NC0026123_Comments_20230522

WILMINGTON OFFICE
101 N. 3RD STREET, SUITE 400 (28401)
POST OFFICE BOX 1960
WILMINGTON, NORTH CAROLINA 28402
TELEPHONE [phone]
FAX [phone]
RALEIGH OFFICE
6420 WADE PARK BLVD., SUITE 300
(27607)
POST OFFICE BOX 27808
RALEIGH, NORTH CAROLINA 27611-7808
TELEPHONE [phone]
FAX [phone]
VVAI CRANFXLL SUMNERLLP
Via USPS First -Class Mail, to:
Wastewater Permitting
Attn: Asheboro WWTP Permit
1617 Mail Service Center
Raleigh, NC 27699-1617
May 22, 2023
NCDEQ/DWR/NPDES
Water Quality Permitting Section
1617 Mail Service Center
Raleigh, NC 27699-1617
PATRICK M. MINCEY
ATTORNEY AT LAW
DIRECT DIAL: [phone]
DIRECT FAX: [phone]
EMAIL: [e-mail]
W W W.CSHLAW. COM
R. ROBERT EL-JAOUHARI
ATTORNEY AT LAW
DIRECT DIAL#: [phone]
DIRECT FAX #: [phone]
EMAIL: [e-mail]
WWW.CSHLAW.COM
ELIZABETH C. STEPHENS
ATTORNEY XI'LAW
DIRECT DIAL#: [phone]
DIRECT rAx #: [phone]
EMAIL: [e-mail]
W W W.CSHLAW.COM
North Carolina Environmental Management Commission/NPDES Unit
1617 Mail Service Center
Raleigh, NC 27699-1617
Via E-Mail, to:
Nick Coco, PE
nick. coco@ncde nr. gov
[e-mail]
Dear Mr. Coco, and to whom it may concern,
Our office represents the City of Reidsville in certain matters pertaining to 1,4-
dioxane and related regulation and permitting by the North Carolina Department of
Environmental Quality ("DEQ") and its Environmental Management Commission
("EMC") (collectively, the "Agency").
We have received and reviewed the proposed permit noticed to the public for
the City of Asheboro's wastewater treatment facility, NPDES No. NCO026123 (the
"Permit"), proposed by the Division of Water Resources. By letter dated January 5,
2023, we submitted comments in opposition to the proposed effluent limitation for
1,4-dioxane included in the Permit, and requested that the same effluent limitations

Mr. Nick Coco, PE
Water Quality Permitting Section
May 22, 2023
Page 2of2
be removed before the Permit is issued. The Agency has since elected to hold a public
meeting, and has invited written comments until May 24, 2023.
As we have stated before, although the City of Reidsville appreciates and
understands the real need to have clean, safe drinking water for the citizens of North
Carolina, the City also is comprised of North Carolina citizens who would be
negatively impacted by regulations that are arbitrary, capricious, unsupported by
statute, contrary to law, and economically and technologically impossible to obtain.
Our prior January 5, 2023, comment letter is enclosed as Exhibit 1 here, and for the
reasons set forth therein, the City of Reidsville reiterates its request that any NPDES
permit issued to Asheboro contain no effluent limitation for discharges of 1,4-dioxane.
Sincerely,
Patrick M. Mincey
R. Robert El-Jaouhari
Elizabeth C. Stephens
Counsel to the City of Reidsville
4891-6194-3141, v. 1

Exhibit f 11

WILMINGTON OFFICE
101 N. 3RD STREET, SUITE 400 (28401)
POST OFFICE BOX 1950
WILMINGTON, NORTH CAROLINA 28402
TELEPHONE [phone]
FAX [phone]
RALEIGH OFFICE
5420 WADE PARK BLVD., SUITE 300
(27607)
POST OFFICE BOX 27808
RALEIGH, NORTH CAROLINA 27611-7808
TELEPHONE [phone]
FAX [phone]
-44 RANFILL SUMNER"P
Via USPS First -Class Mail, to:
January 5, 2023
NCDEQ/DWR/NPDES
Water Quality Permitting Section
1617 Mail Service Center
Raleigh, NC 27699-1617
PATRICK M.MINCEY
ATTORNEY AT LAW
DIRECT DIAL: [phone]
DIRECT FAX: [phone]
EMAIL: [e-mail]
W W W.CSHLAW.COM
R. ROBERT EL-JAOUHARI
ATTORNEY AT LAW
DIRECT DIAL#: [phone]
DIRECT FAX #: [phone]
EMAIL: RJAOUIIARI [1 CSHLAW.COM
W W W.CSHLAW.COM
ELIZABETH C. STEPHENS
ATTORNEY AT LAW
DIRECT DIAL #: [phone]
DIRECT FAX#: [phone]
EMAIL: ESTEPHENSCa CSHLAW.COM
W W W.CSHLAW.COM
North Carolina Environmental Management Commission/NPDES Unit
1617 Mail Service Center
Raleigh, NC 27699-1617
Via E-Mail, to:
Nick Coco, PE
[e-mail]
Dear Mr. Coco, and to whom it may concern,
Our office represents the City of Reidsville in certain matters pertaining to 1,4-
dioxane and related regulation and permitting by the North Carolina Department of
Environmental Quality ("DEQ") and its Environmental Management Commission
("EMC") (collectively, the "Agency").
We have received and reviewed the proposed permit noticed to the public for
the City of Asheboro's wastewater treatment facility, NPDES No. NCO026123 (the
"Permit"), proposed by the Division of Water Resources (the "Division"). The Permit
purports for the first time in North Carolina to establish an effluent limitation based
on a 0.35 µg/L standard in water -supply waters. This letter is a comment in
opposition to the proposed effluent limitation for 1,4-dioxane included in the Permit,
and for the reasons set forth below requests that the Permit's 1,4-dioxane effluent
limitations be removed before the Permit is issued.
As a procedural matter, the Division has not allowed sufficient time for an
NPDES permit of this magnitude to be reviewed and analyzed by interested —and

Mr. Nick Coco, PE
Water Quality Permitting Section
January 5, 2023
Page 2of12
potentially impacted —parties, and the time for comments should be extended. As for
substantive matters, the Division's inclusion of an effluent limitation for 1,4-dioxane
based on a 0.35 µg/L standard in water -supply waters is arbitrary, capricious,
unreasonable, and in excess of the Division's and the Agency's statutory and
regulatory authority. The bases for these conclusions, and the reasons DEQ must
remove the effluent limitations related to 1,4-dioxane before issuing the Permit, are
set forth in the enumerated sections below.
1. The comment period should be extended beyond January 13, 2023.
Asheboro's proposed Permit was delivered to Asheboro on December 6, 2022,
and was publicly noticed on December 9, 2022. Upon information and belief, a
prior proposed permit for Asheboro was previously noticed in 2018, and at that
time included a 1,4-dioxane effluent limitation based on a 80.0 µg/L standard
in the receiving Class C waters of Hasketts Creek, rather than an effluent
limitation based on the 0.35 µg/L standard the Division now seeks to impose.
This change is substantial, is the first effort by the Division to issue a permit
with a 1,4-dioxane effluent limitation based on a 0.35 µg/L standard, and was
noticed to the public for a comment period significantly curtailed by religious
holidays and the New Year holiday.
Fundamental principles of transparency and public input underlie North
Carolina's Administrative Procedures Act. To allow the public adequate
opportunity to evaluate the Permit, its fact sheet, and the various bases and
authorities cited by those materials, the public comment period should be
significantly extended.
2. 0.35 µg/L is not a lawful 1,4-dioxane standard in a water -supply stream,
and a 1,4-dioxane effluent limit in the Permit based on 0.35 µg/L is
therefore outside of the Agency's statutory authority. The Permit
exhibits an effort by the Agency to defy North Carolina's rulemaking
procedures established by the North Carolina General Assembly in the
Administrative Procedures Act, and the proposed Permit therefore lies outside
of the Agency's statutory authority.
This conclusion is clear in light of the history of the Agency's efforts to establish
regulations related to 1,4-dioxane. In its 2020-2022 Triennial Review, EMC
sought to codify a 0.35 µg/L 1,4-dioxane standard in receiving water -supply
streams. Although much of the Triennial Review was codified into law, in May
2022 the North Carolina Rules Review Commission ("RRC") objected to EMC's
proposed 0.35 µg/L standard for receiving water -supply streams, on account of
EMC's failure to comply with North Carolina's Administrative Procedures Act
with regard to that proposed standard. The 0.35 µg/L 1,4-dioxane standard
4864-2558-8039, v. 1

Mr. Nick Coco, PE
Water Quality Permitting Section
January 5, 2023
Page 3of12
was therefore not codified into law. After this initial effort, EMC again tried
to obtain RRC approval for the 0.35 µg/L standard through a request for
reconsideration in August, 2022, but RRC nevertheless maintained its
objection. Thereafter, in September, 2022, EMC voted to request the return of
the proposed 0.35 µg/L standard from the RRC, which ended the rulemaking
effort.1
Apparently dissatisfied with the rulemaking process required by the
Administrative Procedures Act, and apparently dissatisfied with the Rules
Review Commission's duly -exercised authority to ensure compliance with the
Administrative Procedures Act, the Agency has decided to impose the same
rejected regulations on its own authority rather than the authority allowed to
it by statute. Such an effort is a clear attempt to side-step appropriate
rulemaking requirements, and indicates that the Agency will nevertheless
regulate for any substance using standards which rulemaking authorities —
and indeed the Administrative Procedures Act —have rejected. At the very
least, such an effort creates substantial uncertainty for a regulated community
that cannot know how, on what bases, and whether, 1,4-dioxane or other
compounds, will be regulated in the future, when the Agency is so freely willing
to regulate outside of established statutory and regulatory procedure.
Put simply, a 0.35 µg/L 1,4-dioxane standard in a receiving water -supply
stream is not currently codified by law or regulation, and was not the law when
the Permit was sent to public notice. Nevertheless, permitting by the Agency
must be based on law and on lawful standards.2 A 1,4-dioxane effluent
limitation in the Permit based on a 0.35 µg/L standard is therefore unlawful
and should be removed.
3. Pre-existing regulations under 15A NCAC 02B do not permit the
Division, or the Agency, to enforce the very same standard whose
codification was rejected. The Division's reliance on pre-existing
1 Undersigned counsel recognize FMC's opportunity to file suit challenging RRC's objection to the 0,35
µg/L standard. Counsel also recognizes EMC's election not to do so in the nearly eight months
following RRC's objection, and represent to the Division that, to the best of undersigned counsels'
knowledge, no such lawsuit was filed —much less any court order entered reversing RRC's objection —
before this Division sent Asheboro's proposed Permit to public notice with an effluent limitation based
on a 0.35 µg/L standard.
2 In support of this proposition (and beyond the baseline principles of law and good -governance),
undersigned counsel would refer the Division to Secretary Elizabeth Biser, Assistant Secretary
Sushma Masemore, and the negotiations culminating in issuance of an Authorization to Construct
permit to the City of Reidsville for its biologic nutrient removal project, which permit issued following
DEQ's admission, to North Carolina Senate President Pro Tempore Phil Berger, of DEQ's efforts to
even informally enforce a 0.35 µg/L 1,4-dioxane standard which was not the law.
4864-2558-8039, v. 1

Mr. Nick Coco, PE
Water Quality Permitting Section
January 5, 2023
Page 4 of 12
regulations under 15A NCAC 02B to establish a 1,4-dioxane limitation is
similarly flawed. The Division does in fact rely on this flawed basis: the Permit
itself identifies the applicable Division regulations supporting inclusion of a
1,4-dioxane effluent limitation in the Permit as:
a. 15A NCAC 02B .0206(a)(4)(B), which provides that for flow design
criteria, the average annual flow for toxic substances shall be used
to protect human health;
b. 15A NCAC 02B .0208(a)(2)(B), which provides that for carcinogens,
an unacceptable exposed risk level is 1x10-6 or greater; and
c. 15A NCAC 02B .0216(4)(d), which provides that for WS-IV waters no
discharge shall be allowed that has an adverse effect on human
health.
As a preliminary matter, EMC recognized the insufficiency of pre-existing 02B
regulations to support a 0.35 µg/L standard in receiving water -supply waters
when it sought to create new regulation —and, for the first time, a codified 0.35
µg/L standard —in the Triennial Review. Indeed, before that rulemaking effort
the Agency had not included a 1,4-dioxane effluent discharge limitation in any
NPDES permit for any discharger into the State's water -supply waters,3 and
the closest the Agency came to any enforcement of any 1,4-dioxane standard
was its Special Order by Consent with the City of Greensboro which, upon
information and belief, does not limit Greensboro's effluent based on a 0.35
µg/L standard in the receiving stream.
Moreover, the Division improperly relies on the narrative text of a portion of
15A NCAC 02B .0208 (hereinafter referred to as ".0208") while ignoring other
explicit language in that regulation and ignoring that regulation's place among
other DEQ regulations. The plain language of .0208 not only identifies
procedures for calculating water quality standards, but immediately
thereafter, and explicitly, states that the "[s]tandards to protect human health
from carcinogens through water consumption are listed under the water supply
classification standards in Rules .0212, .0214, .0215, .0216, and .0218 of this
Section." (15A NCAC 02B .0208(a)(2)(B)) (emphasis added). Thus, in no
uncertain terms, the pre-existing regulations upon which the Division relies
specifically direct the Division to .0212, .0214, .0215, .0216, or .0218 for the
applicable water quality standard or criterion to protect human health from
carcinogens through water consumption. .0208 does not permit the Division-
3 For comparison, consider NPDES permit No. NC0088838, issued to Radiator Specialty Company
with an effective date of July 1, 2018, and which includes an effluent limitation for 1,4-dioxane based
on a standard of 80.0 µg/L rather than 0.35 µg/L. Radiator Specialty Company discharges into Class
C waters, which are not water -supply waters.
4864-2558-8039, v. 1

Mr. Nick Coco, PE
Water Quality Permitting Section
January 5, 2023
Page 5 of 12
and much less does it direct the Division —to calculate new standards from
whole cloth when standards do not exist in .0212, .0214, .0215, .0216, or .0218.
But, such an impermissible procedure is precisely what the Division purports
to do in order to include a 1,4-dioxane effluent limitation in Asheboro's Permit.4
Relatedly, the Division's reliance on pre-existing regulations also utterly
subverts the regulatory rulemaking procedure. FMC's recent efforts to
establish a numeric 1,4-dioxane standard in .0212, .0214, .0215, .0216, and
.0218 failed due to FMC's failure to perform a proper fiscal analysis of the
economic impacts of 1,4-dioxane on the regulated community. Despite EMC's
failure, and the subsequent lack of a codified 1,4-dioxane standard for water -
supply waters, the Division now attempts to do what North Carolina's
Administrative Procedures Act has determined is inappropriate: namely,
enforce a 0.35 µg/L standard that not only has not satisfied statutory
rulemaking procedures, but has specifically been rejected as a standard due to
its failure to satisfy those procedures. The Division thus argues, much like
EMC unsuccessfully argued before the Rules Review Commission, that an
agency can avoid statutory rulemaking requirements so long as its
enforcement efforts are based on an internal calculation of the very standard
that was rejected for codification. But, internal agency rules cannot override
legislative requirements, and efforts to do so are clearly beyond of the
Division's, and the Agency's, statutory and regulatory authority.
4. The Permit's 1,4-dioxane limitation is arbitrary and capricious in that
it relies on the improper application of .0208 by the Division and lacks
any tie to scientific consensus. The Division relies on 15A NCAC 02B
.0208(a)(2)(B) (again, referred to as ".0208") as the vehicle by which it is
authorized to establish and impose effluent limitations related to 1,4 dioxane
as part of Asheboro's proposed NPDES Permit. The portion of .0208 upon
which the Division specifically relies indicates clearly that its application is
limited to "carcinogens []"
In support of its use of .0208 to regulate for 1,4-dioxane as a carcinogen, the
Division cites to a single clause contained in an outdated, non -binding, non -
regulatory report issued in 2013 by the U.S. Environmental Protection Agency,
which states: "1,4-dioxane is `likely to be carcinogenic to humans.1115 (Fact Sheet
4 Again, the Division is reminded that EMC sought to create a 1,4-dioxane standard in receiving waters
by amending .0212, .0214, .0215, .0216, and .0218 to include a 0.35 µg/L 1,4-dioxane standard. Had
that rulemaking been successful, the Division could then have had an established standard in .0212,
.0214, .0215, .0216, or .0218 to rely on for setting an effluent limitation based on .0208.
5 Notably, the Division clearly understands the limitations associated with a non -enforceable, non -
regulatory report issued by EPA, as here. For instance, it appears, at least in part, that the Division
4864-2558-8039, v. 1

Mr. Nick Coco, PE
Water Quality Permitting Section
January 5, 2023
Page 6 of 12
for Permit at 12; EPA IRIS, 1,4-Dioxane (CASRN 123-91-1), 2013 at 12.)
However, the same report expressly acknowledged that there is "inadequate
evidence of carcinogenicity in humans." (Id.)
Further, in December 2020, the EPA issued its Final Risk Assessment related
to 1,4 dioxane. (86 Fed. Reg. 1,495 (Jan. 8, 2021)) The EPA's Final Risk
Assessment found (1) no unreasonable risks to the environment from any
conditions of 1,4 dioxane use; (2) no unreasonable risks to consumers or
bystanders from any conditions of 1,4 dioxane use; and, (3) no unreasonable
risks to the general population related to 1,4 dioxane. (See 86 Fed. Reg. 1,495,
Section 5.4 (Jan. 8, 2021).) The findings of the Final Risk Assessment are
issued by order and are considered a final agency action. (Id.)
On January 20, 2021, the President of the United States signed Executive
Order No. 13,990 directing that EPA review its Final Risk Assessment related
to 1,4 dioxane. On June 30, 2021, EPA announced that its supplemental risk
assessment would include analysis of additional exposure pathways for 1,4
dioxane, including via drinking water, ambient air, and as a generated
byproduct in manufacturing and industrial uses. EPA's supplemental risk
assessment is currently underway, and is expected to determine whether 1,4
dioxane presents an unreasonable risk to human health on a much broader
scale than did the Final Risk Assessment. EPA recently announced its plans
to provide a public notice and comment opportunity on its supplemental risk
evaluation for 1,4 dioxane in 2023. Through its supplemental risk assessment,
it is possible that EPA could affirm the findings contained in its Final Risk
Assessment or modify those findings altogether. In the interim, no federal
maximum contaminant level ("MCL") has been established for 1,4-dioxane in
drinking water.
Moreover, the Division has not demonstrated any changes in scientific
evidence since its 2018 proposed NPDES permit to Asheboro, which proposed
permit included a 1,4-dioxane effluent limitation based on an 80.0 µg/L 1,4-
dioxane standard in the receiving stream rather than the 0.35 µg/L basis
proposed today. In proposing the Permit today with an effluent limitation
based on a 0.35 µg/L 1,4-dioxane standard, the Division relies on 2013 and 2014
publications by EPA (Fact Sheet for Permit at 12) and EPA recommendations
from 1991 (id. at pg. 14 of 24). However, the Division demonstrates no reasons
declined to impose a permit limitation related to PFAS in Asheboro's Permit based on a lack of
enforceable standards and the nascent scientific consensus surrounding sampling and treatment.
Especially in light of the fact that the scientific consensus related to 1,4 dioxane is similarly situated
to that of PFAS (or perhaps is even more uncertain), it is unclear why the Division chose to impose
permit limitations related to 1,4 dioxane, but not with respect to PFAS.
4864-2558-8039, v. 1

Mr. Nick Coco, PE
Water Quality Pennitting Section
January 5, 2023
Page 7 of 12
why these same references perfectly available to the Division in 2018—when
80.0 µg/L was proposed to Asheboro as the standard for its 1,4-dioxane effluent
limitations —today require an effluent limitation based on a much more
restrictive 0.35 µg/L standard. And, the Division demonstrates no reason why
EPA's 2020 Final Risk Assessment related to 1,4 dioxane, and its conclusions
of no unreasonable risk to consumers or the general population related to 1,4-
dioxane, should be fully ignored. Indeed, .0208 itself was last amended
effective May 1, 2007, and the Division has therefore not only has the same
scientific bases, but also the same regulatory bases, today that it had in 2018,
for this proposed permitting.6 The Division's determination that the same
scientific and regulatory bases now require an effluent limitation based on a
0.35 µg/L standard, when they previously only required an effluent limitation
based on a 80.0 µg/L standard, is therefore utterly arbitrary.
To be clear, the City of Reidsville does not contend that 1,4-dioxane is not a
pollutant of concern or that 1,4-dioxane is not an emerging contaminant.
Indeed, the City of Reidsville certainly recognizes the need to protect North
Carolina's drinking water resources. However, through the Permit, the
Division proposes to establish permit limitations and impose regulatory
penalties related to substances where no scientific consensus exists, its
impacts on humans are currently under review by the EPA, and testing
criterion and removal techniques are unavailable. Thus, while it is possible
that the Division may engage in certain mitigation efforts related to discharges
of 1,4 dioxane, 15A NCAC 02B .0208 is not among the regulatory tools upon
which the Division may rely absent reliable scientific findings of the
compound's carcinogenicity in humans, as required by .0208's specific text.
Based on the foregoing, the Division appears not to even know at this time
what level of exposure to 1,4 dioxane results in unreasonable risk to human
health, but has supplanted that precise scientific need with the generalized,
non-specific conclusions of .0208 without having demonstrated that .0208 is
properly applicable as a basis for a 1,4-dioxane effluent limitation. Thus, the
Division's reliance on .0208 to impose NPDES permit limitations for 1,4-
dioxane exceeds the scope of the Division's authority. As a result, .0208 may
not be used as a tool by which to regulate 1,4 dioxane discharges as part of
Asheboro's NPDES Permit.
6 Undersigned counsel are aware of the written 2022 DWR NPDES Strategy for 1,4-dioxane (the "2022
Strategy"), which the Division includes among the bases for the 1,4-dioxane effluent limitations
proposed in the Permit. Undersigned counsel received the 2022 Strategy from the Permit writer, Mr.
Coco, and observes that the 2022 Strategy (1) is in draft form, (2) is not approved by any Division or
Agency official, and (3) purports to establish regulation outside of the Agency's rulemaking authority.
4864-2558-8039, v. 1

Mr. Nick Coco, PE
Water Quality Permitting Section
January 5, 2023
Page 8 of 12
5. Asheboro's wastewater treatment facility does not directly discharge
into a water supply stream, and the connection the Division draws to
water -supply waters is arbitrary and capricious. Asheboro's wastewater
treatment facility discharges directly into Hasketts Creek, a Class C water.
Class C waters are not water -supply waters. While there also is no codified
1,4-dioxane standard for Class C waters, the proposed standard for Class C
waters in EMC's recent rulemaking effort (the Triennial Review, discussed
above) was 80.0 µg/L.
In the proposed Permit, the Division asserts that it calculated proposed 1,4-
dioxane effluent limitations based on both a 80.0 µg/L standard and a 0.35 µg/L
standard, and reports that it selected the lower effluent limitation resulting
from the 0.35 µg/L standard because the waters into which Asheboro
discharges eventually become water -supply waters. Indeed, it appears that
the first iteration of Asheboro's NPDES permit, in 2018, included only a
proposed 1,4-dioxane effluent limitation of 149 µg/L calculated using an 80
µg/L standard due to Asheboro's discharge into Class C waters.
Asheboro does discharge 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). However,
the Division's determination that ultimate reach to water -supply waters
requires an effluent limitation based on water -supply waters is, in this
instance, too attenuated at best and entirely unsupported at worst. The
downstream water supply facility upon which the Division relies is the
presently inactive water -supply facility at or near the boundary of the Gulf-
Goldston water -supply watershed, which is approximately 43 miles
downstream of Asheboro's discharge into Class C waters. Neither the Permit
nor the Division's fact sheet for the Permit explain why an inactive water
supply 43 miles downstream is relevant to Asheboro's discharge. Nor do the
Permit or the fact sheet show any calculations made by the Division to
determine the amounts of 1,4-dioxane that would be present at the water -
supply boundary —instead, the Division assumes (1) that Asheboro's discharge
will be 100% of the flow at the WS-IV boundary, (2) that the instream
concentration of 1,4-dioxane is the exact same at the point of Asheboro's
discharge as it is at the WS-IV boundary for the facility 43 miles downstream,
and (3) that there would not be any additional mitigation of Asheboro's
discharge by the normal variation in hydrology over such an extended distance
and change in the drainage area. On such an approach, any water -supply
waters anywhere downstream of Asheboro, or downstream of any discharger,
no matter the distance, would require imposition of an effluent discharge
limitation based on a 0.35 µg/L standard for the water -supply stream. In
4864-2558-8039, v. 1

Mr. Nick Coco, PE
Water Quality Permitting Section
January 5, 2023
Page 9 of 12
addition to being illogical, such a conclusion would also subvert the distinction
between 1,4-dioxane criteria proposed for water -supply and non -water -supply
waters, and would indeed eliminate the distinction between the Agency's
permissible regulations of differing classes of waters.
Such an approach would also mean that every North Carolina discharger that
is upstream of water -supply waters should be subjected to effluent limitations
based on a 0.35 µg/L 1,4-dioxane standard for water -supply waters —regardless
of actual discharge amounts, flow amounts, classification of the receiving
waters at the point source, or even where a particular facility falls within the
Division's draft (and unapproved) NPDES Strategy for 1,4-dioxane. The
Division must not only concede that this is not a well -reasoned approach, but
must also concede that this approach is not consistent with the Division's past
permitting activity: the only existing NPDES discharge permit in North
Carolina with a 1,4-dioxane effluent limitation belongs to another discharger
into Class C waters (Radiator Specialty Company) but contains a 1,4-dioxane
effluent limitation based on an 80.0 µg/L standard, not 0.35 µg/L, even though
Radiator Specialty Company's discharge is approximately 50 miles from the
Pee Dee River's WS-V waters.?
Thus, if any 1,4-dioxane effluent limitation is permissible at all, reliance on an
inactive facility approximately 43 miles downstream and a questionable
hydrological analysis (inasmuch as such an analysis, beyond simple
assumptions, was performed) is an arbitrary and capricious basis for the
Division's determination that Asheboro's Permit's 1,4-dioxane effluent
limitation must be based on a 0.35 µg/L standard.
6. Technological and economic limitations make compliance with a 0.35
µg/L standard in a receiving stream practically unachievable. EMC
has long admitted that the current state of technology is not sufficient to meet
a 0.35 µg/L standard in a receiving water -supply stream. At the beginning of
its failed rulemaking efforts (the 1,4-dioxane aspects of EMC's 2020-2022
Triennial Review, discussed above), EMC anticipated that schedules of
compliance for regulated entities "will be common due to the high cost of
treatment technology[,]" that "municipal water and wastewater treatment
facilities are generally not equipped to remove [1,4-dioxane] through their
treatment processes[,]" that "conventional treatment processes are generally
ineffective at removal[,]" and that "[i]nstallation and operation of advanced
treatment processes, such as those using hydrogen peroxide, ozone and/or
7 See NPDES permit no. NC0088838, issued to Radiator Specialty Company with an effective date of
July 1, 2018.
4864-2558-8039, v. 1

Mr. Nick Coco, PE
Water Quality Permitting Section
January 5, 2023
Page 10 of 12
ultra -violet photo -oxidation — all known to be effective for 1,4-dioxane removal
at either wastewater treatment facilities or drinking water systems — are
anticipated to be prohibitively expensive for local governments and the citizens
served by public utilities." (Regulatory Impact Analysis for FMC's Triennial
Review, pp. D-16, D-17). Such admissions lay alongside EMC's ultimate
admission that its creation of a 0.35 µg/L standard was not based on sufficient
information: as EMC stated in connection with its Triennial Review, "[I]t is
worth acknowledging that the ongoing costs and benefits associated with the
monitoring and treatment of 1,4-dioxane are likely to be considerable.
Unfortunately, we have very limited data upon which to expand on this
topic[,]" and "DEQ is continuing to gather information on costs associated with
implementation of 1,4-dioxane ITVs. (Id. p. D-17).
The Division is not permitted to impose effluent limitations that so clearly
cannot be technologically or economically met. In addition to such an
approach's dissonance with principles of good regulatory governance, and
resultant arbitrary nature, the approach violates 15A NCAC 02H .0112(c),
which prohibits the imposition of effluent limits in NPDES permits when those
limits "cannot reasonably ensure compliance with applicable water quality
standards and regulations....". As EMC has admitted, and as the Division
must therefore recognize, technological and economic impossibilities mean
that simple imposition of an effluent limit based on a 0.35 µg/L standard in an
NPDES permit cannot, simply by imposition, reasonably ensure compliance
with what the Division asserts is the applicable water quality standard.
Thus, the proposed 1,4-dioxane effluent limitation in Asheboro's Permit is
arbitrary and fails to comply with other Agency regulations.
7. Inclusion of a 1,4-dioxane effluent limitation is arbitrary and
capricious when taken in relation to other North Carolina NPDES
permits and groundwater standards. The 1,4-dioxane limitation in
Asheboro's permit is premised on water -supply waters 43.5 miles downstream
from Asheboro's discharge, alongside the Division's assertion that protection
of said water supply requires a discharge limitation based on a 0.35 µg/L
standard to protect downstream water -supply users.
However, the Division has issued a similarly situated permit without having
found such a requirement to protect water -supply users. Under its 2018
NPDES permit, bearing permit number NC0003719, DAK Americas is
permitted to discharge into the Cape Fear River at a point approximately six
miles from Class WS-IV waters, but is required only to monitor and report
levels of 1,4-dioxane in its effluent by way of a grab sample taken once per
4864-2558-8039, v. 1

Mr. Nick Coco, PE
Water Quality Permitting Section
January 5, 2023
Page 11 of 12
year. Consistent application of the Division's current belief (that is, that .0208
requires effluent limitations based on a 0.35 µg/L water quality standard for
anyone upstream of a water -supply water) would have required an effluent
limitation for the DAK Americas permit, and indeed for any NPDES permit
where there is any detection of 1,4-dioxane in the discharge. No such limit
exists in the DAK Americas permit and, as discussed above, the Division has
not demonstrated any scientific changes that would support different 1,4-
dioxane provisions in NPDES permits today than were imposed in 2018.
In addition, EMC has determined that a 1,4-dioxane standard of 3.0 µg/L,
rather than the stricter .35 µg/L, is protective of the best use of drinkable
groundwater (that best use being as water for human consumption). This
drinking water standard is nearly ten times higher than the standard the
Division seeks to impose upon Asheboro, and is not an artifact of outdated
rulemaking—rather, the effective date of the most recent rulemaking involving
1,4-dioxane in potable groundwater is April 1, 2022. This wide difference in the
two classifications arises out of EMC's implementation of the same legislative
enactment, G.S § 143-214.1: although groundwater and surface water are
indeed two different classifications of water, the same statute is applicable to
the classification of surface waters and groundwater, and makes the two
classifications subject to the same criterion of "best usage." G.S § 143-214.1.
Moreover, the standards applicable to GA classified groundwater (that is,
groundwater suitable for drinking) include a threshold of cancer risk identical
to that applicable to water -supply classified surface waters. 15A NCAC 2L
.0102(24); 15A NCAC 2L .0202(d)(2). Despite this identity in statutory
authority and the identity in use of the applicable waters, the Division has here
arbitrarily chosen a different 1,4-dioxane standard when 1,4-dioxane is in
surface waters than when 1,4-dioxane is in groundwater.
8. The interim limits for 1,4-dioxane discharge in Asheboro's permit, and
any discharge limit based on a single grab -sample, are arbitrary.
Asheboro's Permit includes a compliance schedule with 1,4-dioxane effluent
limitations decreasing at one-, three-, and five-year intervals from the Permit's
effective date, and includes both monthly average limits and daily maximums
based on grab samples. However, none of the daily maximum limits or the
interim limits between the Permit's effective date and the five-year monthly
average mark are based on the 0.35 µg/L standard which the Division asserts
is necessary for protecting downstream water supply users. Instead, the
Division has simply decided that within one year Asheboro may not exceed half
of what it currently discharges (despite the technological and economic
impossibilities discussed above), and that the 1,4-dioxane effluent limit for
Asheboro in three years actually can be based on EPA's Health Advisory Level
4864-2558-8039, v. 1

Mr. Nick Coco, PE
Water Quality Permitting Section
January 5, 2023
Page 12of12
of 35.0 µg/L (100-times less restrictive than the standard the Division asserts
is necessary for protection of human health). (Fact Sheet, pp. 13-14). Moreover,
the Division's calculation of daily maximums are based on recommendations
issued by EPA in 1991, and purport to create the basis for violations when a
single grab -sample exceeds a daily limit for a compound whose toxicity has
only been asserted for long -term —and not instantaneous —exposure. Indeed,
daily maximum effluent limitations are inappropriate for likely carcinogens
that are not also acutely toxic, but the Division's inclusion of daily maximum
limits for 1,4-dioxane disregards this difference in regulatory treatment, and
the Division has in any event failed to demonstrate any scientific, statutory, or
regulatory basis for why concerns based on long-term exposure should be
addressed as if the compound of concern were acutely toxic.
In conclusion, although the City of Reidsville appreciates and understands the
real need to have clean, safe drinking water for the citizens of North Carolina, the
City also is comprised of North Carolina citizens who would be negatively impacted
by regulations that are arbitrary, capricious, unsupported by statute, contrary to law,
and economically and technologically impossible to obtain. For the reasons set forth
above, the City of Reidsville requests that any NPDES permit issued to Asheboro
contain no effluent limitation for discharges of 1,4-dioxane.
Sincerely,
Patrick M. Mincey
R. Robert El-Jaouhari
Elizabeth C. Stephens
Counsel to the City of Reidsville
4864-2558-8039, v. 1