the special order by
consent, permittee shall not be deemed to have violated the

conditions and terms of this paragraph I. Our modification of this
proposal includes a citation of law which defines your rights under a
consent order. This agency does not have the authority to modify
your rights under the cited General Statutes. You indicate that the
language that you propose will not leave you open to citizen suits.
You are already afforded some protections through the special order.
This agency can not write a permit which removes the legal rights
of a citizen. Again we have to function under the guidelines of our
Statutes and regulations. If further elaboration of your rights under
these Statutes is necessary we can ask one of our attorneys to
contact you.

ROBERT EPTING
JOE HACKNEY
ELIZABETH LACKEY
JOE BUCKNER
EPTING AND HACKNEY
ATTOkNEYS AND COUNSELLORS AT LAW
105 NORTH COLUMBIA STREET
SUITE 200
P. O. DRAWER 1329
CHAPEL HILL,NORTH CAROLINA 27514
October 8, 1990
3
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OCT t1 J 199U
PERM!T$ A Er 6 29-0323
FACSIMILE 929-39g0
AREA CODE 919 (,
Dr. George T. Everett
Director
Division of Environmental Management
Department of Environment, Health and Natural Resources
P.O. Box 27687
512 North Salisbury Street
Raleigh, N.C. 27611-7687
Re: NPDES Permit No. NC0036196
Permit Modification
City of Newton WWTP
Catawba County, N.C.
Dear Dr. Everett:
Thank you for your letter dated September 17, 1990, with
DEM's proposed draft revisions to Newton's NPDES Permit
enclosed, in response to our earlier meeting with DEM staff
and my letter dated August 20, 1990.
I had enclosed with my August 20 letter to you and to Mr.
Overcash our proposal for rewording the subparagraph touching on
the chronic toxicity limitations. I find in comparing my draft
with that which came with your September 17 letter that there
are two changes proposed from my draft to yours. These are:
1) The word "potential" is omitted from the beginning of
the second sentence in subparagraph (F.), to the
effect, it would appear, that once again "toxicity"
will be absolutely determined by the extent to which
some few ceriodaphnia find a 56% solution of my
client's effluent conducive to their mating.
Our use of "potential" to modify "effluent toxicity"
was intended to suggest that the ceriodaphnia test is
an indicator not of absolute toxicity, but of the
potential for toxicity, and of the necessity for
remedial action to determine both the cause and the
remedy therefor. Indeed, to insist upon the importance
of the test as indicating absolute toxicity, rather
than the potential for toxicity, seems to me to
degrade the importance of the remedial part of the
procedure. And if too much emphasis and importance is
placed upon the legal significance of the slackened
ardor of the water flea, rather than upon the steps

Dr. George Everett
Page Two
October 8, 1990
necessary to find the problem and eliminate it, our
attention and the State's will be diverted from the
real task at hand.
Thus I strongly urge that the language be revised to
clarify that what is determined by the ceriodaphnia
test is the "potential" for effluent toxicity, all of
which can easily be done by simply beginning the second
sentence of subparagraph F with the words, "Potential
effluent toxicity shall be determined ... etc."
(2) I find that the entire last paragraph of my draft has
been excised, and that a cursory reference to SOC's is
made in lieu thereof. This is unacceptable to the City
of Newton. The revised language completely omits the
two failed tests standard, the "potential for" toxicity
limitations, the "caused by the presence of prohibited
toxic substances" requirement, and the standard "no
violation while in compliance with SOC" language.
This paragraph is at the heart of every POTW's angst
about the chronic toxicity limitations in revised NPDES
permits. The State generally says, "Trust us, we are
going to work with you if the water fleas do not repro-
duce..."
Yet, the language that describes what actually will
happen in that event is excised, in favor of language
which offers no comfort to the POTW that does its best
both to test for chronic toxicity and then to remedy
any indications of toxicity, but is left open to fines
and citizen suits because whether or not it has
complied with the permit is left to some testing
laboratory's determination of the amorous inclinations
of water fleas placed in municipal effluent solution,
rather than upon the best efforts of the POTW and DEM
working in partnership to prevent toxicity.
It is unworthy to fight about this provision. From the
perspective of every POTW, the State simply must be
willing to say in writing what it says to POTW's face
to face. And thus, the last paragraph of my draft of
subparagraph F, or some suitable alternative that will
shield POTW's from liability so long as they do all the
State suggests or requires them to do under an SOC to
meet the chronic toxicity limits, must be a part of the
permit.
I am unaware of any other objections the City of Newton

Dr. George Everett
October 8, 1990
Page Three
might have to the draft that came with your September 17 letter,
and by copy of this letter I invite its engineer Charles Willis
to provide you with any other comments he may have in this
regard.
I had no occasion to discuss your revision with Mr. Overcash
or anyone else over there before it was received with your
September 18 letter. Thus I am sending along a copy of these
remarks to Mr. Overcash for his review.
With kindest personal regards, I remain
truy,
t Ep
cc: Mr. Dale Overcash
Mr. Charles A. Willis ..
Mr. Richard French
Mr. Dwight W. Wilson, Sr.
Mr. Larry Pitts
BOBCITYOFNEWTON
urs,

State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Martin, Governor George T. Everett, Ph. D.
William W. Cobey, Jr., Secretary Director
September 17, 1990
Mr. Richard French
City of Newton
PO Box 550
Newton, NC 28658
Subject: NPDES Permit No. NC0036196
Permit Modification
Newton WWTP
Catawba County
Dear Mr. French:
The Division of Environmental Management(DEM) has reviewed your letter of August
20, 1990, and Mr. Robert Epting's letter of the same date, concerning the reopening of the
subject permit. The results of our review are summarized in this letter.
Based on the information in the letters and the information discussed in the meeting on
August 7, 1990, the DEM is proposing to make the following changes to the DRAFT Permit:
1. Add a daily maximum limit for toluene of 19.0 µg/I and require weekly
monitoring by grab sample at the effluent;
2. Remove the limit for mercury and require monthly monitoring only;
3. Add a monthly fluoride monitoring requirement with a composite sample at the
effluent;
4. Retain the cyanide limit, but allow monthly monitoring instead of weekly
monitoring (There was not enough information submitted to justify removing
the cyanide limit);
5. Editorial changes to the toxicity limit in Part III Condition F (NOTE: Condition I
in the DRAFT of March 12, 1990, is now Condition F. Likewise, Condition J is
now Condition G. This is due to the DEM totally rewriting the boilerplate. A
copy of the boilerplate is enclosed for your review.); and
6. Minor modifications to Part III, Condition G to make it consistent with current
DEM requirements for the annual pollutant analysis.
Pollution Prevention Pays
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]
An Equal Opportunity Affirmative Action Employer

Mr. French
Page Two
Please review the changes and submit any additional comments by October 15, 1990.
The permit changes must be readvertised through the public notice process. The DEM would like
to resolve any differences prior to public notice.
If you have any questions, please contact Mr. Dale Overcash at [phone].
cc: Ms. Brenda Smith
Mr. Robert Epting

ROIIERT !PUNO
JOE HACKNEY
ELIZADETII LACKEY
jOEEUCKNER
EPTING AND HACKNEY
ATTORNEYS AND COUNSELLORS At LAW
105 NORTH COLUMBIA STREET
SUITE 200
P.O.DRAWER 1329
CHAPEL IIILLINORTII CAROLINA 27514
• August 20, 1990
Mr. George T. Everett, Director
Division of Environmental Management
Department of Environment, Health and Natural
512 North Salisbury Street
Raleigh, N:C, 27611
Mr. M. Dale Overcash
Supervisor, NPDES Permits
Division of Environmental Management
P.O. Box 27687
Raleigh, N.C. `27611
TF.I.ErIIONE 929-0323
FACSIMILE 929-3900
ARP.A CODE 919
1
4
Itesou•
, VED
OCT u 199u
PERM' S & ENGINEERING
Re: Amendment to Part III -I, Proposed NPDES Permit for
City of Newton, Permit No. NC0036196
Dear Sirs:
Enclosed is the City of Newton's proposal for modification
of subparagraph I of Part III, (chronic toxicity testing), which
DEM has proposed be added to Newton's NPDES permit. I send the
same along for your review and approval, as requested in your
August 13 letter to Newton's City Manager Richard French.
This is the same revision approved last year on behalf of
our client the Orange Water and Sewer Authority, except that I
have omitted reference.to the one-year start-up testing which
was required under the OWASA permit.
Again,.the thrust of our suggested revision is to make a
formal record of the parties' intent that a one-time failure of
the Ceriodaphnia test is not itself a permit violation, but
rather is an indication of the need to determine the cause and
proper remedy for such toxicity as may thereby be predicted, so
that the City, working with DEM, can find and remedy the actual
cause. To this end, as before, we note in the last paragraph
that so long as the City complies with such special orders by
consent as may be effected, the City will not be deemed in
violation of Part III -I of the Permit.
With kind regards, I remain
Very truly yours,
t Ept

cc:
Mr. Richard French
City Manager
Newton, N.C.
Dwight Wilson, Sr.
Plants Superintendent
Newton, N.C.
Mr. Larry Pitts
City Attorney
Newton, N.C.
Charles Willis
Willis Engineers
Charlotte, N.C.
4 •.

PROPOSED REVISION TO PARAGRAPH I , NPDES PERMIT, NEWTON,
(August 17, 1990)
1. The permittee's effluent discharge shall not exhibit
toxicity as indicated by at : least two consecutive test
procedures performed as herein required, and caused by the
presence in its effluent of any "toxic substance" (as defined in
Title 15, Subchapter 28 of the North Carolina Administrative
Code.) Potential effluent toxicity shall be determined using
test procedures outlined in the current or subsequent versions
of the North Carolina Ceriodaplinia chronic effluent bioassay
procedure -- (North Carolina Chronic Bioassay Procedure,
Revised, September, 1989), or subsequent versions, at an
effluent concentration of 56% (defined as treatment two in the
North Carolina procedure document).
The permit holder shall perform quarterly monitoring using
this procedure to establish compliance with the permit
condition. The first test shall be performed after thirty days
from the issuance of this permit in the months of June,
September, December, and Match. Effluent sampling for this
testing shall be performed at the NPDES permitted final effluent
discharge below all treatment processes.
4
All toxicity testing results required as part of this permit
condition will be entered on the Effluent Discharge Monitoring
Form (MR-1) for the month in which it was performed, using the
parameter code TGP3D. Additionally, DEM Form AT-1 (original) is
to be sent to the following addresst
Environmental Sciences Branch
North Carolina Division of Environmental Management
P.O. Box 27687
Raleigh, N.C. 27611
Test data shall be complete and accurate and shall include
all supporting chemical/physical tests, as well as all dose
response data. Total residual chlorine of the effluent toxicity
sample must be measured and reported if employed for
disinfection of wastes.
Failure to achieve the test conditions as specified in the
cited document, such as minimum control organism survival or
inappropriate environmental controls, shall invalidate the
testing and require retesting. Failure to submit suitable test
results in compliance with the reporting requirements of this
Permit shall constitute a failure of permit conditions, and
shall require retesting.

Should the test results from any quarterly procedure
required under this monitoring provision indicate a failure,
permittee shall immediately commence and continue monthly
monitoring and testing until such time as a single test is
passed. Upon passing a subsequent monthly test, the monthly
monitoring requirement hereunder shall revert to the quarterly
requirement.
Should the results of any monitoring and two consecutive
tests required hereunder, or from testing performed by the North
Carolina Division of Environmental Management, indicate the
potential for chronic toxicity or other consistent adverse
impacts caused to the receiving stream by the presence of any
prohibited toxic substance in permittee's effluent, or should
new sources of industrial process wastewater be discharged to
the permittee's system, thispermit may be reopened and modified
to include alternate monitoring requirements or limitations; or permittee may be reuited to comply with '
special order by consent the North CarolinavDivisionf'fny
of
Environmental Management and permittee shall execute res ectin
further testing requirements and/or whole effluent toxicity g
limitations. During the period of the special order by consent
and provided the permittee is in compliance with the terms of
the special order by consent, permittee shall not be deemed to
have violated the conditioni, tnd terms of this Paragraph I.