NC0026573_Comments_20220727

SOUTHERN 48 Patton Avenue,Suite 304 Telephone [phone]
ENVIRONMENTAL Asheville,NC 28801 Facsimile 828-258-2024
LAW
CENTER
July 22,2022 RECEIVED
E
Via Electronic Mail and U.S. Mail J U L 2 7 2022
NCDEQ/DWR
NPDES Permitting Branch NCDEQIDWRINPDES
c/o Diana Yitbarek
1617 Mail Service Center
Raleigh,North Carolina 27699-1617
[e-mail]
Re: 2nd Draft NPDES Permit NC0026573
Dear Ms.Yitbarek:
Please accept these comments on behalf of the Catawba Riverkeeper Foundation and the
Southern Environmental Law Center concerning the 2nd Draft National Pollutant Discharge
Elimination System("NPDES")Permit NC0026573 for the Catawba River Pollution Control
Facility in Morganton,NC. Our previously filed comments on the 1st Draft Permit for the
facility are also attached.
North Carolina Department of Environmental Quality("DEQ")must implement more
stringent requirements for several constituents of concern to public health which were only
addressed through monitoring provisions.
First,the Clean Water Act("CWA")requires that per-and polyfluoroalkyl substances
("PFAS")discharges, like all constituent discharges,be made only with proper disclosure to
DEQ and with appropriate effluent limitations.
It appears that the permittee has not disclosed any discharges of PFAS to DEQ.
Disclosure' must be made in the permit application. Discharges not disclosed in a permit
application are not covered by an NPDES permit,and therefore violate the CWA.2 The purpose
of disclosure is two-fold: to make DEQ aware of the full scope of discharge from the applicant's
facility, and to allow the public to be fully informed during the public comment period. This is
because"permit writers need to know what pollutants are present in an effluent to determine
appropriate permit limits.i3 Additionally,public notice must be given about permitting decisions,
u The Fourth Circuit has defined"disclosure"to require more than a"general description of the plant's operation"or
a"general[]aware[ness]"by the agency that a pollutant discharge is possible.S.Appalachian Mtn. Stewards v.A&G
Coal Corp.,758 F.3d 560,568(4th Cir.2014).In other words,descriptions of an industrial process known by an
agency to be associated with or produce particular pollutant(s),like WAS,does not satisfy the requirement that an
applicant disclose the pollutant(s)in its NPDES permit application.See id.
2 Piney Run Preservation Ass'n v. Ctv Comm'rs,268 F.3d 255,268(4th Cir.2001)("To the extent that a permit
holder discharges a pollutant that it did not disclose,it violates the NPDES permit and the CWA.")
3 Consolidated Permit Application Forms for EPA Programs,45 Fed.Reg.33516,33526(May 19, 1980).
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington,DC

including"a summary of each applicant's activities or operations that result in the discharge
described in the NPDES application." 15A NCAC 02H .0109(a)(3)(C). Such a summary would
be ineffective if all discharges were not included in the permit application.
In the new draft permit,DEQ has ordered twice annual monitoring for PFAS "[b]ased on
the categories of significant industrial users"which discharge through the Catawba River
Pollution Control Facility. Monitoring is not a substitute for required disclosure. Moreover,
because the Catawba River Pollution Control Facility handles discharges from industries
suspected to discharge PFAS,DEQ should make clear in final permitting documents that any
undisclosed pollutants, including PFAS,are not permitted and therefore violate the CWA.4 The
Tennessee Department of Environment and Conservation has made clear that undisclosed
discharges of PFAS are unpermitted for at least one permit for a facility that manufactures coated
paper products:
The facility's application did not report any forms of PFAS as chemicals that there
was the potential to discharge. The permittee has no permit shield for the discharge
of PFAS compounds because no such chemicals were disclosed in the permit
application or otherwise...5
DEQ should do the same here.
Once PFAS discharges are properly disclosed,DEQ must include technology-based
effluent limitations ("TBELs")for PFAS in the permit. The CWA requires TBELs be assessed
first,to be followed by water-quality based effluent limitations("WQBELS")where necessary to
ensure compliance with water quality standards. 33 U.S.C. §§ 1311(b), 1314(b); 40 C.F.R. §
122.44(a)(1), (d).6 North Carolina law similarly requires TBELs.See 15A N.C.Admin. Code
2B.0406(b)(incorporating TBEL requirements from the Clean Water Act).Publicly Owned
Treatment Works ("POTW")permit limits must take into account whether the POTWs treat
industrial discharges: "Limits applicable to industrial categories . . . shall be applicable to any
municipality if influent waste discharges from industries in any single category account for 10 or
more percent of its average daily wastewater flow or the industrial discharges significantly
impact the municipal system or its effluent discharge." 15A N.C. Admin. Code 2B.0406(a). The
Catawba River Pollution Control Facility passes this threshold. The average daily flow from the
facility is 6.4 MGD7; 2 MGD influent flow is allocated to Case Farms(chicken processing)and
1.5 MGD is allocated to Seiren North America(textiles), representing 31.3%and 23.4%of daily
4 See In re Ketchikan Pulp Co.,7 E.A.D.605(EPA)(1998);Piney Run Pres.Ass v. Cty. Comm'rs of Carroll Cty.,
Maryland,268 F.3d.255(4th Cir.2001);Southern Appalachian Mountain Stewards v.A &G Coal Corp.,758 F.3d
560(4th Cir.2014).
5 TDEC,NPDES Permit NO.TN0002330(2020),Holliston Holdings,LLC,Addendum to Rationale,
https://perma.cc/4RKY-PKFG(emphasis added).
6 Assessing TBELs for constituents of concern is necessary even where analytical methods for pollution detection
are not yet perfected."Nonetheless,even at levels where the accuracy of the data may be somewhat uncertain,
analytical information is useful to the permitting authority as a screening technique to identify the presence of a
pollutant and supply an estimate of its concentration."49 Fed Reg.37908,38002(Sept.26, 1984).Thus,DEQ is not
absolved of its obligation to regulate PFAS if more effective technology is being developed.
See Catawba River Pollution Control Facility,NPDES No.NC0026573 Renewal Application(Sept.3,2019)at
Section A.9.
2

flow,respectively.89 As the draft permit notes,10 these SIUs represent industry categories likely
to discharge PFAS. As a textile facility representing over 20%of daily flow, Seiren North
America's discharge of PFAS is especially probable," and DEQ's failure to assess TBELs
associated with this effluent is concerning.
Finally,the new draft permit represents that the Reasonable Potential Analysis("RPA")
found both silver and antimony have a likelihood of exceeding the maximum effluent
concentration allowable by state water quality standards. However,DEQ assigned only quarterly
monitoring requirements for these constituents. As detailed extensively in our original comments
and reiterated above, DEQ has an obligation under the CWA to issue both TBELs and WQBELs
for constituents covered by an NPDES permit which have the potential to cause or contribute to
water quality violations. The failure to set these limitations is even more egregious where,by
DEQ's own analysis,these constituents pose a threat to public health and environmental welfare
according to state water quality standards. We hope to see this error corrected in the final permit
for the Catawba River Pollution Control Facility.
Thank you for considering these comments. Please contact me if you have any questions
about the information contained in this letter.
Sincerely,
Alyson Merlin
Associate Attorney
amerlinAselcnc.org
8 See City of Morganton,Annual Pretreatment Report for 2020(Feb. 17,2021),Allocation Table.
9 An unknown amount of the Catawba River Pollution Control Facility's daily flow is allocated to Unix Packaging,
LLC(beverage packaging).If this SIU represents 10%or more of the Catawba River Pollution Control Facility's
daily flow,the above arguments apply to this facility as well.
10 Draft Permit at 2("Based on the categories of significant industrial users(SIUs)discharges,there is a need to
assess PFAS compounds.");Draft Fact Sheet at 12("A PFAS monitoring Special
Condition is added based on the significant industrial users(SIUs)discharges.").
11 See Multi-Industry Per-and Polyfluoroalkyl Substances(PFAS)Study—2021 Preliminary Report,
ENVIRONMENTAL PROTECTION AGENCY,EPA-821-R-21-004(Sept.2021).
3

RECEIVED
JUL 27 2022
NCDEQ/DWR/NPDES
Attachment 1
Comments submitted by SELC on
lst draft NPDES permit
( 11 /29/2021 )

SOUTHERN 48 Patton Avenue,Suite 304 Telephone [phone]
ENVIRONMENTAL Asheville,NC 28801 Facsimile 828-258-2024
LAW
CENTER
November 29, 2021
Via Electronic Mail and U.S. Mail
NCDEQ/DWR
NPDES Permitting Branch
c/o Diana Yitbarek
1617 Mail Service Center
Raleigh,North Carolina 27699-1617
[e-mail]
Re: Draft NPDES Permit NC0026573
Dear Ms. Yitbarek:
Please accept these comments on behalf of the Catawba Riverkeeper Foundation and the
Southern Environmental Law Center concerning the renewal of NPDES Permit NC0026573 for
the Catawba River Pollution Control Facility in Morganton,NC.
The Catawba Riverkeeper Foundation's primary mission is to protect the 8,900 miles of
waterways in the Catawba—Wateree River Basin. The Foundation fulfills its mission through
monitoring, conservation advocacy, and public education and engagement. The Foundation's
members routinely use rivers and streams within the watershed for recreation; some members
rely on the river as a drinking water source,others for educational and business purposes. The
Southern Environmental Law Center works to protect the basic right to clean air,clean water,
and a livable climate;to preserve the South's natural treasures and rich biodiversity; and to
provide a healthy environment for all.
The Catawba River Pollution Control Facility processes domestic sewage from
Morganton and Glen Alpine,as well as industrial effluent from three Significant Industrial
Users.' Effluent is discharged from the facility into the Catawba River just above Lake
Rhodhiss. The wastewater treatments plants for Lenoir and Valdese also discharge into,or
directly upstream of,Lake Rhodhiss. Several municipalities get their drinking water from the
lake.2 The lake has a history of nutrient loading problems.3 The Catawba River Pollution Control
Facility("the facility")has violated the terms of its existing NPDES permit multiple times in the
last several years.4
'Fact Sheet,Draft NPDES Permit No.NC0026573(Oct.26,2021)at 1-2(hereafter"Fact Sheet").
2 See Western Piedmont Council of Governments,Western Piedmont Source Water Protection Plan(2014)at 1,
available at https://files.nc.gov/ncdeq/Water%20Resources/files/swap/SWPP%20Western%20Piedmont.pdf.
3 See Burke County,2011 Community Health Assessment at 16,available at
hftps://www.burkenc.orz/ArchiveCenter/ViewFile/Item/233.
4 See Environmental Protection Agency,ECHO Detailed Facility Report,available at https://echo.epa.gov/detailed-
facility-report?fi d=110027948498.
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington,DC

Rather than address the facility's continued violations or ameliorate concerns about
water quality in Lake Rhodhiss,the draft permit fails to protect the Catawba River in violation of
both the Clean Water Act and North Carolina state law.
The draft permit must be withdrawn, substantially revised, and reissued for public
comment. Specifically,DEQ must make the following changes in particular:
• The permit must evaluate and include technology-based effluent limitations for
constituents discharged from the facility, including copper,antimony,zinc,
aluminum,NH3-N, fecal coliform,pH, dissolved oxygen,total residual chlorine,
arsenic, cyanide, lead,molybdenum,nickel, selenium,total phenolic compounds,
dimethyl phthalate,phosphorous, nitrogen, and methyl bromide. The omission of
these effluent limitations is especially egregious for copper, antimony,zinc, and
selenium,which DEQ acknowledges may threaten water quality standards.
• It is unclear if the Reasonable Potential Analysis contemplates discharges from
Unix Packaging LLC,a Significant Industrial User whose contribution to the
facility was not yet active during permit application. If those discharges were not
considered, the Reasonable Potential Analysis must be revised.
• The permit must include water-quality-based effluent limitations for constituents
that have a reasonable potential to affect water quality standards—namely,
copper, antimony,zinc,and selenium.
• The facility must disclose if per-and polyfluoroalkyl substances are present in its
discharge and, if so,DEQ must include appropriate limits in the NDPES permit.
• To comply with anti-backsliding provisions of the Clean Water Act,DEQ must
enforce the more stringent effluent limitations applicable under the 10.5 MGD
flow regime.
• Finally,the permit should rescind DEQ's attempt to pre-approve effluent
limitations for the facility under a 13 MGD flow regime since that rate has not
been requested by the facility, is not anticipated, and would require additional
approvals from DEQ.
To the extent these changes require modification to the facility's treatment process or
pipe network,we encourage Morganton to seek funding newly made available in the North
Carolina state budget and federal Infrastructure Investment and Jobs Act.
I. DEQ must impose technology-based effluent limits
A. The Clean Water Act requires DEQ to evaluate technologies available to treat
pollutants
Congress passed the Clean Water Act in 1972 "to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To that end,
Congress established an"interim goal of[achieving] water quality which provides for the
protection and propagation of fish, shellfish, and wildlife and provides for recreation . . . by July
1, 1983"and a longer-term"goal that the discharge of pollutants into the navigable waters be
eliminated by 1985." Id. § 1251(a)(1-2)(emphasis added). To meet those goals, Congress
2

prohibited the discharge of pollutants5 from point sources6 without a permit. See id. § 1311(a).
The Clean Water Act's National Pollutant Discharge Elimination System("NPDES")permitting
program is structured around progressive improvements in pollution control over time to meet
Congress's"national goal"of eliminating discharges of pollutants. See id. § 1251(a)(1).7
NPDES permits control pollution through two primary mechanisms: first,by setting
limits based on the technology available to treat pollutants("technology-based effluent limits")
and second,by setting any additional limits necessary to protect water quality("water quality-
based effluent limits"). 33 U.S.C. §§ 1311(b), 1314(b); 40 C.F.R. § 122.44(a)(1), (d). Every
NPDES permit"shall"contain technology-based effluent limits ("TBELs"),which set the
minimum level of control required in every NPDES permit. 40 C.F.R. § 125.3(a). DEQ may
issue an NPDES permit only if the permit assures compliance with all technology-based and
water quality-based effluent limits. 33 U.S.C. § 1342(a)(1)(A); 40 C.F.R. § 122.43(a).
Stated differently,to comply with the Clean Water Act, a permit writer first imposes
TBELs and subsequently evaluates the need to impose additional water-quality based effluent
limits ("WQBELs") if the TBEL is insufficient to ensure compliance with water quality
standards. TBELs"are developed independently of the potential impact of a discharge on the
receiving water,which is addressed through water quality standards and water quality based
effluent limitations."EPA,NPDES Permit Writers' Manual at 5-1.8 A discharger must
implement technology-based standards,even if doing so goes beyond the level necessary to meet
water quality standards.Id.; see 15A N.C.Admin. Code 2B.0404(a) ("if the discharge is subject
to both technology based and water quality based effluent limitations for a parameter,the more
stringent limit shall apply"). Permit writers run afoul of the Clean Water Act by focusing
exclusively on WQBELs, in part, because this would foreclose the Congressional goal of
eliminating discharges of pollutants to navigable waters—discharges would be maintained,or
even increased, so long as they did not violate water quality standards.
For publicly-owned treatment works ( POTW ), like the Catawba River Pollution
Control Facility,compliance with TBELs is achieved, in part,by meeting secondary treatment
requirements.See 33 U.S.C. § 1311(b); 40 C.F.R. § 125.3(a)(1). Secondary treatment
requirements limit discharges of pollutants commonly associated with POTWs: oxygen
consumingwaste(BOD5), suspended solids,and See 40 C.F.R. 133.102.Permit writers
P pH. §
must clearly present the data used to determine whether secondary treatment standards apply to a
5"The term`pollutant'means dredged spoil,solid waste,incinerator residue,sewage,garbage,sewage sludge,
munitions,chemical wastes,biological materials,radioactive materials,heat,wrecked or discarded equipment,rock,
sand,cellar dirt and industrial,municipal,and agricultural waste discharged into water."33 U.S.C.§ 1362(6).
6"The term`point source'means any discernible,confined and discrete conveyance,including but not limited to any
pipe,ditch,channel,tunnel,conduit,well,discrete fissure,container,rolling stock,concentrated animal feeding
operation,or vessel or other floating craft,from which pollutants are or may be discharged."33 U.S.C.§ 1362(14).
'North Carolina administers the NPDES program within its borders under delegated authority from EPA. See
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM MEMORANDUM OFAGREEMENT
BETWEEN THE STATE OF NORTH CAROLINA AND THE UNITED STATES ENVIRONMENTAL
PROTECTIONAGENCY REGION 4(2007)available at https://www.epa.gov/sites/default/files/2013-
09/documents/nc-moa-npdes.pd f.
s Available at https://www.epa.gov/sites/production/files/2015-09/documents/pwm 2010.pdf.
3

permitted facility, and thoroughly describe how these standards are applied in the fact sheet. See
NPDES Permit Writers' Manual at 5.1.3.6. But compliance with secondary treatment standards
is not a substitute for application of TBELs to other contaminants discharged through the POTW.
If other contaminants are discharged,the permit writer must evaluate and apply TBELs to them
as well.
North Carolina law similarly requires TBELs for other contaminants discharged from
POTWs. Secondary treatment requirements apply to "all municipal wastewater treatment
discharges and all discharges consisting primarily of domestic sewage" but"limits applicable to
industrial categories . . . shall be applicable to any municipality if influent waste discharges from
industries in any single category account for 10 or more percent of its average daily wastewater
flow or the industrial discharges significantly impact the municipal system or its effluent
discharge." 15A N.C. Admin. Code 2B.0406(a). The Catawba River Pollution Control Facility
passes this threshold. The average daily flow from the facility is 6.4 MGD;9 2 MGD influent
flow is allocated to Case Farms (chicken processing)and 1.5 MGD is allocated to Seiren
industries(textiles).10 Thus, both federal and state law require additional TBELs, as well as the
secondary treatment standards applicable to POTWs, at the Catawba River Pollution Control
Facility. See 15A N.C. Admin. Code 2B.0406(b) (incorporating TBEL requirements from the
Clean Water Act).
Technology-based limits are derived from one of two sources: (1)national effluent
limitation guidelines("ELGs") issued by EPA for various industries, 33 U.S.C. § 1314(b), or(2)
case-by-case determinations using the"best professional judgment" ("BPJ") of permit writers,
when EPA has not issued an ELG for an industry. See 33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. §
125.3(c)(2). North Carolina rules likewise direct staff to calculate TBELs using"available
information" in the absence of a promulgated ELG. 15A N.C. Admin. Code 02B .0406(b)(3).
Here,where EPA has not issued effluent limitation guidelines for the relevant industries, TBELs
derive from the"best professional judgment"of the permit writer.
To be sure,the city of Morganton is not left alone to meet these requirements for
industrial dischargers using its wastewater treatment plant. The city is required to regulate its
industrial dischargers so that they do not cause the treatment plant to violate its own Clean Water
Act obligations. See 40 C.F.R. §403.8(0(1). This is how the Clean Water Act"assures the
public that [industrial] dischargers cannot contravene the [Clean Water Act's] objectives of
eliminating or at least minimizing discharges of toxic and other pollutants simply by discharging
indirectly through [wastewater treatment plants]rather than directly to receiving waters."11 The
pretreatment program is intended to place the burden of treating polluted discharges on the entity
that creates the pollution,rather than on the taxpayers who support municipally-owned treatment
plants. But the first step in this process is for DEQ to apply TBELs in this NPDES permit;
9 See Catawba River Pollution Control Facility,NPDES No.NC0026573 Renewal Application(Sept.3,2019)at
Section A.9(hereafter"Renewal Application").
10 See City of Morganton,Annual Pretreatment Report for 2020(Feb. 17,2021),Allocation Table.
" General Pretreatment Regulations for Existing and New Sources,52 Fed.Reg. 1586, 1590(Jan. 14, 1987)
(codified at 40 C.F.R.§403).
4

Morganton can then require upstream industrial dischargers to reduce pollutant inflow to ensure
compliance with NPDES limits.
B. DWR failed to include TBELS for many constituents in the draft permit
Despite this obligation, DEQ left TBELs out of the draft NDPES permit for the facility,
except for those related to secondary treatment requirements(BOD5 and Total Suspended
Solids).12 The draft fact sheet indicates that DEQ established WQBELs for NH3-N, fecal
coliform,pH,dissolved oxygen, and total residual chlorine,but provides no indication that it
considered technology-based limits.13 The fact sheet states that the permit includes no standards
for"arsenic, cyanide, lead, molybdenum,nickel, selenium,zinc,total phenolic compounds,
dimethyl phthalate, [and] methyl bromide" specifically because "they did not demonstrate
reasonable potential to exceed applicable water quality standards."14 This may justify lack of
WQBELs but it cannot justify failure to evaluate TBELs. The fact sheet notes several other
constituents discharged through the POTW with no indication that DWR evaluated TBELs to
limit their discharge, including antimony, copper,silver,phosphorous, aluminum,and nitrogen.15
This approach does not comply with the Clean Water Act. As explained above,DWR
must evaluate whether there are technologies available to limit the discharges of these
contaminants and, if so, apply TBELs as appropriate. DWR may not skip directly to WQBELs
without evaluating TBELs(as it appears to have done with NH3-N, fecal coliform,pH,dissolved
oxygen,total residual chlorine, arsenic, cyanide, lead, molybdenum,nickel, selenium,zinc,total
phenolic compounds,dimethyl phthalate,phosphorous,nitrogen, and methyl bromide); fail to
evaluate the need for TBELs,or impose WQBELs,for constituents that appear to risk violations
of water quality standards, such as copper and antimony; or fail to evaluate TBELs for
constituents with no water quality standard, such as aluminum.
The failure to include TBELs for copper, antimony,zinc,and selenium is particularly
problematic because, according to the cover letter accompanying the draft permit,discharges of
these constituents risk violating water quality standards.16
Fortunately,technologies are available to limit the discharge of many of these pollutants.
For example,the use of a sand-chemically carbonized rubber wood sawdust column system has
12 Fact Sheet at 14.
13 Fact Sheet at 14-15.
14 Fact Sheet at 9.
15 Fact Sheet at 14-16.
16 See DEQ,Draft Permit No.NC0026573 Cover Letter(Oct.26,2021)at 1-2.The Fact Sheet and Cover Letter
appear to take inconsistent positions on whether discharges of these constituents risk water quality standard
violations. Compare Cover Letter at 2(noting"RPA predicting a maximum effluent zinc concentration that is
greater than the allowable discharge concentration based on state water quality standards")with Fact Sheet at 8
(stating that zinc"did not demonstrate reasonable potential to exceed applicable water quality standards"). See also
Fact Sheet at 15(stating that for zinc"RP[Reasonable Potential]exists").
5

been shown to reduce copper discharges in municipal wastewater,17 and several different
technologies have been used to reduce selenium discharges in nonmunicipal wastewater.18 DEQ
must evaluate the potential for these and other technologies to minimize the discharge of
pollutants from the facility.
The Clean Water Act requires that DEQ evaluate and issue TBELs as appropriate for the
discharged constituents not already covered by secondary treatment standards for this facility.
Since there is no applicable ELG,DEQ must use its best professional judgement to determine
how available technology can effectively limit discharges of numerous constituents including
copper, antimony, aluminum,NH3-N, fecal coliform,pH,dissolved oxygen,total residual
chlorine,arsenic, cyanide, lead,molybdenum,nickel, selenium,zinc,total phenolic compounds,
dimethyl phthalate,phosphorous,nitrogen, and methyl bromide. By omitting this analysis and
neglecting to set appropriate effluent limits,the draft permit violates the Clean Water Act. The
agency cannot bring this permit into compliance without evaluating technologies available to
limit discharges of these pollutants.
II. DEQ must apply WQBELs to pollutants with a reasonable potential to violate
water quality standards
Even when TBELs 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). Accordingly, 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).
To fulfill this requirement,DEQ conducted a reasonable potential analysis ("RPA")
evaluating the potential for specific constituents to violate water quality standards. This RPA is
flawed and incomplete.
As an initial matter, it is unclear if the RPA accounted for pollutants discharged by Unix
Packaging LLC.Unix Packaging appears to have sought permission to discharge to the POTW
as a Significant Industrial User after Morganton submitted its NPDES renewal application.19 As
a result,there is no information about Unix Packaging available in the renewal application,
including no disclosure of pollutants associated with Unix Packaging's industrial processes. If
"See Swarup Biswas,Treatment of Copper Contaminated Municipal Wastewater by Using UASB Reactor and
Sand-Chemically Carbonized Rubber Wood Sawdust Column,BIOMED RESEARCH INTERNATIONAL(Jan.20,2016)
available at https://www.hindawi.com/journals/bmri/2016/5762781/.
18 See Lea Chua Tan,et al.,Selenium:environmental significance,pollution,and biological treatment technologies,
BIOTECHNOLOGY ADVANCES(September-October 2016)available at
https://www.scienced irect.com/science/article/abs/pii/S07349750163 00623.
19 Documents available on DEQ's Laserfiche system indicate that Unix Packaging requested an Industrial User
Pretreatment Permit in early 2021;the NPDES renewal application was submitted to DEQ on Sept.3,2019.
6

the RPA does not account for industrial wastewater from Unix Packaging,DEQ must re-run its
RPA to assess the need for additional WQBELs.
More to the point,the cover letter to the draft permit concludes that"based on the
reasonable potential analysis,"discharges of copper, antimony,zinc,and selenium may exceed
state water quality standards at various permitted flow levels.20 The accompanying fact sheet
likewise states that"[biased on the Reasonable Potential Analysis,RP exists" for those same
constituents except selenium,which is not discussed.21 Nevertheless,the draft permit includes
no limits on discharges of antimony, zinc,and selenium; only a requirement to monitor
discharges. Monitoring alone will not"ensure that a discharge does not cause or contribute to a
contravention of state surface water quality standards." 15A N.C.Admin. Code 2B.0403(15).
DEQ must revise the draft permit to add WQBELs for those constituents with a reasonable
potential to violate state water quality standards.
For copper,DEQ has proposed a new limit, but it gives the permittee one year from
permit issuance to develop a strategy for arresting copper discharges and three years from permit
issuance to comply with the limit. We are sympathetic to the need for the permittee to identify
the sources of the copper in its wastewater and make appropriate changes,but this time table is
too long. To be clear, if discharges of copper from the facility are currently causing or
contributing to water quality standard exceedances,then the facility is in violation of its existing
permit and the Clean Water Act. There is no need to delay the process of identifying the source
of the copper in the facility's wastewater until a new NPDES permit issues that process should
start now. The Clean Water Act requires compliance schedules, such as the one proposed for
copper,to 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). EPA's guidance to permit
writers elucidates the minimum criteria applicable to schedules of compliance for state water
PP
quality standards. See NPDES Writers' Manual at 9.1.3. Echoing the regulatory requirements,
g rY
EPA directs permit writers to [j]ustify and demonstrate that compliance with the final WQBEL
is required as soon as possible."See id. Furthermore,EPA guidance to regulators provides
eleven principles to assess whether a compliance schedule is consistent with the CWA and its
implementing regulations.22 This guidance reinforces the responsibility of state regulators to
ensure that the schedule is justified and requires compliance"as soon as possible."
The proposed copper compliance schedule does not meet these requirements. DEQ has
not explained why three years is necessary to identify sources of copper discharges and bring
them into compliance with water quality standards. The permit also appears to impose no
limitation on copper discharges in the intervening three-year period. This will allow unlimited
copper discharges for the next three years, despite the fact that these discharges risk violating
water quality standards now. DEQ should require the permittee to begin the process of
20 Cover Letter at 1-2.
21 Fact Sheet at 15-16.
22 See Memorandum from James Hanlon to Alexis Strauss,"Compliance Schedules for Water Quality-Based
Effluent Limitations in NPDES Permit"(May 10,2007)available at
https://www3.epa.gov/npdes/pubs/memo complianceschedules may07.pdf.
7

identifying the sources of copper discharges now and to come into compliance within one year.
At the very least, DEQ should establish interim limits to progressively reduce copper discharges
as quickly as possible.
III. DEQ must require disclosure of any PFAS discharges and include appropriate
limits in the draft and final permit
The Clean Water Act's strategy of applying TBELs and WQBELs to reduce or eliminate
discharges of pollutants into navigable waters only works if permittees and permit writers know
what contaminants are discharged from a facility.Accordingly,a core requirement of the Clean
Water Act is that permittees assess and disclose the pollutants in their effluent. The Renewal
Application for the facility's NPDES permit is silent on whether per-and polyfluoroalkyl
substances("PFAS")are discharged. DEQ must require the facility to disclose whether PFAS are
being discharged and, if so, apply appropriate limits.
The human health and environmental problems associated with PFAS exposure are now
widely known. EPA recently recognized PFAS as "an urgent public health and environmental
issue facing communities across the United States."23 EPA has called on"[e]very level of
government—federal,Tribal, state, and local—[]to exercise increased and sustained leadership
to accelerate progress to clean up PFAS contamination [and]prevent new contamination,"
specifically calling on states to"[1]everage NPDES permitting to reduce PFAS discharges to
waterways."24 Increasingly aware of the health problems associated with PFAS exposure,
several states have acted to reduce PFAS in drinking water. Just this month,Pennsylvania's
environmental agency proposed drinking water standards for two PFAS compounds of 14 and 18
parts per trillion, respectively.25
DEQ has acknowledged that disclosure of toxic pollutants, including PFAS, is required
by the Clean Water Act and state law. In its enforcement action against The Chemours
Company,LLC, for the company's discharge of GenX and other PFAS into the Cape Fear River,
the agency stated:
Part of the permit applicant's burden in this regard is to disclose all relevant
information, such as the presence of known constituents in a discharge that pose a
potential risk to human health. The permit applicant is required to disclose "all
known toxic components that can be reasonably expected to be in the discharge,
23 EPA,PFA Strategic Roadmap:EPA's Commitments to Action 2021-2024 at 1,available at
https://www.epa.aov/system/files/documents/2021-10/pfas-roadmap final-508.pdf.
24 Id
25 Frank Kummer,Pennsylvania DEP proposes strict limits for`forever chemicals' in drinking water,THE
PHILADELPHIA INQUIRER(Nov. 16,2021),available at https://www.inquirer.com/science/climate/pennsvlvania-dep-
pfos-pfoa-standards-20211116 html.
8

including but not limited to those contained in a priority pollutant analysis." 15A
N.C.A.C. 2H .0105(j)(emphasis added).26
The agency further acknowledged that the company had violated its NPDES permit and state
water quality laws by"failing to fully disclose all known toxic components reasonably expected
to be in [the company's] discharge."27
DEQ's position in the Chemours enforcement case was correct. The Clean Water Act
generally prohibits discharges to streams and rivers. See 33 U.S.C. § 1311(a). The NPDES
permitting program is a limited exception to that prohibition,see Nat'l Ass'n of Home Builders v.
Def. of Wildlife, 551 U.S. 644,650 (2007),and discharges under the program cannot be approved
unless they are disclosed,see In re Ketchikan Pulp Co., 7 E.A.D. 605 (EPA)(1998);Piney Run
Pres.Ass'n v. Cty. Comm'rs of Carroll Cty., Maryland, 268 F.3d. 255 (4th Cir. 2001);Southern
Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560(4th Cir. 2014).EPA has
also stressed the need for disclosure of pollutants during the permitting process:
[D]ischargers have a duty to be aware of any significant pollutant levels in their
discharge. [...] Most important, [the disclosure requirements] provide the
information which the permit writers need to determine what pollutants are likely
to be discharged in significant amounts and to set appropriate permit limits. [...]
[P]ermit writers need to know what pollutants are present in an effluent to
determine approval permit limits in the absence of applicable effluent guidelines.28
Moreover,municipalities that own and operate wastewater treatment plants are required
to"fully and effectively exercise[] and implement[]"their authority to"[i]dentify the character
and volume of pollutants contributed to the [publicly owned treatment works]"by Industrial
Users. 40 C.F.R. §403.8(f)(2)(ii).
Based on information included in the NPDES permit renewal application,there is the
potential that PFAS are discharged through the Catawba River Pollution Control Facility. The
textile industry has been recognized as a common source of PFAS.29 Seiren North America is a
textile facility which discharges through the POTW.30 Seiren uses"polyester yarn, dye stuffs,
surfactants,and finishing agents"to produce fabrics for automobiles.31 It is known that
"[fiinishing agents based on [PFAS] are widely used in textiles in order to achieve water, oil and
26 Amended Complaint,N.C.Dept.of Environmental Quality v.Chemours, 17 CVS 580,6-7(N.C.Super.2018)
(hereinafter"N.C.DEQ Amended Complaint")(citing 33 U.S.C.§ 1342(k),Piney Run Pres.Ass'n v. Cty. Comm'rs
of Carroll Cty.,MD,268 F.3d 255,265(4th Cir.2001)).
27 Id. at 33.
28 Consolidated Permit Application Forms for EPA Programs,45 Fed.Reg.33,526-31 (May 19, 1980).
29 See EPA,Multi-Industry Per-and Polyfluoroalkyl Substances(PFAS)Study— 2021 Preliminary Report at 8-1—
8-4,available at https://www.epa.gov/system/files/documents/2021-09/multi-industry-pfas-study preliminary-2021-
report 508 2021.09.08.pdf.
3°No information is provided in the application regarding Unix Packaging LLC so it is unclear if its processes also
potentially involved PFAS.
31 Renewal Application at 20.
9

dirt repellency of the material."32 PFAS have also been recognized as effective surfactants.33
Because PFAS are used in a broad array of industries, it is also possible that PFAS are used and
discharged by other facilities using the POTW as well, including non-significant industrial
facilities that are not listed in the POTW's permit application.
Given the potential for PFAS discharges by Seiren North America and other facilities
through the POTW, Morganton must assess and disclose whether PFAS are in fact being
discharged. As explained above, if a permit holder is discharging a pollutant that it did not
disclose in its NPDES permit application, it is in violation of the permit and the Clean Water
Act.Piney Run, 268 F.3d. at 268. DEQ, in turn,may not issue a permit that does not ensure
compliance with the Clean Water Act.
If PFAS are present in the effluent, DEQ must include appropriate limits in the NDPES
permit, starting with TBELs. Effective technologies, such as granular activated carbon, are
available to limit PFAS discharges. Recently,DEQ included TBELS for PFAS in its NPDES
permit for Chemours,noting that it was exercising its"professional judgement and experience in
establishing Technology Based Effluent Limits for [PFAS]" at the facility.34 DEQ must do the
same here.
If TBELs are insufficient to protect water quality,then DEQ must develop PFAS
WQBELS to ensure water quality standards are met. 33 U.S.C. § 1342(a)(1)(A);40 C.F.R. §
122.43(a). This includes compliance with North Carolina's toxic substances standard,which
requires that"the concentration of toxic substances, either alone or in combination with other
wastes, in surface waters shall not render waters injurious to aquatic life or wildlife,recreational
activities,public health, or impair the waters for any designated uses." 15A N.C. Admin. Code
2B.0208(a). DEQ has recognized that PFAS"meet the definition of`toxic substance'under
North Carolina law.35 Finally, DEQ must also reasonably ensure compliance with North
Carolina's prohibition against allowing"[o]ils,deleterious substances, colored,or other wastes"
in waters classified as Class C waters—which include the section of the Catawba River that
would receive Morganton's discharge36—"to 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."Id. 02B .0211(12).
32 See Danish Ministry of the Environment,Alternatives to perfluoroalkyl and polyfluoro-alkyl substances(PFAS)
in textiles(2015)at 7,available at https://www.enviro.wiki/images/f/f4/DEPA2015.pdf.
33 See supra note 29.
34 See NCDEQ,Responses to the Comments,Chemours Permit NC0089915(Sept. 11,2020),at 1,available at
https://deq.nc.gov/media/17001/download.
35 N.C.DEQ Amended Complaint at 32(stating that"the process wastewater from[Chemours']
Fluoromonomers/Nafion®Membrane Manufacturing Area contains and has contained substances or combinations
of substances which meet the definition of"toxic substance"set forth in 15A N.C.A.C.2B .0202,"referring to
GenX and other PFAS).
36 Morganton's treatment plant discharges to Water Supply IV waters,which are also protected as Class C waters.
Draft Permit at 2; 15A N.C.Admin.Code 02B .0218.
10

As explained above, once appropriate limits are included in the NPDES permit,
Morganton can put the burden of cleaning up toxic PFAS pollution on the industries that create it
by regulating upstream users to limit their PFAS discharges.
IV. The draft permit violates the Clean Water Act's anti-backsliding provision
As recognized in the draft permit fact sheet,the Clean Water Act requires that"when a
permit is renewed or reissued, interim effluent limitations, standards or conditions must be at
least as stringent as the final effluent limitations, standards,or conditions in the previous permit."
Fact sheet at 13 (citing 40 C.F.R. § 122.44(1));see 33 U.S.C. 1342(o) (statutory anti-backsliding
provision); 15A N.C.Admin. Code 02B .0408(25)(incorporating § 122.44 by reference). The
draft permit violates this condition on two fronts.
First,the active permit includes a weekly average BOD5 limit of 27.8 mg/L under the
10.5 MGD flow regime.37 The draft permit replaces this with a weekly average limit of 45 mg/L
under the same flow regime.38 DEQ must reinstate the 27.8 mg/L limit or explain why the
increase to 45 mg/L meets one of the limited exceptions to the anti-backsliding provision.
Second, both the current and draft permit explain that the facility is authorized to
discharge 8 MGD as a monthly average until"this facility reaches an annual average daily flow
equal to or greater than 6.4 MGD."39 Once that happens,the facility is authorized to discharge up
to 10.5 MGD under different, more stringent effluent limits.40 The NPDES permit application
indicates that"last year"annual average daily flow was 6.494 MGD and"this year"annual
average daily flow was 7.43 MGD.41 As a result,the facility is now subject to the more stringent
limits under the 10.5 MGD flow regime. Nevertheless,the draft permit appears to reset the clock
on this requirement,allowing the facility to apply the less stringent limits under the 8 MGD flow
regime for at least a year or until it"reaches an annual average daily flow equal to or greater than
6.4 MGD"—even though that has already happened. This is backsliding,which is explicitly
foreclosed by the Clean Water Act. DEQ cannot revert to the less stringent standard each time
this NPDES permit is renewed. Once the more stringent 10.5 MGD limits kick in—as they have
here—they must be carried forward to the next permit renewal.
V. DEQ should remove the effluent limits under the 13 MGD flow regime
The draft NPDES permit also purports to provide effluent limits in the event that the
facility is expanded to accommodate 13 MGD in flow.42 These effluent limits should be
removed. The facility is only designed to accommodate up to 10.5 MGD in flow and"has no
37 Final NPDES Permit No.NC0026573(March 28,20176)at 4.
38 Draft Permit at 5.
39 Final NPDES Permit No.NC0026573(March 28,20176)at 4;Draft Permit at 5.
4°Final NPDES Permit No.NC0026573(March 28,20176)at 4;Draft Permit at 5.
41 Renewal Application at 3.
42 Draft Permit at 7.
I1

plans to expand."43 Expansion would require an"Authorization to Construct"from DEQ.44 We
are aware of no reason why DEQ would provide limits for a flow level that cannot currently be
accommodated at this facility. If expansion to 13 MGD flow becomes necessary,the proper
course is to modify the permit active at that time. DEQ should not attempt to preauthorize the
expansion for purposes of Section 402 of the Clean Water Act in this permit.
VI. Conclusion
We appreciate the opportunity to comment on this draft permit. As explained above,the
draft permit must be revised to ensure compliance with state and federal law. Revisions must
include application of TBELs for multiple constituents and application of WQBELs for
pollutants with a reasonable potential to impact water quality standards. Additionally,disclosure
of toxic pollutants such as PFAS should be mandated, and any applicable effluent limitations
must be issued.Finally,the permit must comply with the Clean Water Act's anti-backsliding
provisions by enforcing the more stringent effluent limitations already applicable to the facility
under a 10.5 MGD flow rate, and DEQ must not attempt to circumvent a proper Clean Water Act
Section 402 analysis by pre-approving effluent limitations at a flow rate not yet possible or
anticipated by the facility.
Please contact Patrick Hunter at(828)258-2023 or [e-mail] if you have any
questions regarding our concerns.
Sincerely,
Patrick Hunter
Managing Attorney
Alyson Merlin
Associate Attorney
43 Fact Sheet at 1
44 Draft Permit at 2.
12