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HomeMy WebLinkAboutWQC Minutes July 20221 WATER QUALITY COMMITTEE MEETING MINUTES July 13, 2022 MEETING BRIEF During the July 13, 2022, meeting of the North Carolina Environmental Management Commission’s Water Quality Committee, the Committee: • Approved the draft May 11, 2022, WQC meeting minutes, • Approved the 2021 Annual Report on Water Supply Watershed Protection, Universal Stormwater Management, and NPDES MS4 Ordinance Programs, • Approved the July 13, 2022, memo from Director Rogers to the WQC (with modifications) regarding the Change to Delegation of Minor Modifications to EMC- approved Major Variances and heard the 2022 Report as an information item, • Approved proceeding to the EMC with the Second Set of Revised Local Programs for Neuse and Tar-Pamlico New Development Stormwater Implementation, and • Heard two informational presentations: 1) Special Order by Consent for City of Greensboro - 1,4-dioxane: Semi-Annual Progress Report, and 2) Laboratory Certification Concept to Add Chemical Parameters to 15A NCAC 02H .0804. WQC MEMBERS IN ATTENDANCE Ms. Marion Deerhake, Chair Mr. John McAdams Ms. Patricia Harris, Vice-Chair Ms. Margaret Monast Ms. Donna Davis Mr. J.D. Solomon DEQ STAFF & OTHERS IN ATTENDANCE Mr. Richard Rogers, Director, DWR, Ms. Julie Grzyb, Deputy Director, DWR Mr. Michael Montebello, Mr. Paul Clark, Mr. Paul Wojoski, Ms. Trish D’Arconte, Ms. Jenny Graznak, Mr. Todd Crawford TABLE OF ACRONYMS ARPA American Rescue Plan Act CAMA Coastal Area Management Act DEMLR NC Division of Energy, Minerals, and Land Resources DWR or Division NC Division of Water Resources EPA United States Environmental Protection Agency EMC or Commission NC Environmental Management Commission MS4 Municipal Separate Storm Sewer System, an NPDES Program NC North Carolina NCAC North Carolina Administrative Code 2 NCGS North Carolina General Statutes NPDES National Pollutant Discharge Elimination System, a Clean Water Act permit program PFAS per-and polyfluoroalkyl substances, a group of chemicals SOC Special Order by Consent UNC University of North Carolina WQC or Committee NC EMC Water Quality Committee I. Preliminary Matters 1. Meeting called to order and notice of NCGS 138A-15 regarding conflict of interest: Chair Deerhake called the WQC meeting to order at 9am. None of the members announced they had a known conflict of interest regarding the matters on the meeting agenda. 2. Approval of draft May 11, 2022, WQC meeting minutes: Commissioner Harris made a motion to approve the meeting minutes, and Commissioner McAdams seconded. There was no discussion, and the meeting minutes were approved unanimously. 3. Welcoming of Commissioner Solomon to WQC: Chair Deerhake introduced and welcomed Commissioner Solomon to the WQC. He replaces Commissioner Charles Carter who will fill Commissioner Solomon’s seat on the Groundwater and Waste Management Committee. 4. Agenda Correction: Chair Deerhake noted that items 4 and beyond are information items, not action items. II. Action Items 1. 2021 Annual Report on Water Supply Watershed Protection, Universal Stormwater Management, and NPDES MS4 Ordinance Programs (Paul Clark, Division of Energy, Mineral, and Land Resources, Water Supply Watershed Protection Coordinator) Chair Deerhake explained that there is no presentation associated with this report but it requires the WQC’s approval. Commissioner Solomon asked how much enforcement and follow up DEQ is conducting, noting his concern that there isn’t enough of it. In acknowledging Commissioner Solomon’s concern, Mr. Clark, DEMLR, noted that there are about 270 local programs and that DEQ doesn’t have the resources to monitor and evaluate them all closely as expected. Commissioner Solomon then asked how DEQ could do better regarding local governments that aren’t implementing their programs, and Mr. Clark noted that he sent surveys and newsletters to the program participants. About 43% responded. He explained that enforcement is lagging because the stormwater program is down four employees, and he is assisting with other programs. 3 Chair Deerhake noted that in September 2021 the full EMC did not approve the draft model water supply watershed protection ordinance. Mr. Clark stated that he is reviewing staff comments from the UNC School of Government. Chair Deerhake then stated that there was a spreadsheet distributed a few meetings ago listing the various local programs in the state and the details about each. Commissioner Solomon noted that based on his experience with local governments, these ordinances are in conflict, and that in these conflicts, local governments are following their land use ordinances which conflict with the densities here. Chair Deerhake noted that she is interested in the state building the level of staffing it needs to review and audit local programs more carefully. Commissioner Monast moved to approve the annual report, Vice-Chair Harris seconded it, and the motion carried unanimously without discussion. 2. Change to Delegation of Minor Modifications to EMC-approved Major Variances and 2022 Report (Paul Wojoski, Division of Water Resources, 401 & Buffer Permitting Branch) As an information item, Mr. Wojoski, DWR, briefly summarized the 2022 report on minor modifications to EMC-approved major variances, noting that there were no modifications issued to any EMC major variances in the past reporting year. As an action item request, Mr. Wojoski explained that when the EMC delegated the authority to the Division to make minor changes to EMC-approved major variances, the EMC also required annual reports of those changes. Due to little or no such minor modification activity in recent years, DWR requested in the memo before the WQC to only require the report in years when the Division makes a minor modification to a major variance. Commissioner Monast asked if any minor modifications were requested in the past year. Mr. Wojoski replied none. She stated that there is a difference when a) there were multiple minor modification requests and none approved versus b) none requested and none approved. Chair Deerhake agreed, noting that the WQC wants to know about activity and not just the number of approvals. Mr. Wojoski said that the action request in the memo states that the report summarizing DWR-approved minor modifications to EMC major variances shall only be provided to the WQC for years in which DWR has granted at least one modification to an EMC-granted major variances. Considering Commissioner Monast’s request, Mr. Wojoski explained that the language could be modified to read that the report shall be provided to the WQC in years when DWR has received at least one modification request to an EMC-granted major variance. Commissioner Monast asked how other WQC members felt about Mr. Wojoski’s proposal, and Commissioner Solomon nodded yes. Vice-Chair Harris said her concern is being aware of requests and modifications but noted that DWR does have delegated authority. Mr. Wojoski responded that the delegation granted to DWR in 2003 includes specific parameters that allow DWR to make the modifications, and those parameters are 4 limited. DWR’s modification cannot change any of the EMC’s preliminary findings or allow increased impacts. Chair Deerhake stated that if we ask a general question about activity, that will capture any decision making by DWR. Proposing an amendment to Mr. Wojoski’s request, she stated that the second sentence of the last paragraph could say that the report would be due if the Division has received at least one minor modification request to EMC-granted major variances. There was a discussion about changing the language of the request. After the discussion, Chair Deerhake accepted Mr. Wojoski’s offer to draft a revised version of the memo before the meeting closed. After the WQC reviewed the revised memo, Commissioner Monast moved to approve it, Commissioner McAdams seconded the motion, and the motion passed unanimously without further discussion. Chair Deerhake signed the memo after the meeting. 3. Request Approval to Proceed to the EMC with the Second Set of Revised Local Programs for Neuse and Tar-Pamlico New Development Stormwater Implementation (Trish D’Arconte, Division of Water Resources, Non-Point Source Planning Branch) Ms. D’Arconte noted that the first group of 12 local programs’ changes was presented at the May WQC meeting. The July package contains a second group of seven local programs, and more local programs’ changes are planned for future WQC meetings. She explained the history of the Neuse and Tar-Pamlico Stormwater Rules. She stated that DWR has developed a model program with model ordinance to help local governments understand what DWR wants, and DWR has provided extensive guidance to local governments in the form of meetings, emails, and review of individual local programs. Then, Ms. D’Arconte explained DWR’s review process for submitted materials. She presented information about the seven draft programs before the WQC: the City of Durham, Franklin County, Havelock, Kinston, New Bern, Rocky Mount, and Wilson. She also discussed the status of remaining local programs. Ms. D’Arconte explained that there is a third set of 19 local programs for which DWR will be seeking WQC and EMC approval. She concluded her presentation by stating DWR’s requested action: WQC approval to proceed to the EMC with this second set of seven local programs. Chair Deerhake began the discussion by noting that originally, DWR asked if WQC would delegate this approval to DWR. The Chair and Vice-Chair declined the request because the WQC needs to understand these programs. Commissioner Solomon stated that he was concerned that local governments are putting costly requirements into their ordinances that may not be required by law. He also noted that developers face problems when there is conflict between model programs and local ordinances. He wants the EMC and potentially lawyers to verify, with attention to detail, that what is being asked of local jurisdictions is consistent with existing statutes and rules. 5 Commissioner McAdams, citing Commissioner Solomon’s concerns, asked why this model program is not implemented on a state level. Commissioner Solomon said the issue was debated, but that the ordinance itself, if adopted as a statewide measure, would not always apply statewide. Ms. D’Arconte stated that local communities often copy large portions of the model ordinance verbatim, and Commissioner Solomon stated that local government staffers sometimes mistakenly believe that the model ordinance must be adopted in full by each local government. Ms. D’Arconte noted that it can be complicated for local MS4 communities like Clayton to weave together different requirements from different sources. She said that DWR tried to mitigate this as much as possible, but that DWR’s objectives can be different from other legal authorities. Counsel Reynolds asked Ms. D’Arconte if she saw a conflict between what is required in terms of redevelopment and density under the statute versus what is in the model ordinances. She responded that DWR had conversations with legal counsel in DWR and DEMLR about understanding the requirements of redevelopment versus expansion and development. She does not think there is a conflict but she said it would be helpful if any potential or perceived conflicts were stated explicitly to DWR so the Division can understand and address concerns better. She said DWR refers to project density based on GS 143.214 and looks to DEMLR to define density. She also stated DWR did its best to clarify the nutrient rules but would be glad to examine any specific concerns. Vice-Chair Harris asked about the two plans that were subject to CAMA but were not in CAMA counties. She asked if there were different or more stringent restrictions in CAMA counties. Ms. D’Arconte stated that CAMA has different stormwater requirements due to larger storms, and DWR was concerned with whether the local governments were accounting for that and intending to implement CAMA on their own. Commissioner Deerhake noted that one of Havelock’s revised ordinances cites CAMA permitting. Vice-Chair Harris looked at New Bern’s program and did not see any reference to CAMA; she said it was difficult to follow model ordinances without examining the details because of the other rules in play. She stated that she was concerned about the four delinquent jurisdictions and wanted the delinquency recorded in the minutes. Ms. D’Arconte stated that she has communicated with the four jurisdictions but only one responded. She said the Division generally does not get responses unless she suggests enforcement actions. Vice-Chair Harris stated that she hoped these non- compliant jurisdictions would comply without enforcement action. Chair Deerhake shares the same concern about local governments that are not communicating with DWR. Vice- Chair Harris noted that part of the problem may be that local governments have not hired enough employees to properly comply with these requirements, and Ms. D’Arconte agreed that was part of the issue. Chair Deerhake stated that DWR Director Rogers wanted to know the names of the communities that aren’t responsive. Commissioner Solomon pointed out that local governments are required to evaluate matters from different points of view - nutrient, redevelopment versus new development, stormwater – and that they tend not to have the resources to handle different approaches simultaneously. Vice-Chair Harris agreed with Commissioner Solomon and suggested that Director Rogers ask these four communities if they have any hardships or issues, so 6 that DWR can better understand the failure to comply. Ms. D’Arconte stated that local governments often struggle to meet multiple state and local objectives and sometimes, they will not tell DWR when they were struggling. She pointed out that DWR has helped those governments who reach out and ask for help. Chair Deerhake observed that more experienced and well-funded programs, such as the City of Durham, should be exploring green infrastructure and more advanced stormwater control measures than wet ponds. She also noted inconsistencies in how these programs express their level and means of enforcement, the transparency in their ongoing inspection and maintenance programs, and their review of industrial sources. Chair Deerhake also noted her concerns about quality assurance errors in the local program packages submitted. Commissioner McAdams moved to recommend approval of these 7 programs to the EMC in September and Commissioner Monast seconded the motion. The motion passed with 3 Commissioners in favor. Commissioner Solomon stated that he voted no rather than abstaining because he was new to the WQC and had not had enough time to make a decision. Commissioner Davis abstained from voting. After the vote, discussion continued. Commissioner Davis asked if many local governments were taking an impersonal stormwater management approach, meaning that they relied on the model ordinance. Vice-Chair Harris found the reference in Mr. Clark’s report – seven governments use the universal stormwater program. Commissioner Davis asked Commissioner Solomon if local governments were confused about the fact that they could adopt parts of the model ordinance relevant to their situation as opposed to having to adopt the whole ordinance. Commissioner Solomon answered yes, noting that local governments often do more than required and face confusing and different requirements. Commissioner McAdams stated the idea on the model ordinance is to see how many people are using it and see if we can provide better direction to local jurisdictions. Director Rogers said we are examining the issue of conflicting programs/requirements facing developers and that we’ll draft a letter to the non- compliant local governments and give them a less than gentle nudge to start communicating better. III. Information Items 1. Special Order by Consent for City of Greensboro - 1,4 dioxane: Semi-Annual Progress Report (Jenny Graznak, Division of Water Resources, Winston-Salem Regional Office) This item was mistakenly listed as Action Item 4 in the July agenda; it is an information item. Julie Grzyb, DWR Deputy Director, began the presentation by describing DWR’s requirements under the Special Order of Consent for the City of Greensboro and outlining the topics of the presentation. She provided a history of DWR’s 1,4-dioxane investigation and mitigation efforts in the Cape Fear River basin. She presented a graph 7 showing the maximum reported 1,4-dioxane concentrations by municipal wastewater treatment facilities, noting that three facilities were above the EPA threshold of 35 µg/L - Asheboro, Reidsville, and Greensboro. Ms. Grzyb presented a spreadsheet of sampled wastewater treatment facilities. She noted that DWR is still doing surface ambient sampling at 23 sites in the Cape Fear River, as well as 29 other random locations across the state that change yearly. She noted the general trend of declining levels of 1,4-dioxane in the Cape Fear River since 2015 except for a few excursions such as Reidsville and Greensboro. She also explained DWR’s other monitoring and sampling efforts. Jenny Graznak, DWR-Winston-Salem Regional Office, presented updates on the SOC. She summarized the original SOC and noted that the EMC approved an amended SOC in November 2021 as a lawsuit settlement. The settlement terms spanned three years, with each year having a lower compliance value, and a requirement for semi-annual progress reports to the WQC. Ms. Graznak described Greensboro’s ongoing 1,4-dioxane monitoring program, including monitoring significant industrial users’ (SIU) discharges. She characterized the April 2022 exceedance, noting that Greensboro notified DWR and downstream utilities. SOC-driven monitoring enabled Greensboro to ascertain that Lanxess, a chemical manufacturing company, was the source of this exceedance. Lanxess suspended until further notice the manufacturing the product that generates 1,4-dioxane as a by-product. Ms. Graznak closed by reviewing the next steps for Greensboro under the SOC. Michael Montebello, DWR-NPDES Branch Chief, described recent actions to reduce 1,4- dioxane concentrations in the Cape Fear River basin, noting that DWR is posting this information about these actions on its emerging compounds website. He cited examples of NPDES permits with limits or monitoring requirements for 1,4-dioxane. Mr. Montebello described how DWR identifies potential 1,2-dioxane point sources that are upstream of drinking water intakes. He noted that the next group of NPDES permits for these potential point sources would have 1,4-dioxane discharge limits. More information about these limits will be presented in DWR’s next semi-annual progress report. Mr. Montebello described additional steps DWR is taking to reduce 1,4-dioxane pollution, including working with industrial users to discuss alternatives to reduce or eliminate 1,4- dioxane discharge. Commissioner Davis asked if the Greensboro wastewater treatment plant was on schedule to complete its upgrades to comply with the SOC. Mr. Montebello stated that it was the treatment plant’s responsibility to determine how it would allocate its allowed 1,4-dioxane amongst different users and that Greensboro was currently on schedule. Commissioner Deerhake asked if there was adequate monitoring to determine if there is a downward trend in 1,4-dioxane discharge in the other treatment plants of concern, or if these plants were at risk of sudden spikes of 1,4-dioxane. Ms. Graznak said those plants (except Greensboro) are being sampled, and there have been some spikes that DWR had 8 to address. Commissioner Deerhake asked what the Lanxess facility was producing that created the 1,4-dioxane by-product. Ms. Graznak said that was not public knowledge but that it will no longer be produced in Greensboro. She added Lanxess is researching the issue at a global level. Ms. Grzyb added DWR is looking into this as much as possible to ensure that no other chemical manufacturers in the state were doing the same thing. Mr. Montebello noted that the 1,4-dioxane was not in the original product materials - it was produced after other materials were combined in a manufacturing project, which made tracking it more difficult. Ms. Graznak said she has been informed that 1,4-dioxane is not produced every time this process occurs; it depends on factors like how long its heated in the reaction unit on certain days. Chair Deerhake asked Mr. Montebello for information about the chemical addendum to NPDES permits he mentioned. He said permittees are supposed to tell DWR if they have any chemicals outside of the NPDES application, including 1,4-dioxane. He added as DWR continues its pre-treatment programs review, it will have a better idea of the types of industries that may discharge 1,4-dioxane. Chair Deerhake asked what we need to do as a state to review the chemical addendum list to ensure that other emerging chemical contaminants are on it. Mr. Montebello answered, noting that for PFAS, there is no approved test method for wastewater. He said there may be other pollutants that are not on the EPA list. 2. Laboratory Certification Request to Readopt 15A NCAC 02H .0804 to Add Additional Parameters (Todd Crawford, Division of Water Resources, RRO, WW/GW Laboratory Certification Branch) (This item was mistakenly listed as an action item on the July agenda; it is an information item.) Todd Crawford, DWR, stated that he was requesting to add two parameters to the scope of the laboratory certification rules in 15A NCAC 02H .0804. The first parameter to be added is “PFAS”. EPA is currently promulgating test method 1633, and when they approve it, DWR wants to be able to certify laboratories to use the method. The second parameter is “Organic Fluorine”, and the EPA is drafting a method for that too. Chair Deerhake noted that this is an information item and that Mr. Crawford was here today to explain the rule concept, not make a specific rulemaking action request. The draft rule language will be presented later to WQC pursuant to standard rule adoption procedures. Commissioner Carter noted that there has been some confusion about how the state implements the process of adding parameters to this lab certification list and that the WQC would be working on that with counsel and others. Commissioner Solomon said that if this proposed rule change were urgent, it could be taken straight to the EMC the next day. Chair Deerhake said that determination can be made when the draft language is ready for the WQC. Mr. Crawford pointed out that in rule 15A NCAC 02H.0805, there is a provision for the EMC to delegate the authority to add the parameters to the DWR Director without going through the formal rulemaking process. 9 Hearing no objection to the rule concept, consensus was achieved and Chair Deerhake directed DWR to proceed with rule drafting for WQC consideration. IV. July 14, 2022, EMC Meeting Agenda Items Chair Deerhake noted the July 14 EMC meeting items were on the agenda. There was no discussion of these matters. VI. Director’s Remarks (Richard Rodgers, DWR) DWR Director Richard Rogers noted that Jeff Poupart, who was until recently the Section Chief for Water Quality Permitting, has a new role with DEQ in the Secretary’s office as an Environmental Project Manager. He will process over 300 upcoming ARPA projects. VII. Closing Remarks With no further business before the WQC, the Chair adjourned the meeting at approximately 11:00 am.