NC0090000_Comments_20221221

SOUTHERN 48 Patton Avenue,Suite 304 Telephone [phone]
ENVIRONMENTAL Asheville,NC 28801 Facsimile 828-258-2024
LAW
CENTER
December 21, 2022
Via Electronic Mail
NCDEQ/DWR
NPDES Permitting Branch
c/o Derek Denard
1617 Mail Service Center
Raleigh,North Carolina 27699-1617
[e-mail]
Re: New EPA PFAS Guidance and Draft NPDES Permit No. NCO090000
Dear Mr. Denard:
We write on behalf of Catawba Riverkeeper Foundation and Yadkin Riverkeeper to
supplement our October 24, 2022, comments on draft NPDES Permit No. NC009000V—which
would authorize discharges from a wastewater treatment facility operated by Colonial Pipeline
into waters near Huntersville,NC—and draw NC DEQ's attention to recently released federal
permitting guidance. Our earlier comments stressed the importance of applying technology-
based effluent limitations ("TBELs")to discharges proposed to be authorized under NPDES
Permit No. NC0090000. The recent guidance, which we have attached to this letter, further
confirms the importance of incorporating TBELs into Colonial's and other NPDES permits.
On December 5, 2022, EPA released new Clean Water Act guidance for state permitting
authorities regarding standards and best practices for regulating discharges that involve the
presence of harmful per- and polyfluoroalkyl substances ("PFAS").3 As we described in our
comments on draft Permit No. NC0090000, it is highly likely PFAS will be present in Colonial's
wastewater. Even though PFAS detected in Colonial's wells may be from a legacy source, DEQ
must ensure any PFAS in Colonial's effluent is subject to TBELs and water quality-based
effluent limitations, regardless of where that PFAS may have originated. Stated differently, DEQ
must apply the Clean Water Act's requirements to any PFAS in Colonial's effluent even if
Colonial is not the original source of those PFAS. Notably, application of those requirements is
relatively straightforward here, where Colonial has already committed to use a technology
proven effective at removing PFAS—DEQ simply failed to take that technology into account in
the draft permit.
More to the point,the legal requirements discussed in EPA's recent guidance are not
limited to PFAS alone; they apply more broadly to pollutants discharged through NPDES
' S.Envt'1 L. Ctr.,Comments on Draft NPDES Permit No.NCO090000(Oct.24,2022)("Comments").
2 Draft NPDES Permit No.NCO090000(Sept.20,2022)("Draft Permit").
3 U.S.EPA,Memorandum from Radhika Fox,Asst.Admin'r,Addressing PFAS Discharges in NPDES Permits and
Through the Pretreatment Program and Monitoring Programs(Dec.5,2022),Attachment 1 ("Guidance").
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington,DC

permits,particularly those which lack effluent limitation guidelines. Three specific points raised
in the guidance are worth underscoring here.
First, our comments explained that the Clean Water Act requires permittees to assess and
disclose the pollutants in their effluent, including the presences of PFAS.4 EPA's guidance
confirms the same: "[N]o permit may be issued to the owner or operator of a facility unless the
owner or operator submits a complete permit application in accordance with applicable
regulations."5
Second, EPA's guidance confirms that"technology-based treatment requirements under
CWA Section 301(b)represent the minimum level of control that must be imposed in NPDES
permits."6 Where there are no applicable effluent limitation guidelines, TBELs for PFAS and
other pollutants are developed using the best professional judgment(`BPJ") of the permit
writer.'Restated, TBELs are the minimum level of treatment that must be imposed in NPDES
permits, regardless of whether EPA has formally issued a numeric effluent limitation guideline.
Although EPA's guidance is focused on PFAS, the requirement to impose TBELs is
applicable to all constituent pollutants addressed by a NPDES permit. Our comments noted that
the draft permit erred by failing to apply TBELs for several constituent pollutants.' Instead, the
standards applied for benzene and other pollutants were clearly derived from water quality-based
effluent limits ("WQBELs"), which, in this instance, result in far higher permit limits than those
that would be imposed using TBELs. EPA's guidance is clear that WQBELs are only considered
"in addition to TBELs developed on a BPJ basis, if necessary to achieve water quality
standards."9 In other words, DEQ must first impose TBELs and subsequently consider whether
additional WQBELs are necessary to prevent violations of water quality standards.
As we pointed out in our comments, application of TBELs should be particularly
straightforward with NPDES Permit No. NCO090000 because the permittee has represented that
technology capable of far greater reductions in pollutant concentration exists and will in fact be
used at this site.10 Further, it would likely adequately address whatever concentrations of PFAS
may be present. DEQ must account for this technology in its permitting decision.
Unfortunately, DEQ's failure to apply TBELs to Permit No. NCO090000 is not a one-off
omission. We have explained to DEQ on numerous other occasions" that the Clean Water Act
requires precisely what EPA's latest guidance describes: The imposition of TBELs as a default,
followed by use of WQBELs as a backstop for any pollutants for which the TBEL would not be
sufficient to achieve state water quality standards. EPA's latest guidance underscores that TBELs
are essential to the lawful exercise of its delegated authority under the Clean Water Act.
a See Comments,supra note 1,at 8.
s Guidance,supra note 3,at 2.
6Id. at 3 (emphasis added); see Comments,supra note 1,at 2-5.
Id.
8 Comments,supra note 1,at 4-5.
9 Guidance,supra note 3,at 3.
io Draft Permit,supra note 2,at 2.
"See, e.g.,S.Envt'l L. Ctr.,Comments on Draft NPDES Permit No.NC0026573,Catawba River Pollution Control
Facility(Nov.29,2021),at 2-6.
2

Accordingly, DEQ must impose TBELs for the constituent pollutants named by our comments in
its final version of Permit No. NC0090000.
Third, EPA's guidance is clear that WQBELs must be developed based on numeric water
quality criteria and"state narrative criteria for water quality."12 This is particularly important in
states like North Carolina that lack numeric criteria for PFAS and other pollutants.
DEQ's obligations here—as confirmed in EPA's recent guidance—are plain: It must
require permittees such as Colonial to disclose pollutants that may be present in their effluent,
develop TBELs as appropriate for those pollutants, and subsequently evaluate the need for
WQBELs. Draft Permit No. NCO090000 failed to meet those requirements; DEQ must correct
those deficiencies before finalizing the permit.
As DEQ continues work to finalize the draft permit, please do not hesitate to get in touch
to discuss this or other matters further.
Sincerely,
pa�� ,
Patrick Hunter
Managing Attorney
Southern Environmental Law Center
[e-mail]
Henry Gargan
Associate Attorney
[e-mail]
12 Guidance,supra note 3,at 3.
3

Attachment 1
EPA Memorandum Addressing
PFAS Discharges in NPDES
Permits

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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December 5, 2022
MEMORANDUM
SUBJECT: Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program
and Monitoring Programs
FROM: Radhika Fox
Assistant Administrator
TO: EPA Regional Water Division Directors, Regions 1-10
The National Pollutant Discharge Elimination System(NPDES)program is an important tool
established by the Clean Water Act(CWA)to help address water pollution by regulating point sources
that discharge pollutants to waters of the United States. Collectively, the U.S. Environmental Protection
Agency (EPA)and states issue thousands of permits annually, establishing important monitoring and
pollution reduction requirements for Publicly Owned Treatment Works (POTWs), industrial facilities,
and stormwater discharges nationwide. The NPDES program interfaces with many pathways by which
per-and polyfluoroalkyl substances (PFAS)travel and are released into the environment, and ultimately
impact water quality and the health of people and ecosystems. Consistent with the Agency's
commitments in the October 2021 PFAS Strategic Roadmap: EPA's Commitments io Action 2021-2024
(PF.4:SStrategic Roadmapl, EPA will work in cooperation with our state-authorized permitting
authorities to leverage the NPDES program to restrict the discharge of PFAS at their sources. In addition
to reducing HAS discharges,this program will enable EPA and the states to obtain comprehensive
information on the sources and quantities of PFAS discharges,which can be used to inform appropriate
next steps to limit the discharges of PFAS.
This memorandum provides EPA's guidance to states and updates the April 28, 2022 guidance to EPA
Regions for addressing PFAS discharges when they are authorized to administer the NPDES permitting
program and/or pretreatment program. These recommendations reflect the Agency's commitments in the
PFAS Strategic Roadmap,which directs the Office of Water to leverage NPDES permits to reduce
HAS discharges to waterways"at the source and obtain more comprehensive information through
monitoring on the sources of PFAS and quantity of PFAS discharged by these sources." While the
Office of Water works to revise Effluent Limitation Guidelines(ELGs)and develop water quality
criteria to support technology-based and water quality-based effluent limits for HAS in NPDES
permits,this memorandum describes steps permit writers can implement under existing authorities to
reduce the discharge of PFAS.
Addressing PFAS Discharges in EPA-Issued NPDES Permits and Expectations Where EPA is the Pretreatment Control
Authority, https://H,NNNv.epa.aov,systern tiles'documentsi2022-04/npdcs pfas-memo.pdf.

This memorandum also provides EPA's guidance for addressing sewage sludge PFAS contamination
more rapidly than possible with monitoring based solely on NPDES permit renewals. States may choose
to monitor the levels of PFAS in sewage sludge across POTWs and then consider mechanisms under
pretreatment program authorities to prevent the introduction of PFAS to POTWs based on the
monitoring results.
EPA recommends that the following array of NPDES and pretreatment provisions and monitoring
programs be implemented by authorized states and POTWs, as appropriate,to the fullest extent available
under state and local law.NPDES and pretreatment provisions may be included when issuing a permit
or by modifying an existing permit pursuant to 40 CFR 122.62.
A. Recommendations for Applicable Industrial Direct Dischargers
1. Applicability: Industry categories known or suspected to discharge PFAS as identified on page 14
of the PFAS Strategic Roadmap include: organic chemicals,plastics& synthetic fibers(OCPSF);
metal finishing; electroplating; electric and electronic components; landfills;pulp,paper&
paperboard; leather tanning& finishing; plastics molding& forming; textile mills; paint formulating,
and airports. This is not an exhaustive list and additional industries may also discharge PFAS. For
example, Centralized Waste Treatment(CWT)facilities may receive wastes from the
aforementioned industries and should be considered for monitoring. There may also be categories of
dischargers that do not meet the applicability criteria of any existing ELG; for instance, remediation
sites, chemical manufacturing not covered by OCPSF, and military bases.
EPA notes that no permit may be issued to the owner or operator of a facility unless the owner or
operator submits a complete permit application in accordance with applicable regulations, and
applicants must provide any additional information that the permitting authority may reasonably
require to assess the discharges of the facility(40 CFR 122.21(e), (g)(13)).2 The applicant may be
required to submit additional information under CWA Section 308 or under a similar provision of
state law.
2. Effluent-and wastewater residuals monitoring: In the absence of a final 40 CFR Part 136 method,
EPA recommends using CWA wastewater draft analytical method 1633 (see 40 CFR
122.2 1(e)(3)(ii)and 40 CFR 122.44(i)(1)(iv)(B)). EPA also recommends that monitoring include
each of the 40 PFAS parameters detectable by draft method 1633 and be conducted at least quarterly
to ensure that there are adequate data to assess the presence and concentration of PFAS in
discharges.All PFAS monitoring data must be reported on Discharge Monitoring Reports(DMRs)
(see 40 CFR 122.41(1)(4)(i)). The draft Adsorbable Organic Fluorine CWA wastewater method 1621
can be used in conjunction with draft method 1633, if appropriate.Certain industrial processes may
generate PFAS-contaminated solid waste or air emissions not covered by NPDES permitting and
permitting agencies should coordinate with appropriate state authorities on proper containment and
disposal to avoid cross-media contamination. EPA's draft analytical method 1633 may be
appropriate to assess the amount and types of HAS for some of these wastestreams.3
2 For more,see NPDES Permit Writer's Manual Section 4.5.1.
3 See https://wm w.epa.goy/water-research/pfas-analytical-methods-development-and-samplin&-research for a list of EPA-
approved methods for other media.
2

3. Best Management Practices (BMPs) for discharges of PFAS,including product substitution,
reduction,or elimination of PFAS, as detected by draft method 1633: Pursuant to 40 CFR
122.44(k)(4), EPA recommends that NPDES permits for facilities incorporate the following
conditions when the practices are "reasonably necessary to achieve effluent limitations and standards
or to carry out the purposes and intent of the CWA."4
a. BMP conditions based on pollution prevention/source reduction opportunities, which may
include:
i. Product elimination or substitution when a reasonable alternative to using HAS is available
in the industrial process.
ii. Accidental discharge minimization by optimizing operations and good housekeeping
practices.
iii. Equipment decontamination or replacement(such as in metal finishing facilities)where
PFAS products have historically been used to prevent discharge of legacy PFAS following
the implementation of product substitution.
b. Example BMP permit special condition language:
i. PFAS pollution prevention/source reduction evaluation: Within 6 months of the effective
date of the permit,the facility shall provide an evaluation of whether the facility uses or has
historically used any products containing PFAS,whether use of those products or legacy
contamination reasonably can be reduced or eliminated,and a plan to implement those steps.
ii. Reduction or Elimination: Within 12 months of the effective date of the permit,the facility
shall implement the plan in accordance with the PFAS pollution prevention/source reduction
evaluation.
iii. Annual Report: An annual status report shall be developed which includes a list of potential
PFAS sources, summary of actions taken to reduce or eliminate PFAS,any applicable source
monitoring results, any applicable effluent results for the previous year, and any relevant
adjustments to the plan, based on the findings.
iv. Reporting: When EPA's electronic reporting tool for DMRs(called "NetDMR") allows for the
permittee to submit the pollution prevention/source reduction evaluation and the annual
report,the example permit language can read,"The pollution prevention/source reduction
evaluation and annual report shall be submitted to EPA via EPA's electronic reporting tool
for DMRs(called"NetDMR").
4. BMPs to address PFAS-containing firefighting foams for stormwater permits: Pursuant to
122.44(k)(2), where appropriate, EPA recommends that NPDES stormwater permits include BMPs
to address Aqueous Film Forming Foam (AFFF)used for firefighting, such as the following:5
a. Prohibiting the use of AFFFs other than for actual firefighting.
b. Eliminating PFOS and PFOA -containing AFFFs.
c. Requiring immediate clean-up in all situations where AFFFs have been used, including
diversions and other measures that prevent discharges via storm sewer systems.
5. Permit Limits: As specified in 40 CFR 125.3,technology-based treatment requirements under
CWA Section 301(b)represent the minimum level of control that must be imposed in NPDES
permits. Site-specific technology-based effluent limits(TBELs) for HAS discharges developed on a
best professional judgment(BPJ)basis may be appropriate for facilities for which there are no
applicable effluent guidelines (see 40 CFR 122.44(a), 125.3). Also,NPDES permits must include
water quality-based effluent limits(WQBELs)as derived from state water quality standards, in
°For more on BMPs,see NPDES Permit Writer's Manual Section 9.1 and EPA Guidance Manual for Developing Best
Management Practices.
s Naval Air Station Whidbey Island MS4 permit incorporates these provisions.
3

addition to TBELs developed on a BPJ basis, if necessary to achieve water quality standards,
including state narrative criteria for water quality (CWA Section 301(b)(1)(C); 40 CFR 122.22(d)).
If a state has established a numeric criterion or a numeric translation of an existing narrative water
quality standard for PFAS parameters, the permit writer should apply that numeric criterion or
narrative interpretation in permitting decisions,pursuant to 40 CFR 122.44(d)(1)(iii)and
122.44(d)(1)(vi)(A), respectively.
B. Recommendations for Publicly Owned Treatment Works
1. Applicability:All POTWs, including POTWs that do not receive industrial discharges, and
industrial users(IUs) in the industrial categories above.
2. Effluent, influent,and biosolids monitoring: In the absence of a final 40 CFR Part 136 method,
EPA recommends using CWA wastewater draft analytical method 1633 (see 40 CFR
122.2 1(e)(3)(ii)and 40 CFR 122.44(i)(1)(iv)(B)). EPA also recommends that monitoring include
each of the 40 HAS parameters detectable by draft method 1633 and be conducted at least quarterly
to ensure that there are adequate data to assess the presence and concentration of PFAS in
discharges. All HAS monitoring data must be reported on DMRs (see 40 CFR 122.41(1)(4)(i)). The
draft Adsorbable Organic Fluorine CWA wastewater method 1621 can be used in conjunction with
draft method 1633, if appropriate.
3. Pretreatment program activities:
a. Update IU Inventory: Permits to POTWs should contain requirements to identify and locate all
possible IUs that might be subject to the pretreatment program and identify the character and
volume of pollutants contributed to the POTW by the IUs(see 40 CFR 403.8(f)(2)). As EPA
regulations require,this information shall be provided to the pretreatment control authority (see
40 CFR 122.440)and 40 CFR 403.8(f)(6))within one year. The IU inventory should be revised,
as necessary,to include all IUs in industry categories expected or suspected of PFAS discharges
listed above (see 40 CFR 403.12(i)).6
b. Utilize BMPs and pollution prevention to address HAS discharges to POTWs. EPA
recommends that POTWs:
i. Update IU permits/control mechanisms to require quarterly monitoring. These IUs should be
input into the Integrated Compliance Information System (ICIS)with appropriate linkage to
their respective receiving POTWs. POTWs and states may also use their available authorities
to conduct quarterly monitoring of the IUs(see 40 CFR 403.8(f)(2),403.10(e)and (f)(2)).
ii. Where authority exists, develop IU BMPs or local limits. 40 CFR 403.5(c)(4)authorizes
POTWs to develop local limits in the form of BMPs. Such BMPs could be like those for
industrial direct discharges described in A.3 above.
iii. In the absence of local limits and POTW legal authority to issue IU control mechanisms, state
pretreatment coordinators are encouraged to work with the POTWs to encourage pollution
prevention,product substitution,and good housekeeping practices to make meaningful
reductions in PFAS introduced to POTWs.
e ELG categories of airport deicing,landfills,textile mills,and plastics molding and forming do not have categorical
pretreatment standards,and therefore small-volume indirect dischargers in those categories would not ordinarily be
considered Significant Industrial Users(SIUs)and may not be captured on an existing IU inventory.IUs under the Paint
Formulating category are only subject to Pretreatment Standards for New Sources(PSNS),and existing sources may need to
be inventoried.
4

C. Recommended Biosolids Assessment
1. Where appropriate,states may work with their POTWs to reduce the amount of PFAS
chemicals in biosolids, in addition to the NPDES recommendations in Section B above,
following these general steps:7
a. EPA recommends using draft method 1633 to analyze biosolids at POTWs for the presence of 40
HAS chemicals.8
b. Where monitoring and IU inventory per section B.2 and B.3.a above indicate the presence of
PFAS in biosolids from industrial sources, EPA recommends actions in B.3.b to reduce PFAS
discharges from IUs.
c. EPA recommends validating HAS reductions with regular monitoring of biosolids. States may
also use their available authorities to conduct quarterly monitoring of the POTWs (see 40 CFR
403.10(f)(2)).
D. Recommended Public Notice for Draft Permits with PFAS-Specific Conditions
1. In addition to the requirements for public notice described in 40 CFR 124.10, EPA
recommends that NPDES permitting authorities provide notification to potentially affected
downstream public water systems (PWS)of draft permits with PFAS-specific monitoring,
BMPs,or other conditions:
a. Public notice of the draft permit would be provided to potentially affected PWS with intakes
located downstream of the NPDES discharge.
b. NPDES permit writers are encouraged to collaborate with their drinking water program
counterparts to determine on a site-specific basis which PWS to notify.
i. EPA's Drinking Water Mapping Application to Protect Source Waters(DWMAPS)tool may
be helpful as a screening tool to identify potentially affected PWS to notify.
c. EPA will provide instructions on how to search for facility-specific discharge monitoring data
in EPA's publicly available search tools.
EPA is currently evaluating the potential risk of PFOA and PFOS in biosolids and supporting studies and activities to
evaluate the presence of PFOA and PFOS in biosolids.This recommendation is not meant to supersede the PFOA and PFOS
risk assessment or supporting activities.The conclusions of the risk assessment and supporting studies may indicate that
regulatory actions or more stringent requirements are necessary to protect human health and the environment.
8 While water quality monitoring activities(including monitoring of PFAS associated with NPDES permit or pretreatment
requirements)at POTWs are generally not eligible for Clean Water State Revolving Fund(CWSRF),monitoring for the
specific purpose of project development(planning,design,and construction)is eligible.Monitoring in this capacity,and
within a reasonable timeframe,can be integral to the identification of the best solutions(through an alternatives analysis)for
addressing emerging contaminants and characterizing discharge and point of disposal(e.g.,land application of biosolids).
Though ideally the planning and monitoring for project development would result in a CWSRF-eligible capital project,in
some instances,the planning could lead to outcomes other than capital projects to address the emerging contaminants.
5