NC0025381_Comments_20220630

SOUTHERN 48 Patton Avenue,Suite 304 Telephone [phone]
ENVIRONMENTAL Asheville,NC 28801 Facsimile 828-258-2024
LAW
CENTER
June 27, 2022
Via First Class U.S. Mail and electronic mail RECEIVED
Charles Weaver N '2022
N.C. Department of Environmental Quality
Water Quality Permitting Section NCDEQIDWRINPDES
1617 Mail Service Center
Raleigh,NC 27699-1 1 67
[e-mail]
Re: Comments on Draft NPDES Permit for Lake Lure WWTP(NC0025381)
Dear Mr. Weaver:
On behalf of the Broad Riverkeeper and MountainTrue, the Southern Environmental Law
Center submits these comments on the draft NPDES permit for the Lake Lure Wastewater
Treatment Plant ("WWTP"). The Broad Riverkeeper is the primary spokesperson and protector
for the rivers and streams of the Broad River watershed in western North Carolina. The Broad
Riverkeeper works with communities and citizens in Rutherford, Polk, and Cleveland counties to
monitor water quality and advocate for best management practices that will improve the Broad
River's waters for drinking, swimming, and fishing. Along with his own observations, the Broad
Riverkeeper fields many concerns from citizens who notice aesthetic changes and foul odor
downstream of the Lake Lure WWTP,particularly during low flow periods. The Broad
Riverkeeper is a program of MountainTrue which works to protect the environment and promote
thriving communities in western North Carolina and the Southern Blue Ridge.
The Lake Lure WWTP is operating under Special Order by Consent S20-004, to allow
for significant upgrades and repairs to the collection system,which are to be completed by May
30, 2026.1 The first phase of repairs is intended to ameliorate the large amount of lake water that
floods the collection system. A secondphase of construction will then begin under an amended
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SOC by July 2026.2 The Broad Riverkeeper welcomes these much-needed improvements to the
WWTP, but remains concerned that the SOC and Draft NPDES permit are insufficiently
protective of water quality and downstream communities.
I. Legal Background
The Clean Water Act provides two different ways to set effluent limitations for National
Pollutant Discharge Elimination System("NPDES")permits. Technology-based limits set the
minimum level of control required in every NPDES petmut. 40 C.F.R. § 125.3(a). A permittee
1 NC DEQ.Special Order by Consent S20-004.NC0025381 Other Agency Documents 20220225 ("hereinafter
"SOC S20-004").
2 Id.
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington,DC

must implement technology-based standards, even if doing so goes beyond the level necessary to
meet water quality standards.3
Even when technology-based limits are applied,the Clean Water Act prohibits DEQ from
issuing a NPDES permit that allows a violation of water quality standards. 33 U.S.C. §
1342(a)(1)(A);40 C.F.R. § 122.43(a). Thus,NPDES permits must include "any more stringent
limitation"necessary to meet"water quality standards." 33 U.S.C. § 1311(b)(1)(C). If
application of minimum technology-based effluent limits leaves a"reasonable potential"that
water quality standards will be violated,then an NPDES permit must impose additional water-
quality-based effluent limits("WQBELs")to ensure water quality standards are not violated. 40
CFR§ 122.44(d)(1)(i);see also 15A N.C. Admin. Code 2H .0112(c)(requiring NPDES permits
to"ensure compliance with applicable water quality standards"). WQBELs"shall be established
for discharges that are found . . .to have a reasonable potential to cause or contribute to
exceedance of applicable water quality standards." 15A N.C. Admin. Code 2B.0404. The
WQBEL must be sufficient to"ensure that a discharge does not cause or contribute to a
contravention of state surface water quality standards."Id. 2B.0403(15).
II. The Lake Lure WWTP NPDES Permit
The bases for the effluent limitations in the Lake Lure WWTP NPDES Permit are
unclear. We are sympathetic to the uncertainty posed by the construction of improvements,but
the Permit reflects no analysis of the technology available to eliminate or mitigate any pollutant
discharges during this transitional period. TBELs are a required element of NPDES permits;
rather than impose and enforce limits appropriate to a facility undergoing improvements, DEQ
has apparently not imposed technology-based limits.
More importantly,the agency has failed to assess the need for WQBELs as part of this
permit revision. That assessment is critical here where(1)the relevant section of the Broad
River is listed for impaired benthic communities, (2)water quality above the WWTP discharge
point is"excellent,"and(3)the WWTP is the only permitted NPDES discharger in the
subbasin.4 The Broad Riverkeeper has fielded numerous complaints about downstream water
quality including concerns about"suds" in the water and a"septic tank type smell"—conditions
potentially attributable to WWTP discharges. The agency is obligated to determine if the
WWTP is contributing to impairment of the stream—an analysis it has not completed as part of
this permit cycle—and, if so, impose WQBELs to prevent violations.
While the Permit's Fact Sheet states that the facility is not a contributor to downstream
water quality impairment,that conclusion is contradicted in other agency documents. For
example,the SOC explains that the WWTP's repeated violations of ammonia limits in its
NPDES Permit"constitutes causing and contributing to pollution of the waters of this State."5
3 U.S.Envtl.Protection Agency,NPDES Permit Writers'Manual at§5.1 (2010)[hereinafter"Permit Writers'
Manual"],https://www.epa.gov/sites/production/files/2015-09/documents/pwm_2010.pdf.
4 Fact Sheet at 1.
SOC S20-004 at¶¶ 1(b)-(c).
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Moreover,the Fact Sheet's conclusion is not based on a"reasonable potential analysis"
("RPA"). Rather, it comes from a 2008 Broad River Basin planning document that itself
contains conclusory assertions about the causes of the impairment. This document does not
evaluate the potential for specific constituents of the WWTP's effluent to violate water quality
standards and it is insufficient to determine the need for WQBELs.6 This is particularly true for
ammonia nitrogen, fecal coliform, and total residual chlorine,which the permit recognizes as
water quality limited and which are unaffected by the SOC. The ammonia limits have been in
place since the 2015 permit,and the fecal coliform and chlorine limits are based on an analysis
from 1991. The agency must reassess these limits—via an RPA and otherwise to determine if
more stringent limits are necessary to protect downstream water quality and ameliorate
impairment of the Broad River.
We are sympathetic to the need for the permittee to implement the planned upgrades, but
another five-year permit term is too long to go without limits informed by the analysis required
under the Clean Water Act. The outdated Draft Permit suggests that the agency is relying on the
proposed upgrades to address any problems without changing the Permit. Instead,the Permit
should reflect an analysis of the technology available to mitigate the effects of the inadequate
system during construction, and of the facility's effects on water quality.
As the agency knows,the facility is already exceeding its previous limits and is subject to
violations and monetary penalties,a large portion of which are being held in abeyance while
improvements are made. The agency has discretion to enforce the Clean Water Act without
unfairly punishing a permittee working diligently to correct the cause of the exceedances—for
example, by developing a schedule of compliance—but the agency may not avoid assessing
whether the WWTP discharges are violating water quality standards. Thus there is no need to
delay the process of determining the best technology available, or whether this facility is
contributing to the downstream impairment or any other water quality violations. Importantly, if
the agency considers developing a compliance schedule,the Clean Water Act requires that it
achieve water quality standards"as soon as possible."40 C.F.R. § 122.47(a),see also 40 C.F.R.
§ 123.25 (requiring permitting authorities to administer delegated state programs in conformance
with this and other specified regulatory provisions).
III. Conclusion
We respectfully request that DEQ perform the rigorous analysis the Clean Water Act
requires to set technology and water quality-based limits,even during this transitional time while
the SOC is in operation. If that analysis reveals that the WWTP may cause or contribute to water
quality violations, DEQ must add sufficiently protective limits to the NPDES permit.
6 DEQ,Broad River Basinwide Water Quality Plan,Dec.2008,Broad I NC DEO.
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Sincerely,
com.tAmck. YAA•ci
Susannah Knox
Senior Attorney
Southern Environmental Law Center
[e-mail]
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