NC0000272_EPA numeric interpretation of NC Water Quality Standard Color_20180131

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Date: January 31, 2018
Re: EPA's Numeric Interpretation (50) of North Carolina's Narrative
Water Quality Standard for Color
Introduction
Since 1988, the Canton pulp and paper mill ("Canton Mill") has operated with a variance from
North Carolina's narrative water quality standard for color. The United States Environmental
Protection Agency ("EPA"), in the early 1980's, "interpreted" North Carolina's narrative standard to
require an in stream limit of 50 platinum cobalt units ("pcu") of true color per liter of water for the
Pigeon River in North Carolina.1 Since the effluent discharge from the Canton Mill could not comply
with a 50 pcu standard, the Canton Mill applied for and received from the NPDES Committee of the
North Carolina Environmental Management Commission ("EMC"), a variance from North Carolina's
water quality standard for color in 1988. The color variance has remained in effect since 1988, with
revisions in 1997, 2001 and 2010.
Due to substantial reductions in effluent color2 and continued improvement in aquatic life,
Evergreen Packaging believes that color, at current levels in the Pigeon River, complies with North
Carolina's narrative water quality standard, and the 50 color unit interpretation is no longer valid or
necessary.
This memorandum discusses the history and basis of the 50 unit color standard, The
memorandum also presents an argument that:
1) North Carolina has and has had a narrative water quality standard for color;
2) The 50 pcu interpretation of the standard was never adopted or approved as a standard by
EPA, North Carolina or Tennessee;
3) The final decision in the litigation arising out of EPA's assumption of permitting authority for
the Canton Mill NPDES Permit in the 1980's did not approve the 50 pcu standard; and
The Fact Sheet for the Canton Mill NPDES Permit, dated Nov. 30, 1987, beginning on page 5, discusses and
recaps EPA's interpretation of NC's narrative standard. The discussion in the Fact Sheet indicates that EPA also
interpreted Tennessee's narrative standard to be 50 for the Pigeon River in Tennessee. Tennessee does not agree that
its narrative color standard has been "interpreted" to be 50.
2 Since 1988, the Canton Mill has reduced effluent color from approximately 380,000 lbs per day to approximately
36,000 lbs per day — a reduction of more than 90%.

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4) Even if 50 were an appropriate "interpretation" of the standard in the 1980's, the interpretation
is no longer appropriate or scientifically defensible.
Background and History
The NPDES Permit for the Canton Mill in Haywood County, North Carolina (then owned by
Champion International Corporation) expired on June 30, 1981. The permit, under which the Canton
Mill had been operating, included no effluent limit for color. North Carolina took no action to renew
the permit although the Canton Mill continued to operate. The state of Tennessee and third parties in
Tennessee lobbied North Carolina to take action and provided information to North Carolina and EPA
tending to show that effluent from the Canton Mill was causing water quality violations in Tennessee.
North Carolina and Tennessee met in the first part of 1983 to discuss terms for a renewed NPDES
permit. When Tennessee and NC could not agree, EPA convened a meeting at Region IV in Atlanta
in July, 1983.
Based on information available at the time, EPA determined that a 50 platinum cobalt unit
standard for color was necessary to protect fish and aquatic life and aesthetic water quality in the
Pigeon River.3 EPA relied on the 1968 and 1976 Water Quality Criteria books, a 1968 report on the
Pigeon River by the Federal Water Pollution Control Administration, a 1951 report on the Pigeon
River and a 1983 study by the National Council for Air and Stream Improvement ("NCASI") on color
perception. The NCASI study found that 90% of the observers in the study were able to detect color
increases of 40 units or more. EPA added 40 color units to 10 (what it believed to be approximate
background true color) and came up with the interpretation of 50.4
EPA did not go through any formal rule making process regarding the 50 unit true color
standard. No public hearing was held.
North Carolina's narrative water quality standard is set forth at Title 15A North Carolina
Administrative Code, 2B.0211 0 (12).
Color is limited to "... only such amounts as shall not render the
waters injurious to public health, secondary recreation, or to aquatic
life and wildlife, or adversely affect the palatability of fish, aesthetic
quality or impair the waters for any designated uses. "5
In October, 1984, North Carolina issued a draft NPDES Permit for the Canton Mill. The
permit did not include a requirement that the Mill's discharge comply with any color standard,
narrative or numeric. The permit required Champion to evaluate an ultrafiltration technology and
utilize it to remove 75% of the effluent color if the technology were technically feasible. A public
hearing on the draft NPDES Permit was held in January, 1985. EPA and Tennessee filed formal
objections to the Draft NPDES Peiiuit.
3 See Champion International Corporation v. United States Environmental Protection Agency, 648 F. Supp. 1390
(W.D.N.C.) 1986.
4 This information was provided by Mike McGhee, former Water Quality Section Chief at EPA Region IV.
5 The narrative standard, as adopted initially, did not include an aesthetic component. The standard was amended to
include such a component.
2

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After the public hearing, North Carolina amended its narrative water quality standard to
include an aesthetic criterion for the first time. EPA asked North Carolina to include a provision in the
NPDES permit requiring the Canton Mill to meet the amended standard.
Approximately one month after the public hearing, North Carolina issued the final NPDES
Permit. The fmal permit was the same as the draft except it included language authorizing the
Environmental Management Commission to require additional measures if the ultrafiltration
technology did not remove 75% of the effluent color.6 North Carolina did not notify Tennessee that
North Carolina was rejecting Tennessee's recommendations about the permit as required by Section
402(b) (5) of the Clean Water Act. North Carolina also failed to give EPA an opportunity to comment
on the fmal permit as required by 40 CFR 1243. 44.7
In July, 1985, EPA notified North Carolina that the final NPDES Petinit was not a valid
permit due to the procedural flaws. In August of 1985, EPA sent North Carolina a formal written
objection. The written objections were:
1) Failure to assure compliance with the NC narrative standard because the permit provided no
basis for how NC "... interprets, applies or enforces its narrative color standards (aesthetic
quality)";
2) Failed to require the Canton Mill to comply with either NC or Tennessee standard; and
3) Failed to assure compliance with the Tennessee standard because it did not require that a 50
color unit standard would be met at the state line when effluent color was in excess of 800
pcu.
8
The Litigation
In November, 1985, EPA notified Champion and North Carolina that EPA had assumed
permitting authority for the Champion Mill. Champion sued EPA, alleging that EPA's actions in
taking over the permitting process and requiring Champion to meet a 50 color unit standard were
arbitrary and capricious. The United States District Court for the Western District of North Carolina
granted summary judgment in favor of EPA, finding that EPA had not acted arbitrarily and
capriciously in assuming periiiitting authority and by including the requirement in the Permit that the
Canton Mill meet a 50 pcu color limit in the Pigeon River.
In the litigation, Champion and North Carolina argued that the requirement to meet a 50 pcu
standard was arbitrary and capricious because Tennessee had never adopted a water quality standard
of 50, or any "interpretation of its narrative standard to be 50." North Carolina's specific legal
objection was that the interpretation of 50 had not been through the formal approval process described
in Section 303 of the Clean Water Act.
6 Effluent color concentration in 1985 was approximately 700-800 pcu and ranged as high as 1200 pcu. Today it is
approximately 156 pcu.
7 See Champion International, supra.
s Ibid.
9 North Carolina and Tennessee intervened in the litigation.
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The District Court held that EPA did not act arbitrarily and capriciously in coming up with the
50 pcu standard. The Court's opinion referenced a number of reports in the record supporting the 50
pcu limit. Those reports were:
1) Water Quality Criteria, National Technical Advisory Committee to the Secretary of the
Interior (1968).
2) "Report on the Pollution of the Interstate Waters of the Pigeon River" (Tennessee -North
Carolina), Federal Water Pollution Control Administration (Feb. 1968).
3) Water Quality Criteria, U.S. EPA (1976).
4) Churchill, M., Natural Reduction of Papermill Color in Streams, "Sewage & Industrial
Wastes", 661 (Vol. 23, No. 5, May 1951).
5) The 1983 NCASI Technical Bulletin on color perception.
In fact, there is no specific mention in the reports of a 50 pcu standard. There is no finding or
conclusion in the various reports that a 50 pcu standard is necessary to protect aquatic life or
aesthetics.
The 1976 Water Quality Criteria Book says the following with respect to the aesthetic
component of color; "Because of the extreme variations in the natural background amounts of
color it is meaningless to attempt numerical limits. The aesthetic attributes of water depend on
one's appreciation of the setting." Water Quality Criteria Book 1976, p. 102. The 1976 Book says
the following with respect to aquatic life: "The effects of color in water on aquatic life principally
are to reduce light penetration and thereby generally reduce photosynthesis by phytoplankton and
to restrict the zone for vascular plant growth." The only numeric standard referenced in the 1976
Water Quality Criteria Book is 75 platinum cobalt units, recommended as the maximum for drinking
water.
There are two references to color in the 1968 Water Quality Criteria Book. The first, on page
34, reads: "For effective photosynthetic production of oxygen, it is required that that 10% of the
incident light reach the bottom of any desired photosynthetic zone in which adequate dissolved
oxygen concentrations are to be maintained." And the second, on page 48: "Color in excess of 50
platinum cobalt units may limit photosynthesis and may have a deleterious effect upon aquatic life,
particularly phytoplankton and benthos."
The Report on the Pollution of the Interstate Waters on the Pigeon River by the Federal Water
Pollution Control Administration, February 1968, includes information about levels of color in the
Pigeon River at various locations, but does not include any recommendation for an instream standard
of 50 platinum cobalt units. M. Churchill's, "Natural Reduction of Papermill Color in Streams," an
article in Sewage & Industrial Wastes, 661 (Vol. 23, No. 5, May 1951) was a study designed to see if
high colors discharged into streams by paper mills were reduced downstream by dilution from other
sources or if there were some reduction in color due to bleaching or other processes.'°
1° Churchill, supra, p.661
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The Court also referred to the NCASI study in which a color change of 40 color units was
noted by 90% of the observers.11 Finally, the Court also noted that EPA had decided in the 1970's to
regulate color on a case -by -case basis.12
Champion appealed the decision of the District Court to the 4th Circuit Court of Appeals. The
4th Circuit determined that the District Court had jurisdiction to hear the case to decide whether or not
EPA had acted arbitrarily and capriciously in assuming permitting authority from North Carolina.
The 4th Circuit further held that once the District Court determined EPA had not acted arbitrarily and
capriciously in assuming permitting authority, the District Court should have dismissed the case. So
the 4th Circuit remanded the case to the District Court with instructions that the judgment of the
District Court be vacated and the case be dismissed for lack of subject matter jurisdiction.13
The 1989 NPDES Permit for the Canton Mill
Following the decision of the District Court in 1986, EPA continued with the development of
the NPDES Permit for the Canton Mill. The draft permit developed by EPA included a requirement
to meet a 50 true color unit standard. The Fact Sheet for the permit, dated November 30, 1987, says
the following with respect to color
The limitation for color is based upon meeting the North
Carolina Water Quality Standard for color. The requirement to meet
an instream concentration for apparent color of 50 Mg/l Platinum
Cobalt units is based on EPA's interpretation of the North Carolina
narrative standard for color. EPA requested that North Carolina
provide an interpretation of this standard on May 13, 1986. North
Carolina failed to provide an adequate interpretation to assure
compliance with the standards. In the December 1, 1986
Memorandum of Decision of the Federal District Court for the
Western District of North Carolina (Champion vs. EPA), the Court
upheld EPA's authority to object to the North Carolina permit on the
grounds that it failed to comply with the requirements of the Clean
Water Act. At this point, it became necessary for EPA to interpret the
standard in order to develop federal permit limits for color that would
meet North Carolina and Tennessee law.
The basis for EPA's selection of a value of 50 color units for
apparent color as a numerical interpretation of the North Carolina
color standard is similar to EPA's rationale for selecting 50 color
units for the Pigeon River in Tennessee based on interpretation of the
State of Tennessee Water Quality Standards. The narrative criterion
11 The NCASI study does not say whether or not the observers found an increase of 40 true color units to be
acceptable, just that a color increase of that magnitude was observable to 90% of those in the study.
12 Champion International, supra.
13 Champion International Corporation v. United States Environmental Protection Agency, 850 F. 2d. 182 (4111 Cir.
1988).
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for the color in the water quality standards for North Carolina and
Tennessee provide the same level of protection for aesthetic quality.
Selection of the 50 color unit value was based on information
contained in "Water Quality Criteria" (1968, Federal Water Pollution
Control Administration), Quality Criteria for Water (July 1976, U.S.
EPA) and "Report on the Pollution of the Interstate Waters of the
Pigeon River (February 1968, Federal Water Pollution Control
Administration).14
The Fact Sheet and NPDES Permit were developed after the District Court opinion but before
the Court of Appeals decision vacating and remanding the decision of the District Court. The Fact
Sheet makes no reference to the NCASI study.
The Color Variance
Because Champion could not meet a 50 color unit instream standard in the Pigeon River,
Champion applied for and received a variance from the 50 pcu standard from the NPDES Committee
of the North Carolina Environmental Management Commission ("EMC"). The variance required the
Canton Mill to meet a 50 pcu standard at the North Carolina Tennessee State line.15 The color
variance was incorporated into the 1989 NPDES Permit which was not finalized until 1992 due to
administrative challenges by the State of Tennessee and third parties in Tennessee.
In 1990, Champion undertook a major modernization of the Canton Mill. The mill
modernization re -configured the Canton Mill as an oxygen delignification, chlorine dioxide
substitution (OD-100) bleach mill. Water usage was reduced from approximately 45 million gallons
per day to approximately 29 million gallons per day. The modernization resulted in substantial
reductions in effluent color.
The color variance was revised in 1997, and the NPDES Permit was reissued to Champion,
pursuant to a Settlement Agreement between Tennessee, North Carolina, EPA and Champion. The
revised variance (the "1997 Variance") required the Canton Mill to reduce effluent color to 60,000 lbs
per day by December 1, 1998 and to a range between 48,000 and 52,000 lbs per day by 2000. The
same requirements were in the 1997 NPDES Permit. The Canton Mill achieved the targeted
reductions in color. The 1997 Variance required the Canton Mill to meet 50 color units at the state
line and 50 Color units at Hepco when flows in the Pigeon River exceeded 330 feet per second at the
Hepco gauging station.
The 1997 Settlement Agreement also established a Technology Review Workgroup (the
"TRW"), headed by EPA and composed of representatives from EPA, Tennessee and North Carolina.
The role of the TRW was to review technologies and processes to prevent and reduce color and to
receive and review reports on color reduction.
14 EPA Fact Sheet for NPDES Permit NC0000272 / Champion International Corporation, Nov. 30, 1987. The Fact
Sheet does not mention the NCASI study.
rs Compliance with 50 at the State line was determined by a model using effluent concentration and river flow. The
1988 Color Variance and subsequent revisions in 1997, 2001 and 2010 include a provision that any modification or
termination of the variance is subject to the public hearing process in G.S. 143-215.3(e).
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In May, 1999, Champion International sold the Canton Mill to Blue Ridge Paper Products Inc.
(Blue Ridge Paper"). The NPDES Permit and variance were transferred to Blue Ridge Paper.
The color variance was revised again in 2001. The TRW, utilizing the recommendations in a
report on the bleaching process at the Canton Mill, commissioned by Blue Ridge Paper and a
consortium of environmental groups, recommended further reductions in effluent color from
approximately 48,000 lbs. per day to 39,000 lbs per day. These limits were included in the 2001
Variance and NPDES Permit. The 2001 Variance required the Canton Mill to comply with 50 color
units at certain flows at Hepco and with 50 color units at the Fibreville Bridge under certain flow
conditions.
The 2001 NPDES Permit required Blue Ridge Paper to submit, with its NPDES Permit
renewal application, an evaluation of the feasibility of complying with North Carolina's narrative
water quality standard for color.16 Blue Ridge Paper submitted this evaluation in May, 2006 as part of
its permit renewal application. The evaluation concluded that the company was complying with the
narrative water quality standard for color. Blue Ridge Paper also submitted an updated report on the
bleaching process at the Canton Mill and a biological assessment of the Pigeon River in North
Carolina and Tennessee.
The TRW did not meet until 2007. In 2008, the TRW recommended that the Canton Mill
evaluate and implement, if technically and economically feasible, certain technologies and that the
Canton Mill reduce color to a range between 32,000 and 37,000 lbs per day (annual average) over the
term of the permit.
In 2009, North Carolina issued a draft NPDES Permit to the Canton Mill which included the
TRW recommendation but without a color variance. EPA objected to the issuance of the draft permit
without a color variance. In its objection letter, EPA noted, inter alia, that North Carolina had not
followed the administrative process for removal of the variance and made specific reference to the
public hearing process in G.S. 143-215.3(e).17 The EPA letter also included as a basis for objection
that there was not"... a defensible scientific rationale for [the] determination..." that North Carolina's
narrative water quality standard would be met.18
The EPA objection letter included a recommendation that the Canton Mill be required to fund
and do an independent study of color levels in the Pigeon River.19
The color variance was revised again in July, 2010. The 2010 variance includes language
stating that because the Canton Mill cannot demonstrate compliance with 50 color units at the
Fibreville Bridge, the company has to have a variance from the water quality standard for color.20
North Carolina has a Narrative Water Quality Standard for Color
16 NPDES Permit NC 000272 , 2001, Section (A)(5)
17 Letter from Jim Giattina, EPA Region IV, to Colleen Sullins NCDENR, February 22, 2010, page 2-3.
Is Ibid., p.3
19Ibid, p.5
20 2010 Color Variance, paragraph 27, p 10.
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North Carolina has a narrative water quality standard for color. EPA's numeric interpretation
of that standard was never formally adopted or approved as a water quality standard by EPA or by
North Carolina as required under Section 303 of the Clean Water Act. EPA's assertion that it did a
similar interpretation for Tennessee is refuted by Tennessee's own contentions. None of the reports
upon which EPA relied recommends a 50 unit color standard for the protection of aquatic life or
aesthetics. The assertion by EPA that the 50 pcu standard was approved by the litigation between
Champion International and EPA in the 1980's is contradicted by the clear language of the Court of
Appeals decision which vacated and remanded the District Court decision.
A 50 PCU Standard is no Longer Necessary or Appropriate to Protect Water Quality
EPA's derivation of 50 as the numeric interpretation of the color standard was not arbitrary
and capricious based on what was known about color in the Pigeon River in the 1980's. Much more is
known about the water quality in the Pigeon River in 2018. Since the 1986 Court decision, the
Canton Mill has reduced effluent color by 90%. Four balanced and indigenous population reports
have been conducted on the Pigeon River in North Carolina and Tennessee. The aquatic community
has shown marked improvement since the 1980's, and continues to improve. The most recent report,
concluded in 2013, found a balanced and indigenous aquatic community in the Pigeon River, both
above and below the Canton Mill. Since 2006, Tennessee and North Carolina, with the assistance of
Blue Ridge Paper and Evergreen Packaging, have restored extirpated fish species in the Tennessee
and North Carolina reaches of the river. Color at current levels in the Pigeon River is having no
adverse effect on the biology of the river. There are no public health issues with the river. There are
no fish consumption advisories. Color is not interfering with secondary recreation or any other use of
the river. A 50 unit standard is not necessary or appropriate for the protection of aquatic life, public
health, secondary recreation or aesthetics.
The Comprehensive Assessment and Analysis of Color (AquAeTer 2013), relying on more
than 22,000 data points for color, demonstrated that color, at current levels, is within the range of what
would be expected to occur naturally in the river. Color in the Pigeon River is similar to and in some
cases, less than, color found in similar rivers in Tennessee including the French Broad River.
Color, at current levels in the Pigeon River, clearly complies with North Carolina's narrative
water quality standard for color. There is no scientific or regulatory basis for continuing to rely on
EPA's "interpretation," developed more than thirty years ago. The studies on which EPA based its
interpretation are now more than forty years old.
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United States F;nvironmental Protection Agency
FACT SHI--{,F,T
For 1987
N PIS IH; S Permit
Canton Mill

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
343 COURTLANO STREET
ATLANTA. GEORGIA 34353
.„,
FACT SHEET
, . •
APPLICA.TION.,FOR
NATIONAL POLLUTANT. DISCHARGE ELIMINATICa. SYSTEM
PERMIT ID DISCHARGE TRfATED PIASTEPLA.TER
'PO U.S. WATERS .• .•
•• . •. •
Application - NC0000272
1. SYNCPSIS OF APPLICATION
; ; ••: . .;1;:
a.IName .and Address,:of:AppliCant
Chaapion Internationg.i1::c.orporation
chatpion,PapersiDiVitiOn....:
Main Stet
l• •
.......,„...
c4nbon,i11!:HayWood County, North Carolina • .28716 •••
.;..cescription of -Applicant's operation
1 0 1987
Integrated bleached Kraft pulp and peper manufacturing facility
producing:food board and fine paper. • .; • . ,
c. Production rairvirity of Facility (January — December 1984)
694 tons per day BCT bleached Kraft
1013 tont per day'fihe bleached Kraft
d. Applicant's Receiving Water
The Pigeon River
, - • • , .
For a sketch showing the location of the discharge(s) I see attached map.
e. Description of psisting.i.pollution Abat�nt Facilities
Wastewater is treated by the foliating unit operations:
Grit removal, bar screening, pH control by CO2 injection, coagulation
with polymer addition, disc screening, primary clarification, secondary
treatment by activated sludge, secondary clarification, and cascade
aeration. Danestic wastewater is chlorinated prior to blending with
process wastewater.

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f.
tion of Discharges (data from April 7, 1986 application)
PRESMiT OPERATION
Serial 001 - (process wastewater and Town of Canton danestic
wastewater)
Average Flow - 44.4 MGD
Avertgo Winter Temperature - 30.0°C
Average SuMmer Temperature - 36.2°C
pH Range (std. units) - 6.6 - 8.5
Pollutants :ch are present in significant quantities or which are
subject to effluent limitation are as follows:
Effluent Characteristic
BOD5
TSS
Fecal Coliform
CID
Ammonia
True Color
2,4,6 Trichlorophenol
Pentachlorophenol
Zinc (one sample)
Chloroform (one sample)
Values
(frOm application - April 7, 1986)
Daily Average DailSrMaximum
14.4 mg/1
19,130 lbs/day
87/100 ml
266 mg/1
2.17 mg/1
782 std.ts
Leta
Less
84.6 mg/1
47,986 lbs/day
640/100 ml
460 mg/].
9.8 mg/1
1385 std: unite
than 10 ug/1
than 10 ug/1
80 ug/1
86.3 ug/1*
* Analysis of 12 effluent samples collected by the permittee for the
period of February 11 through February 21, 1987 gave an average
effluent chloroform concentration of 350 ug/1 and a daily meximum
value of 480 ug/1.
2. PROPOSED EFFLUENT IMIT a
Serial 001
See a=• Parts I and III of the t NP'DES permit.
3. BASIS TIV NT LIMITS AND PF II ' C NDITIONS
This NPDES permit contains effluent litnitations and monitoring require-
ments included in the permit issued by the. State of North Carolina cn
May 14, 1985, where appropriate. These regairements are included in the
NPDES permit as a result of the State of North Carolina's interpretation
of State Water Quality Standards as they apply to the.Chion - Canton
Mill discharge.'

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Sustended:Solida.;(TSS)i
Bleached
paramstsr addressed in effluent guidelines develcped for the BCr
leached Kraft Subcategory (40 CFR 430:80
430.90).' of the'Pulp,Paper,)and Fine Bleachedrboar oint Source
Kraft
Category: The production values for the Canton '1used : to :: determine
appropriate' limitations'were. e.StabliShedtodbas on:the definition contained
annual
in 40 CFA::439•01(a)- relating .top ection..,:::No:wet.:bar"sing,tpera-
tiont, s::or!lbg::ponds 'are, present at the
Canton Mill. Ba, review Of pr�duction 'at the Canton kill firm
January:.1981.to•Decarber1985i the • twelve abn:th.pericd::from January 1984
to December 1984 was selected as the :...neOcintint-aninial, production:
. • ' • ''"400108.,,..Fiatoi.11riats (1b/day)
Max.
Subcategory., . . ::,.......Ave
• ..
BCT:Bleached Kraft '1'1...1387.5 1... •:. •• 24.0 •• • 17 899 33,300
• .„
• • •••••FineBleached Kraft 2026.5.22.15 24 115 44,887
•
• •••• , •.• • • •
• •;•This parameter:is Rtddreased: in .effluent-i.guidelinedo. for„, th ,BC?
Bleached -Kraft -and Fine Bleached :iKraft aubcategories:.:o ;.Pulp,.paper, and
Papes*artiPoint Category.
• . • • • ...•:.
Thtal Limitaticm 1:42,014 78,187
. . . :..:: • . .1... . ....•
Guideline Factor Limits (lb/day)
Subcategory Production.(1000 Ave. Max.
• '" • • . : • . .
BCT Bleached Kraft 1387.5 18,939
• Fine Bleached Kraft 2026 . . ... 5 . . 1.0.0 11,146: 21 i 481
.,.„„„„,.......„„,,„........ . „:
.. . . ...... tation . 20,997.40 420
..•-• . . ,..,.., -
..„ ,
Based cm atliastOpad:::allOcation perforce(' by
:h North Carolina
Division of
INCD874*'effluentlO4:441*-4044Iimitation
for i.ntain:teidiSSolVed oxygen standard
he pi
.the. wasteload 'all"
A4 tfigta/icneBDnut%.1;•• ngibkifiCtannanillitaidIrl(expoftvith! 012::144°;21:: thtiit)cx:effreirtiliti,iislinitis712uonsci:d"of
oxygen will maintain the water quality standard for dissolved oxygen' in the
Pigeon River.

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Afterateview ct the environmental and economic impacts of meeting the
above water quality -based limits, the permittee has installed side stream
oxygenatidmfacilities which serve to elevate the dissolved oxygen levels
in the Pigeon River. These oxygenation facilities are located at points
0.9 and 2.1 miles downstream ct the facility outfall. This method of
achieving water quality standards has been determined to be acceptable
based on the requirements of 40 CFR 125.3(f);
(1) The tedhnology-based treatment requirements applicable to the
discharge are not sufficient to achieve the standards;
(2) The discharger agrees to waive any opportunity to request a
variance under sections 301(c) or (g) of the Act; amd
(3) The discharger demonstrates that such a technique is the prefeLLt
environmental and economic method to achieve the standards after
consideration of alternatives such as advanced waste treatment,
recycle and reuse, land disposal, changes in operating uethods,
and other available methods.
The requirements of this NPDES permit relative to effluent BOD5 limitaticms
operation of side stream oxygen injection facilities, and instreamdisSOlved
oxygen monitoring requirements are consistent with the terms of the permit
issued by the State of North Carolina cn May 14, 1985. Based on review
of available data and the demonstration by the permittee that requirements
of 40 CFR 125.3(f) have been met, EPA concurs that the proposed limitations
for 80D5 in conjunction with proper operation of the oxygenation facilities
are adequate controls for the contribution of the Champion effluent to meet
the dissolved oxygen standard for the Pigeon River.
Compliance with the requirement to operate the side stream oxygenation
facilities is measured by monitoring instream dissolved oxygen levels in
the Pigeon River at stations located at mile 62.9, 57.7 and 55.5. The
locations were selected due to the possible influence frum the Waynesville
nunicipal wastewater treatment facility on downstremm dissolved oxygen
levels. At the stations located at river mile 62.9 and 57,7, the average
daily dissolved oxygen concentrations must not be less than 5.0 mg/1. At
7Q10 floe conditions, the average daily dissolved oxygen concentration at
mile 55.0 required to neet the dissovled oxygen criteria for the Pigeon
River dosoraftreata of river mile 55.0 is 8.2 mg/1.
This item dissolved oxygen limitation was calculated using the model
calibraMWor the Pigeon River by NCDEM to simulate the CBOD and mania
levels he Pigeon River downstream of the Chanpion discharge. At
flows greater than 100 cfs, an average dissovled oxygen concentration of
5 mg/1 is required to maintain water quality standards for dissolved
oxygen downstream of river Idle 55.5.

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Ammonia
An effluent limitation for ammonia was established by. the NCDEMin order
to maintain the water quality standard for dissolved oxygen in the Pigeon
River. ,•The:.measure of•ccuplianoe.:in neeting this standard was replaced
with the: permit requirements; to operate oxygenation facilities and the
permit limitsfor dissolved oxygen as monitored at six locations in the
Pigeon River downstream ofthe .autfalZ Monitoring requirementsare
included in the permit: to provide data :concerning : levels of anurnia
discharged to the Pigeon River.
Effluent Dissolved Oxygen
The effluent•limit for.D.O. is based on the previously mentioned waste-
:load;allocation performed by the NCDEM and the requirements of the permit
'issued by the State•of::North Carolina.on May 14, 1965.
Instrean• Dissolved Oxygen
See•discussion of RODS above.
The: limitation: for color is based upon meeting the North Caroli.na.Water
Quality, Standard for color (NCAC 28 .0211(b)(3)(F)).::-The requirement toh
:neet'an instreem oancentration for, apparent Platirnaa
Cobalt units is based on EPA',s interpretation;of the North Carolina
narrative standard for color.: EPA; reguested;that North Carolina provide
an' interpretation of:•this standard onMay:13, 1986. North Carolina
failed to provide an adequate interpretation to assure oomplianoe with
he: standard. In.,the•December 1,•:1986 Meiaorandtm of•Decision of the
Federal;. District Court for` the Western : District of • North Carolina •:::
(Champion:vs.:•EPA),,the:Court upheld EPA's authority..to object to the
North:; Carolina permit: on the.;grcx.ands:that it failed` to comply with.,
the i rements of the Clean Water Act.l See: Attac3�ment 2.:_ At this
• point, it beck necessary • far EPA:to interpret the standard in; order. to
•develgp federal permit limits for color that would nneet'North Carolina
and Tennessee.,lase.
The basis for EPAselection selection of a value of 50 color. unite for apparent
color as aN numerical interpretation of the North Carolina ;color standard
is similficto EPA's. rationale for selecting 50 color units` for the
Pigeon in Tennessee based on interpretation of the State of Tennessee
Water QuiiiiikLy Standards. The narrative criterion for -color in the water
quality standards: for North Carolina and Tennessee provide the same level
of protection for aesthetic quality. Selection of the ..50`;color unit
value was based on information contained in "Water: Quality Criteria";
(1968; Federal Water Pollution Control Administration), QuA2ity Criteria
for Water :(July1976, U.S. EPA), and; Report. on the Pollution of the
Interstate Waters of the Pigeon
geon River"'(February 1968, Federal Water
Pollution Control Administration)•
1 The decision of the District Court has been appealed by Chanpion and is
currently_ under consideration by the United States Court of Appeals for
the Fourth Circuit.

D-15
Permit with the effluent limitation based on the
is meamuiid by the contribution of the facility effluent to
true color in the Pigeon River.
Since the narrative color provision of North Carolina Water
dards was adopted after July 1, 1977, the permit includes a
schedule tomet the final permit limit for color.
Trichlorophenol/Pentachlorophenol
The permittee certified that biocides used at the facility do not contain
either of these two compounds. This certification eliminates the require-
ment to include effluent limits for these two parameters based on the
provisions cf 40 CFR 430.84 and 40 CPR 430.94. Quarterly monitoring
requirements for these two parameters were included in the NPDES permit
based on the requirements of the permit issued by the State of North
Carolina on May 14, 1985.
The monitoring requirements for trichlorophenol and pentachlorophenal
may be deleted from the draft NPDES permit based on information supplied
by either the State of North Carolina or the permittee which states that
the monitoring requirements contained in the permit issued by the Staten!.
on May 14, 1985 have been deleted from the terms of that permit.
Fecal Conform Bacteria
•
color standard
the levels of
Qthality Stan-
ampliance
I:imitations in the WES permit for fecal coliform bacteria are based on
the requirements of the permit immed by the State on May 14, 1985.
These limits are necessary to maintain water quality standards for the
receiving stream (15 NCAC 28 .0211(b)(3)(E)).
Limitations for pH are based on therequirements of the permit issued by
the State on May 14, 1985. These I!its are necessary to maintain water
quality standards for the receiving etteme (15 NCAC 28 .0211(b)(3)(G)).
Temperature
The iaf'the MAWS permit relating to temperature are based on
oneCof the permit issued by the State on May 14, 1985. These
limi ' and mcmitoring requirements as specified in the NPDES permit
are toimeet the requirements of the Section 316(a) determination
completed* the State and approved by EPA on August 6, 1985. (See Item
4 of this Fact Sheet.)
Flow
The daily average flow limitation is based on the requirements of the
permit issued by the State on May 14, 1985.

D-1 6
Monitoring: Requirements
•• • • •••• •• „ •• •.. •.:•. „..„,:0 •••:.•• •::••
With thi4tideptice. of ...:•the,monit.pring:requirements.::fori,tefoperature and
anSiOniei'di*XiSSel above, all naaurennt frequencies, Sarrple:: types, and
issued by
: the. State • mak.14,::',E .19 85.'::.P,,Thie
includes �, total residue, arid sett].e-
able ,..netter„,'Which4re iide'llitited but for which iionitOring is required in
the ..NPDPS permit.
••: „, ,
•Effluent Tbxicity Requirements/Zinc*,
The effluent toxicityreqU.i.rements.,: and limitations are based on application !•:,:
Of ....North Carolina.:Water'QUalitY:!$tandards and previous effluent data for
„
• • the",'Clitaipion':', facility ::. relating to toxicity. „ 15 NCAC 021B. .0298 :state*:
'The concentration of toxic substances in the receiving water, (either ".
alone or in bcrobinationiighen iffirinitively..dearestrattid to be non •
••• :•,,bioaccumulative):•When,;not,,spedifikrelsewhereiln!i:this.Sectionii:.:shall:,::
noteXceed::.,.the.7.6dindenttation,!Spedified by the : ;:frectiOn. of •-,thei,.9§-haUr.
LC50• value which predicts a no effect chrxiic level (as:, determined •
through the use of.:,a51.4pa/c.twpr4c..:;a*00).!-..,
, ::•
NCAC 02B .021 (b) (4)(D) *Action Levels for Toxic Substandes*) :also,,app340
to.„,the::Chaxpidn discharge since the, repOrtedeffluentcondentration'and
re*Ultinginst.reath concentration..for.zind'efideedi.!FtlikediiOn,:leiiel:::for
this • -,,•,::::••••••', • -••
• •„..„„„„,..:pamneter.• • .,:.• •
..• •• • • „,„:.
Monitoring requireflentii'fOr'Xinc have been includedi.in..the NPVIES permit.
Thesemonitoringi,:requiremens-are-,:::alsc) based cni-15 NCAp02:13.:.::,.0211(b)(4)(D)
N.merica1 limits for zinc are not being included:.. in the(.NPD4..perMit
• : since theState '',,Water- QbalityJStandards:d0 not contain a nuterical.
criteria for zinc arx the.:„:„ big:Monitoring- requi0Fents !. of :thi3 NPLES permit
are adequate to �ntrol toxicity due to the presen� of zinc in the
facility „.... •
effluent.• •••
:..preVious:.:::biOassays,:copchictecrity.gRA perscmnel have shown both acute and
...••••••
•::chi-ohic2.tdici,city,.:4A- the Champi.on:::effluent.yi::',„,;:ln:bei!chrOnid.,;:iteStS'iterformed •
on reproduction and
. „....,..„. ••• •,.„„ ...:• •„,„.„:„.,..,.,..,,
" • growtk'„'oppourretl::bebraen".:.25.%:and.'501ki'(eXpresSecVaS•efflueint.,:concentrations)
for Ceriia...tiatidialatit',. and plas, respectively.
.111010111:11.111•••••• .
• •
7, toxi-0,4,r,„ tests . were., performed by North Carolina Division : of
• . Mainegeteent.i:..et.eff on the Chanpion discharge using Ceriodaphnia
as ttbilge apecies. No chronic toxicity was exhibited during ',,,these test
0...0., OS ing.::10011-effluent. The toxicity testing required in the permit is
• necessary, therefore, to. determine...'.thei,:i*#i044ir..: of effluent toxicity
Of the effluent andto provide a basis to nasure carplianoe with North
Carolina :Vater, quality standards. Based on a satisfactorii,..'diStonEitration
that the „discharge:meets North Carolina water ''qUality...standards" for instream
toxicity, the requireMentS•of the permit allow for reduction in frequency :.
of the testing requirements after the first year of testing.

D-17
Chloroform
Thelimitation for chloroform was established based on application of the
EPA ambient water quality criteria for protection of human health consid-
erations through ingestion of contaminated aquatic organisms. A risk
level of 10-6 was used to determine the appropriate instream criterion.
This criterion is a result of EPA's interpretation of 15 NCAC 02B .0211
(b)(3)(L).
Recent data are available to update the criteria for protection of human
health established in the "Ambient Water Quality Criteria Document for
Chloroform" (October, 1980). These data, summarized in "Health Assessment
Docuiment for Chloroform" (Septet-, 1986) can be used to update the 1980
criteria using at new dose -risk slope value. Using this information, an
instream criteria of 0.036 n/1 can be calculated for protection ofhuman
health through ingestion of contaminated organisms. This criteria was
applied at the 30Q5 flow for the Pigeon River at the discharge point.
EPA is applying for the first tines the narrative toxicity criteria of
North Carolina water quality standards to the Pigeon River in establishing
the limit for this permit. Since a chloroform limit has not been previously
applied to the Champion discharge, the EMS permit includes a compliance
ale to meet thefinal permit limit for•chloroform.
Total Dissolved Solids (TVS)
The monitoring requirements are included in the permit in order to provide
data concerning levels of .TDS discharged into the Pigeon River.
4, REQUESS'ED VARIANCES OR ALTERNATIVES TO REQUIRED STANnARDS
On August 6, 1985, EPA approved the Section 316(a) determination as issued
by the North Carolina Environmental Management Camiission on October 11,
1984. This determination demonstrated that the effluent limitations
relating to the thermaloomponent of the Champion discharge based on
application of North Carolina Water Quality Standards were more stringent
than necessary to assure the protection and propagation of a balanced,
indigenous population of shellfish, fish, and wildlife in the. Pigeon River.
Therefore,, the 316(a) determination was approved based on protection of
they, ate US9 00t+Asification of the Pigeon River.
^ice
In a dated April 6, 1987, Champion requested a revision to North
Carolinat water quality standard for color pursuant to N.C. Gen. Stat.
S143-215. .` At this time, the State has not acted on that request.
Any revision to the standard must, at a minimum, neet Tennessee's water
quality standard for color, and must be adopted according to federal
water quality standards regulations (40 C.F.R. Part 131).

D-18
At the Itioarrpmere state line, the Pigeon River is classified:for:the
followinii‘uees: industrial:water Supply, fish and aquatic life, recreation,
irrigati,:andEliveStk watering and wildlife. The 5tateof,Tennes-see
has interpreteirSoktiOn":1200,4-3. cp (4)(d) of ,:the Rules of Tennessee 'Depart-
ment of :Bealth and ,Envircionnt, Bureau of Envirdiirent, Division -of Water
Pollution _Control, to: require that :the Pigeon Riverl:mirst be:at'an instream
color level of..50.apParent color units in order to net the narrative
• water quality criteria for the recreational. should
.
North Carolina's standard' be revised,EPA will" seek.. colorant -:.&limitationis
based onsucha revision at a later date.
5..":,..•A4'1121I,STRUMTRECORDZ-.•!1:: •,•:"
The actainistrative record, including application, draftplanait, fact sheet,
public notice, State Certification coments ;et -mitred, and additional
informati.on is available: by.writinr:i.EPAI.Region:IV.ar for review and
copying at 345 Courtland'Street, N.E.,2nd'Flaor,:•Atlanta, Georgia 30365
between the hours of 8:15 A.M. and 4:30 :P.M.,Menday through Friday.
Ccpies wiLl be provided at a minimal. charge per page.
• . .
6. REFERENCES AND CITED DOCUMENTS
All materials and docurnents.referenced or cited in this fact sheet are
either a part of .,:theAdministrative Record as.dissicribecr irt:itera::7 or are
readily availabia at EPA, Region IV. Information regarding these materials
may beobtained.:•frOS.:the",perrkinliated
7.i''EPA =TACT
•:::
Additional information concerning the permit may be obtained at the address
and during the hours noted in Item 5, frau:
Final Penait Issued
Stganne:;D, 'Potter • • •
4444347.199.4 '' ' • ''
i:••••••• •
Decerdzer 2, 1987
January 14 and 21, 1988
March 21, 1988

D-19
wasas...s• Amo.
g.FROciEORES raR THE PORMULATMDN OF FINAL DETERMINATIONS
a.ant Period
The Environmental Protection Age proposes to issue an NPDES permit
to this applicant subject to the aforementioned effluent limitations and
ial conditimess. These detenminations are tentative and open to
comment from the public.
interested persons are invited to submit written comments,regarding
permit issuance or the proposed permit limitations and conditions to the
following address:
Environmental Protection Agency
345 ONmrtland Street, NE
Atlanta, Georgia 30365
ATTN: M. Susanne D. Potter
All comments received within thirty (3p) days following the date of
public notice will be considered in the formulation of final
determinations with regard to proposed permit issuance.
b. Public Bearing
The EPA Regional Administrator will hold a public hearing if there is
a significant degree of public interest in a proposed permit or group of
permits, or if he determines that usefuf information and data may be
obtained thereby. Public NOtice of such a hearing will be circulated at
least thirty days prior to the hearing.
c. Issuance of the Permit
After consideration of all written coneents and of the requirements
and policies in the Act and appropriate regulations, and, if a public
hearinj is held, after consideration of all comments, statements and data
presented at the hearing, the EPA Rygicnal .,,inistrator will make
determinations regarding the permit issuarce. If the determinations are
substantially unchanged from the tentative determinations outlined above,
the Regional • • -• strator will so notify all persons submitting written
comments, and, if a public hearing was held, all persons participating in
the hearing. If the determinations are substantially changed, the VA
Fegional Administrator will i e a public notice indicating the revised
determinations.
Unless a request for an 'evidentiary hearing is granted, the pr
permit contained in the Regional Paninistrator's determinations shall
become issued and.effective and will be the final action of the U. S.
Environmental Protection Agency.

D-20
d. Evidattiary Bearin3
u the determinatice are subshanti alily unchanged, &Yule pi:nnteirteetanecal
person .may sulxlit a request for an .eyident ary
its conditions within thirty ee
(30)
tdays of the receipt of the notice
described in section c. If the dar ansubstri. i
any interested person subai t publice notice or of the date of.
requestfo
within
thiatYredaY• of oftbatli.detedartmema f tipm, whiifch saiever conesty _ _
requests will be within the time periodiseaillzdaitikpaeralvifieroL7tiali
within the thirty day period to:the Peg Oria
All requests must contain:
Protection homy, 345 COurtland St.reet, ILL., Atlanta, Georgia 30365.
(I) Me name, railing addreu and telephone number of the person
radii requelfts
(2) A clear and concise factual statement of the nature and scope of
the interest of-the:requester;
!d: ad&essofaU• pe r:::orut• !..-whOM .•the.r�queiterrepresents: and
. . • • •
. • - • ''''''
. . . . • •. .• . • . .•• .,•. • . • •
.-„ (4) • A istatpiort# by the requester ..thati.:.uppe"imotion.of any party, or
-
:tue.siponte,: by the Presiding Officer and without cost :;!•:: or,,!'e4,tpeCee to an
other party, the14equester'shelll'Make:li:AYailable. to appeerliend tut
(i)„, The requester::
. .• i:::.1„. .......
(ii) All persons represented by thei•reqUester, and
(iii) • All officers, : directors, : emp.l+.3yees,•KOI*SOltantiend. agents of
the 'requester and'the persons: represented by the, requester.'
.. . •,.:::•. • • ---• • '''' •••• :•• • •
(5) Specific:40.f erepoes to.the contested:Pe:mit terme4ind:::Conditicini,:'
as well as :.,,suggested. revised or alternative permit tes and conditions
(not excluding!1•-peit judgement of ths requester,,..„. _
wc.)uld be requixed to i1nt the purposes and"'policiit'of tbe,i'Adt".
cf challenges.6to the',,..aPplicatiOn,' of' ,• 00061'• . • . .„
treatment tdmologiea id.ntified in the :stateMent111',:of.;•beteiiii.::eir fact
sheet,-ientLficetion of the basis . for :the: objectionand the .alternative
technologitie.:'or.; cceribinatiOnefi,:teOhiOlogiect
• •believes.........
are necersary to :meetthe reqiiirements 'of 'the Jct.
•••
:identification: :of fecit,•:01`,.:!the;;::direcharger!erObligatiotte.•
which ..phOuld,,Ebeii?:'stayed:.. if i!;-.ii[-the?,•!,reiNeitt;hit, giented""'"If '!:the r.quest
contest* more than one pemnit,;!i: ten or condition then eaobligation
which is...proposed to • be stayed 'rust be referenced tci the particular
conteeted..te.rm:Waroulting the:"stey.

D-21
(8) Each legal or factual question alleged to be at issue and its
relevance to the permit decision.
(9) An estimate of the bearing time necessary for adjudication.
(10) Information supporting the request or relied upon which is not
already a part of: the administrative record requiredby 40 CPR 124.18 (48
Reg. ,.14272,:April 1, 1983)..
The, granting request will' stay only the contested
portions of
permit.: ttx cntested ProVisions of . the Pe t shall be considered
issued and effective and the permittee must comply with such provisions.
if the permit is for a new source or new discharge, the applicant
will be without a permit for the propo new source or new discharge,
pending fish. Agency action. The final Agency decision on the permit
provisions contested at an evidentiary hearing will be made in accordance
with Title 40, Cade of Federal Regulation, Subpart E, found at 48 Federal
Register 14278, et In.
e. Panel Bearing
In the:. case of an 'initial license,' including the first grant of an
NivES permit, or the first decision on ..a requested variance, if the
Regional Administrator elects to apply the provisions of subpart F and so
states in the public notice of the draft permit, any person may request
theiRegional Administrator to hold a panel hearing on the permit. Such a
request must be made within the comment period of the notice described
above. Requests will be considered timely if mailed by certified mail
within the can . t period. All requests must contain:
(1) A brief statement of the interest of the person requesting the
hearing;
(2) A statement of any objections to the draft permit;
(3) A statement of the issues which such person proposes to raise for
consideration of: such hearing:
(4) The , mailing address and teleph r of the person
raking such t:
10,
(5) A clear concise factual stet t of the nature an
the interest of the requester; .
(6) The -names and addre s of all persons
represents: and
R`. 11
the requester
(7) A statement by the requester that, upon motion of any party, or
sus sponte by the 'Presiding Officer and without cost or expense to any
other party, the requester shall make available to appear and testify,
the following:

D-22
(i) The <requester,
Ail.) all persons represented by the requester, and
: (iii) All officers, directors," employees, consultants and; agentsof
the: requester and; the persons re
presented by .;the, requester.:;
(8)Specific refs c s to the; contested permit terms and conditions,
as well a.s suggested re:de or elternativ+ie permit terms and conditions
(not excluding permit al) whidx,' ` in the judgement of tine requester,
would b."requirod to uplifter* the purposea and palici.a'of the
If the permit for which a panel bearing is requested is a new source
or'new di rger, -the applicant:wills:1Ni without a permit for the propaped
new: source or new disobarge, : pending; final'' lgency action. Panel hearings
will be conducted 'in, accordance with title: 40, Oode of ,'Federal ::
FagUlations, Subpart f, t 48:Pederal Register 1428s,: art"'•

22
D-23
t4
6
«

D-24
PART I
A. EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS
Part I
Page 1-1
Permit No: NC0000272
1. During the period beginning on.the;:effective .date of _the permit..and• lasting: through the:terra of :this permit, the
permittee :iSi•itOthorited„.:to disCharge..from Outten serial nutter 001' (treated proceits.wasteWater and :Taal of Canton
domestic wastewater):.
Such dischargesshalllie 'and m•onitored by theTermitteeas specified belowr.
f - •
PARAMETER .
DISCHARGE LIMITATIONS MONITORING REQUIREI1WIS
•• • AgidaY(lbsAla.Y) Other Units (Specify)
, •
Datil .A Daily Max Daily"Avg--;,:;.::- Maxl•i!
Flow, m3/day:,(MGD)
Biochemical i.Oxygen
Dernand (5day)-; 20,C..!2942(6472) :5663(12458)
Ammonia
Total Suspended!-....,' !1;:
Solids -••::•••••••:•:':: * ''' • ' '19097(42014)::35540(78187)
••• ••• • ,.....••••
Dissolved Oxygen •-"•'See•Itern:,'•3 a Page 1-2
Fecal Colifora:"••;•:!!
Temperature': ' • •;:!i•See Item 2 oncPage 1-2.
CherniCal -
Total Residue •••••:- • -
Settleable .Matter ; . - • '
TrichlorapheriblE,!t,- • -;!• •-•
PentaChloropbetkol ::••:
Color See Item on Page •
• • • •.,• :•• :••• .......
Pil J.' See Iteco,i•4 on Page I2
Effluent Toxicity See. Iteniii6 on Page 1-3
Chloroform :-•
Zinc
Total DiSSOlved:Solide
- Influent, E Effluent, U - Ups
48.5 " -
1000/100m12000/100m1
fe•
411••
41110
• :
MM.
.036 irrig/1
••
• •.: .
D Dcvmstreem
Measuretnent.!:Sapple Sample
Preiecy 1. Location
Continucus Recorder E,U
Daily r
Daily -criPosite
OcaPosite
Daily • -
Daily
Weekly.
Weekly
Weekly
Daily.
Quarterly,:;
Quarterly
See Item,:5
Daily
Weekly •
Daily
Daily
There shall be no discharge of floating solids or visible f inlgthOr than trace amounts.
Caipcsite
Grab
Catpciite
Czp�ite
Grab
CompositCcosite
'or:;page 1-2
Ccrtpcsite
C.p:mite
CeMpos ite
I,E,U,D
E
I,E
E,U,D
E,U,D
E,U,D
E,U,D
I,E
E
E
I,E,U,D
E
E
Effluent sanples-:taken in..ccepliance,with:the:monitoring':regtiiresnts :taken at the follciwing
1 tiOn(d): :::;neareSt:-accessible,pciiht;:after,..finaV;treattnent,,40:,priOrto agt461-::disFharg!.or mixing with thereceiving
,
•••• • :
waters.

D-25
Part I
Page I-2
Permit No. NC0000272
2. The monthly average instream temperature measured at a point 0.4 miles
downstream of the discharge location shall not exceed 32.0°C during the
months of July. August, and September and shall not exceed 29.0°C during
the months of October through June. The monthly average instream tempera-
ture measured at this location shall not exceed the monthly average
instream temperature of the upsam monitoring location by More than
13.9°C.
3. The concentration of dissolved oxygen in the effluent shall not be less
than 6.0 mg/l.
4. Ibe effluent pM shall not be less than 6.0 standard units nor greater
than 9.0 standard units..
5. (a) Monitoring requirements for apparent and true color are as follows:
Influent and effluent shall be monitored once per .`.day{ by a compcsite
sample.
(b) The discharge shall not cause apparent color in the Pigeon River to
exceed 50 Platinum Cobalt color units downstream of the discharge.
Culiance with this permit condition will be measured in the
following manner:
The downstream apparent color value will be calculated by the
following equation:
Downstream ()discharge Effluent
a g
Color Value()upstream Color Value
where ()discharge
= effluent flow (in ugd)
Pigeon River flaw (in mgd) at river mile
63.5 (upstream of the point of discharge)
If the calculated downstream apparent color value exceeds 50 Platinn
Alt color units, then an analysis for true color must be performed
on the effluent sale gathered for that day. Using this effluent
true color measurement, a value for the downstream:true color value
will be calculated based an the above equation. If the calculated
downstream true Dolor value exceeds 50 Platinum Cobalt color units,
this represents a violation of this permit.
(c) The method of analyses used to measure color shall be Method 204A of
Standard Methods for the Examination of Water and Wastewater, 1985,
16th Edition, or an alternate method approved by the permit issuing/
regulatory authority.

D-26
Part I
Page 1-3
Permit No. NC0000272
. „.„ • • „.
6. The no effect chronic,:',Ialtel.::.'(NDEL) of thedischarge shall not be less
than the instreain waste concentration (Di):::expressed as a percent. value.
The no effect chronic level shall be determinedi..utiiizing-an•acceptable
biomonitoring: prooedure:'.000eicped under' Part. 111C, Itan 1, an .P074:: 111-2
:of the permit. The::DE for each sartpling:periodishall'be.i.'calculated;:by
dividing the average dlaCharlge•Iflow:•by the average it:etre*: flat dOwnitream
of the outfall. • FOr.„„.4each,Caear'•.theaverage flcw shall be'calcuiated as a
iseiten.'dayaverage.' flatt,•:„.Withl'thet•.day„.of actual:Simple coLlection.'being
the:.fourtkdayi.of.:a;eeven.COnsecutive..dakilaVeraging.,'..period.:.E::.;„.„!,Tnetream •
flat shall be estimated using date:„fran)t,* 04044 :44ticp l,pcatedjt.
river mile 63.5 (at the point .of geMplitigto meet'the ''reqUiteeients: of
"upstreat7 monitpring page J-1. of „ this,peirmit)
....„„. „.„..
7. mete C9Irt3C4te EFUrPleS are siec# led in the non*tntihg .tetNiMeents of
this permit, a 24 hxir Ciirckteite:Stetpie. is required.„....
B. SCHEDULE OF COMPLIANCE
1. The permittee shall achieve conplianoe :with the effluent limitations
specified for discharges in accordance with the foliating schedule:
a. The effluent limitations for color and chloroform shall became
effective in accordance with the following schedule:
Date
• (1) Effective Date + 6 months
(2) Effective Date + 1 year
(3) Effective Date + 18 months
(4) Effective Date + 2 years
"4"Atli
(5) ...r• 4. ve Date + 30 months
(6) Effective Date + 3 years
(7) Effective Date + 42 months
Required 'Action
Status Report
Status Report
Status: Report
(a) Status:Report
(b) Begin pilot wastewater
treatment Stt EtS
Status Report
Status Report
StatUS. Report

D-27
Part /
Page 1-4
Permit No. NC0000272
(8) Effective Date 4 years (a) Status Report
(b) Select treatment alternative
(9) Effective Date 54 nonths Status Report
(10) Effective Date 4. 5 years
Achieve compliance with
effluent limits for color
and chloroform
b. The effluent limitations for all other parameters shall become
effective upon the effective date Of this permit.
2. No later than 14 calendar days following a date identified in the
above schedule of compliance, the permittee shall submit either a
report of progress or in the case of specific actions being required
by identified dates, a written notice of compliance or noncompliance.
In the latter case, the notice shall include the cause of noncompliance,
any remedial actions taken, and the probability of meeting the next
scheduled requirement.

D-28
PAIC111
Page III-1
Permit No. NC0000272
PART III
OTHER IREQUIRE:t.iENIS
A. Reporting of Monitoring',:Results,:
Monitoring results obtained each calendaraOnth:niiiit be summarized,for., that
eont11;:iencli reported on a Discharge Monitoring,Rappit!,,pona (EPA,Nb... 332.0.71),
postmarked:00.later than thel,]26t.h day of the month follOioing "theCcitple.ted
calendar es#stple, data for.Jeouary shail be aitznitted by
February: signed COPies of ]theee..:11.and.!allotheri'rePorte','..
required by E-e0t...i.OnTIOI.Of Part 11, Risti*ino ipezio..t•Figtopps, shall beeubmitted,
Authority 'at the follow '5!!"'""
. .,..,.,. .:„:
Enyi..rorarental. protection. Agency
j•
Facilities
Performance-Branch345 Cairtland Street, N.E.
Atlanta, Georgia 30365
..„
• • • .
B.!]!:'*.Reopeiner Clause
. .
ThiB pennit shall be
mOdifledi'':Or(alternatiVely]recrked and„.reiesued;t0 comply
with any aplicable effluent standard ar'.1.i.mitation:!•isstied,'OratipM:ived• under..
606tiOne;.30g0)(2)(C);:eedi.i (p) 304(b)(2)4•:.'.and.'!307(e)(2);:or, the.! Clean Water Act,
if.. the effluent standard •
•••• •• •• •:- • • • •
1. Contains different .conditions • or is . otherwise mire'. stringent than any
• effluent':-140tatiOn„: in';! the.. periniti or
• • • • • ;;;-, , •
ant .pollUtant'not limitedin the parinit..
The •cae.',reissuod:under:,,.this.paregrapkaball also cxyltain any
.,.,....: .........„
other o the Act then a1icab1e". •
•
• 'NI.
,

D-29
PART III
Page III-2
Permit No. NC0000272
C. Special Conditions
1. The permittee is required to develop a Plan of Study and conduct appropriate
effluent toxicity testing in order to measure compliance with Item 6 on
Page 1-3 of the permit. All test organisms,.procedures, and quality
assurance criteria used shall be in accordance with "Short-term Methods
for Estimating the Chronic Toxicity of Effluents and Receiving Waters to
Freshwater Organisms,* EPA-600/4-85-014, or other methods approved by
EPA. Chronic toxicity testing will be required for two test organisms;
testing will be used to determine the effects of the effluent on survival,
reproduction, and/Or growth of the test organisms. The requirements for
two test organisms may be waived upon adequate determination of the more
sensitive test organism. This determination shall include an analysis of
the testing results from at least four toxicity tests required by this
permit. For the period of one year following initiation of the tests,
toxicity testing will be conducted once per month during July,.August and
September, and once every quarter for the remainder of the year. After
the first year of testing, toxicity testing will be conducted once every
six months for the duration of the permit. One of these toxicity tests
will be conducted during the months of July, August, or September. If
any one test indicates that the NOEL is less than the IWC for a specific
sampling period, a confirmatory toxicity test using the specified method-
ology and the same test species shall be conducted within •2 weeks. If
this confirmatory test indicates that the NOEL is less than the IWC for
the confirmatory test, this will constitute a violation of the. permit.
In the event a violation of the toxicity limit results in an enforcement
action, any different or more stringent monitoring requirements imposed
in that enforcement action shall apply in lieu of this permit condition
for whatever period of time is specified by EPA in the enforcement action.
The permittee shall submit the Plan of Study to EPA within sixty (60)
days of the effective date of this permit. The EPA will review the Plan
of Study within thirty (30) days of its receipt and, upon approval, the
Plana Study will become an enforceable part of this permit. Toxicity
testing commence no later than one -hundred and twenty (120) days
after effective date of this permit.
2. The perm4iltee is required to operate oxygen injection facilities at the
outfalIstructure, at 0.9 miles downstream of the discharge, and at 2.1
miles downstream of the discharge. These facilities shall be operated in
a 'Tanner which will maintain the water quality standard for dissolved
oxygen in the Pigeon River downstmenof the discharge.
„ . .

D-30
PART III
Page II-3
Permit No. NC0000272
The permittee.shall monitor the Pigeon River at six locations downstream
of the discharge. The locations of instream monitoring stations (show as
Niles upstream of the confluence with the French Broad River) are listed
below:
River Mile
62.9
57.7
55.5
53.5
48.2
42.6
Monitoring requirements for this sampling p>..yLamn are specified below:
a) Sampling for dissolved oxygen and temperature shall be conducted once
per week for all stations. A rnininurn of two sanples shall be collected
for dissolved oxygen and temperature`at each station for each day
samples are collected. The sample type for instreant dissolved oxygen
and temperature monitoring is "grab."
b) Monitoring for five day biochemical oxygen demand (HODS) shall be
conducted once per week for all stations. The sample type for instream
BOD5 santoles is "grab."
c) Average daily flows shall be measured at river mile 55.5.
Limitations to nteasure;:compliance with the requirements of this special
condition are as follows:
a) The average daily dissolved oxygen concentration measured at river
mile 62.9 and 57.7 shall not be less than :5.0mg/1 and the instantaneous
minimum dissolved oxygen concentration shall not be less than 4.0 mg/1.
b)
During periods in whichthe flow at river mile 55.5 is equal to or
than.10O°cfs, the average daily..dissolved oxygen concentration
at river mile 55.5 shall not be less; than 5.0 mg/1 and the
instantaneous minimum dissolved oxygen concentrationshall not be
less.: than 4.0 ng/l
c) During periods in which theflow at mile 55.5 is less than 100 cfs,
the average daily dissolved oxygen concentration measured at river
mile 55.5 shall not be less than 8.2 mg/1.
3. Within 60 days after the effective date of this permit, the permittee
shall submit a study plan acceptable to EPA to further evaluate the
levels of chloroform in the :effluent ;.and the fate of chloroform in the
Pigeon; River downstream of the discharge. The EPA will review the study
plan within thirty days of its receipt and, upon approval, the study plan
will become an enforceable part of this. permit.

D-31
•

D-32
Champion International Corporation
v
United States F nvironmental Protection Agency, et al
648 F. Supp. 1390

D-33
Champion Intern. Corp. v. U.S. E.P.A., 648 F.Supp. 1390 (1986)
25 ERC 1502, 17 Envtl. L. Rep. 20,486 ....� �µ....w.T.
KeyCite Red Flag - Severe Negative Treatment
Judgment Vacated by Champion Intem. Corp. v. U.S. E.P.A., 4th
Cir.(N.C.), June 24, 1988
648 F.Supp. 1390
United States District Court,
W.D. North Carolina,
Asheville Division.
CHAMPION INTERNATIONAL CORPORATION,
Plaintiff,
and
State of North Carolina, ex rel. Department of
Natural Resources and Community Development,
Intervenor -Plaintiff,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; Lee M. Thomas,
Administrator, U.S. Environmental Protection
Agency; and Jack E. Ravan, Regional
Administrator, Region IV, U.S. Environmental
Protection Agency, Defendants,
and
State of Tennessee, on Behalf of the Tennessee
Department of Health and Environment and the
Tennessee Wildlife Resources Agency,
Intervenor -Defendant,
and
Pigeon River Action Group; and the Legal
Environmental Assistance Foundation,
Intervenor -Defendants.
Civ. No. A—C-86-26.
Dec. 1, 1986.
Motion for Withdrawal of Mandate Denied Feb. 3,
1987.
Synopsis
Paper mill owner and state brought action against
Environmental Protection Agency challenging
Environmental Protection Agency's assumption of
permitting authority for NPDES permit sought by paper
mill owner. The District Court, Sentelle, J., held that: (1)
EPA's objections to state -issued peiulit were not arbitrary
and capricious, and (2) upon state's failure to request a
hearing or issue revised penult, EPA assumed permitting
authority, which extended to all aspects of the peunit, not
merely those to which the EPA had objected.
18 =' ; INA' © 2018 Thomson Reuters.
Judgment for defendants.
West Headnotes (7)
[11
[21
[31
Environmental Law
;ramConditions and limitations
National Pollutant Discharge Elimination
System peirnit which does not contain
conditions adequate to achieve state water
quality standards approved under the Clean
Water Act is outside the requirements of the
Clean Water Act and its regulations, and
administrator of the Environmental Protection
Agency may object to such a permit. Federal
Water Pollution Control Act Amendments of
1972, §§ 303, 402(d)(2)(B), as amended, 33
U.S.C.A. §§ 1313, 1342(d)(2)(B).
Cases that cite this headnote
Environmental Law
(--Discharge of pollutants
Environmental Protection Agency's decision to
object to NPDES permit issued by state because
it failed to assure compliance with the state's
revised color standard was not arbitrary and
capricious. Federal Water Pollution Control Act
Amendments of 1972, §§ 303, 402(d)(2)(B), as
amended, 33 U.S.C.A. §§ 1313, 1342(d)(2)(B).
Cases that cite this headnote
Environmental Law
4--,Discharge of pollutants
State's letter in response to Environmental
Protection Agency objection to state -issued
NPDES permit which was not styled as a
revised permit did not meet requirements of
Clean Water Act and, at the expiration of 90
No claim to original U.S. Government Works. _m_.. 1

D-34
Champion Intern. Corp. v. U.S. E.P.A., 648 F.Supp. 1390 (1986)
25 ERC 1502, 17 Envtl. L. Rep. 20,486u .......w.._...
[4)
[51
[6]
days following the EPA's objection, permitting
authority passed to the EPA by operation of law.
Federal Water Pollution Control Act
Amendments of 1972, § 402(d)(4), as amended,
33 U.S.C.A. § 1342(d)(4).
2 Cases that cite this headnote
Environmental Law
Discharge of pollutants
Environmental Protection Agency did not act
arbitrarily and capriciously in objecting to
state -issued NPDES penult because of its failure
to unequivocally require compliance with either
that state's or neighboring state's color
standards. Federal Water Pollution Control Act
Amendments of 1972, §§ 303, 402(d)(2)(B), as
amended, 33 U.S.C.A. §§ 1313, 1342(d)(2)(B).
Cases that cite this headnote
Environmental Law
€»Discharge of pollutants
Environmental Protection Agency did not act in
an arbitrary and capricious manner by applying
a numerical color standard when objecting to
issuance of NPDES penuiit by state even though
the state standard upon which EPA based its
objection was only a narrative standard. Federal
Water Pollution Control Act Amendments of
1972, §§ 303, 402(d)(2)(B), as amended, 33
U.S.C.A. §§ 1313, 1342(d)(2)(B).
1 Cases that cite this headnote
Environmental Law
cr Discharge of pollutants
Environmental Protection Agency was justified
in objecting to state -issued NPDES permit on
basis of dispute between issuing state and
neighboring state over appropriate color
WrStl,A0 © 2018 Thomson Reuters. No claim to original
[7]
standard. Federal Water Pollution Control Act
Amendments of 1972, § 402(d)(2)(A), as
amended, 33 U.S.C.A. § 1342(d)(2)(A).
Cases that cite this headnote
Environmental Law
== Discharge of pollutants
NPDES permit issued by the Environmental
Protection Agency after it has objected to a state
permit and the state has not requested a hearing
or submitted a revised permit must meet all
applicable requirements and EPA obtains
jurisdiction with respect to all of those
requirements, not merely the requirement which
gave rise to its objection.
Cases that cite this headnote
Attorneys and Law Firms
*1391 Porter, Wright, Morris & Arthur, Columbus, Ohio
by J. Jeffiey McNealey, Michael K. Glenn, Washington,
D.C., Redmond, Stevens, Loftin & Currie, Asheville,
N.C. by John S. Stevens and Gwynn G. Radeker, for
plaintiff.
Alan S. Hirsch & Daniel C. Oakley, Asst. Attys. Gen.,
N.C. Dept. of Justice, Raleigh, N.C., for
plaintiff -intervenor State of N.C.
U.S. Atty. Charles R. Brewer; Asst. U.S. Atty. Clifford
Marshall, Asheville, N.C., F. Henry Habicht, II, Asst.
Atty. Gen., Land and Natural Resources Div.; Susan L.
Smith, Atty., U.S. Dept. of Justice, Land and Natural
Resources Div., Environmental Defense Section,
Washington, D.C., Jan Taradash, Office of Gen. Counsel,
U.S. Environmental Protection Agency, Washington,
D.C., Thomas M. DeRose, Office of Regional Counsel,
Region IV, U.S. Environmental Protection Agency,
Atlanta, Ga., for defendants.
Gary A. Davis, Knoxville, Tenn., Sean Devereux,
Asheville, N.C., for defendants -intervenors Pigeon River
Action Group and Legal Environmental Assistance
Foundation.
U.S. Government Works.

D-35
Champion Intern. Corp. v. U.S. E.P.A., 648 F.Supp. 1390 (1986)
25 ERC 1502, 17 Envtl. L. Rep. 20,486
State of Tennessee, Office of the Atty. Gen., Nashville,
Tenn. by W.J. Michael Cody, Frank J. Scanlon & Michael
D. Perigen, Robert W. Spearman, Raleigh, N.C., for
defendant -intervenor State of TN.
MEMORANDUM OF DECISION
SENTELLE, District Judge.
THIS MATTER is before the court on cross -motions for
summary judgment. For the following reasons, it appears
to the court that the defendants' motions are well taken.
FACTUAL BACKGROUND
Plaintiff Champion owns a pulp and paper mill located in
Haywood County, North Carolina, on the Pigeon River,
approximately 26 miles upstream from the North
Carolina/Tennessee border. The Pigeon River is a small
river with a relatively low annual average stream flow of
48 million gallons per day (MGD). The North Carolina
segment of the river is classified as suitable for trout
fishing from the source to the Canton water supply intake
for the Champion Mill. From the Canton water supply
intake to the state line, the river is classified as Class C
(secondary recreation and fish propagation). The river
below the mill is characterized as a fishery, supporting
species that are less sensitive to pollution than trout, such
as carp and goldfish.
The intake for the Champion Mill diverts 46.4 million
gallons a day and returns approximately 45 million
gallons a day. During low flow conditions, the mill
diverts virtually all the flow of the Pigeon River.
On June 30, 1981, Champion's state -issued National
Pollutant Discharge Elimination System (NPDES) permit
for the mill at *1392 Canton expired. That permit did not
contain any color limitations.
North Carolina took no action on the renewal of
Champion's permit until Tennessee and a local citizens'
group, Pigeon River Action Group (PRAG), began to
lobby North Carolina for action to abate the pollution of
the river. In January 1983, Tennessee provided North
Carolina with information indicating that discharges from
the Champion Mill were violating Tennessee's water
quality standards for each designated use. Tennessee
© 2018 Thomson Reuters. No claim to original
requested reissuance or modification of Champion's 1981
permit to address its water quality concerns, noting that
the 1981 permit was issued without prior notification of
Tennessee pursuant to Section 402(b)(3) of the Clean
Water Act.
In February 1983, Tennessee and North Carolina met to
discuss appropriate terms for the renewal permit.
Subsequent to that meeting, Tennessee developed a model
permit for the Champion Mill reflecting the conditions
that Tennessee would impose if it were the permitting
authority. That permit proposed a limit on increase of
apparent in -stream color of 40 color units at the state line.
The 40 color unit limit on increased apparent color was
ostensibly based on observations of laboratory samples
and normal ranges of color in area streams. Tennessee's
color standard is in narrative form and contains no
numerical limits.
In May 1983, Tennessee requested that North Carolina
adopt the model permit. Tennessee renewed this request
in June 1983, and in July, requested that the
Environmental Protection Agency (EPA) investigate and
assist in solving the Champion problem. Also in July,
PRAG requested that EPA exercise careful oversight of
the renewal of the Champion permit.
At the prompting of Tennessee, representatives of North
Carolina, Tennessee and EPA met at EPA regional
headquarters during July of 1983. At that meeting, the
parties agreed to: (1) develop permit limitations for the
mill that would meet the existing water quality standards
of the Pigeon River; (2) consult with the company in
assessing the technical achievability of the limits; and (3)
develop a technically acceptable solution.
To aid in developing the permit limitations, EPA
reviewed the general water quality criteria contained in
the 1968 water quality criteria book and the 1976 water
quality criteria book, as well as specific studies on Pigeon
River pollution, to determine what permit conditions
would satisfy the color standards of the two states. On the
basis of the information available concerning effects of
color on fish and aquatic life, and aesthetic quality in the
Pigeon River, EPA concluded that an in -stream 50 color
unit limit should be reflected in the permit.'
North Carolina and the EPA both conducted modeling
analyses to determine the actual color removal necessary
to meet a 50 color unit in -stream limit at the state line.
These modeling analyses ultimately resulted in
substantially different color removal figures.2
On October 26, 1984, North Carolina gave public notice
U.S. Government Works.
3

D-36
Champion Intern. Corp. v. U.S. E.P.A., 648 F.Supp. 1390 (1986)
25 ERC 1502, 17 Envtl. L. Rep. 20,486
of a draft penult. Tennessee requested a public hearing on
the draft peru.ut to air its objections. The public hearing
was held on January 29, 1985. The draft peuuit conditions
on color provided:
On or before April 11, 1985, the company will
construct, operate, and maintain a 0.100 MGD
ultrafiltration color removal demonstration facility. The
company will make all reasonable efforts to achieve
successful operation of the demonstration facility with
color removal efficiency of 75% based on total effluent
flow, if technically feasible.
*1393 On or before April 11, 1986, the Environmental
Management Commission shall review the operation of
the demonstration facility, both in terms of removal
efficiency and cost. If the Environmental Management
Commission deteiuiines the demonstration facility has
been reasonably successful in achieving color
reduction, the company shall on or before October 11,
1987, construct, operate, and maintain permanent color
removal facilities for the treatment of approximately
2.0 MGD of processed waste water. Company shall
make all reasonable efforts to remove at least 75% of
total mill effluent color, subject to technical feasibility.
At the hearing, Tennessee presented two major objections
to the draft peauiit. First, it contended that Champion must
be required to meet a 75% removal requirement by
October 11, 1987. Tennessee argued that North Carolina
should not qualify Champion's obligation by requiring
75% removal only if technically and economically
feasible through ultrafiltration. Instead, the peiuiit must
impose an absolute requirement, requiring Champion to
apply for a variance if it determined ultrafiltration was not
feasible. Tennessee believed that the variance process
would then allow the state to require alternative control
techniques.
Second, Tennessee argued that the peiiuit should limit
influent color level during low flow. While stating general
agreement with the 75% removal target contained in the
permit, Tennessee explained that, when the influent
contains higher color loadings than usual, 75% might not
achieve a 50 color unit level at the state border during low
flow conditions. Tennessee recommended specific
language defining the flow conditions during which a
limit on influent level would apply. In addition to
appearing at the public hearing, Tennessee presented
detailed recommendations in writing to North Carolina.
In February, EPA submitted adverse comments on the
penult. Like Tennessee, EPA was concerned that 75%
removal would not achieve a 50 color unit level at the
state line unless influent levels remained at 700 to 800
color units.' Additionally, EPA requested a permit
provision requiring that, if ultrafiltration was not feasible,
other color removal techniques be tested until one is
found that will meet the 75% removal requirement.
In the interim, North Carolina's water standard was
changed to include an aesthetic criterion for the first time.
The EPA requested that North Carolina submit a peiniit
provision to meet the amended North Carolina color
standard. North Carolina failed to do so; instead, it issued
a final permit one month later.
The color limitations in the fmal perauit were identical to
those in the draft permit with the exception of the
following new paragraph at the end:
If the Commission determines that
the demonstration facility has not
been reasonably successful in
achieving targeted color reductions,
it may order Champion to
undertake such additional action as
it deems necessary to achieve
appropriate color removal within a
permit as determined by the
Commission. Appropriate color
removal is currently considered to
be 75% removal of total mill
effluent color under present
operational practices; however, the
degree of appropriate color removal
may be subsequently modified by
the Environmental Management
Commission. Such additional
measures may include other color
removal processes, methods or
techniques which the Commission
deteiuiines to be technologically
and economically feasible.
Additional measures may be
ordered either singly or in
combination. Any order pursuant to
this section shall entitle Champion
to a hearing in accordance with the
procedural requirements specified
in G.S. 143-215.4 to contest such
order.
*1394 North Carolina, however, had failed to notify
Tennessee of North Carolina's decision to reject
Tennessee's recommendations on the Champion peiiuit as
required by Section 402(b)(5) of the Clean Water Act.
The state also failed to provide EPA with an opportunity
to comment on the final permit prior to issuance as
WE > ,"_;, © 2018 Thomson Reuters. No claim to original U.S. Government Works. 4

D-37
Champion Intern. Corp. v. U.S. E.P.A., 648 F.Supp. 1390 (1986)
25 ERC 1502, 17 Envtl.µ L. Rep. 20,486' __ " m '
required by 40 C.F.R. § 123.44(a)(b)(j).
On July 18, 1985, EPA notified North Carolina that
issuance of the Champion permit despite the objections of
EPA violated the NPDES regulations and thus could not
be considered a valid permit. Therefore, EPA deemed the
May 14, 1985, permit to be a proposed permit as
described in the regulations.
On August 6, 1985, EPA formally objected to the May
14, 1985, permit because
(1) The peunit did not assure compliance with the
North Carolina water quality standards in that it
provides no basis for how North Carolina interprets,
applies or enforces its narrative color standards
(aesthetic quality);
(2) The permit did not require Champion to
unequivocally comply with either Tennessee's or
North Carolina's standard. If the ultrafiltration
demonstration project is unsuccessful, the penult
does not require any further color removal and only
provides that additional color removal "may" be
required;
(3) The permit did not assure compliance with the
Tennessee color standard since it does not assure the
50 color unit in -stream limit at the state line will be
met when influent values exceed 800 color units at
low flows. EPA also noted that it had found North
Carolina's reasons for rejecting Tennessee's
recommendations to be inadequate pursuant to 40
C.F.R. § 123.44(c)(2), thereby invoking an objection
under § 402(d)(2)(a).
Neither North Carolina nor Champion requested the
public hearing provided for in 40 C.F.R. § 123.44(e), and
North Carolina failed to modify the permit in accordance
with EPA's objections pursuant to 40 C.F.R. §
123.44(h)(1). On November 13, 1985, EPA notified
Champion that it had assumed permitting authority. This
lawsuit ensued.
ANALYSIS
The issue before this court is whether EPA properly and
lawfully objected to the North Carolina issued peuuit and
assumed jurisdiction over the permitting process. The
EPA's August 6 objection letter included three separate
grounds for objection. If even one of those grounds is
proper, then the defendants are entitled to summary
judgment.
North Carolina's Color Standard
Shortly before issuance of the Champion peuuit, North
Carolina adopted and the EPA approved a revised
narrative water quality standard for color pursuant to
Section 303 of the Clean Water Act:
Colored ... wastes: Only such
amounts as will not render the
water injurious to public health,
secondary recreation or to aquatic
life and wildlife or adversely affect
the palatability of fish, aesthetical
quality or impair the waters for
designated uses.
15 N.C.A.C. 2B.0211(b)(3)(f) (1985). Prior to this time,
the North Carolina standard did not contain an aesthetic
requirement. EPA objected to the Champion permit in
part because it failed to assure compliance with North
Carolina's revised color standard. See Item 7,
Administrative Record.
(1] The EPA bases this objection on Section 402(d)(2)(B)
of the Clean Water Act, 33 U.S.C. § 1342(d)(2)(B), which
allows the Administrator to object to any permit proposed
by a state that is outside the guidelines and requirements
of the Clean Water Act. EPA v. State Water Resources
Control Board, 426 U.S. 200, 208, 96 S.Ct. 2022, 2026,
48 L.Ed.2d 578 (1976). An NPDES permit that does not
contain conditions adequate to achieve state water quality
standards approved under Section 303 of the Clean Water
Act is outside the requirements of both the Clean Water
Act and *1395 regulations issued under the Act. 33
U.S.C. § 1342(b)(1)(A); 33 U.S.C. § 1311(b)(1)(C);
Trustees for Alaska v. EPA, 749 F.2d 549, 556-57 (9th
Cir.1984). The NPDES regulations issued under the Clean
Water Act also specifically require that each NPDES
pelulit contain "any requirements ... necessary to: (1)
achieve water quality standards established under Section
303 of the Act." 40 C.F.R. § 122.44(d)(1). Thus, any
permit that fails to contain conditions necessary to
achieve water quality standards violates both the Act and
40 C.F.R. § 122.44(d)(1). The Champion permit did not
contain or reference North Carolina's color standard. Item
18, Administrative Record. Based on this omission, the
EPA has deteunined that the Champion permit fails to
assure compliance with North Carolina's water standard
and is therefore outside the guidelines and requirements
of the Clean Water Act. This determination is to be given
,;rr t ,,_, ,,' © 2018 Thomson Reuters. No claim to original U.S. Government Works. 5

D-38
Champion Intern. Corp. v. U.S. E.P.A., 648 F.Supp. 1390 (1986)
25 ERC 1502, 17 Envtl. L. Rep. 20,486
substantial deference and will be disturbed only if it is
arbitrary and capricious. Cleveland Electric Illuminating
Co. v. EPA, 603 F.2d 1, 5-6 (6th Cir.1979). Under the
arbitrary and capricious standard, the Supreme Court, in
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,
416, 91 S.Ct. 814, 823 24, 28 L.Ed.2d 136 (1971), stated:
[T]he Court must consider whether
the decision was based on a
consideration of the relevant factors
and whether there has been a clear
error of judgment.... Although this
inquiry into the facts is to be
searching and careful, the ultimate
standard of review is a narrow one.
The Court is not empowered to
substitute its judgment for that of
the agency. [Citations omitted.]
[2] Under this standard, the EPA's decision was not
arbitrary and capricious. The objection was based on a
properly promulgated state water standard. 15 N.C.A.C.
2B.0211(b)(3)(f). In its objection letter of August 6, 1985,
the EPA carefully outlined the perceived deficiencies in
the permit as applied to the North Carolina color standard.
In addition, it told North Carolina exactly what additions
to the permit would resolve EPA's concerns. Specifically,
the EPA objected to the permit because it failed to include
the factors to be considered and the methodology to be
used by the Environmental Management Commission to
judge compliance with the color standard in the permit.
Item 7, Administrative Record.
The EPA's objection to a proposed permit must be based
on one of several enumerated grounds. 40 C.F.R. §
123.44(c). One of the grounds listed is that "[t]he permit
fails ... to ensure compliance with any applicable
requirement of this part...." 40 C.F.R. § 123.44(c)(1).
(Emphasis added.) A review of the color removal section
of the permit demonstrates that EPA's concern with
ensuring compliance is not addressed. Clearly, unless
there is some method for measuring compliance, there is
no way to ensure compliance. The EPA reasonably
reached this conclusion. It considered the relevant factors,
i. e., North Carolina's water standard, the terms of the
Champion permit and the requirements of the Clean
Water Act. There has been no clear error of judgment.
Volpe, supra. Therefore, EPA's objection was not
arbitrary and capricious. Based on this objection, the EPA
properly assumed jurisdiction over the peauiitting process.
[3] After the EPA objects, the peuuitting state (or other
interested party) may either request a public hearing or
submit a revised permit that meets EPA's objection within
90 days of receipt of the objection. 40 C.F.R. § 123.44(e);
40 C.F.R. § 123.44(h)(1); 33 U.S.C. § 1342(d)(4). North
Carolina's' only response to the objection came 92 days
after the date of EPA's objection letter. It is not clear
whether the response was within 90 days of receipt of the
objection. Id. However, even if it was within the 90 days,
it still does not meet the requirements of 40 C.F.R. §
123.44. That section requires either a request for a public
hearing or submission of a revised permit. *1396 See also
33 U.S.C. § 1342(d)(4). North Carolina's response was
simply a letter, not even styled as a revised permit. Item 4,
Administrative Record. Therefore, at the expiration of the
90 days, permitting authority passed to the EPA by
operation of law. 40 C.F.R. § 123.44(h)(1); 33 U.S.C. §
1342(d)(4). Because EPA's actions with regard to this
objection were not arbitrary or capricious, EPA is entitled
to summary judgment based on this single objection.
However, this court will address the other two objections
as well.
Unequivocal Compliance
The second ground for EPA's objection to the Champion
permit was that it did not require Champion to
unequivocally comply with either Tennessee's or North
Carolina's water standard. By the terms of the permit,
Champion is required only "to make all reasonable efforts
to remove at least 75% of total mill effluent color, subject
to technical feasibility." Item 18, Administrative Record.
This requirement is subject to a finding by the North
Carolina Environmental Management Commission that
the demonstration facility has been reasonably successful,
both in terms of removal efficiency and cost. If the
demonstration facility is found unsuccessful, the
Commission "may" in the future require some unspecified
"additional action" to achieve "appropriate" color
removal, which is currently considered 75%, but may be
changed on the basis of unspecified factors. See Item 18,
Administrative Record. The EPA contends that, in the
absence of a definite obligation to achieve a certain level
of color removal that will ensure compliance with both
Tennessee's and North Carolina's color standards, the
permit fails to satisfy Section 301(b)(1)(C) of the Clean
Water Act, 33 U.S.C. § 1311(b)(1)(C).
Again, this court must examine EPA's objection in light
of the arbitrary and capricious standard. Cleveland
Electric Illuminating Co. v. EPA, supra, at 5-6. This court
must not attempt to substitute its judgment for that of the
EPA. Rather, it " 'must consider whether the decision was
based on a consideration of the relevant factors and
whether there has been a clear error of judgment.' " Id., at
© 2018 Thonison Reuters. No claim to original U.S. Government Works. 6

D-39
Champion Intern. Corp. v. U.S. E.P.A., 648 F.Supp. 1390 (1986)
25 ERC 1502,17KKEnvtl.. L. Rep. 20,486 ... ,
6, quoting Citizens to Preserve Overton Park v. Volpe,
supra, 401 U.S. at 416, 91 S.Ct. at 824.
[4] The EPA did not act arbitrarily and capriciously in
objecting to the permit based on its failure to
unequivocally require compliance with either North
Carolina's or Tennessee's color standards. The EPA is
authorized to object to a proposed permit if it does not
ensure compliance with the requirements of the Clean
Water Act, 40 C.F.R. § 123.44(c)(1). Even without going
beyond the narrative standards set out by both states, the
EPA could reasonably conclude that the permit fails to
ensure compliance. The language of the permit is clearly
permissive. If the demonstration project is deemed
unsuccessful, then the permit does not require any further
efforts to achieve color removal sufficient to meet the
color standards. In objecting on this basis, the EPA
considered the narrative color standards of both
Tennessee and North Carolina, the teiius of the petinit
and the requirements of the Clean Water Act. Those were
the relevant factors, and there has been no clear error of
judgment. Therefore, the EPA did not act in an arbitrary
and capricious manner and is entitled to summary
judgment on this basis.'
The 50 Color Unit Standard
The third basis of EPA's objection was that the Champion
permit failed to require compliance with Tennessee's
color standard during periods of high influent levels and
low flow. The EPA and Tennessee concluded that, to
comply with Tennessee's narrative color standard, the
Champion permit must contain effluent limitations
sufficient to assure that the color of the Pigeon *1397
River will not exceed 50 color units at the state line. The
EPA further concluded that the conditions in the
Champion peuuit do not assure compliance with the 50
color unit level during low flow conditions when influent
levels exceed 800 units.' The EPA, therefore, concluded
that the permit does not contain effluent limits necessary
to comply with Tennessee's narrative color standard and
objected to the permit as being outside the guidelines and
requirements of the Clean Water Act as well as under the
interstate dispute provision.
North Carolina and Champion contend that Tennessee has
not adopted, pursuant to Tennessee law, a water quality
standard for color of 50 color units and that Tennessee has
not adopted, pursuant to Tennessee law, an interpretation
of its water quality criteria for color to mean a color
limitation of 50 color units. North Carolina's objection
was based on the fact that the numerical interpretation of
the narrative color standard had not been formally
adopted nor subjected to established public hearing
process and subsequent review and approval by the EPA
as prescribed by Section 303 of the Clean Water Act.
Once again, the standard of review is whether the EPA or
Tennessee acted in an arbitrary or capricious manner.
Cleveland Electric, supra. Using this standard, this court
will examine the EPA's (and Tennessee's) decision to
apply a numerical interpretation of the narrative standard
to the Pigeon River and the EPA's (and Tennessee's)
selection of 50 color units as that numerical standard.
[5] North Carolina contends that the EPA acted in an
arbitrary and capricious manner by applying a numerical
color standard to the Pigeon River when Tennessee has
enacted only a narrative standard. Clearly, Tennessee's
standard is a narrative standard and contains no numerical
requirements. However, that fact alone does not establish
that the EPA acted in an arbitrary and capricious manner.
In 1974, the EPA identified color as a pollutant of
national concern in the pulp and paper industry because of
the highly colored effluent resulting from the pulp
washing process. Consequently, the EPA promulgated
national technology based color effluent limitations for
certain segments of the industry. 39 Fed.Reg. 18742 (May
29, 1974). These regulations were upheld in American
Paper Institute v. Train, 543 F.2d 328, 349-54 (D.C.Cir.),
cert. denied, 429 U.S. 967, 97 S.Ct. 398, 50 L.Ed.2d 335
(1976). The EPA withdrew the color limitations in 1982
because it concluded that color was not a problem of
uniform national concern in the industry and should
instead be regulated on a case -by -case basis as dictated by
water quality requirements. 47 Fed.Reg. 52,014 (Nov. 18,
1982) (emphasis added). Therefore, it is the EPA's stated
policy that color standards be determined on a
case -by -case basis. The EPA's selection of a color
standard applicable only to the Pigeon River is right in
line with that stated policy. There has been no clear error
in judgment. Therefore, EPA's actions were within the
scope of its authority and not arbitrary and capricious.
The fact that the EPA selected a numerical standard does
not change this result.
Obviously, the only way a permitee (in this case,
Champion) can adequately comply with the color
standard is for the permit to contain explicit and
unequivocal direction as to how the company can comply.
A numerical requirement accomplishes this result,
infouning the permitee of exactly what must be done to
meet the narrative color standard. In addition, it allows
the regulating authority to readily determine if the
permitee is complying with the color standard. Thus, the
OO 2018 Thomson Reuters. No claim to original U.S. Government Works.
7.

D-40
Champion Intern. Corp. v. U.S. E.P.A., 648 F.Supp. 1390 (1986)
25 ERC 1502, 17 Envtl. L. Rep. 20,486�
application of a numerical interpretation of Tennessee's
narrative standard is not arbitrary and capricious.
Further, the EPA did not act in an arbitrary and capricious
manner when it selected 50 color units as that numerical
interpretation. After carefully examining the
administrative record, this court concludes *1398 that it
contained an adequate basis upon which the EPA could
decide that 50 color units was the appropriate limit. The
record references a number of reports which support a 50
color unit limit.' There is also information in the record
which indicates that the National Council on Pulp and
Paper determined that a change at 20 color units was
perceived by 50% of the people, while a change of 40
color units was perceived by 90% of the people. In
addition, there was information in the record that South
Carolina has used a 40 color unit standard. Item 51,
Administrative Record. Finally, the State of North
Carolina, during a meeting with representatives of the
EPA and Tennessee, agreed to meet a 40 to 50 color unit
level at the state line. Item 49, Administrative Record.
The record clearly indicates that the EPA considered the
relevant factors. See Cleveland, supra. There has been no
clear error of judgment and this court will not substitute
its judgment for the informed, technical judgment of the
EPA. Id. The EPA's selection of a 50 color unit standard
was not arbitrary and capricious, and it was justified in
objecting to the penult as being outside the guidelines and
requirements in that the proposed permit failed to ensure
compliance. 40 C.F.R. § 123.44(c)(1).
The State of Tennessee also selected 50 color units as the
numerical interpretation of its narrative standard. North
Carolina contends that the numerical interpretation is
invalid because Tennessee has not foumally adopted the
interpretation through rule -making procedure. The EPA's
stated policy is to handle color requirements on a
case -by -case basis. 40 Fed.Reg. 52,014 (Nov. 18, 1982).
The Fourth Circuit Court of Appeals recently observed:
When EPA decides to forego
general regulations in favor of
having limits set by individual
permit writers, the Agency has
made a considered decision to set
particular limitations on a
plant -by -plant basis. For this court
to deal with the issue ... as if it were
a general rule -making matter would
be to flout the Agency's approach
to the problem.
Kennecottv. U.S. EPA, 780 F.2d 445, 457 (4th Cir.1985).
In addition, Tennessee law clearly authorizes this sort of
permit limitation.' Any permit granted by the
Commissioner of the Tennessee Depai Latent of Health
and Environment is required to include:
The most stringent effluent limitations and schedules of
compliance either promulgated by the board, required
to implement any applicable water quality standards,
necessary to comply with an areawide waste treatment
plan or necessary to comply with other state or federal
laws or regulations.
T.C.A. § 69-3-108(e)(1) (emphasis added).9
[6] In Tennessee's response, filed at the North Carolina
Environmental Management *1399 Commission's public
hearing, Tennessee thoroughly substantiated its
recommendation of a 50 color unit limit. Item 16,
Administrative Record. Tennessee clearly considered the
relevant factors, just as the EPA did. Tennessee's
selection of a 50 color unit limit was not arbitrary and
capricious. There was no clear error of judgment.
Therefore, the EPA was also justified in objecting under
the interstate dispute provision. 33 U.S.C. §
1342(d)(2)(A).
Neither the EPA nor Tennessee acted in an arbitrary and
capricious manner in selecting 50 color units as the limit
applicable to Champion's discharge into the Pigeon River.
Therefore, EPA's objection was proper under both the
interstate dispute provision, 33 U.S.C. § 1342(d)(2)(A),
and under the provision of allowing objection when the
permit is outside the guidelines and requirements of the
Act, 33 U.S.C. § 1342(d)(2)(B). Thus, the EPA is entitled
to summary judgment on this basis as well.
Scope of EPA Permitting Authority
Champion contends that if this court upholds EPA's
assumption of jurisdiction (which it does), that
jurisdiction should be limited only to the color standard
and that the other permit terms should not be changed
This contention is without merit.
[71 When the EPA objects to a pen it, the state has 90 days
to request a hearing or submit a revised penult. If it does
neither, the EPA may issue a permit pursuant to 33 U.S.C.
§ 1342(d)(2) in accordance with the guidelines and
requirements of the Clean Water Act. 33 U.S.C. §
1342(d)(4). See also 40 C.F.R. § 123.44(c); 40 C.F.R. §
123.44(h)(1).
The permit issued under that section must meet all
© 2018 Thomson Reuters. No clairn to original U.S. Government VVorks. 8

D-41
Champion Intern. Corp. v. U.S. E.P.A., 648 F.Supp. 1390 (1986)
25 ERC 1502, 17 Envtl. L. Rep. 20,486
applicable requirements. 33 U.S.C. §§ 1342(a)(1) and (2).
It clearly contains no other limit on the EPA's permitting
authority once jurisdiction passes to the Agency pursuant
to 33 U.S.C. § 1342(a). The provision of 33 U.S.C. §
1342(d)(2) requiring the EPA to include in the objection
letter the limitations and conditions which the permit
would include if it were issued by the EPA was obviously
intended to instruct the state as to how to resolve EPA's
objections, not to require the EPA to construct a model
permit at this stage of the proceedings. In fact, the EPA
would be acting improperly if it foreclosed all changes in
the permit even before it obtained permitting authority.]°
Under 40 C.F.R. § 123.44(h)(3), exclusive permitting
authority passes to the EPA. `Exclusive" clearly
contemplates that EPA obtains complete control over the
permitting process. In addition, under 33 U.S.C. §
1342(d)(4), after permitting authority has passed to the
EPA, it "may" issue a permit. "May" is clearly permissive
and the EPA, with proper justification, could deny the
permit application.
There is no provision in the Clean Water Act for partial
permits. Either the state or the EPA has authority to issue
the permit. Here, that authority has passed to the EPA and
that authority is exclusive. The EPA is not limited to
consideration of color requirements.
Specific Objections and Further Review
While it is likely that plaintiffs, particularly Champion,
may have specific objections to whatever permit is finally
produced, either encompassed within the topics discussed
above or in addition thereto, these objections are simply
not ripe for discussion nor is this court the proper forum.
Section 509 of the Clean Water Act, 33 U.S.C. § 1369,
vests the courts of appeals with exclusive jurisdiction to
review the Administrator's actions in promulgating new
source performance standards, effluent *1400 standards
for toxic pollutants, and other similar decisions and, most
specifically, in making determinations about the adequacy
of state NPDES programs and in issuing or denying
NPDES permits. 33 U.S.C. § 1369(b)(1). The legislative
history of the 1977 amendments to applicable statutes
indicates that Congress contemplated no review until final
agency action. i'
Motion to Supplement the Record
The motion is ALLOWED, and the items were considered
in reaching this decision.
CONCLUSION
Based on the foregoing, the EPA is entitled to summary
judgment, and a Judgment to that effect will be filed
simultaneously herewith.
All Citations
648 F.Supp. 1390, 25 ERC 1502, 17 Envtl. L. Rep.
20,486
Footnotes
1 Tennessee had earlier reached approximately the same conclusion. See page 1392.
2 The data from EPA's analysis indicated a need for color removal of up to 89%. North Carolina concluded that color
3
removal of up to 35% was necessary. Tennessee's analysis resulted in a recommendation of up to 80% color removal.
The color concentration of effluent discharged by the mill averages 700-900 color units on an annual basis, with
variable concentration that may exceed 1200 color units on some days.
4 Champion did not respond at all.
5 After EPA's objection, North Carolina and Champion had 90 days to respond either by requesting public hearing or by
submitting a revised permit. They did neither, responding only by letter, clearly insufficient under 40 C.F.R. §
123.44(h)(1) and 40 C.F.R. § 123.44(e).
6 See footnote 3, supra.
WFSI:' © 2018 Thomson Reuters. No claim to original U.S. Government Works.

D-42
Champion Intern. Corp. v. U.S. E.P.A., 648 F.Supp. 1390 (1986)
25 ERC 1502, 17 Envtl. L. Rep. 20,486
7 See Items 16, 21 and 50 which reference the following:
Water Quality Criteria, National Technical Advisory Committee to the Secretary of the Interior (1968).
"Report on the Pollution of the Interstate Waters of the Pigeon River (Tennessee -North
Carolina), Federal Water Pollution Control Administration (Feb.1968).
Water Quality Criteria, U.S. EPA (1976).
Churchill, M., "Natural Reduction of Papermill Color in Streams," Sewage & Industrial Wastes, 661 (Vol. 23, No..5,
May 1951).
There are also references in these items to a 1973 EPA report and a 1979 report prepared by the North Carolina
Department of Natural Resources.
8 North Carolina erroneously contends that numerical color limits are not included in other Tennessee permits. In the
Bowater Souther Paper Company permit, effective May 1, 1984, Tennessee imposed a 33 color unit increase limit.
9 See also Tenn.Gen.Reg. 1200-4-1—.05(4)(d):
In the application of effluent standards and limitations, water quality standards, and other legally applicable
requirements, the Commissioner may, for each issued permit, specify average and maximum daily quantitative
limitations for the level of pollutants in the authorized discharge in terms of weight (except pH temperature,
radiation, and any other pollutants not appropriately expressed by weight). The Commissioner, may, in addition to
the specifications of daily quantitative limitations by weight, specified daily average and daily maximum
concentration limits for those pollutants subject to limitation. In addition, limitations expressed in other terminology
may be required when necessary to protect water quality or to describe adequate operation of the treatment
facility.
(Emphasis added.)
10 The permit program under 33 U.S.C. § 1342(a) is subject to the same requirements as a state permit program under
33 U.S.C. § 1342(b). 33 U.S.C. § 1342(a)(3). That section requires that the program "... provide an opportunity for
public hearing...." 33 U.S.C. § 1342(b)(3).
11 "Judicial review arising out of this provision would be in the same manner as judicial review of any EPA issued 402
permit." H.R.Rep. No. 95-830, 95th Cong., 1st Sess. (1977). The Administrative Procedure Act cited by plaintiff as an
alternate basis for jurisdiction for this court likewise requires that an agency action be ripe for judicial determination and
a final decision. Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967).
Therefore, should plaintiffs or either of them have valid objections to EPA's final action once it has exercised its
permitting authority, those objections can be raised in the appropriate circuit court of appeals at that appropriate time.
End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.
.i` ' i ''°j'-} ©2018 Thomson Reuters. No claim to original U.S. Government Works.
10

D-43
Champion International Corporation
United States Environmental Protection Agency, et al
US Court of Appeals for the Fourth Circuit
850 F.2d 182

D-44
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850 F.2d 182, *; 1988 U.S. App. LEXIS 8621, **;
28 ERC (BNA) 1013; 18 ELR 21372
Champion International Corporation, Plaintiff -Appellant, and State of North Carolina,
Plaintiff, v. United States Environmental Protection Agency; Lee M. Thomas,
Administrator, U. S. Environmental Protection Agency; Jack E. Raven, Regional
Administrator, U. S. Environmental Protection Agency; State of Tennessee, on Behalf of the
Tennessee Department of Health and Environment and the Tennessee Wildlife Resources
Agency; Pigeon River Action Group; Legal Environmental Assistance Foundation, Defendants-
Appellees
No. 87-3529
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
850 F.2d 182; 1988 U.S. App. LEXIS 8621; 28 ERC (BNA) 1013; 18 ELR 21372
October 5, 1987, Argued
June 24, 1988, Decided
SUBSEQUENT HISTORY: (**1] As amended June 24, 1988.
PRIOR HISTORY: Appeal from the United States District Court for the Western District of
North Carolina, at Asheville, No. CA-86-26-A-C, David B. Sentelle, District Judge.
DISPOSITION: Vacated and remanded with instructions.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff corporation challenged an order of the United States
District Court for the Western District of North Carolina, which granted defendant
Environmental Protection Agency's motion for summary judgment. The case involved the
EPA's permit granting authority.
OVERVIEW: Plaintiff corporation filed an action against defendant Environmental
Protection Agency, seeking declaratory and injunctive relief. Plaintiff alleged that
defendant's objections to a specific permit were invalid and defendant was without power
to assume permitting authority. The district court granted defendant's motion for
summary judgment. On appeal, the court vacated the summary judgment, holding that
the district court lacked subject matter jurisdiction to entertain the suit. The court ruled
that defendant was within its authority under 33 U.S.C.S. $ 1342(d) in assuming the
permit granting authority. The court concluded that defendant's objections were within
statutory and regulatory limits. The court remanded for dismissal for want of subject
matter jurisdiction.
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D-45
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OUTCOME: The court vacated the summary judgment in favor of defendant
Environmental Protection Agency, because judicial review of the merits of defendant's
objections was premature. The court remanded with instructions to dismiss the case for
lack of subject matter jurisdiction.
CORE TERMS: river, issuing, judicial review, administrator, Clean Water Act, color,
subject matter jurisdiction, guideline, water quality, public hearing, reviewable, issuance,
delegated authority, oversight, effluent, removal, agency action, quantitative, pollutants,
impasse, revised, veto, aesthetic, objected, legislative history, conservation, prescribed,
completion, narrative, objecting
LEXISNEXIS® HEADNOTES s: Hide
Environmental Law > Water Quality > Clean Water Act > Discharge Permits > Effluent Limitations #Alu
H/VL±33 U.S.C.S. § 1311(a) prohibits the discharge of pollutants into waters of the
United States absent compliance with the Clean Water Act. More Like This Headnote
Shepardize: Restrict By Headnote
Environmental Law > Litigation & Administrative Proceedings > Judicial Review 41
Environmental Law > Solid Wastes > Permits > General Overview t«i
Environmental Law > Water Quality > Clean Water Act > Discharge Permits > General Overview«.
HN2+Under 33 U.S.C.S. §$ 1342 and 1342(c), the National Pollutant Discharge
Elimination System permits may be issued by either the Environmental Protection
Agency (EPA) or a state that has been granted permitting authority. Once a state
has gained approval as a permitting authority by the EPA, it is the initial and
primary issuer for its geographical jurisdiction, and the EPA exercises oversight
authority. More Like This Headnote I Shepardize: Restrict By Headnote
Environmental Law > Solid Wastes > Permits > General Overview tl1
Govemments > State & Territorial Governments > Licenses
HN3±33 U.S.C.S. § 1342(d) allows the Environmental Protection Agency (EPA) to take
jurisdiction and issue a permit in the event of an impasse between a state and
the EPA administrator. More Like This Headnote I Shepardize: Restrict By Headnote
Environmental Law > Solid Wastes > Permits > General Overview 'irl
Environmental Law > Water Quality > Clean Water Act > Discharge Permits > General Overview '40
HN4+ Under 33 U.S.C.S. § 1342(d)(2)(A), the Environmental Protection Agency
administrator may object to the issuance of a state permit in the instance of an
unresolved interstate dispute. Under § 1342(d)(2)(B) allows the administrator to
object to a permit, which is outside the requirements of the Clean Water
Act. More Like This Headnote I Shepardize: Restrict By Headnote
Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions >
General Overview 7sii
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HNS±The Environmental Protection Agency (EPA) may object to a state permit for any
of the reasons delineated in 40 C.F.R. pt. 123.44(c)(1)-(7). If the state does not
either resubmit the permit in response to the EPA's objections or request a public
hearing within 90 days, issuing authority passes automatically to the EPA under
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D-46
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pt. 123.44(h)(1), More Like This Headnote I Shedardize: Restrict By Headnote
Administrative Law > Judicial Review > Reviewability > General Overview1
Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview!.
Environmental Law > Litigation & Administrative Proceedings > Judicial Review t«
HN6 Agency action is reviewable in the district courts under 28 U.S.C.S, § 1331,
unless a statute limits the review. More Like This Headnote
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Environmental Law > Water Quality > Clean Water Act > Discharge Permits > Public Participation ti
11N7+See 33 U.S.C.S. 1342(d)(4).
COUNSEL: John Jeffrey McNealey (Michael K. Glenn, Michael G. Dowd, John S. Stevens,
Gwynn G. Radeker, Benjamin S. Bilus, on brief) for Appellant.
Blake Andrew Watson, Department of Justice (David C. Shilton, Susan L. Smith, Department
of Justice; W. J. Michael Cody, Attorney General; Frank J. Scanlon, Deputy Attorney
General; Michael D. Pearigen, Assistant Attorney General; F. Henry Habicht, II, Assistant
Attorney General, Robert W. Spearman, Adams, McCullough & Beard, Gary A. Davis, Susan
C. Lepow, Gail B. Cooper, Environmental Protection Agency, on brief) for Appellees.
JUDGES: Widener and Wilkins, Circuit Judges, and Butzner, Senior Circuit Judge.
OPINION BY: WIDENER
OPINION
[*183] WIDENER, Circuit Judge:
This case comes to us on appeal from summary judgment granted in favor of the defendant,
United States Environmental Protection Agency (EPA). While we agree with much of the
district court's opinion, we are of opinion that judicial review of the merits of EPA's objections
is premature, [**2] so we vacate the judgment of the district court and remand with
instructions to dismiss the case for lack of subject matter jurisdiction.
The plaintiff in this action, Champion International Corporation .(Champion), has operated a
pulp and paper mill in Canton, North Carolina since 1907. The mill is located in Haywood
County, North Carolina, on the Pigeon River, twenty six miles upstream from the
Tennessee -North Carolina border. The Pigeon River is classified as suitable for trout fishing
from its source to the Canton mill. From that point to the river's mouth near Newport,
Tennessee, the river is classified as Class C, secondary recreation and fish propagation,
The Canton mill diverts 46.4 million gallons per day from the Pigeon River for its pulp and
paper production and returns 45 million gallons per day. The average flow of the Pigeon
River at Canton is 48 million gallons per day. Thus the Canton mill diverts substantially the
entire flow of the Pigeon River, particularly during low flow periods. Because of dissolved
solids resulting from the manufacturing process, the Pigeon River has a brown murky
appearance below the Canton mill to the Tennessee border and beyond. 1 From [**3] the
state line, the Pigeon River flows northwesterly until it joins the French Broad River at a
point approximately five miles north of Newport, Tennessee. Directly adjacent to the
Tennessee border, the land along the Pigeon River is primarily scenic wooded and
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recreational areas.
FOOTNOTES
i The 1979 study conducted by the North Carolina Department of Natural Resources and
Community Development lists six minor and two major discharges into the Pigeon River.
The study acknowledges, however, that the vast majority of effluent in the Pigeon River
can be attributed to Champion. At no point does Champion contest this fact. There are
few records of the condition of the Pigeon River prior to the opening of the Champion Mill.
Some older residents have been interviewed by defendant -intervenor Pigeon River Action
Group. These interviews indicate that the river immediately below Canton was probably
of trout stream quality as well prior to 1907.
Until 1981, the Canton Mill operated under a National Pollutant Discharge Elimination
System [**4] (NPDES) permit issued by the State of North Carolina. This permit was
originally issued in 1977. On June 30, 1981, the permit expired. No action was taken
concerning the permit until 1983. Champion continued to operate the mill under the
guidelines of the expired permit.
In January of 1983, Tennessee informed North Carolina that it felt Champion to be in
violation of Tennessee water quality standards with respect to uses designated for the
Tennessee portion of the Pigeon River. Tennessee requested that any reissuance or
modification of the expired permit incorporate its water quality concerns. 2 Tennessee
developed a model permit that would satisfy the Tennessee water quality standards and
submitted it to North Carolina. In May of 1983, Tennessee requested that North Carolina
adopt the model permit and renewed this request in June 1983. Tennessee requested EPA
assistance the following month. In September 1983, representatives of Tennessee, North
Carolina [*184] and the EPA met in order to develop a solution that would meet all
guidelines while remaining feasible for Champion.
FOOTNOTES
z Tennessee also brought a civil action against Champion seeking injunctive relief under
state statutory and common law nuisance theories. That action was ultimately dismissed
on the grounds of the preemptive effect of the Clean Water Act. State v. Champion
Intern. Corp., 709 S.W.2d 569 (Tenn. 1986). Tennessee has expressed concern with the
Pigeon River pollution problem since 1945.
[**5] The major area of concern on Tennessee's part, and the only permit requirement at
issue in this case, is the amount of color removal necessary for Champion to comply with the
Clean Water Act, taking into account Tennessee's legitimate concerns. 3 To that end, each
entity conducted a modeling analysis to determine the amount of color removal necessary in
order for Champion's discharge to be within limits. 4 At the time the administrative
proceeding commenced, Tennessee and North Carolina both had narrative color standards. 5
While the permit application was pending, North Carolina amended its standard to include a
limitation which included aesthetic considerations, effective January 1, 1985.
FOOTNOTES
3 The concern with color not only reflects aesthetic considerations, the excess color
prevents normal development of the aquatic life in the river.
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4 Tennessee determined that 80% color removal was necessary; the EPA calculated an
89% figure; while North Carolina's standard resulted in a 35% figure.
5 A narrative standard means a standard without quantitative limits. Tennessee
guidelines also provide for the discretionary assignment of quantitative limitations in
order to meet the narrative standards. Tenn. Code Ann. 69-3-108(e); Tenn. Gen. Reg.
1200-4-1.05(4)(d). Tennessee has assigned such quantitative limits in permits for which
it was the issuing authority. The Bowater Souther Paper Co. permit, issued May 1, 1984,
is one example.
[**6] A public hearing was held on January 29, 1985, at Tennessee's request, in order to
hear objections to North Carolina's draft permit. The two primary objections were, first, that
North Carolina did not hold Champion to an absolute standard of 75% color removal but had
qualified the standard by linking it to technical and economic feasibility. Second, irrespective
of technical feasibility, the 75% removal requirement would not guarantee that water quality
standards would be met during the low flow periods on the Pigeon River. In February of
1985, the EPA submitted similar objections to North Carolina.
As noted, North Carolina, effective January 1, 1985, during the pendency of the
administrative proceeding, amended its water quality standards to include an aesthetic
criterion for color. 6 Despite this change, North Carolina did not substantially alter the draft
permit nor did it respond directly to the objections of either Tennessee or the EPA. North
Carolina instead issued a final permit on May 14, 1985 substantially identical to the draft
permit.
FOOTNOTES
6 The standard for North Carolina reads:
Oils: deleterious substances: colored or other wastes; only such amounts as will not
render the waters injurious to public health, secondary recreation or to aquatic life and
wildlife or adversely affect the palatability of fish, aesthetic quality or impair the waters
for only designated uses: North Carolina Rule T15: 002B.021 1(b)(3)(F),
[**7] On July 18, 1985, EPA notified North Carolina that the May 14th permit would be
considered to be a proposed permit as defined in the regulations. This was done because
North Carolina had not complied with either the Memorandum of Agreement (MOA) 7 or the
EPA regulations in that it had not provided EPA with a proposed final permit prior to
issuance. On August 6, 1985, the EPA formally objected to the May 14th permit on the
grounds that it:
FOOTNOTES
7 A Memorandum of Agreement (MOA) is an agreement between the EPA and a State as
to the administration of the NPDES permit program. See 40 C.F.R. § 123.24.
1) Did not assure compliance with water quality color standards under 33 U.S.C, 1311(b)
(1)(C), and did not, with certain qualifications, insure a 50 color count standard 26 miles
downstream;
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2) Did not unequivocally require Champion to comply with color standards; and
3) Was not an adequate response to Tennessee's objections to the permit for the reasons
stated just above. 8
FOOTNOTES
8 We recognize that Tennessee may not impose its standards on North Carolina. It may
complain, however, to the EPA, as was done here. International Paper Company, infra,
479 U.S. 481, 107 S. Ct. 805, 55 L.W. at 4141.
[**8] North Carolina did not modify its May 14th permit. North Carolina's only response
[*185] was a letter stating that it felt the permit complied with all guidelines and that
Tennessee's proposed quantitative color limit, for various reasons, should not be accepted.
Neither North Carolina nor Champion requested a public hearing on EPA's objections. On
November 13, 1985, EPA informed Champion that it had assumed permitting authority.
Champion brought this action on January 17, 1986, seeking declaratory and injunctive relief.
The gravamen of its complaint was that the EPA's objections to the May 14th permit were
invalid and that the EPA was without power to assume permitting authority. It complained of
EPA's "... failure to approve . [the Nor . . . ' a] tewater discharge permit for
Champion's Canton ... mill...." On .rch 20, 198: the tate of North Carolina intervened
in the action, substantially adopting the position of Ch:mpio . 9 The district court granted
summary judgment in favor of EP 648 F. Su... 1390. Cha pion brought this appeal. The
State of North Carolina has not aps-aled and apparently h. acquiesced in the EPA's
assumption [**9] of permit granting : thority in the i ance of the permit in question.
FOOTNOTES
9 The State of Tennessee, Pigeon River Action Group (PRAG) and the Legal
Environmental Assistance Foundation (LEAF) also intervened as party defendants. PRAG
is a citizen conservation group. LEAF is a public interest legal and technical support
group.
The goals of the Clean Water Act are achieved primarily through the National Pollutant
Discharge Elimination System (NPDES), a nationwide system of issuing permits to individuals
and entities that discharge pollutants into United States waters. F./NIT-Discharge of pollutants
into waters of the United States is prohibited absent compliance with the Clean Water Act.
33 U.S.C. § 1311(a). NN2TNPDES permits may be issued by either the EPA or a State that
has been granted permitting authority. 33 U.S.C. § 1342. Once a State has gained approval
as a permitting authority by the EPA, it is the initial and primary issuer for its geographical
[**10] jurisdiction, and the EPA exercises oversight authority. 33 U.S.C. $ 1342(c). North
Carolina gained issuing authority for NPDES permits in 1975.
The EPA's oversight powers were significantly altered by the 1977 amendments to the Clean
Water Act. Prior to that time, the EPA could effectively veto a state permit, but could not
then issue its own permit. This EPA veto was considered final administrative action subject to
judicial review. Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 63 L. Ed. 2d 312, 100 S. Ct.
1093 (1980). NN3TAs amended in 1977, 33 U.S.C. 1342(d) now allows the EPA to take
jurisdiction and issue a permit in the event of an impasse between a State and the EPA
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Administrator.
33 U.S.C. § 1342(d)(2) provides two separate grounds for the EPA to object to a state
permit. HN4 ,Under 33 U.S.C. § 1342(d)(2)(A), the EPA Administrator may object in the
instance of an unresolved interstate dispute. 33 U.S.C. § 1342(d)(2)(B) allows the
Administrator [**11] to object to a permit which is outside the requirements of the Clean
Water Act,
The mechanics of the EPA's oversight of North Carolina's permit granting program are
contained in the Memorandum of Agreement (MOA) entered into by the State and the EPA.
HN5 The EPA may object to a state permit for any of the reasons delineated in 40 C.F.R. Part
123.44(c)(1)-(7). If the State does not either resubmit the permit in response to the EPA's
objections or request a public hearing within 90 days, issuing authority passes automatically
to the EPA. 40 C.F.R. 123.44(h)(1).
We must first address the issue of whether the district court should have entertained this
suit at all or should have summarily dismissed the same for want of subject matter
jurisdiction. 10 We are of opinion the district court had subject matter jurisdiction to
ntertain the suit under Leedom v. Kyne, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180
to the extent that it properly inquired whether the EPA had [*186] exceeded its
delegated authority. When that question was ascertained favorably to EPA, the district court
should have gon o further and should have [**12] dismissed for want of subject matter
jurisd4dibn to consider the merits of the various objections EPA made to the North Carolina
permit. eedom v. Kyne requires that a federal court ascertain whether an administrative
ncy is acting within its authority and if the decision is that the agency is within its
authority, the court is then required to dismiss the case for want of subject matter
jurisdiction when the subject matter is one entrusted to the agency or in which review of the
administrative decision has been specifically prescribed by Congress. li
FOOTNOTES
io EPA objected to the jurisdiction of the court in a motion to dismiss and pursues that
objection here.
it The situation is thus the opposite of, but remarkably similar to, the rule of Bell v.
Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773 (1946), which is to the effect that if a
cause of action and jurisdiction of the court depend on the same facts, a case should
either be tried or dismissed on the merits rather than for want of subject matter
jurisdiction. Here, the courts have authority to inquire whether or not the administrative
agency is acting within its delegated authority, and if the agency is so acting, then the
court should proceed no further and dismiss for want of subject matter jurisdiction rather
than consider the merits.
[**13] We think that the district court correctly decided that EPA was within its authority
in assuming the permit granting authority under 33 U.S.C. § 1342(d), and we further think
that Congress has prescribed review in a court of appeals rather than the district court. We
also are of opinion that the objections EPA made to the North Carolina permit were within
statutory and regulatory limits, so that, upon its ascertainment that EPA was acting within its
authority, the district court should have then dismissed the complaint for want of subject
matter jurisdiction. Our reasoning follows.
The first question to be answered is whether this is the type of case where an agency has
clearly exceeded its delegated powers thus creating an immediate right of judicial review in
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the district court. Leedom v. Kyne, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180 (1958). We
recognize that a determination of lack of jurisdiction precludes us from determining the
merits of the case. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 66 L. Ed. 2d
571, 101 S. Ct. 669 (1981). [**14] The nature of the type of inquiry authorized by Leedom
v, Kyne is such that a cursory review of the merits, however, is necessary to determine if the
EPA is acting clearly beyond the boundaries of its authority. The facts of this case do not
support a conclusion that the EPA has so exceeded its powers.
The statute at issue authorizes the EPA to assume issuing jurisdiction in the situation where
an impasse has been reached between the EPA and the state authority. The Senate Report
indicates the intent of Congress is consistent with EPA's action here
EPA has been much too hesitant to take any actions where States have approved
permit programs. The result might well be the creation of "pollution havens" in
some of those States which have approved permit programs. This result is
exactly what the 1972 amendments were designed to avoid. Lack of a strong EPA
oversight of State programs is neither fair to industry nor to States that are
vigorously pursuing the act's requirements. The committee is concerned that the
Agency is not conducting a vigorous overview of State programs to assure
uniformity and consistency of permit requirements and of the enforcement of
violations of permit [**15] conditions. S. Rep. No. 370, 95th Cong., 2d Sess.
73, reprinted in 1977 U.S. Code Cong. & Admin. News 4326, 4398.
The even more authoritative Conference Report addressed this as well.
There have been occasions under the existing law where the Administrator has
objected to the issuance of a State permit, the State has refused to issue a
revised permit, and in the absence of effluent limitations for a source specified in
a permit, the Administrator has initiated enforcement action against the source
seeking particular effluent reductions. This may also have occurred in other cases
where a valid permit is not in effect. After the date of enactment of this provision
the Administrator is expected [*187] to use the authority given by this
amendment to issue a permit after objecting to a State -issued permit. Thus any
litigation over the degree of effluent reduction required for a source should take
place in the context of judicial review of the permit, rather than in the context of
an enforcement action.
The conferees modified this provision of the Senate bill to establish a procedure
for an appeal of an EPA veto 12 of a State permit and to authorize EPA to issue a
permit [**16] in the event of an impasse. This provision in no way authorizes
the Administrator to issue a permit less stringent than required by any State
effluent limitations or water quality standards. That authority is specifically
preserved in Section 510 of the Act and is not affected by this amendment.
Judicial review arising out of this provision would be in the same manner as
judicial review of any EPA issued 402 permit. H. R. Conf. Rep. No. 830, 95th
Cong., 2d Sess. 73, reprinted in 1977 U.S. Code Cong. & Admin. News 4424,
4472.
FOOTNOTES
12 The procedure for appeal of the EPA objections to a state permit referred to by the
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Conference Report is the request for public hearing to contest the objections. As noted,
neither North Carolina nor Champion availed itself of this opportunity.
When we compare the facts of this case to the legislative history of the statute, we see that
the EPA has done exactly what Congress intended it to do, The State of North Carolina
drafted a permit. Both the State of Tennessee and the EPA objected. [**17] North Carolina
did not respond to the EPA objections. Neither North Carolina nor Champion requested a
public hearing on the validity of the EPA objections. North Carolina did not submit a revised
permit in response to the EPA objections. This is in terms the type of impasse that Congress
envisioned, and is the setting in which Congress intended that the EPA assume issuing
jurisdiction. North Carolina simply failed to exercise its option of appealing the EPA veto by
way of a public hearing; neither did it submit a revised permit.
Finally, we find support for the conclusion that the EPA has acted properly in International
Paper Co. v. Ouellette, 479 U.S. 481, 55 U.S.L.W. 4138, 93 L. Ed. 2d 883, 107 S. Ct. 805
(1987). That case dealt with the preemptive effect of the Clean Water Act on common law
nuisance actions. The Court noted that the only alternative for an affected downstream State
is to "... apply to the EPA Administrator, who has the discretion to disapprove the permit if
he concludes that the permit will have an undue impact on interstate waters." Id. at 414
(emphasis supplied).
Again, that is [**18] what has happened here. Tennessee complained and the EPA gave
heed to the complaint. We need proceed no further in analyzing the merits of Champion's
claims, for we are of opinion that EPA's act in assuming the permit issuing authority was
consistent with statute and regulation, and the objections it made to the North Carolina
permit do not seem to be out of bounds. Even if EPA may ultimately be shown incorrect in its
objections to North Carolina's proposed permit (and we do not intimate that they are), its
acts are not so clearly outside its authority to subject them to immediate judicial review in
the district court.
The next question is whether Congress has provided for judicial review of the objections
made by the EPA to the North Carolina permit prior to final action by the EPA. We think it
has not. NN'In the ordinary case, agency action is reviewable in the district courts under
28 U.S.C. § 1331 unless review has been limited by statute. Califano v. Sanders, 430 U.S.
99, 105, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977). The EPA's position is that since it has only
assumed issuing authority [**19] over Champion's permit and has not made any final
determination either to issue or to deny a permit, jurisdiction in this case has be
specifically limited by statute. EPA also contends that review is preclude
judicial doctrines of exhaustion of administrative remedies, ripene nd finality. Bic se we
believe Congress has prescribed a method of judicial review u er 33 U.S.C. 136 in
the context [*188] pressed here, we do not directly address
HN The EPA assumed permitting authority under 33 U.S.C. § 1342(d)(4) which states that:
In any case where, after December 27, 1977, the Administrator, pursuant to
paragraph (2) of this subsection, objects to the issuance of a permit, on request
of the State, a public hearing shall be held by the Administrator on such
objection. If the State does not resubmit such permit revised to meet such
objection within 30 days after completion of the hearing, or, if no hearing is
requested within 90 days after the date of such objection, the Administrator may
issue the permit pursuant to subsection (a) of this section for such
source [**20] in accordance with the guidelines and requirements of this
chapter.
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The legislative history concerning the 1977 amendments is clear with respect to judicial
review of the EPA's decision to assume issuing jurisdiction.
It is intended that this process be utilized to insure the rapid issuance of an
effective, valid permit. The Administrator's action in objecting to a permit would
generally not be subject to judicial review since it will always be followed by
further administrative action. The final issuance of a permit by EPA would be
subject to judicial review pursuant to section 509(b)(1)(F). Senate Debate (Dec.
15, 1977), reprinted in "A Legislative History of the Clean Water Act of 1970,"
vol. 3 at 470 (emphasis supplied).
This statement was made by Senator Muskie during the Senate debate on the 1977
amendments to the Clean Water Act. As Senator Muskie was the manager of the conference
bill in the Senate, his comments have been given significant weight by this court in
construing the Clean Water Act in Chesapeake Bay Foundation v. Gwaltney of Smithfield, 791
F.2d 304, 311 n. 13 (4th Cir. 1986), vacated, 484 U.S. 49, 108 S. Ct. 376, 98 L. Ed. 2d 306,
56 U.S.L.W. 4017 (**21] (U.S. Dec. 1, 1987). 13
FOOTNOTES
13 Notably, the Supreme Court, in vacating our decision in Gwaltney, went to some
length to reconcile its decision with Sen. Muskie's comments rather than merely
according them the lesser weight given floor debates. 484 U.S, at 62, 108 S. Ct. at 384,
56 U.S.L.W. at 4020,
Review of the administrator's action is had directly in the appropriate court of appeals under
33 U.S.C. § 1369(b). Prior to the 1977 amendments of the Clean Water Act, the EPA
administrator's action in objecting to North Carolina's proposed permit would have
constituted a final agency action reviewable by the court of appeals under 1369(bl(1)(F).
Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 63 L. Ed. 2d 312, 100 S. Ct. 1093 (1980).
Prior to 1977, however, the EPA was not empowered to issue its own permit in the instance
where a State did not satisfy [**22] the EPA's objection. And the Court in Crown Simpson
expressly recognized that the 1977 amendments might have impact upon the jurisdictional
question. 445 U.S. at 194 n. 2. Since the EPA clearly intends to continue the administrative
process and ultimately issue or deny a permit to Champion, its objection and assumption of
issuing authority are not final actions subject to judicial review under the doctrine of
administrative finality discussed in Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed,
2d 681, 87 S. Ct. 1507 (1967).
The effect of the two sections of the Act, 33 U.S.C. q§ 1342(d)(4) and 1369(b), is to place
Champion out of court for either of two reasons. If the action of the EPA was reviewable
under § 1369(b), Champion brought its action in the wrong court. If the action of the EPA
was not so reviewable and the EPA had yet to act, then Champion has brought its action
prematurely. The only alternative left to Champion is to argue, as it does, that the action of
the EPA was so outside its statutory authority that [**23] the district court was justified in
interrupting agency action.
Champion argues that even if Senator Muskie's statement is correct, it does not mean that
the assumption of issuing authority will never be immediately reviewable under any set of
circumstances. For support, Champion relies primarily upon Central Hudson Gas & Elec. Corp.
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v. United States EPA, 587 F.2d 549 (2d Cir. 1978). As that case dealt directly with the
[*189] issue of whether a State or the EPA had issuing authority for a discharge permit, it
may appear, at least facially, to bear on the question at hand.
The facts of Central Hudson, however, demonstrate that, as applicable here, it decided no
more than that EPA was not acting outside its authority in retaining jurisdiction over the
issuing authority for certain permits. In that case, the EPA was in the process of issuing
discharge permits to the plaintiffs. In the interim period between the original application to
EPA and final issuance of a permit, the EPA approved the status of the New York State
Department of Environmental Conservation as an issuing authority for discharge permits.
The Clean Water Act provided that once [**24] a state program received state approval,
the EPA must cease issuing permits. See 33 U.S.C, § 1342(c)(1). The EPA had interpreted
this section to mean that no new applications would be accepted by the EPA, but that it could
complete any pending applications. Thus the very narrow question presented to the court of
appeals was whether applications pending with the EPA at the time approval was given to the
New York State Department of Environmental Conservation must be turned over to the
jurisdiction of the state agency. The court first found that this was not agency action
described in § 1369(b)(1) and thus was not subject to the exclusive jurisdiction of the court
of appeals. Thus, the court decided the case was properly brought in the district court. The
court went on to hold that prompt and efficient accomplishment of the Clean Water Act's
objectives would not be accomplished by transferring permitting authority to the State where
the process was nearing completion in the EPA, and that EPA had properly retained
jurisdiction.
So, beyond the question of whether a state authority or the EPA had permit issuing
jurisdiction, Central Hudson bears [**25] little resemblance to the instant case and indeed
supports our decision here.
Champion also cites Ford Motor Co. v. United States EPA, 567 F.2d 661 (6th Cir. 1977), and
State of Washington v. United States EPA, 573 F.2d 583 (9th Cir. 1978), as standing for the
proposition that the EPA cannot lawfully object to a state permit unless that permit be clearly
outside the guidelines of the Clean Water Act. From this, Champion would infer that an EPA
objection to an action of a state permitting authority not clearly outside EPA guidelines is
EPA action outside delegated authority. These cases held that EPA vetoes not based on any
guideline or regulation were clearly wrong, but in no way purport to hold that the EPA can
only object in a situation where the proposed permit is clearly outside the guidelines of the
Act. While not establishing the rule of law that Champion seeks, those cases do highlight the
issue of whether the district court or court of appeals should initially review vetoes by the
EPA of state permits. In similar circumstances involving EPA vetoes based not upon
promulgated guidelines but merely on [**26] agency determinations, the two circuits
reached different conclusions. The Ninth Circuit, in State of Washington, found the district
court to be the proper forum, while the Sixth Circuit, in Ford Motor Co,, found jurisdiction in
the court of appeals under 33 U.S.C. § 1369(b)(1)(F). The Supreme Court's decision in
Crown Simpson, its express approval therein of Ford Motor Co,, 445 U.S. at 197 n. 9, and its
reversal of the court of appeals in Crown Simpson which had depended on State of
Washington, all create substantial doubt as to any continuing validity of State of Washington.
See also Republic Steel Corp. v. Costle, 581 F.2d 1228, 1230 n. 1 (6th Cir. 1978), cert.
denied, 440 U.S. 909, 59 L. Ed. 2d 457, 99 S. Ct. 1219 (1979), also approved in Crown
Simpson, 445 U.S. at 197 n. 9. Also, Champion's interpretation would discount the
Congressional intent behind the 1977 amendments that the EPA exercise a more rigorous
oversight [**27] of state issued permits. If EPA objections can be made only when the
state permit is clearly in violation of the Act, then EPA's discretion would be circumscribed
too markedly to be consistent with the 1977 amendments.
Additionally, and of greater consequence, the Conference Report we have referred to
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[*190] above, which, of course, is the most authoritative indication of Congressional
intent, contemplates a fact situation very nearly the same as that existing here, namely,
EPA's objections to a state issued permit which were not resolved resulting in EPA assuming
the permit issuing authority. In such a case, we note the Conference Report provides that
"Judicial review arising out of this provision would be in the same manner as judicial review
of any EPA issued 402 permit." 1977 U. S. Code Cong. & Adm. News at p. 4398.
As we have demonstrated above, the objections EPA made to the state issued permit were
within the regulations concerning the same and were actions of the administrator subject to
judicial review in a court of appeals under § 1369(b)(1), if those actions were allowed to
proceed to their logical completion, i.e., EPA either granting or denying a permit. The
actions [**28] of EPA, however, at this stage of the NPDES proceeding are not now subject
to judicial review. EPA has neither granted nor denied a permit, so such action is not yet
reviewable under 1369(b)(1). The nature of EPA's objections are well within the
contemplation of those it is entitled to make under applicable regulations. 40 C.F.R. §
123.44(c). Whatever may be the result should EPA make an objection completely without its
delegated authority, so as to subject that action to present judicial review under Leedom v.
Kyne, supra, we have no occasion to consider, for such objections have not been made here.
We conclude that the district court properly retained jurisdiction of the case in order to
ascertain whether or not EPA acted within its delegated authority. Leedom v. Kyne, supra.
Having ascertained that EPA was so acting, however, it should then have dismissed the case
for want of subject matter jurisdiction. See Associated Builders, etc. v. Irving, 610 F.2d 1221
(4th Cir. 1979). The merits of EPA's objections to the state issued [**29] permit may thus
be considered on judicial review after EPA either grants or denies a permit, and a review of
such EPA action is taken under $ 1369(b)(1).
While we agree with the tenor of much of the district court's opinion and its action in
retaining, for the moment, jurisdiction in the case, so far as the district court addressed the
merits of EPA's objections, it was without authority so to do. Those are matters for the court
of appeals under § 1369(b)(1).
The judgment of the district court will be vacated and the case remanded for dismissal for
want of subject matter jurisdiction.
VACATED AND REMANDED WITH INSTRUCTIONS
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United States IH,nvironmental Protection Agency
Objection Letter
02/22/2010

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h1>. Cttlleen.l1..Sitilins
Director. I.)i ii iiat of 1\ntet Quality
North C.'arltlilla Department of Environment turd
Natural Rcstf lrcc's
1 h 17 Nta11 Serf ice Center
Raleigh, Nrnih Carolina 27(M.-11 17
t:)eur Ms, Sullitta:
On November 2:3, 2009, we received your suitlnittal 1.?r our ravte.w of a draft National
Pollutant Discharge Eliu'iirtation Sj•stetn ( NPDES) permit for [flue Ridge Raper Products,
Permit No. N( )000272. Arlie apptee'iate your tiforlti to ci'>rttinue Mhe.inrprovcnienti in the quality
• of the itll's discharges to t e Pigeon River through the NPDT. ,S permit proce,,s:and reeognilc
the irornendcat, prr)grm diode: by the Mill ovor. the last 20 year:;, ,•S`crur ef'ov s hove Jead,to
si•gnificant improvements in water duality irl both the North Carolina and"1'enncssee portttuts c-?f'.
the river, We also wan-Cit.) cs.Cmin nd you for your deelMion to. inoreo,,e public participation in this,
• process hy holding a public: rneetin`Y on the draft porn]it ;n'1'ennc>>.ce,
'We have had ntaoy discuti.tiiton v.ith your -;,tuff /htrin uur rcviecv of the draft. permit and
resolved a number of issues. To provide more time for these collahoratu.ve discussions, we
notified you on December 10, 2009, that we would be taking, the Ml) 90-day period to complete
our review pursuant to Section 1:V.13 3 of the NPD} ' Memorandum of Agree:pi nt (MOA)with
the North (''aeolina tit' Water Quality (DWQ).
At this time., we have completed our review and have remaining concerwith sorno
provisions of the (Irani permit Ba?tied tort our review and ns cotjoderation of issues raised at the.
recent puhIii wetting and,heormg.. we are providing pecific objections to the draft permit.
t 'lticl) are'explainfd in detail below, pumuani to Section rV,B.3 of the MOA and regulation, Pt
Title 40 Code of Federal. Regulations (CPR) § 133.44.
Specific Objection 1:. "i'echnoloav-Oared Color Limits and Compliance Schedule
The draft }iermit includes an initial annual average color permit limit of 39,000 #/day and
requires a 37,000 It/day limit within four years, Although the 2001 i.Urreitt permit required that
DWQ conduct ;xt1 analyiis of trill performance and ptzsih)e revision of annual average color
loading to a'val!te to the 32,()0-0-39;()()() #otia_Y range hy lvl.a'4h 200(1,.thnt revision did not occur.
-ro lts: ess current performance, the Environmental Protection ,Agency (EPA.) developed 951,'i'
confidence lilnits,•lor annual average color loadings using monthlyaverage da a for the period
2006„2009. EPA typically t.tses (his type. of :statistical analysis to determine effluent performance
gird the use of :inch conlidencc ltmiis is consistent with 'effluent guidelines development. That
'analysis indicates that the ,lratt perrult'l annual average tutor limps do'not•f:llly capture current
idi'rr?..a A iUr,•s:, (Oa) * ht*p ',two/ •sr;,a ,y,v
iloryc led,i?ocyetybl a ,i'n.,l„ i tat Srgot:u :u4Yc*:J P4::ra tkff:;r,npn 'fRa Pn,:U'>:. NUM:
Deposition
Date:
DEPOSITION EXHIBIT

D-58
i
perrin'tttartt:c of provide a sufficient ,ncentivc l'01' the Mill to inrpro.e its
performance. i'best: permit provisions are thus not with tit r;l',c-by=ease Best
Professional Judgment regnirentents of -10 c'f-R § 135.3(.c)(2) and (d)i.;). 'Cite: d,itii peiltti.t is
tht,,refori: 5rrlh•jrct tcl specific Objection pur,,tuan to ot} CFR.4* 123.-l-ilc1(4). (6), and (7),
'10 :resolve this:;peeific objection, based 'on th4 confidence cited above. the permit
must require an initial aiut(. al <,\,erat'r; pt:t'nl t limit Or f.10 Ft:ltlrr firm 37,0(fl) /day, Also, it
tttttst 1celt.tirc: an rtumrlsl avc,ragt' i`c)li.rr limit nn greaterthan, die range of :2 ()(i0-16 001) #:/lay to
the onil or the Zt'iur•yC:1T CUtnplioni C st ht'elilie. '1'hi.i is eOl1\is1cnt with Rio 1,76101;ririve
•
recoitlrnendocl by the Technology Reviow Workgroup criz.W) in February 2000..
Also, for the color compliance schedule c:itcd above, the draft permit requires that the
Mill develop an iinplemcnlatiem plan for s'itr.ious color redltation,.effcart, and ltlht)tit 111mtml,
reports of prrigi s 7Cirwi?ti'ci, the pei`si's1t'dloes not specify a dale certain 1'or submittal 0( that
plan, nor it:aerial requirements and Ii0 dates for their achic4cmmnl, Since the conlplianct:
sc:itt'rhilc otteecds one year, pursuant to 40 CFR § 1 2.47(a)(1), the compliance x:ltechtic artist
include interim requirements and dates far their achievement. The lath of interim requirements
and dutes.1'ar their ttchiea.emettt is ; ubjeet tc, objection pursuant to (1) C R *123.44 c:07?.
To address this specific objection, the perrnu motif recglire the facility (0 tiuhrrtit ,tri
implementation pion within the fiat yogi' of pertilil l'suano.'. The permit n1USt also contoitt a
reopencr clause to include interim r'aquiri•lne:nts and dates for their achievement as enttreotthte
parts of the permit haled on the; submitted implementation plan, Onee•ihc implementatio 3 plan
is submitted and reviewed, the permit should be modil'icd.liecordingly.
Specific Ohi elion 2: Eflluer'it J..ilrill fen Color Proteetion.r>f Maier Quality and Status of
Variance to Narrative Color Criterion
The conditions and limits for Color in the draft permit tare based on the rcrniivnl of the
‘'ariance to the ntrtrrativet;olor:lnndrtrd for the. Pigeon River, which was adopted by ilte sue on
October 10, 2.001., Thus, the color effluent limits, in the `:)Bite*'s view. are consistent with ctit
State's water quality standard for color_ However, the ract .sheet or record supporting the draft
permit does not adequately support this. determination, As background. tri the absence of a
nt,(Ytc,'rt translation of the narrative standard by either North Carolina or Tennessee, EPA has
historically translated the narrative standard to a mimetic st;tndcrd of 50 platinum cobalt lints
(PCU or "color units"): North Carolina has adopted a variance from this standard that wtlS
refl clod in previous permits ko the Blue Ridge facility. I PA's 50 color unit interpretation teas
based on studies conducted by the National Council for Air and Stream (improvement _ ii .1 this
level has boon metal the North Carolina i'ennessee slate lino in almost all measurements taken
since 200, . North Carolina adopted tt vmianee from this standard in 2001; the (firms of that
variance included th0 following: ' •
"Thiss \aa'iane0 shrill extend rain- an indof'inite period of itime, subject to eonsiderufron
ring,the. seater qualitystandards triennial reviews. Any ntodine(uion ortertninrltion
based thereon shalt be S,.th,jeeted to the public heriring process required by N'.C,G.S. 143-

D-59
Therefore, until the administrative process for removal of the variance is completed, the 2001
variance remains in effect. Nevertheless, the fact sheet indicates that the variance has been
removed and does not provide an explanation as to how the procedural requirements for its
removal have been met,
—Also, a. mentioned above, the actions required in Section B.8 of the•2001 variance and
the 2001 perm do not appear to have been completed. That section of the variance required an
evaluation of i 1 performance related to color and a recommendation by DWQ of the lowest
achievable ann a average and monthly average color loading effluent limitations for the mili.•
This section als require rat; analysis supported a revision to average annual color limits
in the range of ,000 tb 39,000 it/day, he revised limit was to become effective on March 1,
2006, However, the curr..ent effec ive annual average limitation for color is 42,000 #/day.
In addition to not completing the procedures for variance removal, DWQ also did not
include in the fact sheet a defensible scientific rationale for its determination that the draft permit
will ensure compliance with North Carolina's narrative water quality standard for color. The
fact sheet for the draft permit states that the monthly and annual average color limits are "in
accordance with the TRW recommendations." The fact sheet also states:
Based on actual instream color measured between 2002-2008, DWQ believes that
compliance with the effluent color limits established in the 2001 permit were. protective
of NC's narrative water quality color standard. Only under extreme drought conditions
(below 30Q2/7Q10 flows) were instream color values reported to exceed the Prestrude
aesthetic threshold of 100 platinum cobalt units (PCU or "color units"), and NC
regulations do not consider aesthetic color standards violated by the permittee when
stream flows fall below 30Q2 design flow.
The reference to the Prestrude aesthetic threshold of 100 PCU relates to a study entitled, Color;
Misperceptions About the Aesthetics of River Color (Dr. A. M. Prestrude, July 1996) (the
"Prestrude Report"). The Prestrude Report suggests that color levels become anaesthetic
problem at 100 PCU, However, none of the studies relied upon in the Report axe based on
waters that are similar to the segment of the Pigeon River near Canton, The study of ambient
color levels in the Prestrude Document included consideration of photographs of the Pigeon
River downstream of the facility discharge which were taken in or about 1988. However, the
color discharge from the facility during that time frame was approximately ten times the amount
that is currently discharged.
Further, the document also states, "From a perception standpoint, therefore, it is readily
accepted that the general population can differentiate between colors differing by approximately
50 color units, While this difference is capable of scientific quantification, more refined studies.
are required to focus on what level of perceived color is objectionable in natural environments."
Thus, the Prestrude Report does not purport to establish a one -size fits all color standard that can
3
V It
evo

D-60
be applied to different environments. EPA agrees with the Report's suggestion that more
refined, site -specific studies would be useful to determine bow the narrative standard should be
interpreted or applied to specific natural environments. such as the Pigeon River near Canton.'
The terms of the 2001 variance allowed a monthly average limit of 55,000 #Iday, which
was selected based on actual performance of color treatment and removaltechnologies that were
identified in an earlier review by the TRW, In other words, this value was selected based on the
ability of the facility to meet the limit by installing and operating color treatment and/or removal
technologies, rather than factors related to instream water quality,
The monthly average color limit proposed in the draft permit is 52,000 #/day; however,
the fact sheet does not clearly indicate whether this limit is based on what can be achieved
'through application of available technologies or on protection of water quality. Due to the
absence of a numeric interpretation of the narrative color standard by the State, it is not clear
whether the State has determined that the monthly limit of 55,000 #/day, i,e., "the effluent color
limits established in the 2001 permit," or the monthly average of 52,000 #/day, as proposed in.
the current draft permit, is needed to meet the narrative color standard. Using the 30Q2 flow of
the Pigeon River of 89.9 cubic feet per second at Canton, and assuming that the background
color level of the Pigeon River is 13 PCU, the current draft permit allows for a color level
downstream of the discharge of 114 PCU, and the previous 2001 monthly average permit limit of
55,000 #/day allowed an instream color level of 120 PCU, The absence of a specific numeric
interpretation of the State's narrative color standard and the ambiguity of the statements made in
the fact sheet make it difficult to determine at what PCU level the State believes ambient
conditions would be consistent with the narrative color standard. Thus, the effluent limits in the
draft permit would result in instream color levels that exceed both the "Prestrude aesthetic
threshold. of 100 platinum cobalt units" and EPA's historical use of 50 PCU as a numeric
translation of the State's narrative standard. However, the fact sheet also does not adequately
explain how 114 PCU will comply with the State's narrative color standard.
The fact sheet states;
NC has generally viewed color as primarily an aesthetic issue, and the interpretation of
color as an aesthetic impact is subjective. Similar to odor issues, the number of
complaints received serves as one means to gage public perception of color impact. The
NC DWQ regional office in Asheville has received only one color complaint in recent
years,
The Tennessee Department of Environment and Conservation reviewed the studies summarized in the Prestrude
Report and concluded that the appropriate interpretation of its narrative color standard requires that the increase of
ambient color levels in the f-liwassee River should be limited to an increment of 50 color units over levels measured
above the Bowater paper facility outfall.

D-61
This appears to be the State's justification for the determination that the draft permit will ensure
compliance with its narrative color standard and a variance is no longer necessary, However,
while the presence: or absence of complaints may be relevant, EPA does not find the counting of
complaints to be a sufficiently structured process for establishing a state water quality standard."
EPA is not aware that the State has nott to the public that the frequency of comp arts is a actor
that is used in the State's interpretation or application of the narrative color standard.
As noted above, EPA has historically interpreted North Carolina's narrative color
standard for the Pigeon River to be 50 PCU, The rationale provided in the fact sheet does not
establish aeientificall defensible basis for the State's inte retation of the narrative standard or
its conclusion t at the limits in the draft permit implement the tate's water quality requirements
for color, as established in 15A North Carolina Administrative Code (NCAC) 213.0211(3)(f).and
15A NCAC 213.0206(a)(4).
In summary, EPA is concerned.that the State has insufficient record support for the
conclusion that the effluent limits and conditions for color proposed in the draft permit are
protective of the State's narrative water quality color standard. The fact sheet's discussion of the
basis of the color conditions and limitations does not establish that the draft permit will comply
with the narrative color standard at all flows equal to or greater than the applicable instream
flow, i.e., 30Q2 flow, as established in its water quality standards, Therefore, the draft permit
does not comply with requirements at'40 CFR § 122.44(d)(1)(vii)(A) and is subject to objection
under 40 CFR "§ 123.44(c)(8),
To address thisspecific objection, the State must revise the terms of the variance from the
North Carolina water quality standard for color for the Pigeon River to reflect the proposed
permit conditions and limits for color as referenced in Specific Objection 1 above. The
information necessary to support a variance determination appears to have already been
developed by the facility in conjunction with the TRW. Accordingly, EPA commits to timely
review and act on a request to revise and extend the variance upon the formal submittal of a
proposed variance revision by DW.-.
ecific Stud
Recommendation For Sit
In order to create a better recordiforarty luture effort to reinterpret the narrative color
standard, and ensure that authorized discharges are protective of the narrative standard, EPA
recommends the addition of a condition in the draft permit requiring the permittee to provide
funding for an independent study of color levels in the North Carolina segment of the Pigeon
River, or a segment of a watershed that is reasonably similar to the physical characteristics of the
Pigeon River downstream of the mill. The study should focus on the aspects of the State's
narrative color standard that are relevant to conditions and limits in the permit, and should
address assessment of color levels in ambient waters of the Pigeon River (or other watershed(s),
as specified above), when those levels are in the range of.50 to 120 PCU. The permit could also
include a reopener clause to implement the conclusions oft e study if warranted.
'- ERA A notes that, based on comments during the public meeting and hearing, there are citizens who believe there isa
basis to complain about ambient color in the Pigeon River,

D-62
Calitiv agt 1141
EPA believes that an independent, unbiased site -specific study would he useful to
determine how the Stales narrative color standard should he interpreted or applied to the Pigeon
River near Canton. Such a study would be valuable in addressing uncertainties relating to the
narrative standard for color because many site -specific factors influence the overall perception of
an individual stream setting and the level of protection needed for a stream or watershed.
Evaluation of the Pigeon River downstream of the Blue Ridge mill is even mote critical for
setting regulatory targets, given the color levels in the river, and the public interest in the present
permitting process for the Blue Ridge facility.
The study should be conducted with unbiased observers. For example, college students
were used in some of the studies performed by Prestrude. The results of the study could be used
by the State to address other issues related to the application of the North Carolina narrative
color standard, such as whether it would be more appropriate to establish a regulatory
requirement for the river solely based on a specific color concentration, or as an increment over
"background color Levels. We also suggest that EPA be involved in the review and approval of
the framework of the plan for conducting the study prior to initiation.
Specific Objection 3: Temperature Variance
Regarding temperature, the permit implements a Clean Water Act (CWA) § 316(a)
variance by requiring: 1) an instream monthly average of 32° C during July -September; 2) an
instream monthly average of 29° C during the rest of the year; and 3) downstream values not to
exceed upstream values by more than a monthly average of 13.9° C. ("Delta T") Compliance
with these three conditions is assessed 0.4 miles downstream from the discharge at Fiberville
Bridge.
To obtain such a variance, an applicant is required by Section 316(a) and applicable
regulations at 40 CFR Part 125, Subpart H, to demonstrate that the proposed variance assures
the protection and propagation of a balanced, indigenous population ("BIP") of shellfish, fish,
and wildlife in and on the body of water into which the discharge is made. The information
submitted with the draft permit is not sufficient to make the required demonstration, This
concern is heightened by a North Carolina Wildlife Resources Commission report indicating
that a September 2007 fish kill in the Pigeon River was, in part, due to elevated temperature. As
a result of the absence of a sufficient demonstration that the variance assures protection of a
BM, the draft permit is subject to objection under 40 CFR § 123 44(c)(7)
Ri
To resolve this objection, the perm t equire completion of an updated study th tt
includes thermal modeling and demonstrates e protectiveness of the proposed variance; F e
updated study should meet the parameters outlined in the enclosure to this letter. Furt ►:. the
interim period before an adequate study is completed, a reduction in the Delta T limit should �e
included in the permit to provide additional assurance that the BIP is protected. The c
Delta T limit was based on mill operating conditions prior to the modernization project
completed in the early 1990s, which included the installation of a mechanical draft cooling
tower. Based on daily temperature data taken at the Fiberville Bridge (River Mile 62.9) and just
above the Canton Mill (River Mile 63.8) during January 2005 to Deceinber 2009, EPA
determined average Delta T values for warm months (April through October) and cool months
6

D-63
(N)vember tinting)) Mulch). The 05th percentile values tor averaLic Della 'I tor ilk, ;Lim and
cool period.; were 7 4 C. 3226 ) and 8;2 C. (14,69 F j. respectively. EPA believe the
,i.verit'gc Delta s ;due of 6.2 C \s ill he appropriate for all times of the ci and could he
adjusted pending the re \tilts of the thelinalywodding It'hec"1111)1c1.0d Purl sf thc Seclk)n
310(a) updated study, lAtsily. the permikintis,1)require the N1111 to monitor ',tut1 report the daily
maximum and monthly Lev'elq.le
S,pecifie Objection 4: Absei we of Dail v1N•laxitntlIII NO\ ill i mit and Fold Tissue INIottitoring
The dual t permit contains a monthly acerage dioxin limit: however, it does not mclodc
daily inA:\ Multi) limit, as required by 40 Cl:R Part 122.45(d RI), lily draft permit is therefore
subieet to objecaion pursuant to •-10 CER § 1 23.-1-ltelt 7), To address this :pecifte objeCtion, the
permit num contain ridatlypitxttutim,dioxinlvt; That limit may he VI at a level CqUil I 10 the
Altit). the draft permit contains a nok provision that fish tissue monitoring for dioxin w
cease after 3009, unless DWQ determines Itt upuhlic health hazard exists. EP:\ routinely uses
ambient fish tisNtte dioxin monitoring to determine whether water column impairmen1 iN
oceutTing and whether reasonable potential to eNceed a state's numeric dioxin criterion e'dsts,
The fish tisstte levek intheatimp water column impairment are typically well below the les els at
which advisories aru1),piettlly adopted. Bae1.1 on North Carolina's do' in numeric criterion
01 0.005 parts per (Pt idri111011 (PPL1), thc,t, ........................... tisstio valuo indicating impairment would
hL apRroximatelY 0.025 parts,pertrilltin (ppt), Out of the hi st five yealS1 iM)Its'siie data
in LOITIMC)11 C:11.1) at Station, 4A m upper
Waterville Lake have been 1,1•1,3 ppt, with two years having eNtimated corwentratipas reported.
As:qtraing at linear rolanonAgLbetween w'ater column concentrations and fish titre
levels, thest7iTsTrtis,s7eeMt;Ti . indicate a water column concentraticin irt the range
of 0.22-026 ppq, thus exceeding the Slate's numeric criterion. ln this ca,;e, direct measnrement
of dioxin in fish tissue shows evidence of accumulation: reliance on effluent sampling alc)n'..
using method detection limits that cannot nteasure dioxin at the level of Ile. State numeric.;
criterion does not provide the necessary information to niukty dtk dt.t.ermination,
As a result, the removal of the dioxin fish tissue monitoring requirement as proposed in
the draft permit do not ensure that stiff ictent data is ,t..terierated to adequately represent the
monitored activity, as required hy 40 CFR 122,4 t (j)( I) road 122:18ta)-(e). Requiring
monitoring, in the event of a public health hunt' is not adequate to determine if water quality
standardn are being'tnet. The lock of such data also does not allow for a complete evaluation of
the reasonable potential to exceed state water quality criteria, as required by 40 CFR §
122.-1-1(d1(1), Accordingly, the draft permit is ,,ithjeet to objection putaaut to 40 CER §§
123,4-11c45) and (7). To :.1de thiS objection Ow,perinit miht r,t31tire that the Ricility
conduct monitoring of fish tissue for dioxIlliaS Wati done in 20(19) irobe first,th ri 1 ind 111'
yeal'S 01 (.11.0 nit of this permit. Attalltti does 1101 appear to he warranted since fish
c Es have shown in in s)' cl g"in reht -
7

D-64
Sllti'.cihe f)hipetion 5; ,()settee of 'Duhldilti tiltinniritle
E:1'A h \ prc;vicnt\Iy retluested that the State specifically document in the permit fact 4Jiec't
the manner it1 ‘t'hich laminable potential to 0.vucctl North Carolina's C a' C„ .Alter ion f +r
11011(.14 ti+as oval ttated ("(he receiving :rater shall ra ( rr,eee:d SO Nr1 beio nC'ilve •T•urbidity Units
it) streams not t:leesi taated as tr+)ttt ‘Vale''). '10the c„tc:nt that suf1•ic'iclit data) tt> Write 1h(1t
t;va11lattte 11.M'Je 110 a`'ailable. y1'e Garth rrt!illk'Stl:d Nutt specific rl•Io111tUi'1nr to obtain (;
itilorins.ltion be required by the permit, Tlic•draft permit and fact sheet did not atciclre-is thew
c oncent;
Therefore. the draft permit does not ensure that the diseltttrgeR altth01'1z.6'd 11110er the
permit are protective of North (:'tax rlintt'a'nunlerie eriterion for turbidity, The lack of such data
clues mit allow fora t•oniptctc:evaluatio-n of the renso iahlc potential to exceed the state:water •
quality numeric criterion cited llhovca, ac retllaircd by 40 CFR * 121414(d)(1). and m a result. the
draft permit does not include effluent limits that may be nece.s ary to firotec't writer quality, The
draft permit is tlleref.ore subjee(10 Objection tinder 40 C PF.. §§ 12144(0(5), (71, and (8).
T(1 adduess this KpeQiIie objecticll, the pcl'11111 1111V,1 require thin the facility conduct
clowns.tream.turhiclity monitoring tit 1'iberyille Bridge at a riiniiilunl freetltlency tv4iee per
month: -during the April-Octobe.r itntufr,ulle for ;i rni1111111.1111 0E' one year. Such ntonitnr.ins,t must
not occur tvitbin 77 hours of t1 rain event. The permit Whist also contain a specific reopc;ticr to
enable Z)WQ to odd an appropriate turbidity limit if reasonable potential to c'Yeeed• the State's
numeric criterion is found to exist, Based on Norihi•(7arelinu s numeric criterion, Upstream data
.are not needed rtrirl should not he used to assess' reasonable potential.
'Specific Objection 6: Absence of E(tlnen( 1-hardness •Vtonitnti.lt0'fo Eva.hulte Arne "toxicity
The draft permit. requires quarterly Aire monitoring tiecau<e 1: A\''Q detertltined .that
reasonable potential eSts tea exec ed North Crrro5n11's Ue11on level Ot'50.tte/1 based on an
assutnecl hardness of 50 me, We are adore of a trw 1ap,lirenm hardness value oi'7.6 mg/J.
Because zinc toxicity increases at lower hardness values. any Future cyuluatiOn of effluent zinc
data without concurrent effluent hardness monitoring cannot adequately assess reasonable
nable
potential to exceed the action level.
. Will/Oat Conciirrent Oi'i11,lcnt hardness measurernerttn, the• draft permit does not cnsiu•e that
sufficient data is generated to adequately represent the monitored activity, as required by �l(i-CYFR.
§ 122,410)(1) and 1.22. $('tl)..(c), Further, without such data, the droa permit does not allow rot-
a complete e.yalualion• of the reasonable potential to exceed the hardness -based -state water
quality numeric ctitcrion for zinc, as required by 40 C:'irl w-12.2.4.1(d)t l), and as a result. the dru0
permit. does not include effluent limits that may be 1leeessury to protect water quality. The draft
permit is therefore subject to objection tinder 40 CFR §,§ 123, 1(e2(5), (7), -rind (8), To -address .
dais objection, the permit must be revised to il)ehtdc a requirement for quarterly effluent hardness
.nle?nttoring concurrent with the quarterly zinc miinitorint
., ;s
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,1`3`L;f •f
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D-65
EPA also offers the following recommendations for your consideration:
Recommendation 1 Regarding AOX Limits
EPA also has the following comment regarding the draft permit limits for adsorbable ,
organic halides (AOX), which reflect.a 39% increase in loadings from the 2001 permit. The
DWQ presentation at the recent public hearing and meeting indicated that the facility is #2 in the
world in terms of AOX'removal. Our analysis of recent AOX effluent data confirms the
facility's performance -- the typical discharge is less than 300 #/day as atnonthly average. Based
on that performance, we recommend that the AOX limits in the 2001 permit he retained.
Recommendation 2 Regarding TRW
The TRW has historically performed a valuable function in assessing color reduction
efforts at the Mill and providing recommendations to DWQ. We recommend that the permit
include a provision ensuring that the TRW will assess color reduction technologies and provide
recommendations to DWQ at the end of this next permit term.
To address the specific objections above, I ask that you redraft the permit and subtnit a
proposed permit and a revised fact sheet to EPA for review under the provisions of Section
III,B.6 of the MOA; I also ask that you submit a summary of all public comments that have been
received and DWQ's response to them. In accordance with Section IV.I3.7 of the MOA and 40
CFR §123.44, within ninety (90) days of your receipt of this letter, DWQ or another interested.
person may request that a public hearing be held, pursuant to 40 CFR §123.44(e). If no public
hearing is held, and DWQ does not resubmit a proposed permit that has been revised to meet our
specific objections within ninety (90) calendar days of receipt of this letter, exclusive authority to
issue the permit passes to EPA for one permit term. Any requests for a hearing. on the objections
and the procedure for resolving any objection shall be governed by 40 CFR §123.44, as provided
in Section IV.B,7 of the MOA.
If you have any questions, please have your staff contact Mr. Marshall Hyatt at
404-562-9304.
Sincerely,
ames D. Giattina
Director
Water Protection Division
Enclosure

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cc: Dane. A. Griswold, Blue Ridge Paper -Products Inc.
John S. CUITY, Esq., North Carolina Environmental Management Commission
Jeffrey V. Morse, Nonh Carolina Environmental Managgement Commission
Paul E, DaviS, Tennessee Department of Environment and Conservation
David McKinney, Tennessee Wildlife Resources Agency
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Enclosure
Section 316(q) Report and the Study Plan for the Subsequent Permit
Blue Ridge may use existing data in completing its study and may incorporate the
existence of such data into the monitoring program plan design; however, the existing data needs
to be evaluated and presented in the context of a BIP definition that the existing record does not
adequately provide.
Section 316(a) of the CWA contains the term "BIP" but does not define it. However, 40
CFR §]25,71(c) defines the term "balanced, indigenous community"L as:
"A biotic community. typically characterized by diversity, the capacity to sustain itself
through cyclic seasonal changes, presence of necessary food chain species and by a lack
of domination by pollution tolerant species, Such a community may include historically
non-native species introduced in connection with a program of wildlife management and
species whose presence or abundance results from substantial, irreversible environmental
modifications. Normally, however, such a community will not include species whose
presence is attributable to the introduction of pollutants that will be eliminated by
compliance by all sources with section 301(b)(2) of the Act: and may not include species
whose presence or abundance is attributable to alternative effluent limitations imposed
pursuant to section 316(a)."
The Environmental Appeals Board stated in its decision in In Re Dominion Energy
Brayton Point, LLC, 12 Environmental Appeals Decision (E.A,D.) 490 (2006)("Brayton Point"),
"this definition clearly envisions a consideration of more than the population of organisms
currently inhabiting the water body. In this vein, although it permits inclusion of certain
`historically non-native species' that are currently present, it explicitly excludes certain currently
present species whose presence or abundance is attributable to avoidable pollution or previously -
granted section 316(a) variances."
Page 557 of the Brayton Point E.A,D. goes on to further state that a BIP "can be the
indigenous population that existed prior to the impacts of pollutants, not solely the current
populations of organisms."
To the question of how a perinittee should identify a BIP in an area that has been altered
by impacts from an existing thermal discharge, the Brayton Point E.A.D. points out that it may
be appropriate to use a nearby water body unaffected by the existing thermal discharge as a
reference area. Examination of an appropriate reference area may be applicable in this case.
The definition of "balanced, indigenous community" at 40 CFR § 125.71(c) contains
several key elements, To be consistent with the regulations, each of these key elements should
be specifically addressed in the demonstration, and the Pigeon River Section 316(a) monitoring
plan for the next permit cycle should be designed to generate information relevant to these
elements. Those elements include: (1) "a population typically characterized by diversity at all
"i3alnieed, indigenous community" and BIP are equivalent terms.

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trophic levels;" (2) "the capacity to sustain itself through cyclic seasonal changes;" (.3) "presence
of necessary food chain species;" (4) "non -domination of pollution -tolerant species;" and (5)
"indigenous," Each of these elements is'discussed in more detail below:
1, "A population typically characterized by diversity at all trophic levels" means that all of the
major trophic levels present in the unaffected portion of the water body should be present in the
heat affected portions. EPA recognizes that community structure differences will occur,
however, the number of species represented in each trophic level in the unaffected portions
should be reasonably similar in the heat -affected portions of the water body. Sampling and
analysis of fish and invertebrate communities should be done such that the major trophic levels
are identified and represented by reasonably similar species distributions, Also, the study plan
should be expanded to include some observations of wildlife (i.e., water fowl, mammals,
amphibians, etc.) both upstream and immediately downstream of the discharge point that may be
impacted by the thermal discharge,
2, "T'he capacity to sustain itself throw hghccclic seasonal changes" means that any additional
thermal'stress will not cause significant community instability during times of natural extremes
in environmental conditions, Community data should be collected during normal seasonal
extremes as well as during optimal seasonal conditions. Data should be compared between heat
affected and unaffected portions of the receiving water body to account for normal community
changes corresponding with a change in season.
3. "Presence of necessary food chain species" means that the necessary food webs remain intact
so that communities will be sustaining. We believe that exhaustive food web studies are not
necessary provided that invertebrate, fish and wildlife communities are otherwise healthy, i,e„
represented by sufficientlyhigh species diversity and abundance (appropriate for that portion of
the receiving water body) for the identified trophic levels and sustaining through normal seasonal
changes.
4. "Non -domination of pollution -tolerant species" means that in the case of a thermal effluent,
community assemblages in heat affected portions of the lake dominated by heat tolerant species
do not constitute a BIP. EPA recognizes that because all species have varying levels of thermal
tolerance, communities in the heat affected portions of the water body may possess altered
assemblages in terms of species present and abundance. All community data should be
collected, analyzed and presented to clearly demonstrate that affected communities have not
shifted to primarily heat tolerant assemblages.
5. "Indigenous" has been further clarified in the regulations "Such a community may include
historically nonnative species introduced in connection with a program of wildlife management
and species whose presence or abundance results from substantial, irreversible environmental
modifications, Normally, however, such a community will not include species whose presence is
attributable to the introduction of pollutants that will be eliminated by compliance by all sources
with section 301(b)(2) of the Act; and may not include species whose presence or abundance is
attributable to alternative effluent limitations imposed pursuant to section 316(a). " EPA
recognizes that non -indigenous species are present in most aquatic systems in the United States,
All community data should be analyzed and presented to demonstrate that community

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assemblages in the.heat affected portions of the receiving water body are not significantly
different from non -affected communities with regard to the number of non -indigenous species in.
the assemblages.
In addition to the foregoing components of the BIP definition, the study plan should also
include provisions for the identification of RIS (e.g., a list of threatened, endangered, thermally
sensitive, or commercially or recreationally valuable species up- and downstream of the study
area), as contemplated in 40 CFR § 125.72(h). 40 CFR § 125,71(b) defines RIS as "species which
are, representative, in terns of their biological needs, of a balanced; indigenous community of
shellfish, fish and wildlife in the body of water into which a discharge of heat is made."
The following EPA comments should be specifically addressed in the study plan prior to
Blue Ridge commencing sampling during the term of the next NPDES permit, The plan should:
a) include available information on wildlife in the lake areas based on
communications with North Carolina's Wildlife Management Agency. See
item 1 above,
b) include a diagram depicting the thermal plume under the worst case scenario
and address the presence or absence of a zone of passage for which fish can
travel around the thermal plume. ,
e) provide information of which fish collected are either heat -sensitive or
nuisance species. See item 4 above,
d) provide a list of any lake species that are endangered or threaten in accordance with
federal and state regulations.
e) analyze and present data to clearly demonstrate that affected communities
have not shifted to primarily heat tolerant assemblages,
f) include recent data or information on benthic macroinvertebrates: See item 1 above.
g) analyze and present all data to demonstrate that community assemblages in the heat -
affected portions of the receiving water body are not significantly different from non -
affected communities with regard to the number of non -indigenous species in the
assemblages; and
h) include a thermal modeling study based on historical effluent temperatures and
operating conditions to determine appropriate permit limits for temperature.
In order to ensure that Blue Ridge's future study plan for the Pigeon River is adequate to
demonstrate that the Canton Mill should have its Section 316(a) variance renewed during the
term of its next NPDES permit, EPA requests the opportunity to review a draft Section 316(a)
plan prior to Blue Ridge commencing the study.
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