NCC000001_Response to Preliminary Comments_20020912

• F WAT�c�Q Michael F. Easley,Governor
State of North Carolina
G William G.Ross,Jr.,Secretary
Department of Environment and Natural Resources
.0 Alan W.Klimek,P.E.,Director
Division of Water Quality
September 12,2002
Mr.J. Scott Gordon
Water Management Division
USEPA, Region 4
61 Forsyth Street
Atlanta,Georgia 30303-8960
Subject: Response to Preliminary Comments
Neuse River Compliance Association
Working Draft Permit
Dear Mr.-Gordon:
Thank you for your July 17 preliminary comments on the draft Neuse River Compliance
Association permit. I am enclosing our response to each of the comments for your further
consideration.
We would appreciate the opportunity to discuss the remaining issues with you and your staff as
soon as possible. The total nitrogen limits in the Neuse River basin become effective on January
1,2003. Therefore, it is critical that we reach agreement on these issues quickly so that the
Division can complete the public review process and issue the final permit in early December.
If you have any questions,please call me at [phone],extension 517.
Sincerely,
/ L9177(0-el'
David A. Goodrich
Supervisor
NPDES Unit
Enclosure: Response to EPA Region 4 Comments
cc(w/enclosure): Mr.Glenn Dunn -Poyner&Spruill
P.O.Box 10096
Raleigh,NC 27645-0096
NPDES Unit Files
AVA
North Carolina Division of Water Quality [phone] NCDENR
1617 Mail Service Center FAX[phone] Customer Service
Raleigh,North Carolina 27699-1617 On the Internet at htto://h2o.enr.state.nc.us/ 1 800623-7748

r
NC DWQ Responses to EPA's 7/17/2002 Preliminary Comments
Regarding Draft Neuse River Compliance Association Permit
September 12,2002
Comment#1: The Draft Permit should include all required elements of a NPDES permit.
Currently there is no permit fact sheet or rationale or standard language
included the 6/28/02 draft. Standard language should reflect the presence of co-
permittees,such as addressing by-passes at a co-permittee facility versus the
Association which does not operate a facility. EPA understands that this
information will be added when the draft permit is sent to EPA for formal
review.
Response#1: Following our April meeting in Raleigh,DWQ made extensive revisions to the
draft Association permit.We refined these with input from the dischargers'
representatives,then shared them with EPA Region 4 staff to ensure that the new
draft permit accurately reflects the agreements reached in April.
When DWQ sends the permit to public notice,we will submit the draft permit
package to EPA for formal review,we will include the full text of the permit,as
well as the fact sheet,the permit application,and all other elements of a complete
permit package.
Regarding the standard permit conditions,please identify the specific changes
EPA requires in Parts II,III,and IV of the new Association permit.
Comment#2: Language should be included in the group permit and individual permits
referencing each permit and the effectiveness of the TN limit based on
Association membership.
Response#2: In our opinion,the draft permit adequately cross-references the individual
NPDES permits and clearly states which permit governs the TN discharge;see
Condition A.(3.),Effluent Limitations.Further,each of the individual permits
includes an"Annual Limits for Total Nitrogen"condition that also specifies
which permit applies.Please provide us with specific language EPA would
deem acceptable. •
Comment#3: DMR reporting must be required in the Group Compliance permit;the mid-year
and end-of-year reporting does not substitute for the DMR reporting
requirement in 40 C.F.R.§122.41(l)(4). This information must be available
through PCS. EPA understands that NC will include this requirement in the
draft permit sent to EPA for formal review.
Response#3: The purpose of this comment is unclear.The dischargers will report effluent TN
data in their individual DMRs,and the Association's year-end report will include
the monthly and annual Estuary Loads for each Co-Permittee Member and for
the Association as a whole.DWQ will enter the individual and Association data
into BIMS for upload to PCS.
For the sake of clarity,we will revise A.(5.)(b.)(i.)and(c.)(i.)to replace"...an
accounting..."with"...a Discharge Monitoring Report..."and will develop a
DMR form for the Association's use.
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Response to Preliminary Comments
September 12,2002
Comment#4: Part I,Page 1,item e-suggest delete"point of discharge"and replace with the
more accepted terminology"end-of-pipe"
Response#4: For the sake of clarity,DWQ will replace"point of discharge"with"point of
discharge(or'end-of-pipe')" in A.(1.)(e.),the definition for Discharge TN Load,as
is done immediately above in A.(1.)(d.),Discharge TN Allocation.
Comment#5: Part I,Page 1,item k-suggest delete"and subsequent revisions"or add"and
subsequent revisions approved by EPA". TMDL revisions must be approved by
EPA and any change in the TN allocation based on a TMDL change for the Neuse
Group Compliance permit would require a modification in the Group
Compliance permit per 40 C.F.R.§122.62.
Response#5: It is our understanding that no TMDL exists until formally approved by EPA.
For the sake of clarity,we will add"approved by EPA" to A.(1.)(k.)as suggested.
Comment#6: Part I,Page 2,item A.(2.)-Appendix A lists co-permittees,transport factors,and
TN allocations based on an approved TMDL. Item A.(2)(b)states that the
Division shall revise Appendix A to incorporate changes in the Association
membership,allowable changes in TN Allocations,or reapportionment by the
Association. This activity would require a major modification to the permit since
it would change the TN allocation limit listed in the permit. EPA suggests that
Appendix A list all known point source contributors recognized in the TMDL,
transport factors,and TN allocations for the Neuse River that could be used to
calculate the Association TN limit. This appendix would provide for all possible
known loading scenarios and the opportunity for the public to comment on any
possible TN Group Compliance value. EPA further suggests that an Appendix B
be added to the permit that lists the Association members used to calculate the
TN allocation for the Association TN limit. This would minimize modification of
the Group Association permit to once per year,and only if needed,to
accommodate changes in membership,unless the TMDL TN allocation is
revised. It would also clearly delineate between Association membership and all
point source contributors,while still including all possible loading scenarios. For
example,as of 6/28/02,there were only 6 Association members but 35 point
source contributors.
Response#6: We are strongly opposed to EPA's suggestion that we include a new appendix
listing"all known point source contributors recognized in the TMDL."This was a
central issue discussed and labored over in our April meeting. The suggestion is
contrary to the approach agreed upon by Region 4 representatives,the
dischargers,and DWQ in that meeting.
In addition,we believe that the addition of the second appendix would create an
unnecessary administrative burden and undue confusion.A complete list of the
point source contributors(approx. 100 dischargers)would include entities not
governed by this permit(approx.75-90,depending on actual membership).As a
result,modifying the TN limit of any non-member,which would require a major
modification of the individual permit,would also require an update of Appendix
A of the Association's permit,another major modification.Otherwise,Appendix
A would no longer serve the purpose EPA envisions.
While we appreciate EPA's concern that the public be allowed to evaluate"all
possible known loading scenarios",we think this goal could be better achieved in
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Response to Preliminary Comments
September 12,2002
some other way.One alternative would be for the DWQ to release the list of all
point source TN allocations included in the TMDL and in the governing state
rule.The NPDES Unit maintains an active web site and is willing to post the list
on that site.
Comment#7: Part I,Page 2,item b(i)-EPA suggests that the permit include a time frame for
enrollment and termination of membership in the Association,i.e.,only in
January of each year,or include a rolling annual average limit with a monthly
reporting requirement to account for terminations,resignations,or additions
monthly.
Response#7: DWQ intends that termination occur on December 31 and enrollment begins on
January 1.We believe that the permit adequately expresses this concept in
Conditions A.(2.)(c.)and A.(3.)(a.)and(b.). If these conditions are not
acceptable,please provide us with specific language EPA would deem
acceptable.(See also#10.)
Comment#8: Part I,Page 2,Item b(iv)-EPA requests the removal of the following statement
"Such revisions to Appendix A shall be considered a minor modification of this
permit." 40 C.F.R.§122.63 defines what constitutes a minor modification,of
which changing a limit is not one of the conditions. EPA would agree that the
addition of Co-Permittees could be considered a change in ownership and
qualify as a minor modification,as well as the termination or resignation of a Co-
Permittee could be considered a termination of ownership and qualify as a minor
modification,but any change in an actual TN limit would be considered a major
•
modification and must be publicly noticed as required in 40 C.F.R.§122.62.
Additionally, EPA suggests any member terminated or resigning from the
Association leave with only their TMDL allocated TN limit and all credits
purchased or created will revert to the Association and that this concept be
included in the permit. EPA requests that NC consider an appendix that lists the
dischargers in the basin as well as a separate appendix listing the members of the
Association and manage the change in ownership as a minor modification.
Response#8: It is not clear from the comment that"arty change in an actual TN limit would be
considered a major modification"whether EPA is referring to the Association's
TN limit or to the effective limit given to each of the Association members in the
group permit. Please clarify this comment.
Regarding EPA's suggestion that the permit include a concept that "any member
terminated or resigning from the Association leave with only their TMDL
allocated TN limit and all credits purchased or created will revert to the
Association,"please indicate whether you believe this is required by law and,
if so,please identify the statute,regulation,or case controls this issue.
See#6 regarding the suggestion for a second appendix listing all dischargers in
the basin.
•
Comment#9: Part I,Page 3a(ii)-This includes the statement"...except that all such individual
TN Allocations shall not be effective in any calendar year " EPA requests that
the statement"shall not be effective"be deleted. NPDES permits are required to
have effective limits,but NPDES permitting authorities have discretion on the
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Response to Preliminary Comments
September 12,2002
enforcement of that limit. EPA suggests that the language be changed to reflect
that as long as the permittee is a member of the Association,TN will be regulated
by the Group Compliance permit through the TN Allocation for the Group,for
example.,"The Association member shall not be construed to be in violation of
their indigidual permit TN limit if the TN Group Compliance Association limit is
met."
Response#9: The DWQ recognizes that NPDES permits must have effective limits. EPA has
made clear that it must ensure that the Co-Permittee Members are accountable
both individually and as a group for their TN discharges.All parties to the April
meeting agreed in concept to the permitting approach suggested by EPA.The
key to this approach is that,while the Association will be subject to its Estuary
TN Allocation throughout the term of the permit,the Co-Permittee Members will
be subject to their individual Estuary TN Allocations only when the Association
exceeds its aggregate limit.It is not clear to DWQ or the dischargers that EPA's
suggested language adequately protects an individual Co-Permittee Member
from enforcement and legal actions when the Association is in compliance but
the Member exceeds its Estuary TN Allocation.
In order to accommodate both concerns,DWQ will consider replacing Condition
A.(3.)(a.)(ii.)with the following:
(ii.) Co-Permittee Member TN Allocations. In any calendar year,a Co-Permittee
Member shall be in compliance with its Estuary TN Allocation in Appendix A if
(A) the Association Estuary TN Load complies with the Association Estuary TN
Allocation in Appendix A,or
(B) in the event that the Association exceeds the Association Estuary TN
Allocation,the Co-Permittee Member's Estuary TN Load does not exceed
that Member's Estuary TN Allocation in Appendix A.
This language is similar to Condition 4.(b)(1)of the Connecticut Department of
Environmental Quality's general permit for nitrogen discharges to Long Island
Sound,issued January 2,2002.Please indicate if this alternative language is
acceptable;if it is not,please explain how EPA's proposed language provides
the intended protection from enforcement for individual Co-Permittee
Members.
Regarding EPA's suggested reference to"individual permit TN limit[sJ",we do
not think that EPA intends for the individual NPDES permits to govern if the
Association does not meet its TN limit.This was another central issue we
deliberated in our April meeting.In fact,at EPA's suggestion,the parties
compromised,agreeing with the position that any member of the Association
that did not meet its respective TN Estuary Allocation in Appendix A would
only be subject to enforcement when the Association failed to meets its limit.It
was argued by all that so long as the Association was in compliance with its
Estuary TN Allocation,there would be no enforcement against members who
may have exceeded their individual Estuary TN allocations in Appendix A.As
both DWQ and the prospective co-permittees informed EPA,there would be no
incentive to join the Association if a facility remained subject to its TN limit in its
individual NPDES permit.
Comment#10: Part I,Page 3b-It appears that this section allows for a potential grace period
where no TN individual limit will be effective for dischargers who terminate
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Response to Preliminary Comments
• September 12,2002
membership in the middle of a year. EPA recognizes that TN is an annual limit,
but requests clarification for this section regarding when a discharger can request
termination and,upon termination when the individual limit is effective. EPA
suggests,for compliance purposes,that a specific date for termination or
resignation be included in the permit as well as a specific date for membership
additions. EPA suggests that all terminations or resignations occur by December
31,and all additions occur by January 31,unless a rolling annual average limit
with a monthly reporting requirement is used. The process and responsible
party for notifying NC of terminations,resignations,and additions,should be
clearly outlined in the permit since this has a direct effect on the Association's TN
limit. -
Response#10: There is no"grace period."As specified previously in Condition A.(2.)(c.)of the
permit,any termination of membership occurs only on the December 31 and any
enrollment occurs only on the January 1 subsequent to the membership decision.
A Co-Permittee Member leaving the Association remains subject to the
Association's NPDES permit through December 31,then becomes subject to the
TN limit in its individual permit on January 1.Similarly,a new member remains
subject to the TN limit in its individual permit until January 1,when it becomes
subject to the Association's permit.
The Association is responsible for notifying the DWQ of any membership
changes that are to become effective at the turn of the year.See Conditions
A.(3.)(b.)and A.(5.)(a.)and(b.).
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