NC0006564_Fact Sheet_20221017

Baxter Healthcare Corp
Draft Fact Sheet
NPDES Permit No. NC0006564
Permit Writer/Email Contact Amirhossein Adaryani, [e-mail]:
Date: July 13, 2022
Division/Branch: NC Division of Water Resources/NPDES Complex Permitting
Fact Sheet Template: Version 09Jan2017
Permitting Action:
❑ Renewal
❑ Renewal with Expansion
❑ New Discharge
® Modification (Fact Sheet should be tailored to mod request)
1. Basic Facility Information
Facility Information
Applicant/Facility Name:
Baxter Healthcare Corporation
Applicant Address:
65 Pitts Station Rd, Marion, NC 28752
Facility Address:
US Highway 221 at North Cove, Marion, NC 28752
Permitted Flow:
1.2 MGD
Facility Type/Waste:
50% domestic/50% industrial
Facility Class:
Class 3
Treatment Units:
Non -contact Cooling Water, Boiler Feed Water, Process Water, and
Sanitary Wastewater
Pretreatment Program (Y/N)
N
County:
McDowell
Region
Asheville
Briefly describe the proposed permitting action and facility background:
NPDES permitting history
The Baxter Corporation requires a National Pollutant Discharge Elimination System (NPDES) discharge
permit to dispose of treated non -contact cooling water, boiler feed water, process wastewater, and sanitary
wastewater through surface water discharge. The facility manufactures sterile liquid solutions in flexible
bags for medical procedures. Baxter Corporation's NPDES permit expired January 31, 2020; the permit
renewed to be effective on April 15, 2022. The permit was adjudicated by the permittee and a major
modification application submitted to the Division on June 21, 2022.
The source of the wastewater is non -contact cooling water, boiler feed water, process water, and sanitary
wastewater. The facility upgraded its wastewater treatment system and relocated the outfall (001) 550 ft.
upstream to accommodate the upgrade.
After treatment, wastewater is discharged through outfall 001 into the North Fork Catawba River, which is
classified B-Trout Waters, in the Catawba River Basin.
In 1995, the Division of Water Resources issued an Authorization to Construct that permitted the
construction of a new outfall into the North Fork Catawba River 3.2 miles upstream of the confluence with
Armstrong Creek. Prior to 1996, Baxter Healthcare and American Threads discharged through outfalls
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Baxter Healthcare Corp
constructed at the same location in the North Fork Catawba River (0.2 miles downstream of the confluence
with Armstrong Creek).
STREAM CONDITIONS
Baxter Healthcare discharges into the North Fork Catawba River, 3.2 miles upstream of the confluence with
Armstrong Creek. In 1994, DWR modeled the North Fork Catawba River from Baxter Corporation's outfall
to Lake James. The model included the interactions of Baxter's discharge with American Threads (no
longer exists). The North Fork Catawba River changes classification at the confluence of Armstrong Creek
and North Fork Catawba River. The upstream classification is B —Tr and the downstream classification is
C. The model was based on the BOD load of 1321 (daily max) and 880 (monthly average). The current
load is substantially lower.
The model indicated that dissolved oxygen concentrations from the outfall to the confluence with
Armstrong Creek did not fall below the state standard of 6.0 mg/L for trout waters. The lowest predicted
value in this reach did not fall below 7.0 mg/L.
Current permitting actions:
In major modification the facility asked for the following items:
- Compliance schedule for temperature
- Reduction in monitoring to weekly and reassessment of turbidity monitoring after one year
- Reduction in monitoring to weekly in accordance with EPA's 1996 interim guidance for NH3-N,
BOD, COD, TSS, FC
- Removing of NH3-N winter limit
Turbidity monitoring and a footnote to effluent temperature monitoring was added, per 15A NCAC 02B
.0211(18) and (21), and .0219, the temperature for trout waters shall not be increased more than 0.5 °C due
to the discharge of heated liquids, not exceed 20°C when the upstream temperature is less than 20°C and
not cause the instream temperature to increase when upstream temperature is greater than 20°C.
Special condition A. (3.) added for temperature compliance schedule and condition A. (4.) added for
turbidity monitoring.
2. Receiving Waterbodv Information:
Receiving Waterbody Information
Outfalls/Receiving Stream(s):
Outfall 001 — North Fork Catawba River
Stream Segment:
11-24-(2.5)
Stream Classification:
B, Tr
Drainage Area (mi2):
31.5
Summer 7Q10 (cfs)
10.2
Winter 7Q10 (cfs):
15.2
30Q2 (cfs):
Average Flow (cfs):
63
IWC (% effluent):
16
303(d) listed/parameter:
No
Subject to TMDL/parameter:
Yes- Statewide Mercury TMDL implementation.
Basin/Sub-basin/HUC:
North Fork Catawba River/03-08-30/03050101
USGS Topo Quad:
DIOSE
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Baxter Healthcare Corp
3. Effluent Data Summary
Effluent data for Outfall 001 is summarized below for the period of November 2017 to November 2021.
Table. Effluent Data Summary Outfall 001
Parameter
Units
Average
Max
Min
Permit
Limit
Flow
MGD
0.94
1.54
0.19
MA 1.2
BOD5, 20°C
lbs/day
19.39
124.66
<3.21
MA 460.9
DM 691.4
COD
lbs/day
38.71
154.69
<8.02
MA 1,292.8
DM 1,939.2
Total Suspended Solids
lbs/day
9.26
68.75
<1.6
MA 278
DM 417
Fecal Coliform
#/100mL
MA 200
DM400
Total Residual Chlorine4
1.1g/1
limits only apply if chlorine
is used
DM 28.0
< 50
compliance)
Temperature
° C
25.92
35
9.3
Monitor
3/week
Conductivity
µS/cm
1,283.14
2,397
429
Monitor
3/week
Dissolved Oxygen,
mg/1
7.64
12.2
5.7
Monitor
3/week
pH
SU
--
7.6
6.4
6.0 ?pH
9.0
Oil & Grease
lbs/day
39.90
84.99
<8.02
MA 47.7
DM 95.4
NH3-N
mg/1
0.15
3.1
<0.1
Monitor
2/month
Total Nitrogen
(NO2 + NO3 + TKN)
mg/1
7.40
23.4
0.85
Monitor
1/month
Total Phosphorus
mg/1
1.63
5.5
0.09
Monitor
1/month
Chronic Toxicity
pass/fail
Monitor
1/quarter
MA -Monthly Average, WA -Weekly Average, DM -Daily Maximum, DA=Daily Average
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Baxter Healthcare Corp
4. Instream Data Summary
Instream monitoring may be required in certain situations, for example: 1) to verify model predictions when
model results for instream DO are within 1 mg/1 of instream standard at full permitted flow; 2) to verify
model predictions for outfall diffuser; 3) to provide data for future TMDL; 4) based on other instream
concerns. Instream monitoring may be conducted by the Permittee, and there are also Monitoring Coalitions
established in several basins that conduct instream sampling for the Permittee (in which case instream
monitoring is waived in the permit as long as coalition membership is maintained).
If applicable, summarize any instream data and what instream monitoring will be proposed for this permit
action: The current permit requires instream monitoring for dissolved oxygen, temperature, fecal coliform,
and conductivity for Class B, Trout Waters, per 15A NCAC 02B .0200. Review of instream data for the
past four years is summarized below.
Location
Temperature (°C)
Avg
Max
Min
Upstream
15.84
23.8
0
Downstream
16.51
24.3
0
There were differences in temperatures upstream and downstream reported which could violate standard
15A NCAC 02B .0211(18), which requires that the temperature for trout waters shall not be increased by
more than 0.5 °C above the background temperature, not exceed 20 °C and not cause the instream
temperature to increase when upstream temperature is greater than 20°C. Footnote will be added to the
effluent temperature monitoring limit in the permit.
Is this facility a member of a Monitoring Coalition with waived instream monitoring (Y/N): No
Name of Monitoring Coalition: NA
5. Compliance Summary
Summarize the compliance record with permit effluent limits (past 5 years): The facility reported no limit
violations.
Summarize the compliance record with aquatic toxicity test limits and any second species test results (past
5 years): The facility passed 16 of 16 quarterly chronic toxicity tests between August 2018 and May 2022.
Summarize the results from the most recent compliance inspection: The last facility inspection conducted
December 28, 2021, reported that the facility was well maintained and operated.
6. Water Quality -Based Effluent Limitations (WQBELs)
Dilution and Mixing Zones
In accordance with 15A NCAC 2B.0206, the following streamflows are used for dilution considerations
for development of WQBELs: 1 Q 10 streamflow (acute Aquatic Life); 7Q10 streamflow (chronic Aquatic
Life; non -carcinogen HH); 30Q2 streamflow (aesthetics); annual average flow (carcinogen, HH).
If applicable, describe any other dilution factors considered (e.g., based on CORMIX model results): NA
If applicable, describe any mixing zones established in accordance with 15,4 NCAC 2B.0204(b): NA
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Baxter Healthcare Corp
Oxygen -Consuming Waste Limitations
Limitations for oxygen -consuming waste (e.g., BOD) are generally based on water quality modeling to
ensure protection of the instream dissolved oxygen (DO) water quality standard. Secondary TBEL limits
(e.g., BOD= 30 mg/1 for Municipals) may be appropriate if deemed more stringent based on dilution and
model results.
If permit limits are more stringent than TBELs, describe how limits were developed: NA
Ammonia and Total Residual Chlorine Limitations
Limitations for ammonia are based on protection of aquatic life utilizing an ammonia chronic criterion of
1.0 mg/1 (summer) and 1.8 mg/1 (winter). Acute ammonia limits are derived from chronic criteria, utilizing
a multiplication factor of 3 for Municipals and a multiplication factor of 5 for Non -Municipals.
Limitations for Total Residual Chlorine (TRC) are based on the NC water quality standard for protection
of aquatic life (17 ug/l) and capped at 28 ug/1 (acute impacts). Due to analytical issues, all TRC values
reported below 50 ug/1 are considered compliant with their permit limit.
Describe any proposed changes to ammonia and/or TRC limits for this permit renewal: N/A
Reasonable Potential Analysis (RPA) for Toxicants
The need for toxicant limits is based upon a demonstration of reasonable potential to exceed water quality
standards, a statistical evaluation that is conducted during every permit renewal utilizing the most recent
effluent data for each outfall. The RPA is conducted in accordance with 40 CFR 122.44 (d) (i). The NC
RPA procedure utilizes the following: 1) 95% Confidence Leve1/95% Probability; 2) assumption of zero
background; 3) use of 1/2 detection limit for "less than" values; and 4) streamflows used for dilution
consideration based on 15A NCAC 2B.0206. Effective April 6, 2016, NC began implementation of
dissolved metals criteria in the RPA process in accordance with guidance titled NPDES Implementation of
Instream Dissolved Metals Standards, dated June 10, 2016.
A reasonable potential analysis was conducted on effluent toxicant data collected between November 2017
and November 2021. Pollutants of concern included toxicants with positive detections and associated water
quality standards/criteria. Based on this analysis, the following permitting actions are proposed for this
permit:
• Effluent Limit with Monitoring. The following parameters will receive a water quality -based
effluent limit (WQBEL) since they demonstrated a reasonable potential to exceed applicable water
quality standards/criteria: None
• Monitoring Only. The following parameters will receive a monitor -only requirement since they
did not demonstrate reasonable potential to exceed applicable water quality standards/criteria, but
the maximum predicted concentration was >50% of the allowable concentration: None
• No Limit or Monitoring: The following parameters will not receive a limit or monitoring, since
they did not demonstrate reasonable potential to exceed applicable water quality standards/criteria
and the maximum predicted concentration was <50% of the allowable concentration: None
Toxicity Testing Limitations
Permit limits and monitoring requirements for Whole Effluent Toxicity (WET) have been established in
accordance with Division guidance (per WET Memo, 8/2/1999). Per WET guidance, all NPDES permits
issued to Major facilities or any facility discharging "complex" wastewater (contains anything other than
domestic waste) will contain appropriate WET limits and monitoring requirements, with several exceptions.
The State has received prior EPA approval to use an Alternative WET Test Procedure in NPDES permits,
using single concentration screening tests, with multiple dilution follow-up upon a test failure.
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Baxter Healthcare Corp
Describe proposed toxicity test requirement: The current permit requires quarterly chronic toxicity testing
at 16% using Ceriodaphnia dubia. No changes are proposed.
Mercury Statewide TMDL Evaluation
There is a statewide TMDL for mercury approved by EPA in 2012. The TMDL target was to comply with
EPA's mercury fish tissue criteria (0.3 mg/kg) for human health protection. The TMDL established a
wasteload allocation for point sources of 37 kg/year (81 lb/year) and is applicable to municipals and
industrial facilities with known mercury discharges. Given the small contribution of mercury from point
sources (^-2% of total load), the TMDL emphasizes mercury minimization plans (MMPs) for point source
control. Municipal facilities > 2 MGD and discharging quantifiable levels of mercury (>1 ng/1) will receive
an MMP requirement. Industrials are evaluated on a case -by -case basis, depending on if mercury is a
pollutant of concern. Effluent limits may also be added if annual average effluent concentrations exceed
the WQBEL value (based on the NC WQS of 12 ng/1) and/or if any individual value exceeds a TBEL value
of 47 ng/1
Describe proposed permit actions based on mercury evaluation: The current permit does not include limits
or monitoring requirements. Mercury is not expected to be present in effluent, no MMP or limit is required.
No changes are proposed.
Other TMDL/Nutrient Management Strategy Considerations
If applicable, describe any other TMDLs/Nutrient Management Strategies and their implementation within
this permit: The facility is currently required to monitor TN and TP monthly, no changes are proposed.
Other WQBEL Considerations
If applicable, describe any other parameters of concern evaluated for WQBELs: NA
If applicable, describe any special actions (HQW or ORW) this receiving stream and classification shall
comply with in order to protect the designated waterbody: NA
If applicable, describe any compliance schedules proposed for this permit renewal in accordance with 15A
NCAC 2H.0107(c)(2)(B), 40CFR 122.47, and EPA May 2007 Memo:
Compliance schedule for temperature: 10 years eDMR of data have been evaluated for effluent, and 6 years
of available data for instream monitoring. Since June 2016 (establishment of instream monitoring), the daily
average effluent temperature is 23.2 °C, with a maximum of 35 °C. Both may be higher than allowed limits.
The permittee has requested five years to evaluate alternatives, design, construct and make operational
changes to meet outfall 001 and instream temperature criteria. The Division determination is that three
years and six months would be adequate. Therefore, a special condition will be added for the permittee to
conduct evaluation and to submit for approval a Corrective Action Plan (CAP) no later than September 1,
2023. The approved CAP will include actions to be completed by defined dates with compliance no later
than two years and six months from submission of the CAP. The steps listed in special condition, the actions
and deadlines listed in the approved CAP will be considered enforceable parts of the permit.
If applicable, describe any water quality standards variances proposed in accordance with NCGS 143-
215.3(e) and 15A NCAC 2B.0226 for this permit renewal: NA
7. Technology -Based Effluent Limitations (TBELs)
Describe what this facility produces: Pharmaceuticals, sterile liquid in flexible bags.
List the federal effluent limitations guideline (ELG) for this facility: 40 CFR 439 Subpart D, 40 CFR 463
Subpart A, 40 CFR 133 secondary treatment standards, and BPJ.
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Baxter Healthcare Corp
If the ELG is based on production or flow, document how the average production/flow value was calculated:
This ELG is based on the following flows: cooling water from the extruders, non -contact cooling water,
boiler feed, process, and sanitary wastewater streams. The pollutant loading for each process are
summarized below. The information was provided by the facility in 2004, since there have not been any
significant changes in manufacturing, these data were used in the 2004, 2010, 2016, 2022 permit renewal.
Source flow
Extrusion
Boiler feed
Process
Sanitary
BOD5 (lb/day) COD (lb/day) TSS (lb/day)
106.2 174.2 97.1
0 0 84.1
1,900.9 3,088.8 28.9
666.7 1,092.9 229
For ELG limits, document the calculations used to develop TBEL limits:
• BOD5, COD, and TSS are based on 40 CFR 439 Subpart D and secondary treatment standards for
the sanitary wastewater component.
• Oil and Grease limits for the cooling water from the extruders are based on 40 CFR 463 Subpart
A, the sanitary wastewater limits are based on BPJ of 30 mg/L DM and 60 mg/L MA.
Comparison of the recalculated limits using current flow data and current permit limits are summarized
below for comparison. The calculated limits are less stringent than the current permit. Since the facility
has no current plans for expansion no changes are proposed.
Table. TBEL Development per 40 CFR 133, 40 CFR 439 Subpart D, 40 CFR 463 Subpart A
Pollutant
Daily Max
Limit
(lb /d)
Current Limit
(lb/d)
Monthly Average
Limit
(lb/d)
Current Limit
(lb/d)
BOD5
645.21
691.40
430.14
460.90
COD
1,766.79
1,939.20
1,177.86
1,292.80
TSS
1,123.48
417.00
748.99
278.00
O&G
95.86
95.40
47.93
47.70
If any limits are based on best professional judgement (BPJ), describe development: The allocation for Oil
and Grease for the sanitary wastewater are based on BPJ of 30 mg/L DM and 60 mg/L MA.
Document any TBELs that are more stringent than WQBELs: The TBELs limits for BOD, COD, Oil and
Grease, and TSS are more stringent than the 1994 model conducted by the Division.
Document any TBELs that are less stringent than previous permit: NA
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Baxter Healthcare Corp
8. Antidegradation Review (New/Expanding Discharge):
The objective of an antidegradation review is to ensure that a new or increased pollutant loading will not
degrade water quality. Permitting actions for new or expanding discharges require an antidegradation
review in accordance with 15A NCAC 2B.0201. Each applicant for a new/expanding NPDES permit must
document an effort to consider non -discharge alternatives per 15A NCAC 2H.0105(c)(2). In all cases,
existing instream water uses and the level of water quality necessary to protect the existing use is maintained
and protected.
If applicable, describe the results of the antidegradation review, including the Engineering Alternatives
Analysis (EAA) and any water quality modeling results: NA
9. Antibacksliding Review:
Sections 402(o)(2) and 303(d)(4) of the CWA and federal regulations at 40 CFR 122.44(1) prohibit
backsliding of effluent limitations in NPDES permits. These provisions require effluent limitations in a
reissued permit to be as stringent as those in the previous permit, with some exceptions where limitations
may be relaxed (e.g., based on new information, increases in production may warrant less stringent TBEL
limits, or WQBELs may be less stringent based on updated RPA or dilution).
Are any effluent limitations less stringent than previous permit (YES/NO): NO
If YES, confirm that antibacksliding provisions are not violated: NA
10. Monitoring Requirements
Monitoring frequencies for NPDES permitting are established in accordance with the following regulations
and guidance: 1) State Regulation for Surface Water Monitoring, 15A NCAC 2B.0500; 2) NPDES
Guidance, Monitoring Frequency for Toxic Substances (7/15/2010 Memo); 3) NPDES Guidance, Reduced
Monitoring Frequencies for Facilities with Superior Compliance (10/22/2012 Memo); 4) Best Professional
Judgement (BPJ). Per US EPA (Interim Guidance, 1996), monitoring requirements are not considered
effluent limitations under Section 402(o) of the Clean Water Act, and therefore anti -backsliding
prohibitions would not be triggered by reductions in monitoring frequencies.
11. Electronic Reporting Requirements
The US EPA NPDES Electronic Reporting Rule was finalized on December 21, 2015. Effective December
21, 2016, NPDES regulated facilities are required to submit Discharge Monitoring Reports (DMRs)
electronically. While NPDES regulated facilities would initially be required to submit additional NPDES
reports electronically effective December 21, 2020, EPA extended this deadline from December 21, 2020,
to December 21, 2025. The current compliance date, effective January 4, 2021, was extended as a final
regulation change published in the November 2, 2020 Federal Register This permit contains the
requirements for electronic reporting, consistent with Federal requirements.
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Baxter Healthcare Corp
12.Summary of Proposed Permitting Actions:
A. Table. Current Permit Conditions and Proposed Changes 1.2 MGD
Parameter
Current Permit
Proposed Change
Basis for Condition/Change
Flow
MA 1.2 MGD
No change
15A NCAC 2B .0505
BOD5, 20°C
MA 460.9 lbs/day
DM 691.4 lbs/day
No change
TBEL. 40 CFR 439 Subpart D /Secondary
treatment standards/40 CFR 133/15A
NCAC 2B .0406
COD
MA 1,292.8 lbs/day
DM 1,939.2 lbs/day
No change
TBEL. 40 CFR 439 Subpart D /Secondary
treatment standards/40 CFR 133/15A
NCAC 2B .0406
Total Suspended
Solids
MA 278.O lbs/day
DM 417.O lbs/day
No change
TBEL. 40 CFR 439 Subpart D /Secondary
treatment standards/40 CFR 133/15A
NCAC 2B .0406
NH3-N summer,
mg/L
MA 5.3 mg/L
DM 26.4 mg/L
No change
WQBEL. Based on protection of aquatic
life. 15A NCAC 2B.0200
NH3-N wintery mg/L
MA 14.7 mg/L
No change
WQBEL. Based on protection of aquatic
life. 15A NCAC 2B.0200
Fecal Coliform
MA 200 /100m1
DM 400 /100m1
No change
WQBEL. State WQ standard, 15A NCAC
2B .0200
Total Residual
Chlorine4
28 µg/L
No change
WQBEL. State WQ standard, 15A NCAC
2B .0200
Turbidity, NTU
DM 10 NTUs
No change
WQBEL. State WQ standard, 15A NCAC
2B .0211(21)
Temperature, °C
Monitor 3/week
No change
WQBEL. State WQ standard, 15A NCAC
2B .0200 and 15A NCAC 02B .0500
Conductivity,
µS/cm
Monitor 3/week
No change
WQBEL. State WQ standard, 15A NCAC
2B .0200 and 15A NCAC 02B .0500
Dissolved Oxygen,
mg/L
Monitor 3/week
No change
WQBEL. State WQ standard, 15A NCAC
2B .0200 and 15A NCAC 02B .0500
pH
>6.0 and < 9.0 SU
No change
WQBEL. State WQ standard, 15A NCAC
2B .0200 and 15A NCAC 02B .0500
Oil & Grease
MA 47.7 lbs/day
DM 95.4 lbs/day
Monitor 2/month
No change
TBEL. 40 CFR 463/BPJ/40 CFR 133 /15A
NCAC 2B .0406
Total Nitrogen
(NO2 + NO3 +
TKN), mg/L
Monitor 1/month
No change
WQBEL. State WQ standard, 15A NCAC
2B .0200 and 15A NCAC 02B .0500
Total Phosphorus,
mg/L
Monitor 1/month
No change
WQBEL. State WQ standard, 15A NCAC
2B .0200 and 15A NCAC 02B .0500
Chronic Toxicity
Monitor 1/quarter
No change
WQBEL. No toxics in toxic amounts. 15A
NCAC 2B.0200 and 15A NCAC 2B.0500
Total hardness as
CaCO3, mg/L
Monitor 1/quarter
No change
Hardness -dependent dissolved metals WQ
standard, 2016
MGD - Million gallons per day, MA - Monthly Average, WA - Weekly Average, DM - Daily Max
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Baxter Healthcare Corp
13. Public Notice Schedule:
Permit to Public Notice: 09/01/2022
Per 15A NCAC 2H .0109 & .0111, The Division will receive comments for a period of 30 days following
the publication date of the public notice. Any request for a public hearing shall be submitted to the
Director within the 30 days comment period indicating the interest of the party filing such request and the
reasons why a hearing is warranted.
14. NPDES Division Contact
If you have any questions regarding any of the above information or on the attached permit, please
contact Amirhossein (Amir) Adaryani at [phone] or via email at [e-mail].
15. Fact Sheet Addendum (if applicable):
Were there any changes made since the Draft Permit was public noticed (Yes/No): YES
If Yes, list changes and their basis below:
• Minor language clarification in footnote 8 of limit table, section A.(1.), for temperature
requirement, that if the instream temperature exceeds 20 °C upstream of the facility, the discharge
will not be considered out of compliance with this permit limit based on the maximum regulatory
limit of 20°C provided that it does not increase the background temperature.
16. Fact Sheet Attachments (if applicable):
• Monitoring reduction calculations
• Public comments to draft permit and DWR responses: Lake James Environmental Association,
Catawba Riverkeeper Foundation, Southern Environmental Law Center.
Page 10 of 10

Effluent
Average of Value
Parameter Unit
00340 - Oxygen Demand, Chem. (High Level) (COD) Ib/d
CO610 - Nitrogen, Ammonia Total (as N) - Concentration mg/L
QD310 - BOD, 5-Day (20 Deg. C) - Quantity Daily Ib/d
QD530 - Solids, Total Suspended - Quantity Daily Ib/d
Year
2018
34.04
0.10
13.62
9.13
2019 2020
40.29 37.78
0.10 0.16
20.51 17.48
9.17 7.65
2021
38.32
0.27
18.02
12.74
2022
39.70
0.24
15.87
19.85
Mean
38.03
0.17
17.10
11.71
Parameter
Unit
Long term effluent average(LTEA)
Monthly average limit(MA)
Ratio, %
Max
Baseline monitoring
Eligible reduction
00340 - Oxygen Demand, Chem. (High Level) (COD)
Ib/d
38.03
1292.8
2.94
55.56
3/Wk
1/wk
CO610 - Nitrogen, Ammonia Total (as N) - Conc-Summer
mg/L
0.17
5.3
3.24
1.40
1/wk
1/2months
CO610 - Nitrogen, Ammonia Total (as N) - Conc-Winter
mg/L
0.17
14.7
1.17
3.90
1/wk
1/2months
QD310 - BOD, 5-Day (20 Deg. C) - Quantity Daily
Ib/d
17.10
460.9
3.71
124.66
3/Wk
1/wk
QD530 - Solids, Total Suspended - Quantity Daily
Ib/d
11.71
278.0
4.21
68.75
3/Wk
1/wk
Fecal Colifrom
CFU
1.00
200.00
0.50
1.00
3/Wk
1/wk
Table 1
Ratio of Long Term Effluent Average
to Monthly Average Limit
Baseline
Monitoring 75-66% 65-50% 49-25% <25%
7/wk 5/wk 4/wk 3/wk l/wk
6/wk 4/wk 3/wk 2/wk l /wk
5/wk 4/wk 3/wk 2/wk l/wk
4/wk 3/wk 2/wk 1/wk 1 /wk
3/wk 3/wk 2/wk 1/wk l/wk
2/wk 2/wk 1/wk 2/mo 1/mo
l/wk l/wk 1/wk 2/mo 1/2mos
2/mouth 2/mo 2/mo 2/mo 1 /quarter
1/month limo 1/mo 1/quarter 1/6mos
Note: See above eligibility requirements.

NC0006564
DWR response to CRF Comments
The Catawba River Keeper Foundation submitted comments regarding the draft permit NC0006564
which was received by the Division September 30, 2022. The comments and responses from the Division
are summarized below:
1. Keep the requirements to monitor and limit turbidity.
a. DEQ kept the monitoring for turbidity in the permit. Although, facility can apply for
removal of this monitoring through major modification after 12 months [See Special
Condition A. (4.)].
2. Require Baxter Healthcare to comply with temperature limits as soon as possible
a. The facility proposed five years to comply with temperature requirements in the permit.
Although, DEQ developed Compliance Schedule for temperature that only grants 3 years
and 6 months from issuance to comply. Meanwhile, the facility is required to provide
Corrective Action Plan (CAP), and progress reports [See Special Condition A. (3.)].
3. Do not grant request for reduction in monitoring frequency
a. Based on EPA's Interim Guidance for Performance -Based Reductions of NPDES Permit
Monitoring Frequencies (1996), monitoring requirements can be reduced if permittee
showed a long and consistent compliance history, lower than limits with specified
parameters. After careful evaluation of eDMR data monitoring reduction reduced for
BOD5, COD, TSS, Fecal coliform, Ammonia and Turbidity. Please refer to calculation
spreadsheet for monitoring reduction attached for more details. Association of
impairment downstream of Baxter's discharge should have been articulated properly.
The monitoring frequencies, limits and conditions are all based on Federal and State of
North Carolina regulations and codes [See A. (1.) and Special Condition A. (3.)].

CATAWBA
RIVERKEEPER®
September 30th, 2022
NCDEQ/DWR/NPDES
Water Quality Permitting Section
1617 Mail Service Center
Raleigh, NC 27699-1617
Dear Amir Adaryani,
The Catawba Riverkeeper Foundation is a member -funded environmental nonprofit that educates and
advocates for the protection of the Catawba-Wateree River and all its tributaries. Our organization
represents over 6,000 active members who rely on the watershed for drinking water, recreation, and
electricity. The North Fork of the Catawba River is a major tributary to Lake James and is a designated
Class B Trout Water. We appreciate the opportunity to comment on the Baxter Healthcare Corporation's
Major Modification Request for NPDES permit (NC00006564) and make the following recommendations:
• Keep the requirements to monitor and limit turbidity
The facility discharges into a designated Trout Water. Facility discharge should be monitored
to ensure stream turbidity does not exceed 10 NTUs. The standard to protect the designated
use is in turbidity and therefore should stay in the permit. While often highly correlated
measuring total suspended solids is not an acceptable substitute. Turbidity is inexpensive to
monitor and should not be considered an undue financial burden.
• Require Baxter Healthcare to comply with temperature limits as soon as possible
The facility discharges into a designated Trout Water. If modified as requested, the
discharge into the North Fork would not only in be violation of state water quality
temperature standards but on average be above levels that are acutely toxic to trout and
other cold -water species. The effluent summary shows their average discharge is 25.92° C
with a max of 35° C.. Both of these are well above the standard set for Trout Waters under
15A NCAC 02B .0211(18) "...the temperature for trout waters shall not be increased by more
than 0.5 degrees C (0.9 degrees F) due to the discharge of heated liquids, but in no case to
exceed 20 degrees C (68 degrees F)." A 5-year plan to achieve compliance is not proper as
the permit will expire in 5 years. It should also be noted that the last permit should have
required these same temperature standards but was overlooked. The facility would not
meet state water quality standards for another full permit cycle. Instead, Baxter should
comply with temperature standards as soon as possible

• Do not grant request for reduction in monitoring frequency
Baxter Healthcare references the 1996 Interim Guidance for Performance - Based
Reductions of NPDES Permit Monitoring Frequencies. NCDEQ is not required to grant this
reduction if it is not in the best interest of public and environmental health. Since 2020 the
North Fork has been listed as impaired immediately downstream of the facilities discharge.
As NCDEQ has not determined the reason for impairment, ample monitoring is needed to
quantify impacts and establish future TMDLs. While we recognize the investment Baxter has
made in wastewater treatment, at minimum BOD and TSS monitoring frequency should
remain at 3x a week per 15A NCAC 26.0508.
For the River,
Brandon Jones
Catawba Riverkeeper
A WATERKEEPER ALLIANCE® Member
102 Main St. Suite 100 McAdenville NC 28211
Phone: [phone] Fax: [phone]
www.catawbariverkeeper.org

NC0006564
DWR response to LJEA Comments
The Lake James Environmental Association submitted comments regarding the draft permit NC0006564
which was received by the Division September 30, 2022. The comments and responses from the Division
are summarized below:
1- Keeping current monitoring until impairments downstream of Baxter's discharge have been
identified and an assessment of the impacts of the discharge on Lake James has been
completed.
a. Based on EPA's Interim Guidance for Performance -Based Reductions of NPDES Permit
Monitoring Frequencies (1996), monitoring requirements can be reduced if the
permittee showed a long and consistent compliance history, lower than limits with
specified parameters. After careful evaluation of eDMR data:
i. The monitoring for BOD5, COD, TSS and Fecal coliform was reduced to weekly
ii. The monitoring for Ammonia was reduced to once per two months
iii. The monitoring for Turbidity was reduced to weekly, and a provision has been
added that the Permittee can apply for a major modification after providing 12
months of turbidity monitoring data [See Special Condition A. (4.)].
Please refer to calculation spreadsheet for monitoring reduction attached for more
details. Association of impairment downstream of Baxter's discharge should have been
articulated properly. The monitoring frequencies, limits and conditions are all based on
Federal and State of North Carolina regulations and codes. [See section A. (1.)]
2- The requirement to monitor turbidity should remain in the permit.
a. As mentioned in response to comment 1 above, the monitoring for turbidity was kept in
the permit [See Special Condition A. (4.)].
3- The requested time to achieve compliance with the temperature discharge standards is
excessive (5 years).
a. Compliance Schedule developed for temperature only grants 3 years and 6 months from
issuance to comply. Meanwhile, the facility is required to provide Corrective Action Plan
(CAP), and progress reports [See Special Condition A. (3.)].

Lake James
Environmental
Association
To protect and enhance the long-term environmental health and natural -beauty of Lake James and -its watershed.
P.O. Box 430, Nebo, NC 28761
Website: www.ljea.org Email: [e-mail] Phone: [phone]
September 30, 2022
NCDEQ/DWR/NPDES
Water Quality Permitting Section
1617 Mail Service Center
Raleigh, NC 27699-1617
Re. the Baxter Healthcare Corporation's Major Modification Request for NPDES permit
(NC0006564)
Mr. Adaryani,
Lake James Environmental Association (LJEA) is a non-profit, volunteer -driven organization
focused on the protection of the Lake James watershed, which includes the North Fork Catawba
River. Established in 1973, LJEA has a long history of protecting the watershed's lakes, rivers, and
streams, including many years of water quality sampling and analyses and participation in the
Volunteer Watershed Information Network for over 20 years. The North Fork has long been a
concern of our organization, for its riverine ecology and recreational value and for its impacts on
Lake James. In February 2022, we provided comments on the renewal of Baxter's NPDES permit
(NC0006564) and have appended those comments to this letter. We urge appropriate
consideration of LJEA's concerns in any forthcoming permit modifications. Regarding the
requested permit modifications presented in Baxter's application, we provide the following
comments:
• LJEA opposes the request for reductions in monitoring frequency. The requested
reductions should not be considered until there is a longer performance record of the
updated facility. Also, referencing LJEA's prior comments, reasonably intensive
monitoring should continue until the likely sources of impairments downstream of
Baxter's discharge have been identified and an assessment of the impacts of the
discharge on Lake James has been completed. The appropriate time to consider
relaxation of monitoring requirements is after those studies have been completed and
the Catawba River Basin Plan has been updated.

• The requirement to monitor turbidity should remain in the permit. The Baxter facility
discharges into designated Trout Water. The standard to protect the designated use is
specified in turbidity and the turbidity monitoring requirement should remain in the
permit. Additionally, changes in effluent turbidity can often signal an upset in plant
operations and performance. Frequent turbidity monitoring reduces the likelihood and
limits the impact of a standard's violation. Monitoring turbidity is inexpensive and
certainly does not present an undue financial burden.
• The requested time to come into compliance with the temperature discharge standards
is excessive. While we understand it takes time to design and construct additional
facilities to achieve reliable compliance, approval of a 5-year delay in compliance is not
warranted. In addition, Baxter should be required to submit a plan to remediate
excessive temperature discharges, using its current facilities and operational capabilities,
within six months.
Thank you for your consideration of LJEA's comments on the requested permit modification.
Sincerely,
laA; - rt.)\-
Todd Bell
President, Lake James Environmental Association
So(itt
Sophie McCarthy
Executive Director, Lake James Environmental Association
cc:
Doug Dowden, Div. of Water Resources, Supervisor, Industrial Permitting Unit
Craig Hesterlee, EPA Region 4, NPDES Permitting

NC0006564
DWR response to SELC Comments
The SELC submitted comments regarding the draft major modification permit NC0006564 which was
received by the Division September 30, 2022. The comments were submitted on behalf of the Catawba
Riverkeeper Foundation, MountainTrue, North Carolina Chapter of Trout Unlimited, North Carolina
Wildlife Federation, Watauga Riverkeeper, and the Southern Environmental Law Center. The comments
and responses from the Division are summarized below:
1- DEQ needs to consistently use trout waters temperature standard for the Draft NPDES Permit,
which authorizes discharges from the Baxter Healthcare Corp into the North Fork of the
Catawba River (Class B trout water).
a. Per 15A NCAC 02B .0211 (18) and .0219 (1), the language modified in Footnote 8 to clarify
effluent temperature requirement when the upstream temperature is higher than 20 °C
[See A. (1.), Footnote 8]. After correction, it reads "... If the instream temperature exceeds
20 °C upstream of the facility, the discharge will not be considered out of compliance with
this permit limit based on the maximum regulatory limit of 202C provided that it does not
increase the background temperature...".

SOUTHERN
ENVIRONMENTAL
NVRONMENTAL
LAW
CENTER
Via E-mail
Richard Rogers
N.C. Dept. of Environmental Quality
Division of Water Resources
Water Quality Permitting Section
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
48 Patton Avenue, Suite 304 Telephone [phone]
Asheville, NC 28801 Facsimile 828-258-2024
September 30, 2022
Dear Mr. Rogers:
Please accept the following comments submitted on behalf of the Catawba Riverkeeper
Foundation, MountainTrue, North Carolina Chapter of Trout Unlimited, North Carolina Wildlife
Federation, Watauga Riverkeeper, and the Southern Environmental Law Center related to
application of the trout waters temperature standard in five recently noticed draft National
Pollutant Discharge Elimination System (NPDES) permits: NC0030325 (Buffalo Meadows
WWTP), NC0042358 (Adams Apple Condominiums WWTP), NC0062961 (Tynecastle
WWTP), NC0006564 (Baxter Healthcare Corp. WWTP), and NC0059421 (Sapphire Lake
WWTP No. 1). Proper application of the trout waters temperature standard is critical to
protecting trout populations in North Carolina. The Department of Environmental Quality (DEQ)
has correctly applied the trout waters temperature standard for three of the permits, but not for
two others. We ask that DEQ promptly correct these deficiencies before finalizing the permits.
I. Trout require cold, clean water to survive.
Keeping water temperature in designated trout waters below certain thresholds is
critically important because North Carolina's three species of trout —brook trout, brown trout,
and rainbow trout —require cold, clean, oxygen -rich water to survive and thrive. Water
temperature for these trout generally needs to be kept below 20° C (68° F).1 Unfortunately, past
and ongoing land management practices threaten trout habitats, including by inducing stream
temperature increases. As we explained in our comments on North Carolina's draft 2022 Clean
Water Act § 303(d) list, numerous trout streams routinely exceed safe water temperatures for
trout.
2
This problem is being exacerbated by climate change. By 2060, western North Carolina
is predicted to see 10-20 more days each year with air temperatures above 35° C (95° F),
increasing the potential for water temperatures to rise above 21.1° C (70° F)—levels that can be
1 Trout Species of North Carolina, Fly Fishing NC (accessed Sept. 26, 2022), https://www.flyfishingnc.com/trout-
species-of-north-carolina.
2 S. Envtl. L. Ctr., Comments on North Carolina's Draft 2022 § 303(d) List (Feb. 28, 2022), Attachment 1.
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington, DC

lethal to trout.3 This combination of past habitat loss, ongoing poor land management practices,
and climate change poses an existential threat to many western North Carolina trout populations.
Declines in trout populations —driven by increasing stream temperatures or otherwise —
will hurt local economies. The total economic benefit of trout fishing in North Carolina is
estimated at $383.3 million annually, supporting nearly 3,600 jobs.4 If trout habitats are further
reduced, these economic benefits will be at risk. Overall, stream temperatures in North Carolina
are increasing, and this trajectory is predicted to continue under a changing climate. To protect
trout populations and the businesses that rely on them, North Carolina must take proactive steps
to ensure trout waters remain sufficiently cold.
II. North Carolina promulgated a temperature water quality standard to protect
trout.
Recognizing that trout require cold water, North Carolina exercised its authority under
the Clean Water Act to develop a temperature water quality standard designed to keep trout
streams cool. The Clean Water Act requires states to designate "uses" of waterbodies and
promulgate standards to protect those uses. See 33 U.S.C. § 1313; 40 C.F.R. § 131.10; N.C. Gen.
Stat. § 143-214.1. All waterbodies in North Carolina are subject to a temperature standard to
protect their associated designated use. 15A N.C. Admin. Code 2B.0211(18). Some North
Carolina waterbodies have been assigned a "trout waters" use. See 15A N.C. Admin. Code
2B.0301(b)(3) (explaining trout waters classification). The temperature standard —for both trout
waters and non -trout waters —provides that water temperature is:
not to exceed 2.8 degrees C (5.04 degrees F) above the natural water temperature,
and in no case to exceed 29 degrees C (84.2 degrees F) for mountain and upper
piedmont waters and 32 degrees C (89.6 degrees F) for lower piedmont and coastal
plain Waters; the temperature for trout waters shall not be increased by more than
.5 degrees C (0.9 degrees F) due to the discharge of heated liquids, but in no case
to exceed 20 degrees C (68 degrees F).
15A N.C. Admin. Code 2B.0211(18).
The standard has two parts —a delta limit and an overall prohibition. In non -trout waters,
the first part prohibits an increase attributable to a discharger of more than 2.8° C above the
natural water temperature. Under the second part, temperature shall "in no case" exceed 29° C in
mountain and upper piedmont waters and 32° C in lower piedmont and coastal plain waters
regardless of the presence of permitted dischargers.
3 Emma Johnson, Climate Change Challenges Trout Industry in North Carolina, Carolina Public Press (Feb. 17,
2021), https://carolinapublicpress.org/42527/climate-change-challenges-trout-industry-in-north-carolina/. See also
Kunkel, K.E., et al., 2020: North Carolina Climate Science Report,
hops://ncics.org/wpcontent/uploads/2020/ 10/NC_Climate_Science_Report_FullReport_Final_revised_September20
20.pdf.
4 N.C. Wildlife Res. Comm'n, Mountain Trout Fishing: Economic Impacts on and Contributions to North
Carolina's Economy (2015), https://www.ncwildlife.org/Portals/0/Fishing/documents/Economic-Impacts-Trout-
Fishing.pdf.
2

The trout waters standard follows this same structure: Stream temperature may not be
increased "by more than .5 degrees C C. due to the discharge of heated liquids" but "in no case"
shall stream temperature exceed 20° C. This makes sense because keeping trout waters below
20° C—regardless of the presence of permitted dischargers —is critical to sustaining healthy trout
populations.
North Carolina's temperature standard, including for trout waters, is implemented in part
through NPDES permits that regulate point source discharges by setting limits and monitoring
requirements for a variety of water quality characteristics. 33 U.S.C. § 1342(a). State agencies
with delegated authority to administer the NPDES program, such as DEQ, are responsible for
ensuring NPDES permits identify and apply the correct water quality limits for the waterbody
into which the permittee will be discharging effluent.
III. DEQ inconsistently applies the trout waters temperature standard in draft
NPDES permits currently out for comment.
We commend DEQ for correctly applying the trout waters temperature standard in three
recently noticed NPDES permits. But DEQ incorrectly applies this same standard in two
additional permits, one of which incompletely states the discharger's obligations, while the other
lacks any reference to a temperature standard whatsoever. DEQ must correct its application of
the trout waters temperature standard in these final two permits.
DEQ correctly applies the trout waters temperature standard in draft NPDES permits
NC0030325 (Buffalo Meadows WWTP), NC0042358 (Adams Apple Condominiums WWTP),
and NC0062961 (Tynecastle WWTP). All three permits authorize discharges into Class B trout
waters.5 And all three explain that "instream temperature shall not be increased by more than 0.5
degrees C (0.9 degrees F) due to the discharge of heated liquids, but in no case to exceed 20
degrees C (68 degrees F)."6 Crucially, the permits explain that "[i]f the stream temperature
exceeds 20 degrees C due to natural background conditions, the effluent cannot cause any
increase in instream water temperature."' Restated, all three permits recognize that trout waters
may "in no case" exceed 20° C; they therefore prohibit all stream -warming discharges into trout
waters already exceeding that threshold.8
We especially commend DEQ for applying the appropriate trout waters temperature
standard to draft permits NC0042358 (Adams Apple Condominiums WWTP) and NC0062961
(Tynecastle WWTP), which both discharge into the Watauga River. When preparing its § 303(d)
lists, DEQ has incorrectly applied the non -trout "mountain waters" temperature standard to the
Watauga River which allows increases in water temperature up to 29° C.9 Those temperatures
5 See Draft Permit NC0030325, Draft Permit NC0042358, Draft Permit NC0062961.
6 See Draft Permit NC0030325, at 3 n.4; Draft Permit NC0042358, at 3; Draft Permit NC0062961, at 3.
Id. (Emphasis added).
8 Id.
9 See, e,g., North Carolina 2022 Integrated Report, at 1035-36 (applying the 29° C standard to AU IDs 13574 and
13605), https://edocs.deq nc.gov/WaterResources/DocView.aspx?dbid=0&id=2361713&cr=1.
3

can be lethal to trout, and we are pleased DEQ is appropriately applying the trout waters 20° C
standard in Watauga River permits.
Unfortunately, DEQ abandons this approach for Draft NPDES Permit NC0006564, which
authorizes discharges from the Baxter Healthcare Corp. WWTP into the North Fork of the
Catawba River —also a Class B trout water. DEQ starts out on the right foot, explaining that the
"facility shall not exceed the instream water temperature of 20° C and not exceed 0.5°C above
background temperature." But it missteps by including language stating that "[i]f the instream
temperature exceeds 20° C upstream of the facility, the discharge will not be considered out of
compliance with this permit limit based on the maximum regulatory limit of 20° C." This latter
provision seems to allow increases of "0.5°C above background temperature," even if the
"background temperature" already exceeds 20° C. This language must be stricken for the permit
to comply with the trout water temperature standard, which requires that trout waters "in no
case" exceed 20° C. In other words, the permit must be made consistent with draft NPDES
permits NC0030325, NC0042358, and NC0062961, which correctly require that "[i]f the stream
temperature exceeds 20 degrees C due to natural background conditions, the effluent cannot
cause any increase in instream water temperature." DEQ may be able to address difficulties with
meeting this standard through the schedule of compliance being developed for the Baxter
Healthcare Corp. permit, but it cannot rewrite the trout waters temperature standard to authorize
discharges which cause or contribute to exceedances above the 20° C threshold.
Finally, Draft Permit NC0059421 authorizes the Sapphire Lake WWTP to discharge into
the Horsepasture River, a designated Class C trout water.10 But this permit makes no mention of
any temperature standard (beyond monitoring). DEQ must add language to this permit consistent
with permits NC0030325, NC0042358, and NC0062961 requiring that "instream temperature
shall not be increased by more than 0.5 degrees C (0.9 degrees F) due to the discharge of heated
liquids, but in no case to exceed 20 degrees C (68 degrees F)" and explaining that "[i]f the
stream temperature exceeds 20 degrees C due to natural background conditions, the effluent
cannot cause any increase in instream water temperature."
Applying the correct trout water temperature standard at the Sapphire Lake WWTP is
critical because, as we pointed out in our comments on the draft 2022 § 303(d) list, the
Horsepasture River routinely exceeds safe temperatures for trout and DEQ has consistently
applied the wrong temperature standard.1' Data used in the 2022 § 303(d) process shows with a
93% confidence level that the Horsepasture River exceeds the 20° C threshold for trout waters
20% of the time.12 DEQ must investigate and address the reasons for these exceedances,
including by applying the trout waters temperature standard in NPDES permits in this watershed.
In the 2022 § 303(d) listing process, DEQ also incorrectly applied the water quality temperature
standard for "mountain" waters ("in no case to exceed 29 degrees C") rather than trout waters
("in no case to exceed 20 degrees C") to the Horsepasture River.13 DEQ must not make the same
1° Draft Permit NC0059421.
11 See Attachment 1 at 6-7.
12 Id. at 7.
13 See North Carolina 2022 Integrated Report, supra note 9, at 895.
4

mistake here. Instead, it must apply the 20° C threshold in the Sapphire Lakes WWTP NPDES
permit.
IV. Conclusion
North Carolina has some of the best and most at -risk trout habitat in the eastern United
States. Ensuring viable trout populations persist in the future requires keeping trout streams clean
and cold. To that end, DEQ must forthrightly apply the trout waters temperature standard in
NPDES permits NC0006564 and NC0059421, as it has for permits NC0030325, NC0042358,
and NC0062961.
Please notify Henry Gargan at [e-mail] or 828-258-2023 when DEQ issues
final versions of NPDES permit Nos. NC0006564 and NC0059421. We remain available as
always to discuss any of these concerns.
Sincerely,
Henry Gargan
Associate Attorney
Southern Environmental Law Center
[e-mail]
Patrick Hunter
Managing Attorney
Southern Environmental Law Center
cc: Joe Corporon ([e-mail])
Charles Weaver ([e-mail])
Pam Behm ([e-mail])
Cam McNutt ([e-mail])
5

Attachment 1
Comments on NC 2022 draft
303(d) list

SOUTHERN
ENV RONMENTAL
CENTER
48 Patton Avenue, Suite 304 Telephone [phone]
Asheville, NC 28801 Facsimile 828-258-2024
February 28, 2022
Via First Class U.S. Mail and Electronic Mail
Cam McNutt
N.C. Department of Environmental Quality
Division of Water Resources
1617 Mail Service Center
Raleigh, NC 27699-1167
[e-mail]
Re: Comments on North Carolina's Draft 2022 $303(d) List
Dear Mr. McNutt:
On behalf of North Carolina Wildlife Federation, North Carolina Trout Unlimited, and
MountainTrue we are submitting comments on North Carolina's draft 2022 § 303(d) list of
impaired waters. The proper identification of impaired waters is essential to improving the
quality and preserving the best use of the State's waters. This is critical for people who rely on
these waters for their economic livelihoods, for spiritual renewal, and for recreation. Identifying
impaired waters is also critical for species that depend on clean water, like Southern Appalachian
brook trout. For too long, the Department of Environmental Quality ("DEQ") has ignored
exceedances of the temperature standard for trout streams when preparing its 303(d) list. As a
result, the causes of these exceedances are never assessed and remediated through preparation of
a Total Maximum Daily Load ("TMDL")—all to the detriment of anglers, fishing guides, and,
most importantly, trout and other species that rely on cold, clean water. Climate change will only
exacerbate this problem. It is past time for DEQ to begin listing waters on its 303(d) list that are
exceeding the temperature standard for trout waters, consistent with DEQ's listing
methodology.1
DEQ should also explain how it applies narrative water quality standards when preparing
its 303(d) list and fix longstanding problems with its listing and delisting methodology and water
quality monitoring program.
1 See N.C. Dep't of Envtl. Quality, 2022 303(d) Listing and Delisting Methodology (May 13, 2021). Using this
methodology, DEQ will list a stream as impaired if (1) sample size is greater than nine and (2) there is a greater than
10% exceedance rate with at least 90% statistical confidence, or there is a greater than 10% exceedance rate with
less than 90% confidence and there are more than three excursions with 90% confidence in newer data that have not
been previously assessed. Id. at 4. For purposes of the 2022 303(d) list, "newer data" consists of data collected in
2019 and 2020.
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington, DC

I. The 303(d) listing process is critical to protecting the integrity of North
Carolina's waters.
Congress passed the Clean Water Act ("CWA") in 1972 to "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 charged states with identifying "designated uses" for each jurisdictional
waterbody within its boundaries. 33 U.S.C. § 1313(d); 40 C.F.R. § 131.10. States then set
"criteria necessary to protect the uses" as water quality standards. 40 C.F.R. § 130.3.2 Water
quality standards "should, wherever attainable, provide water quality for the protection and
propagation of fish, shellfish and wildlife and for recreation in and on the water and take into
consideration their use and value for public water supplies." Id. "Such standards serve the dual
purposes of establishing the water quality goals for a specific water body and serving as the
regulatory basis for establishment of water quality -based treatment controls and strategies
beyond the technology -based level of treatment required by sections 301(b) and 306 of the
[CWA]." Id. States "are required to set water quality standards for all waters within their
boundaries regardless of the sources of the pollution entering the waters." Pronsolino v. Nastri,
291 F.3d 1123, 1127 (9th Cir. 2002). In other words, water quality standards are set without
regard to existing or future sources of pollution.
Water quality standards must be approved by the Environmental Protection Agency
("EPA") and are reviewed at least every three years. See 33 U.S.C. § 1313(a)—(c). If a new or
revised state -promulgated water quality standard is insufficient to meet the purposes of the
CWA, EPA must promulgate a sufficient water quality standard in its stead. 33 U.S.C. §
1313(c)(3).
Every two years, states must identify "water quality limited segments" of jurisdictional
waters within their borders and list them on their CWA § 303(d) list. See generally 33 U.S.C. §
1313(d). A "water quality limited segment" is any "segment where it is known that water quality
does not meet applicable water quality standards, and/or is not expected to meet applicable water
quality standards." 40 C.F.R. § 130.2(j). More specifically, states must identify water quality
limited segments for which:
(i) Technology -based effluent limitations required by [the CWA];
(ii) More stringent effluent limitations (including prohibitions) required by
either State or local authority preserved by section 510 of the Act, or
Federal authority (law, regulation, or treaty); and
(iii) Other pollution control requirements (e.g., best management practices)
required by local, State, or Federal authority are not stringent enough to
implement any water quality standards applicable to such waters.
40 C.F.R. § 130.7(b) (emphasis added). "Water quality standard," as used here, includes
"numeric criteria, narrative criteria, waterbody uses, and antidegradation requirements." Id. §
130.7(b)(3). States must also list water quality limited segments "for which controls on thermal
2 North Carolina implements this procedure by classifying waterbodies and assigning water quality standards for
each classification. See N.C. Gen. Stat. § 143-214.1; 15A N.C. Admin. Code 2B.0101, .0301.
2

discharges under section 301 [of the CWA] or State or local requirements are not stringent
enough to assure protection and propagation of a balanced indigenous population of shellfish,
fish and wildlife." Id. § 130.7(b)(2).
Once prepared, states submit draft 303(d) lists to EPA for approval. Id. § 130.7(d). EPA
may not approve a list that does not meet "the requirements of [40 C.F.R.] § 130.7(b)." Id. §
130.7(d)(2). If EPA disapproves a list, it must add wrongfully omitted water quality limited
segments back to the state's 303(d) list. Id.
States are obligated to "establish TMDLs for the water quality limited segments
identified" on that state's final 303(d) list. Id. C.F.R. § 130.7(c)(1). Total Maximum Daily Loads
are developed based on a waterbody's "loading capacity" which is the "greatest amount of
loading that a water can receive without violating water quality standards." 40 C.F.R. § 130.2(0.
A "load" is an "amount of matter or thermal energy that is introduced into a receiving water" and
"loading" is the act of introducing that matter or thermal energy into a receiving water. Id. §
130.2(e). "Loading may be either man -caused (pollutant loading) or natural (natural background
loading)." Id.
Once the TMDL determines the "loading capacity" of a waterbody, it allocates allowable
levels of pollutant discharges among nonpoint and point sources3 via load allocations4 and
wasteload allocations,5 respectively. The TMDL is the sum of the load allocations (including
background conditions) and wasteload allocations. It thus protects the overall health of
waterbodies by ensuring that point and nonpoint discharges are reduced to ensure compliance
with water quality standards.
TMDLs are also subject to EPA approval. Id. § 130.7(d). Once an approved TMDL is in
place, a waterbody no longer must be listed as "impaired" on the 303(d) list. In summary,
inclusion on the 303(d) list is the first step toward assessing water quality -limited segments and
determining load allocations and wasteload allocations through the TMDL process to ensure
water quality standards are not violated and designated uses of waterbodies are protected.
II. North Carolina's 303(d) list wrongfully excludes stream segments that violate
the temperature standard applicable to classified trout waters.
For decades, North Carolina has had a temperature water quality standard specific to
classified trout streams. Compliance with the standard is critical for keeping these streams cool
enough to sustain trout populations. Many trout waters are increasingly exceeding this
3 A "point source" is "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). Point
source discharges are regulated by National Pollutant Discharge Elimination System permits. Nonpoint source
pollution is pollution that enters waterbodies but not via "discernible, confined, discrete conveyances."
4 A "load allocation" is the "portion of a receiving water's loading capacity that is attributed either to one of its
existing or future nonpoint sources of pollution or to natural background sources." 40 C.F.R. § 130.2(g).
5 A "wasteload allocation" is the "portion of a receiving water's loading capacity that is allocated to one of its
existing or future point sources of pollution." 40 C.F.R. § 130.2(g).
3

temperature standard, threatening trout viability. Nevertheless, DEQ has consistently refused to
list these impaired streams on its 303(d) list by a combination of (1) interpreting the trout waters
temperature standard to only apply when thermal point sources discharge into the relevant stream
segment, but then (2) failing to investigate the presence of thermal point source dischargers. This
interpretation is contrary to the plain wording of the trout waters temperature standard, and
inconsistent with the requirements of the CWA and how DEQ applies the standard outside of the
303(d) context. Just last year, DEQ initiated an enforcement action in North Carolina Superior
Court alleging violations of the trout waters temperature standard even when no thermal point
source discharges were present. DEQ correctly applied the trout waters temperature standard in
that instance —the same standard it applies when preparing its 303(d) list.
A. North Carolina trout depend upon cool, clean water.
North Carolina is home to three types of trout: brook trout, rainbow trout, and brown
trout. Only brook trout are native to the state. Recent studies "suggest that the native brook trout
found in the southern Appalachians, including the mountains of western North Carolina,
represent a unique strain called Southern Appalachian brook trout."6 These trout "have endured
in North Carolina since the last ice age more than 10,000 years ago."7 "North Carolina mountain
streams once teemed with Southern Appalachian brook trout" but 19th- and 20th-century logging
practices decimated populations.8 "Extensive erosion and siltation from land disturbing activities
limited spawning success by smothering eggs and restricting their oxygen supply, and streams
that historically supported coldwater fishes were warmed due to lost canopy cover."9 Stocking of
rainbow, brown, and northern -strain brook trout also began around 1900.1° These introduced
species often outcompeted native brook trout, leading to further declines.1' Today, "the future of
the wild brook trout is of concern, and since 1900, the brook trout range is thought to have
declined by about 80 percent."12
Brook trout, brown trout, and rainbow trout require cold, clean, oxygen -rich water to
survive and thrive. Past and ongoing land management practices continue to threaten trout
habitats and these threats are exacerbated by climate change. By 2060, western North Carolina is
predicted to see 10-20 more days each year with air temperatures above 35° C (95° F), increasing
the chances that water temperatures will rise above 21.1° C (70° F)—levels that can be lethal to
6 N.C. Wildlife Res. Comm'n, Brook Trout: North Carolina Wildlife Profiles,
https://www.ncwildlife.org/Portals/0/Fishing/documents/BrookTrout.pdf, Attach. 1.
7 Doug Besler, Return of the Native?,
https://www.ncwildlife.org/portals/O/Learning/documents/WINC/Sample_07/sample_Apri107.pdf, Attach. 2.
8 Supra note 6.
9 Id.
Dr) Id.
11 Id.
12 Id.
4

trout.13 This combination of past habitat loss, ongoing poor land management practices, and
climate change poses an existential threat to many western North Carolina trout populations.
Declines in trout populations will also hurt local economies. The total economic benefit
of trout fishing in North Carolina is estimated at $383.3 million annually, supporting nearly
3,600 jobs.14 If trout habitats are further reduced, these economic benefits will be at risk.
B. North Carolina has specific temperature standards for trout waters.
Consistent with its obligations under the CWA, DEQ has classified some mountain
streams and lakes as "trout waters." See 15A N.C. Admin. Code 2B.0202(55) (defining "trout
waters"). To protect that condition, DEQ assigned trout waters a temperature standard: Their
temperature "shall not be increased by more than 0.5 degrees C (0.9 degrees F) due to the
discharge of heated liquids, but in no case to exceed 20 degrees C (68 degrees F)." 15A N.C.
Admin. Code 2B .0211(18); see also id. 2B.0301 (explaining that the "water quality standards
applicable to each classification assigned are those established in the rules of Section .0200 of
this Subchapter.").15 For purposes of compiling its 303(d) list, DEQ considers waters to be
impaired when state water quality criteria —including temperature —are exceeded in more than
10% of samples with greater than or equal to 90% statistical confidence.16 Waterbodies that meet
this numeric criterion must be listed;17 those that do not may still need to be listed if certain other
conditions are met.18 DEQ's application of these requirements in compiling its draft 2022 303(d)
report falls short for at least two reasons. First, it fails to apply the trout waters temperature
standard to multiple classified trout waters. Second, it refuses to list trout waters as impaired
even when the underlying data demonstrates impairment using DEQ's listing methodology.
13 Emma Johnson, Climate Change Challenges Trout Industry in North Carolina, Carolina Public Press (Feb. 17,
2021), https://carolinapublicpress.org/42527/climate-change-challenges-trout-industry-in-north-Carolina/ Attach. 3;
see also Kunkel, K.E., et al., 2020: North Carolina Climate Science Report, https://ncics.org/wp-
content/uploads/2020/10/NC_Climate_Science_Report_FullReport_Final_revised September2020.pdf, Attach. 4.
14 N.C. Wildlife Res. Comm'n, Mountain Trout Fishing: Economic Impacts on and Contributions to North
Carolina's Economy at iv (2015), https://www ncwildlife.org/Portals/0/Fishing/documents/Mountain%20Trout%
20Fishing%20Economic%20lmpacts%20on%20and%20Contributions%20to%20North%20Carolinas%20Economy.
pdf, Attach. 5.
15 In waters that are not classified trout waters, stream temperatures are "not to exceed 2.8 degrees C (5.04 degrees
F) above the natural water temperature, and in no case to exceed 29 degrees C (84.2 degrees F) for mountain and
upper piedmont waters and 32 degrees C (89.6 degrees F) for lower piedmont and coastal plain Waters." 15A N.C.
Admin. Code 2B .0211(18).
16 See supra note 1.
17 North Carolina carves out small exceptions for dissolved oxygen and pH in swamp waters if exceedances are due
to natural conditions. Id. at 5.
18 For example, pollutants with exceedance levels above 10% with less than 90% statistical confidence must still be
listed if at least three newer samples exceeded criteria with at least 90% statistical confidence. Id. at 3-4.
5

C. DEQ is applying the wrong temperature standard to numerous trout streams.
DEQ recognizes a 20° C limit for some trout waters in its draft 2022 303(d) list,19 but it
omits this criterion for at least forty other classified trout water segments and instead applies the
temperature standard for non -trout mountain and upper piedmont streams.20 This is the wrong
standard. Classified trout waters incorrectly assessed for compliance with the 29° C standard
applicable in mountain and upper piedmont streams generally -but not the correct 20° C trout
waters limit -include: Broad River (12498),21 Cedar Creek (12537), First Broad River (12758),
Catawba River (317), Wilson Creek (1034), French Broad River (10925), Davidson River
(11278), Avery Creek (11290), Mills River (11421), Pigeon River (10565), Allen Creek (10607),
Jonathans Creek (10684), Cataloochee Creek (10798), North Toe River (11971 and 11974),
South Toe River (12079), Cane River (12270), Valley River (3278), Cullasaja River (6497),
Nantahala River (7235 and 7236), Tuckaseegee River (8610 and 8611), Board Cove Branch
(8906), Wolf Creek (9098), Little Tennessee River (5606 and 5607), Flattop Branch (122),
Norris Branch (204), Buffalo Creek (233), Brush Creek (290), Crab Creek (299), Dan River
(6481),22 Horsepasture River (10512), Watauga River (13574 and 13605), Buckeye Creek
(12430), and Yadkin River (13904, 14027, and 14028).23 North Carolina must revise its 303(d)
list and sampling approach to assess compliance with the correct temperature standard -which,
in classified trout streams, is 20° C.
Application of the correct standard can decide whether a stream segment is listed as
impaired and therefore whether the sources of impairment will be addressed through a TMDL or
another process. For example, the draft 2022 303(d) list applies the temperature standard for
mountain and upper piedmont waters of 29° C to the First Broad River (WS-V, Tr; AU
ID:12758) and concludes that it complies relying on data from monitoring station A4800000.
That data shows that this segment was sampled 53 times during the relevant time period and
none of those samples exceeded 29° C.24 But twenty of those samples exceeded the trout waters
temperature standard of 20° C-a 38% exceedance rate at 99% confidence.25 Applying the
correct standard, this stream should be listed as impaired for temperature. DEQ must revise its
approach to apply the correct temperature standard to classified trout waters and include
waterbodies on its 303(d) list that are exceeding that standard consistent with its listing
methodology.
19 See, e.g., N.C. Dep't of Envtl. Qual., North Carolina 2022 Draft Integrated Report at 289,
https://edocs.deq nc.gov/WaterResources/DocView.aspx?dbid=0&id=2167748&cr=1 [hereafter "2022 Draft
Integrated Report"] (finding that Shooks Creek -a classified trout water- is "[m]eeting" the "20°C" water
temperature criteria based on legacy random ambient monitoring data).
20 See supra note 15.
21 The numbers provided in parentheses are the "AU ID" from the 2022 Draft Integrated Report.
22 Compounding its error, DEQ assesses compliance for this segment using the temperature standard applicable to
lower piedmont and coastal plain waters (32° C).
23 For hundreds of other classified trout waters, the 2022 Draft Integrated Report provides no indication about which
temperature standard DEQ applies.
24 See N.C. Dep't of Envtl. Qual., BasinSummAMSMCPALMP20162020and20192020_20210820.
25 Id.
6

D. North Carolina must list trout streams that are exceeding the temperature standard.
The First Broad River is not the only trout stream exceeding the trout waters temperature
standard but omitted from the draft 2022 303(d) list. The data DEQ used to prepare the draft
2022 303(d) list shows that multiple classified trout waters with ten or more sample results are
exceeding the trout waters temperature standard more than 10% of the time at greater than 90%
confidence level. DEQ must list these streams on its 2022 303(d) list. Monitoring locations
showing exceedances of the trout waters temperature standard include:
• First Broad River (A4800000)26 — 38% exceedance with 99% confidence level
• Cane River (E9850000) — 32% exceedance with 99% confidence level
• North Toe River (E8100000) — 28% exceedance with 99% confidence level
• Valley River (F4000000) — 25% exceedance with 97% confidence level
• French Broad River (E0150000) — 25% exceedance with 99% confidence level
• Pigeon River (E54950000) — 23% exceedance with 99% confidence level
• Davidson River (E0850000) — 21% exceedance with 98% confidence level
• South Toe River (E8200000) — 21% exceedance with 95% confidence level
• Horsepasture River (H6000000) — 20% exceedance with 93% confidence level
• North Toe River (E7000000) — 18% exceedance with 92% confidence level.
E. North Carolina's trout waters temperature standard is not dependent on the presence
of thermal dischargers.
Many of these streams have exceeded the trout waters temperature standard for multiple
303(d) listing cycles but have never been listed.27 Indeed, members of the public have been
raising this concern with DEQ since at least 2008.28 In response, DEQ has explained that it
"interprets [the trout waters temperature] standard to only be assessed with thermal discharges,"
i.e., thermal point source discharges subject to National Pollutant Discharge Elimination System
("NPDES") permits.29 This interpretation is contrary to the plain wording of the standard and the
requirements of the CWA, and it is inconsistent with how DEQ and other state agencies apply
the standard outside of the 303(d) context.
First, the plain wording of the temperature standard leaves no doubt that it applies
regardless of the presence of thermal discharges. In full, the standard states:
26 Data was collected at the monitoring stations provided in parentheses.
27 See N.C. Dep't of Envtl. Qual., 2020 303(d) list Integrated Report Data, BasinSummAMSCoalit1418and1718,
https://files nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2020/2020_DATA.zip.
28 N.C. Dep't of Env't and Nat. Res., Responsiveness Summary on the Draft 2008 303(d) (Category 5) List
Submitted April 1, 2008, at 13, https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/Draft%
26Revised2008ResponseSummaries.pdf, Attach. 6.
29 Id.; N.C. Dep't of Envtl. Qual., North Carolina 2020 Draft 303(d) List Public Comment Responsiveness Summary
Submitted June 3, 2021, at 51, https://deq nc.gov/media/20453/download (the trout waters temperature standard
"applies in its entirety to the evaluation of heated discharges").
7

Temperature: not to exceed 2.8 degrees C (5.04 degrees F) above the natural water
temperature, and in no case to exceed 29 degrees C (84.2 degrees F) for mountain
and upper piedmont waters and 32 degrees C (89.6 degrees F) for lower piedmont
and coastal plain waters; the temperature for trout waters shall not be increased by
more than 0.5 degrees C (0.9 degrees F) due to the discharge of heated liquids, but
in no case to exceed 20 degrees C (68 degrees F).
15A N.C. Admin. Code 2B .0211(18) (emphasis added). This standard embeds two prohibitions,
only the first of which is dependent on the presence of thermal dischargers. The first prohibition
is that thermal dischargers may not increase stream temperature by more than 0.5° C. For
example, heated discharges that cause stream temperatures to increase from 17 to 18° C are not
allowed. The second prohibition is that stream temperatures shall "in no case"—i.e., under no
circumstances —exceed 20° C. The second prohibition is not dependent on the presence of
thermal discharges but provides a temperature threshold that shall not be exceeded "in any case."
This is consistent with the grammatical structure of the standard, which consists of two
clauses. The first clause, related to the discharge of heated liquids, is separated from the second
by a comma and a "but." The comma indicates a break from the preceding language. And use of
"but" indicates that the second clause applies "notwithstanding" the first.30 In other words,
notwithstanding the limit on temperature increases caused by thermal discharges, the temperature
shall "in no case" exceed 20° C.
The first half of the general surface -water temperature standard lends even more
contextual support for enforcing the 20° C limit regardless of whether thermal point source
discharges are present. The full standard starts by setting a delta limit applicable to thermal
discharges: Temperature may not be increased by more than 2.8° C above baseline.31 It then
immediately pivots to a limit applicable to all waters: Temperatures are "in no case to exceed" 29
or 32° C, depending on location. The trout waters standard is functionally identical: It sets a delta
limit applicable to thermal discharges —temperature may not be increased by more than 0 5° C—
then immediately pivots to a limit applicable to all trout waters: temperatures are "in no case to
exceed 20 degrees C." DEQ does not suggest that the 29 and 32° C limits only apply to thermal
point source discharges. Given this context, DEQ cannot say that functionally identical language
in the 20° C limit commands a completely different result.
Understanding the 20° C limit to apply regardless of the presence of thermal point source
dischargers is also the most logical interpretation of the trout waters temperature standard. Trout
waters are subject to a more stringent temperature standard because high stream temperatures are
lethal to trout. It makes little sense to subject trout to high stream temperatures attributable to
30 But, Merriam Webster (l lth ed. 2003), https://www merriam-webster.com/dictionary/but.
31 Although this clause does not itself mention discharges of heated liquids, DEQ interprets this standard to prohibit
thermal dischargers from increasing water temperatures by more than 2.8° C. See, e.g., Dep't of Envtl. Quality,
NPDES Permit NC0000396 at 5 (Apr. 9, 2020), https://files nc.gov/ncdeq/Coal%20Ash/2020-actions/NC0000396-
Final-Permit.pdf. EPA also understands the 2.8° C limit to apply to thermal discharges. See EPA, NC Thermal
Water Quality Standards, https://www.epa.gov/sites/default/files/2014-12/documents/nc-thermal-wqs.pdf ("The rule
limits thermal discharges to 2.8 degrees C (5.04 degrees F) above the natural water temperature and includes further
restrictions based on geographic regions of the state").
8

nonpoint source discharges but prohibit the same increases in temperature attributable to point
source discharges. To the contrary, the standard applies regardless of whether the pollution is
caused by point or nonpoint sources.
Second, DEQ's interpretation cannot be squared with the requirements of the CWA. As
discussed above, the CWA requires states to identify designated uses for waterbodies and then
set criteria to protect those uses. See 40 C.F.R. § 130.3. "Water quality standards reflect a state's
designated uses for a water body and do not depend in any way upon the source of pollution."
Pronsolino, 291 F.3d at 1137. DEQ's interpretation turns this on its head by arguing that
application of North Carolina's trout waters temperature standard —and therefore protection of
designated uses —turns on whether pollution is coming from point sources. North Carolina could
not promulgate, and EPA could not approve, a water quality standard that restricts point source
temperature pollution but allows unlimited nonpoint source temperature pollution to enter a
stream because that standard would not protect the designated uses of the waterbody. North
Carolina state law reaches this same conclusion: "[W]ater quality standards relate to the
condition of waters as affected by the discharge of sewage, industrial wastes, or other wastes
including those from nonpoint sources and other sources of water pollution." 15A N.C. Admin.
Code 02B .0205 (emphasis added).
Neither can DEQ argue that its trout waters temperature standard applies to point and
nonpoint sources generally except in the 303(d) context where only point source discharges are
relevant. States must list waterbodies on 303(d) lists that are exceeding water quality standards
regardless of "whether a water body receives pollution from point sources only, nonpoint sources
only, or a combination of the two." Pronsolino, 291 F.3d at 1132-33. This is consistent with
EPA's "long-standing interpretation of section 303(d)" that the "listing requirement applies to
waters impaired by point and/or nonpoint sources."32 Specific to temperature, EPA has
previously advised that:
[W]aterbodies that do not meet an applicable State water quality criterion for
temperature or a designated use due to temperature should be listed. Listing is
appropriate because the applicable water quality standard is not met. Heat, the cause
of the impairment, is defined as a "pollutant" under section 502(6) of the Clean
Water Act and can be allocated. It is immaterial to the listing decision whether the
source of the temperature -related impairment is a thermal discharge or solar
radiation. Both are sources of heat, and the heat can be allocated through the TMDL
process.33
32 U.S. Envtl. Protection Agency, Decision Document for the Approval of the North Carolina Department of
Environmental Quality 2018 Section 303(d) List at 4 (May 22, 2019),
https://files nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2018/20190522-NC-208-303d-Approval-
Package.pdf.
33 U.S. Envtl. Protection Agency, National Clarifting Guidance for the 1998 State and Territory Section 303(d)
Listing Decisions at 5, https://www.epa.gov/sites/production/files/2015-10/documents/lisgid.pdf, Attach. 7.
9

Indeed, EPA recently prepared a TMDL to address exceedances of temperature water
quality standards promulgated to protect salmon and steelhead in the Pacific Northwest.34 That
analysis noted, as an example, that "temperature TMDLs typically identify loss of riparian shade
as a nonpoint source of heat."35
In short, to comply with the CWA, North Carolina may not 1) interpret its trout waters
temperature standard as only applicable to temperature increases caused by point source
discharges or 2) otherwise exclude effects from nonpoint source discharges when preparing
303(d) lists.
Third, DEQ's interpretation of the trout waters temperature standard as only relating to
temperature increases attributable to thermal point source discharges is inconsistent with how
DEQ and other state agencies apply the standard outside of the 303(d) context. For instance, the
North Carolina Forest Service has promulgated "performance standards for the protection of
water quality during silvicultural activities." 2 N.C. Admin. Code 60C.0101. One performance
measure requires "[s]hade ... [to] be retained to protect [perennial] streams from temperature
fluctuations that result in a violation of a water quality standard of the Environmental
Management Commission as contained in Rule 15A NCAC 2B . 0211." Id. 60C.0208 (emphasis
added).36 While the performance measure is not specific to trout waters, it shows that the North
Carolina Forest Service understands that nonpoint source pollution can cause a violation of
stream temperature water quality standards.
Elsewhere, DEQ itself has confirmed that the 20° C trout waters temperature standard is
an absolute prohibition regardless of whether a stream is heated by point or nonpoint source
discharges. With funding from EPA, DEQ completed a study in 2013 to assess risks to streams
from headwater impoundments.37 There, DEQ confirmed that trout waters "have a maximum
allowable [temperature] value of 20°C."38 The study ultimately found that "[d]esignated trout [
waters showed extremely high levels of exceedences [sic] of the 20°C maximum" with no
discussion of whether those exceedances were attributable to point or nonpoint source
discharges.39
Finally, and most significantly, DEQ has filed enforcement actions against private
landowners for causing exceedances of the trout waters temperature standard even when no
thermal point source discharges were involved. These enforcement actions thus relied on an
34 See U.S. Envtl. Protection Agency, Columbia and Lower Snake Rivers Temperature Total Maximum Daily Load
(Aug. 13, 2021), https://www.epa.gov/system/files/documents/2021-08/tmdl-columbia-snake-temperature-
08132021.pdf, Attach. 8.
35 Id. at 33 n.9 (emphasis added).
36 See also North Carolina Forestry Best Management Practices Manual to Protect Water Quality,
https://www.ncforestservice.gov/publications/BMP2021 /2021NCFSBMPManual.pdf.
37 See N.C. Dept' of Env't Qual, Assessing Impacts Due to Small Impoundments in North Carolina to Support 401
Certification Policies (Feb. 28, 2013), http://www.ncwetlands.org/wp-content/uploads/Impacts-Due-to-Small-
impoundments-2013-report.pdf, Attach. 9.
38 Id. at 23.
39 Id. at 41.
10

interpretation of the temperature standard DEQ has sought to disclaim in the 303(d) listing
context.
On June 30, 2021, DEQ issued a Notice of Violation to a landowner in Surry County,
North Carolina, for violations of water quality standards stemming from widespread clearing of
forested lands. DEQ did not allege that the clearing activities resulted in a point source discharge
but did state that:
Title 15A North Carolina Administrative Code 2B .0211 (18) requires
"Temperature: not to exceed 2.8 degrees C (5.04 degrees F) above the natural water
temperature, and in no case to exceed 29 degrees C (84.2 degrees F) for mountain
and upper piedmont waters ...; the temperature for trout waters shall not be
increased by more than 0.5 degrees C (0.9 degrees F) due to the discharge of heated
liquids, but in no case to exceed 20 degrees C (68 degrees F);" Forested buffers
adjacent to streams are important measures in regulating water temperature of
streams, particularly in shallow tributaries as exists on the subject Parcels. Clearing
of the vegetated buffers may results in increased temperatures of surface waters
draining to Ramey Creek and Big Pine Creek. Temperature field readings collected
by DWR staff on June 28, 2021 constitute violations of NC Water Quality
Standards.4o
The landowner failed to rectify the violations and on August 6, 2021, DEQ filed a
Verified Complaint and Motion for Preliminary Injunctive Relief in Surry County Superior
Court.41 The Complaint states:
Forest buffers adjacent to streams are important measures in regulating water
temperature of streams. Clearing of the vegetated buffers may result in increased
temperatures. In Trout Waters, the temperature is not to, in any case, "exceed 20
degrees C (68 degrees F)." 15A NCAC 2B .0211(18).42
The Verified Complaint continued by explaining that on "June 28, 2021, [DEQ] staff
conducted water quality sampling. [DEQ]'s water quality samples show several temperature
exceedances above the maximum allowable temperature of 20°C. 15A NCAC 2B .0211(18)."43
It explained that "clear -cutting trees near the border of streams removes shade and can cause
water temperature to exceed the regulatory limit for trout waters." Shade removal is not a point
source thermal discharge, though DEQ still recognized that it could contribute to violations of
the temperature standard for trout waters.44 The Verified Complaint concluded by alleging that
4o Attach. 10 (emphasis added). On October 5, 2021, DEQ issued a Notice of Continuing Violation related to
activities on the same parcels of land and stating more explicitly that "[t]emperature readings above 68 degrees...
[constitute] violations of NC Water Quality Standards." Attach. 11. Sixty-eight degrees is the maximum temperature
allowed in classified trout waters.
41 Attach. 12.
42 Id. at ¶ 15 (emphasis added).
43Id.at ¶43.
44 Id.
11

the landowner remained in violation of North Carolina's water quality laws, including the
temperature standard applicable to trout streams, and asking the court to order the landowner to
prepare a "Temperature Restoration Plan" to "restore streams to the proper temperature for
trout."45
We applaud DEQ for taking action to resolve the water quality violations in Surry
County. But the enforcement action removes any doubt that DEQ understands the trout waters
temperature standard to apply in situations where thermal point source discharges are not present
and to prohibit all exceedances of the 20°C temperature standard. DEQ cannot take the opposite
position now as it compiles its 2022 303(d) list. It must list streams as impaired where data
shows the streams exceeding the trout waters temperature standard consistent with DEQ's listing
methodology.
F. Point source dischargers are present on or upstream of several North Carolina trout
streams exceeding the trout waters temperature standard.
Based on this faulty application of the trout waters temperature standard when compiling
past 303(d) lists, DEQ has listed some trout streams as "Category 3a" in its 2022 Draft Integrated
Report.46 Category 3a is reserved for instances "where data are insufficient to determine if a
parameter is meeting or exceeding criteria."47 Presumably, these streams have been listed under
Category 3a because DEQ did not assess the presence of thermal point source dischargers when
compiling its 303(d) list and, because it interpreted the standard to only apply when a thermal
point source discharger was present, concluded it had insufficient data to know whether the
standard was exceeded. As explained above, this interpretation of North Carolina's temperature
standard for trout waters is inconsistent with the CWA and DEQ's application of the standard
outside of the 303(d) arena. But even under DEQ's incorrect interpretation of the standard, DEQ
should have listed more segments because point source dischargers are, in fact, present on or
upstream of multiple segments exceeding the trout waters temperature standard. The list
provided below is not comprehensive and was compiled using information available on DEQ's
"Online GIS Permits Map."48 It also does not encompass general NPDES permits.
Data relevant to the French Broad River (AU ID 10925) is collected at monitoring station
E0150000. That data shows a 25% exceedance rate of the trout waters temperature standard at
99% confidence leve1.49 NPDES Permit Nos. NC0000311,50 NC0021946,51 NC0024295,52
45 Id. at ¶¶ 52-56; Prayer for Relief ¶ 2.
46 See, e.g., 2022 Integrated Report, Little River (AU ID 538) (listed as Category 3a for trout waters temperature
standard).
47 N.C. Dep't of Envtl. Quality, 2020 Integrated Report Category Assignment Procedure at 5,
hftps://deq.nc.gov/media/17840/download.
48 See https://data-ncdenr.opendata.arcgis.com/apps/ncdenr::permits-map/explore
49 Supra note 24.
5o Attach. 13.
51 Attach. 14.
52 Attach. 15.
12

NC008622353 all appear to discharge into or upstream of this stream segment. None of these
permits impose limits, aside from monitoring requirements, related to temperature except Permit
No. NC0000311, which states that the "temperature of the effluent shall be such as not to cause
an increase in the temperature of the receiving stream of more than 0.5°C and in no case cause
the ambient water temperature to exceed 20°C."
Data relevant to the Horsepasture River (AU ID 10512) is collected at monitoring station
H6000000. That data shows a 20% exceedance rate of the trout waters temperature standard with
93% confidence.54 NPDES Permit Nos. NC005942155 and NC005943956 discharge into,
upstream, or into tributaries upstream of this stream segment. Neither of these permits imposes
limits related to temperature except for monitoring requirements.
There are two monitoring stations on the North Toe River (E7000000 and E8100000).
They both show greater than 10% exceedance of the trout waters temperature standard at greater
than 90% confidence leve1.57 Multiple hard rock mines discharge into the North Toe River.
These mines have some combination of general permits, NPDES stormwater permits, and
NPDES wastewater permits including but not limited to NPDES Permit Nos. 0000175, 0000361,
0084620, 58 0085839, 0000400, and 0000353.59 None of these wastewater permits appear to
impose any limitation related to temperature beyond monitoring. NPDES Permit No. 0021423
also discharges into the North Toe River and lacks requirements related to temperature beyond
monitoring.6°
The single monitoring station on the Valley River (F4000000) also documents 25%
exceedance of the trout waters temperature standard with 97% confidence.61 NPDES Permit No.
NC0020800 discharges into the Valley River and includes no limitation on temperature
discharges beyond monitoring.
In conclusion, DEQ has for too long ignored its obligation to include on its 303(d) list
stream segments that are exceeding the temperature standard applicable to trout waters. DEQ's
data shows this standard has been exceeded more than 10% of the time at greater than 90%
confidence level on multiple trout waters that DEQ has refused to list as impaired. These
exceedances may be attributable to a combination of point and nonpoint source discharges. DEQ
must list these streams as impaired on its 303(d) list as a first step towards addressing these
exceedances.
53 Attach. 16.
54 Supra note 24.
55 Attach. 17.
56 Attach. 18.
57 Supra note 24.
58 Attach. 19
59 Attach. 20.
60 Attach. 21.
61 Supra note 24.
13

III. DEQ must explain how it assesses compliance with narrative water quality
standards.
When preparing its 303(d) list, DEQ must list those waterbodies for which existing
requirements "are not stringent enough to implement any water quality standards applicable to
such waters" including water quality standards based on "narrative criteria."40 C.F.R. §
130.7(b). DEQ's draft 2022 303(d) list and listing methodology fail to disclose how narrative
criteria are considered in the 303(d) process. DEQ must correct this oversight.
Of particular importance, North Carolina's toxic substances standard 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).
Compliance with this standard is critical especially for emerging contaminants, such as per- and
polyfluoroalkyl substances ("PFAS"), for which DEQ has yet to promulgate a numeric water
quality standard. EPA recently recognized PFAS as "an urgent public health and environmental
issue facing communities across the United States."62 And DEQ has recognized that PFAS "meet
the definition of `toxic substance' under North Carolina law.63 DEQ must disclose how it is
applying its narrative toxic substances water quality standards to ensure that waterbodies
contaminated by PFAS (and other emerging contaminants that lack numeric water quality
criteria) are properly listed on the state's 303(d) list.
IV. DEQ's delisting methodology remains statistically unsound.
For several years, multiple groups have pointed out flaws in DEQ's delisting
methodology. Those concerns remain, and we incorporate previous comments by reference
here.64
Briefly, North Carolina's methodology for delisting waters that are impaired for non-
toxic pollutants is flawed because it fails to reverse the null hypothesis used for listing decisions.
Stated differently, while it is appropriate to complete statistical analysis assuming stream
segments are not impaired when evaluating whether a segment should be listed, that assumption
must be reversed when evaluating whether a segment should be delisted because already listed
segments must be presumed impaired until proven otherwise. Instead, DEQ applies the same
method for both listing and delisting—whether waterbodies exceed criteria more than 10% of the
time with more than 90% confidence —and attempts to cure the imbalance in statistical
confidence by adding a second step to its delisting decisions. But this second step fails to cure
62 EPA, PFA Strategic Roadmap: EPA's Commitments to Action 2021-2024, at 1, available at
https://www. epa. gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf.
63 Amended Complaint, N.C. Dept. of Environmental Quality v. Chemours, 17 CVS 580, 32 (N.C. Super. 2018),
Attach. 22 (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).
64 See Letter from Spencer Scheidt, SELC, to Andy Painter, DEQ at 1-9 (Apr. 2, 2021), Attach. 23.
14

the fundamental flaw with the analysis —failure to reverse the null hypothesis —and allows DEQ
to remove impaired waterbodies from the list with less statistical confidence than required to list
them in the first place.
At the second step, DEQ allows previously listed waters with an exceedance rate greater
than 10% with but less than 90% statistical confidence to be delisted "if there are less than 2
excursions of the criterion in newer data that have not been previously assessed." 65 For those
previously listed waters with less than a 10% exceedance rate, waters are delisted "if there is
greater than 40% statistical confidence that there is less than a 10% exceedance of the criterion
or if there are less than 3 excursions of the criterion in newer data that have not been previously
assessed."66 On their own, these exceedance limits are arbitrary and fail to account for sample
size. They also fail to bring the delisting methodology to the 90% confidence level required for
sound statistical analysis.67
This has real consequences. The Cane River is an important trout stream and is also home
to the endangered Appalachian elktoe mussel, both of which are threatened by turbidity and
sediment deposition. In 2018, the Cane River was listed as impaired for turbidity. For the 2020
303(d) listing cycle, DEQ assessed data from forty-nine sampling events, eight of which
demonstrated violations of the turbidity standard. 68 Applying DEQ's listing methodology this
translates to a 16.3% exceedance level with 88.8% confidence, just shy of the required 90%. Had
DEQ appropriately reversed the null hypothesis, these same numbers would translate to a
delisting decision confidence level of 5.2%.69 Yet because the Cane River had a greater than
10% exceedance rate with just under 90% confidence, DEQ moved to step two of its delisting
methodology to consider whether "there are less than 2 excursions of the criterion in newer data
that have not been previously assessed." Of the sixteen newer samples related to the 2020 303(d)
list, only one demonstrated an exceedance of the turbidity standard, leading DEQ to delist the
Cane River to Category 3a (insufficient data). Notably, DEQ would have needed to show one
exceedance out of at least thirty-eight samples to reach a 90% confidence level for its delisting
decision based on this "newer" data only.
This 303(d)-listing cycle, the "newer data" under DEQ's methodology shows the Cane
River was sampled eleven times and two of those samples exceeded the water quality standard
for turbidity —an exceedance rate of 18%.70 Thus the Cane River continues to exceed water
65 N.C. Dep't of Envtl. Quality, 2022 303(d) Listing and Delisting Methodology at 4 (May 13, 2021),
https://deq.nc.gov/media/19374/download.
66 Id.
67 Any "statistical conclusion that has a confidence level of less than 90% is considered not acceptable by most
statistics practitioners." Pi-Erh Lin, Duane Meeter, & Xu-Feng Nui, A Nonparametric Procedure for Listing and
Delisting Impaired Waters Based on Criterion Exceedances at 7 (2000),
https://www.waterboards.ca.gov/water issues/programs/tmdl/records/state board/2003/ refl913.pdf.
68 See N.C. Dep't of Envtl. Quality, Div. of Water Res., BasinSummAMSCoalit1418and1718 [hereinafter "2020
Data"], https://files nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2020/2020_DATA.zip.
69 The delisting "level of confidence" was calculated using the Excel BINOM.DIST function: 1-
[BINOM.DIST(#exceedances, #samples, 10% exceedance rate, TRUE)].
70 Supra note 24.
15

quality standards more than 10% of the time, but DEQ proposes to keep it listed under Category
3a based on its faulty delisting methodology. Had DEQ used a statistically sound delisting
approach, the Cane River would never have been removed from the impaired list in the first
instance and the reasons for its turbidity impairment should have been assessed and mitigated
through preparation of a TMDL. Instead, it continues to routinely exceed water quality standards
but remains indefinitely listed in Category 3a to the detriment of species like Appalachian elktoe
that require cool, clean water to survive.
DEQ also relies on the 10% exceedance rate to assess impairment for toxic pollutants. As
EPA has explained, this approach is inappropriate for toxics.71 Nevertheless, DEQ has never
"provided a scientifically defensible rationale to support [its] Listing Methodology for toxics."72
DEQ has failed to do so again as part of its draft 2022 303(d) list. During each of the past four
303(d) cycles EPA has rejected DWR's toxics findings and independently reviewed North
Carolina's water quality data to determine whether all waterbody impairments were identified —
it will be required to do so again in 2022.
V. DEQ must collect data at times and locations that reveal the full extent of
pollution.
Finally, we reiterate and incorporate the concerns raised by several groups in comments
on the 2020 303(d) list related to deficiencies in DEQ's monitoring network and sampling
approach.73 Specifically, an ambient monitoring program that samples at arbitrary intervals and
allows sampling to be delayed for "bad weather" with no limitation is likely to underreport
exceedances for pollutants like turbidity. DEQ's ambient monitoring locations also appear to
avoid some of the most problematic areas, resulting in underreporting pollution and unjustified
delistings. We are mindful of limitations in agency resources and competing agency priorities,
but we encourage DEQ to work to develop a more representative monitoring network.
VI. Conclusion
We appreciate the opportunity to submit comments on North Carolina's draft 2022
303(d) list. We request a meeting with DEQ to discuss the trout waters temperature standard. In
particular, we would like to better understand DEQ's position regarding application of the
standard and discuss ways to mitigate rising temperatures in trout streams.
71 U.S. Envtl. Protection Agency, Decision Document for the Partial Approval of the North Carolina Department of
Environment Quality 2016 Section 303(d) List at 12 (Dec. 8, 2016),
https://files nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2016/NC2016_303dDecisionPackage20161208
%20%28003%29.pdf.
72 Id. at 22.
73 See supra note 64 at 15-17.
16

Sincerely,
Patrick Hunter
Managing Attorney
[e-mail]
Susannah Knox
Senior Attorney
[e-mail]
cc via email only:
Lauren Petter, EPA Region 4, [e-mail]

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PUBLIC NOTICE
N.C. DEPARTMENT OF ENVIRONMENTAL QUALITY INTENT
TO ISSUE NPDES WASTEWATER DISCHARGE PERMIT #NC0006564
Public comment or objection to the draft modification is invited. All com-
ments received by October 3,2022, will be considered in the final determi-
nation regarding permit issuance and permit provisions.
PERMIT APPLICATION
The Baxter Health Corporation, [65 Pitts Station Rd, Marion, NC 28752],
has applied for a Major Modification of its NPDES wastewater permit
(NC0006564), McDowell County. The facility discharges treated process
and sanitary wastewater to North Fork Catawba River in the Catawba Riv-
er basin. Some parameters are water quality limited. This discharge may
affect future allocations in this portion of the Catawba River basin. The lo-
cation of Outfall 001 is: Latitude: 35°50'10"; Longitude: 82°00'Ol".
Printed copies of the draft modification and related documents may be re-
viewed at the department's Asheville Regional Office. To make an appoint-
ment to review the documents, please call 828-296-4500.
Public comment on the draft modification should be mailed to:
Wastewater Permitting,
1617 Mail Service Center, Raleigh, N.C., 27699-1617.
Public comments may also be submitted by email to:
publiccommentsC8 ncdenr.00v Please be sure to include "Baxter" in the
email's subject line.
Publish: September 1, 2022.