NC0089109_Comments_20230630

SOUTHERN 48 Patton Avenue, Suite 304 Telephone [phone]
ENVIRONMENTAL Asheville, NC 28801 Facsimile 828-258-2024
LAW
CENTER
June 30, 2023
Via Email
Sergei Chernikov, Ph.D.
N.C. Dept. of Environmental Quality
Division of Water Resources
Water Quality Permitting Section
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
[e-mail]
Re: Comments on Draft NPDES Permit No. NC0089109 — Befesa Zinc Metals
Dear Dr. Chernikov:
Please accept the following comments submitted on behalf of the Broad Riverkeeper,
MountainTrue, and the Southern Environmental Law Center related to draft National Pollutant
Discharge Elimination System ("NPDES") Permit No. NC0089109 for Befesa Zinc Metals in
Forest City, NC.
The Broad Riverkeeper is the primary protector and spokesperson for the rivers and
streams of the Broad River watershed in the Western and Piedmont regions of North Carolina.
The Riverkeeper works with communities and citizens in Rutherford, Polk, and Cleveland
counties to monitor water quality and advocate for practices that will improve local waterways
for drinking, swimming, and fishing. The Broad Riverkeeper is a program of MountainTruea
regional nonprofit that champions resilient forests, clean waters, and healthy communities in the
Southern Blue Ridge. Numerous MountainTrue members live in the Broad River watershed and
rely on the river for recreation, education, spiritual renewal, and business. The Southern
Environmental Law Center is a nonprofit legal advocacy organization that works to protect the
basic right to clean air, clean water, and a livable climate; to preserve our region's natural
treasures and rich biodiversity; and to provide a healthy environment for all.
As we explain below, the draft NPDES permit suffers from numerous legal shortcomings.
The on -the -ground effect of those shortcomings is that the draft permit includes virtually no
limits on the amount of pollution Befesa can dump into the Broad River. The most
straightforward way to correct many of these deficiencies is to revise the permit to include
technology -based effluent limitations as required under the Clean Water Act.
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington, DC

I. Befesa's Forest City Facility
The Befesa Zinc Metal facility ("BZM" or "the facility") in Forest City is a
hydrometallurgical zinc metal production facility that extracts zinc from waelz oxide, which
manufacturers produce from electric arc furnace dust —a hazardous waste.1 The process BZM
employs involves dissolving waelz oxide in an acidic solution before transferring zinc to a
solvent solution and eventually to an acidic electrolyte solution.2 As DEQ is aware, the facility
has a significant track record of violating the conditions of its NPDES permit and the Resource
Conservation and Recovery Act.
Effluent from the facility "has a very high concentration of chlorides."' The facility also
discharges arsenic, cadmium, chromium, copper, cyanide, lead, nickel, zinc, selenium, and
molybdenum, among other constituents.' The effluent cannot be "discharged to the soil surface"
because it will "contaminate the soil and the aquifer. ,5 Nor can it be sent to the nearby publicly
owned treatment works because "it will cause a major toxicity problem ... which will result in a
complete failure of the [publicly owned treatment works]."6
Instead, BZM discharges its effluent into the Broad River. The Broad River is designated
for use "as a source of water supply for drinking, culinary, or food -processing purposes." 15A
N.C. Admin. Code 02B .0216. Nevertheless, "there is no wastewater treatment system" at the
facility, and DEQ's Draft NPDES Permit imposes no limits on any pollutant that will be
discharged to the Broad River except one —cadmium. The facility discharges almost one million
gallons of wastewater per day.8 Befesa—which generated a profit of over $16 million in the first
quarter of 2023 alone9—has identified "feasible" alternatives to discharging its wastewater into
the Broad River but refused to pursue them, citing financial considerations. io
II. The Clean Water Act requires DEQ to impose technology -based effluent limits.
BZM's wastewater discharge is subject to the Clean Water Act but DEQ's draft NPDES
permit falls short of the law's requirements for several reasons. Notably, the Draft Permit
imposes virtually no limit on any pollutant discharged from the facility even when technologies
are available that could reduce or potentially eliminate those discharges.
1 Administrative Settlement Agreement and Order on Consent for Removal Actions, CERCLA Docket No.
CERCLA-04-2022-2502, ¶ 8(d).
2 Id.
3 Fact Sheet for Draft NPDES Permit No. 0089109 (May 3, 2023) [hereinafter "Fact Sheet"], at 2.
4 Befesa Zinc Metal, LLC, Application for Renewal of NPDES Permit No. 0089109 (Dec. 29, 2022) [hereinafter
"Application"], at 17-27. Because the Application comprises many documents, each paginated separately, page
numbers for the purposes of this citation are given as indicated by PDF-viewing software.
5 Fact Sheet, supra note 3, at 2.
6 Id. at 2.
Application, supra note 4, at 40.
a Draft NPDES Permit No. 0089109 (May 25, 2023) [hereinafter "Draft Permit"], at 3.
9 Befesa Zinc Metal, LLC, Q1 2023 Statement (May 4, 2023), at 9 (showing "net profit for the period" of E15.1
million, available at hlt2s:Himages.befesa.com/media/2023/05/Befesa_O1_2023_ Statement_4 May 2023-
6452bc7919bO l .pdf).
10 David Odom, Engineering Alternatives Analysis for American Zinc Products (June 2017) [hereinafter "EAA"], at
5.

Congress passed the Clean Water Act in 1972 "to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). As DEQ recently
acknowledged, Congress established an "interim goal of [achieving] water quality which
provides for the protection and propagation of fish, shellfish, and wildlife and provides for
recreation ... by July 1, 1983" and a longer -term "goal that the discharge of pollutants into the
navigable waters be eliminated by 1985." Id. § 1251(a)(1), (2) (emphasis added).11 To meet those
goals, Congress prohibited the discharge of pollutants 12 from point sources 13 without a permit.
See id. § 1311(a). The Clean Water Act's NPDES permitting program is structured around
progressive improvements in pollution control over time to meet Congress's "national goal" of
eliminating discharges of pollutants. See id. § 1251(a)(1).14
This goal is pursued through the application of technology -based effluent limits, or
"TBELs." Every NPDES permit "shall" contain TBELs, which set the minimum level of control
required in those permits. 40 C.F.R. § 125.3(a). TBELs for most constituents are based on the
"best available technology economically achievable," id., which should "result in reasonable
further progress toward the national goal of eliminating the discharge of all pollutants," 33
U.S.C. § 1311(b)(2)(A).
Technology -based limits are derived from one of two sources: (1) national effluent
limitation guidelines ("BLGs") issued by EPA for various industries, 33 U.S.C. § 1314(b), or (2)
case -by -case determinations using permit writers' "best professional judgment" ("BPJ") when
EPA has not issued an ELG for an industry. See 33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. §
125.3(c)(2). Restated, "[w]here EPA -promulgated effluent guidelines are not applicable to a non -
[publicly owned treatment works] discharge, such requirements are established on a case -by -case
basis using BPJ."15 North Carolina rules likewise direct DEQ to calculate TBELs using
"available information" in the absence of a promulgated ELG. 15A N.C. Admin. Code 02B
.0406(b)(3). And EPA has provided a list of factors for permit writers to consider when
establishing TBELs based on the "best available technology economically achievable" using
BPJ. See 40 C.F.R. § 125.3(d)(3).
" See N.C. Dep't of Env't Qual., Hearing Officer's Report for NPDES Permit No. NC0090000 (June 14, 2023), at
30 ("The NPDES permit program was enacted in 1972 as part of the Clean Water Act. The original goal of the
program was to eliminate all point source discharges to surface waters by 1985.").
12 "The term `pollutant' means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock,
sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." 33 U.S.C.§ 1362(6).
13 "The term `point source' means any discernible, confined and discrete conveyance, including but not limited to
any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding
operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362(14).
14 North Carolina administers the NPDES program within its borders under delegated authority from EPA. See
National Pollutant Discharge Elimination System Memorandum of Agreement Between The State Of North Carolina
And The United States Environmental Protection Agency Region 4 (2007), available at
hLtps://www.gpa. gov/sites/dcfault/files/2013-09/documents/nc-moa-ppdes.pdf.
" EPA, NPDES Permit Writers' Manual at 5-45, available at hlWs://www.epa.gov/sites/production/files/2015-
09/documents/pwm_2010.pdf.

Where TBELs are insufficient to ensure against exceedances of water quality standards,
DEQ must also impose additional limits necessary to protect water quality for designated uses
(using water quality -based effluent limits, or "WQBELs"). 33 U.S.C. §§ 131l(b), 1314(b); 40
C.F.R. § 122.44(a)(1), (d). But to comply with the Clean Water Act, a permit writer first imposes
TBELs and subsequently evaluates the need to impose additional WQBELs if the TBELs are
insufficient to ensure compliance with water quality standards. TBELs "are developed
independently of the potential impact of a discharge on the receiving water, which is addressed
through water quality standards and water quality based effluent limitations."16 A discharger
must implement TBELs, even if doing so is more than what is necessary to meet water quality
standards. Id.; see 15A N.C. Admin. Code 02B .0404(a) ("[I]f the discharge is subject to both
technology based and water quality based effluent limitations for a parameter, the more stringent
limit shall apply."). Indeed, DEQ recently embraced this approach with respect to specific
constituents in a NPDES permit for Colonial Pipeline Company (Permit No. NC0090000).
There, "TBELs were implemented in the final permit where TBELs are found to more [sic]
stringent than Water Quality Based Effluent Limits (WQBELs)."17
DEQ may issue a NPDES permit only if the permit assures compliance with all
technology -based and water quality -based effluent limits. 33 U.S.C. § 1342(a)(1)(A); 40 C.F.R. §
122.43(a). Permit writers run afoul of the Clean Water Act when they bypass TBELs because
doing so forecloses the Congressional goal of eliminating discharges of pollutants to navigable
waters —pollutant levels would be maintained, or even increased, so long as they did not violate
water quality standards.
a. DEQ failed to impose TBELs in the draft permit.
BZM's draft permit fails to include TBELs for any pollutant. Indeed, BZM's permit
application discloses that "there is no wastewater treatment system" at the facility.18 DEQ
developed the sole numeric limit in the permit —for cadmium —based on WQBELs.19 DEQ's
refusal to impose TBELs is a textbook Clean Water Act violation.
The root of this error appears to be DEQ's assertion that the "need for toxicant limits is
based upon a demonstration of reasonable potential to exceed water quality standards"—i.e., the
need for limits is based solely on WQBELs.20 Using this approach, DEQ determined only
cadmium should be subject to a numeric effluent limit, even though the discharge would contain
high concentrations of other pollutants. This is incorrect. DEQ must first consider the availability
and capability of treatment technologies, not the reasonable potential for a constituent to exceed
water quality standards, when deciding whether to impose numeric limits on a constituent.
TBELs "represent the minimum level of control that must be imposed in a permit." 40 C.F.R. §
125.3 (emphasis added). And permits "shall contain ... technology -based treatment
16Id. at 5-1.
17 Fact Sheet for NPDES Permit No. NCO090000 (June 14, 2023), at 12.
18 Application, supra note 4, at 40.
19 Fact Sheet, supra note 3, at 4.
20 Id. at 2.
al

requirements." Id. (emphasis added). WQBELs are considered only if TBELs are insufficient to
maintain water quality standards.
Nor does the lack of ELGs excuse DEQ's obligation to impose TBELs.21 "Where EPA -
promulgated effluent guidelines are not applicable ... [TBELs] are established on a case -by -case
basis using BPJ. ,22 DEQ recently implemented this approach —imposing TBELs despite the
absence of applicable ELGsin the NPDES permit for Colonial Pipeline Company mentioned
above. There, EPA developed TBELs using BPJ after recognizing that "there are no applicable
EPA effluent guidelines."23 Imposition of TBELs is not optional: DEQ has no authority to refuse
to consider them here.
b. Technologies are available to reduce the pollution in BZM's wastewater.
Multiple technologies are available that would reduce the pollution in BZM's wastewater.
DEQ must consider these technologies when developing TBELs.
For example, BZM discharges "a very high concentration of chlorides."24 Accordingly,
BZM identified three technologies that reduce chloride levels —"Reverse Osmosis (RO),
electrodialysis (ED), or chemical precipitation" —and confirmed the "most effective of these
treatment options for the high chloride concentrations in the process waste is RO. ,25 Elsewhere,
BZM characterizes RO as the "most feasible treatment option for removal of chlorides,"
estimates that it could reduce chloride levels by approximately 97%, and includes price estimates
for installing the technology at the facility.26 Yet DEQ apparently ignored this information and
imposed no limit in the permit on chlorides beyond requiring quarterly monitoring. This violates
the requirement to evaluate TBELs based on best available technologies.
Ironically, BZM also evaluated the potential to apply its wastewater to local fields instead
of discharging it to the river. But it rejected that alternative for several reasons, including that
BZM would not be able to apply wastewater during wet periods or when the temperature was
below freezing.27 Those precautions are in place to prevent the chloride -dense wastewater from
running off into adjacent waterways. Instead, BZM opted to discharge their untreated wastewater
directly into one of those same waterways. This is the type of unnecessary pollution that
consideration of TBELs is meant to prevent.
Imposing appropriate limits on chlorides —including TBELs—is critical because
chlorides harm freshwater aquatic life in numerous ways. Varied concentrations of chlorides
cause both acute and chronic interference with osmoregulation (the process by which aquatic life
21 See id., at 1 (noting that "there are no effluent guidelines for Zinc recycling facilities").
22 EPA, NPDES Permit Writers' Manual at 5-45.
21 Fact Sheet for NPDES Permit No. NC 0090000 (June 14, 2023), at 11.
24 Fact Sheet, supra note 3, at 2.
25 EAA, supra note 10, at 9.
26 Id. at 15, 9.
27 See id. at 10.
5

maintains acceptable salt concentrations).28 Chloride is also toxic to aquatic plants in
concentrations as low as 71 mg/L.29 Excess concentrations of chloride may severely impact the
biodiversity of the Broad River.
As another example, DEQ refused to impose TBELs based on technologies available to
treat cadmium. For several years, BZM has operated under a cadmium compliance schedule,
which authorized discharges of cadmium that could lead to exceedances of water quality
standards. The compliance schedule required BZM to complete a study "of process alternatives
and/or pollution prevention/waste minimization alternatives" by December 2022 that would
reduce the amount of cadmium in its discharge.30 BZM does not appear to have completed that
study and instead requested that the compliance schedule be rescinded because the facility is not
discharging levels of cadmium that may violate water quality standards. But the assessment of
available technologies is not relevant only to the compliance schedule but also to the imposition
of TBELs. DEQ should require BZM to complete the study and take that information into
account when issuing TBELs. This point is worth underscoring —to aid DEQ's assessment of
TBELs, the agency should require companies like Befesa to provide an assessment of available
treatment technologies when applying for renewed NPDES permits. Otherwise, DEQ is
obligated to assess the availability of technologies on its own. Here specifically, DEQ should
require BZM to complete its assessment of technologies to reduce cadmium in its wastewater
and then use that information to develop a TBEL.
BZM's high discharge of sulfates —over 37,000 pounds per day3'—also underscores the
need to assess technologies to reduce this discharge. Sulfate is not toxic to aquatic life at average
concentrations, but high concentrations can trigger ecological imbalances in biological
processes.32 For example, high concentrations of sulfate increase the amount of nutrients in
water, which reduces available oxygen. Numerous ecological harms are the result, eutrophication
being one.33 Increased concentrations of sulfate also lead to increased concentrations of sulfide
which, as discussed more below, can cause additional ecological problems.34 The TBELs
requirement obligates DEQ to determine if technologies are available to reduce this high level of
sulfates discharge.
" EPA, Ambient Water Quality Criteria for Chloride (1988), at 2-4, available at
https://www.epa.gov/sites/default/files/2018-08/documents/chloride-aquatic-life-criteria-1988.pdf; Linda Green et
al., Chlorides in Fresh Water at 3 (2012).
29 EPA, Ambient Water Quality Criteria for Chloride (1988), at 2-4.
30 Application, supra note 4, at 93.
31 Id. at 88 (Form 2C: Section 7 Attachments, Analytical Monitoring Data Summary).
32 RAMP, Sulfate and Water Quality (last visited June 5, 2023), http://www.state.ky.us/nrepc/water/ramp/rtnso4.htm;
Ozone Solutions, Sulfate and Hydrogen Sulfide in Water (Dec. 3, 2021), h!Ws:Hozonesolutions.com/blog/sulfate-
and-hydrogen-sulfide-in-water.
33 LeibnizAss'n, Sulphate in Water Bodies (Feb. 1, 2021), https://www.leibniz-gemeinschaft.de/en/about-us/whats-
new/news/forschungsnachrichten-single/newsdetails/sulDhate-in-water-bodies.
34 Id.
on

It appears that there are multiple other technologies —in addition to those identified by
BZM—available to treat pollutants discharged by BZM, including:
• The Lemtec process and ammonia stripping to reduce NH3N.35
• Fluoride reduction to reduce fluoride.36
• Coagulation, filtration, and reverse osmosis to reduce antimony.37
• Chemical precipitation, adsorption in activated carbon, ion exchange, reverse osmosis,
and biological treatment to reduce selenium.38
• Chemical precipitation, adsorption, oxidation, and membrane separation to reduce
chloride.39
• Oxidation, coagulation, flocculation, adsorption, and ion exchange to reduce arsenic.40
• Hydroxide precipitation, cyanide oxidation, and chromium reduction to reduce heavy
metals.41
Imposition of all of these technologies may not be required but DEQ appears to have not
even asked the question. "Case -by -case [TBELs] are appropriate [when a] pollutant is present, or
expected to be present, in the discharge in amounts that can be treated or otherwise removed. ,42
DEQ's refusal to consider TBELs whatsoever in BZM's draft permit violates the Clean Water
Act.
III. Without a TBEL, DEQ should impose a WQBEL for chlorides.
As explained above, where TBELs are insufficient to ensure against exceedances of water
quality standards, DEQ must also impose WQBELs. 33 U.S.C. §§ 1311(b), 1314(b); 40 C.F.R. §
122.44(a)(1), (d). WQBELs are necessary here for chlorides because the draft permit allows
unlimited discharges of the pollutant which threatens water quality.
BZM admits that it discharges "a very high concentration" of chlorides, but we have been
unable to find any documentation in BZM's application materials disclosing a specific quantity.
" EPA, Wastewater Technology Fact Sheet: Ammonia Stripping (2020),
htt2s://www3.epa.aov/npdes/pubs/ammonia_stripping_pdf, Lemna Environmental Technologies, Ammonia Removal
(last visited June 20, 2023), https://www.lemna.com/solution/ammonia-nitrogen-removal/.
36 Wastech Controls & Eng'g, Inc., Fluoride Wastewater Treatment (last visited June 20, 2023),
https://wastechen ing eering.com/fluoride-reduction-hf.html.
31 APEC Water, Drinking Water Contaminants —Antimony (last visited June 20, 2023),
https://www. freedrinkingwater. com/water-contamination/antimony-removal-water.httn.
38 Agua Sigma, Selenium Removal from Industrial Wastewater with Iron Co precipitation (Apr. 14, 2021),
https:Ha uasigma.com/en/technical-articles/selenium-removal-from-industrial-wastewater-with-iron-co-
precipitation.
39 Yiming Li et al., Removal of Chloride from Water and Wastewater: Removal Mechanisms and Recent Trends (Jan.
31, 2022), hops://www.sciencedirect.com/science/article/abs/pii/SO048969722002649?via%3Dihub.
41 Nina R. Nicomel et al., Technologies for Arsenic Removal from Water INT'L J. ENV'T RSCH. PUB. HEALTH (Dec.
22, 2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4730453/.
41 David M. Ayres et al., Removing Heavy Metals from Wastewater, UNIV. OF MD. (Aug. 1994),
http://www.bluevantage.net/userdata/userfiles/file/Heavy%20Metals%2ORemoval.pdf.
42 EPA, NPDES Permit Writers' Manual, at 5-46.
7

DEQ should have obtained and used this information to develop WQBELs. Instead, DEQ
completed its reasonable potential analysis to determine the need for WQBELs based on a
chloride concentration of 17,000 mg/L.43 The source of this number is unclear, but DEQ used it
to determine that no WQBELs were necessary. However, this analysis ignores the fact that North
Carolina law mandates that "[e]fforts shall be made by all dischargers to reduce or eliminate
chloride from their effluents." 15A N.C. Admin. Code 02B .0211(22). DEQ should develop a
WQBEL for chlorides taking this requirement into account. Notably, establishing a TBEL for
chlorides as discussed above would likely eliminate the need to develop a WQBEL.
IV. DEQ's Reasonable Potential Analysis Suffers from Significant Flaws.
As indicated above, DEQ completed an analysis of the reasonable potential of each
pollutant to cause an exceedance of water quality standards to determine the need to impose
WQBELs. Here, DEQ's reasonable potential analysis ("RPA") suffers from multiple flaws and
cannot be relied upon to support a finding that WQBELs are not necessary.
a. DEQ has not followed the steps to complete an RPA with no data.
According to DEQ, it determined that limits were not necessary for the following
constituents because "they did not demonstrate reasonable potential to exceed applicable water
quality standards/criteria": Total phenolic compounds, chromium VI, cyanide, mercury,
selenium, and silver.44 But DEQ's RPA reveals that it input no data into its analysis for any of
these constituents.45 EPA's Permit Writers' Manual outlines the process for completing an RPA
with no data, but DEQ has not followed that process here, leaving its RPA conclusions
unjustified.46
Similarly, DEQ concluded that limits were not necessary for thallium because it also "did
not demonstrate reasonable potential to exceed applicable water quality standards/criteria. ,47 But
DEQ's RPA reveals that it did not complete this analysis for thallium at all.48 This conclusion
cannot be relied on to demonstrate that a WQBEL is not required. Completing this analysis is
particularly important given the high amount of thallium in BZM's wastewater.49
Finally, DEQ removed all monitoring requirements for aluminum "based on the RPA
results," but there is no evidence DEQ completed an RPA for aluminum either.50
41 See NCDEQ, Reasonable Potential Analysis for American Zinc Products — 89109-RPA-2017 (2017) [hereinafter
"RPA"].
44 Fact Sheet, supra note 3, at 3.
4s RPA, supra note 43 (noting, for all other constituents, DEQ completed its RPA with only a single data point).
46 EPA, NPDES Permit Writers' Manual Section 6.3.3.
47 Fact Sheet, supra note 3, at 3.
48 See RPA, supra note 43.
4'Application, supra note 4, at 60.
11 Fact Sheet, supra note 3, at 4.
N.

The RPA completed by DEQ is inadequate to justify the agency's refusal to impose
WQBELs or its reduction in monitoring requirements. DEQ should rerun its RPA to accurately
assess the need for WQBELs. Notably, assessing the need for WQBELs for any of these
constituents would not obviate the need to evaluate TBELs, though imposing TBELs may
obviate the need to develop WQBELs.
b. DEQ's assumption of zero background is demonstrably incorrect.
When completing its reasonable potential analysis, DEQ assumes that background levels
of pollutants in the receiving water are zero .51 This is plainly wrong for several constituents,
which undermines the RPA.
For example, DEQ's RPA does not take BZM's stormwater runoff into account when
determining baseline coefficients. The chart below displays the concentration of various
hazardous compounds during rain events compared to the allowable concentrations per DEQ
water quality criteria and the NPDES permit:
Pollutant
Maximum
Average
BZM Maximum
BZM Average
Limit in
North Carolina
Stormwater
Stormwater
Daily
Effluent
Draft
Standards or
Discharge52
Discharge
Concentration in
Concentrations
Permit56
EPA Criteria
Concentration5
Effluent54
for
Concentration
in WS-IV
Waters57
Cadmium
0.86 mg/L
0.15 mg/L
0.13 mg/L
0.038 mg/L
Daily Max:
Acute:
0.4544 mg/L
0.0050206 mg/L
Monthly
Chronic:
Average:
0.0008141 mg/L
0.09 mg/L
Lead
0.79 mg/L
0.09 mg/L
0.39 mg/L
0.017 mg/L
N/A
Acute:
0.1324722 mg/L
Chronic:
0.0047437 mg/L
Zinc
96.9mg/L
9.2 mg/L
0.630 mg/L
0.145 mg/L
N/A
Acute:
0.1923265 mg/L
Chronic:
0. 18183 92 m /L
Chloride
1,080 mg/L
40 mg/L
N/A
17,000 mg/L58
5
N/A
Chronic: 230
mg/L
51 Fact Sheet, supra note 3, at 2.
52 Befesa Zinc Metal, NPDES Permit: Stormwater Discharges Associated with Industrial Activity (Nov. 1, 2022)
[hereinafter "Stormwater Permit"] at 10-11.
53 Id.
54 Application, supra note 4, 17-18.
55 Id.
56 Draft Permit, supra note 8, at 3.
57 RPA, supra note 43.
58 Fact Sheet, supra note 3, at 2
6

DEQ must take this data into account when completing its RPA because the stormwater
releases affect the total concentration of pollutants in the Broad River. Cadmium exemplifies
this: Combining the maximum concentration of cadmium in stormwater discharge (0.86 mg/L)59
with the maximum concentration of cadmium in the wastewater discharge (0.13 mg/L)60 risks
exceeding the WQBEL of 0.4544 mg/L.61 This risk is particularly noteworthy given that
stormwater discharges appear to have no volume limit.62 At a minimum, DEQ must factor in the
concentrations of chemicals in the stormwater runoff when completing its RPA to accurately
develop WQBELs. The agency should also factor in concentrations of pollutants detected in
upstream monitoring data. DEQ's current assumption that background concentrations are zero is
arbitrary given the data provided above.
V. DEQ must apply narrative water quality standards in its permitting decision.
DEQ's sole focus in its permitting decision appears to be the application of numeric water
quality standards. This ignores narrative water quality standards, which must be considered when
setting permit limits. DEQ must design WQBELs to "[a]chieve water quality standards ...
including State narrative criteria for water quality." 40 C.F.R. § 122.44(d)(1). And DEQ's RPA
must examine "the reasonable potential to cause, or contribute to an excursion above any State
water quality standard, including State narrative criteria for water quality." Id. § 122.44(d)(2).
For toxic substances specifically, North Carolina law provides that "the concentration of
toxic substances, either alone or in combination with other wastes, in surface waters shall not
render waters injurious to aquatic life or wildlife, recreational activities, or public health, nor
shall it impair the waters for any designated uses." 15A N.C. Admin. Code 2B.0208(a). State law
defines toxic substances as "any substance or combination of substances (including disease -
causing agents) that ... has the potential to cause death, disease, behavioral abnormalities,
cancer, genetic mutations, physiological malfunctions (including malfunctions or suppression in
reproduction or growth), or physical deformities in ... organisms or their offspring." 15A N.C.
Admin. Code 2B.0202(57).
As explained above, BZM releases high amounts of several constituents —including, but
not limited to, chlorides, sulfates, and sulfides —that have the potential to cause physiological
malfunctions in fish and other aquatic organisms. To comply with North Carolina's narrative
water quality standard, DEQ must consider if the release of each pollutant "in combination with
other wastes ... [may] render waters injurious to aquatic life or wildlife." 15A N.C. Admin.
Code 2B.0208(a). That analysis is missing here, which violates DEQ's Clean Water Act
permitting obligations.
59 Stormwater Permit, supra note 52, at 10.
60 Application, supra note 4, at 17.
" Draft Permit, supra note 8, at 3.
62 See Stormwater Permit, supra note 52, at 10 (demonstrating the lack of data relating to the flow of stormwater
discharge into the Broad River and consideration of the stormwater effluent into the baseline concentration for the
discharge permit).
10

VI. DEQ must require BZM to disclose the amount of sulfide and surfactants in its
effluent.
The Clean Water Act requires permittees to assess and disclose the pollutants in their
effluent. BZM failed to fulfill this obligation with respect to sulfides and surfactants.
DEQ has acknowledged the disclosure requirement in other contexts, explaining that:
Part of the permit applicant's burden ... 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. 2H
.01050) (emphasis added).63
EPA has also 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 approval permit limits in the absence of applicable effluent guidelines.64
Here, BZM acknowledges that sulfides and surfactants are present in its effluent but
explains that they are "not monitored by the facility" and includes no further information about
them.65 This is insufficient to meet the Clean Water Act's disclosure requirements or allow DEQ
to develop TBELs or WQBELs for these constituents.
Proper disclosure is important because both constituents pose risks to aquatic health.
Extended concentrations of sulfide over 0.002 mg/L lead to chronic issues in freshwater fish.66
Chronic exposure manifests itself in susceptibility to disease.67 Acute effects of sulfide toxicity
occur in freshwater organisms at 0.02 mg/L.68 If this concentration persists for more than 96
hours in a body of water, the short-term mortality rate of fish in the waterbody increases to
63 Amended Complaint, N.C. Dept. of Environmental Quality v. Chemours, 17 CVS 580, 6-7 (N.C. Super. 2018)
(hereinafter "N.C. DEQ Amended Complaint") (citing 33 U.S.C. § 1342(k), Piney Run Pres. Assn a Cty. Commis
of Carroll Cty., MD, 268 F.3d 255, 265 (4th Cir. 2001)).
64 Consolidated Permit Application Forms for EPA Programs, 45 Fed. Reg. 33,526-31 (May 19, 1980).
6s Application, supra note 4, at 42.
66 Claude E. Boyd, Hydrogen Sulfide Toxic, But Manageable at 36 (2014),
https:Haquafishcrsp.oregonstate.edu/sites/aquafishcrsp.oregonstate.edu/files/boyd2014hydrogensulfide gaa.pdf.
67 Id.
6s Id.
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50%.69 Surfactants similarly pose a threat to biological integrity and wildlife.70 Surfactants slow
microbial growth and increase microbial mortality rates.71 When an ecosystem's microorganisms
are disrupted, the entire nutrient cycle is derailed.72 This microscopic change may have adverse
effects on the biological integrity and wildlife of the Broad River. Disclosure of the type of
surfactant used is particularly important because the class of chemicals known as per- and
polyfluoroalkyl substances ("PFAS") are commonly used as surfactants. HAS pose serious,
well -documented threats to human and aquatic life. DEQ must require BZM to disclose the
amount of sulfides and surfactants being discharged so it can evaluate the need to impose permit
limits. To be clear, if BZM uses PFAS as a surfactant, DEQ must prohibit the discharge of this
contaminant to the Broad River or impose very strict permit limits.
VII. DEQ should not further reduce or eliminate monitoring requirements.
With the current draft permit, DEQ continues its pattern of reducing or eliminating
monitoring requirements for this facility. During the last permit cycle, DEQ reduced or
eliminated monitoring requirements for total chromium, fluoride, and lead.73 Now, DEQ
proposes to reduce or eliminate monitoring requirements for total suspended solids, aluminum,
tin, antimony, fluoride (a further reduction), nickel, lead, cobalt, and iron.74 These reductions will
make it even more difficult for DEQ to complete a reasonable potential analysis during the next
permit cycle. As noted above, DEQ has attempted to complete its reasonable potential analysis
this permit cycle based on either zero or a single data point. The less data collection DEQ
requires from BZM, the less accurate and defensible DEQ's permitting decisions will become.
DEQ should not authorize further reductions to BZM's monitoring requirements.
VIII. Conclusion
Congress designed the Clean Water Act to achieve progressive improvements in pollution
control over time to meet the "national goal" of eliminating discharges of pollutants. 33 U.S.C. §
1251(a)(1). Instead, DEQ's permitting approach —no TBELs, a single WQBEL, a reasonable
potential analysis based on either zero data or a single data point that does not consider
background levels of pollutants, refusal to consider narrative water quality standards, and
increasingly relaxed monitoring requirements —leaves the Broad River almost completely
unprotected from this discharge. This is particularly problematic given the long history of
violations at this facility, the use of hazardous waste in its industrial processes, and the soup of
dangerous pollutants in its effluent. Instead of protecting and improving the Broad River for
those who use and rely on it, DEQ seems more inclined to give this discharger maximum
69 Id.
71 Suaibu 0. Badmus et al., Environmental Risks and Toxicity of Surfactants: Overview ofAnalysis, Assessment, and
Remediation Techniques, ENV T SCI. AND POLLUTION RSCx. (Sept. 29, 2021),
hLtps:Hlink.springer.com/article/10. I 007/s11356-021-16483-w.
71 Id.
72 See Michael Greenwood, Microbes and Nutrient Cycling, MEDICAL & LIFE SCIENCES NEWS (Mar. 8, 2022),
https://www.news-medical.net/life-sciences/Microbes-and-Nutrient-Cycling.aspx (showing the importance of
microbes to nutrient cycling).
73 See Fact Sheet, supra note 3, at 3.
74 Id. at 4-5.
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flexibility to use the river as its own dumping ground. That violates the spirit and letter of the
Clean Water Act. To rectify that violation, DEQ should make the changes discussed above.
As always, we are available to answer additional questions or provide other information.
Sincerely,
pw�4;'4tT
Patrick Hunter
Managing Attorney
Southern Environmental Law Center
[e-mail]
Henry Gargan
Associate Attorney
[e-mail]
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