NC0026123_Comments_20230127

SOUTHERN 601 West Rosemary Street, Suite 220 Telephone [phone]
ENVIRONMENTAL Chapel Hill, NC 27516 Facsimile 919-929-9421
LAW
CENTER
January 27, 2023
Nick Coco
NCDEQ/DWR/NPDES
Water Quality Permitting Section
1617 Mail Service Center
Raleigh, NC 27699-1617
nick. cocogncdenr.gov
Re: Southern Environmental Law Center Comments on NPDES Wastewater
Draft Permit NC0026123, Asheboro Wastewater Treatment Plant
Dear Mr. Coco:
The Southern Environmental Law Center offers the following comments, on behalf of
Haw River Assembly and Cape Fear River Watch, regarding the draft renewal National Pollutant
Discharge Elimination System ("NPDES") Permit NC0026123, issued by the North Carolina
Department of Environmental Quality ("the Department") to the City of Asheboro for the
operation of its wastewater treatment plant.' Asheboro discharges into Hasketts Creek, a class C
water and tributary to the Deep River. Asheboro's wastewater contains 1,4-dioxane and per- and
polyfluoroalkyl substances ("PFAS"), chemicals known to cause cancer.2
We are pleased to see the Department utilize its existing authority to control 1,4-dioxane
in this draft permit. We are concerned, however, that the compliance schedule in this permit is
far too lenient and prolongs unnecessary exposure to toxic chemicals. Additionally, the interim
and final limits do not take into consideration relevant information, like other sources of 1,4-
dioxane pollution and effluent reductions that Asheboro has already achieved over time.
The most notable omission in the draft permit is that it fails to control PFAS and allows
the city to continue to release harmful levels of these toxic chemicals. The Department has the
authority and responsibility to prevent PFAS pollution. Just last month, the U.S. Environmental
Protection Agency ("EPA") issued guidance to state agencies "describ[ing] steps permit writers
can implement under existing authorities to reduce the discharge of PFAS."' EPA's PFAS
NPDES Guidance highlights the same tools that the Department used to control 1,4-dioxane
' N.C. Dep't of Env't Quality, Draft NPDES Permit NCO026123 (Dec. 6, 2022) [hereinafter "Asheboro Draft
Permit"]. We understand that the present draft replaces an original draft NPDES permit released by the Department
in 2018. See N.C. Dep't of Env't Quality, Draft NPDES Permit NCO026123 (May 1, 2018) [hereinafter "2018 Draft
Permit"] .
2 N.C. Dep't of Env't Quality, Fact Sheet NPDES Permit No. NCO026123 (Dec. 7, 2022), at 13 [hereinafter "Draft
Permit Fact Sheet"].
3 Memorandum from Radhika Fox, Assistant Administrator, U.S. Env't Prot. Agency, Addressing PFAS Discharges
in NPDES Permits and Through the Pretreatment Program and Monitoring Programs (December 5, 2022)
(emphasis added) [hereinafter "EPA's PFAS NPDES Guidance"], Attachment 1.
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington, DC

namely that state agencies should utilize effluent limits and the pretreatment program to control
toxic PFAS pollution. The Department must use those tools to address PFAS in this permit.
The Cape Fear River Basin has some of the highest levels of PFAS and 1,4-dioxane
pollution in the entire country. The Department must use its existing authority under the Clean
Water Act to ensure these chemicals are kept out of our state's rivers, streams, and drinking
water supplies. The draft permit does not do enough to control this pollution and, as set forth in
more detail below, the following changes must be made:
• The Department must control Asheboro's 1,4-dioxane pollution on a faster
more prescriptive timeline.
• The Department must update the interim and final limits for 1,4-dioxane to
reflect reductions already achieved and other sources of the toxic pollution.
• The Department must manage Asheboro's PFAS pollution in this permit by
imposing effluent limits and requiring the city to utilize its pretreatment
authority to control its industrial sources.
I. Asheboro discharges 1,4-dioxane and PFAS, chemicals linked to cancer.
Asheboro is one of the largest sources of toxic chemical pollution in the Cape Fear River
Basin, and both the Department and Asheboro have known about the city's pollution since at
least 2015. Today, Asheboro continues to release exceedingly high levels of 1,4-dioxane and
PFAS into the Basin endangering the environment and communities who depend on drinking
water from the waterways downstream.
a. Asheboro discharges 1, 4-dioxane, a human carcinogen.
Asheboro discharges wastewater containing 1,4-dioxane, a chemical associated with
cancer.' 1,4-dioxane is a clear, man-made chemical that is a byproduct of many industrial
processes.5 The chemical is toxic to humans,6 causing liver and kidney damage at incredibly low
levels.' As a result of the harms caused by 1,4-dioxane, EPA established a drinking water health
advisory with an associated lifetime cancer risk of one -in -one -million at a concentration of 0.35
4 Discharge Monitoring Report, NPDES Permit No. NC00026123 (January 2020-November 2022) [hereinafter
"Asheboro's DMRs"], Attachment 2.
5 U.S. Env't Prot. Agency, Technical Fact Sheet —1,4-Dioxane 1-2 (2017), Attachment 3 [hereinafter "EPA,
Technical Fact Sheet —1,4-Dioxane"]; Dedef Knappe, 1,4-Dioxane Occurrence in the Haw River and in Pittsboro
Drinking Water, N.C. STATE UNIV. (Sept. 23, 2019).
6 EPA, Technical Fact Sheet —1,4-Dioxane, supra note 5 at 1.
' Id.; U.S. Env't Prot. Agency, Integrated Risk Information System, Chemical Assessment Summary: 1,4,-dioxane 2
https://iris.epa.gov/static/pdfs/0326_summary_pdf (Aug. 11, 2010).
N

parts per billion ("ppb"). 8 The State of North Carolina has similarly determined that 1,4-dioxane
is toxic and poses a cancer risk at levels higher than 0.35 ppb.9
Since 2018, Asheboro's average daily discharge of 1,4-dioxane has been 116 ppb, more
than 300 times what the state considers safe.10 Further sampling indicates that the wastewater
plant has released the toxic chemical at concentrations as high as 1,590 ppb. 11 Between 2020 and
2022, the city's average discharge contained concentrations at 77 ppb and ranged from non -
detectable levels to 636 ppb.12
Researchers identified elevated levels of 1,4-dioxane in the Cape Fear River Basin in
2014.13 Utility -collected samples of drinking water taken during the same time period confirmed
that the Cape Fear River Basin had some of the highest 1,4-dioxane concentrations in the entire
country.14 Between 2014 and 2016, the Department collected samples throughout the basin and
confirmed three "hot spots" of contamination: the wastewater treatment plants in Greensboro,
Reidsville, and Asheboro.15 For the past seven years, Asheboro has remained one of the three
largest sources of toxic 1,4-dioxane pollution in the Basin.
Despite the Department's knowledge that Asheboro discharges 1,4-dioxane at levels
thousands of times higher than what the state considers safe, the city's NPDES permit has never
been re -opened to address the toxic pollution. Asheboro's current permit was issued in 2012 and
does not contain authorization to discharge 1,4-dioxane.16 Indeed, the permit could not authorize
the release of this chemical because the discharge of a specific pollutant (or group of pollutants)
cannot be permitted unless it is disclosed in a NPDES permit application.17 The application
proceeding the 2012 permit (and all applications submitted before it), did not disclose that
Asheboro's effluent contained 1,4-dioxane.18 Even in the most recent 2016 permit application,
which is the basis for this draft permit, the city did not include information regarding the amount
s 2018 Edition of the Drinking Water Standards and Health Advisories, EPA OFFICE of WATER 4 (2018),
https://www.epa.gov/system/files/documents/2022-01 /dwtable20l 8.pdf.
9 N.C. Div. of Water Res., 1,4-dioxane Monitoring in the Cape Fear River Basin of North Carolina: An Ongoing
Screening, Source Identification, and Abatement Verification Study 2 (2017) [hereinafter "NCDWR, 1,4-dioxane
2017 Report"] (affirming EPA's conclusions); see also N.C. Dep't of Env't Quality, Div. Water Res., Surface Water
Quality Standards, Criteria & In -Stream Target Values (2019) (stating that the one -in -one million cancer risk for
1,4-dioxane is 0.35 ppb), Attachment 4; Draft Permit Fact Sheet, supra note 2 at 13.
10 Draft Permit Fact Sheet, supra note 2 at 4.
11 Id. at PDF page 81.
12 Asheboro's DMRs, supra note 4.
is Chad Ham, et al., Presentation: Concerns Regarding 1,4-Dioxane In The Water & Wastewater Industry (Dec. 11,
2015), at slide 11, Attachment 5.
" Data Summary of The Third Unregulated Contaminant Monitoring Rule, U.S. Env't Prot. Agency,
https://www.epa.gov/dwucmr/data-summary-third-unregulated-contaminant-monitoring-rule (last visited Jan. 24,
2023); N.C. Div. of Water Res., 1,4-Dioxane in the Cape Fear River Basin of North Carolina: An Initial Screening
and Source Identification Study 2 (2016) [hereinafter "NCDWR, 1,4-dioxane 2016 Report"].
15 NCDWR, 1,4-dioxane 2016 Report, supra note 14 at 1.
16 See N.C. Dep't of Env't Quality, NPDES Permit NC0026123 (June 27, 2012).
17 See In re Ketchikan Pulp Co., 7 E.A.D. 605 (EPA) (1998); Piney Run Pres. Assn v. Cty. Commis of Carroll Cty.,
Maryland, 268 F.3d. 255 (4th Cir. 2001); Southern Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d
560 (4th Cir. 2014).
18 See, e.g., City of Asheboro, Permit Renewal Application (Mar. 18, 2016) [hereinafter "Asheboro 2016 Permit
Application"].

of 1,4-dioxane expected to be in its effluent.19 Until a version of this draft permit is made final,
Asheboro is not permitted to discharge any amount of 1,4-dioxane.20 As a result, each and every
time that it does, it is violating the Clean Water Act and is subject to enforcement either by the
Department or a citizen suit.
b. Asheboro discharges PFAS, a class of chemicals known to cause harm to human
health and the environment.
Asheboro's permit application materials do not contain information about PFAS,21 but in
April 2019, the Department requested that Asheboro and other municipal dischargers in the Cape
Fear River Basin to collect samples for PFAS over three consecutive months.22 The results of
that sampling indicate that Asheboro's influent (water coming into the wastewater plant)
contains PFAS.23 PFAS have been recorded in the wastewater plant at levels as high as 121 parts
per trillion (,,ppf ).24
PFAS are a group of man-made chemicals manufactured and used broadly by industry
since the 1940s.21 PFAS pose a significant threat to human health at extremely low
concentrations. Two of the most studied PFASperfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonate ("PFOS")—are bioaccumulative and highly persistent in humans.26
PFOA and PFOS have been shown to cause developmental effects to fetuses and infants, kidney
and testicular cancer, liver malfunction, hypothyroidism, high cholesterol, ulcerative colitis,
obesity, decreased immune response to vaccines, reduced hormone levels, delayed puberty, and
lower birth weight and size.27 Because of its impacts on the immune system, PFAS can also
exacerbate the effects of Covid-19.21 Studies show that exposure to mixtures of different PFAS
19 See id. at 158 (disclosing 1,4-dioxane only in the groundwater at one of its sources of wastewater).
20 piney Run, 268 F.3d at 268 (`Because the permitting scheme is dependent on the permitting authority being able
to judge whether the discharge of a particular pollutant constitutes a significant threat to the environment, discharges
not within the reasonable contemplation of the permitting authority during the permit application process, whether
spills or otherwise, do not come within the protection of the permit shield.").
21 See generally Asheboro 2016 Permit Application, supra note 18.
1 See Letter from Linda Culpepper, Director, N.C. Division of Water Res. re PFAS and 1,4-dioxane sampling (Apr.
30, 2019).
23 2019 POTW 1,4-dioxane & PFAS Sampling Results, N.C. Dept' of Env't Quality 1 (2020), Attachment 6.
24 Id.
25 Lifetime Drinking Water Health Advisories for Four Perfluoroalkyl Substances, 87 Fed. Reg. 36,848, 36,849
(June 21, 2022); Our Current Understanding of the Human Health and Environmental Risks of PFAS, U.S. ENV'T
PROT. AGENCY, https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas
(last visited Jan. 24, 2023).
26 87 Fed. Reg. at 36,849; U.S. Env't Prot. Agency, Interim Drinking Water Health Advisory: Perfluorooctanoic
Acid (PFOA) CASRN 335-67-1 (June 2022), at 3-4, available at
hops://www.epa.gov/system/files/documents/2022-06/interim-pfoa-2022.pdf, U.S. Env't Prot. Agency, Interim
Drinking Water Health Advisory: Perfluorooctane Sulfonic Acid (PFOS) CASRN 1763-23-1 (June 2022), at 3-4,
available at https://www.epa.gov/system/files/documents/2022-06/interim-pfos-2022.pdf.
21 Arlene Blum et al., The Madrid Statement on Poly- and Perfluoroalkyl Substances (PFASs), 123 ENV'T. HEALTH
PERsP. 5, A 107 (May 2015); U.S. Env't Prot. Agency, Drinking Water Health Advisories for PFAS: Fact Sheet for
Communities, at 1-2 (June 2022), available at https://www.epa.gov/system/files/documents/2022-06/drinking--
water-ha-pfas-factsheet-communities.pdf.
28 See Lauren Brown, Insight: PFAS, Covid-19, and Immune ResponseConnectingthe Dots, BLOOMBERG LAw
(July 13, 2020, 4:00 AM), hLtps://news.bloomberglaw.com/environment-and-energy/insight-pfas-covid-l9-and-
immune-response-connecting-the-dots?context=article-related.
E

can worsen these health effects.29 Given these harms, EPA in June 2022 established interim
updated lifetime health advisories for PFOA and PFOS in drinking water of 0.004 ppt and 0.02
ppt, respectively.30
Other PFAS are similarly harmful.31 In June 2022, EPA set a final lifetime health
advisory for GenX in drinking water of 10 ppt.32 Numerous states have acknowledged the
dangers of other PFAS compounds and proposed or finalized drinking water standards for
various PFAS at 20 ppt and lower. 33
PFAS are also harmful to wildlife and the environment. The chemicals have been shown
to cause damaging effects in fish,34 amphibians,35 reptiles,36 mollusks '37 and other aquatic
29 Emma V. Preston et al., Prenatal Exposure to Per- and Polyfluoroalkyl Substances and Maternal and Neonatal
Thyroid Function in the Project Viva Cohort: A Mixtures Approach, 139 ENV'T INT'L 1 (2020),
h1Ltps://perma.cc/DJK3-87SN.
30 87 Fed. Reg. at 36,848-49.
31 U.S. Dep't of Health and Human Servs., Toxicological Profile for Perfluoroalkyls (May 2021), available at
https://perma.cc/AHF7-RLOD; see also U.S. Env't Prot. Agency, Technical Fact Sheet: Drinking Water Health
Advisories for Four PFAS (PFOA, PFOS, GenX chemicals, and PFBS) (June 2022), Attachment 7.
32 87 Fed. Reg. at 36,848-49.
33 See Per- and Polyfluoroalkyl Substances (PFAS), INTEGRAL CORP., https://www.integral-corp.com/pfas/ (last
visited Jan. 24, 2023).
34 Chen et al., Perfluorobutanesulfonate Exposure Causes Durable and Transgenerational Dysbiosis of Gut
Microbiota in Marine Medaka, 5 ENv'T SCI. & TECH LETTERS 731-38 (2018); Chen et al., Accumulation
of Perfluorobutane Sulfonate (PFBS) and Impairment of Visual Function in the Eyes of Marine Medaka After
a LifeCycle Exposure, 201 AQUATIC TOXICOLOGY 1-10 (2018); Duet al., Chronic Effects of Water -Borne PFOS
Exposure on Growth, Survival and Hepatotoxicity in Zebrafish: A Partial Life -Cycle Test, 74 CHEmosPHERE 723-29
(2009); Hagenaars et al., Structure Activity Relationship Assessment of Four Perfluorinated Chemicals Using a
Prolonged Zebrafish Early Life Stage Test, 82 CHEMOSPHERE 764-72 (2011); Huang et al., Toxicity, Uptake
Kinetics and Behavior Assessment in Zebrafish Embryos Following Exposure
to Perfluorooctanesulphonicacid (PFOS), 98 AQUATIC TOXICOLOGY 139-47 (2010); Jantzen et al., PFOS, PFNA,
and PFOA Sub -Lethal Exposure to Embryonic Zebrafish Have Different Toxicity Profiles in terms of
Morphometrics, Behavior and Gene Expression, 175 AQUATIC TOXICOLOGY 160-70 (2016); Liu et al., The Thyroid -
Disrupting Effects of Long -Term Perfluorononanoate Exposure on Zebrafish (Danio rerio),
20 ECOTOXICOLOGY 47-55 (2011); Chen et al., Multigenerational Disruption of the Thyroid Endocrine System in
Marine Medaka after a Life -Cycle Exposure to Perfluorobutanesulfonate, 52 ENv'T SCL & TECH. 4432-39
(2018); Rotondo et al., Environmental Doses of Perfluorooctanoic Acid Change the Expression of Genes in Target
Tissues of Common Carp, 37 ENv'T TOXICOLOGY & CHEM. 942-48 (2018).
35 Ankley et al., Partial Life -Cycle Toxicity and Bioconcentration Modeling of Perfluorooctanesulfonate in the
Northern Leopard Frog (Rana Pipiens), 23 ENv'T TOXICOLOGY & CHEM. 2745 (2004); Cheng et al., Thyroid
Disruption If of Environmental Level Perfluorooctane Sulfonates (PFOS) in Xenopus Laevis,
20 ECOTOXICOLOGY 2069-78 (2011); Lou et al., Effects
of Perfluorooctanesulfonate and Perfluorobutanesulfonate on the Growth and Sexual Development of
Xenopus Laevis, 22 ECOTOXICOLOGY 1133-44 (2013).
36 Guillette et al., Blood Concentrations of Per- and Polyfluoroalkyl Substances Are Associated with Autoimmune-
like Effects in American Alligators From Wilmington, North Carolina, FRONTEIR TOXICOLOGY 4:1010185 (Oct. 20,
2022), available at hUs://www.frontiersin.org/articles/10.3389/ftox.2022.1010185/full.
37 Liu et al., Oxidative Toxicity of Perfluorinated Chemicals in Green Mussel and Bioaccumulation Factor
Dependent Quantitative Structure Activity Relationship, 33 ENv'T TOXICOLOGY & CHEM. 2323-32 (2014); Liu et
al., Immunotoxicity in Green Mussels under Perfluoroalkyl Substance (PEAS) Exposure: Reversible Response and
Response Model Development, 37 ENv'T TOXICOLOGY & CHEM. 1138-45 (2018).
5

invertebrates38resulting in developmental and reproductive impacts, behavioral changes,
adverse effects to livers, disruption to endocrine systems, and weakened immune systems.39
Moreover, PFAS are extremely resistant to breaking down in the environment, can travel long
distances, and bio-accumulate in organisms.40 PFAS have been found in fish tissue, and the
primarily low-income and minority communities that rely heavily on subsistence fishing have
been found to have elevated PFAS levels in their blood.41 Due to these harms, EPA has
published draft recommended freshwater aquatic life criteria for PFOA and PFOS.42
In 2019, sampling at Asheboro's wastewater plant showed levels of total PFAS at
concentrations between 42.9 and 121 ppt.43 Asheboro's discharge contains PFOA and PFOS at
concentrations thousands of times higher than what EPA considers safe.44 The full scope of the
pollution is likely even greater as influent data often underestimates PFAS levels in the
wastewater plant's effluent. Indeed, studies have found, there can be a "substantial increase" in
specific PFAS after treatment, and the "degradation of precursor compounds is a significant
contributor to PFAS contamination in the environment."45 Moreover, as we have seen with
Asheboro's own reporting of 1,4-dioxane, industrial discharges of these types of chemicals can
be intermittent and it's likely that three months of sampling did not adequately capture the
existing pollution.
Even though the most recent sampling for PFAS was in 2019, it is almost certain these
chemicals remain present at the wastewater treatment plant. Asheboro receives wastewater from
14 significant industrial users41 that engage in a variety of industrial processes, including some
38 Houde et al., Endocrine -Disruption Potential of Perfluoroethylcyclohexane Sulfonate (PFECHS) in Chronically
Exposed Daphnia Magna, 218 ENV'T POLLUTION 950-56 (2016); Liang et al., Effects of Perfluorooctane Sulfonate
on Immobilization, Heartbeat, Reproductive and Biochemical Performance of Daphnia Magna,
168 CHEmospuERE 1613-18 (2017); Ji et al., Oxicity of Perfluorooctane Sulfonic Acid and Perfluorooctanoic Acid
on Freshwater Macroinvertebrates (Daphnia Magna and Moina Macrocopa) and Fish (Oryzias Latipes), 27 ENV'T
ToxlcoLoGY & CHEM. 2159 (2008); MacDonald et al., Toxicity of Perfluorooctane Sulfonic Acid and
Perfluorooctanoic Acid to Chironomus Tentans, 23 ENV'T TOXICOLOGY & CHEM. 2116 (2004).
39 See supra notes 34-38.
40What are PFAS?, Agency for Toxic Substances and Disease Registry, hUs://www.atsdr.cdc.gov/pfas/health-
effects/overview.htinl (last visited Jan. 24, 2023); see also Our Current Understanding of the Human Health and
Environmental Risks of PFAS, supra note 25.
41 Patricia A. Fair et al., Perfluoralkyl Substances (PFASs) in Edible Fish Species. from Charleston Harbor and
Tributaries, South Carolina, United States: Exposure and Risk Assessment, 171 ENV'T. RES. 266 (April
2019); Chloe Johnson, Industrial chemicals in Charleston Harbor taint. fish — and those who eat them, POST &
COURIER (June 4, 2022), httns://www.nostandcourier.com/environment/industrial-cheniicals-in-charleston-harbor-
taint-fish-and-those-who-eat-them/article b2bl4506-bcl9-llec-83e5-7f2a8322d624.htm1.
' Draft Recommended Aquatic Life Ambient Water Quality Criteria for Perfluorooctanoic Acid (PFOA) and
Perfluorooctane Sulfonic Acid (PFOS), 85 Fed. Reg. 26,199, 26,200 (May 3, 2022).
43 2019 POTW 1,4-dioxane & PFAS Sampling Results, supra note 23 at 1.
44 Id. (showing concentrations of PFOA as high as 11.7 ppt and PFOS as high as 19.8).
41 Ulrika Eriksson, et al., Contribution ofprecursor compounds to the release ofper- and polyfluoroalkyl substances
(PFASs) from waste water treatment plants (WWTPs), 61 J. ENVIRON. Sci. 80 (2017); see also Mich. Dep't of Env't,
Great Lakes, and Energy, Summary Report: Initiatives to Evaluate the Presence of PFAS in Municipal Wastewater
and Associated Residuals (SludgeBiosolids) in Michigan 9-10 (June 2020), hLtps://perma.cc/C2Z8-DT99.
46 City of Asheboro, 2020 Pretreatment Annual Report 5 (Feb. 15, 2021) [hereinafter "Asheboro 2020 Pretreatment
Report"], Attachment 8 (explaining that two significant industrial users closed in 2020 and the city now has 14
significant industrial users); see also N.C. Div. of Water Res., Pretreatment Compliance Inspection (PCI) Report
(May 10, 2022) (stating that Asheboro has 14 significant industrial users).

known or suspected to be associated with PFAS.47 For example, Asheboro receives industrial
wastewater from the following likely sources of PFAS contamination:
Categorical Significant Industrial User
Category
Flow GPD
Matlab, Plant 5
Metal finishing
3,000
Matlab, Plant 8
Metal finishing
800
Premier Powder Coating
Metal finishing
800
Starpet
Organic chemical, synthetic
fibers, and plastics
42,000
At least three of Asheboro's categorical significant industrial users engage in industrial
processes related to metal finishing.48 EPA has confirmed that "PFAS have been, and continue to
be, used by metal finishing facilities in the United States" to reduce mechanical wear as well as
reduce corrosion or enhance aesthetic appearance. 49 Plating, a type of metal finishing that
involves covering a surface with a thin layer of metal, is used "for corrosion inhibition and
radiation shielding; to harden, reduce friction, alter conductivity, and decorate objects; and to
improve wearability, paint adhesion, infrared (IR) reflectivity, and solderability"50 The plating
industry uses PFAS for "corrosion prevention, mechanical wear reduction, aesthetic
enhancement," and as a "surfactant, wetting agent/fume suppressant for chrome, copper, nickel
and tin electroplating, and postplating cleaner."51 EPA has confirmed that when metal finishing
industries use PFAS, the chemicals end up in the facilities' wastewater, surrounding surface
waters, and the sewer system of the municipal wastewater treatment plant serving the industry.52
Similarly, industries that work with organic chemicals, plastics, and synthetic fibers
like Asheboro's Starpet are a suspected point source category for PFAS.53 EPA notes that this
category:
includes a broad range of sectors, raw materials, and unit operations that may
manufacture or use PFAS ... some [organic chemicals, plastics, and synthetic fiber]
facilities use PFAS feedstocks as polymerization or processing aids or in the
production of plastic, rubber, resin, coatings, and commercial cleaning products.54
4' Asheboro 2016 Permit Application, supra note 19 at 129-156; Draft Permit Fact Sheet, supra note 2 at 2.
48 Asheboro 2016 Permit Application, supra note 19 at 143, 145, 147.
49 U.S. Env't Prot. Agency, Multi -Industry Per- and Polyfluoroalkyl Substances (PFAS) Study -2021 Preliminary
Report 6-4 (Sept. 2021), available at hops://www.epa.gov/system/files/documents/2021-09/multi-industry_pfas-
study preliminary-2021-report 508_2021.09.08.pdf [hereinafter "EPA PFAS Industry Preliminary Report"].
50 Hayley & Aldrich, PFAS Technical Update (2020), available at
hUs://www.haleyaldrich. com/Portals/0/Downloads/HA-Technical-Update-PFAS-in-the-plating-indusM.pdf.
51 Interstate Technology Regulatory Council, History and Use of Per- and Polyfluoroalkyl Substances (PFAS) 5
(2020), available at https://pfas-
l.itrcweb.org/fact sheetspage/PFAS _Fact _Sheet History and_Use_Apri12020.pdf; Fath, et al., Electrochemical
decomposition offluorinated wetting agents in plating industry waste water, 73 WATER SCI TECH. 7, 1659-66
(2016), available at https://iwgponline.com/wst/article-lookup/doi/10.2166/wst.2015.650.
52 EPA PFAS Industry Preliminary Report, supra note 49 at 6-4 to 6-5.
53 Id. at 5-1.
54 Id. at 5-2.
7

Given these characteristics, EPA has found that this industry category is likely to generate
wastewater containing long -chain and short -chain PFAS including those that are well -studied
and known to be harmful to humans.55
Asheboro also receives wastewater from at least three textile companies:56
Significant Industrial User
Type of Company
Flow(GPD
Acme McCrary MAS Holdings
Textiles
86,000
Bossong Hosiery
Textiles
67,000
Kayser Roth
Textiles
75,000
Textile manufacturers, including, but not limited to, companies that make clothing, footwear,
carpets, rugs, household fabrics, upholstery, medical garments, firefighting garments and outdoor
gear have been found to use PFAS to enhance products' resistance to water, oil, and heat.57
Depending on the type of fabric production, PFAS can be added to the fibers themselves or
sprayed onto the finished fabric to enhance performance and durability.58 As a result, EPA has
determined that PFAS "are present in wastewater discharges" from textile companies to
municipal wastewater treatment plants.59
Because at least the above significant industrial users fall into categories known to be
associated with PFAS, it is likely that Asheboro's wastewater continues to contain the toxic
chemicals. Asheboro's wastewater treatment plant cannot remove PFAS from the wastewater,
and as a result, the industrial pollution flows downstream into drinking water supplies.
II. Asheboro's pollution threatens downstream drinking water supplies.
PFAS and 1,4-dioxane do not break down in the environment and are not removed by
conventional treatment technology.60 That means that if released upstream, these chemicals can
and will pollute downstream drinking water supplies. This has been confirmed before by
drinking water crises in North Carolina. PFAS pollution from the Chemours Fayetteville Works
Facility has contaminated drinking water intakes nearly 80 miles downstream,61 and 1,4-dioxane
55 Id. at 5-8 to 5-9.
56 Draft Permit Fact Sheet, supra note 2 at 2; Asheboro 2016 Permit Application, supra note 19 at 129, 131, 141.
51 EPA PFAS Industry Preliminary Report, supra note 49 at 8-3 to 8-4.
58 Id. at 8-1 to 8-2.
59 Id. at 8-4.
60 See What are PFAS?, supra note 40; see also Our Current Understanding of the Human Health and
Environmental Risks of PEAS, supra note 25; EPA, Technical Fact Sheet — 1, 4-Dioxane, supra note 5, at 1-2.
61 See Lisa Sorg, Breaking: New Analysis Indicates That Toxics Were Present in Wilmington Drinking Water at
Extreme Levels, N.C. PoLicY WATCH (Oct. 9, 2019), hops://pulse.ncpolicywatch.org/2019/10/09/breaking-new-
analy si s-indicate s-that-toxic s-were-pre sent-in-wilmington-drinking-water-at-extreme-levels/# sthash.OtzCYiv3 . dpb s.

pollution from the city of Greensboro's wastewater plant has reached the intake for Pittsboro
approximately 50 miles downstream.62
Asheboro's discharge is approximately 43.5 miles upstream of the nearest drinking water
supply in the Deep River.63 A little further downstream, lies the drinking water intake for the city
of Sanford, which not only supplies water for its residents, but also communities in Goldston,
Lee County, and parts of Chatham County. Sanford intends to expand its water services and send
drinking water to Pittsboro, Fuquay-Varina, and Holly Springs.64 Many of these areas are
seeking additional water capacity to continue their planned development, but some —like
Pittsboro—are also seeking options for water because their current supply is already
contaminated with PFAS and 1,4-dioxane. If Sanford's plans go through, the drinking water for
more than 80,000 additional people will be laden with these harmful chemicals.
Past sampling confirms the contamination of Sanford's drinking water. Monthly
sampling by the city shows elevated levels of PFAS in the city's raw water, including
concentrations of PFOA and PFOS as high as 9.35 ppt (2,337 times EPA's health advisory) and
13.8 ppt (690 times EPA's health advisory), respectively.65 In 2021, Sanford also reported an
average concentration of 1,4-dioxane in their raw water at 0.71 ppb66—twice what the state
considers safe to drink.67 Sample results of 1,4-dioxane reached levels as high as 6.19 ppb,68
suggesting the extent of the contamination could be more severe. Because industrial discharges
of PFAS and 1,4-dioxane are inconsistent, the city's infrequent drinking water sampling likely
does not capture the full scope of the drinking water pollution.
Unfortunately, the pollution flowing from the Deep River doesn't stop at its confluence
with the Haw River. Asheboro's PFAS and 1,4-dioxane contributes to the disproportionate levels
of contamination already present in the Cape Fear River Basin. More than 300,000 people in the
communities in the lower Cape Fear River Basin get their drinking water from the Cape Fear
I See Lisa Sorg, PW Special Report Part Two: Lax Local Regulation Allows Toxic Carcinogen to Infiltrate
Drinking Water Across the Cape Fear River Basin, N.C. POLICY WATCH (July 23, 2020),
https://ncpolicywatch.com/2020/07/23/pw-special-report-part-two-lax-local-regulation-allows-toxic-carcinogen-to-
infiltrate-drinking-water-acro ss-the-cape-fear-river-basin/.
6s Draft Permit Fact Sheet, supra note 2 at 13.
See Taylor Heeden, Pittsboro Board Discusses Funding for Water Partnership with Sanford, CHATHAM NEws &
RECORD (Jan. 30, 2022), hLtps://chapelboro.com/town-square/pittsboro-board-discusses-funding-for-water-
partnership-with-sanford; Interbasin Transfer, FuQuAY VARINA, N.C., h!Ltps://www.fugum-
varina.org/1098/lnterbasin-Transfer (last visited Dec. 22, 2022); Rob Fox, Water Needs, SuBuRBAN LIVING (Dec.
17, 2021), https://hollyssprings.suburbanlivingmag.com/water-needs/.
65 City of Sanford, 2021 Annual Water Quality Report 6 (2021), Attachment 9 [hereinafter "Sanford 2021 Water
Report"].
66 Id. at 7.
67 Surface Water Quality Standards, Criteria & In -Stream Target Values, supra note 9; see also 15A N.C. Admin.
Code 213.0208.
68 Sanford 2021 Water Report, supra note 65 at 7.
6

River, and some of these communities, like Fayetteville and Wilmington, have reported high
levels of 1,4-dioxane and PFAS in their drinking water supplies.69
III. The law requires the Department to analyze limits for municipal wastewater
treatment plants and requires those municipalities to control their industries.
In December 2022, EPA released guidance instructing state agencies how to address
PFAS through existing NPDES authorities.70 The same tools exist for 1,4-dioxane. Federal and
state law, as well as EPA's guidance make clear that the Department must consider effluent
limits and permit conditions to control Asheboro's pollution.
The Clean Water Act requires permitting agencies to, at the very least, incorporate,
technology -based effluent limitations on the discharge of pollutants.71 When EPA has not issued
a national effluent limitation guideline for a particular industry,72 permitting agencies must
implement technology -based effluent limits on a case -by -case basis using their "best professional
judgment."73 North Carolina water quality laws further state that municipalities must be treated
like an industrial discharger if an industrial user "significantly impact[s]" a municipal treatment
system.74 In this situation, the agency must consider technology -based effluent limits for the
municipality, even if effluent limits and guidelines have not been published and adopted.75
If technology -based limits are not enough to ensure compliance with water quality
standards, the Department must include water quality -based effluent limits in the permit.76 North
Carolina's toxic substances standard protects the public from the harmful effects of toxic
chemicals, like PFAS and 1,4-dioxane.77 For instance, the toxic substances standard mandates
that the concentration of cancer -causing chemicals shall not result in "unacceptable health risks,"
defined as "more than one case of cancer per one million people exposed. ,78 In order to comply
with the Clean Water Act, therefore, the Department must analyze appropriate treatment
technology and then determine if a discharger's pollution has the "reasonable potential to cause,
or contribute" to pollution at levels that could harm human health.79
In addition to using effluent limits to control PFAS and 1,4-dioxane pollution, the
Department has tools and obligations under the Clean Water Act's pretreatment program.80 The
69 Fayetteville Public Works Commission, 2021 Annual Water Quality Report 9 (Jan. 2022), available at
hUs://www.faypwc.com/wp-content/uploads/2021/05/2021-WQR-2.pdf; Cape Fear Public Utility Authority, 2021
Drinking Water Quality Report 17 (2022), available at https://www.cfpua.org/ArchiveCenterNiewFile/Item/798
70 EPA's PFAS NPDES Guidance, supra note 3.
7140 C.F.R. § 125.3(a) ("Technology -based treatment requirements under section 301(b) of the Act represent the
minimum level of control that must be imposed in a permit..." (emphasis added)); see also 33 U. S.C. § 1311; see
also EPA's PFAS NPDES Guidance, supra note 3 at 2.
72 33 U.S.C. § 1314(b).
73 40 C.F.R. § 125.3; see also 33 U.S.C. § 1342(a)(1)(B); 15A N.C. Admin. Code 213.0406.
74 15A N.C. Admin. Code 213.0406(a)(1).
75 Id.
76 40 C.F.R. § 122.44(d)(1)(i); see also 33 U.S.C. § 131l(b)(1)(C); 15A N.C. Admin. Code 2H.0112(c) (stating that
Department must "reasonably ensure compliance with applicable water quality standards and regulations").
77 15A N.C. Admin. Code 213.0208.
78 Id. at 213.0208(a)(2)(13).
79 40 C.F.R. § 122.44(d)(1)(i).
80 Id. § 403.8.
10

pretreatment program governs the discharge of industrial wastewater to wastewater treatment
plants and is intended to place the burden of treating polluted discharges on the entity that creates
the pollution, rather than on the taxpayers that support municipal wastewater plants.
Under the pretreatment requirements, municipalities are required to know what waste
they receive from their "Industrial Users."81 EPA has confirmed that this requirement extends to
pollutants that are not conventional or listed as toxic, like PFAS82 and the Department has
confirmed the same applies to 1,4-dioxane.83 Municipalities like Asheboro must instruct their
industries to identify their pollutants in an industrial waste survey84 and then to apply for a
pretreatment permit, by disclosing "effluent data," including on internal waste streams, necessary
to evaluate pollution controls.85 Significant industrial users are further required to provide
information on "[p]rincipal products and raw materials ... that affect or contribute to the
[significant industrial user's] discharge."86
A municipality that runs a wastewater plant is required to regulate its industries so that
industries do not cause "pass through" or "interference," or otherwise violate pretreatment
laws.87 "Pass through" is when an industrial discharge causes the wastewater plant to violate its
own NPDES permit,88 including standard conditions such as the one requiring permittees to
"take all reasonable steps to minimize or prevent any discharge or sludge use" that has a
"reasonable likelihood of adversely affecting human health or the environment."89 Industries are
also not permitted to interfere with publicly -owned treatment works operations. "Interference"
occurs when a discharge disrupts the treatment works' operation or its sludge use or disposal and
violates the facility's NPDES permit or other applicable laws.90 Violating the prohibitions on
pass through or interference constitutes a violation of the Clean Water Act's pretreatment
standards and requirements.91 Municipalities must also act "immediately and effectively to halt
or prevent any discharge of pollutants to the [treatment works] which reasonably appears to
present an imminent endangerment to the health or welfare of persons."92 Rules like these are
further memorialized in cities' sewer use ordinances, which lay out specific rules that industrial
users must follow and steps the city must take if violations occur.
81 Id. § 403.8(f)(2).
82 See U.S. Env't Prot. Agency, PFAS Strategic Roadmap: EPA's Commitments to Action 2021-2024 14 (Oct.
2021), available at hops://perma.cc/LK4U-RLBH.
83 See, e.g., NCDWR, 1,4-dioxane 2017 Report, supra note 9 at 5.
84 40 C.F.R. § 403.8(f)(2)(ii); U.S. Env't Prot. Agency, Introduction to the National Pretreatment Program, at 4-3
(Jun. 2011), available at hops://www.evansvillegov.org/egov/documents/1499266949 62063.pdf.
85 U.S. Env't Prot. Agency, Industrial User Permitting Guidance Manual (2012), at 4-2 to 4-3, available at
https://www.epa.gov/sites/default/files/2015-10/documents/industrial_ user permitting manual_full.pdf.
86 40 C.F.R. § 122.210)(6)(ii)(C).
81Id. §§ 403.8(a), 403.5(a)(1).
88 Pass through is defined as "a discharge which exits the [treatment works] into waters of the United States in
quantities or concentrations which, alone or in conjunction with a discharge or discharges from other sources, is a
cause of a violation of any requirement of the [treatment works'] NPDES permit (including an increase in the
magnitude or duration of a violation)." Id. § 403.3(p).
89Id. § 122.41(d).
90 Id. § 403.3(k).
9140 C.F.R. § 403.5(a)(1).
' Id. § 403.8(f)(1)(vi)(B).
11

Municipalities like Asheboro have broad authority to control their industries so that
municipally owned treatment works can comply with these pretreatment laws. They can "deny or
condition" pollution permits for industries, control industrial pollution "through Permit, order or
similar means," and "require" "the installation of technology."93 Municipalities can also
implement local limits to control industrial pollution sent to treatment works in the first place.94
And in addition to the implementing effluent limits, the Department can ensure that
municipalities comply with the Clean Water Act pretreatment program by including the
appropriate permit conditions in the municipalities' NPDES permit.
These rules are how the Clean Water Act "assures the public that [industrial] dischargers
cannot contravene the [Clean Water Act's] objectives of eliminating or at least minimizing
discharges of toxic and other pollutants simply by discharging indirectly through [wastewater
treatment plants] rather than directly to receiving waters."95 The laws governing the program
ensure that municipally owned wastewater plants do not become dumping grounds for
uncontrolled industrial waste.
IV. Asheboro's industries are violating state, federal, and local laws by releasing
PFAS and 1,4-dioxane into the sewer system.
Asheboro is responsible for ensuring its industrial users comply with the Clean Water Act
pretreatment program and the city's own local sewer use ordinances. The Department, in turn, is
responsible for ensuring Asheboro does so and must incorporate the city's pretreatment program
"as enforceable conditions in the [wastewater treatment plant's] NPDES permit."96 As described
below, Asheboro's industries are violating Asheboro's permit, the Clean Water Act pretreatment
rules, and the city's municipal law regarding sewer use. These violations highlight how
important it is for the Department to incorporate limits and conditions to ensure Asheboro acts to
abate these violations and does not continue to turn a blind eye to these persistent violations.
a. Asheboro's industries are violating the city's pretreatment program.
Asheboro's industries are causing "pass through" and "interference" in violation of the
city's pretreatment program. As explained in Section III above, "pass through" is when an
industrial discharge causes the wastewater plant to violate its own NPDES permit. HAS and
1,4-dioxane pollution from Asheboro's industries cause "pass through" because the industries
cause Asheboro to violate the standard conditions applicable to all NPDES permits, including the
condition requiring permittees to "take all reasonable steps to prevent or minimize any discharge
or sludge use" that has a "reasonable likelihood of adversely affecting human health or the
environment."97
93 Id. § 403.8(f)(1).
94 Id. § 403.5.
95 General Pretreatment Regulations for Existing and New Sources, 52 Fed. Reg. 1586, 1590 (Jan. 14, 1987)
(codified at 40 C.F.R. § 403).
96 U.S. Env't Prot. Agency, NPDES Permit Writers' Manual 9-10 (2010) [hereinafter "EPA NPDES Permit Writers'
Manual"], available at httns://www.ei)a.gov/sites/default/files/2015-09/documents/Uwm 2010.1)df; see also 40
C.F.R. § 403.8.
97 40 C.F.R. § 122.41(d).
12

Unfortunately, Asheboro's pollution is not limited to its surface water discharges.
Asheboro land applies biosolids produced during the wastewater treatment process.98 Because
these chemicals are not removed by conventional wastewater treatment technology, the
chemicals can end up in Asheboro's sludge. Studies have shown that PFAS-contaminated sludge
that is land applied can runoff into surface waters that supply drinking water for communities
downstream and leach into groundwater which in turn threatens drinking water wells.99 The
PFAS and 1,4-dioxane coming from the city's industries are therefore likely causing
"interference," by further interfering with the city's sludge processes, use, and disposal
practice.100
Asheboro's failure to impose specific limits to prevent pass through and interference, to
prohibit these illegal discharges, to enforce or remedy these continuing acts, and to revise and
adopt local limits to prevent them from occurring, are violations of Asheboro's NPDES Permit
and federal law. 101 These violations have resulted in persistent high levels of toxic pollution
being released into the environment.
b. Asheboro's industries are violating the city's sewer use ordinances.
Asheboro's sewer use municipal ordinance "sets forth uniform requirements for direct
and indirect contributors to the wastewater collection and treatment system."102 All industrial
users must abide by the sewer use ordinance in order to discharge into the city's sewer shed.103
One of the primary goals of the ordinance is to "prevent the introduction of pollutants and
wastewater discharges into the municipal wastewater system which will pass through the system,
inadequately treated, into any waters of the State." 104 To effectuate that goal, the city's ordinance
explicitly prohibits industrial users from discharging "[a]ny wastewater causing the treatment
plant effluent to violate State Water Quality Standards for toxic substances as described in 15A
NCAC 2B .0200." 105
Asheboro's industries are discharging wastewater that is causing the city to violate the
toxic substances standard, in further violation of local law. The city has legal responsibility to
"[flake appropriate actions" to address these violations —including by issuing, modifying, and
98 Asheboro is authorized to apply 3,000 dry tons of sludge onto private farms across Guilford and Randolph
counties each year. N.C. Dep't of Env't Quality, Permit No. WQ0001684 (Oct. 10, 2019).
99 Andrew B. Lindstrom et al., Application of WWTP Biosolids and Resulting Perfluorinated Compound
Contamination of Surface and Well Water in Decatur, Alabama, USA, 45 ENV'T. SCI. & TECH. 8015 (2011);
Jennifer G. Sepulvado et al., Occurrence and Fate of Perfluorochemicals in Soil Following the Land Application of
Municipal Biosolids, 45 ENV'T. SCL & TECH. (2011); Janine Kowalczyk et al., Transfer of PerfluorooctanoicAcid
(PFOA) and Perfluorooctane Sulfonate (PFOS)From Contaminated Feed Into Milk and Meat of Sheep: Pilot Study,
63 ARCHIVES ENV'T CONTAMINATION & TOXICOLOGY 288 (2012); Holly Lee et al., Fate of Polyfluoroalkyl
Phosphate Diesters and Their Metabolites in Biosolids Applied Soil: Biodegradation and Plant Uptake in
Greenhouse and Field Experiments, 48 ENV'T. SCL & TECH. 340 (2014).
100 40 C.F.R. § 403.3(k).
101 Id. §§ 122.41, 403.5(a)(1), 403.5(c)(1), (c)(2); see also N.C. Dep't of Env't Quality, NPDES Permit Standard
Conditions (Oct. 31, 2011).
101 Asheboro, North Carolina Code of Ordinances § 52.01(A).
103Id. § 52.01(D).
104Id. § 52.01(A)(2).
105Id. § 52.05(B)(19).
13

revoking pretreatment permits.106 Asheboro, however, has not done so despite nearly a decade of
knowledge that the industries are violating these provisions.
Effective operation of the pretreatment program for both PFAS and 1,4-dioxane is
necessary to abate these ongoing violations. The city's long-standing inaction makes clear that
the Department must be firm with Asheboro's NPDES permit and impose both effluent limits
and conditions to ensure that the city does not continue to ignore the threat of toxic pollution
from its industrial sources.
V. The Department must do more to control Asheboro's 1,4-dioxane pollution.
We are pleased to see that the Department has used its existing authority to restrict
Asheboro's discharge of 1,4-dioxane, and we appreciate the thoughtful process the Department
set forth in the draft permit and accompanying fact sheet. The interim limits and overall timeline,
however, are unnecessarily lenient and prolong North Carolinian's exposure to toxic pollution.
The Department must make the following changes to the draft permit to protect downstream
communities.
a. The compliance schedule in the draft permit is improperly lenient.
In the draft permit, the Department granted Asheboro a five-year compliance schedule for
meeting the final effluent limits for 1,4-dioxane.107 As proposed, over the next five years,
Asheboro must prepare and submit an Action Plan, investigate and identify sources, and meet
increasingly lower interim limits before complying with a final limit of 21.58 ppb (monthly
average) and 49.4 ppb (daily maximum).108 While we appreciate the Department's efforts in
formulating a thorough plan for pollution reduction, the schedule is far too lenient as the city has
already had seven years to study and control its toxic pollution. Investigatory measures
implemented at other wastewater treatment plants have shown that with mandated and routine
sampling, sources can be identified in a matter of months.109 The Department must shorten the
compliance schedule.
The federal Clean Water Act regulations allow a permit writer to add a compliance
schedule into a NPDES permit to grant the permittee time to achieve compliance with final
effluent limits.' 0 Before creating a schedule, the permitting agency must make a finding
"adequately supported by the administrative record" that the permittee cannot immediately
comply with the applicable water quality -based effluent limit."' If the permittee in fact cannot
106Id. § 52.05(D)(2).
107 Asheboro Draft Permit, supra note 1 at 9.
10s Id. at 3, 9.
109 See City of Greensboro, Amended Special Order By Consent EMC SOC WQ S 19-010 Year One Report: May 1,
2021 — April 30, 2022 16-17 (June 13, 2022) (explaining that nine sources of serious 1,4-dioxane pollution were
identified within two quarters of sampling), available at https://www.greensboro-
nc.gov/home/showdocument?id=53017&t=637908166316264208 [hereinafter "Greensboro SOC Year 1 Report"].
110 40 C.F.R. § 122.47. North Carolina's water quality rules incorporate by reference this regulatory provision. 15A
N.C. Admin. Code 2H.0143(a)(28).
111 Memorandum from James A. Hanlon re Compliance Schedules for Water Quality -Based Effluent Limitations in
NPDES Permits 2 (May 10, 2007) [hereinafter "EPA Compliance Schedule Guidance"], Attachment 10 (citing 40
C.F.R. §§ 122.47(a), 122.47(a)(1)).
14

comply, a compliance schedule can be created so long as it is "appropriate" and requires
compliance with water quality standards "as soon as possible."112
EPA guidance on how to prepare a compliance schedule lists a series of factors to
consider when determining if the schedule is "appropriate" under the federal rules. These factors
include, as relevant here: (1) how much time a discharger has had to meet water quality -based
limits, (2) the extent to which the discharger has made a good faith effort to comply with water
quality -based limits, (3) whether the discharger would need to modify its treatment facilities or
operations to meet the water quality -based limits."' Additionally, EPA instructs state agencies to
consider the actual steps the discharger will need to take to achieve compliance when
determining whether a compliance schedule results in the achievement "as soon as possible."114
Both of these factors —that the schedule is appropriate and achieves compliance as soon as
possible —must be supported by the administrative record for the NPDES permit.115
The compliance schedule in this draft permit is not "appropriate" under the federal rules,
and it will not achieve compliance "as soon as possible." Asheboro's 1,4-dioxane pollution is not
new information and in fact, Asheboro has already had seven years to conduct sampling,
investigate sources, and implement reduction measures. The Department cannot grant the city
five more years to "investigate" a problem that the city should have dealt with long ago.
Applying EPA's factors, Asheboro has had ample time to meet its limits, has not made a good
faith effort to comply with limits, and given that the city's 1,4-dioxane is coming from industrial
sources, Asheboro does not need to modify its treatment facilities or operations to meet the
limits. Moreover, the city already has the tools needed to resolve its 1,4-dioxane pollution in far
less time.
In March 2015, Asheboro began investigating sources of 1,4-dioxane,116 and by the end
of the year, the city had identified possible industries that discharge the toxic chemical.117 The
city later met with those industries to confirm whether they were the source of the pollution. In
the years that followed, Asheboro continued to conduct "sporadic" trunkline sampling to ensure
all sources were identified.118 Despite the fact that the city had identified likely sources,
Asheboro did not require its facilities to cease their 1,4-dioxane pollution. As a result, more than
two years passed, and Asheboro continued to discharge harmful levels of toxic 1,4-dioxane.
112 40 C.F.R. § 122.47(a)(1); EPA Compliance Schedule Guidance, supra note I I I at 2 (citing 40 C.F.R. §§
122.47(a), 122.47(a)(1).)
13 EPA Compliance Schedule Guidance, supra note I I I at 3.
114Id. at 3.
115 Id. at 2.
16 Letter from Michael Rhoney, City of Asheboro to John Hennessey, N.C. Dep't of Env't Quality 2 (Apr. 5, 2022)
[hereinafter "Asheboro Response to NOV"], Attachment 11.
"' Letter from Michael Rhoney, City of Asheboro to Deborah Gore, N.C. Dep't of Env't Quality 1 (Aug. 21, 2019)
[hereinafter "Asheboro Corrective Action Plan"], Attachment 12 ("A significant source, Starpet Inc., was identified"
in 2015). Julie Grzyb, Notes 1 (Oct. 28, 2015), Attachment 13 ("All three have identified one or two SIU's
discharging the contaminant as a byproduct or as a result of raw materials used at the facility.").
18 Asheboro Corrective Action Plan, supra note 117 at 1.
15

On October 31, 2017, the Department sent a letter requiring Asheboro to sample its
effluent once per month and report the results on the city's discharge monitoring reports.119 At
this time and without rationale, Asheboro ceased its trunkline sampling and investigation
efforts.120 The results of the first couple months of sampling indicated that the city released the
toxic chemical at concentrations as high as 1,590 ppb. Even once the city had to publicly report
its 1,4-dioxane discharges, it refrained from controlling its industrial sources of pollution.
On May 1, 2018, the Department released a draft NPDES permit for Asheboro containing
an effluent limit for 1,4-dioxane set at 149 ppb. 121 The limit was based on achieving water
quality standards in the non -water supply water into which the city discharges. Multiple
stakeholders, including downstream drinking water utilities, submitted comments informing the
state that the effluent limit was far too high and not protective of downstream water supplies.
Asheboro opposed the proposed effluent limit stating the city "is not inclined to regulate" its
industries, arguing a lack of conclusive health data for 1,4-dioxane and the Department's lack of
legal authority to enforce water quality laws.122 The permit was stalled, and a final permit was
not issued.123
On July 22, 2019, nearly two years after the city began routine effluent sampling and four
years after the pollution was discovered, the Department requested that Asheboro prepare a
corrective action plan for locating and reducing sources of 1,4-dioxane.124 Asheboro submitted
its plan on August 21, 2019,125 identifying Starpet, Inc.a plastics manufacturing facility —as a
source of the 1,4-dioxane pollution and acknowledging that Starpet would be installing treatment
technology to remove 1,4-dioxane from its waste stream.126 In December 2020, Starpet installed
technology, which was designed to reduce 1,4-dioxane discharges to below 1,000 ppb, nearly
9,000 times higher than what the state considers safe.127 Even after Starpet installed treatment
technology, Asheboro's effluent sampling continued to show elevated concentrations of 1,4-
dioxane, some that were so high the Department issued the city a Notice of Violation.128
All of this information indicates that the five-year schedule of compliance is not
"appropriate." Asheboro has already identified sources.129 The city has the tools and information
needed to achieve pollution reduction. The only reason it has not done so to this point is because
it chose not to, as reflected in its response to the 2018 draft permit. Under at least two of the
19 Letter from Jeff Poupart, N.C. Dep't of Env't Quality to John Ogbum, City of Asheboro (Oct. 31, 2017),
Attachment 14.
120 Asheboro Corrective Action Plan, supra note 117 at 1.
1212018 Draft Permit, supra note 1 at 4.
122 Letter from Michael Rhoney, City of Asheboro to Gary Perlmutter, N.C. Dep't of Env't Quality 2 (June 7, 2018),
Attachment 15.
121 See Draft Permit Fact Sheet, supra note 2 at 23.
12' Letter from Deborah Gore, N.C. Dep't of Env't Quality, to Michael Rhoney, City of Asheboro (July 22, 2019),
Attachment 16.
125 Asheboro Corrective Action Plan, supra note 117 at 1.
126 Id at 1-2.
121 Asheboro Response to NOV, supra note 116 at 11 (attaching an email explaining the treatment system Starpet
installed "was only designed to remove the 1,4 Dioxane to a level of 1,000 ug/L").
121 NPDES No. NC0026123, Notice of Violation (NOV-2022-PC-0064) & Intent to Assess CIVIL PENALTIES,
N.C. Dep't of Env't Quality (Mar. 8, 2022), Attachment 17.
129 The city has stated publicly that it has "thoroughly investigated all sources of 1,4 Dioxane and have continual
contact with all known sources." Asheboro Response to NOV, supra note 116 at 2.
16

factors in EPA's guidance, therefore, the compliance schedule is not appropriate here. In
addition, the administrative record does not indicate that the compliance schedule will achieve
compliance "as soon as possible." In fact, the record for this draft permit displays no basis for the
five-year term and instead indicates that the Department simply asked the city how much time it
wanted to achieve compliance.130 In response, the city (without justification) requested "the full
5 year compliance schedule."131 This is not a proper rationale as required under the federal rules.
The Department cannot allow the city to continue to avoid controlling pollution at the
expense of communities downstream. The schedule of compliance must be shortened to the
length of time actually necessary to meet limits, and that decision must be supported by
information in the administrative record and fact sheet.
b. The Department must be more prescriptive in the schedule of compliance.
In addition to being far too long, the Department's schedule of compliance lacks the
detail necessary to ensure that Asheboro promptly identifies and addresses sources of 1,4-
dioxane pollution. Asheboro has delayed taking meaningful action to control its pollution for
nearly a decade. Without prescriptive measures put into the plan, there is no indication that the
city's next steps will actually reduce the pollution.
The Department has seen this play out before. For years, the city of Greensboro claimed
it was unable to control its 1,4-dioxane pollution because it was difficult to identify sources.132 In
2021, the Environmental Management Commission entered into an agreement with the city that
contained explicit details on how the city should conduct its investigation.133 In particular, the
plan required Greensboro to sample the wastewater from each of its significant industrial users
and to routinely monitor the individual trunklines.134 Within a couple months, Greensboro had
identified previously unknown major sources of the pollution.135 And because it had to make the
sampling data publicly available, the city had incentive to make its industries take remedial
actions.136 The sampling plan imposed on Greensboro was not complicated and contained
common sense requirements. The Department should follow the precedent established by the
Environmental Management Commission and set forth an investigation plan in this draft permit
that is actually designed to identify and control pollution.
c. The Department's Phase I interim limit calculation should use data only from
2021 to present.
The Phase I limits of 55.7 ppb (monthly average) and 127.6 ppb (daily maximum) were
selected based on the 50th percentile of effluent concentrations reported between January 2018
"0 Draft Permit Fact Sheet, supra note 2 at 71 (email from Nick Coco asking whether Asheboro "believes a 5-year
compliance schedule is necessary").
131 Id. at 68.
132 See, e.g., Letter from Glenn Dunn, Poyner Spruill to John Hennessey, N.C. Dep't of Env't Quality (Dec. 19,
2019), Attachment 18.
133 Settlement Agreement, 21 EHR 01770 & 21 EHR 017713 (Nov. 22, 2021), Attachment 19.
134 Id
135 See City of Greensboro, SOC 1,4-dioxane SIU Sampling — I't Round/Quarter (Nov. 23, 2021), available at
hops://www.greensboro-nc. gov/home/showpublisheddocument/51253/637745661723900000.
136 Greensboro SOC Year 1 Report, supra note 109 at 6.
17

and September 2022. This is a misleading set of data, however, because it takes into
consideration effluent concentrations pre -dating Starpet's installation of treatment technology
(which occurred in December 2020). The set of data is therefore not representative of what
Asheboro can and should be expected to achieve within a year of the permit's issuance. This is
not a harmless error. By utilizing data that pre -dates the installation of treatment technology, the
draft permit creates an incentive for Asheboro to either delay future reductions or to allow more
1,4-dioxane to enter its discharge. The Department must select a dataset representative of the
actions Asheboro has already taken in order to encourage future reductions.
Utilizing reported effluent data between January 2021 to November 2022, the 50th
percentile of reported effluent concentrations is significantly lower than that in the draft permit:
44.4 ppb.137 Following the Department's analysis, the Phase I interim limits should (at the very
most) be 44.4 ppb (monthly average) and 101.7 (daily maximum).138
d. The Department must take into consideration other sources of 1,4-dioxane
pollution when calculating water quality -based effluent limits.
Asheboro's draft permit establishes a final monthly average limit for 1,4-dioxane at 21.58
ppb and a daily maximum limit at 49.4 ppb. These numbers were properly calculated to ensure
that the concentration of 1,4-dioxane did not exceed 0.35 ppb in downstream water supplies, as
required by North Carolina's narrative toxic substances standard.139 We are encouraged to see
that the Department analyzed the impact Asheboro's pollution will have on the nearest
downstream water supply water and set limits based on such anticipated impact. While we agree
with the goal of ensuring the water supplies in the Deep River do not exceed 0.35 ppb, the
Department cannot analyze Asheboro's discharge in a vacuum and must take into consideration
other sources of 1,4-dioxane pollution when setting the final permit limit.
Federal regulations require a water -quality based limit when a discharge "alone or in
combination with other sources... could lead to an excursion above an applicable water quality
standard."140 Indeed, both federal and state regulations, as well as federal guidance, anticipate
that permit writers will consider other sources of pollution to ensure that an appropriate permit
limit can be set protecting the designated uses of downstream waters.141
The Department has already identified multiple other facilities contributing to the high
concentrations of the toxic chemical in the Cape Fear River Basin. While Asheboro, Reidsville,
and Greensboro are by far the largest contributors of 1,4-dioxane in the Cape Fear River Basin,
other sources —like the cities of Randleman and Ramseur —contribute to concentrations of 1,4-
13' Asheboro's DMRs, supra note 4.
13s The fact sheet explains that the daily maximum was developed by applying a multiplier of 2.29 to the average
monthly limit as recommended by EPA's Technical Support Document for Water Quality -Based Toxics Control.
Draft Permit Fact Sheet, supra note 2 at 14.
139 Id. at 13.
140 EPA NPDES Permit Writers' Manual, supra note 96 at 6-23 (citing 40 C.F.R. § 122.44(d)(1)(i)).
141 Id.; see also 15A N.C. Admin. Code 2B.0404 (explaining water quality -based limits should be imposed when a
discharge has "a reasonable potential to cause or contribute to exceedance of applicable water quality standards");
40 C.F.R. § 122.44(d)(1)(i) (explaining water quality -based limits must be set when the discharge of a pollutant will
"cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard,
including State narrative criteria for water quality").

dioxane in the Deep River's water supplies. Further downstream where the Deep River
converges with the Haw to form the Cape Fear River, 1,4-dioxane from Greensboro, Reidsville,
Sanford, Siler City, Burlington, High Point, and industrial dischargers, like DAK Americas,
further adds to the pollution burden seen in the Basin's water supplies. The Department must
consider these other sources of 1,4-dioxane and restrict Asheboro's pollution so that it alone or
in combination with other sources does not cause the concentration in downstream water
supplies to exceed 0.35 ppb.
e. All monitoring data must be made public.
In this draft permit, Asheboro is required to complete in -stream monitoring for 1,4-
dioxane. The city and the Department have agreed that the Upper Cape Fear River Basin
Association will collect in -stream samples and submit them to the Department. While it makes
practical sense for a monitoring coalition to continue to collect this data —particularly given the
Upper Cape Fear River Basin Association's longstanding history of doing so —we request that
the Department make explicit that all monitoring collected by the Association be made publicly
available or put into the city's discharge monitoring report.142 While we believe all information
regarding water quality should be made public, the request is particularly important when it deals
with toxic chemicals released above drinking water sources.
VL The Department must analyze effluent limits for PFAS just as it did for 1,4-
dioxane.
The Department is aware that Asheboro discharges PFAS.143 The Department did not,
however, propose effluent limits or permit conditions and instead only placed a quarterly
monitoring requirement for the class of toxic chemicals.144 If the Department truly believes that
it needs more information before analyzing and imposing effluent limits, it must request that
information during the permit process and require Asheboro to submit it as part of its permit
application.145
The Department's unwillingness to consider limits or pretreatment conditions for PFAS
standards in stark contrast to how the agency has addressed 1,4-dioxane. Such disparity in
treatment cannot be rationalized and serves only to prolong North Carolinian's exposure to toxic
142 See Asheboro Draft Permit, supra note 1 at 4, n. 1 (requiring that all monitoring be submitted in discharge
monitoring reports electronically).
143 2019 POTW 1,4-dioxane & PFAS Sampling Results, supra note 23 at 1.
144 See Asheboro Draft Permit, supra note 1 at 3, 10.
145 Piney Run Pres. Assn, 268 F.3d at 268 (`Because the permitting scheme is dependent on the permitting authority
being able to judge whether the discharge of a particular pollutant constitutes a significant threat to the environment,
discharges not within the reasonable contemplation of the permitting authority during the permit application
process, whether spills or otherwise, do not come within the protection of the permit shield." (emphasis added)); see
also Southern Appalachian Mountain Stewards, 758 F.3d at 565. The Department must not wait for EPA method
1633 to become final. EPA's guidance recommends using draft Method 1633 for a municipally owned treatment
works' influent, effluent, and biosolids and EPA has issued permits requiring use of the method. See EPA's PFAS
NPDES Guidance, supra note 3 at 4; U.S. Env't Prot. Agency, NPDES General Permit for Medium Wastewater
Treatment Facilities (WWTF's) In Massachusetts: MAG590000 (Sept. 28, 2022), at 10, Attachment 20; see also
U.S. Env't Prot. Agency, Response to Comments NPDES Permit No. MAG590000 (Sept. 28, 2022), Attachment 21.
19

chemical pollution. The Department must make the following changes in this draft permit to
address PFAS pollution from Asheboro's industries.
a. The Department must analyze and impose effluent limits for PFAS.
As discussed in Section III of this letter, the Clean Water Act mandates that technology -
based limits be the minimum amount of control imposed in NPDES permits. The Department
should consider available treatment technology for Asheboro's wastewater plant because its
waste is significantly impacted by industries that are likely sources of PFAS. Effective treatment
technologies for PFAS are available. Granular activated carbon is a cost-effective and efficient
technology that can reduce PFAS concentrations to virtually nondetectable levels. A granular
activated carbon treatment system at the Chemours' facility, for example, has reduced PFAS
concentrations as high as 345,000 ppt from a creek contaminated by groundwater beneath the
facility to nearly nondetectable concentrations.146 The Department must consider the feasibility
of using this technology or similarly technologies to control Asheboro's PFAS discharges.
Additionally, as discussed in Section III, the Department must also evaluate water
quality -based effluent limits for Asheboro's permit. EPA's PFAS NPDES Guidance confirms
that compliance with state water quality standards is relevant when assessing PFAS discharges
and directs that a "permit writer should apply" numeric or narrative water quality standards for
PFAS in their permitting decisions.147 North Carolina's toxic substances standard prohibits the
discharge of the chemicals in excess of "the level necessary to protect human health. ,14' As the
Department itself has recognized, PFAS meet the definition of "toxic substance" and the
Department should therefore analyze whether Asheboro's discharge will violate this water
quality standard.149 EPA's health advisories for PFAS and countless toxicity studies indicate that
the chemicals pose unacceptable health risks at extremely low levels. The Department has
included limits for PFAS referencing the water quality standard and EPA's health advisory for
GenX in at least one NPDES permit.150 The Department should similarly assess effluent limits in
Asheboro's permit based on EPA's interim and final PFAS health advisories and other available
toxicity information for the chemicals.
In this draft permit, the Department has exhibited that it has the tools and technical ability
to craft permit limits based on the narrative toxic substances standard —it did so for 1,4-dioxane.
The Department's decision to forego the same analysis for PFAS, a class of toxic chemicals
known to harm human health and the environment, is arbitrary decisionmaking. The Department
must analyze existing data (and if it needs more, collect it during the permit application process)
146 See Parsons, Engineering Report — Old Outfall 002 GAC Pilot Study Results (Sept. 2019), available at
https://www.chemours.com/j a/-/media/files/corporate/12e-old-outfall-2-gac-pilot-report-2019-09-
30.pdf?rev=6el242091aa846f888afa895eff80e2e&hash=040CAA7522E3D64B9E5445ED6F96BOFB; see also
Chemours Outfall 003, NPDES No. NC0089915 Discharge Monitoring Reports (2020-2022), available at
hops://perma.cc/8YND-XT5M.
147 EPA's PFAS NPDES Guidance, supra note 3 at 3-4.
141 15A N.C. Admin. Code 213..0208(a)(2).
149 Amended Complaint, North Carolina v. The Chemours Company, FC, LLC, 17 CVS 580 (Bladen Cnty. Super.
Ct. 2018), at ¶ 152 (explaining that PFAS "meet the definition of `toxic substance' set forth in 15A N.C.A.C. 2B
.0202").
150 N.C. Dep't of Env't Quality, NPDES Permit NC0090042 (Sept. 15, 2022), Attachment 22; N.C. Dep't of Env't
Quality, Fact Sheet NPDES Permit No. NC0090042 (Sept. 15, 2022), at 11-12, Attachment 23.
20

and impose pollution limits for Asheboro's wastewater plant. What the agency has done in the
current draft permit —requiring only monitoring —is not enough to protect communities currently
suffering from PFAS pollution.151
b. The Department must impose conditions in Asheboro's NPDES permit requiring
the city to use its pretreatment authority to control industrial sources.
Utilization of the pretreatment program is the most effective and fair way to prevent toxic
industrial chemical pollution from contaminating our communities. The Department's
compliance schedule for 1,4-dioxane alludes to the need to utilize the pretreatment program to
reduce concentrations of that chemical —the Department must do the same for PFAS.
Just last month, EPA recognized that incorporating PFAS into the pretreatment program
is an important tool for state agencies to utilize when faced with a municipal source of PFAS
contamination. EPA's PFAS NPDES Guidance explicitly directs that permits issued to municipal
wastewater treatment plants, like Asheboro's, "contain requirements to identify and locate all
possible [industrial users]" that are "expected or suspected for PFAS discharges."152 Once
sources are identified, EPA recommends that municipalities develop local limits for PFAS or
impose best management practices to control the pollution at the source."' In light of this
guidance, the Department should include necessary conditions in Asheboro's permit to require
the city to: (1) update its industrial user survey and determine all industrial sources of PFAS, and
(2) control any industrial sources of the chemicals "through Permit, order," "the installation of
technology,"114 local limits,115 or other means under the Clean Water Act pretreatment program.
In addition, EPA directs that municipal wastewater treatment plants "reduce the amount
of PFAS chemicals in biosolids," and recommends analyzing biosolids using draft method
1633.156 If PFAS are present in a municipality's sludge, it should implement best management
practices to control PFAS before the chemicals reach the wastewater treatment plant and end up
in the city's sludge.157 Because Asheboro land applies biosolids produced during the wastewater
treatment process,158 the Department should require that the city sample the sludge and, if it
discovers PFAS, adopt practices to reduce the concentrations of toxic chemicals entering the
city's wastewater treatment plant. Doing so is important for addressing all routes of toxic
contamination.
15' We also take issue with the frequency of monitoring imposed in the draft permit. Quarterly monitoring is unlikely
to capture the full realm of pollution. As the Department has seen with Asheboro's discharge of 1,4-dioxane,
concentrations of toxic pollutants vary depending on the operations of the industrial users. See, e.g., Asheboro's
DMRs, supra note 4. Without more frequent monitoring, the Department will not truly understand the threat of
Asheboro's PFAS pollution, and the city will not have the tools it needs to address sources of the contamination.
152 EPA's PFAS NPDES Guidance, supra note 3 at 4.
153 Id. at 4.
154 40 C.F.R. § 403.8(f)(1) (emphasis added).
155 Id. § 403.5.
156 EPA's PFAS NPDES Guidance, supra note 3 at 5.
157 Id.
151 See N.C. Dep't of Env't Quality, Permit No. WQ0001684 (Oct. 10, 2019); see also Brent Collins, EMA
Resources Inc, 2021 Annual Report — Asheboro Treatment and Land Application of Residuals Permit No.
WQ0001684 (Feb. 28, 2022).
21

As stated in EPA's NPDES Permit Writers' Manual, "NPDES permits drive the
development and implementation of pretreatment programs."159 They do so by requiring "control
mechanisms issued to significant industrial users," "compliance monitoring activities," and
"swift and effective enforcement." 160 The Department must impose conditions in Asheboro's
permit for PFAS in the same manner it did for 1,4-dioxane.
VII. The Department must require Asheboro to publicly update or supplement its
permit application.
Asheboro's permit application was submitted in March 2016 and is now more than six
years out of date. Since that time, it is likely that significant changes have occurred rendering the
information in the application obsolete. For example, since 2016, significant industrial users
have both opened and closed.161 In addition, new water quality rules have been passed and
sampling analyses have improved in accuracy. Most notably, in the 2016 application, the city
makes no disclosure of 1,4-dioxane in the city's effluent and does not include any information
about PFAS.162 The public relies on the information submitted in the publicly available
application in order to participate in the permitting process.163 The Department should require
Asheboro to update its permit application to disclose all pollutants in its discharge and reflect
any changes that have occurred in the past six years.
VIIL Contrary to the City of Reidsville's Assertions, the Department has the authority
and justification to regulate 1,4-dixoane and PFAS.
We have also reviewed the City of Reidsville's January 5, 2023 comments urging the
Department to allow more toxic 1,4-dioxane pollution to be discharged into a drinking water
Supply.164 Given that Reidsville is a municipality far upstream of Asheboro's discharge and is
not affected in any manner by Asheboro's permit limits, the Department should give much less
weight to its comments than those of downstream communities that are exposed to 1,4-dioxane
released by Asheboro.165 Moreover, Reidsville's comments reflect a basic misunderstanding of
the Clean Water Act and North Carolina's water quality laws, and we dispel each assertion here.
159 EPA NPDES Permit Writers' Manual, supra note 96 at 9-10.
160 id
161 See, e.g., Asheboro 2020 Pretreatment Report, supra note 46 at 5 (explaining that at the beginning of 2020, the
city has 16 significant industrial users but two closed); see also City of Asheboro, 2017 Pretreatment Annual Report
5 (Feb. 26, 2018) (explaining the city has only 15 significant industrial users).
162 See generally Asheboro 2016 Permit Application, supra note 19.
163 See 15A N.C. Admin. Code 21-1.0109, 21-1.0115.
164 Letter from Patrick Mincey, et al., Counsel to the City of Reidsville, to Nick Coco, N.C. Dep't of Env't Quality
(Jan. 5, 2023) [hereinafter "Reidsville Comments on NC0026123"].
165 See Letter from Kenneth Waldroup, Cape Fear Public Utility Authority, to Nick Coco, N.C. Dep't of Env't
Quality (Jan. 19, 2023) (explaining that upstream pollution requires the utility to invest millions in treatment
processes and making clear that no matter how proactive the water utility is, "ineffective management of loadings
within the Basin can negate" any improvements to their water treatment process); see also Letter from Michael
Rhoney, City of Asheboro, to Nick Coco, N.C. Dep't of Env't Quality (Jan. 9, 2023) (indicating that Asheboro does
not take issue with the 1,4-dioxane limits or controls).
22

a. The Department lawfully applied the toxic substances standard to Asheboro's 1,4-
dioxane discharges.
Reidsville's primary argument is that 0.35 ppb is not a lawful water quality standard —an
argument that reveals a misunderstanding of narrative water quality standards. As discussed
above, North Carolina's toxic substances standard, codified at 15A N.C. Admin. Code 2B.0208,
directs that "[t]he concentration of toxic substances shall not exceed the level necessary to
protect human health."166 For carcinogens, this means that concentrations should not cause
"more than one case of cancer per one million people exposed. ,167 Depending on the carcinogen,
the concentration that is known to cause a one -in -one million risk of cancer will vary, and the
Department should enforce the rule accordingly for each substance. For 1,4-dioxane, both EPA
and the Department agree that the concentration associated with the one -in -one million cancer
risk is 0.35 ppb.168 Put simply, even though a numeric water quality standard of 0.35 ppb is not
written into North Carolina water quality laws, the toxic substances standard is a valid and
enforceable narrative standard and the Department has properly applied it to 1,4-dioxane.169 For
Reidsville's argument to have any merit (it does not), one would have to accept the false
conclusion that the Department does not have the authority to enforce narrative water quality
standards —such an argument flies in the face of Clean Water Act regulations and U.S. Supreme
Court precedent, which require the Department to set permit limits based on narrative water
quality standards.170
It is irrelevant that the Department and the N.C. Environmental Management
Commission ("EMC") proposed to codify 0.35 ppb as a numeric water quality standard during
its most recent Triennial Review.171 The Department and EMC proposed the numeric standard
for 1,4-dioxane to address public concern and to pave the way for certain waterbodies to be listed
as impaired, as well as to provide certainty to the regulated community M—not because the
Department believed it did not have the authority to regulate 1,4-dioxane under the narrative
standard.171 In fact, the Department has relied on 15A N.C. Admin. Code 2B.0208 for
166 15A N.C. Admin. Code 213.0208(a)(2).
167 Id. 2B.0208(B).
16s EPA, Technical Fact Sheet —1,4-Dioxane, supra note 5; Surface Water Quality Standards, Criteria & In -Stream
Target Values, supra note 9.
169 See 40 C.F.R. §§ 131.1 l(a)(2) (authorizing states to regulate toxic substances with narrative criteria and
informing the state that they must set forth a method for implementing the standard into NPDES permits),
122.44(d)(1)(vi) ("Where a State has not established a water quality criterion for a specific chemical pollutant that is
present in an effluent at a concentration that causes, has the reasonable potential to cause, or contributes to an
excursion above a narrative criterion within an applicable State water quality standard, the permitting authority must
establish effluent limits" for that compound).
170 40 C.F.R. §§ 122.44(d) (directing that NPDES permits "[a]chieve water quality standards... including State
narrative criteria for water quality"), 123.25 (applying requirement to state programs), 131.11 (authorizing states to
use narrative water quality standards to address toxic pollutants); PUD No. I of Jefferson Cnty. v. Washington Dep't
of Ecology, 511 U.S. 700, 700 (1994); see also Ohio Valley Env't Coal. v. Fola Coal Co., LLC, 845 F.3d 133, 144
(4th Cir. 2017).
171 Contra Reidsville Comments on NC0026123, supra note 164 at 2, 4.
17z See N.C. Dep't of Env't Quality Division of Water Res., Regulatory Impact Analysis, 2020-2022 Triennial
Review — Surface Water Quality Standards (Mar. 11, 2021), available at https://deg.nc.gov/media/I8238/download.
"' Contra Reidsville Comments on NC0026123, supra note 164 at 4.
23

enforcement, issuing a Notice of Violation to Asheboro in March 2022 for its 1,4-dioxane
discharges.174 That the Rules Review Commission improperly rejected the proposed numeric
standards because it disagreed with the substance of EMC's fiscal analysis175 has no bearing on
the Department's continued authority to enforce an existing narrative water quality standard that
remains unchanged by the rulemaking process.
Next, contrary to Reidsville's assertions, the toxic substances standard does not direct the
Department to only control the toxic substances that are otherwise listed in .0212, .0214, .0215,
.0216, or .0218. This argument, of course, would render the narrative portion of the standard and
the broad definition of "toxic substances" superfluous.176 Reidsville's interpretation discards the
bulk of the language in the toxic substances standard, improperly extracts a few numbers from
the text, and touts those numbers as the whole rule.177 Our courts have explicitly rejected such
piecemeal regulatory interpretation.178 Each part of a rule "must be construed, if possible, so as
to give effect to every provision."179 The Department and EMC know how to write numeric
water quality standards —indeed, they have done so for many compounds throughout North
Carolina's water quality rules.180 These governing bodies could have selected to only issue
numeric water quality standards, but because there are countless harmful pollutants that can end
up in our state's waterways, they chose to give the Department broader discretion over what
constitutes a toxic substance regulated by 2B.0208. And that is what the Department has done
the Department has identified at least 166 other toxic substances 181 and has continued to apply
2B.0208 to compounds newly brought to its attention. For example, just last year, the
Department issued a NPDES permit to The Chemours Company, FC that contained effluent
limits for PFAS that were set, in part, using 15A N.C. Admin. Code 2B.0208--despite the fact
that North Carolina rules do not ascribe a numeric water quality standard for the class of
compounds.182
Finally, it was proper for the Department to control 1,4-dioxane as a carcinogen. For
decades, EPA, the Agency for Toxic Substances and Disease Registry, and the U.S. Department
14 NPDES No. NC0026123, Notice of Violation (NOV-2022-PC-0064) & Intent to Assess CIVIL PENALTIES,
supra note 128.
175 See Letter from Lawrence Duke, Rules Review Comm'n Counsel, to Jennifer Everett, N.C. Env't Mgmt.
Comm'n (May 25, 2022) (objecting to the proposed numeric water quality standards and stating that the Rules
Review Commission took issue with the EMC's fiscal analysis).
16 Subpart (a) of the toxic substances standard previews that it is built of both narrative and numeric component
explaining that "[s]pecific standards" are listed in other portions of the rule, and "[t]he narrative standard for toxic
substances" is designated in .0208. 15A N.C. Admin. Code 213.0208.
177 Reidsville Comments on NC0026123, supra note 164 at 4-5.
178 Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 216, 388 S.E.2d 134, 140 (1990); see also Kyle v. Holston
Group, 188 N.C. App. 686, 692, 656 S.E.2d 667, 671 (2008) (applying "cardinal rule of statutory construction that
significance and effect ... should be accorded every part of the [statute], including every section, paragraph,
sentence or clause, phrase, and word" to administrative regulations).
19 Burgess, 326 N.C. at 216, 388 S.E.2d at 140.
`0 See, e.g., 15A N.C. Admin. Code 2B.0211, .0212, .0214, .0215, .0216, .0218.
"I Surface Water Quality Standards, Criteria & In -Stream Target Values, supra note 9.
112 NPDES Permit NCO090042 (Sept. 15, 2022), supra note 150. Dating back to 2018, the Department recognized
that PFAS met the definition of "toxic substance" and were consequently regulated by 15A N.C. Admin. Code
213.0208. See Amended Complaint, North Carolina v. The Chemours Company, FC, LLC, 17 CVS 580 (Bladen
Cnty. Super. Ct. 2018), supra note 149.
24

of Health and Human Services have all recognized that 1,4-dioxane is a probable human
carcinogen.183 These agencies point to myriads of studies indicating that "all routes of exposure"
to 1,4-dioxane increases cancer risk in animals.184 The Final Risk Assessment that Reidsville
cites does not conclude otherwise, and in fact, explicitly "did not evaluate hazards or exposures
to the general population from ambient air, drinking water, and sediment pathways for any of the
conditions of use in this risk evaluation." 185 That report, therefore, has no bearing on the
Department's analysis in Asheboro's draft permit, and cannot be used to supplant decades of
data indicating the toxicity associated with 1,4-dioxane. Agencies tasked with protecting human
health agree that this chemical likely causes cancer, and the Department properly used the
section of 15A N.C. Admin. Code 2B.0208 designated for carcinogens.
b. The Department calculated limits for 1,4-dioxane in the draft permit that are too
lenient.
Reidsville also criticizes the Department's effluent limit calculations with a series of
arguments that have no legal merit. First, contrary to multiple points in Reidsville's comments,
North Carolina law mandates that water quality based effluent limitations "be developed by the
Division such that the water quality standards and best usage of receiving waters and all
downstream waters will not be impaired." 186 The Department, therefore, was required to
consider whether the discharge would exceed the 80 ppb standard applicable to the river where
Asheboro directly discharges and the 0.35 ppb standard applicable to the downstream water
supply water.187 That the drinking water intake within that water supply is currently inactive is
irrelevant —the designated use for that portion of the river remains a water supply water, and the
Department cannot authorize a discharge that threatens that designated use.188
113 See U.S. Env't Prot. Agency, Integrated Risk Infonnation System (IRIS) Chemical Assessment Summary, 1,4-
dioxane; CASRN 123-91-1 (Aug. 11, 2010), available at
https://cfpub.epa.gov/ncea/iris/iris documents/documents/subst/0326 summary.pdf [hereinafter "1,4-dioxane IRIS
Assessment"]; Agency for Toxic Substances and Disease Registry, 1,4-dioxane — Tox FAQs CASE # 123-91-1
(Apr. 2012), available at https://www.atsdr.cdc.gov/toxfags/tfactsl87.pdf-I U.S. Dep't of Health and Human Servs.,
Report on Carcinogens, Fifteenth Edition 1,4-dioxane CAS No 123-91-1 (2021), available at
https://ntp.niehs.nih.gov/ntp/roc/content/profiles/dioxane.pdf.
laa 1,4-dioxane IRIS Assessment, supra note 183 at 12-13.
las U.S. Env't Protec. Agency Final Risk Evaluation for 1,4-Dioxane CASRN: 123-91-1 34 (Dec. 2020), available
at https://www.epa.gov/sites7default/files/2020-12/documents/l. risk evaluation for 14-dioxane casm 123-91-
1.pdf.
186 15A N.C. Admin. Code 213.0203 (emphasis added).
18I Asheboro hyperbolizes that Asheboro discharges "into waters that eventually become water -supply waters (and
eventually become the waters of the Atlantic Ocean, and perhaps eventually the tidal waters of South America or
Europe or Africa)." Reidsville Comments on NC0026123, supra note 164 at 8. This distraction misses the relevant
point that less than 50 miles downstream of Asheboro's discharge lies a water supply. See Draft Permit Fact Sheet,
supra note 2 at 13. North Carolina has long documented that 1,4-dioxane released by the City of Greensboro makes
its way to Pittsboro's drinking water intake approximately 50 miles downstream. And in fact, if the Department sets
limits that ensure the designated use of that next water boundary is met, it can assure that all the waters that
"eventually become the waters of the Atlantic Ocean" will be protected.
188 See 40 C.F.R. §§ 131.11, 122.44(d)(1)(vi); see also 15A N.C. Admin. Code 2B.0206, .0208, .0212, .0214, .0215,
.0216, .0218.
25

Second, the draft permit and fact sheet properly assume that the 1,4-doxane released by
Asheboro will remain in the water when the discharge reaches the downstream water supplies.189
As the Department and Reidsville are aware, 1,4-doxane is highly miscible in water and does
not break down once released into the environment,190 making this assumption proper.
Reidsville's qualms with the Department's calculations are factually inaccurate, 191 and if
anything, the Department's final effluent limits are too high because they do not take into
consideration other sources of 1,4-doxane in the watershed, as discussed in Section V(d).192
Third, Reidsville's concerns about Asheboro's technological capability to achieve the
water quality standard similarly carry no weight. The Clean Water Act is a technology forcing
statute, and technology -based limits are the minimum amount of control necessary for a NPDES
permit.193 The Department is required to assure that water quality standards are met, regardless
of treatment technology capabilities. Moreover, as discussed above, technology exists to remove
1,4-doxane from industrial wastewater—Asheboro's own industry, Starpet, has installed such
technology, and Shamrock, which discharges into Greensboro's wastewater treatment system,
has similarly installed a treatment system.194
c. The Department must follow the law regardless ofpast permitting decisions.
Throughout the comments, Reidsville argues that because this draft permit is different
than the one released in 2018 and is different from other permits controlling 1,4-doxane, that it
must be arbitrary and capricious.195 The opposite is true. The Department is required to take into
consideration public comments raised in response to a draft permit,196 and must issue a permit
that achieves compliance with water quality standards.197 The Department has properly made
amendments with this draft permit to address those two requirements.
And the Department must ensure that Asheboro's permit complies with the law
regardless of its past permitting decisions. Reidsville cites two industrial discharge permits that
1s9 Draft Permit Fact Sheet, supra note 2 at 13.
190 EPA, Technical Fact Sheet —1,4-Dioxane, supra note 5; Draft Permit Fact Sheet, supra note 2 at 13.
191 For the purposes of establishing technology -based effluent limits, municipalities must be treated like an industrial
discharger if an industrial user "significantly impact[s]" a municipal treatment system. 15A N.C. Admin. Code
213.0406(a)(1).
192 Reidsville raises concerns about both the final and interim effluent limits. For example, in notable conflict with
the remainder of its comments, Reidsville takes issue with the fact that the interim limits are not based on the 0.35
ppb standard. See Reidsville Comments on NC0026123, supra note 164 at 11-12. If Reidsville raised this comment
because it believes that the standard of 0.35 ppb should apply immediately, then we would agree.
193 40 C.F.R. § 125.3(a) ("Technology -based treatment requirements under section 301(b) of the Act represent the
minimum level of control that must be imposed in a permit..." (emphasis added)); 33 U.S.C. § 1311; see also EPA's
PFAS NPDES Guidance, supra note 3 at 2.
191 See Asheboro Response to NOV, supra note 116 at 11; see also Greensboro SOC Year 1 Report, supra note 109
at 4.
191 Reidsville Comments on NC0026123, supra note 164 at 4, 6, 9, 10-11.
196 Nc gen stat 143-215. 1 (c); 15A N.C. Admin. Code 2H.01 I I(a)(3) ("All comments received within 30 days
following the publication date of the notice of NPDES permit application shall be made part of the application file
and shall be considered by the Director prior to taking final action on the application.")
19' 15A N.C. Admin. Code 2H.0I 12(c).
26

contain different controls for 1,4-dioxane,198 and to some degree, Reidsville is correct —those
industrial permits do not protect downstream water supplies, and as a result, they are unlawful.
Fortunately, the Department's issuance of past permits that were not protective does not commit
the agency to future unlawful decisions, and the Department will have the opportunity to fix
these permits within the next year.199
Similarly, the Special Order by Consent issued to the City of Greensboro has no bearing
on Asheboro's permit. A Special Order by Consent is a tool used to set a facility on a schedule
towards achieving compliance with the law.200 At the end of the term, the facility must achieve
compliance with water quality standards.201 Greensboro will have to meet the water quality
standards in 15A N.C. Admin. Code 213.0208 upon the completion of its Special Order by
Consent —making it consistent with, rather distinct from, the Department's treatment of
Asheboro's 1,4-dioxane discharges.202 The Department's actions drafting Asheboro's permit are
more consistent with the law than those cited by Reidsville, and as discussed in Sections V and
VI above, Asheboro's permit should be made even stronger.
IX. Conclusion.
In summary, we acknowledge the Department's control of 1,4-dioxane in this draft
permit and are encouraged by the process set forth to achieve the narrative water quality standard
in the nearest water supply water. The process in the permit is the correct one —it requires
Asheboro to control its pollution through the implementation of effluent limits and requirements
for the city to use its pretreatment program. These are existing authorities the Department has
and should be using in NPDES permits addressing 1,4-dioxane and PFAS. The timeline and
procedure afforded to Asheboro, however, is far too lenient and the limits do not take into
consideration other sources of pollution or the reductions the city has already achieved.
Additionally, as described in detail above, the Department cannot ignore Asheboro's PFAS
pollution and must go through the same analysis of establishing limits and forcing control of
industrial sources through the pretreatment program. The Department must make the changes
discussed in this letter before issuing a final permit.
19s See Reidsville Comments on NC0026123, supra note 164 at 9 (discussing the permit issued to Radiator Specialty
Company), 10-11 (discussing the permit issued to DAK Americas).
199 The NPDES permits for DAK Americas expired on October 31, 2022, and the NPDES permit for Radiator
Specialty Company will expire on March 31, 2023. N.C. Dep't of Env't Quality, NPDES Permit No. NC0003719
(Aug. 1, 2018); N.C. Dep't of Env't Quality, NPDES Permit No. NCO088838 (July 1, 2019). The Department will
need to issue a new permit to each facility that controls the industries' pollution, including 1,4-dioxane.
zoo N.C. Gen. Stat. § 143-215.2(a).
201 See 15A N.C. Admin. Code 2H.1206(a); see also Memorandum from Coleen H. Sullins, N.C. Dep't of Env't and
Nat. Res. to Ted Bush, et al., regarding Special Orders By Consent (SOC) Guidance Document (Aug. 17, 2010)
("An SOC is a special type of administrative order whereby the Environmental Management Commission (EMC)
enters into an agreement with a permittee experiencing noncompliance with statutes, rules or permit requirements.
The SOC specifies action designed to reduce, eliminate or prevent water quality degradation by bringing the
permittee back into compliance.").
202 The EMC has confirmed this as recently as this month by sharing that Greensboro's next NPDES permit will
continue final limits of 0.54 ppb (monthly average) and 1.53 ppb (daily max). See N.C. Dep't of Env't Quality,
Annual 1,4 Dioxane Progress Report 5 (Jan. 2023).
27

Thank you for considering these comments. Please contact me at 919-967-1450 or
[e-mail] if you have any questions regarding this letter.
Sincerely,
4uwLJ�AtAow
Hannah M. Nelson
Jean Zhuang
'20'/Z In, -
Geoff Gisler
SOUTHERN ENVIRONMENTAL LAW CENTER
601 W. Rosemary Street, Suite 220
Chapel Hill, NC 27516
cc: Emily Sutton, Haw River Assembly, emilyghawriver.org
Elaine Chiosso, Haw River Assembly, chiosso(ohawriver.org
Kemp Burdette, Cape Fear River Watch, kemp(ocfrw.us
Dana Sargent, Cape Fear River Watch, dana(0cf-mus
M.