NC0000892_Comments_20230217 (2)

SOUTHERN 601 West Rosemary Street, Suite 220 Telephone [phone]
ENVIRONMENTAL Chapel Hill, NC 27516 Facsimile 919-929-9421
LAW
CENTER
February 17, 2023
VIA Electronic Mail
Sergei Chernikov, Ph.D
N.C. Department of Environmental Quality
Division of Water Resources
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
Re: Southern Environmental Law Center Comments Regarding NPDES Permit
No. NC0000892, Arclin USA, LLC
Dear Dr. Chernikov:
The Southern Environmental Law Center offers the following comments, on behalf of
Haw River Assembly, regarding the draft renewal National Pollutant Discharge Elimination
System ("NPDES") Permit NC0000892, issued by the North Carolina Department of
Environmental Quality ("the Department") to Arclin USA, located in Chatham County.' The
draft permit allows Arclin to discharge wastewater contaminated with toxic per- and
polyfluoroalkyl substances ("PFAS") into the Haw River less than five river miles upstream of
the drinking water intake for the city of Sanford.2
The U.S. Environmental Protection Agency ("EPA") has made clear that state permitting
agencies have "existing authorit[y]" to control PFAS through NPDES permits and should be
doing so "to the fullest extent available under state and local law."3 Just last year, the
Department followed the law embodied in EPA's guidance when it issued a NPDES permit to
The Chemours Company, FC ("Chemours") that imposed technology -based limits for certain
PFAS.4 But, as evidenced by this permit, the Department continues to treat other known sources
of toxic PFAS pollution with leniency. Arclin discharges 0.10 million gallons of wastewater per
day.' At this flow, treatment technology for PFAS would be both affordable and effective at
nearly eliminating the toxic pollution in the wastewater. The Department must use its existing
authority to control Arclin's pollution with this renewal permit by evaluating technology -based
(and, if necessary, water quality -based) limits, just as it did for Chemours. Failure to do so
violates the law and prolongs North Carolinians' exposure to toxic chemical pollution.
1 N.C. Dep't of Env't Quality, Draft NPDES Permit NC0000892 (Jan. 10, 2023) [hereinafter "Arclin Draft Permit"].
z Id. at 3, 11.
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.
'N.C. Dep't of Env't Quality, NPDES Permit NCO090042 (Sept. 15, 2022), h1tps://perma.cc/W0V7-L8C4; N.C.
Dep't of Env't Quality, Fact Sheet NPDES Permit No. NCO090042 (Sept. 15, 2022), at 11-12,
https://perma.cc/EP5R-32A7.
5 Arclin Draft Permit, supra note 1 at 2.
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington, DC

I. Arclin discharges PFAS, a class of chemicals known to cause harm to human
health and the environment.
In 2019, the Department instructed Arclin to collect samples of its wastewater to
determine if the company released PFAS.6 The results of that sampling, collected in early 2020,
confirm that Arclin discharges PFAS at concentrations as high as 153 parts per trillion ("ppt" ).,
As the Department is aware, PFAS are a group of man-made chemicals manufactured and
used broadly by industry since the 1940s.8 PFAS pose a significant threat to human health at
extremely low concentrations. Two of the most studied PFAS—perfluorooctanoic acid
("PFOA") and perfluorooctane sulfonate ("PFOS")—are bioaccumulative and highly persistent
in humans.9 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.10 Because of its impacts on the immune
system, PFAS can also exacerbate the effects of Covid-19.11 Studies show that exposure to
mixtures of different PFAS can worsen these health effects.12 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. 13
Other PFAS are similarly harmful.14 In June 2022, EPA set a final lifetime health
advisory for GenX in drinking water of 10 ppt.15 Numerous states have acknowledged the
6 Letter from Linda Culpepper, N.C. Dep't of Env't Quality, to Brian Reddy, Arclin USA, LLC (Aug. 26, 2019),
Attachment 2.
12019 Industrial 1,4-dioxane & PFAS Sampling Results, N.C. Dep't of Env't Quality 1 (2020) [hereinafter "Cape
Fear Industrial PFAS Sampling"], Attachment 3.
8 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. ENVT PROT.
AGENCY, hops://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas (last
visited Jan. 24, 2023).
9 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.aov/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.
10 Arlene Blum et al., The Madrid Statement on Poly- and Perfluoroalkyl Substances (PFASs), 123 ENVT. 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.
" See Lauren Brown, Insight: PFAS, Covid-19, and Immune Response —Connecting the Dots, BLOOMBERG LAW
(July 13, 2020, 4:00 AM), https://news.bloomberglaw.com/environment-and-energy/insight-pfas-covid-l9-and-
immune-response-connecting-the-dots?context=article-related.
12 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 ENVT INT'L 1 (2020),
h1t2s://perma.cc/DJK3-87SN.
13 87 Fed. Reg. at 36,848-49.
14 U.S. Dep't of Health and Human Servs., Toxicological Profile for Perfluoroalkyls (May 2021), available at
https://perma.cc/AHF7-RLQD; 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), h1tps://perma.cc/95H2-P988.
15 87 Fed. Reg. at 36,848-49.
W

dangers of other PFAS compounds and proposed or finalized drinking water standards for
various PFAS at 20 ppt and lower.16
PFAS are also harmful to wildlife and the environment. The chemicals have been shown
to cause damaging effects in fish,17 amphibians," s reptiles,19 mollusks '20 and other aquatic
invertebrates 21resulting in developmental and reproductive impacts, behavioral changes,
adverse effects to livers, disruption to endocrine systems, and weakened immune systems .22
Moreover, PFAS are extremely resistant to breaking down in the environment, can travel long
distances, and bio-accumulate in organisms.23 PFAS have been found in fish tissue, and
consequently, the primarily low-income and minority communities that rely on subsistence
16 See Per- and Polyfluoroalkyl Substances (PFAS), INTEGRAL, CORP., https://www.inte rag 1-cofp.coM/pfas/ (last
visited Jan. 24, 2023).
17 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); Du et 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).
18 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 Effects 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).
" 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 hlWs://www.frontiersin.ore/articles/I 0.3389/ftox.2022.1010185/f ill.
20 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 (PFAS) Exposure: Reversible Response and
Response Model Development, 37 ENv'T TOXICOLOGY & CHEM. 1138-45 (2018).
21 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 CHEMOSPHERE 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
TOXICOLOGY & CHEM. 2159 (2008); MacDonald et al., Toxicity of Perfluorooctane Sulfonic Acid and
Perfluorooctanoic Acid to Chironomus Tentans, 23 ENv'T TOXICOLOGY & CHEM. 2116 (2004).
22 See supra notes 17-21.
21WVhat are PFAS?, Agency for Toxic Substances and Disease Registry, https://www.atsdr.cdc.gov/pfas/health-
effects/overview.html (last visited Jan. 24, 2023); see also Our Current Understanding of the Human Health and
Environmental Risks of PFAS, supra note 8.

fishing have been found to have elevated PFAS levels in their blood.24 Due to these harms, EPA
has published draft recommended freshwater aquatic life criteria for PFOA and PFOS .25
In early 2020, Arclin reported that it discharges PFAS at concentrations ranging between
111.9 ppt and 153.5 ppt.26 Arclin's wastewater contains PFOA and PFOS thousands of times
higher than what EPA considers safe. PFOA was detected at concentrations of 13 ppt and PFOS
was detected at concentrations of 15 ppt.27 These levels are high when one considers how toxic
these chemicals are even in small amounts. At 13 ppt, Arclin's PFOA concentrations are 3,250
times the healthy advisory level, and at 15 ppt, Arclin's PFOS concentrations are 750 times the
health advisory level. The company's wastewater contains other PFAS including
perfluorobutanoic acid ("PFBA"), perfluorobutanesulfonic acid ("PFBS"), perfluoroheptanoic
acid ("PFHpA"), perfluorohexanesulfonic acid ("PFHxS"), perfluorohexanoic acid (PFHxA"),
and perfluoropentanoic acid ("PFNA").28
In October 2020, the Department again required Arclin to collect samples of its
wastewater to determine the levels of PFAS present.29 In response, Arclin submitted at least one
additional report revealing, once again, that the company releases PFAS, including PFOA and
PFOS, into the Haw River.30 In that report, Arclin listed that its wastewater contains PFOA and
PFOS at levels at 15 ppt and 17 ppt, respectively. 3 1 Like the prior report, Arclin confirmed its
discharge contains other PFAS including PFBS, PFHxS, PFBA, PFHpA, PFHxA, and PFPeA.32
It's likely that Arclin's PFAS discharges have continued since 2021. Arclin
manufacturers "thermosetting resins for use by the wood products industry" and also produces
formaldehyde on site.33 While Arclin's effluent contains wastewater from its sanitary processes
and formaldehyde production, the majority of Arclin's wastewater is created by the company's
thermosetting resin production.34 EPA has confirmed that industries that work with organic
24 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), hops://www.postandcourier.com/environment/industrial-chemicals-in-charleston-harbor-
taint-fish-and-those-who-eat-them/article b2bl4506-bcl9-1 lec-83e5-7f2a8322d624.htm1; Nadia Barbo, et al.,
Locally Caught Freshwater Fish Across the United States Are Likely a Significant Source of Exposure to PFOS and
Other Perfluorinated Compounds, 220 ENV'T RsCx. 115165 (2023),
hLtps://www.sciencedirect.com/science/article/Tii/SOO 13935122024926.
25 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).
26 Cape Fear Industrial PFAS Sampling, supra note 7 at 1.
27 Id.
2s Id.
29 Letter from Jeff Poupart, N.C. Dep't of Env't Quality, to Brian Reddy, Arclin USA, LLC (Oct. 12, 2020),
Attachment 4.
30 Brian Reddy, Arclin USA, January 21, 2021 PFAS Sampling Results (Feb. 19, 2021), Attachment 5.
" Id. at PDF pg. 15.
32 Id.
33 Brian Reddy, Arclin USA, LLC, Wastewater Permit Renewal Application, Permit Number NC0000892 4 (Mar.
28, 2016), [hereinafter "Arclin Permit Application"].
34 Id. at 5.
al

chemicals, plastics, and synthetic fibers, including those producing and using certain resins, are a
suspected point source category for PFAS.35 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.36
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.37
Because Arclin falls into the category of industries known to be associated with PFAS
and because prior sampling confirms the presence of PFAS in Arclin's wastewater, it is
practically certain that the company continues to release the toxic chemicals into the Haw River.
IL Arelin's pollution threatens downstream drinking water supplies.
PFAS do not break down in the environment and are not removed by conventional
treatment technology.38 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. For example, PFAS pollution from the Chemours Fayetteville Works
Facility has contaminated drinking water intakes nearly 80 miles downstream.39
Less than five river miles from Arclin's discharge lies the drinking water intake for the
city of Sanford, North Carolina. Sanford provides drinking water to its residents as well as
communities in Goldston, Lee County and parts of Chatham County. Moreover, Sanford intends
to expand its water services and send drinking water to Pittsboro, Fuquay-Varina, and Holly
Springs.40 If Sanford's plans go through, it will provide water to over 130,000 people.
Unfortunately, past sampling confirms Sanford's drinking water is contaminated with PFAS.
Monthly sampling by the city shows elevated levels of PFAS in the city's raw water, including
35 U.S. Env't Prot. Agency, Multi -Industry Per- and Polyfluoroalkyl Substances (PFAS) Study - 2021 Preliminary
Report 5-1 (Sept. 2021), available at https://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"].
36 Id.
37 Id. at 5-8 to 5-9.
36 See What are PFAS?, Agency for Toxic Substances and Disease Registry, h!Ws://www.atsdr.cdc.gov/pfas/health-
effects/overview.html (last visited Sept. 12, 2022); see also Our Current Understanding of the Human Health and
Environmental Risks of PFAS, supra note 8.
39 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), https://pulse.ncpolicyEatch.org/2019/10/09/breaking new-
analysis-indicates-that-toxics-were-present-in-wilmington-drinking-water-at-extreme-levels/#sthash.OtzCYiv3. dpbs.
ao See Taylor Heeden, Pittsboro Board Discusses Funding for Water Partnership with Sanford, CHATHAm NEWS &
RECORD (Jan. 30, 2022), hlt2s:Hchapelboro.com/town-square/pittsboro-board-discusses-funding-for-water-
partnership-with-sanford; Interbasin Transfer, FUQUAY-VARINA, N.C., hlt2s://www.fuquqy-
varina.org/l 098/lnterbasin-Transfer (last visited Oct. 20, 2022); Rob Fox, Water Needs, SUBURBAN LIVING (Dec.
17, 2021), hLtps://hollysprings.suburbanlivingma,g.com/water-needs/.
5

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.41
Arclin's PFAS pollution does not stop at the Sanford intake. Further downstream,
Arclin's wastewater contributes to the disproportionate levels of PFAS contamination already
present in the Cape Fear River, the drinking water supply for over 300,000 North Carolinians.
Communities in Fayetteville and Wilmington, for example, have reported PFAS in their drinking
water supplies,42 and are concerned about the continued overburden of toxic chemical pollution
the Department has failed to control in the river basin.43
Arclin's PFAS pollution likely also threatens aquatic life, such as fish. Scientists studying
striped bass in the lower Cape Fear River, for example, have detected PFAS, including PFOS,
PFNA, and PFDA, in more than 98 percent of fish sampled.44 The Department itself is currently
studying PFAS present in multiple other fish species across the lower Cape Fear River, including
those commonly fished for subsistence like catfish, largemouth bass, striped bass, and American
shad.45 Ultimately, researchers analyzing PFAS in fish across the country conclude that
"[w]idespread PFAS contamination of freshwater fish in surface waters in the U.S. is likely a
significant source of exposure to PFOS and potentially other perfluorinated compounds for all
persons who consume freshwater fish, but especially for high frequency freshwater fish
consumers."46 This is of particular concern in the Cape Fear River basin because many
communities —particularly low-income and communities of color —rely on the Haw and Cape
Fear Rivers for subsistence fishing.47
III. The Department must control Arclin's PFAS pollution in its renewal permit.
Arclin is not authorized to release PFAS into the Haw River because the company did not
disclose its PFAS discharges in its NPDES permit applications, and the Department did not
consider the PFAS pollution when it issued Arclin its prior NPDES permit.48 In its most recent
permit application, Arclin again fails to disclose its PFAS pollution, despite having collected
41 City of Sanford, 2021 Annual Water Quality Report 6 (2021).
42 See, e.g., Fayetteville Public Works Commission, 2021 Water Quality Report (Jan. 2022), at 9-10, available at
https://www.faypwc.copI wp-content/uploads/2021/05/2021-WQR-2.pdf; Cape Fear Public Utility Authority, 2021
Drinking Water Quality Report (2022), at 17-20, available at
hl�2s://www.cfpua.ora/ArchiveCenterNiewFile/Item/798.
43 See Letter from Mick Noland, Fayetteville Public Works Commission, to Sergei Chernikov, Ph.D, N.C. Dep't of
Env't Quality (Feb. 10, 2023).
44 T.C. Guillette, et al., Elevated Levels of per- and polyfluoroalkyl substances in Cape Fear River Striped Bass
(Morone saxatilis) are Associated with Biomarkers of Altered Immune and Liver Function, 136 Env't Int'l 105358
(Feb. 2020), available at https://www.research atepublication/339091901_Elevated_levels_of per -
and polyfluoroalkyl_substances in Cape_ Fear_ River_ Striped _Bass _Morone_ saxatilis_ are associated_ with biom
arkers of altered immune and liver function.
4s Frannie Nilsen, Summer 2022 Water and Fish Collection Event, N.C. Dep't of Env't Quality (Aug. 1, 2022),
https:Hdeq.nc. aov/media/30793/download?attachment.
46 Barbo, supra note 24 at 9.
47 Elizabeth Shaprio-Garza, et al., Subsistence Fish Consumption on the Lower Cape Fear River, Duke Univ.
Superfund Rsch. and Oakland Univ. 21-22 (2022), available at
hlt 2s:Hsites.nicholas.duke.edu/superfundcec/files/2022/10/Subsistence-Fish-Consumption-on-the-lower-Cape-Fear-
River_report.pdf.
46 N.C. Dep't of Env't Quality, NPDES Permit NC0000892 (June 10, 2013).
on

samples over the past couple of years.49 The Department must take the following actions to
address Arclin's pollution before issuing a final permit.
a. The Department must require Arclin to update its permit application to disclose its
PFAS pollution.
The Clean Water Act prohibits the discharge of any pollutant, including PFAS, without a
NPDES permit.50 The discharge of a specific pollutant (or group of pollutants) cannot be
permitted if it is not disclosed in a NPDES permit application. For decades, EPA has stressed the
need for disclosure of pollutants during the permitting process:
[D]ischargers have a duty to be aware of any significant pollutant levels in their
discharge. [... ] Most important, [the disclosure requirements] provide the
information which the permit writers need to determine what pollutants are likely
to be discharged in significant amounts and to set appropriate permit limits. [...]
[P]ermit writers need to know what pollutants are present in an effluent to
determine appropriate permit limits in the absence of applicable effluent
guidelines.51
In December 2022, EPA confirmed that these disclosure requirements apply to PFAS
stating that "no permit may be issued to the owner or operator of a facility unless the owner or
operator submits a complete permit application" providing all information "that the permitting
authority may reasonably require to assess the discharges of the facility" including information
regarding PFAS.52 Disclosure is considered adequate under the Clean Water Act when the
applicant provides enough information for a permitting agency to "be[] able to judge whether the
discharge of a particular pollutant constitutes a significant threat to the environment. ,53 To meet
this burden, an applicant must include all relevant information, including the concentration,
" See generally Arclin Permit Application, supra note 33.
50 33 U.S.C. § 131 l(a).
51 Consolidated Permit Application Forms for EPA Programs, 45 Fed. Reg. 33,526-31 (May 19, 1980).
52 EPA's PFAS NPDES Guidance, supra note 3 at 2.
53 Piney Run Pres. Assn v. Cty. Commis of Carroll Cty., Maryland, 268 F.3d. 255, 268 (4th Cir. 2001) ("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.").
7

volume, and frequency of the discharge.54 The Clean Water Act places the burden of disclosure
on the permit applicant because they are in the best position to know what is in their discharge. ss
Importantly, if a NPDES permit applicant does not adequately disclose its release of a
pollutant, the applicant does not have approval to discharge the pollutant.56 The EPA
Environmental Appeals Board's decision in In re: Ketchikan Pulp Company emphasized this
resu1t,57 and that decision has been adopted by the Fourth Circuit. For example, in Piney Run
Pres. Ass'n v. Cty. Comm'rs of Carroll Cty., Maryland, the Fourth Circuit stated:
The Ketchikan decision therefore made clear that a permit holder is in compliance
with the [Clean Water Act] even if it discharges pollutants that are not listed in its
permit, as long as it only discharges pollutants that have been adequately
disclosed to the permitting authority. [... ] To the extent that a permit holder
discharges a pollutant that it did not disclose, it violates the NPDES permit
and the [Clean Water Act].58
The Department has already acknowledged that disclosure of toxic PFAS is required by
the Clean Water Act and state water quality laws. In its enforcement action against Chemours for
the company's discharge of HAS into the Cape Fear River, the agency stated:
Part of the permit applicant's burden in this regard is to disclose all relevant
information, such as the presence of known constituents in a discharge that pose a
potential risk to human health. The permit applicant is required to disclose "all
known toxic components that can be reasonably expected to be in the discharge,
including but not limited to those contained in a priority pollutant analysis." 15A
N.C.A.C. 21-1.01050) (emphasis added). [... ] These disclosure obligations are
critical, in part, because they define the scope of the Clean Water Act's "permit
shield." While compliance with the express terms of an NPDES permit generally
"shields" the permittee from liability for violations of 33 U.S.C. § 1311, the
permit does not shield the permittee from liability where the pollutant being
discharged was not within the "reasonable contemplation" of the permitting
agency when it issued the permit due to nondisclosure by the permittee.59
51 See In re Ketchikan Pulp Co., 7 E.A.D. 605 (EPA) (1998) ("In explaining the provisions of 40 C.F.R. §
122.53(d)(7)(iii), which required dischargers to submit quantitative data relating to certain conventional and
nonconventional pollutants that dischargers know or have reason to believe are present in their effluent, the [EPA]
stated: `permit writers need to know what pollutants are present in an effluent to determine appropriate limits in the
absence of effluent guidelines."').
55 S. Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560, 566 (4th Cir. 2014).
("The statute and regulations purposefully place the burden of disclosure on the permit applicant.").
56 See In re Ketchikan Pulp Co., 7 E.A.D. 605; Piney Run, 268 F.3d. at 268; S. Appalachian Mountain Stewards, 758
F.3d at 567.
51 See In re Ketchikan Pulp Co., 7 E.A.D. 605.
56 Piney Run, 268 F.3d. at 268 (emphasis added).
59 Amended Complaint, N.C. Dept. of Environmental Quality v. Chemours, 17 CVS 580, 6-7 (N.C. Super. 2018)
(citing 33 U.S.C. § 1342(k); Piney Run, 268 F.3d at 265), htt2s://perma.cc/ZT3U-7QJB.
N.

Other states have reached similar conclusions. For example, the Tennessee Department of
Environment and Conservation has made clear in at least one NPDES permit that undisclosed
discharges of PFAS are unpermitted:
The facility's application did not report any forms of PFAS as chemicals that
there was the potential to discharge. The permittee has no permit shield for the
discharge of PFAS compounds because no such chemicals were disclosed in the
permit application or otherwise...60
As mandated by EPA's PFAS NDPES Guidance and Fourth Circuit precedent, the
Department must require Arclin to disclose its PFAS pollution before it moves forward with
issuing a final NPDES permit. This information must be incorporated into the permit application
itself because the public relies on the information submitted in the publicly available application
to participate in the permitting process.61
b. The Department must impose effluent limits to control Arclin's PFASpollution.
EPA's PFAS NPDES Guidance instructs state agencies on how to address PFAS through
existing NPDES authorities.62 Federal and state law, as well as EPA's guidance make clear that
the Department must analyze effluent limits to control Arclin's PFAS pollution. Indeed, and as
discussed throughout this letter, the Department has already controlled PFAS in Chemours'
NPDES permit, displaying the agency's understanding of its responsibilities under the Clean
Water Act and signaling that the agency has the tools, authority, and knowledge of how to handle
PFAS discharges through the NPDES permitting scheme. Arclin should be treated no differently.
The Clean Water Act requires permitting agencies to, at the very least, incorporate
technology -based effluent limitations on the discharge of pollutants.63 When EPA has not issued
a national effluent limitation guideline for a particular industry,64 permitting agencies must
implement technology -based effluent limits on a case -by -case basis using their "best professional
judgment. ,65 EPA has confirmed that technology -based limits are the "minimum level of control
that must be imposed in NPDES permits" and that they should be calculated for PFAS.66
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
60 TDEC, NPDES Permit NO. TN0002330 (2020), Holliston Holdings, LLC, Addendum to Rationale,
ho2s://perma.cc/4RKY-PKFG (emphasis added).
61 See 15A N.C. Admin. Code 2H.0109, 2H.0115.
62 EPA's PFAS NPDES Guidance, supra note 3.
6140 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.
64 33 U.S.C. § 1314(b).
65 40 C.F.R. § 125.3; see also 33 U.S.C. § 1342(a)(1)(B); 15A N.C. Admin. Code 213.0406.
66 EPA's PFAS NPDES Guidance, supra note 3 at 3.
9

groundwater beneath the facility to nearly nondetectable concentrations.67 Here, where Arclin's
flow is far less significant, the technology necessary to remove PFAS would be all the more
affordable. The Department must treat Arclin the same way that it treated Chemours. The
Department must consider the feasibility of using granular activated carbon or similar
technologies to control Arclin's PFAS pollution.
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.61 If the
Department finds there is a "reasonable potential" that water quality standards will be exceeded,
it must include water quality -based effluent limits in the permit.69 This obligation "may not be
waived," and requires the agency to incorporate a permit limit protective of water quality
standards regardless of "treatability" or analytical method detection levels.70 Additionally,
monitoring or data collection requirements "may not be substituted" for permit limits.71
North Carolina's toxic substances standard protects the public from the harmful effects of
toxic chemicals, like PFAS.72 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. ,73 As the Department itself
has recognized, PFAS meet the definition of "toxic substance" and the Department should
therefore analyze whether Arclin's discharge will violate this water quality standard.74 EPA's
health advisories for PFAS and countless toxicity studies indicate that the chemicals pose
unacceptable health risks at extremely low levels, and these health advisories and toxicity
information should inform the Department's effluent limit analysis.
The Department must assess effluent limits in Arclin's permit based on the reductions
that technology could achieve as well as EPA's health advisories and other available toxicity
information for the chemicals. As EPA has made clear, a simple monitoring requirement cannot
substitute for effluent limits.7' This is particularly the case when the monitoring requirement is
as lenient as the one in this draft permit —only mandating the company collect one sample per
67 See Parsons, Engineering Report — Old Outfall 002 GAC Pilot Study Results (Sept. 2019), available at
https://www.chemours.com/ja/-/media/files/corporate/l 2e-old-outfall-2-gac-pilot-report-2019-09-
30.pdPrev=6el242091aa846f888afa895eff80e2e&hash=040CAA7522E3D64B9E5445ED6F96BOFB; see also
Chemours Outfall 003, NPDES No. NC0089915 Discharge Monitoring Reports (2020-2022), available at
hj�2s://perma.cc/8YND-XT5M.
68 40 C.F.R. § 122.44(d)(1)(i); see also 33 U.S.C. § 1311(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"); EPA's
PFAS NPDES Guidance, supra note 3 at 3-4.
69 40 CFR § 122.44(d)(1)(i), see also 33 U.S.C. § 1311(b)(1)(C); (1)(i); 15A N.C. Admin. Code 2H.0112(c) (stating
that the Department must "reasonably ensure compliance with applicable water quality standards and regulations.");
EPA, CENTRAL TENETS OF THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
(NPDES) PERMITTING PROGRAM 3 (2020), available at hops://www.epa.aov/npdes/central-tenets-npdes-
permitting=program (emphasis in original) [hereinafter "Central Tenets of NPDES Permitting Program"].
70 Central Tenets of NPDES Permitting Program, supra note 69 at 3.
71 Id.
72 15A N.C. Admin. Code 213.0208.
73 Id. at 213.0208(a)(2)(B).
74 Amended Complaint, North Carolina v. The Chemours Company, FC, LLC, supra note 59 at ¶ 152 (explaining
that PFAS "meet the definition of `toxic substance' set forth in 15A N.C.A.C. 2B .0202").
75 Central Tenets of NPDES Permitting Program, supra note 69 at 3.
10

year.76 Not only does this infrequent sampling violate the law, but it will also likely yield entirely
useless information for the agency. Industrial discharges of PFAS can vary depending on
whether certain manufacturing processes are operating at the time a sample is collected. A once -
a -year sample could (and likely will) fail to capture the full scope of Arclin's pollution. Rather
than impose a monitoring requirement to inadequately capture information already known to the
Department, the agency must require comprehensive disclosure and impose effluent limits as
mandated by the Clean Water Act.
IV. Conclusion.
In summary, the Department must require Arclin to disclose any discharges of PFAS in
its permit application so that the Department and the public have adequate information to
evaluate the toxic pollution and participate in the permitting process. If Arclin does not make this
disclosure, any discharge of PFAS is illegal and subject to agency or citizen enforcement. The
monitoring requirement incorporated into this draft permit does not absolve the facility of its
responsibility to disclose its discharge. Once properly disclosed, the Department must evaluate
treatment technology and impose limits that ensure compliance with water quality standards.
Because the permit fails to meet the requirements imposed by the Clean Water Act, Fourth
Circuit precedent, and EPA's guidance, it must be withdrawn and revised as noted above.
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,
4MAIJ�.ffAw
Hannah M. Nelson
SOUTHERN ENVIRONMENTAL LAW CENTER
601 W. Rosemary Street, Suite 220
Chapel Hill, NC 27516
cc: Emily Sutton, Haw River Assembly, [e-mail]
76 Arclin Draft Permit, supra note I at 3, 11.
11