NC0024210_Response to Notice (PC-2022-0065)_20220421

Poyner Spruill"P
April 14, 2022
Nicolas E. Tosco
Partner
VIA EMAIL AND U.S. MAIL D: 704.342.5275
F: 704.342.5264
John Hennessy VESCEIVEDm
Compliance and Expedited Permitting Supervisor
N.C. Department of Environmental Quality APR 21 2022
1650 Mail Service Center • -
Raleigh NC 27699-1650 NCDEQIDWRINPDES
Email: [e-mail]
RE: Notice of Violation (NOV-2022-PC-0065) & Intent to Assess Civil Penalties
East Side WWTP
NPDES Permit NC0024210
Guilford County
Dear Mr. Hennessy:
I am writing this letter as legal counsel for the City of High Point (the "City") to
respond to the Notice of Violation sent to the City by the Division of Water Resources (the
"Division") on March 8, 2022 (the"NOV") and received by the City on March 15, 2022.A copy
of the NOV received by the City is attached to this response. The City disagrees with your
representation in the NOV that the data for November 1, 2021, which was submitted as part
of the City's Discharge Monitoring Report("DMR")in November 2021,constitutes a violation
of any quantifiable, specific water quality standard in North Carolina or of the City's NPDES
Permit- NC0024210 (the "Permit"). Nevertheless, the City would like to meet with you and
work with the Division on a mutually acceptable approach to continuing the City's ongoing
efforts to reduce the 1,4-dioxane discharged to, and subsequently from, the Eastside
Wastewater Treatment Plant (the "Plant"). In advance of such a meeting, the City provides
the following response to the NOV.
1) Alleged Violations of North Carolina Regulation 15A NCAC 02B .0211(12)
The NOV alleges there was a violation of North Carolina regulation 15A NCAC 02B
.0211(12), which states in full:
"Oils, deleterious substances, 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 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
WWW.POYNERSPRUILL.COM RALEIGH / CHARLOTTE / ROCKY MOUNT / SOUTHERN PINES
301 South College Street,Suite 2900. Charlotte,NC 28202 F 704.342.5250

Poyner Spruill"`
John Hennessy
April 14, 2022
Page 2
amendments and editions. This material is available, free of charge, at:
http://www.ecfr.govr
The City cannot be liable for a violation of the cited narrative water quality standard
in 15A NCAC 02B .0211(12) (the "Narrative Standard") because the Narrative Standard is
not a quantifiable limit or a Permit condition or requirement. The Narrative Standard was
developed by EPA as part of the implementation of the Federal Water Pollution Control Act
Amendments of 1972 to capture the various undefined components of petroleum products
and byproducts that did not have a numeric water quality standard at the time.As a result,
the Narrative Standard defines the term as "substances that cause a film or sheen upon or
discoloration of the surface of the water or adjoining shorelines." The concern in the NOV
relates to 1,4-dioxane, which is a specific compound and not undefined components of
petroleum products and byproducts. Its chemical properties in water do not fit within the
context of the Narrative Standard. While the EPA and Division have characterized 1,4-
dioxane as an"emerging contaminant"in advisory publications,neither entity has developed
or established water quality standards to regulate the chemical.
Additionally, the Narrative Standard allows "only such amounts as shall not render
the waters injurious ...", but there is no quantifiable or specific amount of 1,4-dioxane under
North Carolina law that has been held to render the waters of the State so injurious. Further,
no analysis of the potential impacts to downstream uses was provided in the NOV and the
City knows of no reported issue downstream of its discharge on the date the grab sample was
taken (November 1, 2021).
2) Alleged Violations of the City's Permit
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The NOV also alleges potential violations of certain conditions in the City's Permit.
Specifically,the NOV cites to Part II Section E,condition(9)(a)and Part IV, Section(C)(2)(c).
The City knows of no"occurrence at the water pollution control facility"on November 1, 2021
that resulted in abnormal discharge. The Plant was operating normally and the City has
been monitoring the levels of 1,4-dioxane, as requested by the Division starting 2018, at the
Plant's effluent.
Moreover, the City has consulted with significant industrial users (SIUs) and
identified to a reasonable degree the potential of each to have 1,4-dioxane in their
wastewater. The City has consulted with the Division and discussed the characteristics of
the Plant and the general production activities at the SIUs in the City's service area. The
City has also monitored certain SIUs that may discharge more 1,4-dioxane and required them
to provide monitoring of their discharges. Because there are no effluent limits on 1,4-dioxane
in North Carolina or in the City's Permit, there is no such limitation under the City's
pretreatment program. Nevertheless, the City has collected a considerable amount of data
and documentation and believes that the Division (through its regional and central offices)
are well aware of the City's efforts.
The manufacturing processes at each of the SIUs that may form, as a byproduct, 1,4-
dioxance follows an established production procedure, using raw materials and processes
that follow normal steps. The City's pretreatment permits for the SIUs under a Division-

Poyner Spruill"'
John Hennessy
April 14, 2022
Page 3
approved Pretreatment Program that include notification requirements similar to those in
the City's Permit.The City has no notification or information that anything unusual occurred
on November 1, 2021, and does not believe that notifying the Division under the Permit was
required or necessary on or after that date.
Equally important to what is in the Permit is what is not in the Permit. The Division
did not include in the Permit an effluent limit for 1,4-dioxane or the Narrative Standard.
Because neither a specific 1,4-dioxane limit nor the Narrative Standard are included in the
Permit,the City is"shielded"from a violation of the Permit and/or the standard.This"permit
shield" is not merely a legal technicality that the City is invoking, but is based on
fundamental fairness and principles of due process. A numerical limit could have been
included in the Permit, but there was not adequate information at the time the Permit was
issued on which to base a reasonable scientifically based limit. Likewise, the Narrative
Standard could have been included, but was not, presumably for the same reason.
Consequently, the Permit provides the City no notice of what is required for compliance
regarding 1,4-dioxane, and application of the Narrative Standard on which the violations are
based, has in effect been applied"after the fact."
Therefore, the City's position is that the alleged violations in the NOV regarding
reporting are invalid because, as explained above, there is no numerical limit in the Permit,
nor is the Narrative Standard that the City allegedly violated provided for in the Permit.
Consequently, 1,4-dioxane is unregulated by the Permit and there is no basis for requiring
compliance with the Permit conditions which involve reporting and/or investigating unusual
discharges of 1,4-dioxane from or to the Plant. Since there is no limit or standard in the
Permit, the City would not be on notice as to what incidents would trigger such reports and
investigations.
Prior to receiving the NOV, the City had not received any notices or letters from the
Division suggesting that the City's compliance with the Permit was in any way inadequate.
After receiving the NOV, the City has proactively taken steps to monitor 1,4-dioxane levels
and has undertaken actions to require its SIUs to evaluate their operations and to monitor
their discharges. The City's position is that it has taken steps to monitor and document the
presence of 1,4-dioxane in its wastewater, and that such steps represent a good faith
commitment by the City to find a solution to this issue.
3) Proposed Next Steps
Although the City disagrees with the alleged violations in the NOV, it shares the
Division's concerns regarding the effects of discharges of 1,4-dioxane into surface waters of
the State. The City is willing to work with the Division to develop a clear, fair, and mutually
acceptable plan to monitor and document progress on reducing the discharge of 1,4-dioxane
into the surface waters of the State. To this end, the City would like to schedule a meeting
with you and other Division representatives to discuss this response and the possibility of
amicably resolving the issues raised in the NOV.
In the meantime, the City requests that the Division reserve or stay its decision on
civil penalties until the City has had the opportunity to meet with the Division on this matter.

•
Poyner Spruill"`
John Hennessy
April 14, 2022
Page 4
This request is consistent with your NOV, which states on page 2, "If you wish to provide
additional information regarding the noted violations, request technical assistance, or
discuss overall compliance please respond in writing within 30 calendar days after receipt of
this Notice." In keeping with that invitation, the City would request a meeting with the
Division to address these topics before any additional regulatory action is initiated.
The City looks forward to meeting with you and others in the Division as soon as
possible. Should you have any questions about this response,please do not hesitate to contact
me.
Sincerely,
Nicolas E Tosco
Partner
cc: Greg Ferguson,Deputy City Manager(via email only)
Robby Stone, Public Services Director(via email only)
Meghan Maguire,Assistant City Attorney(via email only)