NCC000001_Beason & Ellis 2005_20050512

SOUTHERN' ENVIRONMENTAL LAW CENTER
200 WEST FRANIU IN STREET,SUITE 330
CHAPEL HILL,NC 27516
Telephone [phone] Charlottesville,VA
Facsimile 919-929-9421 Chapel Hill,NC
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TO: Robert Beason
FROM: Amy Pickle
RE: Beason&Ellis Case No.: ME-05-27B
DATE: May 12,2005
Pursuant to your letter dated April 8,2005,we are submitting a one page summary outlining
the position of Petitioners in 05 EHR 0308. We have submitted the filed prehearing statement in
addition to this summary. We understand that you have been notified of the pending motion to
consolidate 05 EHR 0326 with 05 EHR 0308 and of Petitioners' agreement to participate in the
mediation scheduled for May 16,2005.
The Department of Health and Human Services---Town of Butner(DHHS-Butner)owns and
operates a waste water treatment plant that discharges into an impaired stream that flows into Falls
Lake. In fall of 2004,DHHS-Butner applied to the Division of Water Quality to amend its
individual National Pollutant Discharge Elimination System(NPDES)permit to double its discharge
allocation of nitrogen. DHHS-Butner proposed to increase its nitrogen allocation by utilizing
nitrogen"credits"it had purchased. Excessive nitrogen in lakes adversely affects the quality of the
drinking water,recreational uses,and aquatic habitat. After significant public opposition,DHHS-
Butner withdrew its application.
In December 2004,the Department of Environment and Natural Resources,Division of
Water Quality(DWQ)amended the Neuse River Compliance Association's(NRCA)NPDES
permit,effective January 1,2005. DHHS-Butner is a member of the NRCA,which has an
association permit that allows members to combine their nitrogen allocations to avoid enforcement
of individual nitrogen discharge limits. The challenged amendment increased DHHS-Butner's
nitrogen allocation in the NRCA permit by 6,113 pounds of nitrogen. Neuse River Foundation
contends that this modification was improper for three reasons: (1)the modification is a major
modification,as defined by both federal and state regulations,and should have been subject to public
review and comment;(2)increasing DHHS-Butner's estuary allocation causes the total amount of
nitrogen discharged into Falls Lake to exceed 443,700;and(3)DWQ should have considered the
localized impacts of adding additional nitrogen into Falls Lake.
Both federal and state regulations outline a limited list of minor modifications. This
modification is not within the scope of the minor modifications because it moves 6,113 pounds of
nitrogen from the Neuse Estuary to the headwaters of the Neuse—Falls Lake. In addition to moving
the nitrogen over 150 miles,the amount of nitrogen available to be used by DHHS-Butner is

increased ten-fold,to 61,130 pounds of nitrogen. This more than doubles DHHS-Butner's current
nitrogen allocation.
The three major dischargers into Falls Lake,of which DHHS-Butner is one,may not
collectively discharge more than 443,700 pounds of total nitrogen. By allowing an addition 61,130
to be discharged into Falls Lake,the modification violates this regulatory limit.
Finally, DWQ must establish more stringent limits for nitrogen if such limits are necessary to
prevent adverse localized impacts. DWQ modified the permit without consideration of the localized
impacts to Falls Lake and Knap of Reeds Creek that would result from an additional 61,130 pounds
of nitrogen.